§ 16-108. Developer contribution credit.

(a)

Subject to the terms and conditions of this section 16-108, a credit shall be granted against the road impact fees imposed by this article for the construction of all or any portion of an impact fee eligible road or for the donation of land or contribution of funds for an impact fee eligible road made pursuant to a development order or voluntarily in connection with a road impact construction. The donation, contribution or construction shall only provide improvements or additions to impact fee eligible roads which are required to accommodate growth as projected in the impact fee study. No credit shall be given for the construction of access improvements. Further, no credit shall be given for the donation of land or construction of a capital improvement unless such property is conveyed, in fee simple to the county without remuneration. Such conveyance and construction shall be subject to the approval of the impact fee coordinator and the following standards:

(1)

Any land to be conveyed shall be suitable as right-of-way for the contemplated impact fee eligible road;

(2)

Any monetary contribution shall be used in accord with section 16-94 herein for capital improvements and additions to an impact fee eligible road;

(3)

Any improvements to be constructed shall be an integral part of the contemplated impact fee eligible road, shall improve the function thereof, and shall exclude access improvements;

(4)

Any road right-of-way or land required to be dedicated to the county as a condition of development approval shall be dedicated no later than the time at which road impact fees are required to be paid under this article. The portion of the fee represented by a credit for construction shall be deemed paid when the construction is completed and accepted by the county for maintenance or when adequate security for the completion of the construction has been provided.

(5)

The design and/or construction of an impact fee eligible road shall be performed by professionals who are qualified under Florida law and the county code to perform such work.

(b)

Prior to requesting electrical power clearance, the applicant shall submit to the impact fee coordinator a proposed plan for donation, contribution or construction. The proposed plan shall include:

(1)

A designation of the road impact construction for which the plan is being submitted;

(2)

A legal description of any land proposed to be donated and a written appraisal prepared in conformity with subsection (d) of this section;

(3)

The amount and source of any monetary contribution;

(4)

A list of any contemplated improvements to impact fee eligible roads;

(5)

A proposed time schedule for completion of the proposed plan.

(c)

The impact fee coordinator shall review the proposed plan and determine:

(1)

If such proposed plan is in conformity with contemplated capital improvements for and additions to impact fee eligible roads;

(2)

If the proposed donation, contribution or construction by the applicant is consistent with the public interest; and

(3)

If the proposed time schedule for the conveyance of land, contribution of funds or construction is consistent with the county's capital improvement program for the impact fee eligible roads.

Upon approval of a proposed plan, the impact fee coordinator shall determine the amount of credit based upon the standards contained in subsection (d) of this section and shall approve the timetable for completion of the plan. The impact fee coordinator shall issue a decision within forty-five (45) days after the filing of the completed proposed plan.

(d)

The amount of developer credit to be applied to the road impact fee shall be:

(1)

The amount of any monetary contribution for an impact fee eligible road.

(2)

The value of donated land based upon a written appraisal of fair market value by an M.A.I. appraiser who was selected and paid for by the applicant, and who used generally accepted appraisal techniques. If the appraisal does not conform to the requirements of this article and any applicable administrative regulations, the appraisal shall be corrected and resubmitted. In the event the impact fee coordinator accepts the methodology of the appraisal but disagrees with the appraised value, the impact fee coordinator may engage another M.A.I. appraiser at the county's expense, and the value shall be an amount equal to the average of the two (2) appraisals. If either party does not accept the average of the two (2) appraisals, a third appraisal shall be obtained, with the cost of said third appraisal being shared equally by the county and the owner or applicant. The third appraiser shall be selected by the first two (2) appraisers and the third appraisal shall be binding on the parties.

(3)

The value of constructing an improvement to an impact fee eligible road based upon the sum of the construction cost, certain actual costs, the associated improvement cost, and the right-of-way cost (if the right-of-way is not already publicly owned) arrived at as follows:

a.

The construction cost shall be calculated based upon the actual length of the proposed road improvement and the most recent Florida Department of Transportation highway construction cost per centerline mile. The urban classification for roads will be used except that in the Lake Asbury Master Plan area, the suburban classification may be used as well. In the event the road improvement for which credit is sought is to be constructed using a design/build contract, then the credit value of the road improvement shall include only the amount of the design/build contract plus the actual cost of construction engineering and inspection and shall not include the percentage associated with associated improvement cost as described in paragraph b. below.

b.

Actual costs for street trees required by the land development regulations and signalization required by the county or the Florida Department of Transportation shall be allowed.

c.

Associated improvement cost, which includes planning, design, surveying, engineering, permitting, construction administration, bid procedure and bid document preparation, surveying and title expenses relating to platting, construction engineering and inspection, landscape plans, geotech studies, specialized studies, traffic control signalization design, and environmental surveying and permitting, will be valued at twenty-seven (27) per cent of the calculated cost to construct the road improvement.

d.

Right-of-way cost shall be arrived at pursuant to the provisions of paragraph (2) of this subsection (d).

e.

The commission, upon application therefor, may agree to allow the value of any environmental mitigation required by a permit associated with the road improvement to be added to the approved credit value for said road improvement. Environmental mitigation includes mitigation required for wetland impact or impacts to flora or fauna as a result of the construction of the road improvement and as described in any regulatory permit issued for said construction.

(e)

If a proposed plan is approved for credit by the impact fee coordinator, the applicant or owner and the commission shall enter into a credit agreement which shall provide for the parties' obligations and responsibilities, including, but not limited to:

(1)

The timing of actions to be taken by the applicant and the obligations and responsibilities of the applicant, including, but not limited to, the construction standards and requirements to be complied with;

(2)

The obligations and responsibilities of the county, including, but not limited to, inspection of the project;

(3)

The amount of the credit as determined in accordance with subsection (d) of this section; and

(4)

If required, provisions for a payment bond or an irrevocable letter of credit to be posted with the county, in an amount representing the difference between the road impact fee and the amount of the credit.

(f)

A credit for a monetary contribution or a land donation shall be granted at such time as the county is in receipt of the full amount of the monetary contribution and/or the donated land has been conveyed to the county, and the credit agreement is approved and executed by both the commission and the applicant or owner. A credit for a land donation in conjunction with construction of an improvement to an impact fee eligible road shall be granted at such time as the credit agreement is approved and executed by both the commission and the applicant or owner and a payment bond or irrevocable letter of credit is posted with the county in an amount representing the difference between the road impact fee and the amount of the credit; provided, however, that in the event the applicant or owner fails to convey the land to be donated or fails to convey the completed impact fee eligible road or such property or improvement is not ultimately accepted by the county in accordance with the terms of the credit agreement, then the credit shall be revoked and all road impact fees shall immediately become due and payable and collected in any manner authorized by law. The administration of said credits shall be the responsibility of the impact fee coordinator.

(g)

All construction cost estimates shall be based upon and all construction plans and specifications shall be in conformity with the road construction standards of the county or the Florida Department of Transportation as deemed appropriate by the county engineer. All plans and specifications shall be approved by the county engineer prior to commencement of construction. For construction projects within county-owned right-of-way, the requirements set forth in sections 18-16 through 18-21 of the Clay County Code, state law and county ordinance bidding requirements and construction bonding requirements shall be deemed to apply to such construction only to the extent required by law.

(h)

Any applicant who submits a proposed plan pursuant to this section and who desires electrical power clearance prior to the resolution of a pending credit shall pay the applicable road impact fee at the time of requesting electrical power clearance. Said payment shall be deemed paid "under protest" and shall not be construed as a waiver of any review rights. Any difference shall be refunded to the applicant or owner upon the execution of a credit agreement.

(i)

Nothing contained herein shall be construed to qualify the conveyance of land which is required as right-of-way for the construction of access improvements for a developer contribution credit.

(j)

Relationship between fair share program credits, impact fee obligations and the adequate public facilities donation credits in the Branan Field Master Plan area and the Lake Asbury Master Plan area.

(1)

Any proportionate fair share mitigation payment made pursuant to Section 163.3180(5), Florida Statutes, and County Ordinance 08-36 ("the Fair Share Program"), as the same may be amended from time to time, for a particular development's impact on the county road system shall be treated as a monetary contribution as provided in this section 16-108.

(2)

In the event any proportionate fair share mitigation (monetary payment, donation of right-of-way or construction of an authorized improvement) as provided for under the fair share program, is less than the applicable road impact fee due under this article, then the applicant shall pay the difference to the county to satisfy the road impact fee obligation.

(3)

In the event a road impact fee obligation due under this article is less than the applicable proportionate fair share mitigation (monetary payment, donation of right-of-way or construction of an authorized improvement) as provided for under the fair share program, then the applicant shall pay the difference to the county to satisfy the fair share program obligation.

(4)

Should the value of any land conveyance, monetary contribution or construction of an impact fee eligible road exceed the road impact fee obligation due from the applicable road impact construction, then the credit received by the applicant shall be limited to satisfying the road impact fee obligation generated by said road impact construction, and will not be otherwise transferable to another development.

(5)

The fair share program mitigation is intended to mitigate the transportation impacts of a proposed development at a specific location. As a result, should the value of any land conveyance, monetary contribution, or construction of an authorized improvement under the fair share program exceed the road impact fee obligation due from the applicable road impact construction, then the credit received by the applicant shall be limited to satisfying the road impact fee obligation generated by the road impact construction, and will not be otherwise transferable to another development.

(6)

In addition to satisfying a development's fair share program mitigation and road impact fee obligation, an applicant or owner shall also satisfy a development's adequate public facilities (APF) requirements provided for in the respective land development regulations (LDRs) governing the Branan Field Master Plan area (Clay County Ordinance 04-18, as amended) or the Lake Asbury Master Plan area (Clay County Ordinance 06-64, as amended).

(7)

Should the value of any APF donation of right-of-way or construction of an impact fee eligible road to satisfy a development's APF requirement exceed the APF requirement as provided for in the LDRs for the applicable master plan area, then the applicant or owner may use the excess APF credits created thereby, in one (1) of the following ways:

a.

toward the payment of the applicable development's fair share program mitigation or its road impact fee obligation as provided for in paragraphs (1) through (5) of this subsection. As applied under this subparagraph, the use of the excess APF credits shall be limited (and not transferable to another development in the master plan areas) to satisfying the fair share program or the road impact fee obligation, whichever is greater, generated by the applicable development; or

b.

banked for future use or transfer by the applicant to meet APF requirements for another development by the applicant or its transferee lying within the same master plan area as the initial development from which the excess credits arose.

(8)

An owner of 25,000 acres or more of real property as of the date of the credit agreement who is not a developer of improvements subject to a road impact fee but who constructs or has its designee construct an impact fee eligible road, will receive credit for the value of the donation of right-of-way and construction of the road which credit will be valued in accordance with subsection (d) herein. The credit may be transferred by the owner to subsequent transferees of the owner's real property which is owned of record as of the date of the credit agreement with the county. A transferee or its successors who submits the credit to the county for a development may use the credit in order to satisfy the development's fair share program mitigation, road impact fee obligations, and APF requirements, as provided for in paragraphs (1) through (6) above, which are attributable to the transferee's or its successors' development of its real property which was originally owned by the owner. The credit provided for under this paragraph (8) may not be used or transferred by a transferee or its successors as an excess APF credit under the provisions of paragraph (7) above.

(9)

To the extent that the provisions in this article conflict with any other ordinance of the county, the provisions of this article shall apply.

(k)

DRI mitigation credits.

(1)

For any DRI which has an approved development order as of the effective date of this article, which provides for impact fee credit towards the value of any contribution of land, money or improvements specifically identified as transportation mitigation in its development order, as required pursuant to Section 163.3180(5), Florida Statutes, the DRI shall receive credit for such transportation mitigation against road impact fees imposed by this article. The credit shall be available for transfer and use against the imposition of road impact fees assessed against any new development on the real property subject to the DRI development order. A DRI shall not receive credit for any contribution of land, money or improvements specifically identified as transportation mitigation in its development order, as required pursuant to Section 163.3180(5), Florida Statutes, if the credit is allocated under a credit agreement to development outside the boundaries of the real property subject to the DRI development order.

(2)

The amount of the credit shall be valued as of the date of the contribution of land, money, or improvements and shall be equal to:

a.

The amount of the monetary contribution;

b.

The value of a land donation according to the valuation standards set forth in section 16-108(d)(2) herein; and

c.

The actual cost of construction of a transportation improvement, as certified by a professional engineer, including the cost of design, permitting, engineering and construction inspection thereof.

(3)

For any DRI approved by the county pursuant to Section 380.06, Florida Statutes, after the effective date of this article, the county reserves the right to require the DRI's mitigation payment made pursuant to Section 163.3180(5), Florida Statutes, as the same may be amended from time to time, to be allocated all or in part to an impact fee eligible road. Any mitigation payments by the DRI Developer or its assigns towards any impact fee eligible road shall be applied as a credit against that development's road impact fee obligation pursuant to section 16-108. The credit shall be available for transfer and use against the imposition of road impact fees assessed against any new development on the real property subject to the DRI development order. A DRI shall not receive credit for any contribution of land, money or improvements specifically identified as transportation mitigation in its development order, as required pursuant to Section 163.3180(5), Florida Statutes, if the credit is allocated under a credit agreement to development outside the boundaries of the real property subject to the DRI development order.

a.

The county shall allow road improvements constituting part of a regional transportation plan adopted as part of a DRI development order pursuant to Section 380.06, Florida Statutes, to be credited against a development road impact fee obligation to the extent required by the provisions of Subsection 380.06(16), Florida Statutes. The county hereby establishes the following procedure in subparagraphs (b) and (d) herein for determining DRI credits against a DRI development road impact fee obligation.

b.

Upon the submittal of a DRI application containing a regional transportation mitigation proposal, the county, at the expense of the DRI developer, will revise the road impact fee transportation model to incorporate the proposed land uses and development schedule of the proposed DRI. An alternative transportation model, utilizing professionally accepted modeling methodologies may be submitted by the DRI developer and utilized if acceptable to the county. The results of the chosen model will be utilized by the county, pursuant to the requirements of Section 380.06(16), Florida Statutes, to determine to what extent the DRI developer's proposed roadway mitigation program will maintain the adopted level of service standards for the county road system and meet the transportation needs of the new development. Should the county ascertain that a road improvement proposed as regional transportation mitigation by the DRI Developer would serve to maintain the adopted level of service standards for the county road system taking into account the development contemplated within the DRI, then such findings shall be reflected in the adopted DRI development order and the county will consider an appropriate resolution and/or ordinance to include the proposed road improvement as an impact fee eligible road. In the event such road improvement becomes an impact fee eligible road, then the funds expended by the DRI developer for design, permitting and construction of the proposed road improvement, along with the value of the applicable right-of-way contributed, will be credited against that development's road impact fee obligation as provided in this section 16-108.

c.

Should the county determine that a road improvement proposed by a DRI developer as regional transportation mitigation does not maintain the adopted level of service standards for the county road system taking into account the development contemplated within the DRI, then the county may, but is not obligated to, direct the project's transportation mitigation payment made pursuant to Section 163.3180(5), Florida Statutes, towards the cost of one (1) or more of the improvements or additions to an impact fee eligible road. In this event, the amount of any DRI transportation mitigation so directed shall be credited against the project's road impact fee obligation as provided in this section 16-108. The capital improvements and additions to the impact fee eligible road to which said payments are directed shall, when constructed, provide a benefit to the development contemplated within the DRI.

d.

If a DRI application also includes a precedent companion comprehensive plan amendment application, the "same needs" analysis pursuant to subparagraphs a. and b. of subsection 16-108(k)(2), will be conducted at the time of consideration of the comprehensive plan amendment application. The analysis shall include consideration of the DRI developer's request and the project's location in an area of the county not previously considered for development on the county's future land use map. The "same needs" analysis will be incorporated in the county's overall determination regarding the expansion of the county's urbanizing area as requested by the DRI developer.

e.

As a result of the findings and determinations to be made by the county pursuant to subparagraphs a. and b. of subsection 16-108(k)(3) above, in making application for and in implementation of impact fee credits for DRIs, only the provisions of subsection (d), subsections (f), (g), (h), (i) and this subsection (k) of section 16-108 shall apply to the extent applicable.

(Ord. No. 2008-11, Art. III, § 3.08, 2-26-08; Ord. No. 2008-30, Art. III, § 3.08, 7-22-08; Ord. No. 2017-30, Art. III, § 3.08, 9-26-17; Ord. No. 2018-14, § 2(3.08), 3-27-18)