Chapter 12.30
TRAFFIC IMPACT FEE ON DEVELOPMENT
Sections:
12.30.010 Intent and purpose.
12.30.020 Additional findings.
12.30.030 Terms and definitions.
12.30.040 Applicability.
12.30.050 Rate of fee.
12.30.060 Amount of fee.
12.30.070 Payment of fee.
12.30.080 Credit and reimbursement.
12.30.085 Repealed.
12.30.090 Exemptions.
12.30.100 Use of funds.
12.30.110 Refunds.
12.30.120 Appeals.
12.30.130 Supplementary provisions.
12.30.140 Severability.
12.30.010 Intent and purpose.
The City Council finds that as a result of increasing regional growth, significant residential, commercial and industrial development is expected to occur within the City. This anticipated development, including development currently approved or submitted for approval, cumulatively will generate a substantial increase over existing levels of traffic within the City. This increase in traffic will result in traffic volumes which exceed the capacity of the existing citywide circulation system to provide acceptable levels of service.
The City Council also finds that unless certain actions are taken, the above factors will result in adverse impacts such as unacceptable levels of congestion on Interstate-580, State Route 84, city streets and at intersections; traffic accidents; air pollution; noise; and restrictions on access for emergency vehicles. To prevent these undesirable consequences, the capacity of the citywide circulation system must be built out at a rate which will accommodate the expected growth in the City and a transportation systems management program must be adopted and implemented to reduce the traffic generated by future development.
The City Council also finds that, in the absence of this chapter imposing a traffic impact fee, existing and future sources of revenue will be inadequate to fund a substantial portion of the circulation system improvements identified in the circulation element (including a transportation systems management program) which are necessary to avoid unacceptable levels of congestion and related adverse impacts created by expected development within the City.
Accordingly, it is the intent of the City Council to adopt by this chapter a fair and equitable method of securing some of the revenues necessary to fund the construction and implementation of improvements to the citywide circulation system sufficient to accommodate the traffic volumes generated by new development and preserve acceptable levels of service throughout the City. In furtherance thereof, the City has commenced a review of the existing circulation element for the purpose of determining the need for improvements to the citywide circulation system in addition to those identified in the existing circulation element. If, upon completing its review the City determines to amend its circulation element, this chapter may be revised if necessary to reflect the needs identified in the amendment. (Ord. 2065 § 1(A), 2018; Ord. 1601 § 1, 2000; Ord. 1408 § 1, 1993; Ord. 1262 § 1, 1988)
12.30.020 Additional findings.
The City Council further finds as follows:
A. The land use element of the Livermore Community General Plan specifies the permitted uses of land within the City and places limits on the intensity and density of such use.
B. The City Council has examined the relationship between the land uses and densities permitted under the general plan and the rate and amount of actual development of property within the City. Based upon this examination, the City Council has identified trends in growth and development which enable the Council to project, with substantial certainty, the magnitude and extent of future development based upon the City’s general plan.
C. The City Council has also examined the extent to which different land uses generate vehicle trips. The City Council, in evaluating these trip generation rates, has taken into consideration, among other things, the Traffic Impact Fee (TIF) and Nexus Report Amended January, 2005, prepared by Mark Thomas and Company, Inc. and TJKM Transportation Consultants. The study and report identified trip generation rates for the various land use categories designated in the land use element of the City’s general plan. The City Council finds that these trip generation rates represent a reasonable estimate of the actual trip generation rates for the various land use categories identified in the land use element. The study and report considered the impact on the citywide circulation system of regional traffic generated by development outside the City. The impact of regional traffic on the City’s transportation system has been determined and the cost to mitigate the impact of regional traffic on the City’s transportation system has been excluded from the traffic impact fee program.
D. The circulation element identifies certain major street and interchange improvements, grade separations and bridges and other traffic-related improvements which are necessary or appropriate to accommodate new development in accordance with the land use element of the City’s general plan. The Livermore General Plan and Downtown Specific Plan Final Environmental Impact Report dated September 2003, prepared by LSA Associates, Inc., indicates that build-out of the development permitted under the general plan will result in unacceptable levels of service at about 43 percent of the key intersections identified in the report, unless mitigated by roadway and intersection improvements. The City Council finds that this level of congestion will have adverse effects throughout the City and that implementation of the circulation element will substantially reduce these adverse effects.
E. Full implementation of the circulation element will require the construction of major improvements to the existing citywide circulation system, and the adoption and implementation of a transportation systems management program. The City Council has, after review of all relevant information, determined the estimated reasonable cost of those improvements and estimated funds available to make such improvements, as well as the extent to which funding is inadequate to make the necessary improvements.
F. The City Council, in determining the extent to which funds are available to make roadway and transit improvements, has evaluated present and future sources of federal, state and county funding, city revenues which are earmarked for roadway-related improvements, and the extent to which committed projects are required to construct or fund roadway and transit improvements that will assist in the implementation of the circulation element and the construction or provisions of circulation system improvements. The City is committed to actively pursuing all available funding sources for circulation system improvements, in cooperation with interested members of the development community.
G. Although the traffic volume generated by an individual development project may not be, in and of itself, sufficient to overload the existing citywide circulation system, the cumulative impact of all new development permitted under the City’s general plan (including development currently approved or submitted for approval) will result in unacceptable levels of traffic congestion. Implementation of the City’s circulation element will result in a significant reduction in the level of traffic congestion generated by new development. It is the policy of the City, as set forth in the circulation element, that new development pay for the cost of the improvements to the citywide circulation system which are identified in the circulation element and necessary to accommodate the traffic volumes generated by new development. For these reasons, a fair and equitable method of securing some of the revenues necessary to construct the required circulation system improvements is to impose a traffic impact fee based on the extent to which new development generates additional traffic volumes.
H. The roadway and transit improvements that will be constructed or implemented with funds generated by this chapter will significantly benefit the contributor in that the adverse impacts, such as noise, air pollution, delay, accidents, increased fuel consumption, harm to the local economy, and inconveniences caused by traffic congestion will be substantially mitigated. The inability or failure to reduce the adverse impacts caused by traffic congestion in all parts of the City will have adverse effects throughout the City.
I. The City Council further finds that the traffic fees to be charged pursuant to this chapter do not exceed the estimated reasonable cost of implementing the circulation element, that implementation of the circulation element is necessary to reduce the traffic congestion which will be created by new development, and that the method of allocation adopted by this chapter which is based upon the trip generation rates for the land uses permitted under the City’s general plan assures that the fee applicable to a particular development bears a fair and reasonable relationship to each such development’s burden on, and benefit from, the citywide circulation system improvements to be funded by this chapter.
J. Periodic review, and possible revision, of the resolutions adopted by the City Council pursuant to this chapter will allow for the adjustment of the fees to be paid under this chapter to ensure that those fees are fair and equitable and that the traffic fees imposed pursuant to this chapter continue to reflect the reasonable cost of implementing the circulation element. (Ord. 2065 § 1(A), 2018; Ord. 1765 § 11, 2005; Ord. 1742 § 1, 2004; Ord. 1601 § 2, 2000; Ord. 1262 § 1, 1988)
12.30.030 Terms and definitions.
For the purposes of this chapter, the following terms shall have the meanings indicated in this section:
A. “Average trip cost” means the cost per peak hour trip as determined in accordance with LMC 12.30.050.
B. “Circulation element” means the text and maps of the circulation element of the City’s general plan, as the same may be amended from time to time by the City Council in accordance with Government Code Section 65358.
C. “Circulation system improvements” means those improvements necessary to complete the freeway, highway, major and collector street, intersection, and interchange improvements identified in the circulation element, including paving, curb and gutter, sidewalks, medians, landscaping, drainage facilities, traffic signals, street lighting, noise walls, rights-of-way, public park and ride facilities, bicycle paths, public transit, bridges, grade separations, downtown parking facilities, and other improvements in connection therewith, which are not otherwise provided by, or required of, development within the City pursuant to LDC Part 10 (Subdivision Ordinance), the Livermore Development Code, as amended, or LMC Title 15, Buildings and Construction, and the adoption and implementation of a transportation systems management program. Circulation system improvements also shall include the architectural, administrative, engineering, legal, planning, environmental and other services required in connection with the implementation of this chapter and the construction of the foregoing major street and interchange improvements.
D. “Developer” means an individual or entity submitting an application for a building permit or other entitlement for development.
E. “Development” means:
1. Any new construction, or any addition, extension, or enlargement of an existing structure or unit, which includes any dwelling units for residential use or any gross floor area of commercial or industrial use; and
2. Any conversion or change in use of an existing structure requiring City approval, including a building permit, which would result in an increase or change in the peak hour trip rate otherwise applicable to such existing structure.
F. “Future growth” means the total amount of potential new development in the City permitted under the general plan. Future growth is expressed in terms of gross square footage for industrial and commercial development and in terms of the number of dwelling units for residential development.
G. “Gross floor area” means the sum of the square footage of the floor area at each floor level included within the surrounding principal outside faces of exterior walls of a building or portions thereof, including mezzanines and lobbies, exclusive of floor area devoted to vehicle parking. The gross floor area of a building, or portions thereof, not provided with surrounding exterior walls, shall include the usable area under the horizontal projection of the roof or floor above.
H. “Land use category” means any of the following specific land uses:
1. Residential:
a. “Single-family residence” means a detached unit where no more than one unit exists on a parcel. A couplet or zero lot line dwelling unit where no more than one vertical wall is shared and each couplet/zero lot line dwelling is located on its own parcel is considered a single-family residence.
b. “Multiple-family residence” means a dwelling unit where more than one unit exists on a parcel, whether attached or detached. This includes duplexes through four-plexes, condominiums, mobile homes and apartments with five or more units. An attached dwelling unit where more than one vertical wall is shared with another dwelling unit (i.e., townhouse) is considered a multiple-family residence, even if each unit is located on an individual parcel. “Bedroom” means a room in a residential dwelling unit that has the potential to function as a bedroom in that there is a door or doorway which separates the room from communal areas (hallway, living room, kitchen), and it has a minimum floor area of 70 square feet and a minimum dimension of seven feet in any one direction.
c. “Senior housing” means any single-family or multifamily residence that is restricted to persons age 62 or older through covenants or deed restrictions.
2. Commercial: retail.
3. Office: office.
4. Industrial.
a. Manufacturing, research and development center;
b. Mini-storage;
c. Warehouse, meaning an indoor storage and distribution facility: (i) with a maximum of 15 percent office/business use; and (ii) having parking at a maximum of one space per 250 square feet of office/business use and one space per 1,000 square feet of warehouse use.
5. Lodging:
a. Hotel/motel.
I. “Net circulation improvement costs” means the costs determined in accordance with LMC 12.30.050.
J. “Peak hour trip” means a one-way vehicle trip measured during the hour of peak traffic volume occurring between 7:00 a.m. and 9:00 a.m. (a.m. peak) or a one-way vehicle trip measured during the hour of peak traffic volume occurring between 4:00 p.m. and 6:00 p.m. (p.m. peak).
K. “Peak hour trip rate” means the average number of peak hour trips generated by a land use category per unit of development during the a.m. peak and the p.m. peak traffic hours. The peak hour trip rate for each land use category shall be as set forth by resolution of the City Council as that resolution may be amended from time to time pursuant to LMC 12.30.050.
Notwithstanding the foregoing, where applicable, the term “peak hour trip rate” means the rate established by the city engineer in accordance with LMC 12.30.060.
L. “TIF estimate” means the value of TIF-related improvements to be constructed by a developer for a particular development project. (See LMC 12.30.080(B).)
M. “Unit” means an individual tenant space within a structure when that space has an individual address. (Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 18), 2010; Ord. 1765 § 12, 2005; Ord. 1742 § 2, 2004; Ord. 1676 § 1, 2002; Ord. 1601 § 3, 2000; Ord. 1408 § 52, 1993; Ord. 1262 § 51, 1988)
12.30.040 Applicability.
Except as otherwise expressly provided in this chapter, this chapter applies to, and the traffic impact fee required under this chapter is payable with respect to:
A. Each development within the City for which a building permit or other entitlement for development is issued on or after the effective date of the ordinance codified in this chapter; and
B. Each development within the City for which a building permit or other entitlement for development is issued before the effective date of the ordinance codified in this chapter which permit or entitlement was issued subject to a condition requiring the developer to pay a traffic impact fee to be imposed upon all new residential, commercial and industrial development within the City. (Ord. 2065 § 1(A), 2018; Ord. 1408 § 3, 1993; Ord. 1262 § 1, 1988)
12.30.050 Rate of fee.
The rate of the traffic impact fee shall be calculated in accordance with the procedure set forth in this section and shall be established by resolution of the City Council, and adjusted, as follows:
A. Establishment of the Rate. The City Council shall establish the rate of the traffic impact fee by dividing the net circulation improvement costs by the average of the total additional a.m. and p.m. peak hour trips generated by future growth. The City Council may review and make adjustments to the net circulation improvement costs and total peak hour trips as necessary. The net circulation improvements and total peak hour trips shall be determined as follows:
1. Net Circulation Improvement Costs.
a. The City Council shall determine the circulation system improvements which are necessary to implement the circulation element and reduce the adverse impacts caused by the increased traffic volume generated by future growth. For purposes of determining the amount of the net circulation improvement costs, the City Council shall not include the cost of circulation system improvements required of development within the City pursuant to LDC Part 10 (Subdivision Ordinance), the Livermore Development Code, as amended, or LMC Title 15, Buildings and Construction. Such improvements, and fees and dedications in addition to or in lieu thereof, shall continue to be imposed in accordance with LDC Part 10 (Subdivision Ordinance), the Livermore Development Code, and LMC Title 15, as appropriate, in addition to the traffic impact fees imposed pursuant to this chapter.
b. The City Council shall make a reasonable estimate of the total costs necessary to construct or provide the circulation system improvements.
c. The City Council shall estimate the current and anticipated funding available to satisfy the costs of constructing and implementing the circulation system improvements. In determining the amount of available funding, the City Council shall include funding from other governmental entities to the extent the receipt by the City of such funding is reasonable, and city revenues appropriated for construction or implementation of circulation system improvements, if any.
d. The City Council shall determine the difference, if any, between the estimated costs of construction and implementation of the circulation system improvements and the estimated funding available therefor. The extent to which the cost of such construction and implementation exceeds the funds available, or expected to be available, therefor shall be the “net circulation improvement costs.”
2. Total Peak Hour Trips.
a. The total gross square footage or dwelling unit count, as the case may be, of potential new development in each land use category as projected to occur during the period of build-out under the general plan shall be multiplied by the peak hour trip rate for each land use category established in LMC 12.30.030(K).
b. The peak hour trips generated by potential new development within each land use category as determined pursuant to subsection (A)(2)(a) of this section shall be added together to determine the total additional peak hour trips created by new development which the City’s circulation system must accommodate upon build-out under the general plan.
B. Annual Adjustment. Once the fee is established, it shall automatically be increased annually based upon the Engineering News Record (ENR) 20-City Construction Cost Index for the construction portion of the fee and the Bay East Association of Realtors median home price for the land portion of the fee. (Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 19), 2010; Ord. 1765 § 13, 2005; Ord. 1742 § 3, 2004; Ord. 1489 § 1, 1996; Ord. 1408 § 4, 1993; Ord. 1262 § 1, 1988)
12.30.060 Amount of fee.
A.1. Each developer, before obtaining a building permit or other entitlement for development, shall file with the city engineer, on such forms as the city engineer may develop, a report indicating the number of dwelling units or the gross floor area, as appropriate, in the development, and the extent of any proposed credits or in-lieu contributions as provided by this chapter.
2. Concurrently with the submission of the report, a developer may apply for a determination of the traffic impact fee based upon a peak hour trip rate substantially different from that established by resolution under LMC 12.30.030(K). Such application shall include a traffic study contracted for by the City and paid for by the developer, or such other reports or analyses in lieu thereof as the city engineer determines are sufficient to establish the peak hour trip rate applicable to the development. The developer may also submit additional information which the city engineer shall consider insofar as he determines it to be relevant to establishing the peak hour trip rate applicable to the development, including, but not limited to, information contained in the Trip Generation Manual adopted by the Institute of Transportation Engineers. The city engineer, based upon his review and consideration of the information provided in the foregoing studies, reports or analyses, and such other information as she or he may deem relevant, may approve a peak hour trip rate for the development which is different from that set forth in LMC 12.30.030(K).
B. The amount of the traffic impact fee required of the development shall be determined by the city engineer in accordance with this subsection:
1. Residential Development. The average trip cost shall be multiplied by the number of peak hour trips generated by the development based upon the total number of dwelling units in the development and the applicable peak hour trip rate for residential development, as established in LMC 12.30.030(K) or by the city engineer in accordance with subsection A of this section, as the case may be.
2. Commercial, Office and Industrial Development. The average trip cost shall be multiplied by the total number of peak hour trips generated by the development based upon the square footage of the gross floor area of such development and the applicable peak hour trip rate for commercial or industrial development established in LMC 12.30.030(K) or by the city engineer in accordance with subsection A of this section, as the case may be.
3. Lodging. The average trip cost shall be multiplied by the number of peak hour trips generated by the development based upon the total number of rooms for rent in the development and the applicable peak hour trip rate for lodging, as established in LMC 12.30.030(K) or by the city engineer in accordance with subsection A of this section, as the case may be.
C. For development consisting of an addition, extension, or enlargement of an existing structure or unit, the traffic impact fee shall be paid only on any additional dwelling units or additional gross floor area resulting from such addition, extension, or enlargement.
D. For development consisting of a conversion or change in use of an existing, repaired or rebuilt structure or unit which increases the peak hour trip rate, the traffic impact fee shall be the difference between the fee applicable to the entire structure or unit for the new use and the fee applicable to the entire structure or unit for the prior use.
E. Structures or units that contain mixed office and industrial uses shall be charged at a blended rate that is based upon the percentage of the uses, under one of the following six tiers:
1. Tier 1 – 30 percent or less office: the industrial rate is charged.
2. Tier 2 – 30.01 to 40 percent office rate equals (office rate – industrial rate)(.125) + industrial rate.
3. Tier 3 – 40.01 to 50 percent office rate equals (office rate – industrial rate)(.375) + industrial rate.
4. Tier 4 – 50.01 to 60 percent office rate equals (office rate – industrial rate)(.625) + industrial rate.
5. Tier 5 – 60.01 to 70 percent office rate equals (office rate – industrial rate)(.875) + industrial rate.
6. Tier 6 – 70.01 percent or more office: the office rate is charged.
F. Structures or units that contain mixed residential and commercial or office uses shall be charged at separate rates based on each use. The residential portion of the development shall be charged based on the number of dwelling units and the commercial or office portion shall be charged based on the gross floor area of the use.
G. The amount of the traffic impact fee determined in accordance with subsection B of this section shall be reduced by the amount of any credits or in-lieu contributions authorized by LMC 12.30.080.
H. The developer shall be notified in writing of the city engineer’s determination of the fee applicable to the development. Such determination shall be made within 30 days of the date the city engineer receives the report and other materials required by subsection A of this section. The developer may appeal the determination of the city engineer to the City Council in accordance with the provisions of LMC 12.30.120. (Ord. 2065 § 1(A), 2018; Ord. 1742 § 4, 2004; Ord. 1676 § 2, 2002; Ord. 1408 § 5, 1993; Ord. 1262 § 1, 1988)
12.30.070 Payment of fee.
The full amount of the traffic impact fee determined in accordance with LMC 12.30.060 shall be paid at the times set forth in this section:
A. Residential Development.
1. 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:
a. 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
b. For residential development consisting of more than one dwelling unit, at the discretion of the city engineer:
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 as provided in subsection C of this section.
2. Notwithstanding the provisions of subsection (A)(1) of this section, the city engineer may require the payment of the fees imposed under this chapter before a building permit is issued, where:
a. The city engineer determines that such fees will be collected for the purpose of defraying the actual or estimated cost of constructing circulation system 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
b. The fees are to reimburse the City for expenditures previously made for the construction of circulation system improvements.
B. Nonresidential Development. The developer shall pay the traffic impact fee at one of the following times, at the developer’s option:
1. Before the issuance of the building permit;
2. Before the first certificate of occupancy is issued, or within two years, whichever is sooner, subject to the requirements of subsection C of this section; or
3. For the developer of an industrial property, by paying the fee at 20 percent each year, over five years. Under this alternative, the developer shall post a letter of credit, in a form approved by the City Attorney, for: (a) the full amount of the fee; plus (b) a two percent administrative charge; plus (c) interest for the projected unpaid balance over the five years. The interest rate shall not exceed the interest rate established in the California Government Code. The developer shall replace the letter of credit each year to add the annual fee increase represented by the Engineering News Record (ENR) 20-City Construction Cost Index, for the cost of construction of facilities; and the median home price as reflected in the Bay East Association of Realtors report, for the value of land.
C. Written Agreement. If an owner or developer 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 and record the agreement with the Alameda County recorder.
1. Contents of Agreement. The agreement shall be signed by the property owner and shall include the following provisions, in a form prepared by the City Attorney:
a. A legal description of the property;
b. A provision that the agreement runs with the land and is enforceable against successors in interest;
c. The agreement shall be recorded in the grantor-grantee index in the name of the City as grantee and in the name of the property owner as grantor;
d. A provision that the owner shall pay the fee before a certificate of occupancy is issued, or within two years, whichever is sooner. For a residential development, it shall include additional details regarding payment, under subsection (A)(1)(b) of this section;
e. The amount of the fee due at the time of the agreement;
f. Provision that the amount of the fee due will be the amount of the fee due on the date of the agreement plus a periodic increase based on the Engineering News Record (ENR) 20-City Construction Cost Index. The amount of any fee paid more than two years after the date of the building permit is the amount of the fee in effect when the fee is paid; and
g. A requirement that, with the opening of any escrow for the sale of the property, the property owner provide appropriate notification and escrow instructions that the fee be paid to the City from the sale proceeds in escrow before disbursing proceeds to the seller.
2. Release of Obligation. When the obligation is paid in full, the City shall record a release of the obligation.
3. Authorization. The Community Development Director is authorized to sign the agreement and the release of obligation under subsections (C)(1) and (2) of this section.
D. Compliance. No city official or agency may issue a building permit, certificate of occupancy, or certify final inspection, as the case may be, for a development until the traffic impact fee with respect to such development required by this chapter is paid in accordance with this section.
E. Prepayments. The City does not accept prepayments of the traffic impact fee, unless prepayment is authorized in a development agreement.
F. Deferred Fee Program. The City Council may, by resolution, adopt administrative guidelines to provide a special fee deferral program in response to unprecedented conditions such as extraordinary economic changes. (Ord. 2065 § 1(A), 2018; Ord. 2045 § 1(B), 2016; Ord. 2016 § 1(B), 2015; Ord. 1879 § 4, 2009; Ord. 1765 § 14, 2005; Ord. 1680 § 1, 2002; Ord. 1408 § 6, 1993; Ord. 1262 § 1, 1988)
12.30.080 Credit and reimbursement.
A. Eligibility.
1. General. A developer may be entitled to credit or reimbursement, or both, as provided in this section. This opportunity applies to:
a. A developer who constructs a public improvement which would otherwise be constructed using traffic impact fee funds; or
b. A developer who contributes land or funding, or both, toward such a public improvement, and whose contributions exceed his or her obligations by $5,000,000 or more.
2. Requirements. To be eligible for credit or reimbursement, all of the following must be satisfied:
a. The proposed construction work must be a public improvement which would otherwise be constructed by the City using traffic impact fee funds. The improvement must be on the list of proposed traffic impact fee projects approved by the City Council.
b. The land on which the work is done must be either owned by the City or be the subject of a recorded offer of dedication to the City.
c. The developer must enter into a subdivision agreement or other written agreement with the City before beginning construction of the improvement. The agreement shall comply with subsection C of this section. Within the limits of this section, the developer may determine the allocation of credits and reimbursements. If the developer’s contribution exceeds $5,000,000 as provided under subsection (A)(1)(b) of this section, the agreement must be a development agreement or a disposition and development agreement.
B. Calculation of TIF Estimate for Credit or Reimbursement.
1. General. The TIF estimate is the value of TIF-related improvements for a particular development project. The TIF estimate is an amount established by the City, based on estimates from the developer’s engineer (and approved by the city engineer) as to the portion of the improvements attributable to the TIF. It is made at the time credits or reimbursement, or both, are established and are incorporated into the agreement. It is not the actual construction cost of the improvements.
2. Calculation. The city engineer shall calculate the TIF estimate based upon the approved improvement plans and using the city engineer’s TIF unit prices (based on the unit prices reflected in the latest studies and reports referred to in LMC 12.30.020(C) and on recent city project bids for similar work), unless the rate has been otherwise established by development agreement or disposition and development agreement. The cost of right-of-way to be purchased shall be based on an appraisal done by a licensed appraiser at city expense (unless the rate has been otherwise established by development agreement or disposition and development agreement). The TIF estimate includes construction costs and the cost of engineering and inspections. For nonstandard improvements, the credit is calculated based on information provided by the developer (such as bids or other documents verifying costs) for the city engineer’s review and approval, unless the City is constructing the project and then the cost is established by the engineer’s estimate unless otherwise agreed to in a development agreement or disposition and development agreement.
3. Excluded Costs. The calculation of costs is based only on work which is eligible for credit under subsection A of this section. No credit is given for the cost of constructing improvements otherwise required under LDC Part 10 (Subdivision Ordinance), the Livermore Development Code, or LMC Title 15, Buildings and Construction.
4. Assessment Districts, Benefit Areas and Community Facilities Districts. If development occurs within an assessment district, fee benefit area, community facilities district, or otherwise is subject to an assessment, fee or special tax collected specifically to defray the costs of providing or constructing circulation system improvements, the amount of credit for these improvements shall not be more than that portion of the estimated construction cost of the TIF improvements included in the assessments, fees or special taxes which will be contributed by the development. (Additional circulation system improvements that are constructed but are not subject to or financed by assessment fees or special assessments are not subject to this limitation.)
C. Written Agreement.
1. General. Before the beginning of construction of a TIF improvement, the developer and the City must have entered into a subdivision improvement agreement or other written agreement regarding TIF credit and reimbursement. If the developer is not the property owner, the property owner must also sign the agreement. The agreement shall be recorded before any lot in the subdivision is sold.
2. Contents of Agreement. The agreement shall include:
a. The developer’s obligation to have improvement plans reviewed and approved by the City, unless the City is constructing the project;
b. The TIF estimate (the total amount of credit and/or reimbursement which will be given), stated in current dollars;
c. When credits will apply and the time and manner of reimbursement under subsection (E)(4) of this section, if reimbursement applies;
d. The lots to which the credits will apply, at the developer’s option. The portion attributed to each lot cannot be greater than the approximate amount of the TIF which would apply to that lot;
e. If reimbursement applies, who is entitled to the reimbursement, at the developer’s option; and
f. The amount of security required to be provided to the City concurrently with the signing of the agreement.
D. Credit. Unless specified otherwise in an agreement, credit is granted at the time the traffic impact fee is due for a particular lot, under LMC 12.30.070, and in the amount specified in the agreement. The credit runs with the land. The credit is established on a square foot basis (for office, commercial or industrial) or a unit basis (residential or hotel).
E. Reimbursement.
1. General. When the TIF estimate for improvements to be constructed or prepaid by the developer or for land contributed by the developer exceeds the amount of the traffic impact fee to be owed, the developer is eligible for reimbursement from the traffic impact fee fund.
2. Amount of Reimbursement. The city engineer shall determine the exact amount of reimbursement at the time of the agreement (as provided in subsection B of this section). The credit plus reimbursement will equal the TIF estimate. The amount of reimbursement is adjusted annually based on the Engineering News Record (ENR) 20-City Construction Cost Index.
3. Reimbursement Set Aside. The City shall set aside a percentage of the traffic impact fees collected to be used for reimbursement purposes. The percentage set aside shall be:
a. Pool 1. Between 15 and 30 percent of fees collected for that year, at the City Council’s discretion, shall be set aside in Pool 1 for developer construction under subsection (A)(1)(a) of this section. This portion of the set-aside may be divided into a short-term pool, to be used for current-year reimbursements authorized at the time of a tentative map approval, and a long-term pool; and
b. Pool 2. Sufficient funds for reimbursement of any developer-funded advances or land contributions under subsection (A)(1)(b) of this section shall be set aside in Pool 2.
4. Time and Manner of Reimbursement.
a. Pool 1. Regarding the first discretionary set-aside pool (15 to 30 percent), in general, the reimbursement is not payable until the approximate time the City had forecasted constructing the improvements in its capital improvement program (CIP) in effect at the time of the agreement. The City shall begin reimbursement payments to a developer (or his or her designee as indicated in the agreement) at whichever time occurs later: (i) in the five-year period in which the City had forecasted constructing the improvements in its CIP; or (ii) in the fiscal year after the improvements are accepted by the City, unless otherwise agreed to in a development agreement. The City shall complete reimbursement payments to a developer within 25 years from the date the City accepts the improvements.
When more than one developer is eligible for reimbursement in any year, funds will be disbursed from the reimbursement set-aside based upon when the improvements were accepted by the City. The following example applies if there are five eligible developers (including their designees):
i. Developer 1: 30 percent of set-aside pool;
ii. Developer 2: 25 percent of set-aside pool;
iii. Developer 3: 20 percent of set-aside pool;
iv. Developer 4: 15 percent of set-aside pool;
v. Developer 5: 10 percent of set-aside pool.
If fewer than five, or more than five, developers are eligible for reimbursement in a given year, the city engineer may adjust the above percentages in an equitable manner.
b. Pool 2. Reimbursements for contributions under subsection (A)(1)(b) of this section (not part of the set-aside pool under subsection (E)(4)(a) of this section), shall be in accordance with the terms of the development agreement or disposition and development agreement.
5. Identifying the Recipient. The right to reimbursement does not run with the land, but is personal to the developer. The developer may assign his or her right to reimbursement to another in the agreement, or if the original agreement identified the developer, by later filing a written notarized assignment with the city clerk. It is the developer’s or assignee’s responsibility to keep the city clerk advised of a current address. If the City cannot with reasonable diligence locate a developer or assignee to send the reimbursement payment, the amount of payment for that year is forfeited.
F. Appeal. A determination of the city engineer under this section is subject to appeal to the City Council under LMC 12.30.120. (Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 20), 2010; Ord. 1779 § 1, 2005; Ord. 1676 § 4, 2002)
12.30.085 Reimbursement.
Repealed by Ord. 1676. (Ord. 1489 § 2, 1996; Ord. 1408 § 8, 1993; Ord. 1262 § 1, 1988)
12.30.090 Exemptions.
The following projects shall be exempt, in whole or in part, from the traffic impact fee otherwise required by this chapter:
A. Development for which an application for a vesting tentative map authorized by Government Code Section 66498.1 was deemed complete on or prior to the date of the introduction of this chapter;
B. Capital improvements and/or buildings or structures related to the operation of City, Alameda County, state or federal governments including, but not limited to, police and fire stations, Livermore Area Recreation and Park District facilities, parking lots, offices, equipment yards, sanitation facilities, parks and similar facilities in or through which general government operations are conducted; provided, however, that this subsection shall not create an exemption for private commercial or industrial activities conducted on public lands;
C. Temporary uses less than 12 months in duration. No extension of time shall be permitted;
D. Churches, temples, and other properties used primarily for religious worship;
E. Private and public elementary and secondary schools;
F. Commercial, industrial or residential development consisting of the repair or replacement of structures on the same site, as long as the repair or replacement does not result in any conversion or change in use which increases the peak hour trip rate applicable to the previous structure;
G. Additions, extensions or enlargements of an existing commercial or industrial structure which, in any one calendar year, increase the gross floor area of such structure by 200 square feet or less;
H. Parking structures;
I. Development within a designated Livermore successor agency project area if:
1. The Livermore successor agency approves the exemption and provides that the amount of the fee which would otherwise apply is paid by the Livermore successor agency into the City’s traffic impact fee fund; and
2. The City Council approves the exemption and makes one of the following findings:
a. The exemption is authorized in a disposition and development agreement or owner participation agreement with the developer of the property; or
b. The Livermore successor agency is actively involved in the assembly and/or disposition of the property to be developed and the eventual purchase price to be paid by the developer will be less than the fair market value of that property; or
c. The proposed development is a public or quasi-public facility or use, as defined in LDC Part 11, and provides a substantial community benefit.
J. Secondary dwelling unit approved under LDC 6.03.120. (Ord. 2065 § 1(A), 2018; Ord. 1971 § 1(E), 2012; Ord. 1901 § 3 (Exh. A § 21), 2010; Ord. 1676 § 5, 2002; Ord. 1655 § 1, 2002; Ord. 1262 § 1, 1988)
12.30.100 Use of funds.
The fees paid pursuant to the provisions of this chapter shall, except for temporary investments, be set aside by the City in a fund in a manner to avoid commingling of the fees with other revenues or funds of the City, and shall be used solely for the purpose of constructing or providing the circulation system improvements identified by the City Council from time to time in accordance with LMC 12.30.050. Any interest income earned on the fund shall also be deposited therein and shall only be expended for the purposes set forth in this section. Yearly, during the budget review, the City Council shall review fund balances and required circulation system improvements and make a determination for use of the funds for the coming fiscal year, or the refunding of all or a portion thereof, as may be required by state and local law. (Ord. 2065 § 1(A), 2018; Ord. 1676 § 6, 2002; Ord. 1262 § 1, 1988)
12.30.110 Refunds.
Refunds may be made where:
A. The building permit expires and no extensions have been granted for a development for which the fee required under this chapter has been collected; provided, that the claim for such refund is filed no later than one year after the expiration date of the building permit or any extension thereof as may have been approved by the City, as the case may be; or
B. A refund is specifically authorized by resolution of the City Council adopted pursuant to Government Code Section 66001(d). Such amounts shall be refunded by the City to the then-current record owner or owners of the development on a prorated basis. The City may effect such refunding by direct payment, by providing a temporary suspension of fees, or by any other means consistent with the intent of Government Code Section 66001. (Ord. 2065 § 1(A), 2018; Ord. 1262 § 1, 1988)
12.30.120 Appeals.
A developer may appeal to the City Council any determination made pursuant to this chapter. All appeals shall be on a form prescribed by the planning department and shall be filed within 15 days of the date of the mailing to the developer of written notice of the applicable determination. Any appeal not filed within such period shall be deemed waived. The City Council shall set the matter for hearing within 50 days of the date of receipt by the city clerk of notice of the appeal. In making its determination on the appeal, the City Council shall follow the standards set forth in this chapter. (Ord. 2065 § 1(A), 2018; Ord. 1262 § 1, 1988)
12.30.130 Supplementary provisions.
It is the intent of the City Council 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 thereon. (Ord. 2065 § 1(A), 2018; Ord. 1262 § 1, 1988)
12.30.140 Severability.
The provisions of this chapter shall not apply to any person, association, corporation or to any property as to whom or which it is beyond the power of the City to impose the fee provided in this chapter. If any sentence, clause, section or part of this chapter, or any fee imposed upon any person or entity is found to be unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall affect only such sentence, clause, section or part of this chapter, or person or entity, as the case may be, and shall not affect or impair any of the remaining provisions, sentences, clauses, sections or other parts of this chapter, or its effect on other persons or entities. It is declared to be the intention of the City Council that this chapter would have been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part of this chapter not been included herein; or had such person or entity been expressly exempted from the application of this chapter. To this end, the provisions of this chapter are severable. (Ord. 2065 § 1(A), 2018; Ord. 1262 § 1, 1988)