Chapter 13.04 — GENERAL PROVISIONS AND DEFINITIONS

Sections:

Article 1. - General Provisions

This Title 13 of the Tracy Municipal Code may be referred to as the "Impact Fee Ordinance," and is adopted pursuant to Government Code sections 66000 et seq., (hereinafter "Mitigation Fee Act"). All words, phrases, and terms used in this title shall be interpreted in accordance with the definitions set forth in the Mitigation Fee Act, unless otherwise specifically defined herein.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

Pursuant to the Mitigation Fee Act and this title, the City has established fees which will be imposed upon development projects for the purpose of mitigating the impact that the development projects have upon the City's ability to provide specified public facilities.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

(a)

The fees imposed by the City pursuant to this title shall be used to pay for the cost of providing specified public facilities, as described in implementing resolutions.

(b)

As described in each implementing resolution, the specified public facilities will be categorized into separate and distinct sets of public facilities based upon the type of public facility to be provided, the geographical area served by the public facility, or other identifying features. Each separate set of specified public facilities described in an implementing resolution shall be referred to in this title as a "public facility category."

(c)

For each separate public facility category, a separate fee shall be calculated and imposed, and each separately imposed fee shall be collected by the City and deposited in a separate and distinct "fee fund," subject to the accounting requirements of the Mitigation Fee Act.

(d)

In order to more effectively mitigate the impact of new development, and maximize the use of fee revenues, fee revenues may be used as temporary loans from one fee fund to another fee fund only if the City Engineer finds all of the following, subject to the review and approval of the City Council:

(1)

Based upon planned phasing of the public facilities, and anticipated timing of fee revenues to be collected, it is in the City's best interests to allow the temporary loan.

(2)

The development projects which are required to pay fees to the fee fund from which the loan is made will receive a benefit from the use of the loan by the separate fee fund to which the loan is made.

(3)

All requirements of the Mitigation Fee Act have been satisfied, including a specification of the amount loaned, the date of repayment, and the interest rate to be paid. (§ 1, Ord. 975 C.S., eff. August 15, 1998)

Pursuant to the Mitigation Fee Act, for each public facility category, the City Engineer shall calculate the amount of the fee in an implementing resolution. The implementing resolution shall identify the findings required by the Mitigation Fee Act, including:

(a)

The purpose and use of the fee, including a description of the specified public facilities to be provided;

(b)

The geographical area of the development projects subject to the fee;

(c)

The type of development project to be developed within the identified geographical area;

(d)

The estimated reasonable cost of providing the specified public facilities for which the fee is imposed;

(e)

The reasonable relationship between the fee's use and the type of development project on which the fee is imposed;

(f)

The reasonable relationship between the need for the specified public facilities and the type of development project within the specified geographical area;

(g)

The reasonable relationship between the amount of the fee and the cost of the specified public facilities attributable to the development project on which the fee is imposed.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

For each public facility category, the City Engineer shall calculate the total program costs which shall be equal to the estimated reasonable cost of providing the specified public facilities for which the fee is imposed, and which shall be incorporated into each implementing resolution. The total program costs shall be comprised of the following components:

(a)

Estimated construction costs of all public facilities as determined by the City Engineer;

(b)

Estimated design costs in an amount specified in each implementing resolution;

(c)

Estimated construction management costs in an amount specified in each implementing resolution;

(d)

Estimated land acquisition costs in an amount specified in each implementing resolution;

(e)

Estimated program implementation costs in an amount specified in each implementing resolution;

(f)

Contingencies in an amount specified in each implementing resolution.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

13.04.060 - Amount to be paid and timing of payment.

(a)

The fee to be paid for each lot within a development project shall be the amount of the fee in effect, pursuant to implementing resolution, at the time that full payment is made to the City. The fee for each lot within a development project shall be paid in-full prior to the issuance of any building permit, unless otherwise authorized by the Mitigation Fee Act.

(b)

In the event that a partial fee payment is made for any lot, the full fee to be paid for that lot 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 partial payment.

(c)

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

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

The City shall update and adjust each fee on an annual basis, as authorized and required by the Mitigation Fee Act. The fee in effect at the time any Subdivider 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 criteria set forth in subsections (a) through (c), of this section. For the purpose of this section, the term "specified public facilities," as defined in section 13.04.090, is limited to the specified public facilities to be designed and constructed in accordance with the City regulations in effect at the time the relevant Subdivider has obtained a vested development right.

(a)

Adjustments in the amount of the estimated construction costs of providing the specified public facilities based upon adjustments in the ENR. In addition to ENR adjustments which are calculated in the implementing resolution, each implementing resolution may include an automatic semi-annual adjustment based upon ENR. Any such automatic adjustment shall be effective as of the date reported at a regular meeting of the City Council.

(b)

Adjustments to replace estimated costs with actual costs of providing the specified public facilities.

(c)

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

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

Each Subdivider is hereby notified, pursuant to Government Code section 66020, including section 66020(d)(1), that the ninety (90) day approval period (in which the Subdivider may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project) shall begin on the date that the development project is approved or conditionally approved. If the Subdivider fails to file a protest within the ninety (90) day period, complying with all of the requirements of Government Code section 66020, the Subdivider will be legally barred from later challenging any such fees, dedications,

reservations, or other exactions. These protest procedures shall only apply to the fees, dedications, reservations, or other exactions which have been determined in accordance with this title, and each respective implementing resolution.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

Article 2. - Definitions

13.04.090 - Definitions.

As used in this title:

"City Engineer" means the City Engineer of the City of Tracy, or any person designated by the City Manager or City Engineer to perform the functions of the "City Engineer" specified in this title.

"City regulations" means all written laws, rules, and policies established by the City, including those set forth in the Tracy Municipal Code, ordinances, resolutions, policies, procedures, and the City's Design Documents (including the Standard Plans, Standard Specifications, Design Standards, and relevant Public Facility Master Plans).

"Development project" means any project undertaken for the purpose of development, as defined in the Mitigation Fee Act, and shall specifically include any tentative parcel map, tentative subdivision map, final parcel map, final subdivision map, preliminary development plan, final development plan, or building permit.

"ENR" means the Construction Cost Index for San Francisco published in the Engineering News Record (McGraw-Hill, Inc., publisher); or, if the index is no longer published, an index determined by the City Engineer to be a recognized standard of the construction industry.

"Fee" means a monetary exaction, other than a tax or an assessment, imposed in connection with approval of a development project for the purpose of defraying all or a portion of the cost of providing public facilities related to the development project, as more specifically defined in the Mitigation Fee Act.

"Fee fund" means each of the separate and distinct funds into which fees for each public facility category are deposited.

"Impact fee ordinance" means Title 13 of the Tracy Municipal Code.

"Implementing Resolution" means a resolution of the City Council of the City of Tracy in which the findings specified in sections 13.04.040 and 13.04.050 are made for each public facility category.

"Lot" means an individual undivided parcel of real property described on a final subdivision map or final parcel map approved by the City.

"Mitigation Fee Act" means California Government Code sections 66000 et seq.

"Program" means all of the public facilities to be provided in any given public facility category.

"Public facility" means public improvements, public services, and community amenities, as defined by the Mitigation Fee Act, including, but not limited to: roadways (including streets, traffic signals, and other public right-of-way improvements), storm drainage, water (including supply, treatment, and distribution), wastewater (including collection and treatment), parks, public buildings, parking lots, and other improvements or services identified in implementing resolutions adopted pursuant to this title.

"Public facility category" means a separate and distinct set of public facilities as defined by section 13.04.030(b).

"Specified geographical area" means the area within which development projects are subject to a fee, as identified in each implementing resolution.

"Specified public facility" means those public facilities described in each implementing resolution, the total program costs of which are used as the basis for the calculation of a fee.

"Subdivider" means a person, or other legal entity, who applies to the City to divide or cause to be divided real property into a development project, or who applies to the City to develop or improve (into a development project) any existing parcel of real property.

"Total program costs" means those costs described in section 13.04.050.

"Vested development rights" means a Subdivider's right to proceed with development of a development project in substantial compliance with the local ordinances, policies, and standards in effect at the time that the rights vest, as the term is defined in the vesting tentative map statutes (Government Code sections 66498.1 —66498.9), development agreement statutes (Government Code sections 65864 — 65869.5), and state law.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)

Chapter 13.08 - CREDITS AND REIMBURSEMENTS

Sections:

Article 1. - Credits

13.08.010 - Application for potential credit.

A Subdivider may be eligible for a fee credit or reimbursement, pursuant to this chapter, only if the Subdivider submits a written request to the City Engineer which establishes compliance with all of the following requirements to the satisfaction of the City Engineer:

(a)

Describe the specified public improvements to be constructed by the Subdivider;

(b)

Identify the components of the total program costs (construction, design, construction management and/or land acquisition, pursuant to section 13.08.020) for which the Subdivider is requesting credit;

(c)

Describe the development project or projects to which the credit is requested to apply. The description shall either: (1) be limited to the development project for which specified public improvements are a condition of approval; or (2) document that the development projects for which credit is requested to apply: (i) receive a benefit from the specified public improvements, and (ii) do not create the need for the construction of additional program improvements to which the credited fees would apply;

(d)

Document that either: (1) the Subdivider is required, as a condition of approval for the development project, to construct the specified public facilities; or (2) the Subdivider requests to build one or more specified public facilities which benefit the development project, and the City Engineer determines in writing prior to the commencement of construction that it is in the City's best interests for the specified public facilities to be built by the Subdivider, and the land on which the specified public facilities are to be built is either owned by, or offered for dedication to, the City through a recorded document;

(e)

Document that either: (1) the City has approved the design of the specified public facilities with approved improvement plans; or (2) the Subdivider has submitted a timely written request to design the specified public facilities, pursuant to section 13.08.010(j), and the proposed design is in the best interests of the City;

(f)

To the extent that credit for land acquisition costs are requested, document that: (1) the terms of acquisition are in the best interests of the City; (2) the amount of credit for the land acquisition is equal to a reasonable estimate of the fair market value of the land based upon either: (i) documentation provided by the Subdivider to the City, or (ii) in the event that the City Engineer determines that the documentation provided by the Subdivider does not provide a reasonable basis for determining the fair market value of the land, the Subdivider shall pay for the costs of a property appraisal by an expert selected by the City Engineer which is qualified to express an opinion as to the value of the property (pursuant to Code of Civil Procedure section 1255.010); and (3) prior to allocation of credit by the City, the Subdivider will transfer the real property to the City in a form acceptable to the City Engineer;

(g)

Document that, prior to the allocation of credit by the City, the Subdivider shall enter into a written agreement with the City by which the Subdivider agrees to construct the specified public facilities in return for the potential credit to be allocated in accordance with this title;

(h)

Document that the Subdivider will, prior to the allocation of credit by the City and before beginning construction, either: (1) provide improvement security (in a form acceptable to the City pursuant to Title 12 of the Tracy Municipal Code); (2) finance the specified public facilities by cash, assessment district, or Mello-Roos Community Facilities District; or (3) a combination of the above;

(i)

The Subdivider shall pay: (1) the City plan check fee (only if the Subdivider receives City approval for design credit); and (2) the City inspection fee. The amount of the plan check and inspection fees for the specified public improvements for which the Subdivider receives credit shall be in accordance with City regulations;

(j)

The request shall be submitted by the Subdivider to the City Engineer in accordance with the following timing requirements: (1) to the extent that the Subdivider requests credit for design, the request shall be submitted prior to the commencement of any design services by the Subdivider; and (2) to the extent that the Subdivider requests credit for construction, contract management, or land acquisition, the request shall be submitted concurrently with the submittal of improvement plans. In any event, all requests submitted pursuant to this section shall be submitted prior to the recordation of the final map or parcel map for the development project; provided that a Subdivider may submit a late application if the Subdivider pays a processing fee established in accordance with City regulations to cover the City's reasonable costs associated with administering the late application.

(§ 1, Ord. 975 C.S., eff. August 15, 1998)