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Ordinance 90-071 ORDINANCE NO. 90- 71 AN ORDINANCE IMPLEMENTING THE LOCAL GOVERNMENT DEVELOPMENT AGREEMENT ACT SET % FORTH · IN SECTIONS 163.3220 - 163.3243, FLORIDA STATUTES; PROVIDING FOR SHORT TITLE ND APPLICABILITY; PROVIDING STAT}~ENT OF TENT; PROVIDING FOR THE USE OF DEVELOPMENT ~_ REEMENTS; PROVIDING FOR APPLICATIONS; DEVELOPMENT \~~ ~REEMENT; PROVIDING FOR TERMS; PROVIDING FOR ~.', ~ ANCELI~%TION AND RECORDATION OF AGREEMENTS; ~ .lAND POLICIES; PROVIDING FOR ENFORCEMENT; ~ '.,PROVIDING DEFINITIONS; PROVIDI~G FOR MODIFICATION OR REVOCATION; PROVIDING FOR COMPUTATION OF TIME; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, Sections 163.3220-163.3243, Florida Statutes (1987), set forth the Florida Local Government Development Agreement Act (the "Act"); and WHEREAS, the Act authorizes local governments to enter into development agreements with developers ("Development Agreement"), subject to the procedures and requirements of the Act; and WHEREAS, the Collier County Zoning Reevaluation Ordinance provides for the use of a Development Agreement in conjunction with a compatibility exception or a determination of vested rights; and WHEREAS, the Collier County Adequate Public Facilities Ordin- ance provides for the use of a Development Agreement in order to insure that adequate public facilities are available to service a proposed development concurrent with when the impacts of develop- merit occur on the initial public facilities; and WHEREAS, the Act provides that the Act shall be regarded as supplemental and additional to the powers conferred upon local governments by other laws and shall not be regarded as in derogation of any powers now existing; NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: ~: Statement of Intent. It is the intent of this Ordinance to set forth the proce- dures and requirements necessary for Collier County (the "County") 39- 450 to consider and enter into Development Agreements in order to implement the provisions of the Collier County Zoning Reevaluation Ordinance and Collier County Adequate Public Facilities Ordinance as provided therein. ~: Short Title; Applicability. A. This ordinance shall be known and may be cited as the "Collier County Development Agreement ordinance". B. This Ordinance shall be applicable to and effective within the total unincorporated area of Collier County, Florida. SECTION THREE: Use of Development Agreements. A Development Agreement may be considered and entered into, in accordance with the provisions of this Ordinance, in order to meet the requirements of and implement the following: A. The provisions of Section 12 of the Collier County Zoning Reevaluation Ordinance relating to the use and effect of Develop- ment Agreements in conjunction with a compatibility exception-or a determination of vested rights; and/or B. The provisions of Section 8.3.3 of the Collier County Adequate Public Facilities Ordinance relating to the use and effect of a Development Agreement in conjunction with a Certifi- cate of Public Facility Adequacy; and/or C. The provisions of any Collier County Affordable Housing Density Bonus Ordinance which sets forth the use and effect of development agreements in conjunction with an affordable housing density bonus. ~_~: Applications for Development Agreements. A. Applications for Development Agreements shall be sub- mitted to the County on forms provided by the County. The County may require an applicant to submit such information as the County considers necessary to process the application. Unless otherwise provided as part of the application form, each application shall be accompanied by the form of Development Agreement proposed by ' the applicant. The Board of County Commissioners shall establish, by resolution, the schedule of fees and charges imposed for filing and processing of each appl%cation. Said schedule of fees may from time to time be amended by resolution without further amendment to this Ordinance. B. Only a qualified applicant may file an application to enter into a Development Agreement. A qualified applicant is a person who has legal or equitable interest in the real property within the unincorporated area of Collier County which is the subject of the Development Agreement and submits proof of such qualification to the satisfaction of the County as part of the application process. If there is a question as to the sufficiency of the applicant's interest in the subject real property, the County may require such information and verification as deemed necessary by the County to establish the applicant's interest. C. If the County determines that an application is insuffi- cient, the County shall provide the applicant with a statement of any additional information required and the processing of such application shall remain pending until such additional information is provided and the application is found sufficient and complete by the County. ~: Requirements of a Development Agreement. A. A Development Agreement shall, at a minimum, include the following: 1. A legal description of the land subject to the Development Agreement and the names of all legal and equitable owners; 2. The duration of the Agreement. 3. The development uses permitted on the land, including population densities, and building inten- sities and height; 4. The land use designation of the property as set forth in the Future Land Use Element of the Collier County Growth Management Plan; 5. The current zoning of the property and the way in which such zoning has been determined to be consis- tent with the Growth Management Plan; .... , 6. A description of public facilities that will service the development, including who shall provide such facilities; 7. The date any new facilities, if needed, will be constructed; . 8. A schedule, where applicable, to assure public facilities are available concurrent with impacts of the development; 9. A description of any reservations or dedications of land for public purposes; 10. 'A description of all local development permits approved or needed to be approved for the develop- merit of the land; 11. A finding that the development permitted or proposed is consistent with the Collier County Growth Manage- ment Plan and Collier County land development regulations; 12. Such conditions, terms, restrictions, or other requirements determined to be necessary by the County for the public health, safety, or welfare of its citizens; 13. A statement indicating that the failure of the Agreement to address a particular permit, condition, term, or restriction shall not relieve the developer of the necessity of complying with the law governing said permitting requirements, condition, term, or restriction; 14. With respect to any public facilities to be designed and/or constructed by the developer, statement that the design and construction shall be in compliance with all applicable Federal, State, and County standards and requirements in order to insure the progress, quality and cost effectiveness of con- struction of the public facilities, to resolve in a timely manner design and construction related 39.,,, 453 problems which may occur, and to protect the safety and welfare of the public. The ~tandards and requirements shall include, but not be limited to, guarantees of performance and quality and project controls (including scheduling, quality controls, and quality assurance). B. A Development Agreement may provide that the entire development or any phase thereof be commenced or concluded within a specific period of time. C. With respect to developer commitments that would be eligible for impact fee credits, nothing herein shall affect the eligibility to qualify for credits under appropriate impact fee ordinances. ~LLQ]i~u~: Term. The term of a Development Agreement shall not exceed five (5) years or such time as the Act may provide. A Development Agree- ment may be extended by mutual consent of the Board of County Commissioners and the developer, subject to the notice and hearing requirement of Section Seven of this Ordinance. The term of any one extension shall not exceed five years. ~.~: Notices and Hearings. A. Notice of intent to consider a Development Agreement shall be provided: 1. By the applicant publishing an advertisement approx- imately seven (7) days before each public hearing on the application in a newspaper of general circula- tion and readership in Collier County. 2. By the applicant mailing notice by certified mail, return receipt requested to all owners of property, as reflected on the current year's tax roll, lying within 300 feet in every direction of the subject parcel and any additional affected property owners. Notice shall be mailed at least fifteen (15) calendar days prior to the first hearing on the application. ..~f 39~'~454 B. The form of the notices of intent to consider a Develop- ment Agreement ehall specify= 1. The day, date, time and place of each hearing on the proposed Development Agreement and the body con- ducting the hearing; 2. The location of the land subject to the Development Agreement; 3 The development uses proposed on the property, including the proposed population densities and proposed building intensities and height; and 4. Instructions in a form approved by the County for obtaining further information regarding the request, including the fact that a copy of the proposed Development Agreement can be obtained at the Depart- ment of Growth Planning or Department of Growth Management and the Office of the Clerk to the Board. C. The applicant shall provide proof of notification by submittal to the County of the following: 1. An affidavit of publication from the newspaper which shall be submitted at least three workdays prior to each public hearing; and 2. A list of all owners of property lying within three hundred feet in every direction of the subject parcel and any additional affected property owners together with the return receipts for the mailed notice which shall be submitted to the County at least three workdays prior to the first hearing on the application. D. The Collier County Planning Commission shall conduct one public hearing and Board of County Commissioners shall conduct one public hearing on each application. The public hearings may take place during the regularly scheduled Collier County Planning Commission and Board of County Commissioners meetings. The day, time, and place of the second public hearing (held by the Board of County Commissioners) shall ~ a~k(~nced at the first public hearing (held by the Collier County Planning Commission). At the conclusion of the second public hearing, the Board of County Commissioners shall approve, approve with modifications, or deny the proposed Development Agreement. ~: Amendment and Cancellation of Agreement by Mutual Consent. A Development Agreement may be amended or cancelled by mutual consent of the parties to the Agreement or by their successors in interest. Prior to amending a Development Agreement, the Collier County Planning Commission and the Board of County Commissioners shall hold public hearings on the proposed amendment in accordance with the notice and hearing provisions of Section Seven of this Ordinance. ~: Recordation. Within fourteen (14) days after the County enters into the Development Agreement, the Clerk to the Board of County Commissioners shall have the Agreement recorded in the Public Records of Collier County. A copy of the recorded Development Agreement shall be submitted to the State Department of Community Affairs within fourteen (14) days after the Agreement is recorded. If the Agreement is amended, cancelled, modified, extended, or revoked, the Clerk shall have notice of such action recorded in the public records and such recorded notice shall be submitted to the State Department of Community Affairs. ~u~: Periodic Review. A. The County through its Department of Growth Planning and/or Department of Growth Management shall review the develop- ment subject to the Development Agreement every twelve (12) months, commencing twelve (12) months after the effective date of the Agreement. B. The County shall begin the review process by giving notice to the.developer that the County intends to undertake a , periodic review of the development. C. Upon receipt of such notice of review, the developer shall submit to the County a monitoring and compliance report ,oo 39 , 456 - ? - which shall address each and every requirement or commitment of the Development Agreement including its status and the degree to which compliance has or has not been reached. In addition to the compliance report by the developer, the County shall make such other review as it deems appropriate or necessary. D. If the County finds and determines that the developer has complied in good faith with the terms and conditions of the Agree- ment during the period under review, the review for that period shall be considered concluded. E. If the County makes a preliminary finding that there has been a failure to comply with the terms of the Development Agree- merit, the Board of County Commissioners shall conduct a public hearing at which the developer shall be given the opportunity to demonstrate good faith compliance with the terms of the Agreement. If the Board of County Commissioners finds and determines on the basis of substantial competent evidence that the developer has not complied with the terms and conditions of the Agreement during the period under review, the Board of County Commissioners may modify or revoke the Agreement. SECTION ELEVEN: Severability. If any section, phrase, sentence or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions thereof. SECTION TWELVE: Governing Laws and Policies. A. Collier County's laws and policies governing the develop- ment of the land at the time of the execution of the Development Agreement shall govern the development of the land for the dura- tion of the Development Agreement. B. Collier County may apply subsequently adopted laws and policies to a development that is subject to a Development Agree- ment only if the Board of County Commissioners has held a public hearing and determined: 1. They are not in conflict with the laws and policies governing the Development Agreement and do not prevent development of the land uses, intensities, or densities in the Development Agreement; 2. They are essential to the public health, safety, or welfare, and expressly state that they shall apply to a development that is subject to a Development Agreement; 3. They are specifically anticipated and provided for in the Development Agreement; 4. The County demonstrates that substantial changes have occurred in pertinent conditions existing at the time of approval of the Development Agreement; or 5. The Development Agreement is based on substantially inaccurate information supplied by the developer. C. This section does not abrogate any rights that may vest pursuant to common law. SECTION T~IRTEEN: Enforcement. Any party, any aggrieved or adversely affected person as defined in Section 163.3215(2), Florida Statutes, or the state land planning agency may file an action for injunctive relief in the circuit court of Collier County to enforce the terms of a Development Agreement or to challenge compliance of the Develop- ment Agreement with the provisions of Sections 163.3220 - 163.3243, Florida Statutes. SECTION FOURTEEN: Definitions. The definitions set forth in Section 163.3221 of the Act (Section 163.3221, Florida Statutes) are incorporated by reference for purposes of this Ordinance as if fully set forth herein. SECTION FIFTEEN: Modification or Revocation of a Development ~reement to Comply with Subsequently Enacted 0 .cate and Federal Law. If state or federal laws are enacted after the execution of a Development Agreement which are applicable to and preclude the parties' compliance with the~e~m~ a Development Agreement, -- 9 such Agreement shall be modified or revoked as is necessary to comply with the relevant state or federal laws. SECTION SIXTEEN: Computation of Time. If any filing deadline set fort~herein falls on a Saturday, Sunday, o= legal holiday, the deadline shall ~xtend until the end of the next day that is not a Saturday, Sunday, or legal 'holiday. SECTION SEVENTEEN: Effective Date. This Ordinance shall become effective upon receipt of notice from the Secretary of State that this Ordinance has been filed with the Secretary of State. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this 18Ch day of ~, 1990. ATTEST~.,~ BOARD OF COUNTY COMMISSIONERS .~AMES' ~. /~LES, Clerk COLLIER COUNTY, FLORIDA . ~oy~c~..%a~" to form and County Attorney - 10 - STATE OF FLORIDA COUNTY OF COLLIER I, JAMES C. GILES, Clerk of Courts in and ,'or the Twentieth Judicial Circuit, Collier County, Florida, do hereby certify that the foregoing ts a true copy of: -- Ordinance No. 90-71 which was adopted by the Board of County Commissioners on the 'lSth day of September, 1990, during Regular Session. WITNESS my hand and the official seal of the Board of County Commissioners of Collier County, Florida, this 20th day of September, 1990 JAMES C. GILES ..' Clerk of Courts and Clerk'.,:'"' ~.,, Ex-officio to Board of "' '.' County  /s/Maureen Xenyon ~', . Deputy Clerk .~ ' ..'