Editor's note— Ord. 15-00, § 1, adopted February 28, 2000, deleted § 2-1.1. in its entirety. Formerly, that section pertained to powers and duties of the Assistant City Manager.

There shall be the following 11 administrative departments within the city government:

(a)

Fire;

(b)

Police;

(c)

City Clerk;

(d)

Public Works;

(e)

Parks and Recreation;

(f)

Financial Services;

(g)

Development Services;

(h)

Information Technology Services;

(i)

Utilities;

(j)

Human Resources; and

(k)

Emergency Management and Resilience.

(Ord. 91-76, 11-15-1976; Ord. 35-78, 6-5-1978; Ord. 68-81, 9-14-1981; Ord. 29-85, 4-15-1985; Ord. 31-85, 5-6-1985; Ord. 116-85, 11-18-1985; Ord. 98-90, 10-29-1990; Ord. 69-92, 11-9-1992; Ord. 6-94, 2-14-1994; Ord. 13-95, 3-13-1995; Ord. 75-95, 11-20-1995; Ord. 52-97, 8-15-1997; Ord. 67-03, 8-4-2003; Ord. 10-11, 3-28-2011; Ord. 41-11, 8-8-2011; Ord. 26-12, 11-5-2012; Ord. 44-15, 9-21-2015; Ord. 76-21, § 1, 10-20-2021; Ord. 45-24, § 1, 8-7-2024)

Employees in the following City classifications are authorized to accept offers in compromise of, to reject offers in compromise of, or to settle administratively, claims against the City of Cape Coral, after taking into consideration the following factors: (1) the Risk Analysis Report for the claim, if applicable, prepared by the Risk Manager or his or her designee; (2) whether settlement is in the best interests of the City taking into consideration factors such as the cost and risk of proceeding further; and (3) the benefit to the City of an expeditious settlement of the claim. No claim in excess of Fifteen Thousand Dollars ($15,000.00) shall be compromised or settled by City employees pursuant to this Section unless a written recommendation of approval of such compromise or settlement is first obtained from an attorney representing the City.

A.

The Claims Examiner, Risk Manager, Financial Services Director and City Manager have the authority to accept and to reject offers in compromise of, or settle administratively, claims against the City of Cape Coral up to the following amounts, inclusive of costs:

1.

Property and Liability Claims:

2.

Workers' Compensation Claims:

3.

All Other Claims:

B.

The City Manager with prior consent or approval from any applicable insurance company providing insurance benefits to the City has the authority to settle administratively, critical situation cyber extortion demands that require swift action to prevent imminent loss of essential City operations up to and including $100,000.

(Ord. 8-22, § 2, 2-2-2022)

Editor's note— Ord. 43-10, § 1, adopted April 26-2010, deleted § 2-3. in its entirety.

Editor's note— Ord. 43-10, § 1, adopted April 26-2010, deleted § 2-4. in its entirety.

The City Council shall establish by resolution a travel policy, which shall be incorporated into the City's Administrative Regulations in its entirety.

(Ord. 2-24, § 1, 2-7-2024)

As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated.

BOARD. The Board of Trustees of the General Union Health Benefits Trust.

BOARD MEMBER. A Trustee on the Board of the General Union Health Benefits Trust.

CITY. The City of Cape Coral, Florida.

PARTICIPANT. A benefit-eligible City employee, domestic partner, eligible dependent or other person to be determined eligible to participate in the City's health plan (the "Plan") or other self-insured City program for the management and administration of a system for direct payment of benefits, losses or claims or any combination of insurance and direct payment, and who is covered by the CBA between the City and the International Union of Painters and Allied Trades AFL/CIO-District Council #78-Local Union 2301 (the "General Union") (or was covered prior to retirement or termination of employment) or who is eligible on account of relationship to a General Union participant.

PLAN. The City's health insurance plan that provides health benefits to eligible employees and retirees.

PLAN YEAR. A 12-month period of benefits coverage under the City's Plan. This 12-month period may not be the same as the calendar year.

TRUST. The City of Cape Coral General Union Health Benefits Trust.

TRUST AGREEMENT. A separate document adopted by the City setting forth the specific terms for the administration of the City of Cape Coral General Union Health Benefits Trust.

(Ord. 6-19, § 1, 6-3-2019)

The City hereby creates the General Union Health Benefits Trust (the "Trust") to hold assets to be used for the exclusive purpose of providing benefits under the Plan, including health benefits under the Plan and insurance coverage as set forth herein. The City shall contribute $100.00 to the Trust upon adoption of the Trust Agreement. Thereafter, the City shall make contributions only as required under the terms of the CBA; provided that in its sole and absolute discretion, the City may: (a) make such additional contributions to the Trust, if any, as it determines; and (b) permit some or all classes of Participants (such as retirees or COBRA participants) to make contributions required to maintain Plan participation in the Trust.

(Ord. 6-19, § 1, 6-3-2019)

(a)

The trusteeship of the Trust is vested in a Board of Trustees composed of five (5) members. Two members shall be appointed by the City Manager and must be current employees of the City. Two members shall be appointed by the president of the General Union, who must be current employees of the City, and current members of the General Union. The fifth member shall be chosen by a majority of the other four members. The fifth member must be a CPA or licensed in the financial industry, and must not be an employee or retiree of the City of Cape Coral.

(b)

The trustees shall, by majority vote, elect one trustee to serve as Chairperson. The trustees shall not receive any compensation but may receive reimbursement for reasonable expenses incurred in their function as Board Member, if such expenses are directed or approved by the City or its designee.

(c)

Each trustee shall be entitled to one vote on the Board. Three trustees shall constitute a quorum for any meeting of the Board, and three affirmative votes shall be necessary for any decision by the trustees. A trustee shall have the right to abstain from voting as a result of a conflict of interest and shall comply with the provisions of F. S. § 112.3143.

(d)

The Board shall not be required to give any bond or to qualify before, be appointed by, or account to any court of law in the exercise of its powers under this Article.

(e)

The Board shall have no discretion or authority with respect to the investment of the assets of the Trust Fund.

(f)

As soon as administratively feasible after the close of each plan year, the Board shall file with the City a written account listing all assets held in the Trust Fund.

(Ord. 6-19, § 1, 6-3-2019)

(a)

The City, or its designee, shall invest the assets of the Trust in accordance with the City of Cape Coral Investment Policy established in accordance with Section 218.415 Florida Statutes.

(b)

The City, or its designee, will maintain all accounts, books and records in relation to the Trust.

(c)

The City, or its designee, shall make payments from the Trust at such time to such Participants and in such amounts as shall be authorized by the provisions of the Plan; provided, that no payment shall be made that would cause any of the assets of the Trust to be used for or diverted to purposes other than the exclusive purpose of funding benefits for Participants under the terms of the Plan or insurance policies.

(d)

The City, or its designee, may make payments from the Trust with respect to Trust expenses as provided in this Article.

(Ord. 6-19, § 1, 6-3-2019)

The purpose of this article is to establish uniform guidelines for naming and renaming of public assets owned and operated by the City of Cape Coral. Through this guidance, the City of Cape Coral has established a policy that will reserve the naming or renaming of parks, recreational facilities, and other city assets for circumstances that will best serve the interests of the City, as well as ensure a worthy and enduring legacy for Cape Coral's parks and recreation system and other public facilities.

(Ord. 68-21, § 1, 11-17-2021; Ord. 52-23, § 8, adopted 6-7-2023)

As used in this article, the following words or terms shall have the meanings indicated.

CITY ASSETS. All public facilities including, but not limited to, parks and recreational facilities owned, operated, and controlled by the City of Cape Coral.

DEPARTMENT DIRECTOR. That individual who is the Department Director responsible for the city asset that is proposed for naming or renaming.

DONATION OR GIFT. A contribution in the form of cash, an endowment, personal property, real property, financial securities, equipment, in-kind goods or services. For purposes of this article, the terms "donation" and "gift" shall be synonymous.

DONOR. A person or other legal entity that proposes or provides a donation to the City.

NAMING. The selection and approval by the City Council for the initial naming of a City Asset other than streets within the public right-of-way.

NOT-FOR-PROFIT ORGANIZATION. A corporation or association that conducts business for the benefit of the general public without shareholders and without a profit motive.

PARKS. All traditionally designed parks, gardens, natural open spaces, trails, and specialized parks under the stewardship of the City of Cape Coral.

RECREATIONAL FACILITIES. Major improvements or structures such as public buildings, community centers, aquatic facilities, pavilions, tennis courts, sports fields, and fountains located within lands under the stewardship of the City of Cape Coral.

RENAMING. The selection and approval by the City Council of a new name for an existing City Asset other than streets within the public right-of-way, including parks and recreation facilities.

(Ord. 68-21, § 1, 11-17-2021; Ord. 52-23, § 8, adopted 6-7-2023)

The policy of the City is to reserve naming or renaming of City Assets and placement of Commemorative Works for circumstances that will best serve the City's interests and ensure a worthy and enduring legacy for the City.

A.

Naming Goals. The following will be considered when naming or renaming a City Asset:

1.

Whether the proposed name engenders a strong positive image.

2.

Whether the proposed name is appropriate having regard to the site's location.

3.

Whether the proposed name has historical, cultural, or social significance for future generations.

4.

Whether the proposed name commemorates places, people, or events that are of continued importance to the City, region, state, or nation.

5.

Whether the proposed name has symbolic value that transcends ordinary meaning or use as well as enhances the character and identity of the site.

6.

Whether the proposed name has broad public support.

B.

Naming Criteria.

1.

The following should be considered in determining names for City Assets:

a.

Context and geographic location. Sites should be given names that directly reflect or are contextually related to the site with common-use names that have developed over time being favored; furthermore, a name should assist the public in identifying its location. The City shall first consider the name of the community area, the names of nearby geographic features, and the names of adjacent schools and streets when it is considering a naming/renaming request.

b.

Natural or geological features. Names may be based on distinctive, predominant, and defining natural features.

c.

Historic Events and Places. The history of a major event, place or person may play an important role in the naming or renaming of a site as communities often wish to preserve and honor the history of a neighborhood, the City, local landmarks, or persons of social, cultural or historical significance to the local area. The relationship of the event, person, or place to the City Asset must be demonstrated through research and documentation.

d.

Outstanding individuals. Naming a City Asset for an outstanding individual is allowed posthumously (at least six months since date of passing), and where that person's significance and good reputation have been accepted in the City's, state's, and/or nation's history.

When considering the naming of a City Asset after a person, consideration will be given when:

i.

The person was exceptionally dedicated or demonstrated excellence in service in ways that made a significant contribution to the land, community, the City of Cape Coral, State of Florida, or the United States; or

ii.

The person volunteered and gave extraordinary help or care to individuals, families, or groups, or support to the community; or

iii.

The person risked his or her life to save or protect others; or

iv.

The person demonstrated commitment to equity, inclusion, and justice.

e.

Donations. The City has benefited from the generosity of some of its residents, businesses, foundations, and others. On occasion, the significance of such donations may warrant consideration of requests from either the donor or another party to acknowledge such a gift by naming or renaming of a City Asset.

2.

Applications for naming/renaming City Assets will not be accepted in the case of any of the following conditions:

a.

Proposed name duplicates the name or feature of another City Asset.

b.

Proposed name endorses or advocates a specific religion or specific religious entity.

c.

Proposed name has obscene connotations.

d.

Proposed name demeans or maliciously portrays any ethnic or racial group.

e.

Proposed name is an individual that has been found guilty of a felony crime.

f.

Proposed name endorses or advocates a specific political organization.

3.

Exceptions.

a.

Notwithstanding the foregoing, the City may name a City Asset after a living person who meets the following criteria:

i.

Nominated pursuant to the requirements of this article;

ii.

Made significant contributions toward improving the quality of life in the City; and

iii.

Affirmed by a super majority vote of all members of City Council entitled to vote.

b.

Notwithstanding any other provision in this article, the City Council may, in its sole discretion, name a park or recreation facility after a person who donates parkland.

C.

Renaming of a City Asset is Discouraged. Names that have become widely accepted by the community will not be changed unless there are compelling reasons and strong public sentiment from the broader community for doing so. Historical or commonly used place names will be preserved wherever possible.

D.

Official Name Use Requirements. All departments, agencies, and appointed boards and committees are hereby required to use the official name of all named or renamed City Assets in all communications including, but not limited to, maps, plans, documents, signage, and in all media formats.

E.

Time Limits.

1.

A City Asset paid for in part or in full by a Donor and named after or on behalf of a Donor may have time limits placed on the name at implementation. Requirements for upkeep may also be contingent for naming purposes.

2.

In the event a City Asset is eliminated for any reason, the City may also eliminate the name of said item with no further requirement to rename a like or similar item to replace the eliminated asset.

F.

Commemorative Works. Commemorative works such as plaques, markers, and other appropriate memorials designed to blend with and complement the existing environment may be placed at a park or recreational facility when deemed appropriate.

1.

A Commemorative Work request may be initiated by the public for City Council consideration with the requestor bearing all costs for the design, acquisition, construction, and installation of the Commemorative Work. A payment equivalent to the anticipated maintenance cost of the Commemorative Work located at the City Asset for the first year after dedication shall be required after approval and provided prior to dedication. City Council may elect to bear the cost of the Commemorative Work in lieu of the applicant with approval by a supermajority vote.

2.

A Commemorative Work request may be initiated by the City Council, with the City to bear all costs of the Commemorative Work.

G.

Designation Method. The City Attorney, at the direction of the City Council, shall prepare an ordinance for Council consideration in officially naming or renaming a City Asset.

(Ord. 68-21, § 1, 11-17-2021; Ord. 52-23, § 8, adopted 6-7-2023)

A.

Applications recommending the naming or renaming of a City Asset will be accepted and considered by the City Manager or designee only when the application is received from either:

1.

A community-based organization in existence for at least three years. Community organizations include, but are not limited to, advisory councils, community foundations, chambers of commerce, charitable service clubs, and youth associations; or

2.

An individual only when said application is accompanied by at least one of the following items:

a.

A supporting petition with at least 200 signatures. Petitions must state the intent and include printed names, signatures, addresses, zip codes and telephone numbers of each signer as proof of residency. Only Cape Coral residents over the age of 18 years of age shall be qualified to be counted as a legitimate signature on such petitions.

b.

Letters of support, articles, and other evidence demonstrating broad-based community support for the application, including at least one letter of recommendation from representatives in the community, such as a community organization (HOA/Civic Association.

c.

Documentation of that individual's significance and good reputation in the history of the City, State, or Nation.

Written documentation of approval by next of kin to be honored (if available/possible) is required as part of the application.

The submission must include the justification for the proposed name, including how the name meets the criteria in this policy.

B.

Parks, Recreational Facility, or Other Recreational Asset.

1.

If the application is for the naming or renaming of a park, recreational facility, or other recreational asset, then the application shall be presented to the Director of Parks and Recreation.

2.

If there are multiple applications for the naming or renaming of a park, recreational facility, or other recreational asset, after review by the Parks and Recreation Director, the top three recommended names will be chosen. The City will accept public comments and recommendations on the recommended names for a period of no less than 30 days ("Public Notice Period"). Public notice of the recommended names will be placed at a minimum in a local newspaper once during the 30-day period, along with a posting notice at the site of the subject park or recreational facility, or utilizing any other form of social/electronic media to inform the citizens that the City will be considering the naming or renaming of a park, recreation facility, or other recreational asset. Citizen comments and recommendations must be submitted in writing to the Department Director and be postmarked within the 30-day Public Notice Period.

3.

If there is a single application for the naming or renaming of a park, recreational facility, or other recreational asset, after review of the proposed name by the Parks and Recreation Director, the City will accept public comments and recommendations on the proposed name for a period of no less than 30 days ("Public Notice Period"). Public notice of the proposed name will be placed at a minimum in a local newspaper once during the 30-day period, along with a posting notice at the site of the subject park or recreational facility, or utilizing any other form of social/electronic media to inform the citizens that the City will be considering the naming or renaming of a park, recreation facility, or other recreational asset. Citizen comments and recommendations must be submitted in writing to the Department Director and be postmarked within the 30-day Public Notice Period.

4.

After the 30-day Public Notice Period, the Parks and Recreation Director will submit the proposed name(s) to the City Manager, who will forward the recommendations and any citizen comments to the City Council for consideration and final selection at an upcoming scheduled meeting.

(Ord. 52-23, § 8, adopted 6-7-2023)

C.

Other than Park, Recreational Facility, or Other Recreational Asset.

1.

When a person or historical event is recommended as the name for a City Asset other than a park, recreational facility, or other recreational asset, the City Manager or designee shall submit the following information to City Council for its consideration regarding the proposed person or historical event:

a.

The full name of said person, persons, group, or event;

b.

The residence of said person or persons, if appropriate, including street address;

c.

The association, if any, of said person, persons, group, or event, if appropriate, with the site or facility to be named;

d.

A brief biography of said person, persons, or group, or account of the historical event, if appropriate, including all other dates relevant to the naming.

2.

The City will accept public comments and recommendations on the recommended name(s) for a period of no less than 30 days ("Public Notice "Period"). Public notice of the request will be placed at a minimum in a local newspaper once during the 30-day period, along with a posting notice at the City Asset, if applicable, or utilizing any other form of social/electronic media to inform the citizens that the City will be considering the naming or renaming of a City Asset. Citizen comments and recommendation(s) must be submitted in writing to the City's designated representative and be postmarked within the 30-day Public Notice Period.

3.

After the 30-day Public Notice Period, the City's designated representative will submit the recommended name(s) to the City Manager or designee, who will forward the recommendation(s) and any citizen comments to the City Council for consideration at an upcoming scheduled meeting.

D.

Commemorative Works.

1.

A Commemorative Works request may be initiated by the public or City Council. Upon receipt of an application from the Public, the City Manager or designee shall submit the request to the City Council for its consideration, with the requestor bearing all costs for the design, acquisition, construction, and installation of the Commemorative Work. A payment equivalent to the anticipated maintenance cost of the Commemorative Work at the City Asset for the first year after dedication shall be required after approval and provided prior to dedication. Detailed information, including concept, size, shape, type of material, annual maintenance costs, and total costs, if appropriate, shall be required in the application to be considered for approval by the City Council. City Council may elect to bear the cost of the Commemorative Work in lieu of the applicant with approval by a supermajority vote.

If the Commemorative Work request is initiated by the City Council, the City shall bear all costs of the Commemorative Work.

2.

The City will accept public comments and recommendations on the request for a period of no less than 30 days ("Public Notice Period"). Public notice of the request will be placed at a minimum in a local newspaper once during the 30-day period, along with a posting notice at the City Asset, if applicable, or utilizing any other form of social/electronic media to inform the citizens that the City will be considering the placement of a permanent Commemorative Work at a City Asset. Citizen comments and recommendation must be submitted in writing to the City's designated representative and be postmarked within the 30-day Public Notice Period.

3.

After the 30-day Public Notice Period, the City's designated representative will submit the recommendation(s) to the City Manager or designee, who will forward the recommendation(s) and any citizen comments to the City Council for consideration at an upcoming scheduled meeting.

(Ord. 68-21, § 1, 11-17-2021)

(a)

Expenditures from funds awarded to the City through a grant or government loan may require special processing because of specific legal terms and conditions placed by the funding agency. Grants often have certain purchasing requirements that are different or additional to the City's Procurement Ordinance and they require special purchasing procedures. It is the responsibility of the using Procurement Division to identify any special purchasing requirements or provisions, notify the procurement management department of them, and to ensure that all requirements are followed.

(b)

For federal and state grant funded projects, the City shall follow the procurement process required by the funding agency and grant agreement. Unless otherwise specified in the grant, all grant funded purchases shall follow the City's procurement ordinance.

(c)

The provisions of Title 2 of the Code of Federal Regulations (CFR) Part 200 and Chapter 73C-23, Florida Administrative Code (F.A.C.), as amended from time to time, are hereby incorporated herein by reference and shall be applicable to Procurements funded pursuant to a grant agreement that is governed by those provisions. When procuring property and services under a Federal award, the City will follow the procurement standards as outlined in the 2 CFR Part 200.318 through 2 CFR Part 200.327 and its Appendix II provisions, as applicable and unless waived by the awarding agency. Amendments made by the federal government to the regulations and standards of the 2 CFR Part 200.318 through 2 CFR Part 200.327 and its Appendix II provisions shall be automatically incorporated herein.

(d)

Purchasing under federal grants shall be conducted in accordance with the federal regulations mandated by the granting agency. These provisions may include, but are not limited to, the following:

(1)

2 CFR Part 200.

(2)

2 CFR Part 1201.

(3)

23 CFR Part 172.

(4)

23 CFR Part 635.

(5)

24 CFR Part 75 Section 3.

(6)

24 CFR Part 570.

(7)

48 CFR Part 36.

(8)

Title 1 of the Housing and Community Development HCD Act.

(9)

Section 508 of the Rehabilitation Act.

(10)

Brooks Act.

(11)

Florida State statutes, as applicable.

(Ord. 10-25, § 2, 4-16-2025)

The following fees will be charged by the city for codes, duplicating documents and other miscellaneous services.

(Ord. 24-76, § 1, 4-12-1976; Ord. 105-77, § 1, 1-9-1978; Ord. 32-80, § 1, 8-4-1980; Ord. 104-82, § 1, 1-17-1983; Ord. 32-85, 5-6-1985; Ord. 69-90, 9-10-1990; Ord. 71-92, 11-9-1992; Ord. 9-98, 3-9-1998; Ord. 94-01, 12-3-2001; Ord. 92-05, 8-29-2005; Ord. 14-12, 6-11-2012)

Editor's note— Ord. 5-07, 2-5-2007, deleted the provisions in this section.

(a)

This division establishes procedures to facilitate the orderly expansion of the city's capital needs for utility facilities and provides alternatives for funding of the capital needs by those benefitting thereby imposing a charge which is reasonable commensurate with the burden currently imposed or reasonably anticipated to be imposed on those systems.

(b)

The city has determined that certain necessary expansions will have to be undertaken in order to provide for the influx of new residents anticipated to occur in future years. In order to finance these necessary capital improvements, several combined methods of financing will be necessary, one of which is a utility capital expansion fee.

(c)

The amount of this utility capital expansion fee has been determined on the recommendation of the city's staff and as distilled through the process of public meetings. The City Council finds that after an examination of all methods of financing, the utility capital expansion fee is a necessary integral part of the financing of future utility expansion in the city at this time, and that this fee should be reviewed on a periodic basis in order to ensure that it continues to reflect a charge that is reasonably commensurate with the burden currently imposed or reasonably anticipated to be imposed on community services.

(Ord. 63-80, 10-20-1980; Ord. 52-85, 6-17-1985; Ord. 137-04, 11-8-2004, effective date 1-1-2005)

(a)

There is hereby imposed a utility capital expansion fee based on the equitable portion of the cost of financing, the expansion of utility facilities upon the equivalent single-family residential unit responsible for creating the need for additional system financing.

(Ord. 41-95, effective 1-1-1996; Ord. 137-04, 11-8-2004)

(b)

For existing improved property, the utility capital expansion fee for water, wastewater and/or irrigation service shall be due and payable at the time the building permit is issued.

(Ord. 41-95, effective 1-1-1996; Ord. 137-04, 11-8-2004; Ord. 20-20, § 1, 4-27-2020)

(c)

For new construction in areas where utility service is currently available, the utility capital expansion fee shall be due and payable at the same time the installation fee for the water meter is paid. If sewer service is not available, the fee for wastewater will not be due until the sewer service is extended to the property.

(Ord. 137-04, 11-8-2004)

(d)

When a structure is moved from one location to another, a utility capital expansion impact fee will be collected for the new location if the structure constitutes one of the land development uses listed in § 2-24.3 below, regardless of whether utility capital expansion impact fees have been paid at the old location, unless the use at the new location is a replacement of an equivalent use. If the structure moved is replaced by an equivalent use, no utility capital expansion impact fee is owed for the replacement use. In every case, the burden of proving past payment of utility capital expansion impact fees or equivalency of use rests with the feepayer.

(e)

When property is redeveloped, the amount of utility capacity previously reserved remains with such property. For example, if the amount of reserved capacity needed to serve the redeveloped property is less than or equal to the original capacity reserved to serve the property, then no additional utility expansion impact fees will be due. If the amount of reserved capacity needed to serve the redeveloped property is greater than the original capacity reserved to serve the property, the property will receive a credit towards any additional utilities expansion impact fees due at the city's then current utilities expansion impact fee rate structure, as such is amended from time to time.

(Ord. 87-05; 6-13-2005; Ord. 63-80, 10-20-1980; Ord. 53-85, 6-17-1985; Ord. 137-04, 11-8-2004; Ord. 72-11, 11-14-2011)

(a)

The proceeds accumulated by reason of the establishment of a utility capital expansion fee can be used for the capital expansion of utility facilities. The use of proceeds in each account are restricted to payment for engineering, construction and associated costs of new facilities, or expansion of existing facilities, built to furnish additional capacity required to provide service due to new growth and development. The proceeds may also be used to pay debt service on financing obtained to expand facilities to provide service capacity for new connections.

(Ord. 20-20, § 1, 4-27-2020)

(b)

The proceeds may not be used for improving, updating or bringing the present system into compliance with any change in laws, but may be used for valid purposes along with other types of revenues or matching funds.

(Ord. 62-80, 10-20-1980, Res. 44-85, 6-17-1985; Ord. 137-04, 11-8-2004)

(a)

There is hereby established a fund designated as "Expansion Fee Improvement Trust Fund for the Expansion of Utility Facilities."

(b)

All utility capital expansion fees paid to the city shall be deposited in the fund to be held in a separate account and used for the purposes of the expansion of the City of Cape Coral's capital needs for utility facilities.

(Ord. 63-80, 10-20-1980; Ord. 137-04, 11-8-2004)

(a)

This section is intended to address the need for additional capital funds to support the orderly expansion of the city's water system, wastewater system and irrigation system to meet the burdens imposed by new users. It provides for the funding of the capital needs by imposing fees upon new users of the city's utilities systems that are reasonably commensurate with the burdens currently imposed or reasonably anticipated to be imposed on those systems.

(Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004)

(b)

The city is currently undertaking certain projects to expand the capacity of its utilities systems and had determined that further expansions will have to be undertaken to meet the increased demands to be placed upon its utilities systems by new users. In order to finance these necessary capital expansion projects, several methods of financing will be necessary, including water, wastewater and irrigation systems utility capital expansion fees.

(Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004)

(a)

Each single-family residence or prepared mobile home space will constitute one equivalent single-family residential unit.

(b)

Each dwelling unit contained in a multi-unit residential structure or complex of two or more dwelling units, such as duplexes, apartment buildings and condominiums, is defined as being equal to 0.69 of an equivalent single-family residential unit.

(c)

Non-residential units shall be converted to equivalent single-family residential units on the basis of the sizes and capacities of water meters serving the structures. Meter sizes and the corresponding number of equivalent single-family residential units are listed below.

(d)

CAPITAL FACILITY EXPANSION CHARGE. A charge collected as part of a utility expansion assessment program for purposes of paying for a portion of the costs associated with construction and expansion of the city's plant facilities for providing utility service and reserving capacity in such facilities, calculated on the basis of equivalent residential units (ERUs).

(Ord. 48-85, § 1, 6-17-1985; Ord. 137-04, 11-8-2004; Ord. 5-07, 2-5-2007; Ord. 121-08, 10-20-2008)

(a)

There are hereby imposed water system utility capital expansion fees as follows.

(1)

North 1 East Utility Expansion Area.

a.

In the area described as "North 1 East" in the North 1 Utilities Extension Projects local facilities are to be installed by the city and paid for from the proceeds of utility assessments imposed on all property owners in the North 1 East Utility Expansion Area.

b.

As so, there is imposed the following schedule of water system utility capital expansion fees.

c.

The fee schedule above contains legacy rates for the Capital Facility Expansion Charge Assessment. These legacy rates are for assessment purposes only, and any need for additional capacity will be charged at the then current rates contained in the fee schedules below.

(2)

For all other areas in the City, not within the North 1 East Utility Expansion Area.

Year 1—Effective July 27, 2024 through July 26, 2025

Year 2—Effective July 27, 2025 through July 26, 2026

Year 3—Effective July 27, 2026 through July 26, 2027

Year 4—Effective July 27, 2027

(3)

Meters larger than 12 inches shall have water system utility capital expansion fees based upon relative capacity.

(4)

Customers that connect to potable water only (single service) and subsequently connect to the dual irrigation water system shall receive a credit in the amount of the single service connection fee paid. The amount of the single service connection fee paid shall be credited towards the current amount of the dual service connection fee at the time of connection to the irrigation water system.

(b)

There are hereby imposed wastewater system utility capital expansion fees as follows.

(1)

North 1 East Utility Expansion Area.

a.

In the area described as "North 1 East" in the North 1 Utilities Extension Projects local facilities are to be installed by the city and paid for from the proceeds of utility assessments imposed on all property owners in the North 1 East Utility Expansion Area.

b.

As so, there is imposed the following schedule of wastewater system utility capital expansion fees.

c.

The fee schedule above contains legacy rates for the Capital Facility Expansion Charge Assessment. These legacy rates are for assessment purposes only, and any need for additional capacity will be charged at the then current rates contained in the fee schedules below.

(2)

For all other areas in the City, not within the North 1 East Utility Expansion Area.

(3)

District 1 Wastewater System Service Area.

a.

In areas where city wastewater facilities are currently available, local facilities (pump stations and force mains of less than ten inches in diameter) were installed by the city and paid for from the proceeds of utility assessments imposed on all property owners in the assessment area.

b.

As so, there is imposed the following schedule of wastewater system utility capital expansion fees.

Year 1—Effective July 27, 2024 through July 26, 2025

Year 2—Effective July 27, 2025 through July 26, 2026

Year 3—Effective July 27, 2026 through July 26, 2027

Year 4—Effective July 27, 2027

(4)

District 2 Wastewater System Service Area. In those areas where utilities are either planned, but not yet available or are currently in design or under construction, including those utility extension areas known as Southwest 4, Southwest 5, including future utility expansion areas, local facilities (pump stations and force mains of less than ten inches in diameter) shall be paid for with wastewater system utility capital expansion fees. The schedule for the wastewater system utility capital expansion fees for those areas shall therefore be as follows.

Year 1—Effective July 27, 2024 through July 26, 2025

Year 2—Effective July 27, 2025 through July 26, 2026

Year 3—Effective July 27, 2026 through July 26, 2027

Year 4—Effective July 27, 2027

(5)

Computation of fee. For cases in which not all water discharged to the sanitary sewer system is measured by the water meter or in which the preponderance of metered water is not returned to the sanitary sewer system, the city shall compute the fee using the following value per each 200 gallons per day of wastewater flow or fraction thereof. The determination shall be made by the Utilities Director or designee.

(6)

Fees based on meter capacity. Meters larger than 12 inches shall have wastewater system utility capital expansion fees based upon relative meter capacities.

(c)

There are hereby imposed irrigation system utility capital expansion fees as follows.

(1)

North 1 East Utility Expansion Area.

a.

In the area described as "North 1 East" in the North 1 Utilities Extension Projects local facilities are to be installed by the city and paid for from the proceeds of utility assessments imposed on all property owners in the North 1 East Utility Expansion Area.

b.

As so, there is imposed the following schedule of irrigation system utility capital expansion fees.

c.

The fee schedule above contains legacy rates for the Capital Facility Expansion Charge Assessment. These legacy rates are for assessment purposes only, and any need for additional capacity will be charged at the then current rates contained in the fee schedules below.

(2)

For all other areas in the City, not within the North 1 East Utility Expansion Area

Year 1—Effective July 27, 2024 through July 26, 2025

Year 2—Effective July 27, 2025

(d)

The water, wastewater and irrigation system utility capital expansion fees shall be paid as provided in § 2-22 above.

(e)

Utility capital expansion fees paid in installments.

(1)

At the option of the property owner(s) of record, utility capital expansion fees due under this article may be paid in installments instead of one lump sum payment at the time they are due. Owners who desire to pay their capital expansion fees in installments shall execute an annual installment agreement in the amount of the utility capital expansion fees prior to connection. The agreement shall be promptly recorded in the office of the Clerk of Circuit Court for Lee County, Florida. A recording fee as provided for in the schedule of charges established by the Lee County Clerk of the Circuit Court shall be paid by the property owner(s) to the city. Owners electing to pay the utility capital expansion fees in installments may, but are not required to, make an initial down payment at the time of making application to pay the utility capital expansion fees in installments. The remaining principal balance shall be paid in six equal principal annual installments not exceeding six, plus interest and collection costs. The rate shall be determined at the time of application to pay in installments, and such installments shall become part of the non-ad valorem assessment property tax bill. The Interest portion of the annual payment shall be calculated annually on the remaining principal balance. The interest rate, shall be a fixed rate, shall be established at the time of application to pay the utility capital expansion fees in installments and shall equal the current prime lending rate as published in the Wall Street Journal on the last day of the month preceding the application, plus 1%, plus a 1% administrative fee and shall be effective the first day of the current month through the last day of the current month. The interest rate shall remain fixed until the annual installment agreement is paid in full. There shall be no penalty for prepayment in full. Attorneys' fees and costs shall be awarded to the prevailing party in any action to enforce the agreement.

(2)

Development of the property prior to paying the utility capital expansion fee does not relieve the property owner of the responsibility to the city for payment of the utility capital expansion fee. In the event of this occurrence, due to oversight or City Council action, the property owner will be billed accordingly and must submit payment or enter into an installment agreement. Failure to do so will result in the utility capital expansion fees being placed on the non-ad valorem property tax bill along with interest and collection costs.

(3)

The property owner may either pay the utility capital expansion fee in full or finance the fee as prescribed. Financing the fee requires an annual installment agreement as described above. The utility capital expansion fee shall be due and payable within 180 days from the date the notice of availability is sent to the property owner. After the expiration of 150 days from the date the notice of availability was sent, the city shall send a bill for any unpaid utility capital expansion fees to the property owner of record which states that utility capital expansion fees are due and payable, will become delinquent if not paid in full or financed within 30 days, and shall include a statement that failure to pay in full or consent to finance the fees as a non-ad valorem assessment within the 30 day period or to request, in writing, an opportunity to contest the charges before City Council, will result in the city using the uniform method of collecting the utility capital expansion fee in accordance with F.S. § 197.3632. The bill shall be delivered to the owner by U.S. Mail, Return Receipt Requested, using the address of the owner as stated on the County Property Appraiser's records, or by hand delivery.

(4)

Right to contest imposition non-ad valorem assessment installment method. Any property owner who desires to contest the imposition of involuntary utility capital expansion fee non-ad valorem assessment installments must submit a written request to the Director of Financial Services within 30 days from the date the bill for unpaid utility capital expansion fees was mailed or hand delivered by the city. The request shall be scheduled for City Council consideration as soon as practicable. The City Council, after hearing from the property owner and staff, shall determine whether to modify or correct any utility capital expansion fees. The property owner shall have 15 days from the date of the City Council action to pay the full amount of the capital expansion fee found by the City Council to be due. Failure to pay the fee in full within said 15 day period shall result in the execution and filing of a non-ad valorem assessment installment schedule by the City Manager or designee for the amount due.

(5)

Imposition of non-ad valorem assessment installment schedule for delinquent utility capital expansion fees. If the owner has not entered into an annual installment agreement and has not paid the capital expansion fees in full within 30 days of the date the bill was mailed or hand delivered, and the owner has not submitted a written request to the city to contest the billing in front of the City Council, or the owner has contested the billing and same are found to be valid by the City Council, the City Manager, or his or her designee, shall execute and record a non-ad valorem assessment installment schedule against the property for the amount of the utility capital expansion fees remaining due plus a recording fee. The utility capital expansion fees contained in the non-ad valorem assessment installment schedule shall bear interest at the rate provided for in F.S. § 55.03 for interest on judgments.

(6)

Release of lien. For owners who financed the utility capital expansion fees utilizing the legacy lien process and have paid the lien in full shall, and upon request, the city will file a release of lien.

(7)

Other means. Nothing herein shall prohibit the city from utilizing other means to collect delinquent utility capital expansion fees including, but not limited to, an action for damages filed with the appropriate court in Lee County or collection of the delinquent amount as a non-ad valorem assessment, as follows:

A.

In lieu of foreclosure, any utility capital expansion fees which was financed through the legacy lien process and is delinquent by more than six months may be collected as a non-ad valorem assessment pursuant to F.S. § 197.3632.

B.

Amount of Non-Ad Valorem Assessment.

1.

The non-ad valorem assessment shall include the delinquent utility capital expansion fees together with interest accrued thereupon, and each annual installment shall include administrative and collection costs, fees and expenses imposed by the county property appraiser or county tax collector under F.S. § 197.3632, and amounts necessary to account for the early payment discount for ad valorem property taxes and non-ad valorem assessments.

2.

The non-ad valorem assessment shall not include any accrued and unpaid penalties or fines. Upon payment in full of the total amount of the non-ad valorem assessment, any such accrued penalties or fines shall be waived and the city shall prepare a satisfaction or release of lien for the utility capital expansion fees.

C.

Intent Resolution. Prior to commencing collection of the non-ad valorem assessment, the city shall adopt a resolution stating the city's intent to use the uniform method of collection and provide notice of its intent to consider such resolution in accordance with F.S. § 197.3632(3).

D.

Initial Assessment Resolution. After adoption of the intent resolution, City Council shall consider an initial assessment resolution. The initial assessment resolution shall at a minimum:

1.

Describe the parcels subject to the non-ad valorem assessment.

2.

Describe the schedule for collection of the non-ad valorem assessment in annual installments which, unless determined otherwise in the initial assessment resolution, shall be as follows: Any delinquent amount less than $1,000 may be collected by the city in one annual installment; amounts over $1,000 but less than $2,000 may be collected in three annual installments; and amounts over $2,000 may be collected in five annual installments.

3.

Schedule a public hearing at a meeting of the City Council, which meeting shall be a regular, adjourned or special meeting, at which to hear objections of all interested persons and to consider adoption of a final assessment resolution approving the non-ad valorem assessment roll.

4.

Direct City staff to prepare the non-ad valorem assessment roll, publish and mail notice required by F.S. § 197.3632 using information then available from the ad valorem tax roll maintained by the county property appraiser.

E.

Non-Ad Valorem Assessment Roll.

1.

Upon adoption of the initial assessment resolution, city staff shall prepare a preliminary non-ad valorem assessment roll that contains the following information:

a.

A summary description of each parcel of property (conforming to the description contained on the ad valorem tax roll) subject to the non-ad valorem assessment;

b.

The name of the owner of record of each parcel, as shown on the ad valorem tax roll;

c.

The number of equivalent residential units (ERUs) attributed to each parcel;

2.

Copies of the initial assessment resolution and the preliminary non-ad valorem assessment roll shall be on file with the City Clerk's Office and open to public inspection.

F.

Notice by Publication. After adoption of the initial assessment resolution, the city shall publish once in a newspaper of general circulation within Lee County a notice stating that at a meeting of the City Council on a certain day and hour, not earlier than 20 calendar days from such publication, which meeting shall be a regular, adjourned or special meeting, the City Council will conduct a public hearing to receive input and objections of all interested persons to the final assessment resolution and approval of the non-ad valorem assessment roll. The published notice shall conform to the requirements set forth in F.S. § 197.3632.

G.

Notice by Mail.

1.

In addition to the published notice required by this section, the city shall provide notice of the public hearing by first class mail to the owner of each parcel of property subject to the non-ad valorem assessment. The mailed notice shall conform to the requirements set forth in F.S. § 197.3632 and shall be mailed at least 20 calendar days prior to the hearing to each property owner at such address as is shown on the tax roll on the twentieth calendar day prior to the date of mailing. Notice shall be deemed mailed upon delivery thereof to the possession of the U.S. Postal Service.

2.

The notice shall include, among other things, the intent of the city to collect the non-ad valorem assessment pursuant to the uniform method authorized by F.S. § 197.3632, if not paid in full by the following September 1, or such other date as may be determined in the initial resolution.

3.

City staff may provide proof of such notice by affidavit. Notwithstanding anything herein to the contrary, notice of a proposed Assessment may be given in any manner authorized by law.

H.

Adoption of Final Assessment Resolution. At the time named in such notices, or to which an adjournment or continuance may be taken, the City Council shall conduct the public hearing to receive written objections and hear testimony of interested persons and may then, or at any subsequent meeting of the City Council, adopt the final assessment resolution which shall:

1.

Confirm, modify or repeal the initial assessment resolution with such amendments, if any, as may be deemed appropriate by the City Council;

2.

Approve the non-ad valorem assessment roll, with such amendments as it deems just and right; and

3.

Direct certification and delivery of the non-ad valorem assessment roll to the county tax collector no later than September 15 of the current year.

I.

Certification of Non-Ad Valorem Assessment Roll. The non-ad valorem assessment roll will be comprised of properties that have had levied against them non-ad valorem assessments under this article, where such assessment has not otherwise been paid in full prior to delivery of the roll to the county tax collector. Prior to certifying the non-ad valorem assessment roll to the county tax collector, city staff shall remove from such roll any parcel for which the assessment has been paid in full.

J.

Annual Assessment Resolution. The City Council shall adopt an annual assessment resolution during its budget adoption process for each fiscal year in which non-ad valorem assessments are imposed hereunder to approve the non-ad valorem assessment roll for such fiscal year. The final assessment resolution shall constitute the annual assessment resolution for the initial fiscal year. The non-ad valorem assessment roll shall be confirmed or amended by the annual assessment resolution to reflect the then applicable annual installment of the non-ad valorem assessment. If a non-ad valorem assessment is imposed hereunder against property not previously subject thereto, the city shall provide mailed notice to the owner of such property in accordance with this section and conduct a public hearing prior to adoption of the annual assessment resolution. Failure to adopt an annual assessment resolution during the budget adoption process may be cured at any time.

K.

Effect of Assessment Resolutions. The adoption of the final assessment resolution or of an annual assessment resolution requiring notice as provided in paragraph J. above, shall be the final adjudication of the issues presented (including but not limited to adoption of the non-ad valorem assessment roll and the levy and lien of the non-ad valorem assessments), unless proper steps are initiated in a court of competent jurisdiction to secure relief within 20 days from the date of the City Council's adoption of the final assessment resolution. The non-ad valorem assessments for each fiscal year shall be established upon adoption of the annual assessment resolution.

L.

Proceeds of the Non-Ad Valorem Assessments. Proceeds of the non-ad valorem assessments, after payment of fees, costs and expenses associated with collection of the assessments, shall be deposited to the respective trust funds established for the water, wastewater and irrigation subaccounts of the Expansion Fee Improvement Trust Fund for the Expansion of Utility Facilities established by § 2-24 hereof.

M.

Prepayment. The owners of property subject to a non-ad valorem assessment imposed hereunder may, at their option, prepay the assessment in full at any time; provided, however, that during any period commencing on the date the annual non-ad valorem assessment roll is certified for collection to the county tax collector and ending on the next date on which unpaid ad valorem taxes become delinquent, the city may reduce the amount required to prepay the non-ad valorem assessments imposed against any parcel of property by the amount of the assessment certified for collection with respect to such parcel.

N.

Other Applicable Provisions. Except as otherwise set forth above, non-ad valorem assessments imposed hereunder shall be administered in accordance with Chapter 17, Article III of the City Code. The city shall comply with any other requirements of F.S. § 197.3632.

O.

Collection of Non-Ad Valorem Assessments. The non-ad valorem assessments collected pursuant to this section will be included in the combined notice for ad valorem taxes and non-ad valorem assessments as provided in F.S. § 197.3635, including provisions relating to discount for early payment, prepayment by installment method, deferred payment, penalty for delinquent payment, and issuance and sale of tax certificates and tax deeds for nonpayment.

P.

Agreement to reimburse county property appraiser and county tax collector. In order to use the uniform method for the levy, collection, and enforcement of the non-ad valorem assessments, the city is authorized to enter into a written agreement with the county property appraiser and the county tax collector providing for the reimbursement of their costs incurred in the administration and collection of the non-ad valorem assessments levied under this article.

Q.

Additional Utility Capital Expansion Fees. Payment of any non-ad valorem assessment imposed hereunder shall not relieve the owner of affected property from the obligation to pay additional utility capital expansion fees in the event the property is developed to a greater intensity or if property is combined with the original parcel. Utility capital expansion fees will be due for the increased intensity or the additional square footage over the original amount of the non-ad valorem assessment.

(f)

Capital expansion fees paid as non-ad valorem assessments. As an alternative to payment of the capital expansion fess in installments as provided in paragraph (e) above, and notwithstanding anything in the Chapter to the contrary, the city may collect the capital expansion fees as non-ad valorem assessments pursuant to F.S. § 197.3632; provided, however, that the city shall not be required to follow the public hearing and notice process set forth in F.S. § 197.3632(4) if the owner of the property provides written consent for the non-ad valorem assessment in accordance with F.S. § 197.3632(4)(a)(3).

(Ord. 48-85, § 1, 6-17-1985; Ord. 56-87, § 1, 7-27-1987; Ord. 46-93, 8-9-1993; Ord. 55-95, 9-27-1995; Ord. 71-97, 9-29-1997; Ord. 45-04, 4-26-2004; Ord. 137-04, 11-8-2004, 1-1-2005; Ord. 5-07, 2-5-2007; Ord. 1-09, 1-26-2009; Ord. 14-09, 4-20-2009; Ord. 94-10, 4-11-2011; Ord. 44-11, 8-22-2011; Ord. 72-11, 11-14-2011; Ord. 35-16, § 1, 11-7-2016; Ord. 54-18, § 3, 7-30-2018; Ord. 20-20, § 1, 4-27-2020; Ord. 107-22, § 1, 1-11-2023; Ord. 12-24, § 1, 3-6-2024, eff. 7-27-2024)

The provisions of this division shall apply for all water, wastewater and irrigation capital expansion fees hereafter levied and imposed by the city. In the event any capital expansion fee lien is determined to be ineffective for any reason, it shall not preclude the city from following the procedures outlined in this article for reinstituting any capital expansion fee lien and installment payments thereof under the terms of this article.

(Ord. 58-90, 7-30-1990; Ord. 137-04, 11-8-2004, effective date 1-1-2005)

(a)

There is hereby established a water capital expansion fee trust fund, a District 1 Wastewater Capital Expansion Fee Trust Fund, a District 2 Wastewater Capital Expansion Fee Trust Fund and an irrigation capital expansion fee trust fund for monies collected by imposition of the water, wastewater and irrigation system utility capital expansion fee. All payments of fees for water connections, wastewater and irrigation connections, shall be deposited into the appropriate fee fund.

(Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004, effective date 1-1-2005)

(1)

The monies in the water fee funds shall be used solely for the cost of expanding the system as described in § 2-23(a) above and may not be used for the cost of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of the existing system to meet the service needs of existing users.

(Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004, effective date 1-1-2005)

(2)

The money in the District 1 wastewater fee fund shall be used solely to pay for the cost of the expansion of the system in District 1 as described in § 2-23(a) above and shall not be used for the costs of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of the existing system to meet the service needs of existing needs. The money in District 2 Wastewater Fee Fund shall be used solely to pay for the cost of the expansion of the system in District 2 as described in § 2-23(a) above and shall not be used for the costs of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of the existing system to meet the service needs of existing needs.

(Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004, effective date 1-1-2005)

(3)

The money in the irrigation fee fund shall be used solely to pay for the cost of the expansion of the system as described in § 2-23(a) and shall not be used for the costs of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of the existing system to meet the service needs of existing needs.

(4)

Trust funds may also be used to retire revenue bonds issued for the above-stated capital improvements to the water, sewer and irrigation systems.

(Ord. 48-85, § 1, 6-17-1985; Ord. 71-97, 9-29-1997; Ord. 137-04, 11-8-2004, effective date 1-1-2005; Ord. 5-07, 2-5-2007)

(a)

The city may grant utility capital expansion fee credits to a developer or property owner in exchange for the construction and transfer, to the city, of permanent utility facilities related to the city's water transmission system, wastewater transmission system or irrigation transmission system. The city may utilize either an engineer's estimated cost or the actual cost of the donated facility to determine the amount of the credit. The amount of utility capital expansion fee credits granted for any property shall not exceed the anticipated utility capital expansion fees to be collected from that property. For developments that are not going to obtain building permits at the time the transfer of permanent utility facilities is made, estimates of anticipated utility capital expansion fees shall be used to determine the amount of the credit. The method by which the credits were determined shall be contained in the development agreement or PDP development order applicable to the property.

(b)

The city may grant wastewater capital expansion fee credits to a developer or property owner of property located in District 2 in exchange for the construction and transfer, to the city, of permanent wastewater facilities related to the city's wastewater local forcemains and/or pump stations located in District 2. The city may utilize either an engineer's estimated cost or the actual cost of the donated facility to determine the amount of the credit. The amount of wastewater capital expansion fee credits granted for any property hereunder shall not exceed the anticipated utility capital expansion fees to be collected from that property. For developments that are not going to obtain building permits at the time the transfer is made, estimates of anticipated wastewater capital expansion fees shall be used to determine the amount of the credit. The method by which the credits were determined shall be contained in the development agreement or PDP development order applicable to the property. Any permanent wastewater facilities eligible for wastewater capital expansion fee credits pursuant to this subsection shall not be eligible for utility capital expansion fee credits under subsection (a) above.

(c)

The city shall grant utility capital expansion fee credits for all real property subject to a special assessment for potable water, wastewater, or irrigation where the special assessment amount for that real property includes a capital facility expansion charge. The credit shall correspond to the amount of equivalent single-family residential unit(s) (ERUs) used to determine the capital facility expansion charge in the special assessment for that property.

(Ord. 5-07, 2-5-2007; Ord. 121-08, 10-20-2008)

(a)

The utility capital expansion fee structure shall be reviewed pursuant to F.S. § 163.31801.

(b)

Impact fees shall be based on the most recent and localized data and implemented pursuant to F.S. § 163.31801.

(Ord. 5-07, 2-5-2007; Ord. 35-16, § 2, 11-7-2016; Ord. 12-24, § 2, 3-6-2024, eff. 7-27-2024)

(a)

This division is established to address the need for additional capital funds to support the orderly expansion of the City of Cape Coral fire and rescue, police services and Non-transport Advanced Life Support Services. These impact fees provide for the funding of public safety equipment and facilities by imposing fees upon new construction that are commensurate with the burdens reasonably anticipated to be imposed by them.

(b)

The city has undertaken a planned expansion of its public safety facilities to meet the increased demand placed upon said systems by new users. In order to finance this necessary capital expansion, several methods of financing will be necessary, including public safety impact fees.

(c)

The amount of the public safety impact fees have been determined based on a study performed by the city's impact fee consultant. The City Council hereby finds that there is a substantial variation in capital costs depending on the height and bulk of buildings being served. Taller and bulkier buildings require different and more expensive equipment in order to adequately protect life and property. The City Council finds that, after an examination of the available methods of financing, public safety impact fees are a necessary method for financing the needed public safety equipment and facilities caused by growth within the city. The city finds that the public safety impact fees imposed upon the new construction within the city reflect the additional burdens imposed by the new construction.

(Ord. 16-87, 5-27-1987; Ord. 81-01, 10-9-2001; Ord. 75-04, 6-14-2004; Ord. 47-06, 6-5-2006)

Unless the context specifically indicates otherwise the meaning of terms used in this section shall be as follows:

NON-RESIDENTIAL USE. Any use that does not meet the definition of "residential dwelling units", as described below. These uses shall include, but not be limited to, common areas such as lobbies, hallways, recreation rooms and parking garages that are associated with residential developments.

RESIDENTIAL DWELLING UNITS. Includes each single-family dwelling and each unit of apartment, duplex or multiple dwelling structure designed as a separate habitation for one or more persons, whether temporarily or permanently utilized or designed or intended to be utilized for human habitation.

(Ord. 16-87, § 1, 5-27-1987; Ord. 81-01, 10-9-2001; Ord. 75-04, 6-14-2004)

(a)

Any person who, after the effective date of this article, seeks to develop land by applying for issuance of a building permit as defined by this article, shall be required to pay public safety impact fees prior to the issuance of a building permit, or any other development permit for the construction or substantial reconstruction of any structure to be used for a residential dwelling unit or non-residential use. The public safety impact fees shall consist of three separate fees: a fire and rescue impact fee, a police protection impact fee, and an ALS (advanced life support) impact fee. The following fee tables shall be used to determine the amount due for each type of fee.

(1)

The amount of the fire and rescue impact fees shall be determined according to the following tables. For structures that contain both residential and non-residential uses, the amount of the fees shall be apportioned between the residential and non-residential uses.

(Ord. 39-89, 8-21-1989; Ord.77-02, 8-12-2002; Ord. 81-01, 10-9-2001; Ord. 77-02, 8-12-2002; Ord. 75-04, 6-14-2004; Ord. 47-06, 6-5-2006)

(2)

The amount of the police protection impact fee shall be determined according to the following table.

(3)

The amount of the ALS impact fee shall be determined according to the following table.

(b)

The fees imposed are a result of the city's fee calculation studies to insure that the impact fees imposed are rationally related to the impact of new growth on public safety activities.

(Ord. 39-89, 8-21-1989; Ord. 81-01, 10-9-2001; Ord. 75-04, 6-14-2004; Ord. 47-06, 6-5-2006)

(c)

In lieu of the payment of any public safety impact fees set forth herein, and at the option of the city, the fee payer may donate real property, equipment, capital improvements to the city. Fee payers shall receive credit for any public safety impact fees due under this article equal to the value of the real property, equipment or capital improvements offered and exchanged for payment of the public safety impact fees due under this article. Prior to acceptance of any real property, equipment or capital improvements in lieu of public safety impact fees, the City Manager or his or her designee shall obtain an appraisal to establish the credit for real property, equipment or capital improvements presented in lieu of public safety impact fees.

(Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

(d)

(1)

Real property, equipment or capital improvements proposed to be exchanged in lieu of a payment of any public safety impact fees shall be real property, equipment or capital improvements needed for public safety facilities as contemplated by this article or in the case of platted lots located in the city's urban services reserve area zoned as commercial or professional use prior to February 13, 1989, that are rezoned by the Cape Coral Comprehensive Plan for residential use, may be exchanged for public safety impact fees if the platted lots are below the minimum size for residential use, and adjoin city-owned property.

(Ord. 99-89, 1-22-1990; Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

(2)

Property conveyed to the city for an impact fee credit shall receive a credit equal to its fair market value at the time of the conveyance, or in the case of property located within the city's urban services reserve area, its fair market value based upon the property's commercial or professional zoning prior to the adoption of the Cape Coral Comprehensive Plan on February 13, 1989.

(Ord. 99-89, 1-22-1990)

(3)

All of the real property acquired by the city in exchange for impact fees contemplated by this article shall be either used for capital improvements contemplated by this article or sold within a reasonable time by the city and all of the proceeds from the sale shall be deposited into the specific impact fee fund for which the property was acquired, pursuant to § 2-24.11 below and used for those specific public safety facilities.

(Ord. 99-89, 1-22-1990; Ord. 47-06, 6-5-2006)

(e)

Any fee payor applying for issuance of a building permit, may, at his or her option, submit evidence to the City Council indicating that the impact fees set by this division are not applicable to his or her particular case. Based upon clear and convincing evidence, the City Council may adjust the fees as appropriate for the particular property.

(Ord. 47-06, 6-5-2006)

(f)

That the city hereby adopts by reference as if fully set forth herein the 2006 City of Cape Coral public safety impact fee study identifying all real property in the city and the impact fees due for each parcel. A copy of the 2006 City of Cape Coral public safety impact fee study is attached to the ordinance as Exhibit "A" and shall be recorded in the office of the City Clerk and available for public inspection upon request.

(Ord. 39-89, 8-21-1989; Ord. 81-01, 10-9-2001; Ord. 75-04, 6-14-2004; Ord. 47-06, 6-5-2006)

(g)

Residential construction is exempt from the payment of public safety impact fees for additions to existing residential structures not creating another dwelling unit. Residential construction is exempt from the payment of the fees for the replacement of a residential structure with a new residential structure not creating an additional dwelling unit.

(Ord. 69-02, 7-29-2002; Ord. 47-06, 6-5-2006)

(h)

When a structure is moved from one location to another, public safety impact fees will be collected for the new location if the structure constitutes one of the land development uses listed in this section, regardless of whether public safety impact fees have been paid at the old location, unless the use at the new location is a replacement of an equivalent use. If the structure moved is replaced by an equivalent use, no public safety impact fee are owed for the replacement use. In every case, the burden of providing past payment of public safety impact fees or equivalency of use rests with the feepayer.

(i)

The city may grant fire and rescue impact fee credits to a developer or property owner in exchange for the construction and transfer, to the city, of permanent utility facilities related to the city's existing potable water transmission/distribution system that are enlarged (up-sized) to provide fire protection to a developer or property owner's property. The city shall utilize an engineer's estimate of probable cost or actual cost of the donated facility to determine the amount of the fire and rescue impact fee credit. The hydraulic share of the existing potable water main shall be deducted from the enlarged (up-sized) potable water main cost when determining the amount of the fire and rescue impact fee credit. Fire and rescue impact fee credits shall be provided for commercial buildings or multi-family dwellings that utilize the increased hydraulic share for fire suppression purposes. Fire and rescue impact fee credits shall not be provided for single-family dwellings or duplexes. The amount of fire and rescue impact fee credits granted for any property shall not exceed the anticipated fire and rescue impact fees to be collected from that property. For properties not obtaining building permits at the time the transfer of the enlarged (up-sized) potable water main is made, estimates of anticipated fire and rescue impact fees shall be used to determine the amount of the credit. The method by which the credits were determined shall be contained in the development agreement or PDP development order applicable to the property.

(Ord. 87-05; 6-13-2005; Ord. 47-06, 6-5-2006; Ord. 16-87, 5-27-1987; Ord. 83-87, 10-19-1987; Ord. 34-17, § 1, 10-16-2017)

(a)

Refunds of public safety impact fees paid hereunder may be allowed upon application therefore when it is determined that no construction has occurred and the building permit issued for the construction is expired or canceled. No interest shall be paid by the city on impact fees refunded.

(Ord. 47-06, 6-5-2006)

(b)

In the event that any structure has special fire safety needs because of size or type of construction or the use thereof, special fire and rescue impact fees shall be paid to the city. Those impact fees shall be an amount necessary to permit the acquisition of any equipment or other capital asset necessary for the safe provision of fire protection services to the structure, as determined by the City Council. That impact fee shall be in addition to any other fee imposed hereunder and shall be paid prior to the issuance of a building permit for the structure. Alternatively, the owner or developer of the construction may provide to the city the equipment or capital assets as determined to be needed because of the construction.

(Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

(a)

(1)

There are hereby established three separate and distinct trust funds for monies collected by imposition of the City of Cape Coral public safety impact fees.

(2)

There shall be a fire and rescue impact fee trust fund, a police protection impact fee trust fund and an ALS impact fee trust fund.

(3)

The money from these trust funds shall be used solely for payment for the cost of the capital expansion of the city's public safety equipment and facilities, and may not be used for the costs of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of any existing facility to meet the service needs of existing users.

(Ord. 47-06, 6-5-2006)

(b)

Any interest earned on monies deposited in these trust funds shall be credited to the applicable fund.

(Ord. 16-87, § 1, 5-27-1987; Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

(a)

The funds accumulated by reason of the collection of Fire and Rescue impact fees shall be used only for the purchase of fire capital improvements consisting of land, buildings, vehicles and equipment for fire fighting and fire protection services necessary for the protection of the public.

(Ord. 47-06, 6-5-2006)

(b)

The funds accumulated by reason of the collection of police protection impact fees shall be used only for the purchase of capital improvements consisting of land, buildings, vehicles and equipment for police protection services to benefit the public.

(Ord. 47-06, 6-5-2006)

(c)

The funds accumulated by reason of the collection of ALS impact fees shall be used only for the purchase of capital improvements consisting of land, buildings, vehicles and equipment for ALS services to benefit the public.

(Ord. 47-06, 6-5-2006)

(d)

Disbursement of funds and investments. Monies may be disbursed from the trust funds established by this section in the customary manner in accordance with law. Any funds on deposit in any of the trust funds which are not reasonably contemplated to be immediately needed for the purposes intended, may be invested by the city's financial services department from time to time in investments in accordance with the city's investment policies. Any interest or proceeds received from the investment of the funds shall become part of the fund and may not be used for any other purpose.

(Ord. 16-87, § 1, 5-27-1987; Ord. 52-97, 8-15-1997; Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

The public safety impact fees shall be reviewed by the City Council annually.

(Ord. 16-87, § 1, 5-27-1987; Ord. 81-01, 10-9-2001; Ord. 47-06, 6-5-2006)

(a)

The City Council hereby finds that:

(1)

The city's existing parks and recreation system is not sufficient to accommodate anticipated new development without decreasing the level of service;

(2)

Existing recreational facilities impact fees and other existing revenue sources are not sufficient to fund the acquisition of land and the improvement of sites already dedicated or purchased at the level necessary to accommodate new development;

(3)

New development should contribute its fair share of the costs of providing adequate quantities of additional land, and funds for the construction of new facilities upon that land, necessary to avoid degradation of the level of service for parks and recreational facilities;

(4)

Impact fees provide a reasonable method of ensuring that new development pays its fair share of the capital costs of services and facilities necessary to accommodate new development; and

(5)

The impact fees set forth herein establish an equitable method of apportioning to new residential development that part of the cost of land for, and improvements to, new park and recreational facilities made necessary solely by reason of new residential development.

(b)

The purpose of this division is to require new development to pay its fair share of the anticipated costs of public parks and recreation facilities necessary to serve new development. In order to finance necessary new capital improvements and to purchase land suitable for parks and recreation purposes, it is hereby deemed necessary to require new development to pay a recreational facilities impact fee, the amount of which does not exceed a pro rata share of the reasonably anticipated expansion costs of new parks and recreation facilities.

(Ord. 124-02, 12-16-2002)

Unless the context specifically indicates otherwise the meaning of terms used in this section shall be as follows:

COMMUNITY PARK. A highly developed facility emphasizing active, organized and supervised recreation, designed to accommodate the broadest possible usership, including all age groups and special needs populations. Passive recreation activities may also be present, but will not be the main focus of the park. Each community park will have one or more major attractions, facilities or activities that are unique to it. A COMMUNITY PARK will serve the entire city. A COMMUNITY PARK is typically a minimum of 20 acres.

(Ord. 68-90, 9-10-1990; Ord. 124-02, 12-16-2002)

MAJOR PARK. A parcel of land served by arterial roads, designed to serve the outdoor recreational needs of the entire city. MAJOR PARKS emphasize supervised, passive recreation, such as hiking, fishing, camping, riding trails and nature study. Minimum size is 200 acres.

RECREATIONAL FACILITY. A facility or area designed and used for sport, entertainment, or games of skill and includes, but is not limited to, golf courses, swimming pools, skating rinks and shuffleboard courts.

(Ord. 124-02, 12-16-2002)

RECREATIONAL PARKS MAP. The city recreational parks map identifying all real property parks in the city.

(Ord. 68-90, 9-10-1990)

RESIDENTIAL DWELLING UNIT. Includes each single-family dwelling and each unit of apartment, duplex or multiple dwelling structure designed as a separate habitation for one or more persons, whether temporarily or permanently utilized or designed or intended to be utilized for human habitation.

SPECIAL PARK. A highly developed, automobile accessible, specialized facility designed to accommodate the supervised recreational needs of residents throughout the city. An example of a SPECIAL PARK is a specialized sports complex such as softball or football facilities, center for performing arts and other highly-focused, specialized activities.

UNIT. A parcel of land located within the city, whether or not a part of a recorded subdivision, and identified by a numerical or letter code, as shown and recorded in the official plat books of the city.

(Ord. 50-87, § 1, 6-22-1987)

(a)

Any person who, after the effective date of this article, seeks to develop land by applying for issuance of a building permit for a residential dwelling as defined by this division, shall be required to pay a recreational facilities impact fee prior to the issuance of a building permit, or any other development permit for the construction of any structure to be used for a dwelling unit.

(Ord. 30-89, effective 8-12-1989; Ord. 79-00, § 1, 8-28-2000; Ord. 124-02, 12-16-2002)

(b)

The amount of the recreational facilities impact fee shall be $1,115 per residential dwelling unit.

(Ord. 124-02, 12-16-2002)

(c)

For major residential project proposed to be located in the vicinity of proposed parks, the City Council may determine that the intent of this article is best served by land dedication and/or recreation development in lieu of payment of the recreational facilities impact fee. The dedication of land and/or recreation development in lieu of payment of impact fees should be determined during the platting or site review process. A final determination shall be made by the City Council before final approval of the plat or site plan concerning the nature and extent of land dedication and/or recreational development in lieu of impact fees and the credit to be given therefor against recreational facilities impact fees due as provided herein. The value of the proposed land dedication and/or recreation development shall be established pursuant to a certified appraisal obtained by the city.

(Ord. 124-02, 12-16-2002)

(d)

Any feepayer applying for issuance of a building permit, may at his or her option, submit evidence to the City Council indicating that the fee set out in the fee calculation table above is not applicable to the particular property. Based upon convincing and competent evidence, the City Council may adjust the fee as appropriate for the particular property.

(e)

That the city hereby adopts by reference as if fully set forth herein the City of Cape Coral Recreational Parks District Map identifying all parks in the city. A copy of the city recreational parks map is attached as an appendix to this chapter.

(f)

The following shall be exempt from payment of the recreational facilities impact fee:

(1)

Non-residential structures;

(2)

Alterations to or expansion of an existing residential dwelling unit where no additional units are created and the use is not changed;

(3)

The construction of accessory buildings or structures that will not produce additional residential dwelling units; and

(4)

The replacement of a residential dwelling unit with a new residential dwelling unit.

(Ord. 50-87, § 1, 6-22-1987; Ord. 68-90, 9-10-1990; Ord. 124-02, 12-16-2002)

(g)

When a structure is moved from one location to another, a recreational facilities impact fee will be collected for the new location if the structure constitutes one of the land development uses listed in this section, regardless of whether recreational facilities impact fees have been paid at the old location, unless the use at the new location is a replacement of an equivalent use. If the structure moved is replaced by an equivalent use, no recreational facilities impact fee is owed for the replacement use. In every case, the burden of proving past payment of recreational facilities impact fees or equivalency of use rests with the feepayer.

(Ord. 87-05, 6-13-2005)

Refunds of recreational parks facilities impact fees paid hereunder may be allowed upon application therefor when it is determined that no construction has occurred and the building permit issued for the construction is expired or canceled. No interest shall be paid by the city on impact fees refunded.

(Ord. 50-87, § 1, 6-22-1987)

(a)

The funds accumulated by reason of the collection of the recreational facilities impact fee shall be used only for the purchase of recreational capital improvements consisting of land, buildings, vehicles and equipment for recreation facilities and major, community and special parks.

(b)

Funds previously collected for community parks, under this article, shall be maintained in a separate account and shall be used only for community parks.

(c)

Funds previously collected for major parks, under this article shall be maintained in a separate account and shall be used only for major parks.

(Ord. 50-87, § 1, 6-22-1987; Ord. 68-90, 9-10-1990; Ord. 124-02, 12-16-2002)

(a)

Trust fund established. It is hereby established a "recreational parks facilities improvement trust fund" for monies collected by imposition of the city recreational parks facilities impact fees. All recreational parks facilities impact fees received by the city shall be deposited in the "Recreational Parks Facilities Improvement Trust Fund" to be held separately and to be used for the purposes as set forth in this article. The money from the trust fund shall be used solely for payment for the cost of the expansion of city's recreational parks facilities, and may not be used for the costs of operation, maintenance, repair, replacement, rehabilitation, renewal or upgrading of any existing facility to meet the service needs of existing users. Impact fees may be used to pay the principal, interest and other costs of bonds, notes and other obligations issued or undertaken by or on behalf of the city to finance capital improvements.

(Ord. 124-02, 12-16-2002)

(b)

Disbursement of funds and investments. Monies may be disbursed from the trust funds established by subsection (a) above. in the customary manner in accordance with law, with the added requirement that the disbursement of the funds must be approved by the City Council. Any funds on deposit in the Recreational Parks Capital Improvement Trust Fund which are not reasonably contemplated to be needed for the purposes intended within a reasonable time from the date of the investment, the funds may be invested from time to time in investments authorized by law. Any interest or proceeds received from the investment of the funds shall become part of the fund and may not be used for any other purpose.

(Ord. 50-87, § 1, 6-22-1987)

(a)

The City Manager shall report annually to the City Council indicating the fees collected and the fees distributed and the basis for computing the fees under this article.

(b)

The City Council shall review the report and continue or adjust the fees as appropriate.

(Ord. 50-87, § 1, 6-22-1987)

(a)

This division shall be known and may be cited as the City of Cape Coral "Roads Impact Fee Ordinance".

(b)

The City Council has the authority to adopt this division pursuant to Article VIII of the Constitution of the State of Florida and F.S. Chapter 166.

(c)

This division shall apply within the territorial boundaries of the city as they now exist or may exist in the future as a result of expansion or reduction by annexation or contraction of the municipal boundaries.

(Ord. 102-88, 10-17-1988)

(a)

This division is intended to implement and be consistent with the City of Cape Coral Comprehensive Plan.

(b)

The purpose of this division is to regulate the use and development of land so as to assure that new development bears a proportionate share of the cost of capital expenditures necessary to provide roads in the city as contemplated by the City of Cape Coral Comprehensive Plan.

(Ord. 102-88, 10-17-1988)

(a)

The provisions of this division shall be liberally construed so as to effectively carry out its purpose in the interest of the public health, safety and welfare.

(b)

For the purposes of administration and enforcement of this division, unless otherwise stated in this division, the following rules of construction shall apply to the text of this division.

(1)

In case of any difference of meaning or implication between the text of this article and any caption, illustration, summary table or illustrative table, the text shall control.

(2)

The word "shall" is always mandatory and not discretionary; the word "may" is permissive.

(3)

Words used in the present tense shall include the future; and words used in the singular number shall include the plural, and the plural the singular, unless the context clearly indicates the contrary.

(4)

The phrase "used for" includes "arranged for," "designed for," "maintained for" or "occupied for".

(5)

The word "person" includes an individual, a corporation, a partnership, an incorporated association or any other similar entity.

(6)

Unless the context clearly indicates the contrary, where a regulation involves two or more items, conditions, provisions or events connected by the conjunction "and," "or" or "either...or", the conjunction shall be interpreted as follows:

a.

"And" indicates that all the connected terms, conditions, provisions or events shall apply

b.

"Or" indicates that the connected items, conditions, provisions or events may apply singly or in any combination.

c.

"Either...or" indicates that all the connected items, conditions, provisions or events shall apply singly but not in combination.

(7)

The word "includes" shall not limit a term to the specific example but is intended to extend its meaning to all other instances or circumstances of like kind or character.

(8)

"City Manager" means the City Manager and/or his or her designee.

(9)

Any road right-of-way used to define roads impact fee district boundaries may be considered to be within any district it bounds for purposes of using these funds.

(10)

The land use types listed in § 2-24.26 below shall have the same meaning as under the city's zoning regulations. A mobile or manufactured home that is not located in a mobile home or recreational vehicle park shall be considered a single-family detached dwelling for purposes of road impact fees.

(Ord. 102-88, 10-17-1988; Ord. 75-05, 5-31-2005, effective 9-1-2005)

For the purpose of this division, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CAPITAL IMPROVEMENT. Includes transportation planning, preliminary engineering, engineering design studies, land surveys, right-of-way acquisition, engineering, permitting and construction of all the necessary features for any road construction project that adds capacity to roads that the city determines are functioning as arterial or collector roads or that relieves the capacity on roads that the city determines are functioning as arterial or collector roads, including:

(1)

Construction of new through lanes;

(2)

Construction of new turn lanes;

(3)

Construction of new bridges;

(4)

Construction of new drainage facilities in conjunction with new roadway construction;

(5)

Purchase and installation of traffic signalization (including new and upgrading signalization);

(6)

Construction of curbs, medians, shoulders, sidewalks and bikelanes in conjunction with new roadway construction;

(7)

Relocating utilities to accommodate new roadway construction; and

(8)

Services and utilities incidental thereto.

EXPANSION OF THE CAPACITY OF A ROAD. Applies to all road and intersection capacity enhancements and includes but is not limited to extensions, widening, intersection improvements and upgrading signalization.

(Ord.75-05, 5-31-2005, effective 9-1-2005)

FEE PAYER. A person commencing a land development activity which generates traffic and which requires the issuance of a building permit.

INDEPENDENT FEE CALCULATION STUDY. The traffic engineering and/or economic documentation prepared by a fee payer to allow the determination of the impact fee other than by the use of the table in § 2-24.26 below.

LAND DEVELOPMENT ACTIVITY GENERATING TRAFFIC. Any change in land use, or any construction of buildings or structures, or any change in the use of any structure that attracts or produces vehicular trips.

LEVEL OF SERVICE. A qualitative measure that represents the collective factors of speed, travel time, traffic interruption, freedom to maneuver, safety, driving comfort and convenience, and operating costs provided by a highway facility under a particular volume condition. Levels of service vary from "A" to "F." "Level of Service "C" describes a roadway condition of stable flow, but where volume and density levels place restriction on drivers' speed, lane changing and passing.

ROAD. The same meaning as set forth in F.S. § 334.03(23).

SITE-RELATED IMPROVEMENTS. Capital improvements and right-of-way dedications for direct access improvements to the development in question. Direct access improvements include but are not limited to the following:

(1)

Site driveways, roads and alleys;

(2)

Right and left turn lanes leading to those driveways;

(3)

Traffic control measures for those driveways;

(4)

Frontage roads; and

(5)

Roads necessary to provide direct access to the development.

(Ord. 102-88, 10-17-1988; Ord. 75-05, 5-31-2005, effective 9-1-2005)

(a)

Any person who, after the effective date of this division, seeks to develop land by applying for the issuance of a building permit to make an improvement to land which will generate additional traffic shall be required to pay a roads impact fee in the manner and amount set forth in this article.

(b)

Except as provided in § 2-24.26(a)(5), no building permit for any activity requiring payment of an impact fee pursuant to § 2-24.26 below shall be issued unless and until the roads impact fee hereby required has been paid.

(c)

(1)

When a structure is moved from one location to another, a roads impact fee will be collected for the new location if the structure constitutes one of the land development uses listed in § 2-24.26 below, regardless of whether roads impact fees have been paid at the old location, unless the use at the new location is a replacement of an equivalent use.

(2)

If the structure moved is replaced by an equivalent use, no roads impact fee is owed for the replacement use. In every case, the burden of proving past payment of roads impact fees or equivalency of use rests with the feepayer.

(Ord. 102-88, 10-17-1988; Ord. 87-05, 6-13-2005; Ord. 5-11, 2-28-2011)

(a)

Payment by fee schedule.

(1)

At the option of the fee payer, the amount of the fee may be determined by utilizing the following fee schedule:

(Ord. 102-88, 10-17-1988; Ord. 55-92, 9-8-1992; Ord. 40-95, effective 1-1-1996; Ord. 82-01, 10-9-2001; Ord. 93-03, 9-15-2003; Ord. 75-05, 5-31-2005, effective 9-1-2005)

(Ord. 77-06, 6-12-2006, effective 9-1-2006)

(2)

If a building permit is requested for a building with mixed uses, then the fee shall be determined through using the above schedule by apportioning the space committed to uses specified on the schedule.

(3)

If the type of development activity for which a building permit is applied is not specified on the above fee schedule, the City Manager shall use the fee applicable to the most nearly comparable type of land use on the above fee schedule. The City Manager shall be guided in the selection of a comparable type by the latest version of the Institute of Transportation Engineers Trip Generation, An ITE Informational Report. If the City Manager determines that there is no comparable type of land use on the above fee schedule, then the City Manager shall determine the fee by:

(Ord. 82-01, 10-9-2001; Ord. 88-02, 9-9-2002; Ord. 93-03, 9-15-2003; Ord. 75-05, 5-31-2005, effective 9-1-2005; Ord. 5-11, 2-28-2011)

a.

Using traffic generation statistics contained in the latest version of the Institute of Transportation Engineers Trip Generation, An ITE Informational Report (a copy of said report shall be maintained on file in the City Clerk's Office); and

(Ord. 82-01, 10-9-2001; Ord. 5-11, 2-28-2011)

b.

Applying the formula set forth in subsection (b) below.

(4)

Except as provided in § 2-24.26(a)(5), when there is a change of use, redevelopment, or modification of an existing use which requires the issuance of a building permit, the impact fee shall be based upon the net increase in the impact fee for the new use as compared to the previous use. The City Manager shall be guided in this determination by the latest version of the Institute of Transportation Engineers Trip Generation, An ITE Informational Report.

(Ord. 82-01, 10-9-2001; Ord. 5-11, 2-28-2011)

(5)

The City of Cape Coral hereby establishes a Change in Use for Existing Buildings Program by which, until April 30, 2015, unless extended for an additional period of time at the sole discretion of City Council through a resolution, the City of Cape Coral will not assess additional roads impact fees related to one or more changes of use within existing buildings provided they meet the following criteria:

a.

The change of use is located in a lawfully existing building which has had a certificate of occupancy for non-residential uses or a certificate of use for a model home site use issued prior to the creation of this program. The city will not assess additional roads impact fees related to a change of use for a non-residential use within such lawfully existing building regardless of the number of times the use may change within the effective period of the Change in Use for Existing Buildings Program. In the event an application for a building permit related to a proposed change of use was submitted to the city prior to the establishment of the Change in Use for Existing Buildings Program, but the building permit has not been issued at the time the program is established, then the change in use will be eligible for participation in this program and shall not be assessed additional roads impact fees provided that all other criteria for participation in the program are met.

b.

The applicable roads impact fees for the existing building must have been paid in full at the time the building was constructed or, if deferred at the time of construction, the roads impact fee related to the building or any part thereof, such as a unit, in which the change of use is proposed to locate must be paid in full prior to the issuance by the city of a building permit for the new use. Alternatively, the existing building is eligible if it was constructed and any uses in it were located there prior to the date the city began imposing roads impact fees so that no impact fees have ever been charged for the building or any of its uses prior to the establishment of the Change in Use for Existing Buildings Program.

c.

The existing building is not being expanded and shall not be expanded prior to the date the Change in Use for Existing Buildings Program terminates, except as follows:

1.

Interior renovation of the existing building is allowed regardless of whether such interior renovation increases the occupiable space or allowable occupancy of the building.

2.

Expansion of the building through means other than interior renovation, such as by the construction of one or more additional floors or by the construction of one or more additional rooms beyond the footprint of the existing building, is allowed, but the expansion shall not be eligible for participation in the Change in Use for Existing Buildings Program and shall be fully assessed roads impact fees based on the area and use of the expansion. Furthermore, in the event a new building is constructed on the same site as the existing building which qualified for and participates in the Change in Use for Existing Buildings Program, such new building is not eligible to participate in the Change in Use for Existing Buildings Program and shall be fully assessed roads impact fees based on the area and use of such building.

d.

The change of use must be consistent with the zoning of the property and other land development regulations. Nothing in this subsection shall be construed as to permit a change in use as to zoning or a waiver of any other land development regulations.

(Ord. 57-13, 10-28-2013)

(6)

Following the expiration of the Change in Use for Existing Buildings Program, when a change of use, redevelopment, or modification of an existing use which requires the issuance of a building permit occurs in a building which had previously participated in the Change in Use for Existing Buildings Program, the city shall not issue a building permit except upon the payment of an impact fee based upon the net increase in the impact fee for the new use as compared to the previous use pursuant to § 2-24.26(a)(4), with the following provisions:

a.

If the proposed change of use is within the same category of non-residential use as the last use for which the city had issued a certificate of use in the building and for which the city had not assessed an increase in road impact fees pursuant to the Change in Use for Existing Buildings Program, then no additional impact fee shall be assessed.

b.

For purposes of calculating the net increase in the impact fee for the new use as compared to the "previous use" for buildings which had participated in the Change in Use for Existing Buildings Program and which do not qualify for non-assessment of increased road impact fees pursuant to § 2-24.26(a)(6)a., the "previous use" shall be the last use in the building or unit for which impact fees had been paid and which is now the site of the new proposed use.

c.

In the event the building had been expanded through means other than interior renovation during its participation in the Change in Use for Existing Buildings Program as provided in § 2-24.26(a)(5)(c)2. and been assessed and paid roads impact fees related to such expansion, the change of use, redevelopment, or modification of an existing use in the expansion area which requires the issuance of a building permit shall be assessed an impact fee in accordance with § 2-24.26(a)(4) based upon the net increase in the impact fee for the new use in the expansion area as compared to earlier use(s) in the expansion area for which roads impact fees have been paid.

(Ord. 5-11, 2-28-2011)

(b)

Other determination. If a fee payer shall opt not to have the impact fee determined according to subsection (a) above, then the fee payer shall prepare and submit to the City Manager an independent fee calculation study for the land development activity for which a building permit is sought. The traffic engineering and/or economic documentation submitted, which will require a preapplication meeting with the City Manager shall show the basis upon which the independent fee calculation was made including the following:

(1)

Traffic engineering studies:

a.

Documentation of trip generation rates appropriate for the proposed land development activity;

b.

Documentation of trip length appropriate for the proposed land development activity; and

c.

Documentation of primary trip percentage data appropriate for the proposed land development activity.

(2)

Documentation of credits attributable to the proposed land development activity which can be expected to be available to replace the portion of the service volume used by the traffic generated by the proposed land development activity.

(3)

This documentation shall be prepared and presented by qualified professionals in their respective fields.

a.

The following formula shall be used by the City Manager to determine the impact fee per unit of development:

Impact Fee = VMT x Net Cost/VMT

b.

Where:

1.

VMT = Vehicle-mile of travel = ADT x % NEW x LENGTH x ADJUST ÷ 2;

2.

ADT = Trip ends during average weekday;

3.

% NEW = Percent of trips that are primary trips, as opposed to passby or diverted-link trips;

4.

LENGTH = Average length of a trip on the major roadway system;

5.

ADJUST = Adjustment factor to calibrate national travel demand factors to local conditions;

6.

÷ 2 = Avoids double-counting trips for origin and destination

7.

NET COST/VMT = COST/VMT - CREDIT/VMT

8.

COST/VMT = COST/LANE-MILE ÷ AVG LANE CAPACITY;

9.

COST/LANE-MILE = Average cost to add a new lane-mile to the major roadway system;

10.

AVG LANE CAPACITY = Average daily capacity of a lane;

11.

CREDIT/VMT = $/GAL ÷ MPG x 365 x NPV + DEBT CREDIT/VMT;

12.

$/GAL = Capacity-expanding funding for roads per gallon of gasoline consumed;

13.

MPG = Miles per gallon, average for U.S. motor vehicle fleet;

14.

365 = Days per year (used to convert daily VMT to annual VMT);

15.

NPV = Net present value factor; and

16.

DEBTCREDIT/VMT = Net present value per VMT of future principal payments on outstanding debt for past capacity improvements to the major road system.

(c)

In lieu of the payment of the roads impact fee set forth in subsection (a) above or as prepared and submitted by the payer under subsection (b) above, at the option of the payer, the payer may submit evidence to the City Council indicating that the roads impact fee set by the ordinance or as determined through subsections (a) and (b) above is not applicable to the payer's particular case. Based upon convincing and competent evidence, the City Council may thereafter adjust the roads impact fee as appropriate for the particular payer.

(Ord. 75-05, 5-31-2005, effective 9-1-2005)

(a)

The person applying for the issuance of a building permit, shall pay the roads impact fee payable to the city.

(b)

All funds collected shall be properly identified and promptly transferred for deposit into the road impact fee trust fund to be held in a separate account as determined by this article and used solely for the purposes specified herein.

(c)

(1)

In lieu of all or part of the roads impact fee, the City Council may accept the offer by a fee payer to construct all or part of a road construction project shown in the City of Cape Coral Comprehensive Plan or appropriate to the implementation thereof.

(2)

This offer shall not include site-related improvements. The construction must be in accordance with city or state design standards whichever is applicable.

(3)

The fee payer shall submit a project description and engineering and construction cost estimate. The City Manager shall submit a recommendation to the City Council. If the City Council accepts such an offer, the city shall credit the cost of this construction against the road impact fee otherwise due.

(4)

The portion of the fee represented by the roads construction shall be deemed paid when the construction is completed and accepted by the city, county or state for maintenance or when the fee payer posts security as provided below for the costs of the construction.

(5)

Security in the form of a performance bond, irrevocable letter of credit or escrow agreement shall be posted with the City Clerk made payable to the City of Cape Coral in an amount approved by the City Manager equal to 110% of the full cost of the construction. If the road construction project will not be constructed within one year of the acceptance of the offer by the City Council, the amount of the security shall be increased by ten percent compounded, for each year of the life of the security. The security shall be reviewed and approved by the city attorney's office prior to acceptance of the security by the City Council.

(Ord. 102-88, 10-17-1988)

(a)

There are hereby established a roads impact fee trust fund.

(b)

Funds withdrawn from this account must be used in accordance with the provisions of § 2-24.29 below.

(Ord. 102-88, 10-17-1988)

(a)

Funds collected from roads impact fees shall be used for the purpose of capital improvements to and expansion of road improvements in the city. Those improvements shall be of the type as are made necessary by the new development.

(b)

No funds shall be used for periodic or routine maintenance as defined in F.S. § 334.03(19) and (24).

(c)

All funds shall be used exclusively for capital improvements or expansion within the city from which funds were collected. Funds shall be expended in the order in which they are collected.

(d)

Each fiscal year the City Manager shall present to the City Council a proposed capital improvement program for roads, assigning funds, including any accrued interest, from the roads impact fee trust funds to specific road improvement projects and related expenses. Monies, including any accrued interest, not assigned in any fiscal year shall be retained in the roads impact fee trust fund until the next fiscal period except as provided by the refund provisions of this article.

(e)

The city shall be entitled to retain three percent of all impact fee funds it collects as an administrative fee to offset the costs of administering this article.

(Ord. 102-88, 10-17-1988)

(a)

If a building permit expires and no construction has been commenced, then the fee payer shall be entitled to a refund of the impact fee paid as a condition for its issuance except that the city shall retain 6% of the funds as an administrative fee to offset the costs of collection and refund.

(b)

Any funds not expended or encumbered by the end of the calendar quarter immediately following ten years from the date the roads impact fee was paid shall, upon application of the fee payer within 180 days of that date, be returned to the fee payer without interest.

(Ord. 102-88, 10-17-1988)

(a)

Exemptions. The following shall be exempted from payment of the roads impact fee:

(1)

Alterations or expansion of an existing building where no additional units are created, the use is not changed, and where no additional vehicular trips will be produced over and above that produced by the existing use;

(2)

The construction of accessory buildings or structures which will not produce additional vehicular trips over and above that produced by the principal building or use of the land; and

(3)

The replacement of a building or structure with a new building or structure of the same use provided that no additional trips will be produced over and above those produced by the original use of the land.

(b)

Credits.

(1)

No credit shall be given for site related improvements.

(2)

All non-site related roadway improvements and/or non-site related right-of-way dedications required under a city development approval, may entitle the feepayer to a credit. Only those off-site improvements and/or right-of-way dedications deemed appropriate and beneficial to the overall level of service and/or roadway capacity will be eligible for credits. The city shall determine the estimated or actual cost of non-site-related roadway improvements by using actual cost or the engineer's estimate. The value of right-of-way dedications shall be determined by a certified appraisal performed by an appraiser who is acceptable to the city. The appraisal shall be at the expense of the property owner. For developments that are not going to obtain building permits at the time the improvements or dedications are made, estimates of anticipated impact fee amounts shall be used to determine the amount of impact fee credits and the method by which those credits were determined shall be contained in a development agreement or PDP development order. The amount of impact fee credits granted for any property shall not exceed the anticipated road impact fees to be collected from that property.

(Ord. 102-88, 10-17-1988; Ord. 73-93, 10-25-1993; Ord. 82-01, 10-9-2001)

(3)

Impact fee credits shall be granted only after acceptance of the right-of-way dedication, acceptance by the city of the completed roadway improvements, or the posting of security to ensure the construction of the roadway improvements as provided in § 2-24.27(c) above.

(Ord. 73-93, 10-25-1993)

(4)

Road impact fee credits may, at the option of the property owner, be in transferable form. Transferable credits may be sold, assigned or otherwise conveyed by the holder thereof. Credits may be used by any bona fide holder thereof to pay for or otherwise offset road impact fees required by this article, provided, however, that road impact fee credits issued for commercial developments may only be used to pay for impact fees due for commercial development. In instances where impact fee credits are issued for mixed use developments, the amount of commercial impact fees shall be allocated based on the number of trips projected to be generated by the commercial uses in the mixed use development. Changes in the amount of impact fees charged under this article shall not affect the dollar value of impact fee credits which have been issued. Impact fee credits must be used within fifteen years of the date they are created. Credits not used during this period shall be canceled by the city. Transferred impact fee credits may not be used to satisfy any concurrency requirements.

(Ord. 73-93, 10-25-1993; Ord. 75-05, 5-31-2005, effective 9-1-2005; Ord. 55-16, § 1, 12-5-2016)

(5)

Credits not claimed by the feepayer at the time creditable improvements are constructed or when right-of-way is dedicated shall be deemed waived.

(Ord. 73-93, 10-25-1993)

(6)

Once used, credits shall be canceled by the city and shall not be re-established even if the permit for which they were used expires without construction.

(Ord. 73-93, 10-25-1993)

(a)

The road impact fee structure shall be reviewed by the City Council every three years. Beginning on September 1, 2005, the city shall commence a three year road impact fee update cycle. In accordance with this cycle, the City Manager shall prepare a comprehensive re-analysis of the road impact fees and present the study and revised ordinance to the City Council prior to September 1, 2008.

(b)

In each of the two mid-cycle years (between the formal three year updates), the City Manager will prepare and present to the City Council for approval, modification or denial, automatically adjusted road impact fees to account for cost inflation. If approved by City Council, the first automatic update of the fees shall become effective on September 1, 2006. The City Manager shall calculate adjustments to the road impact fee rates based upon the percentage change in the Engineering News-Record construction cost index for the preceding 12 month period, and the percentage change in the city-wide total just land value established by the Lee County property appraiser's office. The construction cost index factor shall be weighted 75% and the land cost factor shall be weighed 25% in determining the weighted percentage adjustment to be applied to the road impact fees.

(Ord. 102-88, 10-17-1988; Ord. 75-05, 5-31-2005, effective 9-1-2005)

(a)

This division shall be known and may be cited as the City of Cape Coral " Mobility Fee Ordinance".

(b)

The City Council has the authority to adopt this division pursuant to Article VIII of the Constitution of the State of Florida and F.S. Ch. 166.

(c)

This division shall apply within the territorial boundaries of the city as they now exist or may exist in the future as a result of expansion or reduction by annexation or contraction of the municipal boundaries.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

This division is intended to establish the Cape Coral Mobility Fee system to serve as an alternative transportation system, consistent with F.S. § 163.3180, that replaces transportation concurrency, proportionate share, and road impact fees with a mobility fee, based on mobility projects identified in the Mobility Plan, allows new development in compliance with the Comprehensive Plan to share in the burdens of growth and to equitably mitigate its off-site impact to the multimodal transportation system through payment of a mobility fee.

(b)

The purpose of this division is to ensure new development pays an attributable share of the reasonably anticipated costs of mobility projects that are needed to accommodate the growth in person travel demands created by new development consistent with the needs requirement of the dual rational nexus test.

(c)

The imposition, exemption, determination, credits, collection, expenditure, administration, implementation, maintenance, and update of the mobility plan and mobility fee shall be collectively referred to as the Cape Coral Mobility Fee system.

(d)

The imposition of a mobility fee, assessed at building permit application, in an amount based upon the most recently adopted mobility fee schedule maintained by the city, will allow new development to equitably mitigate its impact to the city's multimodal transportation system, through a one-time payment of the mobility fee, that is proportional and reasonably connected to the person travel demand generated by new development, at the time of building permit issuance.

(e)

The mobility fee schedule is intended to reflect a mobility fee rate per applicable unit of measure in an amount that is based on the person travel demand attributable to new development, the person miles of capacity needed to serve that new development, and the cost of mobility projects established in the Mobility Plan.

(f)

The expenditure of mobility fees on mobility projects, identified in the Mobility Plan, will be prioritized by the City Council through the annual update of the Capital Improvement Program.

(g)

Mobility fees are intended to be expended within the mobility fee benefit district in which they are collected to ensure that new development receives a mobility benefit from the mobility fees that it paid consistent with the benefits requirement of the dual rational nexus test.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

The Cape Coral 2045 Mobility Plan (herein "Mobility Plan") dated August 2025 and prepared by NUE Urban Concepts, LLC and DDEC, LLC, has been reviewed and approved by the City Council and is incorporated into this division. This incorporation includes the mobility projects established in the Mobility Plan intended to provide the multimodal capacity needed to accommodate projected person travel demand increases from new development. The mobility projects serve as the basis for calculation of the mobility fee. The Mobility Plan shall be utilized by the city as a resource to recommend mobility projects for funding. The City Council will further prioritize the funding of mobility projects through the annual update of the Capital Improvements Program.

(b)

The Cape Coral 2045 Mobility Fee Technical Report (herein "Technical Report") dated August 2025 and prepared by NUE Urban Concepts, LLC, has been reviewed and approved by the City Council and is incorporated into this division. This incorporation includes, but is not limited to, the following: the increases in person miles of travel based on projected growth, the most recent and localized data used to calculate the mobility fee, the methodology for calculating the mobility fee, the multimodal capacity assigned to mobility projects and the subsequent person miles of capacity provided by those mobility projects, the cost of mobility projects, the roughly proportional person travel demand for land uses in the mobility fee schedule, and the mobility fee rates assigned to various land use categories, and the basis of the assumptions, conclusions, and findings in such report as to the basis of the mobility fee. The Technical Report demonstrates the technical analysis and detailed methodology supporting the mobility fees.

(c)

The Cape Coral Mobility Fee Extraordinary Circumstances Study dated July 2025 and prepared by NUE Urban Concepts, LLC, has been reviewed and approved by the City Council and is incorporated into this division. This incorporation includes the findings based on the extraordinary population growth of Cape Coral, the need for mobility plan projects to accommodate that growth, and the extraordinary construction cost inflation since the city last updated its road impact fee. The Extraordinary Circumstances Study establishes the findings of extraordinary circumstances to adopt mobility fees at the fully calculated rates, without a phase-in of the updated mobility fee rates, detailed in The City of Cape Coral Mobility Fee Technical Report dated August 2025.

(d)

The Mobility Plan, the Technical Report, and the Extraordinary Circumstances Study are maintained by and available upon request from the City Clerk's Department.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

Article 11 of the Land Development Code includes definitions for mobility fee specific terms used in this ordinance. The Technical Report also includes definitions of mobility terms used in the Mobility Plan and Technical Report, which are incorporated herein. Any defined terms in the Technical Report shall not supersede conflicting definitions in the Land Development Code for non-mobility fee purposes.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

The mobility fee imposed by the city shall apply to all building permit applications from new development that result in an increase in person travel demand.

(a)

Imposition. There is hereby imposed upon all new development a mobility fee assessed at the time of building permit application. Mobility fees shall be assessed at the mobility fee rate in effect at the time of application. The total mobility fee shall be assessed for all new development included as part of the building permit application.

(b)

Payment. The mobility fee shall be paid at the time of building permit issuance. No building permit requiring payment of a mobility fee shall be issued until said mobility fee has been paid except as otherwise herein provided. The obligations for payment of mobility fees shall run with the new development for which the building permit is requested. An applicant may voluntarily elect to pay the mobility fee at any time between the official assessment of mobility fees and the issuance of the building permit. To avoid the time and cost of processing refunds, the mobility fee shall not be paid prior to official assessment of mobility fees for a building permit application.

(c)

Unpaid fees. If mobility fees are owed, no new development building permits may be issued while the mobility fee remains unpaid. The city may authorize the initiation of any action as permitted by law or equity to collect the unpaid fees.

(d)

Calculation. The mobility fee shall be calculated based on the assessment area in which the development is located, the type of land use, and the applicable unit of measure detailed on the mobility fee schedule multiplied by the total number of units.

(e)

Change in use. A change in use that results in a more intense land use shall be required to pay the difference in mobility fees based on the current development and the proposed development. The determination of mobility fees shall be based on the assessment area, the existing and proposed land use, the unit of measure, and the total number of units.

(f)

Change in size. An increase in square footage for a land use where the unit of measure is illustrated per square foot or per 1,000 square feet will most likely result in an increase in person travel demand and a mobility fee assessment. A decrease in size will likely not result in a mobility fee assessment, unless there is also a change in use to a more intense land use that increases person travel demand. There may be limited instances where an increase in square footage, such as enclosing an HVAC system or constructing a mechanical room or complying with an order from the Fire Marshall that inadequate space is being provided at a place of assembly to meet fire code requirements.

(g)

Change in unit of measure. An increase in the number of units associated with a unit of measure other than square footage will most likely result in an increase in person travel demand and a mobility fee assessment. An increase in the number of rooms for overnight lodging or addition of a drive-thru lane for a fast-food restaurant would result in a mobility fee assessment. Reduction or removal of a unit of measure is addressed under mobility fee offsets.

(h)

Refund. If there is a change in size, use, or unit of measure that results in a decrease in person travel demand based on the existing use of land, the applicant shall not be entitled to a refund. The applicant may receive an offset to be applied against the assessed mobility fee for the proposed land use as part of redevelopment of an existing development.

(i)

Abandoned structures. A structure or use that is inactive and has been abandoned or vacant for a period of more than four years shall not be considered an existing or active use for purposes of calculating mobility fee offsets. Thus, person travel demand associated with the structure or use is no longer captured in the collected travel demand data that serves as a component to determine the need for mobility projects. The burden of demonstrating the existence of a use or structure shall be upon the applicant where an offset request is made.

(j)

Prior payment. For structures and uses considered to be active, any previous payment of road impact fees or mobility fees may be credited against the appropriate mobility fees owed as a result of a change of use or re-establishing a use of land or structure that has been abandoned or vacant. The burden of demonstrating the amount of road impact fee or mobility fee paid shall be upon the applicant where an offset request is made.

(k)

Request for credit or offset. Any request for credit or offsets of a mobility fee shall be made prior to submittal of a building permit application and shall be resolved prior to issuance of a building permit application, unless otherwise stated in a written agreement between the applicant and the City Manager or designee. Any credits or offsets not so claimed shall be deemed waived by the applicant. Credits would have been issued in exchange for construction of an off-site improvement or mobility project and would be documented in an agreement between the city and a development entity. Offsets are based on existing uses of land and development on that land that may be redeveloped. Credits and offsets may be further detailed in an administrative manual or administrative procedures established by the city.

(l)

Administration. The City Manager or designee, in consultation with the City Attorney, shall administer, implement, maintain, and update the Mobility Fee system on behalf of the city and shall have the authority to act regarding the imposition of the fee, payment of the fee, determination of credit or off-set utilization, or other such action to ensure that the imposition of mobility fee meets all legal and statutory requirements and to address unique circumstances that may arise from time to time that are not expressly addressed herein.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

A general exemption from liability for mobility fee assessment applies to all active building permits which were subject to payment of a road impact fees. All exempt developments shall have valid unexpired building permits as of the date of effective date of the Mobility Fee Ordinance. Any building permit application for a building permit in process as of the effective date of the Mobility Fee Ordinance shall also be exempt from mobility fee assessments, provided that a building permit is issued within one year of the effective date of the Mobility Fee Ordinance. The following specific types of new development will be exempt from liability for mobility fee assessments after the effective date, unless otherwise administratively determined to be subject to mobility fees:

(a)

Modifications. Additions, remodeling, rehabilitation, or other improvements to an existing residential structure, provided there is no increase in the square footage of a dwelling unit for residential land uses; or

(b)

Rebuilding. Rebuilding of a damaged or destroyed structure, provided there is no increase in the square footage for residential or non-residential uses, or increase in the number of units of measure for land uses where mobility fees are assessed on a unit other than square feet;

(c)

Change of use. A change in use that does not generate additional person travel demand; or

(d)

Amenities and ancillary uses. Development amenities and ancillary uses not available to the public and accessory structures that do not result in an increase in person travel demand and are not accessible to the public.

(e)

Governmental entity. A federal, state, county, municipal, or governmental entity structure, excluding community development districts or special districts. Public and charter schools for pre-K to 12th grade are exempt from mobility fees per Florida Statute; community colleges, colleges, and universities are not exempt.

(f)

Timing. Any claim of exemption must be made no later than the time of application for a building permit.

(g)

Administration. The City Manager or designee shall have the authority to act regarding declaring or revoking an exemption of the mobility fee to address unique circumstances that may arise from time to time that are not expressly addressed herein. Any request for exemptions shall be supported by substantial and competent evidence provided by the applicant at the time of the request.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Any person who shall initiate any new development that results in an increase in person travel demand, except as otherwise provided for herein, shall pay a mobility fee, based on the applicable assessment area, land use, and unit of measure, as set forth in the most recently adopted mobility fee schedule. The most recently adopted mobility fee schedule shall be maintained by the City Clerk's Department. The mobility fee schedule is provided in Table 2-24-1:

(b)

Assessment area. There are four Mobility Fee Assessment Areas with varying mobility fee rates. The four areas are as follows: (1) South Cape Core; (2) Southeast Infill; (3) Central Transitional; and (4) North Cape Reserve. The mobility fee assessed on new development shall be based on the assessment area in which the new development is located and the specific land uses established on the mobility fee schedule. The four areas are illustrated on the Mobility Fee Assessment Areas map. The map is included in the Technical Report, is attached as Exhibit "C" to the Mobility Fee Ordinance, is maintained and available upon request from the City Clerk's Department.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Determination. The mobility fee per land use shall be determined using the closest land use category on the mobility fee schedule.

(b)

Closest use determination. In the event a new development involves a land use not contemplated under the mobility fee land use categories on the mobility fee schedule, the mobility fee shall be determined utilizing the closest land use category based on the ITE Trip Generation Report.

(c)

Mixed-Use. In the event new development involves a mixture of land uses, the mobility fee shall be based on each separate mobility fee land use classification.

(d)

Assessment. The mobility fee shall be determined using the appropriate assessment area, land use category, land use classification, unit of measure, and mobility fee rate established on the mobility fee schedule.

(e)

Additive mobility fee. The total mobility fee for non-residential land uses with an additive mobility fee shall be based on the mobility fee assessed based on square footage and the mobility fee assessed based on the applicable unit of measure such as bay, lane, position, or stall.

(f)

Alternative land use. In the event an applicant disagrees with the mobility fee assessment based on the proposed land use, the applicant may submit an alternative land use determination application consistent with the criteria established in the administrative manual.

(g)

Alternative mobility study. In the event an applicant believes that the cost to mitigate the impact of new development is less than the mobility fee established in the mobility fee schedule, the applicant may submit an alternative mobility fee study application.

(h)

Prior approved development. New development activity approved prior to the effective date of the mobility fee that entered into a developer agreement or other agreement with the city that exempted the new development from some or all of a proportionate fair share or road impact fee payment shall be required to mitigate its impact as required in the agreement.

(i)

CityDetermination. The City Manager or designee, in consultation with the City Attorney, shall have the authority to act regarding determination of use, request to reconsider determinations, use of credit or off-sets, acceptance of alternative studies, payment of the fee, timing of payment, updates of the fee that result in a reduction, and to address unique circumstances that may arise from time to time that are not expressly addressed herein. A fee adjustment may be granted upon the submittal of an independent mobility or traffic impact study, which shall be completed and prepared by a certified/qualified professional, at the applicant's sole expense. Such study must be reviewed and approved by the City Manager, or designee, to determine the eligibility of a potential fee adjustment.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Request. In lieu of the payment of mobility fees, an applicant may request to enter into a developer agreement to advance a mobility project identified in the mobility plan or capital improvements program.

(b)

Impact. New development activity shall be presumed to generate the maximum impact generated by the most intensive use permitted under the applicable land use consistent with the Comprehensive Plan or development order approvals.

(c)

Credit account. A mobility fee credit account may be established against which mobility fees assessments from new development within the overall proposed development would be debited against at a time period defined in the agreement; or

(d)

Benefit district. A development specific benefit district may be established in which subsequent new development would pay the assessed mobility fee, and the development would be reimbursed from the mobility fees collected within the benefit district at time periods defined in the agreement.

(e)

Application. The City Manager or designee shall create and implement an administrative manual or administrative procedures which shall detail the application requirements for the agreement, as well as the schedule and approval process.

(f)

Administration. The City Manager or designee, in consultation with the City Attorney, shall determine the process, requirements, and time frame for agreements until such time as an administrative manual or administrative procedures are developed.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Road impact fee credits. Development with road impact fee credits granted prior to the effective date of the mobility fee ordinance shall draw down on those credits based on the last effective road impact fee schedule, unless otherwise provided for in an agreement, until such time as all credits are utilized. Once all road impact fee credits are used, any subsequent new development where road impact fee credits are not available shall pay the mobility fee in effect at the time of building permit application.

(b)

Request. An applicant may request credit against any assessed mobility fee in an amount equal to the cost of mobility projects or contributions of land, money, or services for mobility projects contributed, paid for, or committed to by the applicant or his predecessor in interest.

(c)

Capital improvements program. Only mobility projects included in the mobility plan or capital improvements program are eligible for mobility fee credits. An applicant may request that the city add a mobility project to the Capital Improvements Program.

(d)

Application. The administrative manual or administrative procedures shall detail the application requirements for the agreement, as well as the schedule, approval process, and use of the credit.

(e)

Plan and code requirements. Mobility projects required to meet minimum comprehensive plan or land development code requirements are not eligible for mobility fee credit. Site related access improvements such as turn lanes, sidewalks, bike lanes, or traffic signals are not eligible for mobility fee credit.

(f)

Administration. The City Manager or designee shall determine eligibility, the process, requirements, and time frame for credit applications, credit request, granting of credit for advancing mobility projects or dedicating right-of-way beyond that required to facilitate access to and from the development until such time as an administrative manual or administrative procedures are developed.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Benefits test. The establishment of mobility fee benefit districts is the best method of ensuring that the mobility fees paid by new development are expended on mobility projects that provide a mobility benefit to the new development as required in the benefits test of the dual rational nexus test.

(b)

Expenditure. Mobility fee benefit districts provide a clearly defined boundary for the expenditure of mobility fee revenue. Establishing mobility fee benefit districts ensures that funds paid by new development are spent on mobility projects to accommodate person travel demand within the benefit district, providing a reasonable nexus between the expenditure of mobility fee revenue and the new development for which the mobility fees are paid.

(c)

Establishment. There are two mobility fee benefit districts established. The first benefit district, herein "south benefit district", includes all portions of the city south of Pine Island Road, bounded by Trafalgar Parkway, Santa Barbara Blvd S, and Hancock Bridge Parkway. The second benefit district, herein "north benefit district", includes all portions of the City on the north side of and encompassing Pine Island Road. The map is included in the Technical Report, is attached as Exhibit "D" to the Mobility Fee Ordinance and is maintained and available upon request from the City Clerk's Department.

(d)

New development. The city may elect to establish a benefit district for new development that agrees to advance construction of a mobility project. The benefit district may extend beyond the boundaries of the new development where an advanced mobility project provides a mobility benefit to adjacent areas.

(e)

Special revenue funds. The city shall establish a special revenue fund for each mobility fee benefit district. Collected mobility fees shall be deposited into the applicable special revenue fund. Mobility fees shall not be deposited into general revenue funds. Special revenue funds shall be established where a municipality elects to participate in the city's mobility fee system or where the city enters into an agreement with a new development to establish a new benefit district.

(f)

Expenditure outside benefit district. In recognition that person travel demand along certain corridors provides a mobility benefit beyond the limits of a mobility fee benefit district, the following are instances in which mobility fees may be expended from multiple benefit districts:

(1)

Districtboundary. The city may spend mobility fees on corridors from adjacent benefit districts if the corridors form a boundary between benefit districts.

(2)

Traverse boundary. The city may spend mobility fees from adjacent benefit districts where a mobility project traverses or is planned to traverse the boundary of one or more benefit districts.

(3)

Crossings. Multimodal crossings (overpass and underpass), transit vehicles and service, new bridges, or interchanges, over either Interstate 75, Caloosahatchee River or its tributaries, that connect with new mobility projects or to the existing multimodal transportation system may utilize funds from both benefit districts.

(4)

Connectivity. Mobility projects that connect to the existing multimodal transportation system that will facilitate mobility across benefit district boundaries may utilize funds from both districts.

(5)

Regional travel. Mobility projects that extend outside municipal limits that facilitate regional travel may utilize funds from benefit districts that receive a mobility benefit.

(6)

Finding. The city shall be required to make a finding that a mobility project provides a mobility benefit to new development within multiple benefit districts. The finding shall be required to demonstrate how the use of funds meets the benefits requirement of the dual rational nexus test.

(7)

Review. The City Attorney shall review and concur, if consistent with the benefits requirement of the dual rational nexus test, with a finding that a mobility fee may be expended in a different benefit district than the one from which it was collected, before the finding can be considered for review and approval by the City Manager or designee.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Expenditure of funds. Mobility fees are intended to fund mobility project expenses, such as planning, design, and construction. Amounts on deposit in mobility fee special revenue funds shall be expended by the city for the advancement or construction of mobility projects or for financing directly, or as a pledge against bonds, revenue certificates and other obligations of indebtedness, the expenses for mobility projects, or portions thereof, that are:

(1)

Location. Located in the mobility fee benefit district from which the funds were collected;

(2)

Planned project. Included in the mobility plan or capital improvement program; and

(3)

Benefit. Beneficial to new development in terms of enhanced mobility.

(4)

Timing. Mobility fees shall be expended based on a first in, first out basis.

(b)

Prohibition. The amounts on deposit in the mobility fee fund shall not be used for periodic or routine maintenance as defined in F.S. § 334.03 (18) and (23).

(c)

Use of funds. Funds withdrawn from these accounts must be expended on eligible mobility project expenses.

(d)

Administration. The administration and implementation of the mobility fee system may be funded by mobility fees in an amount not to exceed that actual cost to administer and implement the mobility fee system.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Time frame for expenditure. Mobility fees collected shall be returned to the then present owner of the new development if the mobility fees have not been encumbered or spent by the end of the calendar quarter immediately following seven years from the date the fees were collected, or if the development for which the fees were paid never commenced.

(b)

Expenditure of funds. Mobility fees collected shall be deemed to be encumbered or expended on a "first in, first out" basis.

(c)

Refund process. A landowner may request a refund of mobility fees not expended within the time frame for expenditure of funds. Request shall be reviewed by the City Manager or designee and approved if mobility fees have not been expended within the time frame for expenditure of funds or as provided for in refund process and procedures.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Comprehensive Plan. The listing of a land use in the mobility fee schedule is solely for purposes of establishing the applicable mobility fee rate to be assessed per land use, and such listing does not mean that the land use is permitted or available under applicable Comprehensive Plan requirements. In addition, the listing of the land use in the mobility fee schedule shall not be considered evidence that the land use is appropriate in any land use classification.

(b)

Land Development Code. The payment of mobility fees does not ensure nor grant compliance with the city's Land Development Code, including regulations relating to zoning, zoning districts, allowable uses, transportation corridor management, access management, substandard roads, secondary access, timing, and phasing, and, where applicable, development of regional impact review.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Administrative manual. The city shall prepare either a mobility fee administrative manual or administrative procedures that addresses day to day administration and the implementation and update of the mobility plan and fee. The administrative manual or administrative procedures shall address assessments, credit and off-set request, fee and land use determinations, special studies, fee expenditures and monitoring. Until such time as an administrative manual or administrative procedures are approved, determinations related to the mobility fee system shall be made by the City Manager or designee, in consultation with the City Attorney.

(b)

Service charge. The city shall impose a mobility fee administrative charge of up to 3% to ensure that the city's general fund does not bear the full burden of administering and implementing the mobility fee system, provided that the administrative charges does not exceed the city's actual costs of administration and implementation of the mobility fee system. Mobility fee administrative charges shall be in addition to the imposed mobility fee and shall account for future updates of the mobility plan and mobility fee in the administrative charge determination, along with any required application fees for special studies or credit request.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

The city shall comply with all audit requirements of F.S. § 218.39. The city shall include in its annual capital improvement program update, an accounting of mobility projects funded by mobility fees. The annual budget shall indicate mobility fee revenues and expenditures. Audits of the city performed pursuant to F.S. § 218.39, shall include an affidavit from the Finance Director of the city addressing requirements of F.S. § 163.31801.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

Mobility plan and fee update. The mobility plan and mobility fee shall be updated by the city at least once every five years from the date of the last adoption. The five year time frame shall account for the 90-day notice period for any increase as required by Florida Statute. The update shall commence no later than four years after the date of last adoption. If a full re-evaluation and update are not complete within the required time period, the last adopted mobility fee shall remain in effect until the update is complete.

(b)

City initiated update. The City Manager or designee may authorize city initiated updates of the mobility plan or mobility fee to ensure that mobility fees meet legal and statutory requirements. The administrative manual or administrative procedures shall provide further detail on factors that would potentially require that the city move forward with a city initiated update.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

(a)

If an applicant is dissatisfied with one or more of the following decisions of the City Manager or designee, the applicant may appeal the decision in writing to the City's Special Magistrate(s):

(1)

Imposition. The requirement to pay a mobility fee per section 2-24.25;

(2)

Exemption. That a proposed new development does not qualify for an exemption per section 2-24.26;

(3)

Determination. The assessed mobility fee per section 2-24.28;

(4)

Refunds. The refund or refunded amount of mobility fees per section 2-24.33;

(5)

Notice of appeal. The applicant shall file a notice of appeal with the City's Special Magistrate within 30 calendar days of any final decision in which the applicant does not concur.

(b)

Evidence. As part of the appeal, the applicant shall submit in writing the specific decision being appealed and shall provide documentation detailing the reasons why the applicant believes the decision is incorrect. The applicant shall also provide in writing the desired final outcome and shall provide evidence in support of that decision. Technical documentation submitted as evidence shall be prepared by either a licensed professional engineer, a certified planner, or an impact fee consultant with experience administering, implementing, or developing impact fees or mobility fees.

(c)

Date of hearing. The appeal hearing before the Special Magistrate shall be held within 60 working days of the receipt of the notice of appeal.

(d)

Hearing. The Special Magistrate shall base its decision on any appeal on the applicable standards and criteria established for the mobility fee system established per division 5 and the evidence presented at a properly advertised public hearing.

(e)

Examineractions. The Special Magistrate may uphold or revoke, in whole or in part, the determination being appealed.

(f)

Payment of mobility fees. A development order approval will not be issued unless the mobility fee is paid in full, regardless of an appeal by an applicant. Any reduction of mobility fees or an exemption from mobility fees resulting from a successful appeal shall be by refund of any excess amount where a mobility fee is reduced, or the full amount where an applicant is exempt, paid at the time of the issuance of the building permit with the refund to be paid within 60 days. No interest will be paid on a refund of any such overpayment or payment.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

It is not the intent of the mobility fee system to abrogate, diminish, or modify the rights of any persons that have vested rights pursuant to a valid governmental act of the city. An applicant may petition the City's Special Magistrate(s) for a vested rights determination which would exempt the applicant from the provisions of the mobility fee system. The City Manager, or designee, shall evaluate the petition and submit a recommendation to the Special Magistrate based on one of the following:

(a)

Valid act. A valid, unexpired governmental act of the city, authorizing the building for which applicant seeks a certificate of occupancy.

(b)

Investment backed expectation. Expenditures or obligations made or incurred in reliance upon the authorizing act are reasonably equivalent to the assessed mobility fee.

(c)

Prior approvals. That it would be inequitable to deny the applicant the opportunity to occupy a previously approved building under the conditions of the previous approval by requiring the applicant to comply with the provisions of the mobility fee system.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

Violations of division 5 will be enforceable by all legally available remedies, including but not limited to code enforcement proceedings consistent with this code and F.S. Ch. 162.

(Ord. 42-25, § 5(Exh. B), 9-25-2025, eff. 1-1-2026)

It is the purpose of this article to encourage and support the development and growth of commercial and industrial enterprises within the city by establishing a means by which impact fees may be deferred for new businesses and expansions of existing businesses within the city.

The following words, terms and phrases, when used in this division, shall have the meanings set forth herein, except where the context clearly indicates a different meaning.

CITY. The City of Cape Coral, Florida.

BUSINESS. Any sole proprietorship, corporation, partnership, association, organization, agency or other entity which operates a commercial or industrial enterprise of any kind.

EXISTING BUSINESS. A business which is already operating an extant commercial or industrial enterprise within the city.

FULL-TIME EMPLOYEE. A person employed by a business for at least 40 hours per week. This term shall not include persons who act as or serve as independent contractors to the business or persons who have an ownership interest in the business unless they are also employed by the business.

FULL-TIME EQUIVALENT EMPLOYEES. Two or more employees of a business, neither of whom is employed by the business for at least 40 hours per week, but whose combined weekly work hours for the business total at least 40 hours per week. For example, for purposes of this article, two part-time employees of a business, each of whom work 20 hours per week for the business, would constitute one FULL-TIME EQUIVALENT EMPLOYEE for the business. This term shall not include persons who act as or serve as independent contractors to the business or persons who have an ownership interest in the business unless they are also employed by the business.

NEW BUSINESS. A business which has newly located or is newly locating its commercial or industrial enterprise within the city. For purposes of this article, a business shall be considered a NEW BUSINESS for a period of not more than 12 months from the date of its location in the city or not more than 12 months from the date of imposition of the impact fee for which deferral is sought, whichever is less. Once the lesser of the aforesaid time periods has expired, the business shall hereafter be considered an "existing business" for purposes of this article.

PERMANENT RESIDENCE. That place where a person has his or her true, fixed and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one PERMANENT RESIDENCE at a time; and, once a permanent residence is established outside the corporate limits of the city, it is presumed to continue until the person shows that a change has occurred.

RETAIL SALES. The sale of commodities or goods in small quantities to the ultimate consumers or to the general public.

(a)

New businesses. In order to be eligible to apply for deferral of its impact fee obligation(s), a new business must fall within one of the following categories:

(1)

Category I. A business establishing ten or more new jobs to employ ten or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute ten or more full-time employees) in the city, which manufactures, processes, compounds, fabricates or produces for sale items of tangible personal property at a single fixed location within the city, and which comprises an industrial or manufacturing plant or facility. No business engaged in retail sales shall be considered to be included in this category;

(2)

Category II. A business establishing 25 or more new jobs to employ 25 or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute 25 or more full-time employees) in the city, which delivers, performs, offers or engages in mechanical, personal, professional or trade services at a single fixed location within the city, and which comprises an industrial, commercial, or professional facility. No business engaged in retail sales shall be considered to be included in this category; or

(3)

Category III. Any other business establishing 50 or more new jobs to employ 50 or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute 50 or more full-time employees) at a single fixed location in the city, and which comprises a commercial facility. Businesses engaged in retail sales shall be included within this category.

(b)

Existing businesses. In order to be eligible to apply for deferral of its impact fee obligation(s), an existing business must expand its business so as to fall within one of the following categories:

(1)

Category I. A business establishing ten or more additional new jobs to employ ten or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute ten or more full-time employees) in the city, which manufactures, processes, compounds, fabricates or produces for sale items of tangible personal property at a single fixed location within the city, and which comprises an industrial or manufacturing plant or facility. The increase in the operation of the business must be at a site co-located with an industrial, a commercial or a professional operation owned by the same business. No business engaged in retail sales shall be considered to be included in this category;

(2)

Category II. A business establishing 25 or more new jobs to employ 25 or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute 25 or more full-time employees) in the city, which delivers, performs, offers or engages in mechanical, personal, professional or trade services at a single fixed location within the city, and which comprises an industrial, commercial or professional facility. The increase in the operation of the business must be at a site co-located with an industrial, a commercial or a professional operation owned by the same business. No business engaged in retail sales shall be considered to be included in this category; or

(3)

Category III. Any other business establishing 50 or more new jobs to employ 50 or more full-time employees (or a sufficient number of full-time equivalent employees so as to constitute 50 or more full-time employees) at a single fixed location in the city, and which comprises a commercial facility. The increase in the operation of the business must be at a site co-located with an industrial, a commercial or a professional operation owned by the same business. Businesses engaged in retail sales shall be included within this category.

(c)

Initial eligibility.

(1)

Application. In order to be considered for eligibility to receive an impact fee deferral under this article, a business must first submit an application for impact fee deferral on a form supplied for this purpose by the city.

(2)

Determination of initial eligibility. For purposes of determining initial eligibility of new businesses and the expansion of existing businesses for impact fee deferrals under this article, the number of new jobs created will be based on the actual number of documented full-time employees or full-time equivalent employees the business, at the time of application for the impact fee deferral, either actually employs or pledges to employ within a reasonable period of time following the approval of the impact fee deferral. The number of new jobs created shall be calculated as follows:

a.

New businesses. For new businesses, the number of new jobs created shall be calculated by combining the number of jobs, if any, the new business has located in Cape Coral as of the date of imposition of the impact fee for which deferral is sought with the number of new jobs, if any, which the new business is pledging to employ within a 12 month period from the date of imposition of the impact fee.

b.

Existing businesses. For existing businesses, the number of new jobs created by the expansion of an existing business shall be calculated by combining the number of new jobs, if any, which the business created during the six months immediately preceding the date the business files its application for impact fee deferral with the number of new jobs, if any, which the existing business is pledging to employ within a 12 month period from the date it files its application for impact fee deferral.

(d)

Maintaining eligibility status. In order to maintain its eligibility status, a business which has received an impact fee deferral pursuant to this article must continue to maintain at least the minimum number of full-time employees or full-time equivalent employees in the new jobs or similar jobs throughout the impact fee deferral period. In the event the number of full-time or full-time equivalent employees of the business fall below the minimum necessary for initial eligibility, the City Council shall have the right to terminate the impact fee deferral for the business and to declare the entire impact fee(s) for the business to be immediately due and payable. In making its determination as to whether to terminate the impact fee deferral status for businesses whose employees fall below the minimum necessary for initial eligibility, the City Council shall take into consideration the size of the decrease in jobs since the initial eligibility period, whether the jobs have been eliminated or are merely vacant, the length of time the jobs have been vacant, the attempts, if any, that the business has made to fill the jobs, and any other factor(s) that the City Council may deem relevant to its decision. For businesses which have received a longer deferral period because of the number of city residents employed by the business, the City Council shall have the right to reduce the length of the deferral period in the event the number of employees who are city residents falls below the minimum necessary for the longer deferral period. In making its determination as to whether to so reduce the longer deferral period for the businesses, the City Council shall, in addition to the foregoing factors identified in this section, take into consideration the size of the decrease in the percentage of city residents employed by the business and the reason for the decrease.

(e)

Exemption. Any business which is exempt under applicable Florida law from paying ad valorem property taxes is ineligible for impact fee deferral(s) under this article regardless of whether the business might otherwise meet the eligibility criteria established herein.

(a)

Not all of the impact fees which may pertain or be applicable to a business shall be deferrable pursuant to this division. An eligible business may apply for deferral only of roads impact fees and/or utility capital expansion impact fees.

(b)

Neither fire public safety facilities impact fees nor recreational parks facilities impact fees are deferrable under this division. Provided that all other requirements of this division are met, an eligible business may apply for the deferral of an impact fee at any time after the impact fee is imposed on the business even if the business has made one or more installment payments on the impact fee prior to the time the business files for the deferral.

(c)

However, in the event a business has previously paid any portion of the impact fee for which it later seeks a deferral, only the unpaid portion of the impact fee shall be subject to deferral.

(d)

The deferral of an impact fee under this article shall not in any way result in a refund of previously paid impact fees or previously paid impact fee installment payments.

The impact fee deferral period approved for an eligible business under this division shall be determined by both the total number of employees the business has and the number of employees who are residents of the city as well as other factors as follows:

(a)

Basic impact fee deferral.

(1)

Category I businesses (whether new or expanding) shall receive impact fee deferrals as follows:

a.

Category I businesses with ten to 24 full-time employees (or the requisite number of full time equivalent employees) shall receive a one year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a two year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees.

b.

Category I businesses with 25 to 49 full time employees (or the requisite number of full time equivalent employees) shall receive a two year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a four year deferral of its impact fees.

c.

Category I businesses with 50 to 99 full time employees (or the requisite number of full time equivalent employees) shall receive a three year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a four year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a five year deferral of its impact fees.

d.

Category I businesses with 100 to 199 full time employees (or the requisite number of full time equivalent employees) shall receive a four year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a five year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a six year deferral of its impact fees.

e.

Category I businesses with 200 or more full time employees (or the requisite number of full time equivalent employees) may receive a deferral of their impact fees that is equal to or longer than those deferral periods stated above. The length of the deferral period shall be determined by the City Council. In making its determination as to the length of the deferral period for a Category I business, the City Council shall consider factors such as the total number of new jobs being created, the nature or type of new jobs, and the number of city residents who would be employed in the business as well as other factors that the City Council deems relevant to its decision. However, in no event shall the deferral period awarded a business under this article exceed ten years.

(2)

Category II businesses (whether new or expanding) shall receive impact fee deferrals as follows:

a.

Category II businesses with 25 to 49 full time employees (or the requisite number of full time equivalent employees) shall receive a one year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a two year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees.

b.

Category II businesses with 50 to 99 full time employees (or the requisite number of full time equivalent employees) shall receive a two year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a four year deferral of its impact fees.

c.

Category II businesses with 100 to 199 full time employees (or the requisite number of full time equivalent employees) shall receive a three year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a four year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a five year deferral of its impact fees.

d.

Category II businesses with 200 or more full time employees (or the requisite number of full time equivalent employees) may receive a deferral of their impact fees that is equal to or longer than those deferral periods stated above. The length of the deferral period shall be determined by the City Council. In making its determination as to the length of the deferral period for a Category II business, the City Council shall consider factors such as the total number of new jobs being created, the nature or type of new jobs, and the number of city residents who would be employed in the business as well as other factors that the City Council deems relevant to its decision. However, in no event shall the deferral period awarded a business under this article exceed ten years.

(3)

Category III businesses (whether new or expanding) shall receive impact fee deferrals as follows:

a.

Category III businesses with 50 to 99 full time employees (or the requisite number of full time equivalent employees) shall receive a one year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a two year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees.

b.

Category III businesses with 100 to 199 full time employees (or the requisite number of full time equivalent employees) shall receive a two year deferral of their impact fees. However, if 75 to 89% of a business's employees are city residents, then the business shall receive a three year deferral of its impact fees. If 90 to 100% of a business's employees are city residents, then the business shall receive a four year deferral of its impact fees.

c.

Category III businesses with 200 or more full time employees (or the requisite number of full time equivalent employees) may receive a deferral of their impact fees that is equal to or longer than those deferral periods stated above. The length of the deferral period shall be determined by the City Council. In making its determination as to the length of the deferral period for a Category III business, the City Council shall consider factors such as the total number of new jobs being created, the nature or type of new jobs and the number of city residents who would be employed in the business as well as other factors that the City Council deems relevant to its decision. However, in no event shall the deferral period awarded a business under this article exceed ten years.

(b)

Supplementary impact fee deferral. In addition to the basic impact fee deferral period, businesses which are eligible for impact fee deferrals under this article may also be granted an additional or "supplementary" impact fee deferral period.

(1)

Supplementary criteria. In determining whether to grant such a supplementary impact fee deferral period, the City Council shall consider the following supplementary criteria and award points on a scale of one to five for each of the following criteria:

a.

The added value to the community of the new or expanded business. Factors which may be considered by the City Council in determining the added value to the community of the new or expanded business include, but are not limited to, the nature of the business, the physical location of the business in terms of community redevelopment, and the need for a particular type of business in the community;

b.

The stability of the business. This includes factors such as whether the industry in which the business is engaged has a constant or cyclic rate of production and whether the business or industry has frequent periods of inactivity which tend to result in lay-offs or reductions in force;

c.

The type of new jobs being created and their pay scale. The higher the income or salary for the new jobs being created by the business, the higher the new or expanded business would rate in this area. For example, a business creating new jobs with a pay scale/income higher than the median income in Lee County would rate higher in this area than a business creating new jobs with a pay scale/income lower than the median income in Lee County;

d.

The number of new supplementary or support jobs indirectly being created by the business. This factor addresses the anticipated need of the new or expanded business for local products or for local services and the resulting anticipated effect of the new or expanded business on the regional job base;

e.

The financial stability of the business. Factors which may be considered by the City Council in determining the financial stability of the business include, but are not limited to, the financial condition of the business at the time of application for impact fee deferral, the business's economic history, its asset/debt ration, and the fiscal management structure established for the business; and

f.

The anticipated contribution of the business to the city ad valorem tax base. The greater the anticipated contribution of the new or expanded business to the city's ad valorem tax base, the higher the business would rate in this area.

(2)

Supplementary point scale. The city shall consider each of the above criteria for each eligible business which applies for impact fee deferral(s) under this article. For each of the above criteria, the city shall award points on a scale of one to five with one being the lowest and five being the highest number of points which may be awarded for each of the criteria so that 30 is the highest possible total number of supplementary points that may be awarded to a business under this article.

(3)

Calculation of supplementary deferral period. The length of the supplementary deferral period which may be awarded under this article shall be calculated utilizing the supplementary point scale as follows:

a.

Zero to 15 supplementary points: no supplementary deferral period;

b.

Sixteen to 24 supplementary points: supplementary deferral period of six months; and

c.

Twenty-five to 30 supplementary points: supplementary deferral period of 12 months.

(4)

Length of deferral period. Any supplementary deferral period granted to a business under this section shall be in addition to the basic impact fee deferral period granted under subsection (a) above. However, in no event shall the total impact fee deferral period (including both the basic deferral period and the supplementary deferral period, if any) granted to a business exceed ten years.

(a)

Determination of employee residence. The determination as to whether an employee of a new or expanding business that is applying for an impact fee deferral is or is not a city resident for purposes of this article is a factual determination to be made by the City Council. Although any one factor is not conclusive of the establishment or nonestablishment of residence within the corporate limits of the city, factors that may be considered by the city in making the determination as to whether an employee of a new or expanding business that is applying for an impact fee deferral under this article is or is not a resident of the city shall include, but not be limited to:

(1)

Formal declarations of the employee, including but not limited to declarations of domicile;

(2)

Informal statements of the employee;

(3)

The previous residency by the employee in a place other than the city and the date the other residency was terminated;

(4)

The place where the employee is registered to vote;

(5)

The place of residence stated on the employee's driver's license or State of Florida identification card;

(6)

The employee's address as listed on federal income tax returns filed by the employee;

(7)

The place of residence stated on the motor vehicle registration form for any vehicle registered in the employee's name; and

(8)

A lease, rental agreement or deed to real property located within the corporate limits of the city, together with utility bills or other documentation supporting the claim that the property which is the subject of the lease, rental agreement, or deed is the true residence of the employee.

(b)

Employee records. Any new or expanding business which is granted an impact fee deferral under the terms of this division shall maintain records concerning the number of employees employed by the business and their claimed place of residence. Those records shall be maintained at the business location until a time that the deferred impact fee(s) have been paid in full to the city. The records shall include, but not be limited to, the following:

(1)

Name and residence address of the employee;

(2)

Florida Driver's license or Florida Identification card (issued by the State of Florida Department of Highway Safety and Motor Vehicles) number of the employee; and

(3)

Other records as may be necessary to support an employee's claimed residence in the city pursuant to subsection (a) above.

(c)

Availability and inspection of employee and other records. In order to ensure compliance with the provisions of this division, the employee records of any new or expanding business which has applied for and/or been granted an impact fee deferral under this division shall be held open and available for reasonable inspection at the business location of the business, upon request and without court order to the City Manager of the city and representatives or employees of the city as he or she may designate to enforce the provisions of this division. In addition, any business which has applied for and/or been granted an impact fee deferral pursuant to the terms of this division shall provide other records and/or documentation as may be necessary for the city to determine either the initial or continuing eligibility of the business for an impact fee deferral under this division.

Unless an extended payment period is approved pursuant to this article, any impact fee deferred under this division shall be paid to the city no later than seven days after the expiration of the deferral period approved by the city for the business. The amount of the impact fee(s) shall be the same as though the impact fee(s) had not been deferred but instead paid when originally due. Nothing in this division shall be construed to prohibit the payment of an impact fee which has been deferred under this article prior to the expiration of the deferral period. Further no penalty shall be assessed for the pre-payment.

(a)

Application. Any business which has been granted an impact fee deferral pursuant to the terms of this division and who desires to pay the impact fee(s) so deferred over an extended period of time rather than to pay them in a single lump-sum at the expiration of the deferral period may apply to the city for an extended payment period. The application shall be made in writing on a form available from the city and shall be filed with the city no later than 180 calendar days prior to the expiration of the deferral period.

(b)

Term. If the City Council approves the application for an extended payment period, the business shall be allowed an additional period of time during which to repay the previously deferred impact fee(s). The extended payment period may equal, but not exceed the length of the impact fee deferral period. However, in no event shall the combination of the extended payment period with the deferral period exceed ten years from the date when the deferred impact fee(s) were originally due.

(c)

Payment terms. Any business granted an extended period of time in which to pay the previously deferred impact fee(s) shall pay the impact fee(s) over the life of the extended payment period together with interest at a rate equal to 0.5% over the prevailing prime rate at the time the city approves the application for an extended payment period. Prepayments shall be accepted at any time and a business which chooses to prepay shall be charged interest only to the date of any prepayment together with any administrative costs authorized by the city.

(a)

All impact fees deferred under this article shall constitute a lien upon the property for which the impact fee(s) were originally imposed from the date when the impact fee(s) would originally have been due if not deferred until a time as the impact fee(s) are finally paid in full. The lien shall be of the same nature and to the same extent as a lien for general county and municipal taxes falling due in the same year or years as when the impact fee was originally due or, if an extended payment period is approved for business, then in the same year or years as when the payments fall due. The lien shall be superior in dignity to all other liens, titles and claims, until paid. Any impact fee not paid when due shall be collectible with the interest and with reasonable costs and expenses incurred by the city and its agents, including reasonable attorney's fees, in collecting the delinquent impact fees or as a result of the delinquent payments (including interest cost paid for any monies borrowed by the city as a result of the delinquency in payment).

(b)

The city shall have the right to appoint an agent, in addition to the City Attorney, to foreclose and collect all delinquent impact fee payments in the manner provided for by law for the collection of and foreclosure of a mortgage. If the owner of any lot or parcel of land made subject to a lien pursuant to this division for impact fee payments shall be delinquent in the payment of any impact fee payment for the period of 30 days, the city or its agents may declare the entire unpaid balance of the impact fee to be in default and cause the delinquent property to be foreclosed in the same method now or hereafter provided by law. All costs, fees and expenses, including a reasonable attorney's fee, related to any foreclosure action as described herein shall be borne by the delinquent property owner(s).

(c)

It shall be the duty of the city and its agents, if any, to enforce the prompt collection of impact fee payments by the means herein provided, and that duty may be enforced at the suit of any holder of bonds issued under any ordinance pledging the impact fees in a court of competent jurisdiction by mandamus or other appropriate proceedings or action.

(d)

The city may join in any one action the collection of impact fee payments against any or all property subject to lien(s) in accordance with the provisions of this division. All delinquent property owners whose property is foreclosed shall pay fees, costs and expenses incurred by the city and its agents, including reasonable attorney's fees, in the collection of the delinquent impact fees and any other costs incurred by the city as a result of the delinquent payments including costs paid for borrowing additional funds necessitated by the delinquency, and the same shall be collectible as a part of or in addition to, the costs of the action.

(e)

At the sale pursuant to decree in any like action, the city may be the purchaser to the same extent as an individual person or corporation. Property so acquired by the city may be sold or otherwise disposed of, the proceeds of the disposition to be placed in the trust funds for the applicable impact fee(s) and thereafter expended from the fund as directed by the City Council.

(f)

(1)

Any informality or irregularity in the proceedings in connection with the levy of a lien for unpaid impact fees under the provisions of this division shall not affect the validity of the same after confirmation thereof, and any lien for the impact fee as finally approved and affirmed shall be competent and sufficient evidence that the impact fee lien was duly levied, that the impact fee lien was duly made an adopted, and that all other proceedings adequate to the impact fee lien were duly had, taken and performed as required by this division.

(2)

No variance from the directions hereunder shall be held material unless it be clearly shown that the party objecting was materially injured thereby. Notwithstanding the provisions of this section, any party objecting to an impact fee lien imposed pursuant to this article must file an objection with a court of competent jurisdiction within 20 days from the date the lien is recorded in the public records of Lee County.

It is the purpose of this division to encourage and support the development and growth of commercial and industrial enterprises within the city by establishing a procedure for the deferral of impact fees for shell buildings on commercial or industrial properties until the impact of the new commercial or industrial development occurs.

(Ord. 56-95, 9-27-1995; Ord. 15-09, 4-20-2009)

The following words, terms and phrases, when used in this article, shall have the meanings set forth herein, except where the context clearly indicates a different meaning.

CITY. The City of Cape Coral, Florida.

INTERIOR COMPLETION PERMIT. Any permit issued by the city, that will permit completion of a shell building by authorizing work to finish interior units, so that the building may be eligible to receive a certificate of occupancy.

SHELL BUILDING. Any commercial or industrial building or portion of a building, constructed so as to consist exclusively of exterior walls and unfinished interior units with rough staged utilities that precludes occupancy. This definition does not include agricultural or residential buildings.

(Ord. 15-09, 4-20-2009)

(a)

Persons seeking a building permit for a commercial or industrial shell building may, at their option, defer, for a period not to exceed 36 months, payment of any roads impact fees and/or utility capital expansion impact fees until issuance of interior completion permits.

(b)

Public safety impact fees are not deferrable under this article because the impact upon public safety resources commences upon completion of the shell building, regardless of when the individual interior units are completed.

(c)

Unless the impact fee(s) for the property are otherwise deferred pursuant to the provisions of Chapter 2, Administration, Article II, Fees, Division 6, Impact Fee Deferrals, no interior completion permit(s) shall be issued until the applicant pays any and all impact fee(s) that are due to the city or demonstrates to the director of the department of community development or his or her designee that any and all impact fee(s) for the building have been paid.

(Ord. 56-95, 9-27-1995; Ord. 15-09, 4-20-2009)

(a)

Unless an additional impact fee deferral is approved pursuant to the provisions of Chapter 2, Administration, Article II, Fees, Division 6, Impact Fee Deferrals, any impact fee deferred under this article shall be paid to the city within 36 months from the issuance of the shell building permit or prior to the issuance of any interior completion permits for the subject property, whichever occurs first. The amount of the impact fee(s) shall be at the rate that was in effect when the impact fee(s) were deferred. Nothing in this article shall be construed to prohibit the payment of an impact fee which has been deferred under this article prior to the expiration of the deferral period. No penalty shall be assessed for pre-payment of deferred impact fees.

(b)

Deferral of utility capital expansion fees. Utility capital expansion fees are charged based on the size of the meter. For commercial and industrial properties, a building may have only one "master" meter to service all units or each individual unit or tenant space can be individually metered. In the event the building is master metered, the entire utility capital expansion fee must be paid in full no later than the time when the first interior completion permit is issued. If the units are individually metered, deferred utility capital expansion fees become due and payable at the time each interior completion permit is applied for. If the shell building permit application specifies that each unit will be individually metered and the applicant later revises the application to provide for a master meter, then the entire utility capital expansion fee must be paid in full no later than the time when the first interior completion permit is issued.

(c)

Deferral of road impact fees. The amount of the road impact fee is based on land use type. In the event of a change of use, redevelopment, or modification of an existing use, § 2-24.26(a)(4) provides that an additional impact fee may be due and will be based upon the net increase in the impact fee for the new use as compared to the previous use. The initial deferred road impact fee shall, therefore, be the minimum amount that is due and an additional impact fee may be due if there is a change of use at the time any interior completion permit is issued.

(Ord. 56-95, 9-27-1995; Ord. 15-09, 4-20-2009)

(a)

Owners who desire to defer road and/or utility capital expansion fees shall execute a voluntary lien, on a form prescribed by the city, at the time the impact fees would normally be due and payable. All impact fees deferred under this article shall constitute a lien upon the property for which the impact fee(s) were originally imposed from the date when the impact fee(s) would originally have been due if not deferred until a time as the impact fee(s) are finally paid in full. The lien shall be of the same nature and to the same extent as a lien for general county and municipal taxes falling due in the same year or years as when the impact fee was originally due or, if an extended payment period is approved, then in the same year or years as when the payments fall due. The lien shall be superior in dignity to all other liens, titles and claims, until paid. Any impact fee lien not paid when due shall be deemed delinquent and shall bear interest at the rate provided in F.S. § 55.03(1) for interest on judgments.

(Ord. 56-95, 9-27-1995; Ord. 15-09, 4-20-2009)

(b)

The city shall have the right to appoint an agent, in addition to the City Attorney, to foreclose, in the manner provided for by law for the collection of and foreclosure of a mortgage, any deferred impact fee lien that is not paid within 30 days of the date it becomes due. All costs, fees and expenses, including a reasonable attorney's fee, related to any foreclosure action as described herein shall be borne by the delinquent property owner(s).

(Ord. 56-95, 9-27-1995; Ord. 15-09, 4-20-2009)

(c)

It shall be the duty of the city and its agents, if any, to enforce the prompt collection of impact fee payments by the means herein provided, and that duty may be enforced at the suit of any holder of bonds issued under any ordinance pledging the impact fees in a court of competent jurisdiction by mandamus or other appropriate proceedings or action.

(Ord. 56-95, 9-27-1995)

(d)

The city may join in any one action the collection of impact fee payments against any or all property subject to lien(s) in accordance with the provisions of this article. All delinquent property owners whose property is foreclosed shall pay fees, costs and expenses incurred by the city and its agents, including reasonable attorney's fees, in the collection of delinquent impact fees and any other costs incurred by the city as a result of the delinquent payments including costs paid for borrowing additional funds necessitated by the delinquency, and the same shall be collectible as a part of or in addition to, the costs of the action.

(Ord. 56-95, 9-27-1995)

(e)

At the sale pursuant to decree in any such action, the city may be the purchaser to the same extent as an individual person or corporation. Property so acquired by the city may be sold or otherwise disposed of, the proceeds of the disposition to be placed in the trust funds for the applicable impact fee(s) and thereafter expended from the fund as directed by the City Council.

(Ord. 56-95, 9-27-1995)

(f)

Any informality or irregularity in the proceedings in connection with the levy of a lien for unpaid impact fees under the provisions of this article shall not affect the validity of the same after confirmation thereof, and any lien for the impact fee as finally approved and affirmed shall be competent and sufficient evidence that the impact fee lien was duly levied, that the impact fee lien was duly made an adopted, and that all other proceedings adequate to the impact fee lien were duly had, taken and performed as required by this article. No variance from the directions hereunder shall be held material unless it be clearly shown that the party objecting was materially injured thereby. notwithstanding the provisions of this section, any party objecting to an impact fee lien imposed pursuant to this article must file an objection with a court of competent jurisdiction within 20 days from the date the lien is recorded in the public records of Lee County.

(Ord. 56-95, 9-27-1995)

(a)

The provisions of this article shall apply for all impact fee(s) hereafter deferred by the city.

(b)

In the event any impact fee lien is determined to be ineffective for any reason, it shall not preclude the city from instituting the procedures necessary for reinstituting any impact fee lien and payments thereof under the terms of this article.

(Ord. 56-95, 9-27-1995)

(a)

Pursuant to F.S. § 938.15 (2012) the city hereby assesses, as a mandatory court cost the sum of $2, to be imposed by the court in any prosecution for violation of a state penal or criminal statute that occurs within the jurisdiction of the city, or for the violation of a municipal or county ordinance that occurs within the jurisdiction of the city, that the defendant is found to have violated either with or without an adjudication of guilt, in accordance with the provisions of F.S. § 318.14(9) or (10) (2012).

(b)

Pursuant to F.S. § 318.18(11)(d) (2012), the city hereby assesses, as a mandatory court cost as provided in F.S. § 938.15, the sum of $2, to be imposed by the court in any traffic infraction that occurs within the jurisdiction of the city, that the defendant is found to have violated either with or without an adjudication of guilt, in accordance with the provisions of F.S. § 318.14(9) or (10) (2012).

(c)

Pursuant to F.S. § 327.73(11)(b) (2012), the city hereby assesses, as a mandatory court cost as provided in F.S. § 938.15, the sum of $2, to be imposed by the court for any noncriminal infraction of state vessel laws that occur within the jurisdiction of the city, that the defendant is found to have violated either with or without an adjudication of guilt.

(d)

All monies collected pursuant to this section are to be used for criminal justice education degree programs and training courses, including basic recruit training, for city law enforcement officers and support personnel, provided such education degree programs and training courses are approved by the Chief of Police, on a form provided by the Criminal Justice Standards and Training Commission, for local funding.

(e)

Workshops, meetings, conferences and conventions can qualify for monies collected pursuant to F.S. § 938.15 provided the training is approved prior to attendance, by the Chief of Police, on a form approved by the Criminal Justice Standards and Training Commission. The form shall include, but not be limited to, a demonstration by the Police Department of the purpose of the workshop, meeting, conference, or convention; the direct relationship of the training to the officer's or support personnel's job; the direct benefits the employee and city will receive; and all anticipated costs.

(Ord. 3-12, 3-12-2012)

(a)

There is hereby established a fund designated as the Criminal Justice Education and Training Trust Fund for monies collected by the imposition of § 2-24.48. All monies collected pursuant to § 2-24.48 are to be paid to the city's Financial Services Department and deposited in the fund.

(b)

All monies deposited into the Criminal Justice Education and Training Trust Fund are to be held in a separate account and used in accordance with the education and training programs for law enforcement officers and support personnel.

(c)

All interest generated by the Criminal Justice Education and Training Trust Fund shall be used solely for criminal justice education degree programs and training of law enforcement personnel.

(d)

The clerk of the Twentieth Judicial Circuit in and for Lee County is hereby authorized and directed to collect all assessments under § 2-24.48 and to remit the same to the city's Financial Services Department. These funds shall be earmarked by the clerk as criminal justice education and training assessments.

(Ord. 3-12, passed 3-12-2012)

It is the purpose of this article to encourage and support the development of affordable housing by implementing an impact fee deferral program.

(Ord. 58-24, § 1, 8-21-2024)

The following words, terms and phrases, when used in this division, shall have the meanings set forth herein, except where the context clearly indicates a different meaning.

EXTREMELY LOW INCOME FAMILIES means families whose incomes do not exceed 35% of the median income for the area as determined by the Secretary of the U.S. Department of Housing and Urban Development.

LOW INCOME FAMILIES means families whose incomes are more than 50% but do not exceed 80% of the median income for the area as determined by the Secretary of the U.S. Department of Housing and Urban Development.

MODERATE INCOME FAMILIES means families whose incomes are more than 80% but do not exceed 120% of the median income for the area as determined by the Secretary of the U.S. Department of Housing and Urban Development.

VERY LOW INCOME FAMILIES means families whose incomes do not exceed 50% of the median income for the area as determined by the Secretary of the U.S. Department of Housing and Urban Development.

(Ord. 58-24, § 1, 8-21-2024)

(a)

Purpose and Intent. The Single-Family Impact Fee Deferral Program is intended to encourage the provision of new units of owner-occupied affordable housing within the City of Cape Coral by providing for deferral of payment of city imposed fees on qualifying units of affordable housing. This program is intended to further the affordable housing goals and objectives in the Housing Element of the City's Comprehensive Plan.

(b)

Applicability. The Single-Family Impact Fee Deferral Program is limited to not-for-profit entities acting as developers who participate in the City of Cape Coral's Affordable Housing Programs and that are approved by the Development Services Department.

(c)

Impact fees not subject to Single-Family Impact Fee Deferral Program. Utility capital expansion fees and impact fees collected on behalf of Lee County are not subject to this program. The deferral of an impact fee under this article shall not in any way result in a refund of previously paid impact fees or previously paid impact fee installment payments.

(d)

Eligible dwelling unit categories. Agreements for the deferral of impact fees under this section may only be approved for single-family units.

(e)

Qualifying owner-occupied dwelling. To qualify for an affordable housing impact fee deferral, an owner-occupied dwelling unit must meet all the following criteria:

(1)

The owner(s) or anticipated owner(s) of the dwelling unit must have an extremely low, very low, low, or moderate income level, as defined in section 2-24.51, at the time of final execution by the city of the Owner's Impact Fee Deferral Agreement.

(2)

The monthly mortgage payment, including taxes and insurance, must not exceed 30% of that amount which represents the percentage of the median annual gross income for the applicable household category as indicated in section 2-24.51. However, it is not the intent to limit an individual household's ability to devote more than 30% of its income for housing, and housing for which a household devotes more than 30% of its income shall be deemed affordable if the first institutional mortgage lender is satisfied that the household can afford mortgage payments more than the 30% benchmark.

(3)

Once the property has been transferred from the developer to the owner(s), the dwelling unit must be the homestead of the owner(s). The owner must apply for and be granted a homestead tax exemption pursuant to F.S. Ch. 196, for the next available tax year.

(4)

The owner(s) of the dwelling unit must be at least 18 years of age and must be either citizen(s) of the United States or be legal alien(s) who permanently reside in the United States. Proof of United States Citizenship or permanent legal residency must be established to the city's sole satisfaction.

(f)

Application. Application for the Single-Family Impact Fee Deferral Program must be submitted to the Development Services Department prior to submission of the building permit application. Applications may take up to 60 days for approval or denial.

The application, at a minimum, will require the following:

a.

Name and address of the Developer;

b.

Legal description of the site upon which the development is proposed to be located;

c.

The square footage and number of bedrooms in each dwelling unit; and

d.

Type of construction as classified by the Florida Building Code.

(g)

Developer Impact Fee Deferral Agreement. Approval of the application shall be contingent upon an executed impact fee deferral agreement between the Developer and the city in a form approved by the city. The Developer's impact fee deferral agreement may be accepted by the city in lieu of prompt payment of the impact fee that would otherwise then be due and payable but for the agreement.

(h)

Developer Time of Performance. Title to the property must be conveyed to a qualified buyer within 180 days from the date of the Certificate of Occupancy issuance.

If title to the property is not conveyed to a qualified buyer within the 180-day period, then:

(1)

The deferred impact fee is considered in default as of the date that the fee would have been due without the deferral; and

(2)

The developer shall pay all the impact fees, including delinquency fees and interest dating back to the date that the fees would have been assessed but for the deferral.

(i)

Owner's Impact Fee Deferral Agreements. The qualified buyer receiving an impact fee deferral shall enter into an impact fee deferral agreement with the city that is recorded in the Official Records of Lee County at the owner's expense. A separate deferral agreement shall be executed for each qualifying owner-occupied dwelling. The deferral agreement shall provide for, at a minimum, the following and shall further include such provisions deemed necessary by the city to effectuate the provisions of this article:

(1)

Legal description of the property, including the parcel tax identification number and street address.

(2)

Throughout the period of deferral, the dwelling unit must be the homestead of the owner(s) under Section 4, Article X of the State Constitution, and pursuant to F.S. Ch. 196.

(3)

For each such owner-occupied dwelling unit, the amount of impact fees deferred shall be paid to the city in full upon sale. Such fees shall be accelerated and thereby be automatically due and payable prior to that period if there is any breach in the subject impact fee deferral agreement by the non-city party.

(4)

The deferred impact fees shall be a lien on the property. The lien may be foreclosed upon in the event of noncompliance with the requirements of the agreement. The agreement described herein shall operate as a lien against the dwelling unit. The lien shall terminate upon the recording of a release or satisfaction of lien in the public records of Lee County. Such release shall be recorded upon payment in full. Neither the deferred impact fees nor the agreement providing for the deferral of impact fees shall be transferred, assigned, credited or otherwise conveyed from the dwelling unit.

(5)

Upon satisfactory completion of the agreement's requirements, the city shall record any necessary documentation evidencing same, including, but not limited to, a release of lien.

(6)

In the event the owner is in default under the agreement, and the default is not cured within 30 days after written notice is provided to the owner, the city may at its sole option collect the impact fee amounts in default, foreclose, or bring a civil action to enforce the agreement or declare that the deferred impact fees are then in default and immediately due and payable. The city shall be entitled to recover all fees and costs, including attorney's fees and costs, incurred by the city in enforcing the agreement, plus interest at the then maximum statutory rate for judgments calculated on a calendar day basis until paid.

(j)

Repayment for owner-occupied units.

(1)

All impact fees deferred for owner-occupied dwelling units shall become due and payable and shall be immediately paid in full to the city upon:

a.

The sale of the dwelling; or

b.

Refinancing of the purchase mortgage or loans secured by senior real property security instruments with cash out; or

c.

A loss of the homestead exemption under Section 4, Article X of the State Constitution, and pursuant to F.S. Ch. 196; or

d.

The first occurrence of any sale or transfer of any part of the affected real property, and in any such event the deferred impact fees shall be paid in full to the city not later than the closing of the sale, or not later than the effective date of the transfer.

(2)

Repayment shall include any accrued interest. Interest shall be computed at the rate of 5% per annum, but in no event shall it exceed 25% of the total impact fee amount.

(k)

Repayment obligations.

(1)

Generally. The impact fees deferred shall be a lien on the property until all requirements under this article and the agreement have been satisfied.

(2)

Owner-occupied dwelling units. If the household income of the qualified owner-occupied dwelling unit rises above the standards for deferrals set forth in subsection (e) of this section, the owner shall maintain the deferral. Notwithstanding the foregoing, all outstanding impact fees deferred shall be paid in full upon sale or transfer of the dwelling unit as set forth in subsection (j) of this section.

(l)

Subordination. Impact fee deferrals for all owner-occupied dwelling units will automatically be subordinate to the owner's first mortgage and/or any government funded affordable housing loan. Requests for subordination shall be in accordance with the City of Cape Coral Subordination of Mortgage Policy.

(m)

Ceiling on deferrals.

(1)

The aggregate number of impact fee deferrals granted pursuant to the Impact Fee Deferral Pilot Program shall be limited to 20 units per fiscal year. The City Council may, by ordinance, adjust the aggregate cap.

(2)

Deferrals shall be available on a first-come, first-served basis.

(3)

The city shall maintain a tracking system to ensure that the aggregate number of impact fee deferrals do not exceed the deferral ceilings established in this subsection.

(Ord. 58-24, § 1, 8-21-2024)

(a)

Applicability. The Multi-Family Impact Fee Deferral Program is available to developers of multi-family housing subject to the requirements in this section.

(b)

Impact fees not subject to Multi-Family Impact Fee Deferral Program.

(1)

Impact fees collected on behalf of Lee County are not subject to this program.

(2)

City of Cape Coral Utility Capital Expansion Fees.

(3)

Impact fees for market-rate dwelling units in a qualified development.

(c)

Application. Application for the Multi-Family Impact Fee Deferral Program must be submitted to the Development Services Department 60 days prior to submission of the building permit application.

The application at a minimum shall include the following:

•

Name and Address of the Applicant;

•

Legal description of the site upon which the development is proposed to be located;

•

Total number of units proposed;

•

Total number and percentage of units designated for Extremely Low, Very Low, Low and Moderate Income households

•

The square footage and number of bedrooms in each dwelling unit of the development;

•

Development and Operating Pro Formas.

(d)

Program Eligibility. To qualify for the Multi-Family Impact Fee Deferral Program the following criteria shall be met:

(1)

Tenure. The proposed development shall be rental units. Homeownership units are precluded from participation.

(2)

Minimum Development Size. The proposed development shall be a minimum of 48 units.

(3)

Minimum Set Aside. A minimum of 40% of units within the development shall be set-aside for Extremely Low, Very Low, Low and Moderate Income households. Any fraction of a unit will round up to the next whole number.

(e)

Unit Eligibility. Units eligible for the Multi-Family Impact Fee Deferral Program shall meet the following requirements.

(1)

Long Term Affordability. Units will be required to remain affordable for a minimum of 25 years.

(2)

Lease Terms. Lease terms may be no less than six months. Month-to-month or weekly rentals of units are prohibited.

(3)

Occupancy Restrictions. Eligible units shall not be occupied by the developer, any person related to or affiliated with the developer, or by a resident manager.

(4)

Discrimination. The developer, owner, manager, or agent shall agree that they will not discriminate against any tenant or potential tenant because of said [tenant's] race, color, religion, sex, national origin, familial status, or handicap.

(5)

Location, Construction and Design. The affordable housing units must be intermixed with, and not segregated from, the market rate dwelling units in the receiving development. The square footage, construction and design of the affordable housing units must be the same as market rate dwelling units in the development in which the units are being provided. No efficiencies are permitted under this program. Units must include at least one bedroom, full kitchen, and bath.

(6)

Disclosure. The developer, owner, manager, or agent shall not disclose to persons, other than the potential tenant of the affordable housing unit or units, which units in the development are designated as affordable housing units.

(f)

Qualifying rental dwellings:

(1)

To qualify for this program, a dwelling unit offered for rent must meet the following criteria:

a.

The household renting the dwelling unit must have an extremely low, very low, low or moderate income level, at the commencement of the leasehold thereof, as those terms are defined in § 2-24.51.

b.

The dwelling unit must be and must remain the household's permanent residence. The head of the household must be at least 18 years of age and must be either a citizen of the United States or be a legal alien who permanently resides in the United States.

c.

In no instance shall rental limits exceed the rental limits established by the Florida Housing Finance Corporation for rents adjusted to bedroom size in projects assisted under the Florida Housing Finance Corporation or any other local, state, or federal agency, based on unit size.

(g)

Repayment and Repayment Obligations.

(1)

The impact fees deferred shall be a lien on the property until all requirements under this article and the agreement have been satisfied. The lien may be foreclosed upon in the event of noncompliance with the requirements of the agreement. The agreement described herein shall operate as a lien against the dwelling unit. The lien shall terminate upon the recording of a release or satisfaction of lien in the Public Records of Lee County, FL. Such release shall be recorded upon payment in full or completion of the terms. Neither the deferred impact fees nor the agreement providing for the deferral of impact fees shall be transferred, assigned, credited or otherwise conveyed from the dwelling unit. The deferrals of impact fees and the agreement thereto shall run with the land.

(2)

The impact fees deferred shall in all events be due and payable no later than ten years after the execution by the city of the impact fee deferral agreement. Payment of deferred impact fees for qualifying rental multifamily units may be extended beyond ten years on a case-by-case basis with majority approval by the City Council. Such fees shall be accelerated and thereby be automatically due and payable prior to that time period if there is any breach in the subject impact fee deferral agreement by the noncity party.

(3)

Annually, the owner of a rental dwelling unit, including any multi-family rental dwelling unit, shall provide to the City Manager an affidavit of compliance with the criteria set forth in this section. The affidavit must be filed within 30 days of the anniversary date of the issuance of a certificate of occupancy, or at another mutually agreed on date. If the affidavit is not filed on time the affiant shall pay to the City a $75 late fee.

(4)

If the income of any unit renter which originally qualified as very low, low, or moderate income level exceeds the standards set forth in accordance with Code of Fed Regulation: 24 CFR Part 5, then the deferred impact fee shall become immediately due and payable by the owner or, in the alternative, the owner shall have 90 days to comply with the affordable housing standards set forth in this section.

(h)

Agreements.

(1)

Developers participating in the impact fee deferral program shall enter an agreement with the city in a form approved by the city. The agreement shall be recorded in the Public Records of Lee County, Florida at the expense of the owner.

(2)

A separate deferral agreement shall be executed for each qualifying rental development. While applicants are required to enter into a deferral agreement in order to receive a deferral of impact fees, nothing in this section requires the city to enter into a deferral [agreement].

(3)

The deferral agreement shall provide for, at a minimum, the following and shall further include such provisions deemed necessary by the city to effectuate the provisions of this article:

a.

The legal description of the development;

b.

Length and terms of agreement;

c.

Tenant qualification requirements;

d.

Time of Performance; and

e.

Default, Assignment and Violation provisions;

(4)

In the event the owner is in default under the agreement, and the default is not cured within 30 days after written notice is provided to the owner, the city may at its sole option collect the impact fee amounts in default, foreclose, or bring a civil action to enforce the agreement or declare that the deferred impact fees are then in default and immediately due and payable. The city shall be entitled to recover all fees and costs, including attorney's fees and costs, incurred by the city in enforcing the agreement, plus interest at the then maximum statutory rate for judgments calculated on a calendar day basis until paid.

(5)

The Developer's impact fee deferral agreement may be accepted by the city in lieu of prompt payment of the impact fee that would otherwise then be due and payable but for the agreement.

(6)

The agreement shall be binding upon the owner's successors and assigns.

(7)

Upon satisfactory completion of the agreement's requirements, the city shall record any necessary documentation evidencing same, including, but not limited to, a release of lien.

(i)

Ceiling on program.

(1)

The aggregate amount of impact fee deferrals granted pursuant to subsection (b) of this section shall be limited, in total, to 250 units annually with no rollover of units. The 250-unit limit may be exceeded on a case-by-case basis with majority approval by the City Council. If the requests for deferrals exceed the number of deferrals available, the City Manager may allocate deferrals based on the extent to which the deferrals implement the comprehensive plan, the consolidated plan, or other criteria based on policies and procedures that may be adopted by the City Council.

(2)

Participation in the program shall be on a first-come, first-served basis.

(3)

The city shall maintain a tracking system to ensure that the aggregate number of units do not exceed the ceilings established in this subsection.

(j)

Subordination. Impact fee deferrals may be subordinated but only if the owner provides additional cash equivalent financial instruments which will yield the full amount of the deferred impact fees when they may become due and payable.

(k)

Monitoring and Inspection. The Owner shall permit the city or its designee to inspect all records, including but not limited to financial statements and rental records, pertaining to Affordable Units upon reasonable notice and within normal working hours, and shall submit to the city such documentation as required by the city to document compliance with the impact fee deferral program. The City may, from time to time, make or cause to be made inspections of the Affordable Units, and Project rental records, to determine compliance with the conditions specified herein. The City shall notify the Owner prior to scheduled inspections, and the Owner shall make any and all necessary arrangements to facilitate the City's inspections. The City may make, or cause to be made, other reasonable entries upon and inspections of the Property, provided that the City shall give the Owner notice prior to any such inspections, specifying reasonable cause therefore related to the City interest in enforcing this Agreement. The City reserves the right to charge a monitoring fee.

(l)

Violations. Failure to adhere to the requirements set forth by this section may result in the impact fees becoming immediately due and payable and payment being considered delinquent from the date of the notarized affidavit and then becoming subject to collection provisions including payment of delinquency fees and interest.

(Ord. 17-25, § 1, 5-7-2025)

The purpose of this article is to replace Ord. 9-81 in its entirety and to establish rules and regulations concerning employment matters in the city so as to ensure that such matters are handled in a uniform, efficient, and effective manner.

The terms of this article shall apply to all employees of the city except as follows:

(a)

Contract workers shall have only those rights and privileges of employment as are specified in their written contracts of employment.

(b)

Employees who are covered by a collective bargaining agreement shall be governed by this article, except that in the event of a conflict between the terms of this article and the collective bargaining agreement, the terms of the collective bargaining agreement shall govern.

(a)

The City Manager, City Auditor, City Attorney and department heads may establish, modify and enforce operational rules, regula-tions and procedures in addition to the regulations contained herein; provided, however, that any such rules, regulations and procedures shall not be inconsistent with the regulations contained herein.

(b)

The City Auditor and the City Attorney shall have complete administrative authority over employees employed in their respective offices and the City Manager shall have no authority over such employees. The authority of the City Auditor and City Attorney over their respective employees shall include, but not be limited to, all disciplinary actions and appeals of disciplinary actions. Whenever the City Manager is referenced in this Article as having authority to take action or provide approval of an action, it is to be understood to mean the City Auditor or City Attorney are given the same authority to take action or provide approval of an action in their respective offices.

(Ord. 43-10, 4-26-2010; Ord. 26-21, § 1, 4-7-2021)

For the purpose of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ACTIVE MILITARY SERVICE. Active duty in the Florida defense force or federal service with any branch of the United States Army, Navy, Marine Corps, Air Force, or Coast Guard. The period of active military service shall commence with the date of entering upon active military service, and shall terminate with death, or a date 30 days immediately next succeeding the date of release or discharge from active military service, or upon return from active military service, whichever shall occur first. Active military service shall include the period during which a person in military service is absent from duty on account of illness, wounds, leave, or other lawful cause.

ADMINISTRATIVE LEAVE. Voluntary or involuntary paid leave which is not accrued and shall not cause the employee to exceed their normal number of hours in the employee's regular work day or work week.

(Ord. 89-20, § 1, 11-2-2020)

ANNIVERSARY DATE. The calendar date each year which is the same as the month and day of an employee's initial date of employment. Re-employment after a break in service shall result in a new anniversary date.

BREAK IN SERVICE. An interruption in continuity of employment by the city following a legal termination of such employment. Reductions in force for periods of less than 15 months shall not constitute a break in service.

CITY. The City of Cape Coral, Florida.

CLASSIFICATION. The occupational title assigned to a position or group of similar positions based on a common position evaluation.

CLASSIFICATION PLAN. A plan for the classification of all city employment positions which includes, but is not limited to, the official list of classifications, the assigned pay grade for each classification, the specification for each classification, the arrangement of classifications into occupational series (if appropriate), and the general salary schedule.

COLLECTIVE BARGAINING UNIT. Any one of the city's employee organizations which is approved by the Public Employees Relations Commission and with which the City engages in collective bargaining pursuant to F.S. Chapter 447.

CONDITIONAL PROBATIONARY PERIOD. Normally, a period of six months of conditional probation, immediately following promotion. This period may be extended for an additional period of up to six months. Such period of employment does not affect the employee's rights as a regular employee, including the right to appeal disciplinary action.

CONTRACT WORKER. A person who has a written contract for employment with the city to perform specific duties for a specified period of time.

DATE OF EMPLOYMENT. The date on which an employee begins active employment with the city.

DEMOTION. The voluntary or involuntary movement of an employee into a classification having a lower pay grade than the employee's previous classification. The term does not include the reclassification of a position or the reallocation of a classification.

DEPARTMENT HEAD. The director of each city department established pursuant to the City Code and Charter.

DIRECTOR. The Human Resources Director.

DISCIPLINE. An oral reprimand, written reprimand, suspension without pay, dismissal, or demotion of an employee.

(Ord. 89-20, § 1, 11-2-2020)

DISMISSAL. An involuntary separation from employment, except by expiration of term, suspension or retirement.

ELIGIBLE APPLICANT. A job applicant who meets the minimum qualifications for appointment to a position with the city.

EMPLOYMENT ANNOUNCEMENT. The notice used to publish a position to be filled.

EXAMINATION. Any device, including, but not limited to, evaluation of education and experience, oral interview, assessment center, performance test or written examination, which is used to evaluate the relevant qualifications of an applicant for a position.

FINAL ELIGIBILITY LIST. A roster of applicants from the initial eligibility list who have been evaluated and found to be the most qualified for the position to be filled.

FISCAL YEAR. The period of time which begins on October 1 of each year and continues through September 30 of the following year.

FULL TIME EMPLOYMENT. A work week regularly consisting of 40 hours of work.

GENDER EXPRESSION. All of the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, grooming, mannerisms, speech patterns and social interactions. Social or cultural norms can vary widely and some characteristics that may be accepted as masculine, feminine or neutral in one culture may not be assessed similarly in another.

GENDER IDENTITY. An individual's innate, deeply felt psychological identification as a man, woman or some other gender, which may or may not correspond to the sex assigned to them at birth (e.g., the sex listed on their birth certificate).

GENERAL SALARY SCHEDULE. A hierarchical series of pay grades, and the wage or salary range of each pay grade.

GRIEVANCE. The dissatisfaction that occurs when an employee thinks or feels that any condition affecting the employee is unjust, inequitable, or a hindrance to effective operation, provided that dissatisfaction with performance evaluations shall not be considered grievances unless it is alleged that the evaluation is based on factors other than the employee's performance. GRIEVANCES shall not include complaints related to disciplinary actions other than reprimands.

GRIEVANCE COMMITTEE. A group of five members impaneled to hear employee grievances.

IMMEDIATE FAMILY. The spouse, children (including step children), mother, father, sister, brother, grandmother, grandfather, and stepparent of an employee or an employee's spouse.

INITIAL ELIGIBILITY LIST. A roster of all of the applicants who meet or exceed the minimum qualifications and competencies for an announced position.

INITIAL PROBATIONARY PERIOD. A period of probational employment, in the same position, immediately following the original date of employment by the city, or following a break in service. During this period the employee may be disciplined or dismissed without a right of appeal.

LATERAL TRANSFER. The movement of an employee from one position to another position having the same pay grade and the same degree of responsibility. LATERAL TRANSFERS may be within the same department or from one department to another.

LEGAL HOLIDAY. Those holidays specified in § 2-35.4.

PAY GRADE. One of the hierarchical steps on the general salary schedule, including a minimum, mid-point and maximum, that define the wage or salary range for that step.

POSITION. A grouping of duties and responsibilities to be performed by an individual.

PROBATIONARY EMPLOYEE. A person who occupies a position in a classification included in the city's classification plan who has not yet successfully completed his or her probationary period.

PROMOTION. The competitive movement of an employee into a classification having a higher pay grade than the employee's previous classification. The term does not include the reclassification of a position or the reallocation of a classification.

RATE OF PAY. An employee's wage or salary, whichever is appropriate to an employee's status under the Fair Labor Standards Act (29 U.S.C. §§ 201—219).

REALLOCATION. The movement of a classification to a higher or lower pay grade based on an assessment of market conditions affecting the attraction, hiring and retention of employees in that classification.

RECLASSIFICATION. The non-competitive movement of an employee to a classification in the same or a different (higher or lower) pay grade due to a material change in that employee's job duties and responsibilities.

REDUCTION IN FORCE (LAYOFF). The involuntary separation, through no fault of the employee (as by reason of lack of work, lack of funds, changes in organization, or similar causes) and without adverse effect on the employee's eligibility for further employment.

REGULAR EMPLOYEE. An employee who has successfully completed the initial probationary period.

RE-HIRE. The re-engagement of a person for labor or personal services in return for a wage or salary. Persons who are re-hired are considered to be newly-hired for all purposes of this article.

RELOCATION EXPENSES; REIMBURSABLE. Those reasonable costs incurred by a newly hired or re-hired employee, as more particularly set forth in Division 13 below, who is relocating to Lee County from a distance of greater than 50 miles away, to commence employment with the City of Cape Coral. These expenses are contemplated to include the transporting of normal and customary household goods and personal effects, packing/unpacking, loading/unloading, incidental moving supplies, and reasonable insurance charges. Relocation expenses, which are not reimbursable include, but are not limited to, moving of airplanes, animals, and boats; special insurance for antiques, coin/stamp collections, paintings, and similar items of high intrinsic value; intermediate kennel and/or veterinary charges; and storage costs of household goods. Reimbursement of relocation expenses is limited to the actual costs of allowable expenses supported by original invoices or a maximum of $5,000, whichever is less. Mileage and tolls shall be reimbursed for no more than two personal vehicles, traveling the most direct route between the previous residence and the new residence (at the prevailing rate paid by the city pursuant to the administrative regulations) or in exceptional cases, the cost of the most economical airfare available for each member of the immediate family. Payment shall also be made for costs associated with meals and lodging, during the travel process, upon submission of receipts, in an amount not to exceed $200 per day, for a maximum of seven days. In addition, payment shall also be made for temporary living expenses for a maximum of 14 days, in an amount not to exceed $200 per day, once the travel process is complete. Temporary living expenses include hotel or motel accommodations and meals, if the hotel or motel does not have kitchen facilities for the preparation of meals. All relocation reimbursements will be reported on the employee's IRS Form W-2.

(Ord. 26-21, § 1, 4-7-2021)

RESIGNATION. The voluntary termination of employment by an employee.

SENIORITY. Preferential position which is based on length of continuous employment with the city and which is one of the criteria applied in determining order of layoff.

SEXUAL ORIENTATION. An individual's actual or perceived heterosexuality, homosexuality, or bisexuality.

SPECIFICATION. The written description of a classification. A specification shall contain:

(1)

A description of the scope of assigned duties and responsibilities for the classification;

(2)

A description of superior and subordinate, if any, relationships;

(3)

Examples of duties and responsibilities normally assigned;

(4)

The minimum qualifications required of the classification (including the education, experience, knowledge, skills and abilities required of the classification); and

(5)

The date of the specification's creation or last review.

SUSPENSION. Involuntary separation from employment without pay during a limited period of time for disciplinary purposes.

(Ord. 89-20, § 1, 11-2-2020)

TRANSFER. The voluntary or involuntary movement of an employee from one position to another in the same classification within the city department to which he or she is assigned.

WORKING DAYS. When computing any time periods under this article, the term "working days" shall not include Saturdays, Sundays, or legal holidays.

(Ord. 76-13, 2-24-2014; Ord. 4-17, § 1, 1-23-2017)

The city is an equal opportunity employer. The city shall assure fair and equal treatment of its employees regardless of race, religion, national origin, color, sex, age, political affiliation, gender identity, gender expression, sexual orientation, or disability.

(Ord. 4-17, § 1, 1-23-2017)

Discrimination against any person in recruitment, examination, appointment, training, promotion, retention, or any other personnel action because of race, religion, national origin, color, sex, age, political affiliation, gender identity, gender expression, sexual orientation, or disability is prohibited. The city manager shall provide for an alternate reporting procedure for sexual harassment complaints.

(Ord. 4-17, § 1, 1-23-2017)

(a)

Prohibition. The use, possession, manufacture, transportation, or sale of unauthorized controlled substances or the use of alcohol by any city employee during working hours or while on city property is prohibited. Employees are further prohibited from being at work while under the influence of alcohol or unauthorized controlled substances. This prohibition shall not be applicable to the consumption of alcohol by city employees who are off-duty and who are attending an authorized function or event at a city facility. A violation of this policy or the city's Drug Free Workplace Policy shall be grounds for disciplinary action up to and including dismissal.

(b)

Investigation.

(1)

Right to search. The city reserves the right, upon reasonable suspicion, to carry out reasonable searches of employees and their personal effects, including, but not limited to, lockers, lunch boxes, purses, and private vehicles parked on city property. Such searches may be initiated by the city without prior announcement, provided, however, that all searches shall be conducted in accordance with procedures approved by City Council.

(2)

Pre-employment drug screening. The city may require an applicant seeking employment with the city to submit to a pre-employment drug screen. Any applicant who tests positive for illegal substances shall not be employed by the city.

(3)

Reasonable suspicion drug testing. The city may demand that an employee submit to blood, urine or other medical testing to screen for the presence of unauthorized controlled substances or alcohol whenever the city has reasonable suspicion that the employee is under the influence of unauthorized controlled substances or alcohol. For purposes of this subsection, REASONABLE SUSPICION shall mean a belief that an employee is using or has used unauthorized controlled substances or alcohol in violation of the city's policy based on specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Such facts and inferences may include, but not be limited to, the following:

a.

Observable phenomena while at work, such as direct observation of drug or alcohol use or of the physical symptoms or manifestations of being under the influence of alcohol or other unauthorized controlled substances;

b.

Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance;

c.

A report of drug use, provided by a reliable and credible source, which has been independently corroborated;

d.

Evidence that an individual has tampered with a drug test during his employment with the city;

e.

Information that an employee has caused, or contributed to, an accident while at work;

f.

Evidence that an employee has used, possessed, sold, solicited, or transferred alcohol or unauthorized controlled substances while working or while on the city's premises or while operating the city's vehicle, machinery, or equipment.

(4)

Safety-sensitive drug testing. Persons employed in safety-sensitive positions may be required to submit to one or more drug tests at the discretion of the city. For purposes of this subsection, the term SAFETY-SENSITIVE POSITION means any position, including a supervisory or management position, in which a drug or alcohol impairment would constitute an immediate and direct threat to public health and safety.

(5)

Disciplinary action. Refusal of any employee to submit to searches or to submit urine or blood samples will result in appropriate disciplinary action, up to and including dismissal.

(6)

Addiction referral. The city encourages any employee with a substance abuse problem to contact the Human Resources Department for assistance. All records and communications shall be treated as confidential medical information and shall be maintained separately from the employee's personnel file. The refusal of an employee to seek treatment for a substance abuse problem may be cause for disciplinary action, up to and including dismissal.

(a)

As an individual, each employee retains all rights and obligations of citizenship provided in the Constitution and laws of the state and the Constitution and laws of the United States. However, no city employee shall:

(1)

Take any active part in a political campaign during working hours;

(2)

Distribute or disseminate campaign literature while wearing a city uniform; or

(3)

Hold a public or political office, unless:

a.

The employee is holding a public office unrelated to the city; and

b.

Such public or political office involves no interest which conflicts with or activity which interferes with his or her city employment. Instances in which a conflict of interest shall be presumed include, but are not limited to, instances in which the public office is a full-time office or where activities of the public office are normally performed during the employee's assigned working hours.

(b)

Except as specifically provided herein, nothing in this article shall be construed to prohibit any city employee from expressing his or her opinions on any candidate or issue, or from participating in any political campaign during his or her off duty hours.

City employees shall have all those rights specified in F.S. Chapter 447 pertaining to public employees. This shall include the right to form and join employee organizations for the purpose of representation concerning matters of employment. However, no city employee or employee organization may engage in any manner in a slowdown, work stoppage, strike or any other interference with the work, functions, or obligations of the city.

Full time employment with the city is considered primary employment. No full time city employee shall have or hold any other employment without the prior written consent of his or her department head. Such consent shall not be unreasonably withheld. Factors which the department head shall consider in determining whether to consent to such outside employment include, but are not limited to, whether there is a conflict of interest or whether there is a conflict with working hours. Employees shall not engage in outside employment activities on city time, nor may city property be used for anything but city business. If the secondary employment subsequently affects the full-time employee's performance or attendance, or if a conflict of interest is subsequently discovered, the department head shall, in writing, revoke his or her prior written consent and order the employee to cease the secondary employment. An employee's failure or refusal to cease secondary employment within a reasonable period after such revocation of consent shall constitute grounds for disciplinary action.

(a)

As a condition of employment, any person who becomes employed by the city shall execute a public employment oath as required by F.S. § 876.05. Unless the public employment oath required by F.S. § 876.05, as same may hereafter be amended or other Florida law requires that the public employment oath be in another form, the public employment oath required of city employees shall be in the following form:

(b)

In the event the public employment oath required by F.S. § 876.05, as same may hereafter be amended or other Florida law requires that the public employment oath be in another form, then the public employment oath required by Florida law shall supersede the oath contained herein.

(a)

A city employee shall not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the city over which that person exercises jurisdiction or control, any individual who is a relative of that employee.

(b)

No city employee shall be employed in a classification which is directly supervised by that employee's relative, except where both employees are state certified law enforcement officers or fire fighters.

(c)

For purposes of this section, the term RELATIVE shall mean an individual's father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister, grandmother, step-grandmother, grandfather, step-grandfather, grandson, step-grandson, granddaughter, step-granddaughter, spouse's grandmother, spouse's step-grandmother, spouse's grandfather, spouse's step-grandfather, spouse's grandson, spouse's step-grandson, spouse's granddaughter, and spouse's step-granddaughter.

(Ord. 80-10, 11-15-2010)

(a)

General. All positions which a department intends to fill shall be announced by the Human Resources Department as provided in this section. Except as provided herein, all employment announcements shall be restricted to current employees. If the Director, with the concurrence of the department head, determines that it is in the city's best interest to announce a position externally, such position shall be available to both internal and external applicants.

(b)

Notice requirements.

(1)

All employment announcements shall be posted on the bulletin board(s) maintained by the Human Resources Department and on those bulletin boards identified by the Director, or the Director's designee, as being "official" bulletin boards for employment announcements. In addition to posting, the Director, or the Director's designee, with the concurrence of the department head, may utilize other methods of notice, including, but not limited to, newspaper, television, internet or other media advertising; local, state, regional, or national publications; and the like.

(2)

The announcement period shall be a minimum of ten working days.

(c)

Contents of employment announcements. All employment announcements shall, at a minimum, contain the following:

(1)

Classification of the position;

(2)

Pay grade/salary range for the classification;

(3)

A statement of the essential duties and responsibilities of the position;

(4)

The minimum qualifications for the position;

(5)

Deadline for submitting application;

(6)

A statement indicating where the application is to be submitted; and

(7)

The statement, "An Equal Opportunity Employer".

(Ord. 76-13, 2-24-2014)

(a)

Application form. Unless otherwise specified in the eligibility list announcement, all applications for city employment shall be made on forms approved by the Director. Prior to appointment to a position, an approved application form must be completed and submitted by the successful applicant.

(b)

Deadline for submission. Applications must be submitted to the Human Resources Department (if by hand delivery) or postmarked by the deadline stated in the eligibility list announcement. Employment applications received after the deadline shall not be included on the eligibility list.

(a)

Creation of initial eligibility list. After the close of the announcement period for an employment announcement, the department head, with the concurrence of the Director or the Director's designee, shall prepare an initial eligibility list which shall contain the names of all applicants who met the minimum qualifications for the classification.

(b)

Evaluation of applicants.

(1)

General policy. Selection of applicants for city employment shall be based on an objective job analysis of the position being filled and on an assessment of the specific knowledge, skills and abilities necessary for the successful performance of the duties of the position.

(2)

Methods of evaluation. The department head shall select applicants from the initial eligibility list for the purpose of conducting further evaluation and placement on the final eligibility list. In conducting said evaluation, the department head shall utilize one or more of the following methods:

a.

Reference check/background check. The gathering and use, at one or more stages of the selection process, of information about applicants from people who have knowledge of their work experience or educational background.

b.

Oral interview. A series of job related questions that are consistently asked of all applicants chosen to be interviewed for a particular vacant position with responses being noted and evaluated in order to identify applicants' relative qualifications for the position.

c.

Work sample. A task that is representative of work actually performed on the job, assigned to applicants to identify those who already possess the ability to perform that task.

d.

Examination. A written and/or proficiency assessment of an applicant's knowledge, skills, and abilities.

(c)

Term of final eligibility list. A final eligibility list shall expire after one year unless the Director or the Director's designee either extends the list for a period not to exceed an additional six months or terminates the list as insufficient prior to the one year period.

(d)

Preferences in employment.

(1)

Veteran's preference. The city will give preference in appointment and retention to certain eligible veterans in accordance with Florida Statutes.

(2)

Minority preference. In the event two or more persons are equally qualified for a classification, the City shall give preference to the minority candidate as defined by law.

(Ord. 76-13, 2-24-2014)

Prior to the appointment of any city employee, the Human Resources Department shall verify that the appointee:

(a)

Meets the minimum qualifications for the position he or she will fill;

(b)

Is a United States citizen, a permanent resident alien, or an alien authorized by the Immigration and Naturalization Service to work in the United States; and

(c)

Has been declared by the city's physician to be in good health.

(d)

Has successfully completed a reference and background check.

(e)

If required for the position, has successfully completed a fingerprint-based criminal history screening.

(Ord. 38-16, § 1, 9-12-2016)

(Ord. 76-13, 2-24-2014)

When City Council makes a determination that the city is unable to sustain current levels of service within available resources, it may impose restrictions on hiring in some or all city positions. For purposes of this section, the term HIRING shall include the filling of any vacant position, whether by initial employment or promotion. In order to impose restrictions on hiring, the City Council shall adopt a resolution that details the extent and duration of the restrictions on hiring. The resolution may also provide for a procedure whereby City Council can approve exceptions to the restrictions on hiring, such as in instances when hiring for certain positions is deemed necessary for the effective operation of the city.

(Ord. 27-08, 3-17-2008)

(a)

Pursuant to F.S. § 166.0442, the City of Cape Coral will require each person applying for, or continuing employment in any position, whether paid, unpaid, or contractual, which the City Council finds is critical to security or public safety of the city and/or its citizens to be fingerprinted. The fingerprints shall be submitted to the Department of Law enforcement for a state criminal history check and to the Federal Bureau of Investigation for a national criminal history record check.

(b)

The job description or appointment application will specify whether the position or appointment sought will require a criminal history screening due to the security or public safety concerns associated with the position or appointment. The information obtained from the criminal history record checks may be used by the city to determine a person's eligibility for such employment or appointment, or for continued employment or appointment. Criminal history screenings can be required at any time during the employment or appointment. Nothing contained herein is intended to prevent any other background screening, including, but not limited to, criminal history background checks, that a municipality may lawfully undertake.

(Ord. 38-16, § 1, 9-12-2016)

(a)

No original appointment to a vacant position shall be made by the city until the department has recalled laid off employees entitled to recall as provided in Division 6 and has considered those employees on the reemployment roll who are eligible for preference as provided in Division 3.

(b)

Except for a promotion, demotion, or transfer appointment made as provided herein, all appointments to available positions shall be considered original appointments.

(c)

Upon original appointment to a position, the following shall apply:

(1)

Contract worker. Contract workers shall have only those rights and privileges as specified in their written contract of employment.

(2)

Probationary period. An employee appointed to fill a position on a regular, full time or part time basis shall serve an initial probationary period. The initial probationary period shall be for six months from the original date of employment. An employee's initial probationary period may be extended for an additional six months. Decisions on whether to extend an employee's probation shall be made by the department head.

a.

Termination of employment. The department head may terminate a probationary employee at any time during the probationary period and the employee shall have no right to appeal said termination. An employee whose performance does not improve to a satisfactory level during the extended probationary period shall be terminated from employment with the city.

b.

Paid leave. An employee shall not be entitled to use accrued leave during the first six months of the probationary period, provided, however that in the case of illness, an employee may use accrued leave. An employee who is terminated during the initial probationary period shall not receive payment for any unused leave.

c.

Break in service. Any employee who is rehired after a break in service shall serve a new initial probationary period.

d.

Classification change. Transfer or promotion of newly hired employees during probation shall not effect the initial probationary period. Employees who are promoted shall also serve a conditional probationary period as provided herein.

(3)

Non-competitive appointment. Upon the approval of both the department head and the Director, a former employee who either resigned or retired may be appointed to his or her former classification without competition provided that said former employee requests appointment within one year of resignation or retirement. Persons hired pursuant to this paragraph shall be considered new employees for all purposes of this article.

Upon satisfactory completion of the initial probationary period, and any extension thereto, an employee shall become a regular employee. An employee shall be presumed to have satisfactorily completed such probationary period(s) unless the employee has received a written performance evaluation, on a form approved by the Director, which is below operational standard.

(a)

An employee is promoted when the employee competes and is moved into a classification which has a higher pay grade.

(b)

An employee who is promoted shall be required to serve a six-month conditional probationary period.

(c)

A promoted employee may be demoted at any time during the conditional probationary period without the right to appeal, unless the demotion is to a lower-graded classification than the classification in which the employee was serving, as a regular employee, immediately prior to the promotion. Any person who feels he or she has been demoted during the conditional probationary period in violation of the city's equal employment policy may file a grievance as provided in Division 9.

(a)

An employee is demoted when the employee is voluntarily or involuntarily moved into a classification which has a lower pay grade.

(b)

An employee who is demoted prior to becoming a regular employee shall be required to complete an initial probationary period in the lower classification.

(c)

An employee who is demoted during the initial probationary period in a classification shall not have the right to appeal the demotion.

(d)

A regular employee who is demoted shall have the right to appeal the demotion as provided in Division 8 unless the employee has signed a statement that the demotion is voluntary.

(a)

An employee may be voluntarily or involuntarily transferred from one position to another position in the same classification within the city department to which he or she is assigned. An employee may be transferred from a classification in one department to the same classification in another department only with the approval of the City Manager.

(b)

The transfer of a probationary employee shall not affect that employee's initial probationary period.

(c)

A regular employee who is laterally transferred shall not be required to serve any probationary period.

(d)

An employee shall not be entitled to appeal a lateral transfer. However, an employee shall be entitled to file a grievance related to a lateral transfer from one department to another if the employee believes that the lateral transfer is inappropriate, improper or unfair for some reason.

An employee who intends to retire from city employment shall provide the city with written notice of such intent to retire not less than 60 calendar days prior to the effective date of the retirement. Once an employee's notice of retirement has been accepted by the city, the employee shall not have the right to withdraw the decision to retire, unless the department head, in his or her sole discretion, consents to the withdrawal of the decision to retire in writing. An employee who submits a written notice of retirement shall not have the right to appeal the decision of a department head not to allow withdrawal of the retirement notice.

An employee who intends to resign shall present the reasons therefor in writing to the city not less than 14 calendar days prior to the effective date of the resignation. Once an employee's notice of resignation has been accepted by the city, the employee shall not have the right to withdraw the resignation, unless the department head, in his or her sole discretion, consents to the withdrawal of the resignation in writing. An employee who submits a written resignation shall not have the right to appeal the decision of a department head not to allow withdrawal of the resignation.

Any non-bargaining unit employee who does not fully comply with the provision for written notice for intended resignation stated herein shall forfeit any and all accumulated leave time and shall not receive payment for any unused accrued leave. The City Manager, City Attorney, or City Auditor, in their sole discretion, may waive this penalty when an employee employed in their respective offices or otherwise under their respective authority demonstrates extenuating circumstances that do not reasonably allow the employee to comply with written notice at least 14 calendar days prior to the date of resignation.

The City Manager, City Attorney, or City Auditor, in their sole discretion, may provide a payment in an amount not greater than 30 days of compensation to a non-bargaining unit employee who has provided written notice of resignation.

(Ord. 63-17, § 1, 3-5-2018; Ord. 18-22, § 1, 3-2-2022)

Personnel actions contemplated in this section are those which result in an employee's separation, either permanently or temporarily, from city employment. These actions include termination during initial probationary period, reduction in force, involuntary administrative leave, suspension without pay, demotion for cause, and dismissal from employment.

(Ord. 89-20, § 1, 11-2-2020)

Probationary employees may be dismissed without cause during the initial probationary period. The City Manager, City Attorney, or City Auditor, in their sole discretion, may provide a payment in an amount not greater than 30 days of compensation to a non-bargaining unit employee who is terminated during the initial probationary period. Employees who are terminated during the initial probationary period shall not have the right to appeal their termination unless it is in violation of the city's equal employment policy.

(Ord. 18-22, § 1, 3-2-2022)

(a)

The City Council may reduce the number of employees for the following reasons: shortage of funds or work, abolishment of a position, inefficient or unproductive position, or a material change in the duties or organization of the department or any component thereof. If an affected position or classification is re established or re staffed within 18 months of the date of layoff, laid off employees shall be recalled as provided herein.

(b)

The City Manager, in conjunction with the department head, shall designate classifications where layoffs will occur.

(c)

After the positions or classifications in which layoffs will occur have been determined, the following shall apply in determining which employees will be laid off:

(1)

Layoffs shall be made by classification within a city department.

(2)

The order of layoff shall be in reverse order of total continuous years of service with the city.

(3)

An employee entitled to veterans' preference shall have five days added to his or her continuous years of service for each full year of employment with the city.

(4)

In the event two or more employees have the same number of total continuous years of service with the city, the order of layoffs shall be in reverse order of total continuous years of service with the city department where the layoff is to occur.

(5)

In the event two or more employees have the same number of total continuous years of service within the city department, the order of layoffs shall be in reverse order of total continuous years of service in the classification where the layoff is to occur.

(6)

In the event two or more employees have the same number of total continuous years of service within the classification, the employee whose most recent performance appraisal was the highest shall be retained.

(7)

In the event two or more employees have the same number of total continuous years of service within the classification and the most recent performance appraisals for said employees are equal in quality, the order of layoffs shall be determined by the department head on the basis of the experience, knowledge, skill and abilities of the affected regular employees.

(8)

Prior to the layoff of any regular employee, the Director shall certify in writing that the above procedure was correctly followed by the city.

(d)

An employee who has been laid off from his or her classification pursuant to subsection (c) above shall be entitled to displace (i.e. bump) an employee in another classification provided that:

(1)

The laid-off employee has previously worked in the classification of the employee to be displaced;

(2)

The classification of the employee to be displaced is not included in an employee organization with which the city engages in collective bargaining;

(3)

The laid-off employee currently meets the minimum qualifications of the classification of the employee to be displaced;

(4)

The laid-off employee is currently qualified and able to perform the work of the classification of the employee to be displaced, or can become qualified and able to perform the work of the classification of the employee to be displaced within 30 calendar days of "bumping" the employee to be displaced; and

(5)

The laid-off employee has more total continuous years of service with the city in accordance with subsections (c)(2) and (3) above.

(6)

The classification of the employee to be displaced is lower than the classification which the laid-off employee most recently occupied.

(e)

A laid-off employee seeking to displace ("bump) an employee in another classification shall notify the Director in writing and indicate the classification into which he or she intends to "bump" within five calendar days of the receipt of his or her written notice of layoff.

(f)

The rate of pay for a laid-off employee who has displaced ("bumped") an employee in another classification shall be determined according to regulations set forth for Rate of Pay Upon Demotion.

(Ord. 26-21, § 3, 4-7-2021)

(g)

If a laid-off employee is not entitled to displace ("bump") an employee in another classification, the Director shall attempt to place the laid-off employee in any budgeted, vacant position for which the laid-off employee meets the minimum qualifications of the classification.

(h)

The rate of pay for a laid-off employee who has been placed in another classification position pursuant to subsection (g) above shall be determined according to regulations set forth for Rate of Pay Upon Demotion.

(Ord. 26-21, § 3, 4-7-2021)

(i)

Prior to the displacement of any regular employee, the Director shall certify, in writing, that the above procedure was correctly followed by the city.

(j)

A regular employee shall receive written notice of layoff at least 30 calendar days prior to the effective date of the layoff. City Council shall fund any position in which a layoff occurs to provide for said 30-day notice.

(k)

A regular employee who is displaced ("bumped") by another regular employee pursuant to subsection (d) above shall receive written notice of layoff at least 15 calendar days prior to the effective date of the displacement. City Council shall fund any position in which a displacement occurs to provide for said 15-day notice.

(Ord. 26-21, § 3, 4-7-2021)

(l)

Recall to a classification shall be in reverse order of layoff. An employee shall be deemed to have been recalled to employment when the city has sent a written notice of recall to the employee's last known address. Such notice of recall shall be sent by certified mail, return receipt requested. It shall be the responsibility of the employee to notify the city of any change in address and to maintain a current address with the city at all times.

(m)

No benefits or seniority shall accrue during the actual period that an employee is laid off, regardless of whether the employee is later recalled. However, in the event a regular employee is recalled following layoff, all benefits and seniority to which such regular employee was entitled on the date of layoff and for which the employee was not otherwise compensated at the time of layoff shall be reestablished on the date of reemployment. However, if the date of reemployment is on or prior to the fifteenth day of the month, then insurance coverage for the employee shall commence on the first day of the month following reemployment. If the date of reemployment is after the fifteenth day of the month, then insurance coverage for the employee shall commence on the first day of the second month following reemployment.

(n)

A laid off regular employee shall be paid for all leave to which he or she is entitled upon leaving the city's employment, and shall be permitted to continue health care coverage under the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).

(o)

A laid off regular employee shall retain recall rights for up to a maximum of 18 months. A laid off regular employee shall forfeit all recall rights if he or she fails to return to work within five working days after receipt of a written recall notice. However, if the notice of recall is returned to the city as undeliverable to the employee or, if the employee fails or refuses to claim the notice of recall sent to the employee by the city, then the employee shall be deemed to have automatically forfeited all recall rights.

(p)

An employee who has been laid off and who is reemployed in the same classification, pursuant to the recall provisions of this article, shall be reemployed at the same rate of pay he was receiving at the time of layoff, or the minimum of the pay range for the classification, whichever is higher.

(q)

Under no circumstances shall a layoff be considered a disciplinary action, and in the event an employee elects to file a grievance concerning the action taken, such grievance must be based upon whether the layoff was in accordance with the provisions of this article.

The City may impose involuntary administrative leave, when it is determined to be in the best interest of the City, for reasons that include, but are not limited to, a pending investigation that involves the employee, a pending disposition of felony charges against the employee, a pending disposition of misdemeanor charges against the employee directly related to the employee's job duties, impairment of the employee which affects his or her ability to safely and effectively perform his or her job, or the inability of an employee to safely and effectively perform his or her job. Involuntary Administrative Leave may be imposed as follows:

(a)

The City Manager may place an employee on involuntary administrative leave. Prior to placing an employee on involuntary administrative leave, the employee shall be provided notice of such involuntary administrative leave. Such notice shall be in writing and shall state the reason(s) for the involuntary administrative leave, the effective date of the involuntary administrative leave, and the expectations of the employee during the leave period. The notice of involuntary administrative leave shall be either hand delivered to the employee or sent to the employee by certified mail, return receipt requested.

(b)

An employee may be placed on involuntary administrative leave immediately by the department head, with the concurrence of the Director, without the benefit of written notice, upon the determination that such involuntary administrative leave is in the best interest of the City. The employee will be provided written notice of the reason(s) for the involuntary administrative leave as soon as practicable. The term of leave shall be as long as necessary to correct the issue, but in no event shall it be longer than 30 days unless the period is extended by the City Manager.

(c)

When an employee's presence in the workplace may result in injury to the employee or others, or would be detrimental to the best interest of the City, an employee may be temporarily assigned other duties if deemed advisable in lieu of being placed on involuntary administrative leave.

(Ord. 89-20, § 1, 11-2-2020)

An employee may be suspended without pay from employment with the city for just cause for disciplinary reasons. Prior to suspending an employee without pay, the department head shall comply with the procedures prescribed in Division 7. An employee who has attained regular status and who is suspended without pay shall have the right to appeal such suspension without pay as provided in Division 8 of this article.

(Ord. 89-20, § 1, 11-2-2020)

Editor's note— Ord. 89-20, § 1, adopted Nov. 2, 2020, renumbered § 2-30.4 as § 2-30.5.

(a)

An employee may be dismissed from city employment for just cause.

(b)

Prior to dismissing an employee, the department head shall comply with the procedures prescribed in Division 7. An employee who has attained regular status shall have the right to appeal a dismissal as provided in Division 8.

(Ord. 89-20, § 1, 11-2-2020)

Editor's note— Ord. 89-20, § 1, adopted Nov. 2, 2020, renumbered § 2-30.5 as § 2-30.6.

(a)

Except for investigations regarding sworn police officers or firefighters, when the City determines that an investigation is warranted due to a possible disciplinary issue or other type of issue, the investigation shall be conducted by a department or office whose duties include internal employee investigations, such as the Human Resources Department, and shall not be investigated by the Police Department or Fire Department. Nothing precludes the investigator from utilizing the resources of other departments.

(b)

When the City determines that an investigation that involves sworn police officers or firefighters is warranted, the Police Department shall conduct investigations involving sworn police officers, and the Fire Department shall conduct investigations concerning firefighters in order to maintain their rights pursuant to F.S. §§ 112.532 and 112.82, respectively.

(c)

Except for investigations performed in accordance with subsections (a) and (b) herein, the City shall use the services of an external investigator to perform investigations.

(d)

Nothing herein precludes criminal investigations being conducted by the Police Department or other law enforcement agency.

(Ord. 89-20, § 1, 11-2-2020)

Editor's note— Ord. 89-20, § 1, adopted Nov. 2, 2020, changed the title of § 2-31.1 from "general" to read as herein set out.

No disciplinary action shall be taken against an employee with regular status without cause. Disciplinary actions, in increasing order of severity, shall consist of oral reprimand, written reprimand, suspension without pay, demotion, and dismissal.

Generally, the city shall follow a policy of progressive discipline by which less severe forms of discipline are imposed prior to resorting to the imposition of more severe sanctions for the same or similar conduct by the employee. The city, however, reserves the right to impose even the most severe discipline at any point in the process when circumstances warrant.

(Ord. 89-20, § 1, 11-2-2020)

One or more of the following reasons shall constitute cause for disciplinary action:

(a)

Incompetence or continued rendering of unsatisfactory service after instruction and/or counseling;

(b)

Gross neglect of duty or specific serious failure to perform assigned duties;

(c)

Mental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position;

(d)

Insubordination;

(e)

Serious breach of discipline;

(f)

Absence without leave, or failure to give proper notice of absence;

(g)

Failure to return to duty at the end of an authorized absence;

(h)

The use of alcoholic beverages or unauthorized controlled substances while on duty;

(i)

Impairment, to any degree, of an employee's ability to effectively perform his or her job duties due to the use of drugs, alcoholic beverages, narcotics or other controlled substances;

(j)

Possession of unauthorized controlled substances during working hours on city property;

(k)

Conviction, or entry of a plea of guilty or nolo contendere, of a felony or of a misdemeanor charge directly related to the employee's job duties;

(l)

Negligent or willful damage to city property;

(m)

Theft, conversion of, or willful or careless waste of, city supplies, property, or equipment;

(n)

Excessive unauthorized tardiness or absence from work;

(o)

Inducing or attempting to induce an officer or employee of the city to commit an unlawful act;

(p)

Using, threatening, or attempting to use personal or political influence in securing promotion, leave of absence, transfer, change in pay, change in character of work, or a change in any other term or condition of employment. For purposes of this section the exercise by an employee of his or her right to petition the City Council shall not be considered to be "personal or political influence";

(q)

Taking for personal use from any person, a fee, gift, or other valuable thing in the course of work or in connection with work, when the gift or other valuable thing can reasonably be assumed to be offered with the intent or expectation of receiving a favor or better treatment than that accorded other persons. The payment of less than $25 for a meal consumed in the course of business is not included in this prohibition;

(r)

Except as allowed pursuant to F.S. § 790.251, the unauthorized possession of firearms, knives, explosives, or other weaponsduring and in the course of the employee's official duties;

(s)

Falsification of any document related to the employee's city employment, including but not limited to, the employee's qualifying application for employment and/or promotion, the employee's time sheets, or any other official document of the city;

(t)

Unauthorized use of city personnel services, supplies, property, facilities, or equipment;

(u)

Engaging in personal or business activities unrelated to city employment during work hours;

(v)

Refusal or failure to fully and truthfully cooperate in any investigation related to city business and conducted by or at the direction of the City Council, City Manager, City Police Department, City Attorney, or the department head;

(w)

Failure or refusal to perform tasks properly assigned by any person in authority;

(x)

Violation of department work rules or operating procedures;

(y)

Insulting, inflammatory, or abusive language or conduct toward other city employees or toward members of the public while on duty;

(z)

Sleeping while on duty without authorization;

(aa)

Engaging in a strike prohibited by F.S. § 447.505, as such may hereafter be amended;

(bb)

Fighting, horseplay, unsafe conduct or misconduct while on duty or during work hours on city property;

(cc)

Harassment, brutality or cruelty to another city employee or member of the public, provided that the act was not lawfully or necessarily committed in self defense or to protect the lives of others, or to prevent the escape of a person in custody;

(dd)

Discrimination against any person in recruitment, examination, appointment, training, promotion, retention, or any other personnel action, because of political or religious affiliations, or because of sex, color, age, marital status, handicap, physical or mental impairment, race, national origin, citizenship status, or any other non performance factor;

(ee)

Ethnic, racial, religious, sexual, or other harassment directed toward any person in recruitment, examination, appointment, training, promotion, retention, or any other personnel action;

(ff)

Failure to maintain competence, qualifications, or legal capacity to perform the duties of the employee's position;

(gg)

Utilization of official position for unauthorized personal gain;

(hh)

Actions or conduct detrimental to the interests of the city; and

(ii)

Any other properly substantiated cause which adversely affects the city.

(Ord. 58-11, 9-26-2011)

(a)

Applicability to employees covered by a collective bargaining agreement. When disciplinary action is both appealable as provided herein and grievable under the grievance procedure prescribed by a collective bargaining agreement, an employee who is in a position that is in a certified bargaining unit covered by the collective bargaining agreement shall have the option of utilizing the appeal procedure prescribed herein or the collective bargaining grievance procedure, but such employee cannot use both the appeal procedure and the grievance procedure.

(b)

Notice. When disciplinary action against an employee with regular status is contemplated by the city, the department head shall provide the employee with written notice of the intended action(s). The written notice shall be hand delivered or mailed by certified mail, return receipt requested, to the employee and shall include the following:

(1)

The proposed effective date of the disciplinary action;

(2)

The specific charges or reasons for the action and identification of any documents on which the charges are based;

(3)

A statement advising the employee that he may, within three working days of receipt of the notice, submit a request in writing for an informal pre-disciplinary conference to refute or explain the charges made against the employee;

(4)

The name, address and telephone number of the person to whom the request for a conference shall be directed; and

(5)

A statement advising that if the employee requests a conference, no disciplinary action will take effect until after the conference has been held. The conference shall be held at a time and place determined by the city, normally during regular business hours.

(c)

Pre-disciplinary conference.

(1)

The conference shall be conducted by the person who has the authority to make a decision as to what, if any, discipline is to be imposed, generally the department head. In the case of a department head, the City Manager shall conduct the pre-disciplinary conference.

(2)

The person conducting the pre-disciplinary conference shall explain that the purpose of the conference is to hear the employee's position concerning the charges and to provide an opportunity to reevaluate the situation after reviewing the information presented by the employee.

(3)

The conference shall be informal and shall not be in the nature of an evidentiary hearing. The employee may bring an attorney, at his or her own expense, to assist or advise him or her, but formal rules of evidence shall not apply.

(4)

The employee shall be permitted to submit relevant information, orally or in writing, or both. The employee shall be informed that if he chooses to make no response, the city will proceed on the basis of the best information it can obtain without such response.

(5)

At the conclusion of the conference, the person conducting the conference shall inform the employee when the decision on whether to take disciplinary action will be forthcoming and how the employee will be notified.

(6)

After considering all information presented at the conference, the person conducting the conference may rescind or lessen the discipline first intended, or may proceed. In no event shall the discipline imposed be greater than that specified in the notice of proposed disciplinary action.

(7)

The person who conducted the pre-disciplinary conference shall notify the employee of the outcome of the pre-disciplinary conference in writing. If the decision is to impose disciplinary action on the employee, then the disciplinary action to be imposed must be embodied in a final notice of disciplinary action which must be provided to the employee by hand delivery or by certified mail, return receipt requested. The final notice of disciplinary action shall state clearly the nature of the discipline to be imposed, the effective date(s) of such discipline, and the reasons for the disciplinary action. Except in those instances where the employee being disciplined is a department head, the final notice of disciplinary action shall also contain a statement informing the employee of his or her right to seek review by the City Manager of the decision of the department head or his or her designee and the time period in which such review must be requested and a statement advising that if the employee requests such review, no disciplinary action will take effect until after the review has been completed. In the event the employee being disciplined is a department head, then the final notice of disciplinary action from the City Manager shall contain a statement informing the department head of his or her right to appeal the action taken as provided in Division 8 or this article.

(d)

Review by City Manager.

(1)

The employee shall have ten working days from receipt of the final notice of disciplinary action within which to request, in writing, a review by the City Manager of the decision imposing disciplinary action. The written request shall be filed with the City Manager's office and shall state the reason or reasons the employee believes that the disciplinary action was not justified.

(2)

Within ten working days from receipt of the employee's request for review of the decision imposing disciplinary action, the City Manager shall schedule a proceeding for the purpose of reviewing the decision imposing disciplinary action.

(3)

At the review proceeding, the City Manager shall explain that the purpose of the proceeding is to determine whether the disciplinary action to be imposed is based on good and sufficient cause.

(4)

The review proceeding shall be informal and shall not be in the nature of an evidentiary hearing. The employee may bring an attorney to assist or advise him or her, but formal rules of evidence shall not apply.

(5)

The employee and the department head shall be permitted to submit relevant information, orally or in writing, or both.

(6)

At the conclusion of the review proceeding, the City Manager shall inform the employee when a decision on the request for review will be forthcoming and how the employee will be notified. The decision shall be rendered not more than 15 working days after the conclusion of the review proceeding.

(7)

After considering all information presented at the proceeding, the City Manager may rescind or lessen the discipline first intended, or may uphold the decision of the department head or his or her designee. In no event shall the discipline imposed be greater than that specified in the final notice of disciplinary action.

(8)

The City Manager shall notify the employee of the outcome of the review proceeding in writing. The notice shall clearly state whether the City Manager has upheld, modified, or reversed the decision of the department head or his or her designee to impose disciplinary action. If, based on the review proceeding, the City Manager modifies or upholds the discipline imposed in the final notice of disciplinary action, then the notice shall state clearly the nature of the discipline to be imposed, the effective date(s) of such discipline, and the reasons for the disciplinary action. In addition, the notice from the City Manager shall contain a statement informing the employee of his or her right to appeal the action taken as provided in Division 8 of this article.

No employee may appeal a suspension, dismissal, or involuntary demotion for cause unless the employee has first utilized the pre-disciplinary conference and review proceedings available to employees with regular status under Division 4 of this article. The appeal rights provided in this section shall apply only to employees with regular status who have been suspended, dismissed, or involuntarily demoted for cause. Employees shall not have the right to appeal oral or written reprimands, but may file grievances with respect thereto.

Any employee with regular status who is thereafter suspended or dismissed from employment with the city or involuntarily demoted for cause shall have the right to request a hearing to appeal said disciplinary action by making a written request to the Director within ten working days from the date of receipt of the final notice of disciplinary action to be imposed following review proceeding conducted by the City Manager. The request for an appeal hearing shall state clearly and simply the reason or reasons the employee believes the disciplinary action was not justified and must be received by the Director within the ten working day time period. The employee may be represented by an attorney, at his or her own expense, at all stages of the appeal.

The city shall contract with the State of Florida, Division of Administrative Hearings, for hearing officer services.

When a request for an appeal hearing is filed, the Director shall notify the State of Florida, Division of Administrative Hearings, and the Division shall assign a hearing officer to hear the case.

(a)

Scheduling of hearings. The Director shall schedule requests for appeal hearings of suspensions or involuntary demotions for cause within 60 days of receipt of a notice of appeal. The Director shall schedule any timely filed appeal of dismissal within 30 days of receipt of a notice of appeal. The Director shall provide notice in writing to the employee no less than ten days prior to the date set for the hearing. The notice of the hearing shall be hand delivered to the employee or sent to the employee by certified mail, return receipt requested.

(b)

Abandonment of appeal. The employee shall at all times keep the Director informed in writing of his or her current mailing address. Failure to comply with the foregoing or failure of the employee and/or his or her duly authorized representative to appear at the hearing or any continuances thereof and/or any failure to show good and compelling cause why such hearing should be continued, shall constitute an abandonment of any further right to appeal.

(c)

Continuances. Requests for continuances shall be submitted in writing to the hearing officer with a copy to the opposing party. Except in cases of extreme emergency, requests for continuances shall be filed not less than five days prior to the date noticed for the hearing. The hearing officer may, in his or her discretion, grant a continuance of a hearing for good cause shown or upon stipulation of all parties.

(d)

Subpoenas. Subpoenas may be issued by the City Clerk at the written request of either party. An application for a subpoena shall state the name and address of the witness for whom the subpoena is to be issued, and the time and place for the witness to appear. A subpoena may be served by any person authorized by law to serve process or by any person who is not a party and who is of majority age. Service shall be made by delivering a copy thereof to the person named in the subpoena. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so.

(e)

Conduct of hearings.

(1)

The hearing shall be a de novo hearing. In presenting its case, each party shall have the right to present evidence relevant to the issues, to cross examine opposing witnesses, to impeach any witness regardless of which party first called him or her to testify, and to rebut the evidence presented against it.

(2)

The order of presentation of evidence shall be as follows:

a.

Each party may, but is not required to, present opening statements;

b.

The city, as the party with the initial burden of proof, shall present its evidence first;

c.

The employee shall then present his or her evidence;

d.

The city shall have the opportunity to present rebuttal evidence; and

e.

Each party may, but is not required to, present closing arguments.

(f)

Evidence. All testimony shall be under oath or affirmation. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. All other evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in the courts of Florida. Hearsay evidence may be introduced and used for supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding by the hearing officer unless it would be admissible over objections in a civil action.

(g)

Decision. In rendering his or her decision, the hearing officer shall determine whether, based on the evidence presented, the discipline ordered was for just cause. The evidentiary standard to be applied by the hearing officer shall be a preponderance of the evidence.

(h)

Final order. The hearing officer shall provide a final order to the parties within ten working days of the appeal hearing. The final order shall set forth the hearing officer's findings of fact, conclusions of law, and decision concerning the disciplinary action.

(i)

Judicial review. Any party who is adversely affected by the final order of the hearing officer may apply to the local circuit court for judicial relief within 30 days after rendition of the final order by the hearing officer. The proceedings in circuit court shall be commenced by the filing of a petition for writ of certiorari.

(a)

A grievance is a difference or dispute between a regular employee and the city regarding the meaning, interpretation or application of the express terms of this article. A regular employee may also grieve based on an allegation that he or she has been adversely impacted by the city's violation of its charter or other applicable law. However, dissatisfaction with performance evaluations shall not be considered grievances unless it is alleged that the evaluation is based on factors other than the employee's performance.

(b)

A regular employee who believes that any condition affecting the employee is unjust, inequitable, or a hindrance to effective operation of the city, shall not have the right to file a grievance as provided herein. Such employee may, however, request a meeting to discuss his or her complaint with the City Manager, the Director and/or his or her department head.

(c)

Grievances shall not include complaints related to disciplinary actions other than reprimands. Employees shall have the right to file grievances related to oral or written reprimands.

An employee who is in a position that is in a certified bargaining unit covered by a collective bargaining agreement shall have the option of utilizing the grievance procedure prescribed herein or the collective bargaining agreement grievance procedure, but such employee cannot use both grievance procedures.

The following shall constitute abandonment of a grievance:

(a)

Failure of the employee and/or his or her duly authorized representative to take any affirmative action as required hereunder or failure to appear at the Grievance Committee hearing or any continuances thereof and/or any failure to show good and compelling cause why such hearing should be continued.

(b)

The voluntary resignation from city employment by an employee during the pendency of a grievance. Such employee shall not thereafter benefit from any later settlement of any individual or group grievance which is in any way related to the abandoned grievance.

All grievances shall be initiated by the employee submitting to his or her immediate supervisor a written statement detailing the employee's complaint. The grievance shall be submitted on a form approved by the Director. Grievances must be initiated within ten working days of the date of the occurrence which has caused the grievance or within ten working days from when the employee becomes aware of facts giving rise to the grievance. In the event an employee fails to initiate a grievance within the time period specified herein, then such grievance shall be barred. The employee's immediate supervisor shall make every reasonable effort to resolve the grievance. The immediate supervisor shall respond in writing to the employee within ten working days from his or her receipt of the grievance. The immediate supervisor's response shall be on a form approved by the Director and shall detail what, if any, action has or will be done to resolve the grievance.

If the grievance is not resolved by the employee's immediate supervisor to the employee's satisfaction within ten working days, the employee shall have the right to request that the grievance be reviewed by the department head. This request shall be in writing on a form approved by the Director and shall be received by the department head no more than ten working days from receipt by the employee of the response of the immediate supervisor. Failure of the employee to submit such request to the department head within the required time period shall constitute abandonment of the grievance unless good cause for such failure is established by the employee. The department head or his or her designee shall make every reasonable effort to resolve the grievance and shall respond in writing to the employee within ten working days. The response of the department head or his or her designee shall be on a form approved by the Director and shall detail what, if any, action has or will be done to resolve the grievance.

If the grievance is not resolved by the department head or his or her designee to the employee's satisfaction within ten working days, the employee shall have the right to request that the grievance be reviewed by the City Manager or his or her designee. This request shall be in writing on a form approved by the Director and shall be received by the City Manager's office no more than ten working days from receipt by the employee of the response of the department head or his or her designee. Failure of the employee to submit such request to the City Manager within the required time period shall constitute abandonment of the grievance unless good cause for such failure is established by the employee. The City Manager or his or her designee shall make every reasonable effort to resolve the grievance and shall respond in writing to the employee within 20 working days. The response of the City Manager or his or her designee shall be on a form approved by the Director and shall detail what, if any, action has or will be done to resolve the grievance. Employees who do not have regular status shall not have the right to proceed beyond this step with any grievance.

If the grievance is not resolved by the City Manager to the employee's satisfaction within ten working days, the employee shall have the right to request that a Grievance Committee be convened. Only those employees who have attained regular status may request a Grievance Committee hearing. This request shall be in writing on a form approved by the Director and shall be submitted by the employee to the Director no more than ten working days from receipt by the employee of the response of the City Manager. Failure of the employee to submit such request to the Director within the required time period shall constitute abandonment of the grievance unless good cause for such failure is established by the employee.

The Grievance Committee shall have the power to order relief concerning whether a condition affecting the employee is unjust, inequitable, or a hindrance to effective operation, subject to the following limitations:

(a)

The Grievance Committee shall not have the ability to impose, modify, or rescind any disciplinary action taken with respect to the employee who has filed the grievance or any other employee whose conduct may be brought into question, except that the Grievance Committee may rescind or modify a reprimand if the imposition of that specific reprimand is the subject of the employee's grievance.

(b)

The Grievance Committee shall not have the power to alter discretionary management decisions which are not directed toward a specific employee such as departmental structure, position classification, pay grades, salary ranges, and the like. However, the Grievance Committee may address:

(1)

Whether an employee was wrongfully denied a pay raise for reasons not related to job performance;

(2)

Whether an employee's performance evaluation is based on a factor other than job performance.

The Grievance Committee shall consist of five persons selected from a list consisting of city residents as follows:

(a)

Eligibility. All residents of the City of Cape Coral over the age of 18 years shall be eligible for service on the Grievance Committee. Eligible residents who desire to serve on the Grievance Committee shall apply to the City Clerk stating their interest and request that their names be added to the list established by City Council and maintained by the Director for this purpose.

(b)

List. The Director shall maintain the list of residents who have been approved by City Council to serve on the Grievance Committee. This list shall be updated by the Director at least bi-annually. The Director may, in his or her discretion, establish a reasonable time period during which additional names may be added to the Grievance Committee list. Prior to each update of the list, the Director shall provide notice to all city residents of the opportunity to serve on the Grievance Committee and of the manner in which interested city residents may have their names added to the Grievance Committee list. Such notice may be provided by publication of the necessary information in a newspaper of general circulation.

(c)

Roster. Whenever a regular employee requests a hearing before the Grievance Committee, the Director or his or her designee shall, within ten days from receipt of such request, provide to the employee and to the City Manager or his or her designee the Grievance Committee list. The following criteria shall govern the selection of names for the list:

(1)

All persons on the Grievance Committee list shall meet the requirements established in § 2-57 of the City of Cape Coral Code of Ordinances.

(2)

No person named on the roster shall be related by marriage or consanguinity to the employee requesting the Grievance Committee hearing.

(d)

Selection. A Grievance Committee shall be composed of five members chosen from the list established by the City Council. The employee shall select two members from the list, the City Manager or his or her designee shall select two members, and the four appointed will select the fifth who shall serve as chairperson.

(e)

Disqualification. Persons selected for service on the Grievance Committee may be disqualified as follows:

(1)

Voluntary disqualification.

a.

Upon notification of selection for service on the Grievance Committee, a person selected shall notify the Director if any reason exists which renders the person ineligible for service. Such reasons may include but are not limited to, unavailability, bias in favor of or prejudice against one of the parties (such as a family or close personal relationship with one of the parties or one of their representatives), personal interest in the outcome of the grievance, or personal knowledge of the subject matter of the grievance (regardless of whether the person is or could be a material witness for or against one of the parties in the particular grievance).

b.

If the Director is notified that a person selected for service is ineligible based on the foregoing, then the Director shall provide to the person and to the City Manager or his or her designee the Grievance Committee list. The person who selected the disqualified member shall select another member from the list. If the Chairperson is the disqualified member, then the other four members of the Grievance Committee shall select a fifth person as chairperson. When a person has been substituted on the Grievance Committee for the person disqualified, the Director shall proceed with the scheduling of the Grievance Committee hearing.

c.

The Director shall notify the employee and the City Manager in writing of the date and time of the Grievance Committee hearing and of the names of the five persons who will comprise the Grievance Committee.

(2)

Involuntary disqualification.

a.

Upon receipt of the foregoing notification from the Director, the employee and the City Manager or his or her designee shall have an opportunity to advise the Director of any perceived bias, prejudice, conflict of interest, or other reason which might make such person unable to render a fair and impartial decision concerning the grievance. If the Director is notified of such a concern by either the employee or the City Manager or his or her designee, then the Director shall advise the party that selected the member in question to select another member from the list to be designated as alternate.

b.

The Grievance Committee shall then proceed with the hearing as originally scheduled except that the first order of business shall be the consideration of the allegation of perceived bias, prejudice, conflict of interest, or other concern. Both parties shall be given the opportunity to state their respective positions concerning the allegation. The Grievance Committee shall then vote on whether the person against whom the allegation has been raised should be disqualified from service on the Grievance Committee. If the vote results in a finding of no disqualification, then the hearing on the grievance shall proceed with the five originally selected members. If, however, the vote results in a finding of disqualification, then the person disqualified shall step down from the Grievance Committee and the alternate shall be substituted therefor. The hearing on the grievance shall then proceed as originally scheduled.

(a)

The Chairperson shall conduct the hearing and make evidentiary rulings.

(b)

Either party may bring an attorney to assist or advise him or her.

(c)

In presenting its case, each party shall have the right to present evidence relevant to the issues, to cross examine opposing witnesses, to impeach any witness regardless of which party first called him or her to testify, and to rebut the evidence presented against it.

(d)

The order of presentation of evidence shall be as follows:

(1)

Each party may, but is not required to, present opening statements;

(2)

The employee, as the party with the initial burden of proof, shall present his or her evidence first;

(3)

The city shall then present its evidence;

(4)

The employee shall have the opportunity to present rebuttal evidence; and

(5)

Each party may, but is not required to, present closing arguments.

(e)

All testimony shall be under oath or affirmation. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. All other evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in the courts of Florida. Hearsay evidence may be introduced and used for supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding by the Grievance Committee unless it would be admissible over objections in a civil action.

(f)

At the conclusion of the hearing, the Chairperson shall inform the employee when the decision on the employee's grievance will be forthcoming and how the employee will be notified.

(g)

In rendering its decision, the Grievance Committee shall determine whether, based on the evidence presented, the grievance is valid. The evidentiary standard to be applied by the Grievance Committee shall be clear and convincing evidence.

(h)

The Grievance Committee shall provide a final decision of the Grievance Committee to the parties within ten working days of the hearing. The final decision shall set forth the Grievance Committee's findings concerning the validity of the grievance, the reason(s) therefor, and what, if any, relief is ordered. The final decision of the Grievance Committee shall be binding on both parties.

(i)

Any party who is adversely affected by the final decision of the Grievance Committee may apply to the local circuit court for judicial relief within 30 days after rendition of the final decision of the Grievance Committee. The proceedings in circuit court shall be commenced by filing of a petition for writ of certiorari.

Each employee's performance shall be periodically appraised to assess performance in relation to job requirements. Said evaluations shall be prepared on forms provided by the Director.

(a)

Work week. The work week shall begin on Saturday at 12:01 a.m. and continue until 12:01 a.m. of the following Saturday, at which time a new work week shall begin. The work week for full-time employees shall generally consist of 40 hours, excluding all meal periods.

(b)

Work day. Generally, the work day for full-time employees will consist of not less than eight consecutive hours of work nor more than ten consecutive hours of work, with an unpaid meal period.

(1)

Authorized rest periods or coffee breaks shall be included as hours worked.

(2)

Required attendance at training courses and attendance at approved seminars shall be considered as hours worked.

(3)

Any official travel during an employee's normal working hours, whether on regular workdays or regular days off, shall be counted as hours worked. However, travel to and from an employee's home to the employee's regularly assigned work location shall not be counted as hours worked.

(c)

Work schedules. Each employee's schedule of hours shall be determined by the department head. The department head shall inform his or her employees of their daily schedule of hours of work (including meal periods and rest or coffee breaks), and shall thereafter inform employees of any changes deemed necessary or desirable by the department head.

(d)

Additional hours. A department head may schedule hours or work in addition to an employee's regular schedule of hours when any such addition of hours is deemed necessary or desirable by the department head.

(e)

Alternate schedules. The city may establish alternate work schedules, when such alternate work schedules are deemed to be in the best interest of the city.

(f)

Attendance of employees.

(1)

Full-time employees shall be required to be present on their assigned job for the total hours in the established workweek, unless absence from duty is authorized by the department head as provided herein.

(2)

Part-time employees shall be required to be present on their assigned jobs for the total number of hours for which they are being compensated, unless absence from duty is authorized by the department head as provided herein.

(3)

Employees are expected to be at their scheduled work site during hours of duty. Regular and punctual attendance at work shall be required of each city employee. Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this subsection, EXCESSIVE UNSCHEDULED ABSENCES OR TARDINESS shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other city employees in the same or similar positions and/or classifications, taking into consideration the fact that employees in fire and public safety may be scheduled to work a different number of hours.

(a)

Each department shall keep an accurate record of all hours worked by each employee, as well as a complete and accurate record of all authorized leave which is approved as provided herein.

(b)

Falsification of any attendance or leave records shall be cause for dismissal of the employee(s) involved.

(a)

Overtime hours are those hours of work that exceed the maximum hours permitted under the Fair Labor Standards Act (FLSA).

(b)

A department head may require an employee to work overtime. An employee's refusal to work overtime without good cause may be grounds for disciplinary action against the employee.

(c)

Employees included in a collective bargaining unit may receive compensatory time in lieu of overtime compensation if authorized by, and at the rate specified in, the applicable collective bargaining agreement.

(d)

Employees not included in any collective bargaining unit who are entitled to overtime compensation may receive compensatory time off in lieu of overtime compensation, provided that such employees and their department head have so agreed prior to performance of the work. Said compensatory time off shall be calculated at the rate of one and one-half times the number of hours worked in excess of 40 hours in a work week.

(a)

The following holidays shall be observed as paid holidays by the city:

(1)

New Year's Day;

(2)

Martin Luther King Jr.'s Birthday;

(3)

Presidents' Day;

(4)

Memorial Day;

(5)

Independence Day;

(6)

Labor Day;

(7)

Columbus Day;

(8)

Veteran's Day;

(9)

Thanksgiving Day;

(10)

Friday after Thanksgiving; and

(11)

Christmas Day.

(b)

The City Council may designate additional paid holidays.

(c)

All regular and probationary employees are entitled to holiday pay. When a holiday falls on a Saturday, the holiday shall be observed on the preceding Friday by employees who work a regular work week. When a holiday falls on a Sunday, the holiday shall be observed on the following Monday by employees who work a regular work week. For employees who work other than a regular work week, the holiday shall be observed on its traditional day.

(d)

Employees who regularly work less than 40 hours per week and who are entitled to holiday pay will receive compensation based upon a prorated calculation of the average hours worked per day over the preceding four weeks. This proration shall be calculated by dividing the total hours worked during the preceding four work weeks by 20.

(a)

Accrual. Full-time employees with regular or probationary status shall earn leave according to the following table:

The maximum number of hours accrued by an employee that may be carried over to the next fiscal year is 400.

(b)

Required use.

(1)

An employee who has been employed by the city for five years or less and who has an accrued balance of at least 400 hours of leave at the beginning of a fiscal year shall be required to use 80 hours of leave during that fiscal year. Employees with more than five years of continuous service who have accrued at least 400 hours of leave at the beginning of a fiscal year shall be required to use at least 120 hours of leave during that fiscal year. Employees who have accrued less than 400 hours of leave at the beginning of a fiscal year, but who reach 400 hours during that year shall be required to use a certain number of hours of that leave during that year. The number of hours that must be used shall be based on a prorated amount of the minimum-use hours listed herein. Any employee who fails to use the required hours of annual leave during the fiscal year shall lose those unused hours, except as provided in subsection (b)(2) below. The City shall deduct any unused leave hours that are required to be used from an employee who has an accrued balance of more than 400 hours of leave at the end of a fiscal year. The remaining accrued balance of leave time in excess of 400 hours shall be paid (after the deduction of unused hours required to be used) by no later than the month of December following the end of the prior fiscal year.

(2)

If the City Council finds that, due to a declared emergency during any fiscal year, it is impractical to enforce the required use provisions within that fiscal year as required in subsection (b)(1) above, the City Council may extend the date for required leave use to a date that is not later than October 31 of the next fiscal year. Upon request by the City Manager, City Council may further extend the date for required leave use until January 31 of the next fiscal year for only those employees who are prevented from using their required leave hours during the initial extension period through October 31 due to being required to work as a result of the declared emergency.

(Ord. 57-17, § 1, 10-23-2017; Ord. 63-17, § 1, 3-5-2018)

(c)

Scheduled and unscheduled leave. Leave which is requested and approved prior to the day in which it is taken by the employee shall be considered to be scheduled leave. Leave which is requested and approved on the day it is taken by the employee shall be considered to be unscheduled leave. Unless otherwise required by the policies or procedures of the department, unscheduled leave shall be requested no later than 30 minutes after the start of the employee's work shift. An employee's excessive use of unscheduled leave may be grounds for disciplinary action.

(d)

Unauthorized absence. An employee's failure to obtain approval for leave shall result in the hours of absence being without pay. An employee's unauthorized absence also may be grounds for disciplinary action. However, a department head shall not unreasonably withhold approval of an employee's request for leave.

(Ord. 48-10, passed 6-14-2010)

An employee may request a leave of absence without pay for a period not to exceed 180 days. The request must be submitted in writing to the department head and must be approved in writing by both the department head and the City Manager. In determining whether to approve the request for leave without pay, the department head and the City Manager shall consider factors such as the reason for the request and the department's ability to operate effectively in the absence of the employee. During any period of leave without pay exceeding fifteen working days, the city shall not provide for any employee benefits, including, but not limited to medical or other insurance, and pension. The employee may, at his or her option, maintain such benefits at the employee's sole expense.

When an employee experiences a death in the employee's family, the employee shall be entitled to bereavement leave with pay for a period not to exceed five working days. For purposes of this section, FAMILY includes an employee's spouse or registered domestic partner, as well as the children, parents, siblings, grandchildren, grandparents, brothers-in-law, sisters-in-law, sons-in-law, and daughters-in-law of the employee, employee's spouse or registered domestic partner, any person over whom the employee, employee's spouse, or registered domestic partner serve as the legal guardian, and any person who serves as the legal guardian over an employee, employee's spouse, or registered domestic partner. Any generation of the relationship (i.e., great grandparent, or great great grandparent), and step relative and half relative of a relationship named above (i.e., step sister or half sister) shall be considered FAMILY of the employee, employee's spouse or registered domestic partner. Such bereavement leave shall not be deducted from the employee's accumulated annual leave.

Upon the city's request, an employee requesting bereavement leave may be required to furnish proof of death, date of burial and relationship.

To be considered a registered domestic partner for purposes of this section, the employee must register the domestic partnership with the City and identify the domestic partner in accordance with City policy.

(Ord. 63-17, § 1, 3-5-2018)

All employees shall be entitled to family or medical leave as provided in the Family and Medical Leave Act of 1993 (29 U.S.C. § 2612) as same may be from time to time amended.

(a)

A department head who believes that an employee is unable to perform assigned duties due to illness or injury may require the employee to submit to a medical examination by a physician or psychologist selected by the city. Such examination shall be at the city's expense. If the medical examination confirms that the employee is unable to perform his or her assigned duties, the department head shall place the employee on involuntary medical leave.

(b)

At the time the department head determines that the employee is to be placed on involuntary medical leave, the employee shall be notified, in writing, of the duration of the mandatory leave period and the conditions under which the employee will be allowed to return to the position.

(c)

An employee who is placed on involuntary medical leave shall be required to use any accrued annual leave prior to being placed on leave without pay. If the employee does not have sufficient accrued annual leave to cover the period of involuntary medical leave, the department head may place the employee on leave without pay pursuant to § 2-35.6.

(d)

If an employee is unable to return to work at the end of the involuntary medical leave period, based on a current medical certification, the department head may:

(1)

Upon written request by the employee, place the employee on voluntary leave without pay; or

(2)

Request the employee's resignation due to inability to perform assigned duties; or

(3)

Dismiss the employee for cause based on the employee's inability to perform assigned duties.

An employee who is summoned for jury duty shall be granted administrative leave with pay for all hours required for such duty, not to exceed the number of hours in the employee's normal work day. If the jury duty does not require absence for the entire work day, the employee shall return to duty immediately upon release by the Court. If the employee's court attendance does not coincide with the employee's regular work schedule, the employee shall be granted administrative leave with pay based on the total hours served on jury duty, not to exceed the number of hours in the employee's regular work day. Such leave shall be granted on the next scheduled work shift following each day the employee is on jury duty. Any jury fees shall be retained by the employee. The city shall not reimburse the employee for meals, lodging, or travel expenses incurred while serving as a juror.

(a)

An employee subpoenaed as a witness in a court proceeding or an administrative hearing not involving service as a paid expert witness shall be granted administrative leave with pay. The employee shall retain any witness fees. The city shall not reimburse the employee for meals, lodging or travel expenses incurred while serving as a witness pursuant to this subsection.

(b)

An employee subpoenaed in line of duty to represent the city as a witness or defendant shall not be granted administrative leave. The employee's appearance in such cases shall be considered a part of the employee's job assignment. The employee shall be paid per diem and travel expenses and shall be required to turn over to the city any fees received in relation to the appearance.

(c)

In no case shall administrative leave with pay be granted for court attendance when an employee is engaged in personal litigation or service as a paid expert witness. However, an employee may be granted annual leave in such cases with the approval of the city. For purposes of this section, PERSONAL LITIGATION shall mean any litigation in which the employee is named as a party.

The City Manager may grant an employee up to a maximum of 60 days of voluntary administrative leave per fiscal year when the City Manager believes said grant to be in the city's best interest.

(Ord. 89-20, § 1, 11-2-2020)

Editor's note— Ord. 89-20, § 1, adopted Nov. 2, 2020, changed the title of § 2-35.12 from "administrative leave" to read as herein set out.

(a)

Reserve training.

(1)

An employee who is a member of the United States Armed Forces Reserve, including the National Guard, shall be granted leave with pay as provided by applicable Florida or federal law during periods in which the employee is ordered to active or inactive duty for training.

(2)

To be entitled to reserve training leave with pay, the employee must present a copy of the employee's official orders issued pursuant to law. A copy of the official orders shall be filed in the employee's personnel file.

(3)

Reserved.

(4)

Any absence in excess of leave granted as provided by applicable Florida or federal law may, upon request by the employee and approval by the department head, be covered by accrued annual leave. Such leave shall not result in any loss of seniority or benefits and shall not affect the employee's performance evaluation rating or accrual of annual leave.

(Ord. 35-23, § 1, 5-3-2023)

(b)

Active military service.

(1)

Employees with regular status who are called to or who volunteer for active military service shall be entitled to leave as provided by applicable Florida or federal law.

(2)

Such leave shall be verified by official orders or appropriate military certification which shall be filed in the employee's personnel file.

(3)

No compensation shall be paid pursuant to this section until the city has received evidence of the period of military service completed.

(4)

Upon return from active military service, the employee shall be entitled to reemployment in accordance with federal and state law.

Within 60 calendar days of the enactment of this article, the city shall implement a leave sharing program whereby regular employees may donate accrued annual leave (see § 2-35.5) to other regular employees who have exhausted all forms of paid leave to which they are entitled and whose receipt of donated leave has been approved by both the proposed recipient's department head and the Director.

An employee shall be entitled to leave time when either receiving an organ or bone marrow donation or donating an organ or bone marrow.

(a)

The employee is eligible to receive up to 40 hours of leave time when absent due to the donation or receipt of bone marrow. Any additional leave time shall be from the employee's accrued leave.

(b)

The employee is eligible to receive up to 160 hours of leave time when absent due to the donation or receipt of an organ. Any additional leave time shall be from the employee's accrued leave.

(Ord. 38-23, § 1, 5-3-2023)

The city shall maintain a classification plan that assures the following:

(a)

That the employees' job responsibilities are appropriately classified, and then ranked in relation to other classifications of employees; and

(b)

That the range of pay assigned to each classification is sufficiently competitive, within the city's relevant labor market, to allow for the recruitment, selection, and retention of competent employees.

At least once every five years the City Council shall consider the city's need to have a comprehensive study of the classification plan conducted.

(a)

Each classification shall be assigned a pay grade on the general salary schedule on the basis of quantifiable evaluation factors which shall include, but not be limited to, the following:

(1)

Level of knowledge, skills and abilities required for satisfactory work performance;

(2)

Complexity and diversity of work, including judgment, originality and initiative required;

(3)

Responsibility for decisions;

(4)

Nature and extent of supervision received and guidelines available, amount of independent judgment and discretion exercised;

(5)

Level, purpose, nature, frequency and complexity of personal contacts and service to the public;

(6)

General work conditions and physical demands required, which may include, but not be limited to, work environment, hazards, physical activity or stressful conditions; and

(7)

Supervision of others, if any, including responsibility for nature of work directed, extent of supervisory authority, and number of employees supervised.

(b)

In applying the foregoing factors, the pay grade assigned to a classification should clearly and concisely reflect distinctions between levels of required knowledge, skills, physical and mental abilities, and responsibilities of the work performed.

(c)

Prevailing wages or salaries, as well as benefit levels, for similar positions in both the public and the private sectors shall be considered to assure comparability and competitiveness in the labor market.

(a)

When the City Manager, City Attorney or City Auditor determine that the duties and responsibilities of a classification are not appropriately described in any existing specification, the City Manager, City Attorney or City Auditor may create a new classification and assign said classification to an appropriate pay grade on the appropriate salary schedule provided that the City Council first approves the creation of the classification and the assignment to a pay grade.

(b)

The City Manager, City Attorney or City Auditor may add regular full-time positions within a classification without City Council approval unless the additional position(s) meet the terms stated in (c) below, which would then require Council approval. If an additional position is a reclassification of an existing position, Council approval is required as set forth in Sec. 2-36.6.

(c)

The total number of regular full-time positions per department and fund cannot be increased without City Council approval.

(Ord. 43-10, 4-26-2010; Ord. 44-18, § 1, 10-15-2018)

When the City Manager determines that a classification is no longer needed, the City Manager may abolish that classification provided that the City Council first approves the abolishment of the classification.

When the City Manager determines that the duties and responsibilities of a position have materially changed, the City Manager may reclassify that position to an appropriate classification and pay grade provided that the new pay grade is not more than four pay grades higher or lower than the pay grade for the position prior to the reclassification. In the event the pay grade for the position as a result of the reclassification is more than four pay grades higher or lower than the pay grade for the position prior to the reclassification, the City Manager may reclassify that position to an appropriate classification and pay grade provided that the City Council first approves the reclassification of the position. The incumbent of a reclassified position shall be placed in the new classification, unless the incumbent does not meet the minimum qualifications of the new classification. The incumbent of a reclassified position shall have his or her wages or salary adjusted as specified in Division 13 of this article.

(Ord. 44-18, § 1, 10-15-2018)

When the City Manager determines that the range of a pay grade on the general salary schedule is no longer competitive or appropriate in the labor market, or when a change is required to maintain the internal equity of the classification plan, the City Manager may move a classification to a higher or lower pay grade provided the City Council first approves such reallocation. The wages or salary of an incumbent of a reallocated classification shall be adjusted as specified in Division 14 of this article.

Wage or salary changes resulting from changes to the classification plan shall be effective at the beginning of the bi-weekly payroll period following the date of approval by the City Manager.

Decisions of the city concerning the classification plan shall be final. Employees shall not be entitled to file grievances concerning a decision of the city with respect to the classification plan.

The city shall maintain fair, equitable, and competitive wages and salaries for its employ-ees and shall assure equal pay for work of substantially equal value performed under essentially similar conditions.

The City Council shall approve the general salary schedule each fiscal year as part of the budget process. The general salary schedule shall consist of a hierarchical series of pay grades, including a minimum, mid-point and maximum that shall define the wage or salary range for each pay grade. Factors such as cost-of-living and competing wages and salaries in the public and private sectors shall be considered in establishing the general salary schedule. No employee's wage or salary shall be less than the minimum or more than the maximum of the pay grade to which his or her classification is assigned, except as otherwise provided in this Division. Rates of pay within pay grades shall be established by the City Manager, or the City Manager's designee for hire and re-hire, promotion, transfer, demotion, reclassification or reallocation.

(Ord. 26-21, § 2, 4-7-2021)

(a)

General. Except as may be otherwise provided in this article, the rate of pay for a newly-hired or re-hired person shall be the minimum of the pay grade to which his or her classification is assigned.

(b)

Exceptions.

(1)

Upon completing the initial probationary period, an employee hired or re-hired at the minimum of his or her pay grade may receive an increase in pay of not more than 10%, provided that such increase is requested in writing by the employee's department head and approved by the Director.

(2)

A newly-hired or re-hired employee may be employed at a rate of pay which exceeds the minimum of the pay grade by not more than 10%, provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(3)

Where extraordinary circumstances merit such consideration, the City Manager may establish the rate of pay for a newly-hired or re-hired employee at an amount which exceeds 10% of the minimum of the pay grade, but which does not exceed maximum of the pay grade; provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(Ord. 26-21, § 2, 4-7-2021)

To aid in recruiting and relocating exceptional candidates for critical city positions, the City Manager may authorize relocation expenses for a newly hired or re-hired employee as defined in § 2-25.4.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— Ord. 26-21, § 2, adopted April 7, 2021, renumbered subsection 2-37.3(c) as § 2-37.4, and then subsequently renumbered §§ 2-37.4—2-37.9 as §§ 2-37.5—2-37.10.

(a)

Except as may be otherwise provided herein, an employee who is promoted shall receive a rate of pay increase of 5% for each pay grade(s) that he or she is promoted, but not more than a total increase of 10%; or an increase to the minimum of the pay grade into which he or she is promoted, whichever is greater. For purposes of this section, the total percentage increase shall be applied to the employee's current rate of pay to determine the amount of increase.

(b)

Where extraordinary circumstances merit such consideration, the City Manager may establish the rate of pay for a promoted employee at an amount which exceeds the amount allowed pursuant to subsection (a) above, provided it is not more than the maximum of the pay grade into which the employee is being promoted; provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(c)

An employee's rate of pay after promotion shall not be less than the minimum nor more than the maximum of his or her new pay grade.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

(a)

Except as otherwise provided herein, an employee who laterally transfers from one classification to another in the same pay grade or transfers from one position to another in the same classification within a department shall receive the same rate of pay as in his or her former classification.

(b)

Where extraordinary circumstances merit such consideration, the City Manager may establish the rate of pay for a laterally transferred or otherwise transferred employee at an amount which exceeds the amount allowed pursuant to subsection (a) above, provided it is no more than the maximum of the pay grade into which the employee is laterally transferring, provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

An employee who voluntarily, or for disciplinary reasons, is demoted to a lower pay grade, shall have their rate of pay decreased by 5% for each pay grade the employee is demoted. In no event, however, shall a demoted employee's rate of pay exceed the maximum of the pay grade into which he or she is demoted.

Employees who are demoted due to lack of work, lack of funds, or other reasons beyond their control shall have their rate of pay determined by the Director based upon a review of the circumstances resulting in the action. Upon a determination by the Director, demoted employees may remain at their current rate of pay even if it exceeds the maximum of their new lower pay grade. The rate of pay for those employees shall remain fixed at that pay rate until pay range adjustments cause the established pay range maximum to exceed the employee's rate of pay.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

(a)

Except as may be otherwise provided herein, an employee who is reclassified to a classification with a higher pay grade shall receive a rate of pay increase of 5% for each pay grade that he or she is reclassified, but not more than a total increase of 10%; or an increase to the minimum of the pay grade to which he or she is reclassified, whichever is greater. For purposes of this section, the total percentage increase shall be applied to the employee's current rate of pay to determine the amount of increase. This section shall not apply in instances when a city wide classification study is being implemented.

(b)

Where extraordinary circumstances merit such consideration, the City Manager may establish the rate of pay for an employee who is reclassified to a classification with a higher pay grade at an amount which exceeds the amount allowed pursuant to subsection (a) above, provided it is not more than the maximum of the pay grade into which he or she is being reclassified; provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(c)

An employee's rate of pay after reclassification shall not be less than the minimum nor more than the maximum of his or her new pay grade. However, in the event a reclassified employee's rate of pay in his or her former pay grade was greater than the maximum of his or her new pay grade, the employee's rate of pay shall remain the same as in the former pay grade. The rate of pay for those employees shall remain fixed at that pay rate until pay range adjustments cause the established pay range maximum to exceed the employee's rate of pay.

(d)

Except as may be otherwise provided herein, the rate of pay of an employee who is reclassified from one classification to another classification in the same pay grade shall not change.

(e)

Where extraordinary circumstances merit such consideration, the City Manager may establish the rate of pay for an employee who is reclassified from one classification to another with the same pay grade at no more than the maximum of the pay grade into which he or she is being reclassified, provided, however, that such rate of pay shall first be requested in writing by the department head and approved by the Director.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

(a)

The rate of pay for an employee whose classification is reallocated to a higher pay grade shall remain unchanged. However, an employee's rate of pay after reallocation shall not be less than the minimum or more than the maximum of the pay grade to which his or her classification is reallocated.

(b)

The rate of pay for an employee whose classification is reallocated to a lower pay grade shall remain unchanged. However, an employee's rate of pay after reallocation shall not be less than the minimum or more than the maximum of the pay grade to which his or her classification has been reallocated.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

The City Council, as part of its annual budget deliberations, may establish a method of pay increases for employees, including, but not limited to, merit increases based on the employee's performance as indicated in the employee's annual performance evaluation, a uniform, across-the-board increase for cost of living, or designate a certain percentage of payroll costs for increases that will be distributed to employees in a manner determined by the City Manager, City Attorney and City Auditor. Increases may consist solely of one type of pay increase or may be a combination of types of pay increases. Such increases shall be for all city employees whose classifications are not included in any collective bargaining unit. Increases shall be effective as of the first bi-weekly payroll period beginning after October 1. However, any increase shall not increase an employee's rate of pay beyond the maximum of his or her pay grade. Increases for classifications included in one of the collective bargaining units shall be governed by the terms of the applicable collective bargaining agreement.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See editor's note for § 2-37.4.

(a)

Subject to the concurrence of the Director, a department head may temporarily transfer an employee to another classification with a higher pay grade under the following conditions:

(1)

The position temporarily being filled is an authorized, budgeted position; and

(2)

The position temporarily being filled is vacant or the employee occupying such position is absent from duty for a period of one or more work days, based on the absent employee's normal schedule.

(Ord. 17-22, § 1, 2-16-2022)

(b)

The rate of pay of an employee who is temporarily transferred to a classification with a higher pay grade shall increase by 5% per pay grade up to a 10% maximum, or to the minimum of the pay grade into which he or she is temporarily transferred, whichever is greater.

(c)

The rate of pay for an employee who is temporarily transferred to another classification shall not be less than the minimum or more than the maximum of the pay grade into which he or she is temporarily transferred.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— Ord. 26-21, § 2, adopted April 7, 2021, repealed the former §§ 2-37.10 and 2-37.11, which pertained to uniform increases and service payment and derived from Ord. 32-15, adopted Aug. 3, 2015; Ord. 63-17, § 1, adopted March 5, 2018. Said ordinance then renumbered §§ 2-37.12—2-37.16 as §§ 2-37.11—2-37.15.

Where extraordinary circumstances merit such consideration, and subject to approval by the City Manager, a department head may recommend a bonus of not more than $500 for an employee whose work has been of critical importance in the accomplishment of a specific goal deemed to be in the city's best interest. Said outstanding service award shall be paid in a lump sum and shall not change an employee's rate of pay. The outstanding service award shall not be awarded to the same employee more than once in a fiscal year and shall not be awarded to the same employee in consecutive fiscal years.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See the editor's note for § 2-37.11.

Upon certification by the Financial Services Director that sufficient funds are available, the City Manager may authorize shift differentials, call-back pay, call-in pay, stand-by pay, or other such special compensation as deemed to be in the best interest of the city's operations.

(Ord. 26-21, § 2, 4-7-2021)

Editor's note— See the editor's note for § 2-37.11.

(a)

Employees who are required to work overtime shall receive compensation in accordance with the requirements of the law, including, but not limited to, the Fair Labor Standards Act (29 U.S.C. §§ 201-219), hereafter referred to as F.L.S.A., as same may hereafter from time to time be amended.

(b)

Non-exempt employees are employees who have been classified as non-exempt for overtime pursuant to the F.L.S.A. Compensation for non-exempt employees is calculated as an hourly rate of pay.

Exempt employees are employees who have been classified as exempt from overtime pursuant to the F.L.S.A. Compensation for exempt employees is an annual salary, paid in weekly installments. The weekly amount paid an exempt employee is calculated as an equivalent hourly amount based upon 40 work hours per week, regardless of the number of hours the employee actually works.

(c)

In lieu of the payment of overtime compensation, an employee may be allowed compensatory time off as provided in Division 11 of this article.

(Ord. 55-18, § 1, 7-29-2019; Ord. 26-21, § 2, 4-7-2021)

Editor's note— See the editor's note for § 2-37.11.

For the purpose of this section, "emergency" shall not include the COVID-19 and future medical pandemics.

(Ord. 32-20, § 1, 4-20-2020)

(a)

During an emergency which has been declared by City Council or the City Manager, the following shall apply for non-exempt employees:

(1)

When City Hall is open during a declared emergency and a non-exempt employee works their normal scheduled hours, the employee will be compensated for time worked during said emergency at two times their normal rate of pay.

(2)

When City Hall is open during a declared emergency and a non-exempt employee works additional hours outside of their normal scheduled hours, the employee will be compensated for hours worked during said emergency calculated as overtime at two times their normal rate of pay.

(3)

When City Hall is closed due to a declared emergency, non-exempt employees who are not requested to work receive compensation for their normal work hours at their normal rate of pay. Non-exempt employees who work during the time City Hall is closed shall receive compensation at the rate of two times their normal rate of pay for any hours worked.

(4)

When a non-exempt employee is on leave at the time an emergency is declared and City Hall is closed, the employee shall be paid for their normal scheduled hours of work and will not have leave hours deducted. When a non-exempt employee is requested to work during a declared emergency when scheduled for approved leave, the employee shall be compensated as set forth in Section 2-37.16(a)(1)(2) and (3) above. Any time City Hall is open during a declared emergency, an employee who either was on leave prior to the declared emergency or does not report to work for any reason, shall be deducted leave hours for all hours of their normal number of work hours the employee is not at work.

(b)

During an emergency which has been declared by City Council or the City Manager, the following shall apply for exempt employees:

(1)

When City Hall is open during a declared emergency and an exempt employee is requested to work, the employee will be compensated for all hours worked during said emergency at their normal equivalent hourly rate of pay, whether they work normal scheduled hours or hours outside of their normal scheduled hours of work, regardless of the day of the week.

(2)

When City Hall is closed during a declared emergency, exempt employees who do not work, shall receive compensation for their normal work hours at their normal rate of pay.

(3)

When City Hall is closed during a declared emergency, exempt employees who are requested to work during the declared emergency shall earn additional compensation. Additional compensation is pay in the amount of two times the normal rate of pay and is in lieu of the normal rate of pay. The additional compensation may only be earned on Monday through Friday for the first eight hours of the workday, for a maximum daily amount of eight hours. The maximum amount of additional compensation permitted to be earned per declared emergency when City hall is closed is twenty-four (24) hours. For all hours worked when an employee is not eligible for additional compensation, exempt employees shall be paid their normal rate of pay.

(4)

When an exempt employee is on approved leave during a declared emergency and City Hall is closed, the employee shall be paid for an employee's normal scheduled hours of work and will not have leave hours deducted. When an exempt employee is requested to work during a declared emergency when scheduled for approved leave, the employee shall be compensated as set forth in Section 2-37.16(b) above. Any time City Hall is open during a declared emergency, an employee who either was on leave prior to the declared emergency or does not report to work for any reason, shall be deducted leave time for any number of hours up to eight hours per day that the employee is not at work.

(Ord. 55-18, § 1, 7-29-2019; Ord. 26-21, § 2, 4-7-2021)

Editor's note— See the editor's note for § 2-37.11.

(a)

The city may provide benefits to its employees and retirees including, but not limited to, health insurance, disability insurance, life insurance, pension and/or other benefits under such terms and conditions as the city, in its sole discretion, shall deem appropriate. None of the benefits, rates of pay, or compensation provided to employees or retirees herein may be changed except by ordinance of the City Council.

(b)

Non-bargaining unit employees whose date of employment is on or before October 1, 2003, Tier One shall be entitled to group health and life insurance benefits upon retirement from the City only if they have been continuously employed by the city for more than five years. In order to participate in the city's group health insurance program, non-bargaining unit retirees and employees who retire pursuant to this section must sign up for coverage under Medicare Parts A and B as soon as they become eligible. In addition to paying the cost of retiree group health and life insurance, the city shall provide a monthly subsidy to retirees covered under this section equal to the cost of Medicare Part B coverage. Present non-bargaining unit retirees and employees who become eligible to retire pursuant to this section shall also be entitled to group life insurance benefits equal to twice the amount of their annual base salary at the time of retirement from the city.

(Ord. 17-22, § 1, 2-16-2022)

(c)

In lieu of receiving paid city group health insurance, non-bargaining unit employees whose date of employment is after October 1, 2003 but before February 1, 2022, Tier Two, shall be entitled to receive a health benefit subsidy from the city upon retirement from employment with the city to assist in offsetting the cost of health insurance for the retiree, whether the retiree receives insurance through the city's group policy or through another individual or group health policy only if they have been continuously employed by the city for more than ten years. The amount of the subsidy shall be determined by multiplying the employee's years of service at retirement times $13.53 as of February 1, 2022. The minimum monthly subsidy provided to retirees shall be $135.30 and the maximum monthly subsidy shall be $405.90. On January 1 of each year thereafter, the monthly subsidy amount and the minimum and maximum monthly subsidy shall be adjusted by the same percentage as the increase, if any, in the city's group health benefit cost. In the event the city's group health benefit cost does not increase in any given year, then the monthly subsidy amount and the minimum and maximum subsidy amounts shall remain the same as they were in the previous year. In order to continue to receive this subsidy, non-bargaining unit employees who retire pursuant to this section must sign up for coverage under Medicare Parts A and B as soon as they become eligible. Proof of other individual or group coverage must be provided annually up until they become eligible for Medicare.

(Ord. 17-22, § 1, 2-16-2022)

(d)

In lieu of receiving paid City group health insurance, non-bargaining unit employees whose date of employment is on or after February 1, 2022, Tier Three, shall be entitled to receive a health benefit subsidy from the city upon retirement to assist in offsetting the cost of health insurance for the retiree, whether the retiree receives insurance through the City's group policy or through another individual or group health policy only if they have been continuously employed by the City for more than ten years. Proof of other individual or group coverage must be provided annually up until they become eligible for Medicare, at which time the subsidy will be discontinued.

The calculation of the subsidy shall be determined by multiplying the employee's years of service at retirement times a percentage of the City's base medical plan (as determined by the City) employee only rate. The minimum monthly subsidy amount provided to retirees shall be $136.90 and the maximum monthly subsidy shall be $256.70 as of February 1, 2022. The percentage to be calculated is determined by years of service as follows:

(Ord. 17-22, § 1, 2-16-2022)

(e)

Employees that qualify for group life and health benefits pursuant to subsection (b) of this article shall not be eligible for any additional group health and life insurance benefits as provided for under subsections (c) and (d) of this section.

(Ord. 58-13, 9-30-2013; Ord. 17-22, § 1, 2-16-2022)

(a)

Members of all advisory boards, committees, commissions, appeals boards, councils, and task forces serving the city shall, in addition to meeting other membership qualifications as imposed by law, be persons who are citizens of the United States and who permanently reside in the city. Any person who meets the foregoing qualifications when appointed, but who later becomes unqualified, shall forfeit his or her office.

(Ord. 50-92, 8-10-1992; Ord. 47-16, § 1, 9-26-2016)

(b)

(1)

An applicant for membership on a board, committee, commission, council, or task force, or a sitting member of those bodies shall not have any delinquent accounts with the City at the time of appointment to the board, committee, commission, council, or task force, or thereafter in cases of members.

(Ord. 50-92, 8-10-1992; Ord. 47-16, § 1, 9-26-2016)

(2)

For the purpose of this subsection, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ACCOUNTS. Includes, but not limited to, building re-inspection fees, storm water fees, lot mowing fees, irrigation charges, special assessments, water and sewer charges, code enforcement charges, planning and zoning fees. ACCOUNTS shall not include ad valorem taxes.

DELINQUENT. An account more than 60 days past due from the origin of the individual account. Special assessments shall not be considered delinquent if payments are made in compliance with payment plans provided by city legislation.

(c)

(1)

An applicant for membership on a board, committee, commission or task force, or a member of a board, committee, commission or task force shall not have a delinquent refuse collection service account with the city's authorized franchise hauler.

(Ord. 50-92, 8-10-1992)

(2)

For the purpose of this subsection, the following definition shall apply unless the context clearly indicates or requires a different meaning.

DELINQUENT. An account more than 120 days past due from the date of billing.

(d)

(1)

An applicant or member with the delinquent account in subsections (b) or (c) shall be disqualified from consideration for membership, and a member shall forfeit their office.

(Ord. 50-92, 8-10-1992)

(2)

Certification of delinquent account from the city franchise hauler shall be sufficient for disqualification or forfeiture under subsection (d)(1) above.

(e)

Applicants or members shall be entitled to a hearing with City Council if the delinquency under either subsections (c) or (d) above is disputed.

(Ord. 50-92, 8-10-1992)

(a)

All members of boards, commissions, task forces and other bodies appointed by the City Council shall forfeit their office if that member fails to attend two of three consecutive meetings without cause or being excused by the body. The chairperson of the respective body shall notify the City Council in writing of the failure to attend. The forfeiture shall be effective when the City Council is so notified unless the member requests a hearing before the City Council within seven days of notification. If a hearing is requested the forfeiture shall be effective only on an affirmative vote of the City Council after the hearing.

(b)

All member of boards, commissions, task forces and other bodies appointed by the City Council shall forfeit that office for cause if the member:

(1)

Lacks at any time during the term of office any qualification for the office;

(Ord. 37-17, 11-6-17)

(2)

Violates any express prohibition of the office as imposed by the City Council or law;

(3)

Is convicted of a felony; or

(4)

Is guilty of habitual public drunkenness, corruption, incompetence or some other substantial shortcoming which renders the appointee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his or her no longer holding the office.

(c)

The forfeiture shall be effective only upon an affirmative vote of the City Council following notification to the appointee that the City Council is considering the action and notification to the appointee of the specific matters to be considered by the City Council, and a hearing before the City Council if requested by the appointee.

(d)

The City Council may suspend any appointee pending a final determination of forfeiture.

(e)

Notwithstanding any provision of the Cape Coral Code of Ordinances to the contrary, municipal board members, as defined in F.S. § 112.501, shall be suspended or removed from office in accordance with the procedures provided in F.S. § 112.501, as may be amended from time to time.

(Ord. 52-83, 9-19-1983; Ord. 37-17, § 2, 11-6-2017)

(a)

On or before July 1 of each even-numbered year, the City Council shall conduct an annual review of the benefits derived from the continued existence of the boards, task forces, committees, councils, and commissions, designated in subsection (b) below, created by ordinance, resolution or otherwise by the City Council. Upon finding that there are substantial benefits derived from the continued existence of the board, task force, committee, council, or commission, the City Council shall adopt a resolution continuing the existence and functions of the board, task force, committee, council, or commission. Any board, task force, committee, council, or commission for which no resolution is adopted shall automatically be abolished and, if it was created by ordinance or resolution, the ordinance or resolution creating and establishing it shall automatically be repealed as of August 1 of that year.

(Ord. 47-16, § 1, 9-26-2016)

(b)

The following boards, task forces, committees, councils, and commissions are subject to the review requirements of this section:

(1)

Transportation Advisory Commission; and

(2)

Youth Council.

(Ord. 47-16, § 1, 9-26-2016; Ord. 52-23, § 1, 6-7-2023)

(Ord. 60-86, 9-11-1986; Ord. 69-91, 9-10-1991; Ord. 128-00, 1-16-2001)

(a)

Applicability. Members of all advisory boards, commissions, councils, and appeal boards serving the city shall hold no other office on any other board, commission, council, appeal board or the City Council. This regulation is meant to and shall apply to all appointed offices within the city; with the exception of those persons serving on comprehensive task forces, said task force members being permitted to sit on two or more task forces but not to sit on other bodies. Alternate membership shall classify a person as a member for purposes of this section.

(Ord. 47-16, § 3, 9-26-2016)

(b)

Waiver. The single office limitation imposed by this section may be waived in regard to specific individuals by a two-thirds vote of the City Council.

(Ord. 72-92, 11-9-1992; Ord. 37-93, 7-12-1993)

(c)

Terms of office. Members of all advisory boards, commissions, councils, appeals boards, and task forces shall serve no more than two (2) consecutive terms on any board, commission, council, or task force unless alternative provisions are specified for a particular board, commission, council, or task force in the City of Cape Coral Code of Ordinances or Land Development Code. The term of office limitation does not include the term of any board, commission, council, or task force member in effect at the time of the adoption of this subsection. The term of office limitation does not apply to any Council member serving in an ex officio capacity on any advisory board, commission, council, appeals board, or task force. The term of office limitation does not include prior terms served as an alternate when the member is appointed as a regular member. The appointment of a member to fill the vacancy of any unexpired term shall not count as a term for purposes of this section. The term of office limitation imposed by this section may be waived in regard to specific individuals by a two-thirds (2/3) vote of the City Council. Notwithstanding the foregoing, nothing herein precludes a member from serving until a successor is appointed.

(Ord. 72-92, 11-9-1992; Ord. 37-93, 7-12-1993; Ord. 1-99, 1-25-1999; Ord. 55-21, § 1, 7-21-2021)

For purposes of this division, the following words and phrases shall have the meanings indicated below, unless the context in which the word or phrase is used clearly indicates that another meaning is intended.

EX PARTE COMMUNICATION. Any communication, written, oral or by way of any electronic or other medium or process, to an official regarding any quasi-judicial matter which is made outside of an advertised hearing on the matter.

OFFICIAL. Any member of the City Council, the city's Contractor's Regulatory Board/housing Board of Adjustment and Appeals, the city's Fire Prevention Code Board of Adjustment and Appeals, the city's Planning and Zoning Commission, the municipal General Employees Pension Trust Fund Board of Trustees, the Municipal Firefighters Pension Trust Fund Board of Trustees or the municipal Police Officers' Pension Trust Fund Board of Trustees; any member of a grievance committee appointed pursuant to a personnel policy adopted by the City Council; the Hearing Examiner; and any city hearing officer or special master.

QUASI-JUDICIAL MATTER. Any matter with regard to which an individual official or a board, commission or committee of officials is required to ascertain facts based on evidence presented at an advertised hearing and draw conclusions from the facts to determine the personal or property rights of any party, including, but not limited to, rezonings of individual parcels of land under one ownership or of multiple parcels under separate ownership totaling less than ten acres in size; applications for special exceptions, variances or planned development project approvals; disciplinary actions and license or permit revocation actions; code enforcement proceedings; appeals of administrative decisions; and appeals of quasi-judicial decisions.

(Ord. 8-00, 2-14-2000; Ord. 25-16, 6-6-2016)

(a)

Access permitted. Any person not otherwise prohibited by statute, charter provision or ordinance may discuss with any official the merits of any quasi-judicial matter on which action may be taken by the official, or by any board, commission or committee of which the official is a member, as long as the following process is observed:

(1)

The substance of any ex parte communication with an official which relates to a quasi-judicial matter pending before the official shall not be presumed prejudicial to the action taken with regard to the matter if the subject of the communication and the identity of the person, group or entity with whom the communication took place is disclosed and made a part of the record of the hearing on the matter;

(2)

An official may read a written communication from any person. However, a written communication that relates to a quasi-judicial matter pending before a local public official shall not be presumed prejudicial to the action taken with regard to the matter if the written communication is made a part of the record of the hearing on the matter; and

(3)

a.

An official may conduct investigations and site visits and may receive communications from experts regarding a quasi-judicial matter pending before the official.

b.

Those activities shall not be presumed prejudicial to the action taken with regard to the matter if the occurrence of the investigation, site visit or communication is made a part of the record of the hearing on the matter and the official discloses at the hearing any fact, circumstance or opinion learned through the occurrence which influences the official's vote.

(b)

Disclosure. In order to remove any presumption of prejudice, a disclosure made pursuant to subsections (a)(1), (a)(2) and (a)(3) above, must be made before or during the public meeting at which a vote is taken on those matters, and persons who have opinions contrary to those expressed in the ex parte communication must be given a reasonable opportunity to refute or respond to the communication.

(c)

Failure to comply. Failure of any official to comply with this section does not amount to a violation of F.S. Chapter 112, Part III, "Code of Ethics for Public Officers and Employees".

(Ord. 8-00, 2-14-2000)

(a)

Prior to the start of a hearing on any quasi-judicial matter involving land use (such as a rezoning, variance, special exception or planned development project approval), any person aggrieved may file a request to be heard in the matter.

(b)

(1)

A person who appears before the official or board, commission or committee hearing the matter, who is not a city employee testifying in an official capacity, a party or a person aggrieved, shall be allowed to testify, subject to control by the decision-making official or body, and may be requested to respond to questions from the decision-making body, but need not be sworn as a witness, is not required to be subject to cross-examination, and is not required to be qualified as an expert witness.

(2)

The decision-making official or body shall assign weight and credibility to the testimony as deemed appropriate.

(3)

Any city employee testifying in an official capacity, any party and any person aggrieved in a quasi-judicial matter involving land use, upon request by any party or any person aggrieved, shall be sworn as a witness, shall be subject to cross-examination by any party or any person aggrieved, and shall be required to be qualified as an expert witness, if appropriate.

(c)

(1)

With regard to a quasi-judicial matter involving land use, a person may not be precluded from communicating directly with the decision-making official or with a member of the decision-making body by application of ex parte communication prohibitions.

(2)

Disclosure of the communications by the decision making official or by a member of the decision making body is not required pursuant to § 2-71 above, and nondisclosure shall not be presumed prejudicial to the decision of the decision making official or body.

(3)

All decisions regarding quasi-judicial matters involving land use must be supported by substantial, competent evidence in the record of the hearing on the matter, regardless of any like communications.

(Ord. 8-00, 2-14-2000; Ord. 70-05, 11-7-2005)

There is created by this division a special magistrate with authority to impose administrative fines and other non-criminal penalties to provide an equitable, expeditious, effective and inexpensive method of enforcing codes and ordinances in force within the city, where a pending or repeated violation continues to exist including, but not limited to, local business tax, fire, building, zoning and sign codes. Nothing in this division shall prohibit the City Council from enforcing any code by other means.

(Ord. 50-80, 9-22-1980; Ord. 75-82, 11-1-1982; Ord. 118-85, 11-18-1985; Ord. 84-86, § 1, 11-17-1986; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005; Ord. 169-06, 12-11-2006)

Editor's note— Ord. 50-80, § 1-11, adopted September 22, 1980, not specifically amendatory of the code, has been included as §§ 2-81 through 2-90 at the discretion of the editor.

State Law reference— Code Enforcement Board, see F.S. §§ 162.01—162.13

For the purpose of this division, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CODE ENFORCEMENT OFFICER. Any authorized agent or employee of the City of Cape Coral whose duty it is to enforce and assure compliance with the codes and ordinances adopted by the city.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992; Ord. 30-96, 6-10-1996)

LOCAL GOVERNING BODY. The City of Cape Coral City Council.

REPEAT VIOLATION. A violation of a provision of a code or ordinance by a person who has been previously found through a code enforcement board or any other quasi-judicial or judicial process to have violated or who has admitted violating the same provision within five years prior to the violation, notwithstanding the violations occurred at different locations.

(Ord. 69-89, 10-16-1989; Ord. 71-99, § 1, 1-18-2000)

SPECIAL MAGISTRATE. A person authorized by the Cape Coral City Council to hold hearings and assess fines against violators of the City of Cape Coral codes and ordinances. For purposes of this division, a person holding the position of SPECIAL MAGISTRATE must be an attorney duly licensed to practice law in the State of Florida.

(Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

VIOLATOR. The person or entity legally responsible for the violation including, but not limited to, owners and lessees of property on which the violation has occurred.

(Ord. 80-92, 12-14-1992)

(Ord. 55-07, 4-30-2007)

(a)

The city may designate certain of its employees or agents as Code Enforcement Officers. The city shall determine the training and qualifications of the Code Enforcement Officers. Employees or agents who may be designated as Code Enforcement Officers may include, but are not limited to, code inspectors, law enforcement officers, animal control officers or fire safety inspectors. Designation as a Code Enforcement Officer does not provide the Code Enforcement Officer with the power of arrest or subject the Code Enforcement Officer to the provisions of F.S. §§ 943.085 through 943.255. Nothing in this section amends, alters or contravenes the provisions of any state administered retirement system or any state supported retirement system established by general law.

(Ord. 30-96, 6-10-1996; Ord. 38-2003, 4-28-2003)

(b)

Code enforcement officers, Building Official, Deputy Building Officials, chief inspectors, building inspectors (regardless of designations), engineering inspectors, city ordinance inspectors, and landscape inspectors of the city's Department of Community Development, law enforcement officers and Public Service Aides of the city's Police Department, financial services director, customer billing services manager(s), business systems analyst(s), customer billing services research specialist(s), and field service representatives of the city's financial services department are hereby designated to be Code Enforcement Officers and are authorized to issue notices of violation as code inspectors and to request the city's special magistrate(s) to hear cases in which there has been non-compliance. Other employees or agents of the city may, by resolution of the City Council, be designated as Code Enforcement Officers.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 38-2003, 4-28-2003; Ord. 40-05, 3-21-2005; Ord. 121-05, 9-6-2005; Ord. 17-06, 2-21-2006)

(c)

Code enforcement officers may also issue notices to appear before the County Court of Lee County, Florida, for any violation of the city as provided in Division 4 herein.

(Ord. 80-92, 12-14-1992; Ord. 30-96, 6-10-1996)

(d)

Code enforcement officers are hereby designated to administer the provisions of F.S. Chapter 705 pertaining to lost or abandoned property.

(Ord. 80-92, 12-14-1992; Ord. 30-96, 6-10-1996)

(Ord. 55-07, 4-30-2007)

(a)

The city shall utilize the services of one or more special magistrates to conduct hearings concerning violations of the codes and ordinances in force within the city.

(b)

The City Council shall, by majority vote, designate the codes and ordinances of the city to be enforced by the special magistrate(s). The City Manager shall at least annually recruit qualified persons to serve as special magistrates.

(c)

The City Council shall, on an annual basis, appoint at least one qualified person to serve as the special magistrate and at least one qualified person to serve as an alternate special magistrate in the event the special magistrate is unable to attend a meeting.

(d)

Applicants for the special magistrate position must be attorneys. The appointment(s) shall be in the sole discretion of the City Council. However, any person appointed to the position of special magistrate pursuant to this article must be an attorney duly licensed by the Florida Bar Association to practice law in the State of Florida. Each special magistrate shall serve for a term of one year though special magistrates may be reappointed for consecutive one year terms. Although appointed for one year terms, special magistrates shall be subject to removal, with or without cause, from their positions at any time during their term by the City Council in its sole discretion.

(e)

Special magistrates shall not be considered to be city employees though, if authorized by the City Council, they may receive compensation for their service and also may be reimbursed for the travel, mileage and per diem expenses as may be authorized by the City Council.

(Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

The City Attorney shall act as counsel to the division of code enforcement. Because only attorneys may hold the position of special magistrate, the City Council shall not be required to retain an attorney to represent the special magistrate(s).

(Ord. 50-80, 9-22-1980; Ord. 6-81, 2-23-1981; Ord. 75-82, 11-1-1982; Ord. 118-85, 11-18-1985; Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(a)

It shall be the duty of the Code Enforcement Officer to initiate enforcement proceedings of the various codes. No special magistrate shall have the power to initiate the enforcement proceedings.

(Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(b)

Except as provided in subsection (k) below, if a violation of the codes is found, the Code Enforcement Officer shall notify the violator and give the violator a reasonable time, up to a maximum of 30 days, to correct the violation. For violations occurring on property occupied by a tenant, both the owner of the property and the tenant, if the tenant can be identified, may be cited for the violation. In addition, for rental properties, rental managers may be provided a courtesy copy of the notice of violation pursuant to subsection (m) below. The determination of a reasonable time shall be based on considerations of fairness; practicality; ease of correction; ability to correct; severity of the violation; nature, extent and probability of danger or damage to the public; and other relevant factors relating to the reasonableness of the time period prescribed. Should the violation continue beyond the time specified for correction, the Code Enforcement Officer shall notify the special magistrate of the charges and request a hearing. For a repeat violation, it is not necessary for the Code Enforcement Officer to give the violator a reasonable time to correct the violation. (See § 2-86(e) below.)

(Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 7-00, § 1, 2-28-2000; Ord. 40-05, 3-21-2005)

(c)

The special magistrate through its clerical staff, shall schedule a hearing and written notice of the hearing shall be hand delivered or mailed as provided in subsection (d) to the violator. Notice may additionally be served by publication or posting as provided in subsection (e).

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 40-05, 3-21-2005)

(d)

Method of notice: all notices required by this section shall be provided to the alleged violator as follows:

(1)

By certified mail to the address listed in the tax collector's office for tax notices or to the address listed in the county property appraiser's database. The City may also provide an additional notice to any other address it may find for the property owner. For property owned by a corporation, notices may be provided by certified mail to the registered agent of the corporation. If any notice sent by certified mail is not signed as received within 30 days after the postmarked date of mailing, notice may be provided by posting as described in subsection (e)(2) below;

(2)

By hand delivery by a Code Enforcement Officer, law enforcement officer or other person designated by the City;

(3)

By leaving the notice at the violator's usual place of residence with any person residing therein who is over 15 years of age and informing the person of the contents of the notice; or

(4)

In the case of commercial premises, leaving the notice with the manager or other person in charge.

(Ord. 71-99, 1-18-2000; Ord. 19-24, § 1, 4-3-2024)

(e)

In addition to providing notice as set forth in subsection (d) above, notice may also be served by publication or posting, as follows:

(1)

a.

Such notice shall be published in print in a newspaper or on a publicly accessible website as provided in Section 50.0311, Florida Statutes, for four consecutive weeks. If published in print, the notice shall be published once during each week for four consecutive weeks (four publications being sufficient) in a newspaper in Lee County, Florida. The newspaper shall meet such requirements as are prescribed under Chapter 50, Florida Statutes, for legal and official advertisements.

b.

Proof of publication shall be made as provided in Sections 50.041 and 50.051, Florida Statutes.

(2)

In lieu of publication as described in subsection (e)(1), such notice may be posted at least ten days prior to the hearing, or prior to the expiration of any deadline contained in the notice, in at least two locations, one of which shall be the property upon which the violation is alleged to exist and the other of which shall be at the City of Cape Coral City Hall. Proof of posting shall be by affidavit of the person posting the notice, which affidavit shall include a copy of the notice posted and the date and places of its posting.

(Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 71-99, § 1, 1-18-2000; Ord. 19-24, § 1, 4-3-2024)

(f)

Notice by publication or posting may run concurrently with, or may follow, an attempt or attempts to provide notice by hand delivery or by mail as required under subsection (d) above.

(g)

Evidence that an attempt has been made to hand deliver or mail notice as provided in subsection (d) above, together with proof of publication or posting as provided in subsection (e) above shall be sufficient to show that the notice requirements of this section have been met, without regard to whether or not the alleged violator actually received the notice.

(h)

The notice of hearing shall include the following:

(1)

Name of the Code Enforcement Officer who initiated the request for a hearing;

(2)

A factual description of the alleged violation;

(3)

Date of alleged violation;

(4)

Section of code or ordinance allegedly violated;

(5)

Place, date and time of the hearing;

(6)

Right of violator to be represented by counsel;

(7)

Right of violator to present witnesses and evidence;

(8)

Notice that failure of the violator to attend the hearing may result in a fine being assessed against him or her; and

(9)

Notice that requests for continuances will not be considered if not received by the Special Magistrate at least five calendar days prior to the date set for hearing.

(Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(i)

If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction by the Code Enforcement Officer the case shall be presented to the special magistrate even if the violation has been corrected prior to the special magistrate hearing and the notice shall so state.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

(j)

If a repeat violation is found, the Code Enforcement Officer shall notify the violator but is not required to give the violator a reasonable time to correct the violation. A hearing before a special magistrate, shall be requested and scheduled in the manner provided above.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

(k)

If the Code Enforcement Officer has reason to believe a violation or the condition causing the violation presents a serious threat to the public health, safety and welfare, or if the violator is engaged in violations of an itinerant or transient nature as defined in this code, or if the violation is irreparable or irreversible in nature, the Code Enforcement Officer shall make a reasonable effort to notify the violator and may immediately notify the special magistrate and request a hearing.

(Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

(l)

(1) If the owner of property which is subject to an enforcement proceeding before a special magistrate transfers ownership of the property between the time the initial pleading was served and the time of the hearing, the owner shall:

(Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

a.

Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee;

(Ord. 71-99, § 1, 1-18-2000)

b.

Deliver to the prospective transferee a copy of the pleadings, notices and other materials relating to the code enforcement proceeding received by the transferor;

(Ord. 71-99, § 1, 1-18-2000)

c.

Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; and

d.

File a notice with the Code Enforcement Officer of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer.

(Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

(2)

A failure to make the disclosures described in subsections (l)(1)a., b. and c. above before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held.

(Ord. 71-99, § 1, 1-18-2000)

(m)

Managers of rental properties may file with the code enforcement manager a list of the properties they manage, along with the name and address of the person to whom any courtesy notice provided under this subsection should be sent. The code enforcement manager may prescribe a required format for the information, so as to best accommodate the provision of courtesy notices. Whenever a notice of violation is provided to the owner or tenant of any property, the code enforcement manager shall attempt to mail a courtesy copy of the notice of violation, as well as any subsequent notice of hearing pertaining to the violation, to the name and address provided by the rental property manager. Failure to mail any courtesy copy shall not, however, affect the validity of any notice of violation, hearing or other procedure or proceeding.

(Ord. 7-00, § 1, 2-28-2000; Ord. 50-80, § 6, 9-22-1980; Ord. 6-81, § 2, 2-23-1981; Ord. 75-82, § 1, 11-1-1982; Ord. 84-86, § 1, 11-17-1986; Ord. 44-95, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996)

(Ord. 55-07, 4-30-2007)

(a)

Upon request of the code enforcement manager or designee, or at other times as may be necessary, the special magistrate(s) may convene hearings. No special magistrate hearing shall be set for sooner than ten calendar days from the date of service of the notice of violation. Minutes shall be kept of all hearings by the special magistrate(s) and all hearings and proceedings shall be open to the public. The City Manager shall provide clerical and administrative personnel as may be reasonably required by the special magistrate(s) for the proper performance of their duties.

(Ord. 69-89, 10-16-1989; Ord. 52-90, 7-16-1990; Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(b)

Each case before the special magistrate(s) shall be presented by the City Attorney or his or her designee and/or by the code enforcement manager or his or her designee. If the city prevails in prosecuting a case before the special magistrate(s), it shall be entitled to recover all costs incurred in prosecuting the case before the special magistrate(s) and such costs may be included in the lien authorized herein.

(Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(c)

The special magistrate shall proceed to hear the cases on the agenda for that day. If the alleged violator has been duly notified of the hearing, the hearing may proceed in the absence of the named violator. All testimony shall be under oath and shall be recorded. The special magistrate shall take testimony from the Code Enforcement Officer, the alleged violator, and any other witnesses who have personal knowledge concerning the alleged violation. Documentary evidence may be presented in support of or in defense of the charge. Formal rules of evidence shall not apply, but fundamental due process shall be observed and govern the proceedings. In order to render an order finding the violator guilty, the special magistrate must find that a preponderance of the evidence indicates that the named violator was responsible for the violation as alleged.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(d)

At the conclusion of the hearing, the special magistrate shall issue an order containing findings of fact, based on evidence of record, and conclusions of law. The order of the special magistrate may include a notice that it must be complied with by a specified date, and that a fine may or will be imposed and, under the conditions specified in § 2-88(a) below, the cost of repairs may be included along with the fine if the order is not complied with by that date. A certified copy of the order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers, successors in interest or assigns. If an order is recorded in the public records pursuant to this subsection and the order is complied with by the date specified in the order, the special magistrate shall issue an order acknowledging compliance that shall be recorded in the public records. A special magistrate hearing is not required to issue such an order acknowledging compliance.

(Ord. 50-80, § 7, 9-22-1980; Ord. 6-81, § 3, 2-23-1981; Ord. 75-82, § 1, 11-1-1982; Ord. 84-86, § 1, 11-17-1986; Ord. 69-89, 10-16-1989; Ord. 52-90, 7-16-1990; Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(e)

If a repeat violation is found, the Code Enforcement Officer shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The Code Enforcement Officer, upon notifying the violator of the repeat violation, shall notify the special magistrate, if applicable, and request a hearing. The special magistrate, through his or her clerical staff(s), shall schedule a hearing and shall provide notice of the hearing as required by this § 2-85. The case may be presented to the special magistrate even if the repeat violation has been corrected prior to the special magistrate hearing, and the notice shall so state. If the repeat violation has been corrected, the special magistrate retains the right to schedule a hearing to determine costs and impose the payment of reasonable enforcement fees upon the repeat violator. The repeat violator may choose to waive his or her rights to this hearing and pay the costs as determined by the special magistrate.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 30-96, 6-10-1996; Ord. 50-96, 9-24-1996; Ord. 7-97, 2-24-1997; Ord. 40-05, 3-21-2005; Ord. 55-07, 4-30-2007)

The special magistrate shall have the power to:

(a)

Adopt rules for the conduct of its hearings;

(b)

Subpoena alleged violators and witnesses to its hearings. Subpoenas may be served by the city's Police Department, Lee County sheriff or an authorized process server;

(Ord. 80-92, 12-14-1992)

(c)

Subpoena evidence to its hearings;

(Ord. 69-89, 10-16-1989)

(d)

Take testimony under oath; and

(e)

Issue orders having the force of law commanding whatever steps are necessary to bring a violation into compliance.

(Ord. 50-80, § 8, 9-22-1980; Ord. 75-82, § 1, 11-1-1982)

(a)

The special magistrate, upon notification by the Code Enforcement Officer that a previous order of the special magistrate has not been complied with by the set time, or, upon finding that a repeat violation has been committed, may order the violator to pay a fine in an amount specified by this section for each day the violation continues past the date set by the special magistrate for compliance or, in the case of a repeat violation, for each day the repeat violation continues beginning with the date the repeat violation is found to have occurred by the Code Enforcement Officer. In addition, if the violation is a violation described in § 2-85(i) above, the special magistrate shall notify the city, which may make all reasonable repairs which are required to bring the property into compliance and charge the violator with the reasonable cost of the repairs along with the fine imposed pursuant to this section. Making the repairs does not create a continuing obligation on the part of the city to make further repairs or to maintain the property and does not create any liability against the city for any damages to the property if the repairs were completed in good faith. If a finding of a violation or a repeat violation has been made as provided in this division, a hearing shall not be necessary for issuance of the order imposing a fine. If, after due notice and hearing, the special magistrate finds a violation to be irreparable or irreversible in nature, the special magistrate may order the violator to pay a fine as specified in subsection (b) below.

(Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(b)

The fine imposed pursuant to this section shall not exceed $1,000 per day for a first violation and shall not exceed $5,000 per day for a repeat violation and, in addition, may include all costs of repairs pursuant to subsection (a) above, and the city's cost of enforcing its code. However, if the special magistrate finds the violation to be irreparable or irreversible in nature, the special magistrate may impose a fine not to exceed $15,000 per violation, plus the city's costs of repairs, if any, and costs of enforcement.

(Ord. 69-89, 10-16-1989; Ord. 44-94, 8-22-1994; Ord. 40-05, 3-21-2005)

(c)

In determining the amount of the fine, the special magistrate shall consider the following factors:

(1)

The gravity of the violation;

(2)

Any actions taken by the violator to correct the violation; and

(3)

Any previous violations committed by the violator.

(d)

The special magistrate may reduce a fine imposed pursuant to this section.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005)

(a)

The legal owner of property against which a fine or lien has been imposed by the City, whether it be the violator or a subsequent purchaser of the property, or an enforcing department, may seek a satisfaction of such fine or lien with less than full payment thereof.

(b)

The legal owner or enforcing department may seek such satisfaction:

(1)

Upon motion to the special magistrate as prescribed by subsection (d); or

(2)

Upon joint motion between the enforcing department and the legal owner as prescribed by subsection (e).

(c)

No such motion shall be granted by the special magistrate unless:

(1)

All ad valorem property taxes, special assessments, city utility charges and other government-imposed liens against the subject real property have been paid; and

(2)

All City Code violations as related to the order rendered by the special magistrate at the initial violation hearing have been corrected under necessary permits issued therefor.

(d)

Reduction upon motion.

(1)

Either party may move for a reduction in fine or lien as ordered from a violation hearing. Said motion shall be filed with the City Manager, or the City Manager's designee, a copy of which shall be furnished by the movant to the other party and to the City Attorney's Office.

(2)

A hearing shall be convened by the City Manager, or the City Manager's designee, before the special magistrate, with notice pursuant to Section 2-85 being transmitted to both the legal owner and the enforcing department.

(3)

At the hearing, the movant shall have the opportunity to advise the special magistrate of the mitigating factors set forth herein.

(4)

The enforcing department shall appear at said hearing and advise the special magistrate as to whether compliance has been achieved at the subject property as related to the order rendered by the special magistrate at the violation hearing, and in addition shall advise as to whether all ad valorem property taxes, special assessments, city utility charges and other government-imposed liens against the subject real property have been paid, and whether the legal owner is personally indebted to the City for any reason.

(5)

At the conclusion of the hearing, the special magistrate shall render his or her findings of facts and conclusions of law orally based on evidence entered into the record. These findings shall be reflected in a written order, copies of which shall be transmitted to the respondent and the enforcing department by the special magistrate through its clerical staff within ten business days after the hearing.

(6)

The special magistrate shall, in addition to granting or denying the request for reduction in fines and liens, also assess the City's administrative costs for the hearing in the order, to be paid by the moving party. Such administrative costs shall be approved by Resolution of the City Council.

(e)

Reduction upon joint motion.

(1)

If an agreement for reduction in a fine or lien has been reached between an enforcing department and a legal owner of the subject property, a joint motion signed by representatives for both parties may be filed with the special magistrate through its clerical staff, along with a proposed agreement outlining the terms of reduction and/or vacating any fines or liens, as applicable.

(2)

The enforcing department shall determine whether compliance have been achieved as related to the order rendered by the special magistrate at the violation hearing, determine whether all ad valorem property taxes, special assessments, city utility charges and other government-imposed liens against the subject real property have been paid, and whether the legal owner is personally indebted to the City for any reason.

(3)

Upon receipt of the joint motion and proposed agreement, the special magistrate shall ratify and approve the agreement for the reduction in a fine or lien amount and assess the City's administrative costs. Such administrative costs shall be approved by Resolution of the City Council.

(f)

If the subject property for which a fine or lien reduction is being considered is owned by a government or quasi-government entity, the special magistrate may reduce such fine or lien even if the violation has not been corrected.

(g)

Fine or lien reduction criteria. In evaluating a request for a fine or lien to be reduced, the special magistrate shall consider the following:

(1)

The gravity of the violation;

(2)

The time in which it took the violator to come into compliance;

(3)

Any prior or subsequent code violations on the subject property during the current owner's time of ownership;

(4)

Whether the owner requesting the reduction took proactive action to correct the violations for which the fine or lien was imposed;

(5)

Any actual costs expended by the owner to cure the violation(s) as provided by supporting documentation, including payment of city licensing or permit fees; and

(6)

Any other factor which may show a hardship on the owner requesting the reduction or which may provide a reasonable basis for the requested relief.

(h)

Liens or fine amounts for hard costs incurred by the City, including, but not limited to, lot clearing, board-up, demolition, and any costs incurred by a city contractor to cure a violation, shall not be reduced by the special magistrate.

(i)

If the applicant fails to timely pay the reduced fine or lien amount, and the City's administrative costs, in accordance with the terms approved by a special magistrate order under Subsection (d), or agreement under Subsection (e), the fine or lien amount shall revert back to the original amount.

(j)

The special magistrate's consideration of and determination on whether to forgive or reduce a code compliance fine/lien is an administrative decision as to whether to accept less for a debt owed to the City, not a quasi-judicial one. The property owner/code violator has already received due process through the special magistrate code compliance proceeding and had appellate rights through that process. The procedures in this Section 2-88.5 are not intended to create additional substantive or procedural due process rights.

(Ord. 28-25, § 2, 6-4-2025)

(a)

A certified copy of an order imposing a fine, or a fine plus repair costs or enforcement costs or both, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any real or personal property owned by the violator.

(b)

Upon petition to the Circuit Court, the order shall be enforceable in the same manner as a court judgment by the sheriffs of this state, including execution and levy against the personal property of the violator, but shall not be deemed otherwise to be a judgment of a court except for enforcement purposes. Unless otherwise ordered by the special magistrate, a fine imposed pursuant to this division shall continue to accrue until the violator comes into compliance or until judgment is rendered in a suit to foreclose on a lien filed pursuant to this section, whichever occurs first. A lien arising from a fine imposed pursuant to this section runs in favor of the City and the City may execute a satisfaction or release of lien entered pursuant to this section.

(Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 71-99, § 1, 1-18-2000; Ord. 40-05, 3-21-2005; Ord. 55-07, 4-30-2007)

(a)

After three months from the filing of any lien which remains unpaid, the special magistrate may authorize the City Attorney to foreclose on the lien or sue to recover a money judgment for the amount of the lien, plus accrued interest. No lien created pursuant to this section may be foreclosed on real property which is homestead protected from claims of creditors by the Florida Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under Article X, § 4(a), of the Florida Constitution.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(b)

In any action to foreclose on a lien, the prevailing party is entitled to recover all costs, including reasonable attorneys fees, that it incurs in the foreclosure. The city shall be entitled to collect all costs incurred in recording and satisfying a valid lien.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992; Ord. 44-94, 8-22-1994; Ord. 40-05, 3-21-2005)

(Ord. 55-07, 4-30-2007)

(a)

No lien shall continue for a period longer than 20 years after the certified copy of an order imposing a fine has been recorded, unless within that time an action to foreclose on the lien is commenced in a court of competent jurisdiction.

(b)

The continuation of the lien effected by the commencement of the action shall not be good against creditors or subsequent purchasers for valuable consideration without notice, unless a notice of lis pendens is recorded.

(c)

No lien created pursuant to the provisions of this article may be enforced on real property which is a homestead under Art. X, § 4 of the Florida State Constitution.

(Ord. 50-80, 9-22-1980; Ord. 75-82, 11-1-1982; Ord. 43-85, 6-3-1985; Ord. 118-85, 11-18-1985; Ord. 84-86, § 1, 11-17-1986; Ord. 80-92, 12-14-1992; Ord. 40-05, 3-21-2005)

(a)

An aggrieved party including the City Council may appeal a final administrative order of the special magistrate to the Circuit Court. A notice of appeal shall be filed with the Department of Community Development with a copy to the Circuit Court, within 30 days of the execution of the order to be appealed.

(Ord. 50-80, 9-22-1980; Ord. 75-82, 11-1-1982; Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(b)

An appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the special magistrate.

(Ord. 80-92, 12-14-1992; Ord. 12-96, 3-11-1996; Ord. 50-96, 9-24-1996; Ord. 40-05, 3-21-2005)

(c)

All appeals shall be governed by the Florida Rules of Appellate Procedure.

(Ord. 80-92, 12-14-1992)

(Ord. 55-07, 4-30-2007)

(a)

The City Council may designate certain of its employees or agents as Code Enforcement Officers. Employees or agents who may be designated as Code Enforcement Officers may include, but are not limited to, code inspectors, law enforcement officers, animal control officers or fire safety inspectors. Designation as a Code Enforcement Officer does not provide the Code Enforcement Officer with the power of arrest or subject the Code Enforcement Officer to the provisions of F.S. §§ 943.085 through 943.255. Nothing in this section amends, alters or contravenes the provisions of any state administered retirement system or any state supported retirement system established by general law.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992)

(b)

(1)

A Code Enforcement Officer is authorized to issue a citation to a person when, based upon personal investigation, the officer has reasonable cause to believe that the person has committed a civil infraction in violation of a duly enacted code or ordinance and that the county court will hear the charge.

(Ord. 69-89, 10-16-1989)

(2)

Prior to issuing a citation, a Code Enforcement Officer shall provide notice to the person that the person has committed a violation of a code or ordinance and shall establish a reasonable time period within which the person must correct the violation. That time period shall be no more than 30 days. If, upon personal investigation, a Code Enforcement Officer finds that the person has not corrected the violation within the time period, a Code Enforcement Officer may issue a citation to the person who has committed the violation. A Code Enforcement Officer does not have to provide the person with a reasonable time period to correct the violation prior to issuing a citation and may immediately issue a citation if a repeat violation is found or if the Code Enforcement Officer has reason to believe that the violation presents a serious threat to the public health, safety or welfare, or if the violation is irreparable or irreversible.

(Ord. 69-89, 10-16-1989; Ord. 44-94, 8-22-1994)

(3)

A citation issued by a Code Enforcement Officer shall contain:

a.

The date and time of issuance;

b.

The name and address of the person to whom the citation is issued;

c.

The date and time the civil infraction was committed;

d.

The facts constituting reasonable cause;

e.

The number or section of the code or ordinance violated;

f.

The name and authority of the Code Enforcement Officer;

g.

The procedure for the person to follow in order to pay the civil penalty or to contest the citation;

h.

The applicable civil penalty if the person elects to contest the citation;

i.

The applicable civil penalty if the person elects not to contest the citation; and

(Ord. 7-97, 2-24-1997)

j.

A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear in court to contest the citation, he or she shall be deemed to have waived his or her right to contest the citation and that, in that case, judgment may be entered against the person for an amount up to the maximum civil penalty.

(Ord. 80-92, 12-14-1992)

(c)

After issuing a citation to an alleged violator, a Code Enforcement Officer shall deposit the original citation and one copy of the citation with the county court.

(Ord. 69-89, 10-16-1989)

(d)

Any person who willfully refuses to sign and accept a citation issued by a Code Enforcement Officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S. §§ 775.082 or 775.083.

(Ord. 69-89, 10-16-1989)

(e)

The provisions of this section shall not apply to the enforcement pursuant to F.S. §§ 553.79 and 553.80 of building codes adopted pursuant to F.S. § 553.73 as they apply to construction, provided that a building permit is either not required or has been issued by the municipality. For the purposes of this subsection, BUILDING CODES means only those codes adopted pursuant to F.S. § 553.73.

(Ord. 69-89, 10-16-1989)

(f)

The provisions of this section are additional and supplemental means of enforcing municipal codes or ordinances and may be used for the enforcement of any code or ordinance, or for the enforcement of all codes and ordinances. Nothing contained in this section shall prohibit the city from enforcing its codes or ordinances by any other means.

(g)

If the owner of property which is subject to an enforcement proceeding before a court transfers ownership of the property between the time the initial pleading was served and the time of the hearing, the owner shall:

(Ord. 71-99, § 2, 1-18-2000)

(1)

Disclose, in writing, the existence and the nature of the proceeding to the prospective transferee;

(Ord. 71-99, § 2, 1-18-2000)

(2)

Deliver to the prospective transferee a copy of the pleadings, notices and other materials relating to the code enforcement proceeding received by the transferor;

(Ord. 71-99, § 2, 1-18-2000)

(3)

Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding; and

(Ord. 71-99, § 2, 1-18-2000)

(4)

File a notice with the Code Enforcement Officer of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer.

(Ord. 71-99, § 2, 1-18-2000)

(h)

A failure to make the disclosures described in subsections (g)(1), (2) and (3) before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held.

(Ord. 71-99, 1-18-2000; Ord. 69-89, 10-16-1989)

(Ord. 55-07, 4-30-2007)

Any violation of the city code or ordinances, except as otherwise provided in § 2-94 above or otherwise provided by a city ordinance, shall constitute a civil infraction with a civil penalty as set forth in the city code, and any person who has committed a civil infraction that does not contest the citation shall only be required to pay a fine of $40 unless the civil infraction has a maximum penalty of $500, and in that case, shall pay a penalty of $75.

(Ord. 69-89, 10-16-1989; Ord. 80-92, 12-14-1992)

In all citations that are contested before the county court by an alleged violator, the Code Enforcement Officer that issued the citation shall testify and deliver documents to the court which show the Code Enforcement Officer's investigation that caused him or her to believe that the person had committed a civil infraction in violation of a duly enacted city code or ordinance. The City Attorney of the city is authorized to prosecute citations before the county court or assist the Code Enforcement Officer in preparation and the presentation of evidence to the court in a contested case.

(Ord. 69-89, 10-16-1989)

The City of Cape Coral hereby adopts alternate code enforcement procedures pursuant to F.S. §§ 162.03 and 162.21. The City is creating this division as an equitable, expeditious, effective, and inexpensive method of enforcing City codes and ordinances where a pending or repeated violation continues to exist. The special magistrate established in Division 3 of this Code shall have the authority to hold administrative hearings and impose civil fines and other non-criminal penalties for violations of a code provision identified in § 2-104.

(Ord. 12-23, § 1, 3-15-2023)

(a)

The City may designate certain of its employees or agents as Code Enforcement Officers. The City shall determine the training and qualifications of the Code Enforcement Officers. Employees or agents who may be designated as Code Enforcement Officers may include, but are not limited to, code inspectors, law enforcement officers, animal control officers, or fire safety inspectors. Designation as a Code Enforcement Officer does not provide the Code Enforcement Officer with the power of arrest or subject the Code Enforcement Officer to the provisions of F.S. §§ 943.085—943.255.

(b)

Code enforcement officers, Building Official, Deputy Building Officials, chief inspectors, building inspectors (regardless of designations), engineering inspectors, City ordinance inspectors, Solid Waste Manager, Solid Waste Inspectors, and landscape inspectors of the city's Department of Development Services, law enforcement officers and Public Service Aides of the City's Police Department, financial services director, customer billing services manager(s), business systems analyst(s), customer billing services research specialist(s), and field service representatives of the City's financial services department are hereby designated to be Code Enforcement Officers and are authorized to issue a citation violation notice as code inspectors and to request the City's special magistrate(s) to hear cases in which there has been non-compliance. Other employees or agents of the City may, by resolution of the City Council, be designated as Code Enforcement Officers.

(Ord. 12-23, § 1, 3-15-2023)

(a)

Code enforcement officers shall have the authority to initiate enforcement action by issuance of a citation violation notice whenever, based upon personal investigation, the code inspector has reasonable and probable grounds to believe that a violation of a code provision identified in § 2-104 has occurred or exists. No board member or special magistrate shall have the authority to initiate or prosecute any enforcement action.

(b)

A code enforcement officer may not initiate enforcement proceedings for a potential violation of a duly enacted code or ordinance by way of an anonymous complaint. A person who reports a potential violation of a code or an ordinance must provide his or her name and address to the City before an enforcement proceeding may occur. This paragraph does not apply if the code enforcement officer has reason to believe that the violation presents an imminent threat to public health, safety, or welfare or imminent destruction of habitat or sensitive resources.

(c)

A code enforcement officer shall issue a written warning notice to the person who committed the violation or was responsible for maintaining or permitting the violation of a code provision in accordance with the method of providing notice in § 2-85, with no civil penalty as a first response to a violation, except as provided in subsection (e). If the code enforcement officer finds that a violation is correctable, the code enforcement officer shall determine a reasonable time period within which the violator must correct the violation. The determination of the reasonable time period shall be based on consideration of fairness; practicality; ease of correction; ability to correct; severity of the violation; nature, extent, and probability of danger or damage to the public; and other relevant factors relating to the reasonableness of the time period prescribed. The warning notice shall state the time for correction of violation, amount of the civil penalty to be paid should the violation remain uncorrected after the time period determined by the code enforcement officer and that the violator shall contact the code enforcement officer upon complying with corrective action.

(d)

If upon personal investigation, a code enforcement officer finds that the person has not corrected the violation within the time period specified in the warning notice, or if the violation of the code is corrected and recurs, a code enforcement officer shall issue a citation violation notice to the person who has committed the violation or was responsible for maintaining or permitting the violation of a code provision in accordance with the method of providing notice in § 2-85.

(e)

If a code enforcement officer determines that a violation or the condition causing a violation presents a serious threat to the public health, safety, or welfare, or if the violation is irreparable or irreversible, or if a repeat violation is found, or if the violator is engaged in violations of an itinerant or transient nature, the code enforcement officer does not have to provide the violator with a warning notice or a reasonable time to correct the violation prior to issuing a citation violation notice and may immediately notify the special magistrate and request a hearing. A repeat violation is a violation of a provision of code or ordinance by a person who has been previously found in violation by the City's special magistrate, or any other quasi-judicial or judicial process, to have violated, or who has admitted violating the same provision within five years prior to the violation, notwithstanding the violations occur at different locations.

(f)

A citation violation notice issued by a code enforcement officer shall be in a form prescribed by the City and shall contain:

(1)

The location, date and time of the violation.

(2)

The name and address of the violator.

(3)

A brief factual description of the nature of the violation.

(4)

The date of issuance of the citation violation notice.

(5)

The number or the section of the code or ordinance violated.

(6)

The name of the code inspector issuing the citation violation notice.

(7)

The procedure for the violator to follow to pay the civil penalty, including the due date for payment of the civil penalty.

(8)

The procedure for the violator to follow to request an administrative hearing.

(9)

The amount of the civil penalty for an uncontested violation.

(10)

The amount of the civil penalty for a contested violation.

(11)

The specified time period to correct the violation.

(12)

A conspicuous statement that if the violator fails to pay the civil penalty within the time allowed, or fails to timely request an administrative hearing within 15 days of the date of the citation violation notice, the violator shall be deemed to have waived his/her right to an administrative hearing and that, in such case, judgment may be entered against the violator for an amount up to the maximum civil penalty.

(13)

Notice that the person may be liable for reasonable costs of the hearing should the violator be found guilty of the violation.

(g)

After providing notice of a citation violation notice to a person, the code enforcement officer shall submit the original citation violation notice to the Department of Development Services.

(h)

Any person who willfully refuses to sign and accept a citation violation notice issued by a Code Enforcement Officer shall be guilty of a misdemeanor of the second degree, punishable as provided in F.S. § 775.082 or F.S. § 775.083.

(Ord. 12-23, § 1, 3-15-2023)

(a)

If the violation is continuing or repetitive, a single violation will occur each day beyond the time for correction set forth in the citation violation notice.

(b)

For each day of a continued violation, an additional civil penalty in the same amount as that prescribed for in the original citation violation notice shall be added.

(c)

Continuing violation penalties shall accrue from the date of correction given in the citation violation notice until the correction is made, and compliance is obtained. If the violator requests an administrative hearing and loses such appeal, the special magistrate shall determine a reasonable time period within which correction of the violation must be made, based on the considerations set forth herein. If correction is not made within the time period set by the special magistrate, continuing violation penalties shall begin to accrue after the time allowed for correction by the special magistrate has run.

(d)

Civil penalties assessed pursuant to this article are due and payable to the Department of Development Services on or before the last day of the period allowed for the filing of an administrative hearing, or for the filing of an appeal from a special magistrate decision at an administrative hearing, or if proper appeal is made, when the appeal has been finally decided adversely to the violator.

(e)

A violator who has been served with a citation violation notice shall elect either to:

(1)

Correct the violation and pay the civil penalty in the manner indicated on the citation violation notice; or

(2)

Request an administrative hearing before a special magistrate to contest the citation violation notice.

(f)

A violator shall request an administrative hearing by filing a written request for such hearing with the Director of the Department of Development Services no later than 15 days after the date of the citation violation notice. The request shall include the name and address of the violator and the citation violation notice number.

(g)

Failure of a violator to file a written request for an administrative hearing within 15 days after date of the citation violation notice shall constitute a waiver of the violator's right to an administrative hearing to contest the citation violation notice and is deemed an admission of the violation and civil penalties shall be assessed and costs may be assessed accordingly.

(h)

If a violator fails to correct the violation or pay the civil penalty by the specified time period as written on the citation violation notice, or timely request an administrative hearing, the special magistrate shall be informed of such failure by an affidavit of non-compliance executed by a code enforcement officer. The Department of Development Services shall send to the violator a notice of a hearing for non-compliance. Such notice of hearing shall be served in accordance with the method of providing notice in § 2-85. At the date, time, and place set such hearing, the special magistrate shall order the fine be imposed as specified in the citation violation notice.

(i)

A certified copy of said order imposing the fine and enforcement costs may be recorded in the public records of the county and once recorded, it shall constitute a lien against any real or personal property owned by the violator.

(Ord. 12-23, § 1, 3-15-2023)

(a)

Upon receipt of a violator's timely request for an administrative hearing, the Department of Development Services shall schedule the administrative hearing on the next available regularly scheduled special magistrate hearing date, or as soon thereafter as possible.

(b)

The Department of Development Services shall send a notice of hearing by certified and regular mail to the violator at the address provided by the violator on the request for an administrative hearing.

(c)

The notice of an administrative hearing shall include:

(1)

Notice that the violator may be represented by an attorney.

(2)

Notice that the violator to present witnesses and evidence.

(3)

Notice that failure of the violator to attend the administrative hearing may result in a civil penalty being assessed in the absence of the violator.

(4)

Notice that a request for a continuance will not be considered if not received in writing by the Director of the Department of Development Services at least five calendar days prior to the scheduled hearing date.

(5)

Notice that the violator will be responsible for a verbatim record of the hearing should they desire to appeal the special magistrate's decision.

(d)

The administrative hearing shall be conducted as provided in § 2-86. The fact-finding determination of the special magistrate at the administrative hearing shall be limited to whether the violation alleged did occur and, if so, whether the person named in the citation violation notice can be held responsible for that violation. At the conclusion of the administrative hearing, the special magistrate shall issue an administrative order with findings of fact and conclusions of law and if the city prevails, impose the civil penalty as set forth in § 2-104.

(e)

If the violator is found to have committed or responsible for committing the violation, the order of the special magistrate shall require the violator to pay a fine in the amount established in § 2-104. Such order may also command a violator to take whatever steps are necessary to bring a violation into compliance. The order shall be announced orally at the hearing and shall be reduced to writing and served on the violator at the hearing or subsequent to the hearing shall be reduced to writing and served in accordance with the method of providing notice in § 2-85.

(f)

For the first repeat violation, the amount of the civil penalty shall be double the amount of the penalty prescribed for the original violation in § 2-104. The amount of civil penalty due for each subsequent repeat violation shall be double the amount of the immediately proceeding violation, provided that the maximum penalty payable for any repeat violation shall be $500 for each day beyond the time for correction set forth in the citation violation notice.

(Ord. 12-23, § 1, 3-15-2023)

(a)

The Department of Development Services may, for the purpose of collecting any delinquent civil penalties or costs from a violator, whether or not reduced to a lien, refer the delinquency to a debt collection agency. The collection fee, including any reasonable attorney's fee, paid to any collection agency shall be in accordance with Florida law.

(b)

After three months from the filing of any lien which remains unpaid, the special magistrate may authorize the City Attorney to foreclose on the lien or sue to recover a money judgment for the amount of the lien, plus accrued interest. No lien created pursuant to this section may be foreclosed on real property which is homestead protected from claims of creditors by the Florida Constitution. The money judgment provisions of this section shall not apply to real property or personal property which is covered under Article X, Section 4(a), of the Florida Constitution. In any action to foreclose on a lien, the prevailing party is entitled to recover all costs, including reasonable attorneys' fees, that it incurs in the foreclosure. The City shall be entitled to collect all costs incurred in recording and satisfying a valid lien.

(Ord. 12-23, § 1, 3-15-2023)

Nothing contained in this Division 4.5. shall prohibit the City from enforcing the Code by any other means. The enforcement procedures outlined herein are cumulative to all others and shall not be deemed to be prerequisites to filing suit for the enforcement of any section of the Code.

(Ord. 12-23, § 1, 3-15-2023)

The following table sets forth the amount of the civil penalty for any code violation(s) that may be cited under this division. The descriptions of violations are provided for purposes of general identification only. References to "MC" shall mean the Municipal Code of Ordinances of the City of Cape Coral. References to "LDC" shall mean the Cape Coral Land Development Code. References to "FBC" shall mean the Florida Building Code.

(Ord. 12-23, § 1, 3-15-2023)

An aggrieved party, including the City Council, may appeal a final administrative order of the special magistrate to the Circuit Court within 30 days of the date of the rendition of the order as provided by the Florida Rules of Appellate Procedure. Such an appeal shall not be a hearing de novo but shall be limited to appellate review of the record created before the special magistrate.

(Ord. 12-23, § 1, 3-15-2023)

(a)

The City of Cape Coral Transportation Advisory Commission is hereby created and shall be composed of five regular members and one alternate member from the City Council. When substituting for an absent member the alternate member may vote and participate in all discussions of the Advisory Commission in the same manner and to the same extent as the regular members of the Advisory Commission. When not substituting for an absent member, the alternate member shall not vote on any matter before the Advisory Commission, but may participate in all discussions of the Advisory Commission in the same manner and to the same extent as the regular members of the Advisory Commission.

(b)

Membership shall be for a one year term and all members shall be eligible for reappointment.

(c)

All members shall be appointed by Council at the first regular meeting in November after the election of Council members to the City Council.

(Ord. 128-00, 1-16-2001; Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

The Advisory Commission shall elect a presiding officer from among its members for a term of one year with eligibility for re-election. Members of the Advisory Commission shall receive no salary for their services, but may receive travel and other expenses while on official business for the city as are made available by the City Council for these purposes.

(Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

The Advisory Commissions shall hold at least six public meetings per year, unless there is not business to transact by the day before the regular meeting date. The Advisory Commission shall also meet at the call of the presiding officer and at other times as may be determined by a majority of the advisory commissions, or as requested by the City Council for special studies.

(Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

The Advisory Commission may adopt its own procedural rules and regulations as may be deemed necessary, providing the rules shall not be contrary to the spirit and intent of this and of the laws of the city. All meetings and records shall be filed in the appropriate offices of the city and shall be public records.

(Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

Three members of the Advisory Commission shall constitute a quorum for the transaction of business.

(Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

(a)

The Advisory Commission's responsibilities and duties shall include working with the city administration to establish a five year major road improvement program and make annual recommendations to City Council for road improvements including blacktopping, curbing, storm water drainage, road widening, sidewalks and major resurfacing. The Advisory Commission shall review and update the five year road improvement plan annually.

(b)

The Advisory Commission's responsibilities shall also include reviewing and recommending facilities needs for bicyclists and pedestrians and recommending plans of action for educating bicyclists, pedestrians and motorists. The advisory commission shall review and update the comprehensive bicycle plan, the comprehensive pedestrian plan and the five year project priority list for the development of the bikeway/walkway system.

(Ord. 128-00, 1-16-2001)

(c)

The Advisory Commission shall have other responsibilities and duties as are assigned by majority vote of the City Council.

(Ord. 13-86, 3-20-1986; Ord. 2-09, 2-23-2009; Ord. 2-16, 1-25-2016)

The purpose of this division is to establish the framework for a comprehensive historic and/or cultural preservation program in the City of Cape Coral. This program will identify, protect and enhance the historical and/or cultural resources in Cape Coral and promote cultural, educational, health, economic, aesthetics and the general welfare of the public by preventing the destruction of local landmarks or buildings in the city.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

For the purpose of this division, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

CITY COUNCIL. The City of Cape Coral City Council.

(Ord. 115-90, 12-3-1990; Ord. 34-00, 5-8-2000; Ord. 128-00, 1-16-2001)

(a)

No historic or cultural resources within Cape Coral shall be designated by any city agency except as provided in this section.

(Ord. 115-90, 12-3-1990)

(b)

Any person my propose to the City Council nominations of buildings, sites and structures for designation as historic and/or cultural resources, based on the criteria listed in subsection (d) below.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997; Ord. 128-00, 1-16-2001)

(c)

City Council shall hold a public hearing within 60 days of nomination. Notice of the hearing shall be posted on the property, and mailed to the owner thereof as shown on the latest available tax rolls, at least 15 days prior to the date of the hearing. The notice shall specify the time and place of the hearing and the matter to be considered. A majority vote of City Council shall determine if the nomination is accepted.

(d)

A building, site or structure shall only be nominated as a historic or cultural resource, and shall only be designated as such by the City Council's acceptance of a nomination, if the building, site or structure is significant to the city's history, architecture, archaeology, aesthetics or culture, as defined in subsection (e), (f) or (g) below.

(e)

A historic or cultural resource shall be deemed to have historical or cultural significance if it is:

(1)

Associated with distinctive elements of the cultural, social, political, economic, scientific or religious history that have contributed to the pattern of history in the city, Lee County, southwestern Florida, the state or the nation;

(2)

Associated with the life or activities of a person of importance in local, state or national history;

(3)

The site of a historic event with a significant impact upon the county, state or nation;

(4)

Associated in a significant way with a major historic event;

(5)

Exemplary of the historical, political, cultural, economic or social trends of the city in history;

(6)

Associated in a significant way with a past or continuing institution which has contributed substantially to the life of the city; or

(7)

Listed or has been determined to be eligible for listing on the national register of historic places.

(f)

A historic or cultural resource shall be deemed to have architectural or aesthetic significance if it:

(1)

Portrays the environment in an era of history characterized by one or more distinctive architectural styles;

(2)

Embodies the distinctive characteristics of a type, period, style or method of construction or is the work of a master, or possesses high artistic value or represents a distinguishable entity whose components may lack individual distinction;

(3)

Is a historic or outstanding work of a prominent architect, designer or landscape architect; or

(4)

Contains elements of design, material or craftsmanship which are of outstanding quality or which represented, in its time, a significant innovation, adaptation or response to the South Florida environment.

(g)

A historic or cultural resource shall be deemed to have archaeological significance if:

(1)

There is an important historical event or person associated with the site;

(2)

The quality of the site or the data recoverable from the site is significant enough that it would provide unique or representative information on prehistoric or historical events;

(3)

The site was the locus of discrete types of activities such as habitation, religious activities, burials, fortifications and the like;

(4)

The site was the location of historic or prehistoric activities during a particular period of time; or

(5)

The site maintains a sufficient degree of environmental integrity to provide useful archaeological data. INTEGRITY shall be defined as follows:

a.

The site is intact and has had little or no subsurface disturbance; or

b.

The site is slightly to moderately disturbed, but the remains have considerable potential for providing useful information.

(Ord. 115-90, 12-2-1990; Ord. 45-97, 8-11-1997; Ord. 34-00, 5-8-2000)

(a)

No historic or cultural resource shall be altered, constructed, relocated or demolished until City Council has authorized the issuance of a certificate of review.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(b)

Nothing in this division shall be construed to prevent ordinary maintenance or repair which does not involve a change of design or material and does not alter the outward appearance of a building or structure. No certificate of review shall be required for ordinary maintenance.

(Ord. 115-90, 12-3-1990; Ord. 34-00, 5-8-2000)

(a)

City Council shall adopt rules prescribing the procedure for making and reviewing applications for a certificate of review and the form and content thereof.

(Ord. 115-90, 12-2-1990; Ord. 45-97, 8-11-1997)

(b)

City Council shall, within 45 days, hold a public hearing upon each application. Notice of the hearing shall be posted on the property at least 15 days prior to the date of the hearing. The notice shall specify the time and place of the hearing and the matter to be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(c)

City Council shall use the criteria set forth in this Division 7 to review completed applications. After a complete review of the application and fulfilling the public notice and hearing requirements of this Division 7, City Council shall take one of the following actions:

(1)

Grant the certificate of review with an immediate effective date;

(2)

Grant the certificate of review with changes or modifications to building plans and specifications deemed necessary to satisfy the criteria for issuance of a certificate as set forth herein;

(3)

Grant the certificate with a deferred effective date, not to exceed one year from the date of issuance;

(4)

Deny the certificate of review, accompanied by a written statement expressing findings of fact and rationale supporting the denial; or

(5)

Grant the certificate of review if City Council finds that the property cannot be put to a reasonable beneficial use without the approval of the proposed work; in the case of income producing property, City Council shall, before making its decision, determine whether the applicant can obtain a reasonable return from the property without the approval of the proposed work.

(d)

The certificate of review shall be in writing and shall describe the project for which issued and the type of work to be done. A copy of the certificate of review shall be provided to the applicant within ten working days of the public hearing.

(Ord. 115-90, 12-3-1990; Ord. 34-00, 5-8-2000)

The following criteria shall be the basis on which City Council considers approval or disapproval of an application for a certificate of review depending on the nature of the construction, demolition, relocation or alteration. The criteria contained in the United States Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings, shall provide specific details and shall take precedence over any other conflicting criteria.

(a)

New construction.

(1)

New construction shall be designed and constructed to be clearly differentiated from but visually compatible with the buildings and environment with which it is visually related, including, but not limited to, the height and floor-to-area ratio, the proportion between width and height of the exterior, the relationship of solids to voids created by openings in the exterior, the materials used in the exterior, the texture inherent in the exterior, the design of the roof and the relationship of building masses and spaces between them.

(Ord. 115-90, 12-3-1990)

(2)

The construction of an exterior addition to an historic building may seem to be essential for the new use, however, the new additions should be avoided, if possible, and considered only after it has been determined that their needs cannot be met by altering secondary or non-character defining interior spaces. If an exterior addition is the only viable alternative, it should be designed and constructed to be clearly differentiated from the historic building so that the character defining features are not radically changed, obscured, damaged or destroyed.

(Ord. 115-90, 12-3-1990)

(3)

The site and landscape plan shall be sensitive to the individual building, its occupants and their needs, and shall be visually compatible with the buildings and environment with which it is visually related, including, but not limited to, site orientation, setbacks, transitional moving elements and vegetative or other screening.

(Ord. 115-90, 12-3-1990)

(4)

New signs shall be compatible with and designed to compliment the historic character of the buildings and environment to which they are visually related.

(Ord. 115-90, 12-3-1990)

(5)

New construction on an archaeologically significant site shall ensure that artifacts are not destroyed and that they are accessible.

(Ord. 34-00, 5-8-2000)

(b)

Alterations to existing buildings.

(1)

The criteria set forth in subsection (a) above shall be considered insofar as applicable to the historic and/or cultural characteristics of the buildings, structures or sites visually related to it.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(2)

Alterations shall not degrade the architectural quality or historic character of the building, structure or site, but shall, to the extent possible, maintain or restore the historic design and conditions. To the extent possible, significant historical materials and features shall be retained and repaired.

(Ord. 115-90, 12-3-1990)

a.

If beyond repair, the materials and features should be replaced in-kind, if possible. In the event that it is not possible or economically feasible to replace deteriorated material or features in-kind, replacement shall duplicate the appearance of the original material, as closely as possible, on site-specific historical documentation or physical evidence.

b.

Conjectural design of missing features shall be discouraged.

(Ord. 115-90, 12-3-1990)(Ord. 115-90, 12-3-1990)

(3)

New signs on existing buildings shall be consistent with the historic and/or cultural character of the building and the environment in which it is located. New signage should be designed, scaled and placed in the same manner as historic and/or cultural signage on the building.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(c)

Demolition.

(1)

Preservation of the historic, cultural, scenic or architectural significance of the building structures or site shall be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997; Ord. 34-00, 5-8-2000)

(2)

The difficulty or the impossibility of reproducing such a building or structure because of its design, texture, material, detail or unique location shall be considered.

(Ord. 115-90, 12-3-1990)

(3)

The future utilization of the historical, archeological or cultural site, including any replacement buildings, structures or landscape shall be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(4)

Whether the building, structure or archeological site are the last remaining examples of its kind in the neighborhood, the city, the county or the region shall be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(5)

The reasonable economic return on the building shall be considered.

(Ord. 115-90, 12-3-1990)

(6)

Upon determination by City Council that demolition or removal of a building or structure or disturbance of archeological artifacts is justified, relocation of the building, structure or archeological artifacts as a mitigating action should be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(7)

Upon determination by City Council that relocation of the building or structure is impractical, an archival recording, including photographic documentation, shall be made.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(d)

Reconstruction. The reconstruction of a building or structure damaged by fire, storm or other act of God shall be reviewed by City Council according to the criteria in subsection (b) above. Totally or substantially new construction, regardless of reason, shall be reviewed according to the criteria set forth in subsection (a) above.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(e)

Relocation.

(1)

The historic and/or cultural character and aesthetic interest the building or structure contributes to its present location shall be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(2)

The future utilization of the site and the effect on the character of the surrounding district shall be considered.

(Ord. 115-90, 12-3-1990)

(3)

The ability to move the building or structure without significant damage to the building or structure shall be considered.

(Ord. 115-90, 12-3-1990)

(4)

The compatibility of the proposed relocation area with the historical, cultural and architectural character of the building or structure shall be considered.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997; Ord. 34-00, § 1, 5-8-2000)

(a)

The building official shall not issue a building permit for any exterior alteration, construction, relocation or demolition of a designated historic or cultural resource unless a certificate of review has been approved and issued by City Council.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997)

(b)

Any exterior alteration, construction, relocation or demolition to a building, structure or site shall be accomplished in strict compliance with the certificate of review. The building official shall, as part of his or her official duties, inspect the building to determine compliance with the certificate. Failure to comply with the certificate of review shall be treated in the same manner as any other building code violation, including revocation of the permit and city ordinance violation punishable as provided in § 7.2.6 of the City of Cape Coral Land Development Code.

(Ord. 115-90, 12-3-1990)

(c)

Failure to provide ordinary repairs or maintenance shall constitute demolition by neglect and shall be treated in the same manner as failure to comply with certificate of review, city ordinance violation punishable as provided in § 7.2.6 of the City of Cape Coral Land Development Code.

(Ord. 115-90, 12-3-1990; Ord. 34-00, § 1, 5-8-2000)

The decision of City Council shall be the final administrative decision. Following denial, the application may not be resubmitted for a period of six months, except upon written request indicating incorporation of changes in plans and specifications as may have been recommended by City Council. Any person or persons, jointly or severally aggrieved by any decision of City Council may, within 30 days after the filing of the decision by City Council with the City Clerk, but not thereafter, seek review of the decision by a petition for writ of certiorari.

(Ord. 115-90, 12-3-1990; Ord. 45-97, 8-11-1997; Ord. 34-00, § 1, 5-8-2000)

(a)

There is hereby established an Audit Committee to be composed of members appointed by the City Council. The Audit Committee established herein shall replace the Audit Committee previously established by Resolution 17-06 that was adopted on May 1, 2006.

(b)

The purpose of the Audit Committee is to serve in an advisory capacity to the City Council and the City Auditor's Office on issues presented to the Committee relating to the city's financial and other reporting practices; internal control; compliance with laws, regulations and ethics; independent audit process; and special audit needs.

(Ord. 99-08, 8-11-2008)

(a)

Annual financial audit. The Audit Committee shall assist the City Council in selecting an auditor, in accordance with the provisions of F.S. § 218.391 to conduct the city's annual financial audit required by F.S. § 218.39.

(b)

Financial and other reporting practices. The Audit Committee shall provide reasonable assurance to the City Council that controls are in place and operating to ensure that financial information reported by management reasonably portrays the city's financial condition, results of operations, and plans and long-term commitments by reviewing results of internal and external audits.

(c)

Internal control. The Audit Committee shall provide reasonable assurance to the City Council that controls are in place and operating to ensure that resources are utilized in an efficient and economical manner and that programs are carried out as planned by reviewing the results of internal and external audits.

(d)

Compliance with laws, regulation, and ethics. The Audit Committee shall provide reasonable assurance to the City Council that the city is in compliance with pertinent laws and regulations, is conducting its affairs ethically, and is maintaining effective controls against conflicts of interest and fraud by reviewing results of internal and external audits.

(e)

Safeguarding the independence of the audit process. The Audit Committee shall provide reasonable assurance to the City Council that the audit process is independent by:

(1)

Making recommendations to the City Council with respect to the appointment or dismissal of the external auditor.

(2)

Reviewing and recommending approval or disapproval of the annual external audit plan and budget.

(3)

Reviewing and making recommendation to the City Auditor on the annual internal audit plan.

(4)

Ensuring that the audit process is conducted in accordance with generally accepted auditing standards including Government Auditing Standards, issued by the Comptroller General of the United States, and Standards for Professional Practice of Internal Auditing, issued by the Institute of Internal Auditors, Inc.

(f)

The Audit Committee shall perform other oversight duties as may be assigned by the City Council.

(g)

Develop and adopt bylaws that are consistent with the Florida Statutes and guidelines established by the State of Florida Auditor General, the Institute of Internal Auditors (IIA), the Government Accountability Office, and the American Institute of Certified Public Accountants (AICPA).

(Ord. 99-08, 8-11-2008)

(a)

Members. The Audit Committee shall consist of five regular members, one of whom shall be a City Council member, and one alternate member, who shall not be a City Council member, and shall serve as an alternate for only non-City Council members. When substituting for an absent member, the alternate member may vote and participate in all discussions of the Committee in the same manner and to the same extent as the regular members of the Committee. When not substituting for an absent member, the alternate member shall not vote on any matter before the Committee, but may participate in all discussions of the Committee in the same manner and to the same extent as the regular members of the Committee. The regular and alternate Audit Committee members who are not City Council members shall be selected based on their qualifications and willingness to serve. Members of the Audit Committee shall be selected without regard to race, creed, national origin, age, sex or the presence of a disability.

(Ord. 22-22, § 1, 3-2-2022)

(b)

Eligibility.

(1)

All members of the Audit Committee shall be city residents who do not have any direct financial or business interests involving the city. City Council may waive the residency requirement by majority vote if there are an insufficient number of applicants who reside in the city.

(2)

The composition of the Audit Committee shall be consistent with the "Auditor Selection Guidelines" dated 2007 and promulgated by the Auditor Selection Task Force established by the State of Florida Auditor General's Office.

(3)

All members should, through education and experience, possess a basic understanding of governmental financial reporting and auditing. At least one non-City Council member of the Audit Committee shall have accounting, auditing, or related financial management expertise that is specifically relevant to the government sector and includes:

a.

An understanding of generally accepted accounting principles and financial statements;

b.

Experience in preparing or auditing financial statements of comparable entities;

c.

Experience in applying such principles in connection with the accounting for estimates, accruals, and reserves;

d.

Experience with internal accounting controls; and

e.

An understanding of audit committee functions.

(c)

Appointments. As of November 30, 2023, the current term of all members of the Audit Committee shall be terminated. At the first regular meeting of City Council in the month of December, 2023, City Council shall appoint the members of the Audit Committee. Of the members first appointed, three shall serve for terms of two years, and two for terms of one year. Thereafter, the term of office for each member shall be two years. Terms of office shall commence immediately following the December appointment, with terms thereafter commencing on December 1 each year and terminating on November 30 of the calendar year in which the term expires. Members may serve no more than two consecutive terms. Any member that has not served a full term, whose term shell be terminated on November 30, 2023, may be appointed for a maximum of two additional terms. The alternate member of the Audit Committee shall serve an initial term of two years. Thereafter, the alternate member shall serve for a period of two years from the date of appointment. City Council members appointed to serve as a member of the Audit Committee shall serve a term of one year with no limitation as to reappointment for additional, consecutive one-year terms. The term of office limitation imposed by this section may be waived in regard to specific individuals by a two-thirds vote of the City Council.

(Ord. 22-22, § 1, 3-2-2022; Ord. 84-23, § 1, 10-18-2023)

(d)

Quorum. Three members shall constitute a quorum.

(e)

Forfeiture of membership.

(1)

Membership on the Audit Committee shall be forfeited if a member is absent from two of three consecutive regularly scheduled meetings of the Audit Committee.

(2)

A member shall forfeit their membership on the Audit Committee for cause if the member:

a.

No longer meets eligibility requirements;

b.

Violates any express prohibition imposed by the City Council or law;

c.

Is convicted of a felony; or

d.

Is guilty of habitual public drunkenness, corruption, incompetence or some other substantial shortcoming which renders the member's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for forfeiture of office.

(3)

Forfeiture of membership for cause shall be subject to the hearing requirements contained in § 2-58 of the City Code.

(Ord. 99-08, 8-11-2008)

(a)

The Audit Committee shall meet not less than once quarterly, when possible, but not less than four times a year. All meetings are considered public meetings and the City Clerk shall be responsible for meeting notification and minutes.

(Ord. 22-22, § 1, 3-2-2022)

(b)

All meetings shall be open to the public, minutes of each meeting shall be promptly recorded, and such records shall be open for public inspection.

(Ord. 99-08, 8-11-2008)

(a)

Creation and purpose. There is hereby created and established a Youth Council. In order to serve the Cape Coral City Council on matters concerning the youth of the community, the Youth Council is created to gather facts and furnish input and helpful information to the City Council to assist them in their policy making as it pertains to issues that affect the city's youth. Since the Youth Council is only delegated information-gathering and fact-finding authority and shall only conduct such activities, the Youth Council is not subject to the Florida Government in the Sunshine Law.

(b)

Composition; qualifications; and terms.

(1)

The Youth Council shall be composed of 14 members, appointed by the City Council on or before May 1 of each year. Youth Council members shall be residents of the City of Cape Coral and enrolled in a source identified below at all times while serving on the Youth Council. Except as otherwise provided herein, the Youth Council shall be composed of one junior and one senior student from each of the following sources:

a.

Mariner High School;

b.

Ida Baker High School;

c.

Island Coast High School;

d.

Oasis High School;

e.

Cape Coral High School;

f.

North Fort Myers High School; and

g.

At-large from home schooling or other source, including, but not limited to, a private school, charter school, or virtual school.

(2)

For the initial Youth Council, seven seniors shall serve a term beginning upon appointment by the City Council until a successor is appointed on or before May 1, 2017, and seven juniors shall serve a term beginning upon appointment by the City Council until a successor is appointed on or before May 1, 2018. On or before May 1, 2017, and each year thereafter, the City Council shall appoint seven rising juniors to the Youth Council to serve a term of two years, or until a successor is appointed, unless a member is no longer qualified hereunder or is removed pursuant to subsection (e) below.

(3)

In the event that a Youth Council member shall no longer be enrolled in the school source that the member was appointed from, the member shall forfeit the member's seat and the seat shall be declared vacant, unless the member provides proof to the City that such member is enrolled in another source identified in subsection (b)(1) within fifteen (15) business days.

(4)

In the event that there is no available student applicant from a class or source identified in subsection (b)(1) in any given year, the City Council may appoint a substitute student from one of the other subsection (b)(1) sources to serve that applicable term.

(5)

The Mayor and City Council shall appoint a City Council member to serve as a liaison between the City Council and the Youth Council.

(6)

The Mayor and City Council shall appoint an Advisor to the Youth Council. The appointed Advisor shall serve a term of two years beginning on May 1 ^st of the year the Advisor was appointed. If such appointment occurs after May 1 ^st , the length of the appointment shall be pro-rated for the remainder of the two-year term.

(7)

Upon approval by the Mayor and City Council and based upon extenuating circumstances surrounding the composition of the Youth Council Membership, the number of members on Youth Council may be increased to ensure the greatest representation from the sources listed in subsection (b)(1) of this section. In accomplishing the increase to the Youth Council membership beyond the 14 members, a student may be appointed for a one-year term, provided that the student represents a source from subsection (b)(1) that is not represented by the currently appointed members. Such increase in the number of total members of the Youth Council shall only last for the term of the appointment that creates the increase.

(c)

Parental consent and application. Each Youth Council member shall, as a prerequisite for serving, complete an application and parental consent form. The format of the application and parental consent form shall be provided by the city. Notwithstanding the foregoing, a prospective member that has reached the age of majority shall not be required to complete a parental consent form. The City Council shall appoint Youth Council members from the pool of candidates submitting an application and meeting the qualifications of subsection (b) above. Prospective members' participation in the Chamber of Commerce Junior Leadership Program is strongly preferred but not required.

(d)

Election of officers. Members of the Youth Council shall annually elect a chairperson and vice-chairperson from among its members, each of whom shall serve until a successor is elected and qualified. Elections shall be held at the first regular meeting of the Youth Council after annual appointments are made by the City Council. The chairperson shall preside at all meetings and exercise all the usual rights, duties, and prerogatives of chairperson. The vice-chairperson shall perform the duties of the chairperson in the absence or disability of the chairperson. Vacancies of either office shall be filled by an existing Youth Council member for the unexpired term by a new election of the members.

(e)

Vacancies and removal.

(1)

Vacancies on the Youth Council shall be filled by appointment of the City Council. In the event of vacancies on the Youth Council due to resignation, illness, death, lack of attendance, removal, or lack of qualifications, the City Council shall appoint a replacement member to serve for the remainder of that term.

(2)

Youth Council members may be removed from the Youth Council by the City Council, for cause.

(f)

Meetings, quorum; forfeiture of office; minutes, records; and compensation.

(1)

Regular meetings of the Youth Council shall be held every month, unless there is no business to transact by three days before a regular meeting date. Special meetings may be called by the chairperson, vice-chairperson, or by five or more members of the Youth Council.

(2)

The presence of a majority of the members of the Youth Council shall constitute a quorum for the transaction of business.

(3)

Youth Council members shall be subject to the forfeiture of office provisions of § 2-58 of this article.

(4)

Notice of the date, time, and location and the agenda for all meetings of the Youth Council shall be provided to the City Clerk in a timely manner prior to the meeting. The City Clerk shall keep an audio recording of all meetings of the Youth Council, and all meetings shall be open to the public.

(5)

Youth Council members shall serve without compensation.

(g)

Rules and regulations. Robert's Rules of Order shall be a guideline for all meetings of the Youth Council.

(h)

Duties and responsibilities. The Youth Council shall have the duty and responsibility to:

(1)

Review problems facing youth in the city.

(2)

Facilitate neighborhood meetings with youth to discuss problems, needs, and suggested improvements for the community.

(3)

Share ideas and discuss issues, concerns, and needed improvements.

(4)

Present facts and information to the City Council for public projects and programs.

(5)

Assist in planning youth/recreation activities.

(6)

Inform the City Council on issues forwarded to the Youth Council.

(7)

Participate in, organize, and attend community outreach programs, fundraising activities, projects, and events, as may be approved in advance by the City Council.

(8)

Prepare reports and make presentations to the City Council and City staff on Youth Council activities.

(9)

Serve as a role model to other youth.

(10)

Educate other youth on municipal government.

(11)

Promote public awareness of the strengths and abilities of the City's youth.

(i)

Reporting. The Youth Council shall report to the City Council periodically by written memoranda, as deemed necessary. The Youth Council should make every effort to attend the meetings of the City Council where the written memoranda of the Youth Council are to be presented.

(Ord. 47-16, § 4, 9-26-2016; Ord. 59-17, § 1, 11-6-2017; Ord. 1-22, § 1, 1-19-2022; Ord. 52-23, § 3, 6-7-2023; Ord. 22-25, § 1, 5-21-2025)

(a)

As used herein, unless otherwise defined or required by the context, the following words and phrases shall have the meaning indicated.

ACCUMULATED CONTRIBUTIONS. A member's own contributions with interest at the rate of 3-1/2% per annum prior to October 1, 1991, and without interest thereafter. For those members who purchase credited service with interest or at no cost to the system, any payment representing the amount attributable to member contributions based on the applicable member contribution rate, interest and any required actuarially calculated payments for the purchase of such credited service, shall be included in ACCUMULATED CONTRIBUTIONS, without the crediting of interest subsequent to October 1, 1991.

ACTUARIAL EQUIVALENT. A benefit or amount of equal value, based upon the RP-2000 Combined Healthy Mortality Table (unisex) and an interest rate equal to the investment return assumption set forth in the most recent actuarial valuation report approved by the Board. This definition may only be amended by the city pursuant to the recommendation of the Board using the assumptions adopted by the Board with the advice of the plan's actuary, such that actuarial assumptions are not subject to city discretion.

AVERAGE FINAL COMPENSATION. One-twelfth of the average salary of the five best years of the last ten years of credited service prior to retirement, termination or death, or the career average as a full-time police officer since July 1, 1953, whichever is greater. A year shall be 12 consecutive months.

BENEFICIARY. The person or persons entitled to receive benefits hereunder at the death of a member who has or have been designated in writing by the member and filed with the Board. If no such designation is in effect, or if no person so designated is living, at the time of death of the member, the BENEFICIARY shall be the estate of the member.

BOARD. The Board of Trustees, which shall administer and manage the system herein provided and serve as Trustees of the fund.

CITY. The City of Cape Coral, Florida.

CODE. The Internal Revenue Code of 1986, as amended from time to time.

CREDITED SERVICE.

a.

The total number of years and fractional parts of years of service as a police officer with member contributions when required, omitting intervening years or fractional parts of years when such member was not employed by the city as a police officer. A member may voluntarily leave his or her accumulated contributions in the fund for a period of five years after leaving the employ of the Police Department pending the possibility of being reemployed as a police officer, without losing credit for the time that he or she was a member of the system. If a vested member leaves the employ of the Police Department, his or her accumulated contributions will be returned only upon his or her written request. If a member who is not vested is not reemployed as a police officer with the Police Department within five years, his or her accumulated contributions, if less than $1,000, shall be returned. If a member who is not vested is not reemployed within five years, his or her accumulated contributions, if $1,000 or more, will be returned only upon the written request of the member and upon completion of a written election to receive a cash lump sum or to rollover the lump sum amount on forms designated by the Board. Upon return of a member's accumulated contributions, all of his or her rights and benefits under the system are forfeited and terminated. Upon any reemployment, a police officer shall not receive credit for the years and fractional parts of years of service for which he or she has withdrawn his or her accumulated contributions from the fund, unless the police officer repays into the fund the contributions he or she has withdrawn, with interest, as determined by the Board, within 90 days after his or her reemployment.

b.

The years or fractional parts of a year that a member performs "Qualified Military Service" consisting of voluntary or involuntary "service in the uniformed services" as defined in the Uniformed Services Employment and Reemployment Rights Act (USERRA) (P.L. 103-353), after separation from employment as a police officer with the city to perform training or service, shall be added to his or her years of credited service for all purposes, including vesting; provided that:

1.

The member is entitled to reemployment under the provisions of USERRA.

2.

The member returns to his or her employment as a police officer within one year from the earlier of the date of his or her military discharge or his or her release from active service, unless otherwise required by USERRA.

3.

The maximum credit for military service pursuant to this paragraph shall be five years.

4.

This paragraph is intended to satisfy the minimum requirements of USERRA. To the extent that this paragraph does not meet the minimum standards of USERRA, as it may be amended from time to time, the minimum standards shall apply.

In the event a member dies on or after January 1,2007, while performing USERRA Qualified Military Service, the beneficiaries of the member are entitled to any benefits (other than benefit accruals relating to the period of qualified military service) as if the member had resumed employment and then died while employed.

Beginning January 1, 2009, to the extent required by § 414(u)(12) of the Code, an individual receiving differential wage payments (as defined under § 3401(h)(2) of the Code) from an employer shall be treated as employed by that employer, and the differential wage payment shall be treated as compensation for purposes of applying the limits on annual additions under § 415(c) of the Code. This provision shall be applied to all similarly situated individuals in a reasonably equivalent manner.

Leave conversions of unused accrued paid time off shall not be permitted to be applied toward the accrual of credited service either during each plan year of a member's employment with the city or in the plan year in which the member terminates employment.

c.

In the event that a member of this system has also accumulated credited service in another pension system maintained by the city, then such other credited service shall be used in determining vesting as provided for in § 2-121.9, and for determining eligibility for early or normal retirement. Such other credited service will not be considered in determining benefits under this system. Only his or her credited service and salary under this system on or after his or her date of membership in this system will be considered for benefit calculation. In addition, any benefit calculation for a member of this system who is or becomes eligible for a benefit from this system after he or she has become a member of another pension system maintained by the city, shall be based upon the member's average final compensation, credited service and benefit accrual rate as of the date the member ceases to be a police officer.

EFFECTIVE DATE. The date on which this division becomes effective.

FUND. The trust fund established herein as part of the system.

MEMBER. An actively employed police officer who fulfills the prescribed membership requirements. Benefit improvements which, in the past, have been provided for by amendments to the system adopted by city ordinance, and any benefit improvements which might be made in the future shall apply prospectively and shall not apply to members who terminate employment or who retire prior to the effective date of any ordinance adopting such benefit improvements, unless such ordinance specifically provides to the contrary.

PLAN YEAR. The 12-month period beginning October 1 and ending September 30 of the following year.

POLICE OFFICER. An actively employed full-time person, employed by the city, including his or her initial probationary employment period, who is certified as a police officer as a condition of employment in accordance with the provisions of F.S. § 943.1395, who is vested with authority to bear arms and make arrests, and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of the State of Florida.

RETIREE. A member who has entered retirement status.

RETIREMENT. A member's separation from city employment with eligibility for immediate receipt of benefits under the system or entry into the deferred retirement option plan.

SALARY. The total compensation for services rendered to the city as a police officer reportable on the member's W-2 form, excluding imputed income (the value of all non-monetary compensation provided to a member by the City in connection with the member's employment by the City, e.g., use of vehicles, clothing/uniforms suitable for personal use, cellular telephones, life insurance, and other fringe benefits), but including overtime payments for up to 300 hours of overtime worked per year, plus all tax deferred, tax sheltered or tax exempt items of income, derived from elective employee payroll deductions or salary reductions. Notwithstanding the foregoing overtime limit, the definition of SALARY for the 2012 calendar year shall also include overtime payments accrued as of February 7, 2012.

Compensation in excess of the limitations set forth in § 401(a)(17) of the Code as of the first day of the plan year shall be disregarded for any purpose, including employee contributions or any benefit calculations. The annual compensation of each member taken into account in determining benefits or employee contributions for any plan year beginning on or after January 1, 2002, may not exceed $200,000, as adjusted for cost-of-living increases in accordance with Code § 401(a)(17)(B). Compensation means compensation during the fiscal year, and the fiscal year is considered the determination period. The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year. If the determination period consists of fewer than 12 months for all members, the annual compensation limit is an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is 12, as provided for in Treas. Reg. Section 1.401(a)(17)-1(b)(3)(iii)(B). If the compensation for any prior determination period is taken into account in determining a member's contributions or benefits for the current plan year, the compensation for such prior determination period is subject to the applicable annual compensation limit in effect for that prior period. The limitation on compensation for an "eligible employee" shall not be less than the amount which was allowed to be taken into account hereunder as in effect on July 1, 1993. ELIGIBLE EMPLOYEE is an individual who was a member before the first plan year beginning after December 31, 1995.

Notwithstanding the foregoing definition of SALARY, effective February 7, 2012, salary for members employed on February 7, 2012 shall not include any payments for accrued leave balances in excess of the number of hours the member has accrued as of February 7, 2012 that would have been included in the member's salary if he/she had retired on February 7, 2012. Upon retirement, salary for such members shall include payment for accrued leave up to the number of eligible hours accrued as of February 7, 2012. The cash value of pensionable hours of accrued leave (determined at the time of termination of employment or entry into the DROP) will be included in average final compensation, based on the rate of pay at the time of termination or DROP entry. For this purpose, the cash value of accrued leave will be added to the final year's pensionable earnings for determination of average final compensation after the highest 60 months in the last 120 have been determined. For employees hired on or after February 7, 2012, payouts of accrued leave shall not be included in salary.

SPOUSE. The wife or husband, under applicable law, of a member or retiree at the time benefits become payable.

SYSTEM. The City of Cape Coral Municipal Police Officers' Retirement Plan as contained herein and all amendments thereto.

(b)

Masculine gender. The masculine gender, where used herein, unless the context specifically requires otherwise, shall include both the feminine and masculine genders.

(Ord. 121-07, 10-15-2007; Ord. 41-10, 4-12-2010; Ord. 22-12, 10-22-2012; Ord. 52-13, 9-23-2013; Ord. 27-18, § 1, 5-7-2018; Ord. 38-20, § 1, 6-8-2020; Ord. 39-23, § 1, 7-26-2023)

(a)

Conditions of eligibility. All police officers as of October 1, 1991, and all future new police officers, shall become members of this system as a condition of employment.

(b)

Designation of beneficiary. Each police officer shall complete a form prescribed by the Board designating a beneficiary or beneficiaries.

(Ord. 121-07, 10-15-2007)

(a)

The sole and exclusive administration of and responsibility for the proper operation of the system and for making effective the provisions of this division are hereby vested in a Board of Trustees. The Board is hereby designated as the Plan Administrator. The Board shall consist of five Trustees, two of whom, unless otherwise prohibited by law, shall be legal residents of the city, who shall be appointed by the Cape Coral City Council, and two of whom shall be members of the system, who shall be elected by a majority of the police officers who are members of the system. The fifth Trustee shall be chosen by a majority of the previous four Trustees as provided for herein, and such person's name shall be submitted to the Cape Coral City Council. Upon receipt of the fifth person's name, the Cape Coral City Council shall, as a ministerial duty, appoint such person to the Board of Trustees as its fifth Trustee. The fifth Trustee shall have the same rights as each of the other four Trustees appointed or elected as herein provided and shall serve a four-year term unless he or she sooner vacates the office. Each resident Trustee shall serve as Trustee for a period of four years, unless he or she sooner vacates the office or is sooner replaced by the Cape Coral City Council at whose pleasure he or she shall serve. Each member Trustee shall serve as Trustee for a period of four years, unless he or she sooner leaves the employment of the city as a police officer or otherwise vacates his or her office as Trustee, whereupon a successor shall be chosen in the same manner as the departing Trustee. Each Trustee may succeed himself or herself in office. DROP participants can be elected as but not vote for elected Trustees. The Board shall establish and administer the nominating and election procedures for each election. The Board shall meet at least quarterly each year. The Board shall be a legal entity with, in addition to other powers and responsibilities contained herein, the power to bring and defend lawsuits of every kind, nature, and description.

(b)

The Trustees shall, by a majority vote, elect a Chairperson and a Secretary. The Secretary of the Board shall keep a complete minute book of the actions, proceedings, or hearings of the Board. The Trustees shall not receive any compensation as such, but may receive expenses and per diem as provided by law.

(c)

Each Trustee shall be entitled to one vote on the Board. Three affirmative votes shall be necessary for any decision by the Trustees at any meeting of the Board. A Trustee shall have the right to abstain from voting as the result of a conflict of interest and shall comply with the provisions of F.S. § 112.3143.

(d)

The Board shall engage such actuarial, accounting, legal, and other services as shall be required to transact the business of the system. The compensation of all persons engaged by the Board and all other expenses of the Board necessary for the operation of the system shall be paid from the fund at such rates and in such amounts as the Board shall agree. In the event the Board chooses to use the city's legal counsel, actuary or other professional, technical or other advisors, it shall do so only under terms and conditions acceptable to the Board.

(e)

The duties and responsibilities of the Board shall include, but not necessarily be limited to, the following:

(1)

To construe the provisions of the system and determine all questions arising thereunder.

(2)

To determine all questions relating to eligibility and membership.

(3)

To determine and certify the amount of all retirement allowances or other benefits hereunder.

(4)

To establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the system.

(5)

To distribute to members, at regular intervals, information concerning the system.

(6)

To receive and process all applications for benefits.

(7)

To authorize all payments whatsoever from the fund, and to notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the system and fund.

(8)

To have performed actuarial studies and valuations, at least as often as required by law, and make recommendations regarding any and all changes in the provisions of the system.

(9)

To perform such other duties as are required to prudently administer the system.

(Ord. 121-07, 10-15-2007; Ord. 41-10, 4-12-2010)

(a)

As part of the system, there exists the fund, into which shall be deposited all of the contributions and assets whatsoever attributable to the system.

(b)

The actual custody and supervision of the fund (and assets thereof) shall be vested in the Board. Payment of benefits and disbursements from the fund shall be made by the disbursing agent but only upon written authorization from the Board.

(c)

All funds of the Municipal Police Officers' Retirement Plan may be deposited by the Board with the official designated by the city, acting in a ministerial capacity only, who shall be liable in the same manner and to the same extent as he or she is liable for the safekeeping of funds for the city. However, any funds so deposited with the official designated by the city shall be kept in a separate fund by such official, or clearly identified as such funds of the Municipal Police Officers' Retirement Plan. In lieu thereof, the Board shall deposit the funds of the Municipal Police Officers' Retirement Plan in a qualified public depository as defined in F.S. § 280.02, which depository with regard to such funds shall conform to and be bound by all of the provisions of F.S. Chapter 280. In order to fulfill its investment responsibilities as set forth herein, the Board may retain the services of a custodian bank, an investment advisor registered under the Investment Advisors Act of 1940 or otherwise exempt from such required registration, an insurance company, or a combination of these, for the purposes of investment decisions and management. Such investment manager shall have discretion, subject to any guidelines as prescribed by the Board, in the investment of all fund assets.

(d)

All funds and securities of the system may be commingled in the fund; provided that, accurate records are maintained at all times reflecting the financial composition of the fund, including accurate current accounts and entries as regards the following:

(1)

Current amounts of accumulated contributions of members on both an individual and aggregate account basis; and

(2)

Receipts and disbursements; and

(3)

Benefit payments; and

(4)

Current amounts clearly reflecting all monies, funds and assets whatsoever attributable to contributions and deposits from the city; and

(5)

All interest, dividends and gains (or losses) whatsoever; and

(6)

Such other entries as may be properly required so as to reflect a clear and complete financial report of the fund.

(e)

An audit shall be performed annually by a certified public accountant for the most recent fiscal year of the system showing a detailed listing of assets and a statement of all income and disbursements during the year. Such income and disbursements must be reconciled with the assets at the beginning and end of the year. Such report shall reflect a complete evaluation of assets on both a cost and market basis, as well as other items normally included in a certified audit.

(f)

The Board shall have the following investment powers and authority:

(1)

The Board shall be vested with full legal title to said fund, subject, however, and in any event to the authority and power of the city commission to amend or terminate this fund; provided that, no amendment or fund termination shall ever result in the use of any assets of this fund except for the payment of regular expenses and benefits under this system, except as otherwise provided herein. All contributions from time to time paid into the fund and the income thereof, without distinction between principal and income, shall be held and administered by the Board or its agent in the fund, and the Board shall not be required to segregate or invest separately any portion of the fund.

(2)

All monies paid into or held in the fund shall be invested and reinvested by the Board and the investment of all or any part of such funds shall be subject to the following:

a.

Notwithstanding any limitation provided for in F.S. Chapter 185 to the contrary (unless such limitation may not be amended by local ordinance) or any limitation in prior city ordinances to the contrary, all monies paid into or held in the fund may be invested and reinvested in such securities, investment vehicles or property wherever situated and of whatever kind, as shall be approved by the Board, including but not limited to common or preferred stocks, bonds, and other evidences of indebtedness or ownership. In no event, however, shall more than 25% of the assets of the fund at market value be invested in foreign securities.

b.

The Board shall develop and adopt a written investment policy statement setting forth permissible types of investments, goals and objectives of investments and setting quality and quantity limitations on investments in accordance with the recommendations of its investment consultants. The investment policy statement shall be reviewed by the Board at least annually.

c.

In addition, the Board may, upon recommendation by the Board's investment consultant, make investments in group trusts meeting the requirements of Internal Revenue Service Revenue Ruling 81-100 and Revenue Ruling 2011-1, IRS Notice 2012-6 and Revenue Ruling 2014-24 or successor rulings or guidance of similar import, and operated or maintained exclusively for the commingling and collective investment of monies, provided that the funds in the group trust consist exclusively of trust assets held under plans qualified under § 401(a) of the Code, individual retirement accounts that are exempt under § 408(e) of the Code, eligible governmental plans that meet the requirements of § 457(b) of the Code, and governmental plans under § 401(a)(24) of the Code. For this purpose, a trust includes a custodial account or separate tax favored account maintained by an insurance company that is treated as a trust under § 401(f) or under § 457(g)(3) of the Code. While any portion of the assets of the fund are invested in such a group trust, such group trust is itself adopted as a part of the system or plan.

1.

Any collective or common group trust to which assets of the fund are transferred pursuant to subsection c. shall be adopted by the board as part of the plan by executing appropriate participation, adoption agreements, and/or trust agreements with the group trust's trustee.

2.

The separate account maintained by the group trust for the plan pursuant to subsection c. shall not be used for, or diverted to, any purpose other than for the exclusive benefit of the members and beneficiaries of the plan.

3.

For purposes of valuation, the value of the separate account maintained by the group trust for the plan shall be the fair market value of the portion of the group trust held for the plan, determined in accordance with generally recognized valuation procedures.

(3)

At least once every three years, and more often as determined by the Board, the Board shall retain a professionally qualified independent consultant, as defined in F.S. § 185.01, to evaluate the performance of all current investment managers and make recommendations regarding the retention of all such investment managers. These recommendations shall be considered by the Board at its next regularly scheduled meeting.

(4)

The Board may retain in cash and keep unproductive of income such amount of the fund as it may deem advisable, having regard for the cash requirements of the system.

(5)

Neither the Board nor any Trustee shall be liable for the making, retention or sale of any investment or reinvestment made as herein provided, nor for any loss or diminishment of the fund, except that due to his, her or its own negligence, willful misconduct or lack of good faith.

(6)

The Board may cause any investment in securities held by it to be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and in form permitting transferability, but the books and records shall at all times show that all investments are part of the fund.

(7)

The Board is empowered, but is not required, to vote upon any stocks, bonds, or securities of any corporation, association, or trust and to give general or specific proxies or powers of attorney with or without power of substitution; to participate in mergers, reorganizations, recapitalizations, consolidations, and similar transactions with respect to such securities; to deposit such stock or other securities in any voting trust or any protective or like committee with the Trustees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets; and generally to exercise any of the powers of an owner with respect to stocks, bonds, or other investments comprising the fund which it may deem to be to the best interest of the fund to exercise.

(8)

The Board shall not be required to make any inventory or appraisal or report to any court, nor to secure any order of court for the exercise of any power contained herein.

(9)

Where any action which the Board is required to take or any duty or function which it is required to perform either under the terms herein or under the general law applicable to it as Trustee under this division, can reasonably be taken or performed only after receipt by it from a member, the city, or any other entity, of specific information, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it.

(10)

Any overpayments or underpayments from the fund to a member, retiree or beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the Board in such a manner that the actuarial equivalent of the benefit to which the member, retiree or beneficiary was correctly entitled to, shall be paid. Overpayments shall be charged against payments next succeeding the correction or collected in another manner if prudent. Notwithstanding the foregoing, the board shall have the discretion to not seek recovery of inadvertent overpayments from benefit recipients or other parties, including the City based on the circumstances of the overpayment, on a case-by-case basis, provided that any such actions are consistent with the provisions of the Secure Act 2.0 applicable to governmental plans with regard to inadvertent benefit overpayments and any applicable guidance subsequently issued by the Treasury and the Internal Revenue Service. Underpayments shall be made up from the fund in a prudent manner.

(11)

The Board shall sustain no liability whatsoever for the sufficiency of the fund to meet the payments and benefits provided for herein.

(12)

In any application to or proceeding or action in the courts, only the Board shall be a necessary party, and no member or other person having an interest in the fund shall be entitled to any notice or service of process. Any judgment entered in such a proceeding or action shall be conclusive upon all persons.

(13)

Any of the foregoing powers and functions reposed in the Board may be performed or carried out by the Board through duly authorized agents; provided that, the Board at all times maintains continuous supervision over the acts of any such agent; provided further, that, legal title to said fund shall always remain in the Board.

(Ord. 121-07, 10-15-2007; Ord. 41-10, 4-12-2010; Ord. 52-13, 9-23-2013; Ord. 27-18, § 1, 5-7-2018; Ord. 39-23, § 1, 7-26-2023)

(a)

Member contributions.

(1)

Amount. Each member of the system shall be required to make regular contributions to the fund in the amount of 10% of his or her salary. member contributions withheld by the city on behalf of the member shall be deposited with the Board immediately after each pay period. The contributions made by each member to the fund shall be designated as employer contributions pursuant to § 414(h) of the Code. Such designation is contingent upon the contributions being excluded from the members' gross income for federal income tax purposes. For all other purposes of the system, such contributions shall be considered to be member contributions.

(2)

Method. Such contributions shall be made by payroll deduction.

(b)

State contributions. Any monies received or receivable by reason of laws of the State of Florida, for the express purpose of funding and paying for retirement benefits for police officers of the city shall be deposited in the fund comprising part of this system immediately and under no circumstances more than five days after receipt by the city.

(c)

City contributions. So long as this system is in effect, the city shall make monthly contributions to the fund in an amount equal to the required city contribution as shown by the applicable actuarial valuation of the system.

(d)

Other. Private donations, gifts and contributions may be deposited to the fund, but such deposits must be accounted for separately and kept on a segregated bookkeeping basis. funds arising from these sources may be used only for additional benefits for members, as determined by the Board, and may not be used to reduce what would have otherwise been required city contributions.

(Ord. 121-07, 10-15-2007; Ord. 41-10, 4-12-2010; Ord. 1-12, 2-6-2012)

(a)

Normal retirement date.

(1)

The normal retirement date for members whose employment commenced prior to October 1, 2013, shall be the first day of the month coincident with, or next following the earlier of the attainment of age 50, regardless of years of credited service or the completion of 25 years of credited service, regardless of age. The normal retirement age for a member retiring under the normal retirement date of 25 years of credited service, regardless of age, is the age that the member has attained when the member has at least 25 years of service and is retired.

(2)

The normal retirement date for members whose employment commenced on or after October 1, 2013, shall be the first day of the month coincident with, or next following the earlier of the attainment of age 52, with ten years of credited service or the completion of 27 years of credited service, regardless of age. The normal retirement age for a member retiring under the normal retirement date of 27 years of credited service, regardless of age, is the age that the member has attained when the member has at least 27 years of service and is retired.

(3)

A member may retire on his or her normal retirement date or on the first day of any month thereafter, and each member shall become 100% vested in his or her accrued benefit on the member's normal retirement date. Normal retirement under the system is retirement from employment with the city on or after the normal retirement date.

(b)

Normal retirement benefit.

(1)

A member retiring hereunder on or after his or her normal retirement date shall receive a monthly benefit which shall commence on the first day of the month coincident with or next following his or her retirement and be continued thereafter during member's lifetime, ceasing upon death, but with 120 monthly payments guaranteed in any event. The monthly retirement benefit shall equal 3.25% of Average Final Compensation, for each year of credited service.

(2)

Notwithstanding paragraph(b)(1) of this section, the maximum monthly retirement benefit paid at the time of retirement under the normal form of benefit to members who are employed and have not reached the normal retirement date on October 1, 2013, and members hired on or after October 1, 2013 shall not exceed the greater of $7,916.67 or the member's accrued monthly retirement benefit on October 1, 2013, exclusive of cost-of-living adjustments.

(3)

For members who retire on or after October 1, 2022, the maximum monthly retirement provided in paragraph(b)(2) of this section shall be increased by a 1% index for each year the funded ratio of the Retirement Plan (calculated by dividing the actuarial value of assets by the actuarial accrued liability) is equal to or greater than 80% in accordance with the annual actuarial valuation report. When an increase is applicable due to the funded ratio, it will be applied on the applicable plan year in which funding requirements are being established in the most recent actuarial valuation report dated on or before July 1 of the prior plan year. The maximum monthly retirement benefit shall not be reduced if the funded ratio of the Retirement Plan falls below 80%, but shall be frozen until the funded ratio returns to 80% or greater based in accordance to the most recent actuarial valuation dated on or before July 1 of the prior plan year. Any monthly retirement benefit increased pursuant to this paragraph shall not exceed the greater of $8,750, or the member's accrued monthly retirement benefit on October 1, 2013, exclusive of cost-of-living adjustments.

(4)

The maximum cap is applied to the normal form of benefit prior to any adjustments for optional forms of payment. A member's choice of the life only or the social security optional form of benefit may result in a retirement benefit which is more than the maximum, but is actuarially equivalent to the normal form with the maximum cap applied.

(5)

If a member who is subject to a maximum monthly retirement benefit provided in the preceding paragraphs and is reemployed in accordance with §2-121.29(b), the maximum total monthly retirement benefit payable upon final retirement based on all periods of employment shall not exceed the maximum monthly retirement plan provided in paragraph(b)(3) of this section.

(Ord. 98-22, § 1, 12-7-2022)

(c)

Early retirement date. A member may retire on his or her early retirement date which shall be the first day of any month coincident with or next following the attainment of age 40 and the completion of ten years of credited service. Early retirement under the system is retirement from employment with the city on or after the early retirement date and prior to the normal retirement date.

(d)

Early retirement benefit. A member retiring hereunder on his or her early retirement date may receive either a deferred or an immediate monthly retirement benefit payable in the same form as for normal retirement as follows:

(1)

A deferred monthly retirement benefit which shall commence on what would have been his or her normal retirement date had he remained a police officer and shall be continued on the first day of each month thereafter. The amount of each such deferred monthly retirement benefit shall be determined in the same manner as for retirement as on his or her normal retirement date except that credited service and average final compensation shall be determined as of his or her early retirement date; or

(2)

An immediate monthly retirement benefit which shall commence on his or her early retirement date and shall be continued on the first day of each month thereafter. The benefit payable shall be as determined in paragraph (d)(1) above, assuming he or she had retired on his or her normal retirement date and with the same number of years of credited service as at the time his or her benefits commence and based on his or her average final compensation at that date, multiplied by the applicable factor set forth in the following tables:

a.

Members hired on or before October 1, 2013:

b.

Members hired on or after October 1, 2013: