Developers seeking to construct and/or dedicate system improvements or land, and to receive credit for such against exactions otherwise due, shall be subject to the provisions of this section.
(a) Credits Against Exactions. Shall be determined as follows:
(1) A developer shall construct and dedicate, as necessary, all project improvements required for the development. No credit shall be given for project improvements. A developer shall be entitled to construct all system improvements reflected in the Expansion Area Master Plan for the property proposed for development activity. Stormwater management facilities which are constructed in conformance with the Expansion Area Stormwater Facilities Master Plan may be constructed by the developer, and the cost of such improvement shall be credited as provided herein against exactions which would be otherwise owed. Credits shall be given for the actual cost of the construction of system improvements or contribution or dedication of land as outlined in Subsection (b) of this section by a developer at any time subsequent to the effective date of this Article and required or accepted by the Lexington-Fayette Urban County Government from the developer or predecessor in title for system improvements.
(2) Developers wishing to claim credits for system improvements shall be subject to the procedures outlined in Subsection (b) of this section, below. A developer shall be entitled to receive exaction credits for the construction of a system developer's improvement only upon executing a "System Improvement Design and Construction Memorandum" or a "Development Agreement" as provided below. The system improvement design and construction memorandum shall be used only for projects not involving "special circumstances," as defined herein. Development agreements shall be required for all other system improvement projects. "Special circumstances," as used herein, shall mean any case where the system improvement involves a material deviation from the Expansion Area Master Plan; deviation from the provisions of Subsection (b) of this section, its subsections, or other relevant sections of this ordinance for the calculation of exactions owed; the type or extent of system improvements; the design of the system improvements; the payment of exactions; the application of exaction credits; refunds from an Exaction Fund; the transfer of exaction credits; or the apportionment of costs or construction responsibilities between developers, or between a developer and the Urban County Government.
(b) System Improvement Design and Construction Memorandum. Prior to commencement of the design of system improvements, the developer and the Urban County Government, as represented by the Chief Administrative Officer or authorized agent, shall jointly execute a system improvement design and construction memorandum. A developer claiming credits for system improvements shall submit to the Chief Administrative Officer a detailed project description, including engineering and construction cost estimates prepared by a licensed professional engineer. In addition, the developer shall submit property appraisals prepared by professional appraisers to determine the cost of land acquisition or right-of-way dedication for system improvements. All construction must be publicly bid and must be carried out in accordance with applicable development and design standards. The Chief Administrative Officer shall refer all land and construction cost estimates to the Exaction Credit Advisory Committee, who shall review all materials and make recommendation to the Chief Administrative Officer as to their appropriateness. The Exaction Credit Advisory Committee shall consist of the following individuals or their designees: the Commissioner of Finance, the Commissioner of Public Works, the Commissioner of Law, the Director of the Division of Engineering, the Director of the Division of Planning, and the Urban County Council Administrator. The Chief Administrative Officer has the right to confirm the amount proposed to be credited by having engineering and construction cost estimates and/or property appraisals prepared for those system improvements, and by having verification of developer expenses claimed. The system improvement design and construction memorandum shall include provisions which shall establish:
(1) The specific nature and extent of the system improvements to be constructed and eligible for credit.
(2) That the developer shall receive credit for construction of full or partial system improvements, or for contribution or dedication of land as outlined in this Article. This credit shall take the form of either direct application against the required exaction or as exaction credit certificates in an amount which cannot exceed the eligible credits. Credits shall be permitted to be used as authorized by Subsections (c)(3) and (4) of this section, hereinbelow.
(3) If the amount of the credit created by such construction, contribution or dedication is in excess of the exaction which would have been otherwise due and owing for that improvement, the developer shall be reimbursed for such excess contribution from the Exaction Fund as provided herein.
(4) The public bid process to be used for selection of the contractor and estimated cost for the system improvements.
(5) The developer's management/overhead fee cost to be included in the exaction-eligible cost of the construction equal to five (5) percent of total cost of the system improvements.
(6) The procedures to be used to submit, evaluate and approve (if warranted) change orders to any contracted system improvement.
(7) A statement establishing that the actual cost of the system improvement construction and/or dedication as calculated at the time of recording of the plat shall be the basis for any credits. For any system improvements not in place at the time of recording, the cost of the completion shall be covered by surety as provided generally for subdivision improvements in the Land Subdivision Regulations. For these items, the bid price for the completion of such improvements shall be used to calculate the cost of the system improvement. The memorandum shall also provide for verification through documentation required of the developer by the LFUCG, including, but not limited to, periodic submittal of invoices, proof of payment, audits or other means determined necessary by the LFUCG to ensure validity of claimed credit amounts. All such materials shall be referred to the Exaction Credit Advisory Committee, who shall make recommendations to the Chief Administrative Officer. The Chief Administrative Officer shall approve the final amount of such actual costs prior to plat recording.
(8) A developer proposing credits for land dedication shall present property appraisals prepared by qualified professionals and a certified copy of the most recent property valuation administration assessment of the property to the Chief Administrative Officer to be used in determining the amount of credit. The Chief Administrative Officer shall have a review appraisal prepared by a professional MAI to confirm the accuracy of the appraisals submitted by the developer, and shall refer all such materials to the Exaction Credit Advisory Committee, who shall make a recommendation to the Chief Administrative Officer.
(9) A statement affirming the understanding that no credits shall be given for project improvements.
(10) That the total exactions required under this ordinance and the amount of exactions due after the application of any credits authorized under Subsection (b)(2) of this section or provisions of a development agreement shall be shown on the final plat of the subdivision. The exaction rate schedule to be used shall be the one (1) in effect as of the date the Division of Engineering transmits its certified original of the final plat to the Division of Planning for final certification, provided the plat is recorded within thirty (30) days of that date; otherwise, the net exaction shall be calculated upon any amended rate schedule adopted by the Urban County Council in the intervening time.
(c) Claiming and Application of Credits. The application of credits shall be as follows:
(1) The dollar amount of any credits shall be applied either as a credit against exactions due for the development providing the system improvement, or for the issuance of exaction credit certificates as outlined under Subsection (b)(2) of this section, above.
(2) Credits must be claimed by no later than the time of the certification of the final record plan. Any credits not so claimed shall be deemed waived.
(3) The credits for roads, parks, open space or stormwater management facilities may be applied against all exactions for roads, parks, stormwater management facilities and open space owed by the developer with respect to the development. To the extent that the total credits for roads, parks, open space or stormwater management facilities exceed exactions due for roads, parks stormwater management facilities and open space with respect to the developer's property, the development agreement may provide for the developer to receive a refund from the exaction fund, as outlined in Subsection (c)(8) of this section, below.
Credits for roads, parks, stormwater management facilities and open space may be applied as follows:
a. Credits earned in either Expansion Area 2-A or 2-B may be applied only against stormwater facilities, road, park and open space exactions in either Expansion Area 2-A or 2-B.
b. The stormwater credit is only applicable within the specific exaction district as noted in Table A.
c. Credits earned in Expansion Area 2-C may be applied only in Expansion Area 2-C.
d. Credits earned in Expansion Area 3 may be applied only in Expansion Area 3.
Table A. Application of Credits for System Improvements (Other than Sanitary Sewer Capacity and Transmission)
Credits for System Improvements Constructed in Expansion Area: | May be Applied Against Exactions Due in the Following Expansion Districts: |
Expansion Area 1 | N/A |
Expansion Area 2-A | Roads 2-A and 2-B Open Space Parks 2-A and 2-B Stormwater Management 2-A |
Expansion Area 2-B | Roads 2-A and 2-B Open Space Parks 2-A and 2-B Stormwater Management 2-B |
Expansion Area 2-C | Roads 2-C Open Space Parks 2-C Stormwater Management 2-C |
Expansion Area 3 | Roads 3 |
Table B. Application of Exaction Credits for Sanitary Sewer Transmission and Treatment Capacity
Credits for Sanitary Sewer Transmission and Capacity System Improvements Constructed in Expansion Area: | May be Applied Against Exactions Due in the Sanitary Sewer Treatment Capacity District and in the Following Transmission Capacity Districts: |
Expansion Area 1 | Sanitary Sewer Transmission Capacity in Expansion Area 1 |
Expansion Area 2-A | Sanitary Sewer Transmission Capacity in Expansion Area 2-A |
Expansion Area 2-B | Sanitary Sewer Transmission Capacity in Expansion Area 2-B |
Expansion Area 2-C | Sanitary Sewer Transmission Capacity in Expansion Area 2-C |
Expansion Area 3 | Sanitary Sewer Transmission Capacity in Expansion Area 3 |
(4) The credits for sanitary sewer transmission capacity may only be applied against exactions due for sanitary sewer transmission capacity in the Expansion Area from which credit originates, or against exactions due for sanitary sewer treatment capacity in any Expansion Area.
(5) If the area proposed for development includes lands designated for parks in the Expansion Area Master Plan, the developer shall dedicate such lands to the Lexington-Fayette Urban County Government with credit given for the value of the land against the required exaction. If an area proposed for development includes land which is located outside the horizontal limits of the greenway and which is designated in the Expansion Area Stormwater Facilities Master Plan for stormwater management facilities, the developer shall dedicate such land. The developer shall obtain a credit for the value of such lands against any open space, park or road exactions which may be due. The value of such credit shall be computed as set forth in Subsections (b)(7) of this section and shall be applied in the same manner as credits for constructed system improvements.
(6) In cases where the land proposed for development is entirely or substantially in an area designated in the Expansion Area Master Plan for park land, and the extent of the designation is such as to render the development of the land infeasible, the developer may enter into an agreement with the Lexington-Fayette Urban County Government establishing interim uses of the property in conformance with the Conservation District (CD) Zone, timing of acquisition, schedule of payments, and other related uses.
(7) In the event a building permit is abandoned, credits shall be given for the full amount of any exactions paid against future exactions for the same parcel of land paid upon issuance of such building permit. A building permit shall be deemed abandoned if no construction has been commenced prior to the expiration of the building permit.
(8) If the application of all credits against exactions exceeds the amount of the exactions due, the developer shall be repaid for the actual cost of system improvements from the Exaction Fund as monies become available with the order of payment to be the order of the date of award of the credit. Alternatively, the developer may be reimbursed in Exaction Credit certificates, which shall be used as specified within this Article. Developers desiring any other arrangement shall be required to enter into a development agreement with the LFUCG as outlined below.
(9) Unless otherwise provided in this Article, credits shall only be applied against exactions due once. Exaction credits may only be reallocated subsequent to the recordation of an amended plat or development plan that results in a lot or development reconfiguration.
(d) Development Agreements. A feepayor may propose, and the Lexington-Fayette Urban County Government may approve, a development agreement which provides for the deferred or phased payment of exactions which were not eligible for application of credits, as provided under Subsections (c) of this section, provides for credits, provides for the dedication of land in lieu of cash payment, provides for the construction of system improvements in lieu of cash payment, provides for the repayment of credits from the exaction fund, provides for payment of interest, provides for the issuance of exaction credit certificates, or provides for any combination thereof. Any developer contemplating an activity which involves a development agreement shall submit a proposed agreement to the Chief Administrative Officer, who shall solicit comments from the Exaction Credit Advisory Committee for the determination of compliance with the provisions of this Article and the Expansion Area Master Plan. The Chief Administrative Officer shall review the proposed development agreement and transmit the proposed development agreement, together with a recommendation and the comments of the Exaction Credit Advisory Committee, to the Lexington-Fayette Urban County Council for appropriate action. The Lexington-Fayette Urban County Council shall not approve a development agreement unless it determines that the development agreement satisfies the intent and purpose of this Article, is in compliance with the Expansion Area Master Plan, is in the best interest of the Lexington-Fayette Urban County Government and is consistent with the public health, safety and welfare of the citizens of Lexington-Fayette County. The Lexington-Fayette Urban County Council has sixty (60) days from receipt of the fully completed draft development agreement to take final action on the development agreement.
(e) Exaction Credit Certificates. Exaction Credit Certificates are transferable from one (1) developer to another, from a developer to a property owner, and from one (1) project to another, provided that such credits only be used in conformance with Subsections (c)(3), (4), and (5) of this section, or as authorized under a development agreement pursuant to Subsection (d) of this section.
(Code 1983, § 23C-7; Ord. No. 175-2002 , § 1, 7-16-2002; Ord. No. 207-2002 , § 1, 8-22-2002; Ord. No. 166-2017 , § 11(23C-7), 11-16-2017; Ord. No. 73-2020, § 1, 8-27-2020)