Part 2 — FEE PROGRAM

Unless otherwise exempt under the provisions of this chapter, approval of any development project in the city shall be subject to a condition for the payment of a utility undergrounding fee as set forth in this chapter.

(Ords. 23187, 25103, 28596.)

The utility undergrounding fee shall be paid to the city in full prior to recordation of the parcel or final map for projects described in Section 15.26.020.A or issuance of a department of public works clearance for projects described in Section 15.26.020.B.

(Ord. 23187.)

A.

All fees collected pursuant to the provisions of this Chapter shall be placed in the underground utility fund established by Part 35 of Chapter 4.80 of the San José Municipal Code.

B.

All fees collected pursuant to the provisions of this Chapter shall be used solely for the conversion of overhead utility facilities to underground facilities on designated streets within the City. The fees may be used for any and all of the following purposes:

Payment to utility companies subject to Cal. P.U.C. Rule 20, Tariff Schedule Cal. P.U.C. No. A2, or the City's cable franchise for the costs of converting their existing overhead utility facilities with underground facilities in the public right-of-way;

Reimbursement of a project applicant for the costs of converting existing overhead utility facilities to underground facilities on designated streets within the City which are being converted pursuant to Section 15.26.180. The amount of reimbursement shall be no more than the principal amount of fees previously collected by the City from development projects:

a.

Located on the opposite side of the street from the applicant's development project that are within the applicant's project site frontage; or

b.

Within the boundaries of the undergrounding project area if the project applicant elects to underground facilities beyond the applicant's project site frontage; and

c.

Reimbursement of the project applicant shall be made pursuant to a City-private developer contract in accordance with Chapter 27.38 of the San José Municipal Code or a subdivision improvement agreement in accordance with Chapter 19.32 of the San José Municipal Code;

City costs to convert City overhead utility facilities to underground facilities;

Contributions to underground utility districts that are established on designated streets pursuant to Chapter 15.24 of the San José Municipal Code;

Payment of City expenses for staff, equipment, supplies and overhead associated with the establishment and administration of undergrounding projects eligible for funding under this Chapter or that are otherwise subject to contribution pursuant to Subsection B.4.;

Contributions to a revolving fund for the purpose of performing work pursuant to Section 15.24.170 of Chapter 15.24 of this Title, with such contributions not to exceed ten percent of the total fees collected under this Chapter; or

Payment to utility companies in connection with provision of underground service laterals to properties in designated underground utility districts, including a maximum of one hundred feet of electric service trenching and underground conductor (as measured from property line) as well as backfill, paving, and conduit.

C.

Nothing in this Chapter is intended to affect the amount of reimbursement which would otherwise be paid to utilities, under applicable laws, rules, regulations, and tariffs, for undergrounding of utilities.

(Ords. 23187, 28596, 30308.)

A.

The base undergrounding utility fee shall be three hundred ninety five dollars per linear foot of the project site frontage adjacent to a designated street or streets. A development project subject to this chapter shall be required to pay an undergrounding utility fee in the amount specified as follows:

Type of Project Percentage of Base Fee

New development or expansion or modification of existing use 100 resulting in fifty percent or greater increase in intensification of use

Expansion or modification of existing use resulting in increased 50 intensity of use by at least twenty- five percent, but less than fifty percent

Expansion or modification of existing use resulting in increased 25 intensity of use by more than five percent, but less than twenty-five percent

Expansion or modification of existing use resulting in increased 10 intensity of use by less than five percent

B.

The base undergrounding utility fee specified in Subsection A. above shall be adjusted annually by the Engineering News-Record Construction Cost Index or its equivalent and shall take effect on January 31 of every year.

(Ords. 23187, 25103, 28596.)

The following development projects are exempt from the provisions of this chapter:

A.

Projects for which street frontage is solely adjacent to a street or streets within an underground utility district established prior to July 1, 1988.

B.

Projects on a site for which a total of one hundred percent of the base fee has been paid as satisfaction of a condition or conditions imposed upon prior development on that site.

C.

Minor projects as defined in Section 15.26.040.

D.

Renewals of existing conditional use permits.

E.

Projects for which the director of public works determines underground installation of overhead utility facilities would be unreasonable or impractical due to physical constraints such as topography or soil conditions.

(Ords. 23187, 28596.)

At the discretion of the director of public works, a subdivision of land zoned for residential purposes may be exempted from the requirements of this chapter if the land is being divided into parcels larger than that appropriate for residential lots, and further subdivision of the property will be required prior to development of the land for residential purposes.

(Ords. 23187, 28596.)

All overhead utility facilities within newly constructed public streets shall be placed underground. No utility undergrounding fee shall be required for any frontage of a development project which is adjacent to a street which will be improved, including utility undergrounding, as a condition of such project.

(Ord. 23187.)

A.

When a project on property previously subject to a fee or fees for utility undergrounding is subject to a new fee under this chapter, the amount of the fee due shall be adjusted if necessary so that the total amount of fees to which the property has been subject does not exceed one hundred percent of the current base fee as set forth in the schedule of fees established by council resolution.

B.

If land for which a utility undergrounding fee has been paid becomes part of an improvement district for which improvements include the undergrounding of utilities adjacent to such land, such land shall receive a credit towards any assessment imposed thereon in an amount equal to the amount of the utility undergrounding fee paid prior to establishment of the improvement district. Funds in the amount of such credit shall be transferred from the utility undergrounding fund to the appropriate improvement district fund.

(Ords. 23187, 25103.)

Utility undergrounding fees paid to the city pursuant to this chapter may be refunded in whole or in part, upon a determination by the director of public works that:

A.

The fee or a portion thereof was collected in error;

B.

The condition of development approval requiring payment of the fee is amended after payment of the fee to provide that the fee is not required or the amount thereof is reduced; or

C.

Approval of the development project expires or is revoked, and no development thereunder has commenced prior to said expiration or revocation.

(Ord. 23187.)

At the discretion of the director of public works, approval of a development project may be conditioned upon actual undergrounding of overhead utility facilities on the street or streets adjacent to the project, rather than payment of fees pursuant to this chapter, if:

A.

The project applicant alone or together with owners of adjacent properties, has committed to establishment of a Cal. P.U.C. Rule 20B/Tariff Schedule Cal. P.U.C. No. A2, Rule No. 32, A.2 underground utility district which will cause undergrounding of all overhead utilities facilities in the street or streets adjacent to the project site; or

B.

The project applicant has requested to undertake actual undergrounding of all overhead utility facilities in the street or streets adjacent to the project site.

(Ords. 23187, 28596.)

A.

Any nonprofit organization, for which full payment in one lump sum of the utility undergrounding fee required by this chapter would cause financial hardship, may apply to the city council for permission to pay the utility undergrounding fee in installment payments.

B.

Such hardship application must be in writing and submitted to the director of public works within thirty calendar days after approval of the development permit containing the condition for payment of the utility undergrounding fee. The city council, in its sole discretion, may extend the thirty-day period.

C.

Applications for hardship installment payments shall be accompanied by evidence of the applicant's nonprofit status; proof of the applicant's ownership of the project site; a written statement of facts demonstrating the financial need of the applicant; and a written commitment by the applicant to repay the obligation.

D.

Upon receipt of a written application to pay the utility undergrounding fee in installments, the director of public works shall schedule a hearing on the request before the city council. The department of public works shall give no less than five days written notice of the time, date and place of the hearing to the applicant.

E.

After the hearing, if the council, in its sole discretion, finds that payment of the utility undergrounding fee in one lump sum would cause the applicant an extreme financial hardship, the council may approve an agreement with the applicant for installment payments.

F.

The city council may deny any application for installment payments for any reason including, but not limited to, the fact that the city has not budgeted and appropriated sufficient funds for the utility undergrounding planned for the fiscal year in which an application is submitted.

G.

For the purpose of this Section 15.26.190, the term "nonprofit organization" means an organization which is tax exempt under Section 501(c) and (d) of the federal Internal Revenue Code of 1986, as amended, but which is not an organization formed or existing primarily for political purposes.

(Ord. 24859.)

A.

Any grant of an application for installment payments shall contain a condition that the applicant enter into an installment payment agreement with the city.

B.

Installment payment agreements shall, at a minimum, contain the following terms and conditions:

The utility undergrounding fee shall be paid in installments on at least an annual basis.

The first installment shall be in the amount of twenty percent of the total utility undergrounding fee and shall be paid at the time the applicant executes the agreement. The remaining installment payments shall include interest at the rate determined by the city council to be in the public interest.

The agreement shall have a maximum term of five years for utility undergrounding fee amounts up to fifty thousand dollars, with up to one additional year for each additional five thousand dollars up to a maximum term of ten years.

The unpaid balance, including interest, shall constitute a lien on the property burdened by the utility undergrounding fee.

In the event that the applicant assigns, conveys, exchanges or otherwise transfers all or any part of applicant's interest in the property subject to the lien, whether voluntarily or involuntarily, all of the remaining unpaid balance including interest shall be due and payable prior to or simultaneous with such assignment, conveyance, exchange or other transfer.

C.

No more than one installment agreement entered into pursuant to this Section 15.26.200 shall be in effect at any time for any one parcel of property.

(Ord. 24859.)

The city clerk shall record the installment payment agreement with the Santa Clara County Recorder. The installment payment agreement shall constitute a lien on the property burdened by the utility undergrounding requirement until such time as all installment payments are paid in full by the applicant.

(Ord. 24859.)