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DATE:
TO:
FROM:
SUBJECT:
COUNCIL AGENDA REPORT
APRIL 28, 2010
MAYOR AND TOWN COUNCIL
MEETING DATE: 5/3/2010
ITEM NO:
MICHAEL D. MARTELLO, INTERIM TOWN ATTORNEY
ADOPT AN ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING ARTICLE IX OF CHAPTER 15 OF THE TOWN CODE RELATING TO
THE MITIGATION OF ROAD IMPACTS CAUSED BY CONSTRUCTION
PROJECTS
RECOMMENDATION:
Adopt an ordinance to amend .Article IX of Chapter 15 of the Town Code relating to the mitigation of
road impacts caused by construction projects.
DISCUSSION:
In 1994, the Town Council adopted a road impact fee via the Mitigation of Road Impacts Caused by
Construction Projects Ordinance-1984. In February 2010,-the Town contracted with the Financial
Consulting Solutions (FCS) Group, Inc. to update the fee to reflect changes since its initial adoption. On
April 19, 2010, the Town Council considered a proposed ordinance to amend Article IX of Chapter 15
of the Town Code relating to the mitigation of road impacts caused by construction projects. The
amended Construction Activities Mitigation Fee Ordinance includes provisions to modernize and clarify
the language included in Article IX of Chapter 15 of the Town Code. Adoption of the ordinance would
help to insure compliance with California Government Code 66000 et seq. The Town's existing
mitigation fee for road impact has not been updated since its initial adoption in 1994. The ordinance
would become effective 30 days after its adoption.
Attachment: Ordinance introduced April 19, 2010.
PREPARED BY:
MICHAEL D. MARTELLO
INTERIM TOWN ATTORNEY
MDM:mv
N;\MGR\AdnunWorkFiles\2010 Council Reports\5-3-10 Road Impact Ordinance TC Report.doc
Reviewed by: -~vn Manager Assistant Town Manager
Clerk Administrator .Finance Community Development
THIS PAGE
INTENTIONALLY LEI~'T
BLANK
ORDINANCE
ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING .ARTICLE IX OF CHAPTER 15 OF THE TOWN CODE
RELATING TO MITIGATION OF ROAD IMPACTS
CAUSED BY CONSTRUCTION PROJECTS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS:
SECTION I
Section 1.5.90.010 is hereby amended to read as follows:
Sec. 15.90.010. Purpose.
(a) The Town Council finds that the roads of this community were built under a variety of agencies and
standards. Many of the Town's streets have little base and limited overlay with restricted drainage systems
and were never intended to support heavy vehicles or loads. Construction projects have had a serious
adverse effect. on the Town's street system, and it is only fair and just that there should be an equitable
contribution to repair streets that are damaged by hauling and deliveries done in connection with these
projects. Because the effects of these projects can be spread across a large area and the Town does not and
cannot have the staff or oversight to identify specific items of damage and construction projects accelerate
or begin the deterioration of the street system, it is also fair and just to establish a fee to be collected when
permits are issued for construction projects that will be deposited in the street repair funds and used to
refurbish roads which suffer deterioration due to construction activities.
(b) The Town Council finds that the purpose of the Construction Activities Mitigation Fee is to assure
that each new development or expansion of use pays its fair share of the refurbishment needed to mitigate
the impacts of construction activities.
(c) The Town Council declares the road refurbishment area shall be the Town limits to finance
refurbishment where such projects have been identified by the Town Council.
(d) The Town Council has determined that the Construction Activities Mitigation Fee is necessary in
order to finance road refurbishment activities and projects.
{e) The Town Council finds and determines that there is a reasonable and rational relationship between
the use of the Construction Activities Mitigation Fee and the type of development projects on which the
fees are imposed because the fees will be used to refurbish the roads that are necessary for the safety,
health and welfare of the residential and non-residential users of the roads on which the Construction
Activities Mitigation Fee will be levied.
(f) The Town Council finds and determines that there is a reasonable and rational relationship between
the need for refurbishment of the transportation system and the type of development projects on which the
Construction Activities Mitigation Fee is imposed because it will be necessary for the residential and non-
residential users of such projects to have access to the transportation system. Such development will
benefit from the transportation refurbishments and the burden of such development will be mitigated. in
part by the payment of the Construction Activities Mitigation Fee.
(g) The Town Council further finds and determines that the estimates of road deterioration costs
referenced in the Traffic Impact and Construction Activities Impact Mitigation Fee Update Study are
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reasonable cost estimates, and that the amount of the Construction Activities Mitigation Fee expected to
be generated by new development will not exceed the total fair share cost to such development.
(h) The Town Council further finds that the cost estimates referenced in the Traffic Impact and
Construction Activities hnpact Mitigation Fees Update Study are reasonable cost estimates for
deterioration of the facilities that comprise the transportation system; and that Construction Activities
Mitigation Fee revenues to be generated by new development will not exceed the total fair share of these
costs.
(i) The Town Council fiirther finds that the Construction Activities Mitigation Fees collected pursuant to
this Section shall be used to help pay for refurbishment of the transportation system, and that the need for
the refurbislunent is related to new development because the equipment excavation and activity traversing
public streets during the construction of the development results in deterioration; thus creating the demand
for the refurbishment.
(j) The Town Council hereby adopts the report entitled "Traffic Impact and Construction Activities
Mitigation Fees Update Study" (Study), and incorporates herein by this reference the assumptions,
conclusions and findings included in the report regarding Construction. Activities Mitigation Fees. The
Study inchides options for aper-square-foot added fee ranging between $1.61 to $2.39 for residential
development, and $1.41 to $2.09 for non-residential. These options were based on pavement deterioration
due to construction activities for Los Gatos and a mix of neighboring communities, including Saratoga,
Monte Sereno, and Campbell.
(k) The Town Council hereby adopts an initial Construction Activities Mitigation Fee of $1.00 per-
square-foot added for both residential and non-residential development effective July 1, 2010.
SECTION II
Section 15.90.020 is hereby rescinded.
SECTION III
Section 15.90.025 is hereby added as follows:
Sec. 15.90.025. Definitions.
The following words, terms and. phrases, when used in this article, shall have the meanings ascribed to
them in this section,. except where the context clearly indicates a different meaning:
(a) Building permit shall mean the permit issued or required by the Town for the construction of any
structure pursuant to and as defined by the building code.
(b) Development shall mean building or other land construction activity, or making a physical. change in
the use of a structure or land, in a manner that makes use of the Town's road system.
(c) Development Permit shall mean any zoning.. entitlement permit or approval from the Town of Los
Gatos, including, but not limited to, a general. plan amendment, zoning or re- zoning of property, a
conditional use permit, subdivision map, development review application, building permit or other permit
for construction, reconstruction or remodeling.
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(d) Site shall mean a plot of ground consisting of one (1) or more lots or parcels on which a common
improvement is proposed or exists.
SECTION IV
Section 15.90.030 is hereby amended to read as follows:
Sec. 15.70.030. Usage of fees collected.
(a) The fees collected under this article will be deposited in fund accounts.
(b) Money in the trust fund established in this article shall be used solely for the following:
(1) To design, construct, and refurbish roads within the Town of Los Gatos.
(2) To reimburse the Town of Los Gatos to offset only direct administrative costs (not overhead)
associated with administering and updating the Construction Activities Mitigation Fee.
(3) To make refunds if and when required by the applicable sections of Government Code § 66000,
et seq., or any applicable successor statutes.
(c) The monies in the fund shall be eligible for expenditure only for projects related to mitigating the
impacts of new development. These funds cannot be used for routine repairs and maintenance.
(d) The monies in the fund may be used for purposes that include, but are not limited to, the following:
(1) design and construction plan preparation;
(2) permitting;
(3) land and materials acquisition, including any costs of acquisition or condemnation;
(4) design and construction, refurbishment or reconstruction of transportation capital improvements;
(5) design and construction, refurbishment or reconstruction of sanitary sewers, drainage facilities, or
other public improvements required by the construction of transportation capital improvements;
(6) relocating utilities required by construction, refurbishment or reconstruction;
(7) landscaping;
(8) construction management and inspection;
(9) surveying, soils and material testing;
(10) acquisition of capital equipment that is an intrinsic part of a facility;
(11) demolition that is part of the construction of any of the improvements on this list;
(12) payment of principal and interest, necessary reserves and costs of issuance under any bonds or
other indebtedness issued to provide money to construct or acquire traffic mitigation facilities;
SECTION V
Section 15.90.035 is hereby added as follows:
Sec. 15.90.035. Amount and payment of fee.
(a) The applicant shall provide information regarding the previous and proposed use(s) of the site,
including a description of the proposed uses for which a Development Permit.is being sought, with
sufficient detail to enable the Town to calculate the number of square feet of development under the
proposed use(s).
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(b) Except as maybe otherwise provided in this Ordinance, the amount of the Construction Activities
Mitigation Fee shall be determined by calculating the number of square feet for the proposed use(s).
(c) Whenever a Construction Activities Mitigation Fee is imposed pursuant to this Section, the Town
shall provide each applicant for a development permit with a notice in writing at the time of the approval
of the development permit or at the time of the imposition of the Construction Activities Mitigation Fees,
a statement of the amount of the Fees and notification of the ninety (90) day approval period in which the
applicant may protest the Fees. Said notice shall be in substantially the following form:
"The conditions of pNOject approval for your project, identified as ,
include certain fees, dedication requirements, reservation requirements and/or other exactions more
specifically described as: (identification of the amount of the Impact Fee and/or description of
the dedications, reservations or other exactions _. The applicant is hereby notified that the 90-day
protest period to challenge such items has begun as of the date of the project approval or the date of the
Impact Fee imposition, which was . If the applicant fails to file a protest regarding any of
the fees, dedications, reservations or other exaction requirements as specified in Government Code
X66020, the applicant shall be legally barred from later challenges. "
(d) Notwithstanding any other provision, the dollar amounts of the adopted Construction Activities
Mitigation Fee rates shall be adjusted on July 1 of each year to account for changes in the costs of
facilities. The adjustment factor shall be based on the change in the Engineering News Record (ENR)
(San Francisco, California) Building Cost Index (BCI) for the preceding twelve (12) month period
calculated from February 1 to January 31. If this index should cease publication, the. Town. shall use any
appropriate official index published by the Bureau of Labor Statistics, or successor, or similar agency as
may then exist or may then may be most nearly equivalent thereto. The adjustment factor shall be used to
adjust the rates of the Construction Activities Mitigation Fees, unless they are otherwise adjusted based
on the adoption of an updated methodology study.
(e) Unless earlier payment is permitted pursuant to the provisions of Government Code §66007, or any
applicable successor statute, the Construction Activities Mitigation Fees for residential developments
shall be paid on the date of the final inspection or on the date the certificate of occupancy is issued,
whichever date occurs first.
(f) No final subdivision map, parcel map or certificate of occupancy shall be issued or filed for recording
until the traffic impact mitigation fee has been paid. in full.
SECTION VI
Section 15.90.040 is hereby added as follows:
Sec. 15.90.040. Construction Activities Mitigation Fees in Addition to other Fees and Charges.
Payment of the Construction Activities Mitigation Fees are in addition to the requirements imposed by
other laws, policies or regulations of the Town relating to the construction or the financing of public
improvements within subdivisions or developments.
SECTION VII
Section 15.90.045 is hereby added as follows:
Sec. 15.90.045. Reporting Requirements for Funds.
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The Director of Finance or designee shall comply with the public reporting requirements for the
Construction Activities Mitigation Fee Fund and accounts therein within 180 days of the end of each
fiscal year as specified in Government Code §66006(b), or any applicable successor statute. The Director
of Finance or designee shall also present the public reports to the Town Council for review at the. first
regular meeting that occurs not more than fifteen (15) days after the reports are made available to the
public as specified in Government Code §66006(b), or any applicable successor statute.
SECTION VIII
Section 15.90.050 is hereby added as follows:
Sec. 15.90.050. Findings Requirements for Funds; Refunds.
For the fifth fiscal year following the first deposit into the Construction Activities Mitigation Fee Fund,
and every five (5) years thereafter, the Town shall make the findings required by Government Code
§66001(d), or any applicable successor statute, with respect to any monies remaining unexpended in the
Funds and the accounts therein. The Town shall also comply with the notice and refund provisions of
Government Code § § 66001(e) and (f), or any applicable successor statutes.
SECTION IX
Section 15.90.055 is hereby added as follows:
Sec. 15.90.055. Protest.
Any person subject to the Construction Activities Mitigation Fee established by this Section may protest
the imposition of same by complying with the protest provisions in the Government Code § 66000, et seq.
in effect at the tune of the protest.
SECTION X
Section 15.90.060 is hereby added as follows:
:Sec. 15.90.060. Compliance; Enforcement.
(a) No person shall fail to pay, when due, any Construction Activities Mitigation Fee unposed pursuant to
this Section.
(b) The Construction Activities Mitigation Fee due pursuant to this Section shall constitute a debt to the
Town. An action for the collection thereof maybe commenced in the name of the Town in any court
having jurisdiction of the cause; however, nothing in this subsection shall prevent a criminal prosecution
for any violation of this Section.
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SECTION XI
Section 15.90.065 is hereby added as follows:
Sec. 15.90.065. Severability.
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or any part
thereof is for any reason held to be invalid or unconstitutional, such decision. shall not affect the validity
of the remaining portions of this ordinance. The Town Council hereby declares that it would have passed
each section, subsection, subdivision,. paragraph, sentence, clause or phrase of this ordinance irrespective
of the fact that any one or more section, subsection, subdivision, paragraph, sentence, clause or phrase be
declared invalid or unconstitutional.
SECTION XII
This ordinance was introduced at a regular meeting. of the Town Council of the Towri of Los Gatos
on , 2010 and adopted by the following vote as an ordinance of the Town of Los Gatos at a
regular meeting of the Town Council of the Town of Los Gatos on _, 20_ This ordinance takes effect
30 days after it is adopted.
COUNCIL MEMBERS:
AYES:
NAYS
ABSENT:
ABSTAIN:
SIGNED:
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
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