Article II — Payment of Fees

A.

Each application for review and approval by the city for a development project within the program boundary area as defined in Section 10.70.130 of this chapter including new, in-fill, change of use, and remodeling, shall pay traffic impact fees to the city, in accordance with the amounts set forth in the implementing resolution for said fee, unless the applicant establishes, to the satisfaction of the Development Director, entitlements to a fee credit pursuant to Section 10.70.300, a fee adjustment pursuant to Section 10.70.400, or a fee exemption or exception pursuant to Section 10.70.250.

B.

The obligation to pay traffic impact fees pursuant to this chapter shall not replace an applicant's obligation to mitigate development project impacts in accordance with other requirements of state or local law. The

obligation to pay the traffic impact fee will not replace the applicant's obligation for other impact related fees and programs.

(Ord. 12786 § 1 (part), 2007)

The fee for each unit of development within a development project shall be imposed at the time of planning and zoning approvals and will paid in full prior to the issuance of the certificate of occupancy. Failure by the city to collect payment at time of issuance of certificate of occupancy does not waive the city's right to collect this fee.

The full amount of the fee shall be paid at the times set forth in this section:

A.

Residential Development.

Except as provided in subsection (A)(2) of this section, the fee with respect to residential development shall be paid in one of the following ways:

For residential development consisting of only one dwelling unit, before the final inspection, or the date the certificate of occupancy is issued, whichever occurs first; or

For residential development consisting of more than one dwelling unit, at the discretion of the Director: (i) on a pro rata basis for each dwelling unit within the residential development before the dwelling unit receives its final inspection or certificate of occupancy, whichever occurs first, or (ii) on a pro rata basis when a specified percentage of the dwelling units within the residential development have received their final inspections or certificates of occupancy, whichever occurs first, or (iii) on a lump sum basis when the first dwelling unit within the residential development receives its final inspection or certificate of occupancy, whichever occurs first.

If the fee is not fully paid before issuance of a building permit, under this subsection (A)(1), the property owner shall enter into a written agreement with the city pursuant to subsection (C) of this section.

Notwithstanding the provisions of subsection (A)(1) of this section, the director may require the payment of the fees imposed under this chapter before a building permit is issued, where the director determines that such fees will be collected for the purpose of defraying the actual or estimated cost of constructing traffic improvements for which an account has been established and funds appropriated and for which the city has adopted a proposed construction schedule or plan prior to any final inspection or issuance of a certificate of occupancy for a dwelling unit within the residential development; or the fees are to reimburse the city for expenditures previously made for the construction of traffic improvements.

B.

Nonresidential Development. The applicant shall pay the traffic impact fee at one of the following times, at the applicant's option:

Before the issuance of the building permit;

Before the first certificate of occupancy is issued, or consistent with the requirements of subsection (c) below.

C.

Written Agreement. If an owner or applicant chooses to pay the fee after the time a building permit is issued, then before the building permit is issued, he or she shall enter into a written agreement with the city, in a form acceptable to the City Attorney, and record the agreement with the Alameda County Recorder.

(Ord. 12786 § 1 (part), 2007)

A.

The fee to be paid for each unit of development within a development project within the traffic impact program area shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the city.

B.

The fee to be paid for a remodel action shall be the amount of the fee required pursuant to subsection (A) of this section for that portion of the remodel which generates impacts greater than the last legal use of the existing structure.

C.

In the event that a previous partial fee payment is made for any unit of development, the full fee to be paid for that unit shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the city, less the amount of the previous partial payment.

D.

The applicant shall have the burden of proving the amount of any fee previously paid, the date on which payment was made, and the unit of development for which payment was made.

E.

It is the intent of the city that the fees required by this chapter shall be supplementary to the fees, dedications or conditions imposed upon development pursuant to the provisions of the Subdivision Map

Act, California Environmental Quality Act, and other state laws and city ordinances or policies which may authorize the imposition of fees, dedications or conditions.

(Ord. 12786 § 1 (part), 2007)

The city reserves the right to update and adjust the TIP fee from time to time, in accordance with the Mitigation Fee Act. The fee in effect at the time any applicant has obtained a vested development right shall be subject to adjustment by the city as incorporated in updated implementing resolutions in effect at the time that full payment of the fee is made, based upon any or all of the following criteria:

A.

Adjustments in the amount of the estimated construction costs of providing the specified public facilities based upon adjustments in accordance with the inflation index.

B.

Adjustments to replace estimated costs with actual costs (including carrying costs) of providing the specified traffic and/or transportation facilities.

C.

Adjustments to reflect more accurate cost estimates of providing the specified traffic and transpiration facilities based upon more detailed analysis or design of the previously identified specified public facilities.

(Ord. 12786 § 1 (part), 2007)

A.

Affordable housing units are exempt from the TIP and TIF. Restrictions on household incomes, rents and sales prices shall be in the form of a regulatory agreement, affordability agreement, resale controls, declaration of covenants, or similar binding instrument executed by the city and the applicant. Such restrictions shall be recorded against the affordable housing units as covenants running with land, senior in priority to any private liens or encumbrances, and shall be enforceable by the city against the project applicant or the applicant's successors-in- interest to the units for the full affordability term. In the case of rental units, the restrictions shall have a term of not less than fifty-five (55) years from the date of initial occupancy of the unit. In the case of ownership units, the restrictions shall have a term of not less than forty-five (45) years from the date of initial occupancy of the unit.

B.

Residential development projects are exempt from TIP and TIF impact fees for any remodel, as long as it does not result in a change of use or does not increase the number of housing units.

C.

A reconstruction of a razed structure shall receive a fee credit only if the applicant submits documentation to the satisfaction of the Development Director establishing that the razed structure was in existence in accordance with the timing requirements of this subsection. If a development project receives a credit pursuant to this subsection, the amount of the fee to be paid shall be: (i) the amount of the fee required pursuant to subsection 10.70.250(A) for the entire new structure, (ii) minus the amount of the fee which would have been required pursuant to subsection 10.70.250(A) for the last legal use of the razed structure. In order to be entitled to a credit for the traffic impact fee, the razed structure is required to have been in existence on or after the date this ordinance is in effect.

D.

An applicant may request a refund of a fee previously paid in accordance with this chapter only if the applicant provides written documentation to the satisfaction of the Development Director that: (1) the building permit (including any permit or city approval on which the fee was imposed) is cancelled or voided, and (2) work has not progressed on the building permit which would allow commencement of a new use or change of use, and (3) the city has not already committed the fees to the construction of traffic or transportation facilities. Any refund made pursuant to this subsection may, in the discretion of the Development Director, include a deduction to cover the city's administrative costs of processing the refund.

(Ord. 12786 § 1 (part), 2007)