Irvine Municipal Code Ch. 7 North Irvine Transportation Mitigation Program

The North Irvine Transportation Mitigation Program (the "NITM Program") is established for the purpose of providing funding for the coordinated and phased installation of required traffic and transportation improvements required under CEQA documents previously certified or adopted by the City in connection with land use entitlements for City Planning Areas 1, 2, 5, 6, 8, 9, 30, 40 and 51, which are depicted in Attachment A hereto. Portions of City Planning Areas 1, 2, 5, 6, 8, 9, 30, 40 and 51 are located in the City and portions are located outside the City but within the City's sphere of influence. The requirements regarding the preparation of traffic studies, reports, and analyses set forth in this chapter shall supersede the requirements regarding the preparation of traffic studies, reports, and analyses set forth in other City ordinances, resolutions, or determinations. The NITM Program is not intended to fund deficiencies that may be caused by developments outside of the Properties that are approved subsequent to the adoption of this chapter, subsequent regional changes in traffic patterns, or subsequent circulation changes due to development outside of the Properties.

(Ord. No. 03-20, § 3, 6-10-03)

ADTs means existing and future average daily vehicular trips.

Commencement of Construction means the initial commencement of any structural construction or rehabilitation of any residentially or commercially occupiable structure within a Future Development Area.

Comprehensive NITM Traffic Study means a traffic analysis of the entire NITM Program traffic study area, prepared and filed in connection with (i) an application to amend the General Plan or zoning to modify the allowable land uses or intensity in all or a portion of one or more Future Development Areas; (ii) a Five-Year Review; or (iii) an Interim Review. The required scope of a Comprehensive NITM Traffic Study shall be set forth in a resolution duly adopted by the City Council, as described in Section 6-3-703E.

Director means the City's Director of Public Works or his or her designee.

Fair Share Funded Improvements means those traffic and transportation improvements that are to be developed and funded pursuant to the NITM Program pursuant to a fair share allocation of improvement costs, with each Future Development Area responsible for its fair share of the improvement based upon the ADTs generated by each Future Development Area, in relation to all other traffic. The Fair Share Funded Improvements, and the cost allocations thereof between Future Development Areas 1/2, 5B, 6, 8A, 9A, 9B, 40, Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, and Great Park IV, are set forth in the List of NITM Improvements.

Final Map means a "final map" as described in Government Code tit. 7, div. 2, art. 2 (Government Code § 66433 et seq.).

Five-Year Review means a complete review of the NITM Program to be conducted by the City every five years for the purpose of updating cost allocations, proposing alternative mitigation measures, or eliminating specific traffic and/or transportation improvements that are no longer necessary.

Fully Funded Improvements means those traffic and transportation improvements that are to be developed and fully funded pursuant to the NITM Program. The Fully Funded Improvements, and the cost allocations thereof between Future Development Areas 1/2, 5B, 6, 8A, 9A, 9B, 40, Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, and Great Park IV, are set forth in the List of NITM Improvements.

Future Development Area means a defined land area within the Properties, as depicted in Attachment A, which is attached hereto. The Future Development Areas are as follows:

Interim Review means a complete review of the NITM Program that is prepared at any time prior to the next scheduled Five-Year Review, to determine whether it is necessary or appropriate to update cost allocations, propose alternative mitigation measures, or eliminate specific traffic and/or transportation improvements that are no longer necessary.

Issuance of First Building Permit means the time that the City issues the first building permit for construction within a Future Development Area.

List of NITM Improvements means that certain List of NITM Improvements included in the NITM Nexus Study, as it may be amended from time-to-time, which is on file with the City Clerk, and which contains all of the NITM Improvements to be funded, in whole or in part, by each Future Development Area, and which assigns the NITM Fees for each of the NITM Improvements. The List of NITM Improvements may only be adjusted by the Director, in accordance with Section 6-3-706 hereof.

Master Plan means a plan submitted by an applicant to the City in accordance with Chapter 2-17 of the Irvine Zoning Ordinance, which plan details the quantity and distribution of uses and gross square feet, hotel rooms, and residential dwelling units (as appropriate), both existing and proposed, and provides the gross and net acreage for, each corresponding legal parcel within the site.

New TPM means a Tentative Parcel Map or Vesting Tentative Parcel Map that covers a portion of the Properties that has not already been mapped in a previous TPM or TTM, but shall not include the first subdivision map filed for any of Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, or Great Park IV, if such map is filed for the sole purpose of creating legal parcels resulting from the purchase of the parcels from the Department of the Navy.

New TTM means a Tentative Tract Map or Vesting Tentative Tract Map that covers a portion of the Properties that has not already been mapped in a previous TPM or TTM, but shall not include the first subdivision map filed for any of Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, or Great Park IV, if such map is filed for the sole purpose of creating legal parcels resulting from the purchase of the parcels from the Department of the Navy.

NITM Advisory Committee means the three-person committee comprising (i) a representative appointed by the Director, (ii) a representative appointed by the owner owning the largest quantity, in acreage, of the undeveloped portions of the property that comprises Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, and Great Park IV, and (iii) a representative appointed by the owner(s) of the majority of the undeveloped portions of Future Development Areas 1/2, 5B, 6, 8A, 9A, 9B and 40. Once appointed, a member of the NITM Advisory Committee shall serve until the member resigns or is removed by the person(s) appointing that member.

NITM Fee means a fee required to be paid pursuant to this NITM Program.

NITM Fee Allocation Plan means a fee allocation plan that an applicant is required to submit to the City at the time each New TPM or New TTM is filed, in connection with the applicant's election pursuant to Section 6-3-705B, which plan (i) allocates the Total TPM/TTM NITM Fees to the TPM or TTM; (ii) allocates the remainder of the Total Future Development Area NITM Fees to the remaining land within the applicable Future Development Area; and, if the Total TPM/TTM NITM Fees for the TPM or TTM are not paid prior to the earlier of (a) the initial commencement of any structural construction or rehabilitation of any residentially or commercially occupiable structure within the TPM or TTM, or (b) the time that the City issues the first building permit for construction within the TPM or TTM, (iii) specifies the Total Parcel NITM Fees for each Parcel in the TPM or TTM. Notwithstanding anything herein to the contrary, no revisions shall be made to the Total Parcel NITM Fees specified in an approved NITM Fee Allocation Plan except for revisions made pursuant to Section 6-3-706 or 6-3-708. All approved NITM Fee Allocation Plans shall be kept on file with the City Clerk. The required scope of a NITM Fee Allocation Plan shall be set forth in a resolution duly adopted by the City Council, as described in Section 6-3-703E.

NITM Fee Increase means a revision to the List of NITM Improvements to increase one or more NITM Fees or to increase the Total Future Development Area NITM Fees.

NITM Fee Reduction means a revision to the List of NITM Improvements to reduce one or more NITM Fees or to reduce the Total Future Development Area NITM Fees.

NITM Fee Transfers means a revision to the List of NITM Improvements to transfer NITM Fees from one or more Future Development Areas to one or more other Future Development Areas.

NITM Improvements means the Fair Share Funded Improvements and the Fully Funded Improvements.

NITM Program means the fee program established hereby.

Parcel means a parcel identified in an application for a TPM or TTM that has been approved by the City.

Parcel Fee Schedule means a per-unit, per-square foot, or per-acre fee schedule for the payment of the Total Parcel NITM Fees that is required to be prepared by an applicant as the result of a payment election made pursuant to Section 6-3-705B.

Properties means, collectively, City Planning Areas 1, 2, 5, 6, 8, 9, 30, 40 and 51, which are depicted in Attachment A hereto. The Properties are composed of Future Development Areas 1/2, 5B, 6, 8A, 9A, 9B, 40, Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, and Great Park IV. All of the Properties are subject to the NITM Program.

Total Future Development Area NITM Fees means the total cost of design and construction of the NITM Improvements, and administration of the NITM Program, that is allocated to the entirety of a Future Development Area, as set forth in the List of NITM Improvements.

Total Parcel NITM Fees means the NITM Fees that are allocated to the entirety of a Parcel, as set forth in the approved NITM Fee Allocation Plan covering said Parcel.

Total TPM/TTM NITM Fees means the NITM Fees that are allocated to the entirety of a TPM or TTM, based on the ADTs the proposed development thereon is anticipated to generate, as set forth in the approved NITM Fee Allocation Plan for said TPM or TTM.

TPM means Tentative Parcel Map or Vesting Tentative Parcel Map, but shall not include the first subdivision map filed for any of Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, or Great Park IV, if such map is filed for the sole purpose of creating legal parcels resulting from the purchase of the parcels from the Department of the Navy.

TPM/TTM Traffic Study means the traffic study that an applicant is required to prepare and submit in connection with each TPM and TTM it files with the City. The required scope of a TPM/TTM Traffic Study shall be set forth in a resolution duly adopted by the City Council, as described in Section 6-3-703E. Notwithstanding any other provision of this chapter to the contrary, the scope of work set forth in any traffic study that has been prepared, submitted to the City, and accepted by the City prior to the first reading of this chapter shall be deemed to satisfy the requirements of the TPM/TTM Traffic Study set forth herein.

Transfer of Intensity Analysis means an analysis prepared in connection with a transfer of development rights or intensity between Future Development Areas or within a Future Development Area. The required scope of a Transfer of Intensity Analysis shall be set forth in a resolution duly adopted by the City Council, as described in Section 6-3-703E.

TTM means Tentative Tract Map or Vesting Tentative Tract Map, but shall not include the first subdivision map filed for any of Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, or Great Park IV, if such map is filed for the sole purpose of creating legal parcels resulting from the purchase of the parcels from the Department of the Navy.

(Ord. No. 03-20, § 3, 6-10-03; Ord. No. 04-07, § 15, 8-24-04)

A. Each applicant shall pay to the City, as a component of the City's usual hourly-based processing fee, the cost incurred by the City in the analysis, review and application of the NITM Program in connection with the City's review and processing of the applicant's proposed General Plan Amendment, Zone Change, TPM, TTM, related discretionary applications, building permits, and/or other discretionary entitlements or approvals. Such NITM Program review shall include, but is not limited to, the review of TPM/TTM Traffic Studies, Comprehensive NITM Traffic Studies, Transfer of Intensity Analyses, NITM Fee Allocation Plans, and Interim Reviews.

B. In addition to the charges described in Paragraph A above, an administrative charge is incorporated into the Total Future Development Area NITM Fees to cover or provide funding for the costs of establishing the NITM Program, the conduct of the Five-Year Reviews, and any other City costs not directly charged to an applicant in connection with the review and processing of a proposed project within the Properties. Upon consultation with the NITM Advisory Committee, the Director shall have the discretion, on a periodic basis, to adjust the administrative component of the Total Future Development Area NITM Fees, to reflect adjustments in administrative costs to the City. The administrative costs described in this section are amortized over 25 years and incorporated into the Total Future Development Area NITM Fees for each Future Development Area.

C. An applicant shall prepare and submit a TPM/TTM Traffic Study with each TPM and TTM the applicant files with the City. If a TPM/TTM Traffic Study identifies one or more improvements that are not set forth in the List of NITM Improvements as necessary to address a project impact, (i) the applicant shall construct, or provide for the construction of, the required improvement if the deficiency is caused by the applicant's project; or (ii) the applicant shall pay its fair share of the required improvement, in accordance with the procedures utilized to determine the fair share allocation of the NITM Improvements, if the deficiency is an existing deficiency to which the project is contributing.

D. If the City determines, in its sole and absolute discretion, to incorporate the land contained within Future Development Area Great Park IC into Future Development Area Great Park III, all of the obligations of Future Development Area Great Park IC pursuant to the NITM Program, including, but not limited to, the obligation to pay NITM Fees, shall be deemed to be added to the obligations of Future Development Area Great Park III.

E. The City Council shall approve, by duly adopted resolution, the scopes of work for the Comprehensive NITM Traffic Study, NITM Fee Allocation Plan, TPM/TTM Traffic Study, and Transfer of Intensity Analysis. Thereafter, the Director shall have the discretion, upon the unanimous recommendation of the NITM Advisory Committee, to revise any and all such scopes of work as the Director determines appropriate to implement the provisions of this NITM Program.

(Ord. No. 03-20, § 3, 6-10-03)

Within the Properties, NITM Fees shall be assigned to each of the individual Future Development Areas based on ADTs. The Total Future Development Area NITM Fees initially assigned to each Future Development Area are as follows:

(Ord. No. 03-20, § 3, 6-10-03)

A. Prior to the earlier of (i) the Issuance of First Building Permit or (ii) the Commencement of Construction, the Total Future Development Area NITM Fees for the Future Development Area for which the building permit will be issued or within which construction or rehabilitation work will commence shall be paid by the applicant, unless the applicant has elected an alternative payment mechanism in accordance with Paragraph B of this Section. Each TPM or TTM approved by the City for a particular Future Development Area shall be conditioned upon the foregoing requirement, or, if the applicant has elected an alternative payment method, each TPM or TTM shall be conditioned on the applicant's compliance with the alternative payment method.

B. An applicant may, at the time the applicant files with the City the first TPM or TTM for a particular Future Development Area, submit a NITM Fee Allocation Plan and elect one or a combination of three methods for payment of the Total TPM/TTM NITM Fees, as an alternative to the payment described in Paragraph A of this Section. The applicant may elect to (i) pay the Total TPM/TTM NITM Fees from funds generated by an assessment district or similar financing vehicle approved by the City, (ii) enter into an agreement with the City for an alternative payment schedule by which the applicant pays all of the Total TPM/TTM NITM Fees in accordance with a schedule set forth in the approved NITM Fee Allocation Plan, or (iii) enter into an agreement with the City setting forth a plan for the payment of all of the Total TPM/TTM NITM Fees, which provides for the payment of fees at the time building permits are issued, all as further described below. If the applicant elects to enter into an agreement with the City, in accordance with this section, the agreement must be fully executed by both the City and the applicant prior to the earlier of (1) the Issuance of First Building Permit or (2) the Commencement of Construction.

1. An applicant may elect to pay the Total TPM/TTM NITM Fees from the construction proceeds available from a land secured bond issue (e.g., Assessment District or Community Facilities District) covering all or a portion of the Future Development Area, provided the proceeds of the bond issuance are placed in a traffic/transportation construction account for use by the City prior to the earlier of (1) the Issuance of First Building Permit or (2) Commencement of Construction. If any bond proceeds from a Community Facilities District remain after the City has expended or committed the Total TPM/TTM NITM Fees for the applicable TPM or TTM, the remaining proceeds may be assigned by the Director to other TPMs, TTM, or Future Development Areas owned by the applicant, and the applicant shall receive credits against the Total TPM/TTM NITM Fees or Total Future Development Area NITM Fees owed from such other TPMs, TTMs, or Future Development Area(s). If insufficient bond proceeds exist at the earlier of (i) the Issuance of First Building Permit, or (ii) the Commencement of Construction, to cover all of the Total TPM/TTM NITM Fees, the applicant shall, at that time, and as a condition to said issuance or Commencement of Construction, submit to the City the outstanding balance of the Total TPM/TTM NITM Fees owed to the City or enter into an agreement with the City for payment of the same pursuant to a schedule set forth in the agreement.

2. An applicant may elect to enter into an agreement with the City that provides for the applicant's payment to the City of the Total TPM/TTM NITM Fees pursuant to a schedule set forth in the approved NITM Fee Allocation Plan that is on file with the City. The City shall accept an applicant's proposed payment schedule if, in the Director's reasonable discretion, the schedule provides for payments to be made to the City in at least as timely a manner as if a NITM Fee were collected upon the City's issuance of each building permit within the TPM or TTM. The agreement shall require the applicant to pay to the City any Total TPM/TTM NITM Fees that remain outstanding, if and at such time as the Director determines, in his or her reasonable discretion, that no land that is reasonably likely to be developed remains within the Future Development Area. The agreement may require the applicant to obtain a bond or other security if the Director determines, in his or her reasonable discretion, that the applicant may not possess sufficient assets to fully develop the TPM or TTM.

3. An applicant may elect to enter into an agreement with the City to pay the Total TPM/TTM NITM Fees in accordance with a per-unit payment schedule based upon the proposed development within the TPM or TTM, such as a fee to be paid in connection with the issuance of each building permit. At the time the applicant (or a subsequent applicant) files a subsequent TPM or TTM or a Master Plan for any portion of the real property covered by the original TPM or TTM, the applicant shall prepare and submit to the City a proposed Parcel Fee Schedule for each Parcel covered by its application. If the proposed Parcel Fee Schedule is consistent with the approved NITM Fee Allocation Plan on file with the City, the Parcel Fee Schedule shall be approved and shall be added to the approved NITM Fee Allocation Plan. An agreement entered into pursuant to this Paragraph 3 shall authorize the Director to revise a Parcel Fee Schedule in the event the applicant's proposed development differs from that originally contemplated in the NITM Fee Allocation Plan on file with the City. The agreement shall also require (i) the applicant to pay any Total TPM/TTM NITM Fees that remain outstanding as a result of a determination that a subsequent landowner or developer is not subject to the payment obligations hereunder, and (ii) the developer of each Parcel to pay any Total Parcel NITM Fees that remain outstanding, including, but not limited to, any shortfalls caused by the failure of the Parcel to generate NITM Fee revenues equivalent to the Total Parcel NITM Fees for the Parcel, if and at such time as the Director has determined, in his or her reasonable discretion, that no land that is reasonably likely to be developed remains within the Parcel. The agreement may also require the applicant to obtain a bond or other security if the Director determines, in his or her reasonable discretion, that the applicant may not possess sufficient assets to fully develop the TPM or TTM.

(Ord. No. 03-20, § 3, 6-10-03)

A. If (i) an applicant proposing to develop one or more Future Development Areas requests a General Plan Amendment, Zone Change, Interim Review, and/or a change in the intensity of development within one or more Future Development Areas, or (ii) an Interim Review or a Five-Year Review is prepared, changes may occur in the List of NITM Improvements that necessitate one or more revisions to the NITM Improvements assigned to all or a part of a Future Development Area. In such event, the List of NITM Improvements shall be modified by the Director, in his or her reasonable discretion, after consultation with the NITM Advisory Committee, to reflect (a) one or more NITM Fee Transfers, (b) one or more NITM Fee Increases, and/or (c) one or more NITM Fee Reductions, as applicable.

B. Notwithstanding anything herein to the contrary, revisions to fees allocated to or within a Future Development Area after the earlier of (i) the Issuance of First Building Permit or (ii) Commencement of Construction may only be made by an amendment to an agreement executed pursuant to Section 6-3-705B, and, subject to Section 6-3-708, no changes shall be made to any fee within a Final Map if a building permit has been issued within said Final Map. The Director agrees to execute any such amendment if the Director determines, after consultation with the NITM Advisory Committee, that such modifications are warranted. In the event of such determination by the Director, the applicant shall prepare and submit to the Director an updated NITM Fee Allocation Plan for each TPM and TTM affected by the modifications that reflects the approved modifications and that the applicant proposes for incorporation into the amendment.

C. A Comprehensive NITM Traffic Study shall be required prior to the approval of any revision to the List of NITM Improvements by the Director in order to determine new ADT apportionments and the phasing and funding of NITM Improvements affected by development within the Future Development Area(s). The timing for the filing of these studies shall be as follows:

1. The applicant shall be required to provide a Comprehensive NITM Traffic Study at the time the applicant submits an application for a General Plan Amendment or Zone Change affecting the ADTs generated within one or more Future Development Areas.

2. The applicant shall prepare a Comprehensive NITM Traffic Study during the processing of an Interim Review.

D. If an applicant proposes to transfer land use entitlement or intensity between two or more Future Development Areas or within a Future Development Area the applicant shall be required to provide at the time of the application for such transfer a completed Transfer of Intensity Analysis and an updated NITM Fee Allocation Plan for each TPM and TTM impacted by the transfer that reflects the proposed transfer. Subject to the limitations on revisions to fees set forth in Paragraph A above, such transfers shall be permitted if they satisfy the requirements of the Zoning Ordinance.

E. NITM Fee adjustments shall be implemented in accordance with the following:

1. If a Five-Year Review or an Interim Review demonstrates that the List of NITM Improvements can be reduced as a result of updated land use and transportation assumptions, the Director shall implement NITM Fee Reductions within Future Development Areas as the Director deems appropriate. If a Five-Year Review or an Interim Review demonstrates that the cost associated with construction of the NITM Improvements has either increased or decreased, the Director shall implement either NITM Fee Increases or NITM Fee Reductions within Future Development Areas as the Director deems appropriate, in accordance with this section.

2. If a Zone Change or General Plan Amendment identifies the need for additional transportation improvements to mitigate the subject Zone Change or General Plan Amendment, such additional improvements shall not be included in the List of NITM Improvements but shall be a mitigation responsibility of the Zone Change or General Plan Amendment. If a Zone Change or General Plan Amendment indicates that the List of NITM Improvements can be reduced, the Director shall implement NITM Fee Reductions within the affected Future Development Areas. There shall be no NITM Fee Reductions as a result of lowering development intensity unless it is accompanied by a lowering of improvement costs. If a Zone Change or General Plan Amendment has the effect of lowering the proportion of ADTs that have been assigned to another Future Development Area, the Director shall implement NITM Fee Reductions in the other Future Development Area and implement a NITM Fee Increase in the Future Development Area that is the subject of the Zone Change or General Plan Amendment.

3. If a land use intensity reduction is approved by the City, a NITM Fee Reduction may be implemented by the Director only if the land use intensity reduction has the effect of eliminating or reducing the cost of an improvement in the List of NITM Improvements. In no case shall a land use intensity reduction result in a NITM Fee Increase to other Future Development Areas notwithstanding the fact that the reduction has the effect of increasing the proportion of ADTs that have been assigned to other Future Development Areas with regard to an improvement on the List of NITM Improvements.

4. Based on the findings of a Transfer of Intensity Analysis that has been prepared in connection with a land use intensity transfer that is permitted by the Zoning Ordinance, the Director may implement a NITM Fee Increase for the Future Development Area to which the land use intensity is being transferred, and a NITM Fee Reduction for the Future Development Area from which the land use intensity is being transferred.

5. If the owner of any or all of Future Development Areas Great Park IA, Great Park IB, Great Park IC, Great Park II, Great Park III, and/or Great Park IV elects to develop one or more of said Future Development Areas under the "Base Plan" rather than under the "Overlay Plan" (as those terms are used in General Plan Amendment 47782-GA, approved by the adoption of Resolution No. 03-60, on May 27, 2003), the owner or developer of said Future Development Area(s) shall be required to prepare and submit to the City an Interim Review at the time it files its first TTM or TPM. The Director shall implement NITM Fee Reductions in light of that Interim Review as the Director deems appropriate.

F. Notwithstanding anything to the contrary in this chapter, an applicant may, at any time, submit a proposal to the Director for, or the Director may implement, an alternative mitigation measure to one of the NITM Improvements set forth in the List of NITM Improvements. Any such proposal shall include an analysis evidencing how the alternative mitigation measure would satisfy the City's traffic mitigation requirements with respect to the NITM Improvement that would be replaced and not result in any new or additional impacts. If the Director, after consultation with the NITM Advisory Committee, determines that the alternative mitigation measure would fully satisfy the City's traffic mitigation requirements with respect to the NITM Improvement that would be replaced, he or she shall revise the List of NITM Improvements to reflect the alternative mitigation measure.

G. In the event that the Director determines that (i) the NITM Nexus Study, as it relates to the Fair Share Funded Improvements, (ii) the Fair Share Funded Improvements, as set forth in the List of NITM Improvements, or (iii) the traffic model and analyses underlying the NITM Program, as it affects the Fair Share Funded Improvements, contains an error that (a) causes one or more improvements necessary to mitigate traffic impacts from the development of the Properties not to be included as a Fair Share Funded Improvement, (b) results in an incorrect projected cost of one or more of the Fair Share Funded Improvements, or (c) results in an erroneous allocation of traffic mitigation costs to one or more Future Development Areas, the Director shall have the authority, after consultation with the NITM Advisory Committee, to take such action as may be necessary to correct any such error. Such correction may include modifying the Fair Share Funded Improvements, revising the projected cost of one or more of the Fair Share Funded Improvements, modifying the NITM Fees applicable to any Future Development Area, and modifying the allocation of NITM Fees to any Future Development Area. The provisions of this Paragraph G shall apply only to Fair Share Funded Improvements located outside of the municipal boundaries of the City and its adopted sphere of influence.

(Ord. No. 03-20, § 3, 6-10-03)

A. The NITM Advisory Committee shall provide advisory recommendations to the City regarding the priority of improvements to be constructed with NITM Fees. To the extent feasible, the City shall expend NITM Fees within a reasonable time after their collection from applicants to fund the specific NITM Improvements required for the Future Development Area in which the NITM Fees are collected, taking into consideration any TPM/TTM Traffic Studies that have been submitted to the City. However, the City reserves the right to fund NITM Improvements in a timely manner through the use of NITM Fees collected from property owners in any Future Development Area.

B. The Director is authorized to develop and implement procedures for the accounting for and disbursement of NITM Fees paid pursuant to the NITM Program that represent Fair Share Funded Improvements under the jurisdiction of another agency. These procedures shall include the accounting of such NITM Fees and, upon the written request of the agency with jurisdiction over a particular Fair Share Funded Improvement, the disbursement to that agency of the portion of the NITM Fees allocated to such Fair Share Funded Improvement that have been collected on behalf of that agency to such agency upon both (1) the agency with jurisdiction over the Fair Share Funded Improvement commencing construction of, or otherwise committing to the construction of, the Fair Share Funded Improvement or an alternative improvement deemed by both that agency and the Director as acceptable alternative mitigation, and (2) the City's collection of NITM Fees for that agency in an amount equal or greater to that allocated by the NITM Program to the Fair Share Funded Improvement. Any such written request shall further state that such payment by the City of the portion of the NITM Fees collected as the contribution to the Fair Share Funded Improvement shall satisfy all of the fair share obligations of the Properties under the NITM Program for such improvement. The Director shall have the authority from time-to-time, in the Director's sole discretion, to modify the promulgated procedures for the accounting for and disbursement of NITM Fees for Fair Share Funded Improvements.

(Ord. No. 03-20, § 3, 6-10-03)

The Director shall, on July 1st of each year, commencing in 2004, apply an inflation escalator to NITM Fee levels and to the projected land acquisition costs as set forth in the List of NITM Improvements for all rights-of-way located outside of the territorial boundaries of the Properties, based upon the California Highway Construction Cost Index for the preceding calendar year. In the event that the California Highway Construction Cost Index ceases to be published, the Director shall, upon the unanimous consent of the NITM Advisory Committee, select a successor index.

The Director shall, on July 1st of each year, commencing in 2004, apply a fixed inflation escalator, in the amount of five percent per year, compounded annually, to the projected land acquisition costs as set forth in the List of NITM Improvements for all rights-of-way owned by any of the owners of the Properties and needed for a NITM Improvement.

(Ord. No. 03-20, § 3, 6-10-03)

Should an applicant offer to construct road improvements or convey rights-of-way that are eligible for funding under the NITM Program, the applicant may, prior to commencing construction, apply to, and enter into an agreement with, the Director for credits or reimbursement. The agreement shall provide for the Director to determine, in his or her discretion and after consultation with the NITM Advisory Committee, the acceptability of the improvements or properties, and the credits or reimbursements to be granted to the applicant. In the case of credits, the Director shall also have discretionary approval over the Future Development Area, TTM or TPM to which such credits shall be applied. In the case of reimbursements, the agreement shall set forth the amount and payment terms of the reimbursement.

Credits and reimbursements shall be based on the applicant's actual cost of constructing the applicable NITM Improvements; provided, however, that an applicant shall not receive credits or reimbursements for any costs in excess of the estimated costs for said improvement, as set forth in the List of NITM Improvements, unless the applicant receives the written approval of the Director.

(Ord. No. 03-20, § 3, 6-10-03)

The City shall conduct Five-Year Reviews of the NITM Program. Such reviews shall be conducted every five years, commencing in the first full month following the fifth anniversary of the NITM Program, regardless of the conduct of any Interim Reviews during the five-year period; provided, however, that the Advisory Committee, upon the unanimous consent of all of its members, may determine not to conduct an otherwise scheduled Five-Year Review upon determining that the Five-Year Review is not needed due to either the rate of development within the Properties, the information obtained from a recent Interim Review, or other factors. In its conduct of a Five-Year Review, the City shall consult the NITM Advisory Committee.

(Ord. No. 03-20, § 3, 6-10-03)

Any decision of the Director pursuant to this chapter may be appealed to the City Council in accordance with the provisions of Chapter 2-5 of the City's Zoning Ordinance.

(Ord. No. 03-20, § 3, 6-10-03)

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