City of San Juan Capistrano, CA FEES, DEPOSITS, AND BONDS

Construction taxes, as specified in Title 3 of this Municipal Code e.g., taxes for municipal services and agricultural preservation, prior to issuance of building permits;

(H)

System development taxes, as specified in Title 3 of this Municipal Code, prior to issuance of building permits;

(I)

Major thoroughfare and bridge fee program prior to issuance of building permits, as specified in Section 9-5.105 Major Thoroughfare and Bridge Fee; and

(J)

Housing in-lieu fees prior to the issuance of a building permit, as specified in Section 9-5.103 Housing In-Lieu Fee.

(b)

Fees—Establishment. The City Council, from time to time, shall establish the amount of the fees authorized by the provisions of this section by ordinance and/or resolution and, as a part of such ordinance or resolution, may include specific administrative guidelines for the collection of such fees.

(c)

Fees—Payment. Unless specifically waived or deferred by the City Council, all of the fees authorized by the provisions of this section shall be paid prior to the granting of any approval, the issuance of any permit, or the taking of any other action requiring the payment of such fees.

(d)

Fees required by other agencies. The fees required by an outside agency shall be paid in accordance with the regulations of such agency.

(e)

Deposits. Any person making an application for a street cut, the construction of a swimming pool, or the construction of a temporary caretaker residence, erosion control, or any other improvement requiring a deposit shall be required to make a security deposit pursuant to the terms and conditions established by the City Council by resolution.

(f)

Bonds. The following bonds shall be required, where applicable:

(1)

Performance bonds;

(2)

Labor and materials bonds;

(3)

Monumentation bonds;

(4)

Development obligation bonds;

(5)

Maintenance warranty bond;

(6)

Grading bond; and

(7)

Landscape bond.

(g)

Surety devices in-lieu of bonds. The City may require a letter of credit, cash bond, or certificate of deposit on forms approved by the City Attorney.

(Ord. No. 869, § 2)

§ 9-5.103 Housing in-lieu fee.

(a)

Purpose and intent. Purpose and intent of the in-lieu affordable housing fees provisions in this section is to achieve the following:

(1)

To create a housing fund to facilitate the development of residential housing opportunities for low, very low, and moderate income households within the City of San Juan Capistrano; and

(2)

To create an affordable housing fund as an annually renewable source of revenue to assist in implementing The Hope Plan (Housing Opportunities Program Empowerment Plan) as adopted by City Council on February 21, 1995 which implements the City’s General Plan Housing Element; and

(3)

To preserve and maintain renter and ownership housing units which are affordable to very low, low, and moderate income households located within the City; and

(4)

To foster and encourage the private sector to join the City and the nonprofit sectors to further the goals of this Land Use Code.

(b)

In-lieu affordable housing fee policies. City policies aimed at achieving the preceding in-lieu affordable housing fee goals shall be for lots or units established subsequent to September 1995 (Ordinance No. 767), and shall apply to all new residential developments of two or more units. These developments shall be reviewed by the City Council to determine if they will be allowed to dedicate fees or to provide the construction of units to promote the construction and/or assistance of affordable housing projects within all zone districts.

(c)

In-lieu affordable housing fee description.

(1)

Housing fee requirement. The schedule for payment of said in-lieu affordable housing fee shall be negotiated with the City Council during the review process of the project, but in all cases, the fee shall be remitted prior to issuance of Certificate of Occupancy.

(2)

Computation of fee requirement. The amount of the in-lieu affordable housing fee shall be computed as follows:

a.	Development for Rental Units:
(Mean Monthly Market Rent⁽¹⁾ - Mean Monthly Affordable Rent⁽²⁾) × 10 year affordability Covenant⁽³⁾ = Δ
Δ × 10%⁽⁴⁾ = Obligation Per Unit
Obligation Per Unit - (10% x Obligation Per Unit) = Housing In-Lieu Fee Per Unit
(1)	The average is determined by the Orange County market rate for efficiency, one-, two-, three-, and four-bedrooms. (Annually updated March 15, from HDC Rent Limits using Orange County Fair Market Rent)
(2)	The average is determined by the Orange County affordable rate for efficiency, one-, two-, three-, and four-bedroom. (Annually updated March 15, from Redevelopment Law publication from Stradling, Yocca, Carlson, and Rauth Orange County Affordable Housing Worksheet using low-income rates)
(3)	City requires minimum of ten years for an affordability covenant (San Juan Capistrano Municipal Code Section 9-3.505
(4)	City requires minimum of 10% of new developments to be attributed to affordable housing (San Juan Capistrano Municipal Code Section 9-3.505)
b.	Development for Ownership Units:
Market Sales Price⁽¹⁾ - Affordable Sales Price⁽²⁾ = Δ
Δ × 10%⁽³⁾ = Developer’s Obligation
Developer’s Obligation - (10% x Developer’s Obligation) = Housing In-Lieu Fee Per Unit
(1)	Market sales price is the Orange County Median sale price of all Units. (Updated on the 25th of each month with the previous six month’s Orange County Median Sales price data, using DataQuick’s “Orange County Home Sales Activity” report)
(2)	Affordable sale price is the sales price a low-income household can pay off with a 30-year loan. Sales Price determined using: HUD’s Income Rating of OC Low-Income rate (Annually updated March 15, from HDC Income Limits using Orange County 4-person household data); 30% of gross income is set aside for housing cost (California Health and Safety Code Section 50052.2(b)(3)); allowance for the average association fee ($300) and property taxes ($150); and loan funding with prime interest rate (Updated Monthly-Freddie Mac)
(3)	City requires minimum of 10% of new developments to be attributed to affordable housing (San Juan Capistrano Municipal Code Section 9-3.505)

(3)

As an alternative to the computation of the fee requirement provided in section (2) above, the City Council and developer may negotiate the amount of the in-lieu affordable housing fee during the review process for the project, so long as amount is equitable to what a developer would have been required to provide if including affordable housing within their development.

(4)

Disbursement of fees. Prior to the disbursement of collected funds, and every five years thereafter, the City Council shall adopt a Five-Year Funding Program with the following information:

(A)

The amount of funding budgeted for loans or grants to recipients of approved programs; and

(B)

Consistency with the City General Plan Housing Element.

(d)

Regulations pertaining to the disbursement of fees collected.

(1)

Funds collected shall be used solely for programs and administrative support outlined by the City Council in The HOPE Plan to meet the housing needs of very low, low, and moderate income households. These programs shall include those providing assistance through production, acquisition, rehabilitation and preservation of affordable housing units for moderate, low, and very low income households.

(2)

Funds may be used in any manner, through loans, grants, or indirect assistance for the production and maintenance of affordable housing.

(3)

Funds used for the operation of supporting services such as child care or social services must meet the following criteria:

(A)

Funds are used in connection with transitional housing or in neighborhoods where the number of units create the need for supportive services;

(B)

The recipient demonstrates to the City that other funds are not available; or

(C)

No more than 25% of the loan, grant or assistance is designated for such services.

(4)

Whenever funds are disbursed, the City Council shall determine the terms and conditions which shall be attached to the grant or loan.

(e)

Regulations pertaining to recipients of in-lieu affordable housing funds.

(1)

Every recipient of in-lieu housing fee funding shall enter into a written agreement with the City which sets forth the terms and conditions of the funding (e.g., grant or loan). The agreement shall contain the following provisions:

(A)

The amount of funds to be disbursed;

(B)

The manner in which the funds are to be used;

(C)

The terms and conditions of the grant or loan;

(D)

The projected maximum rent to be charged to maintain an affordable housing cost (if rental);

(E)

A requirement for annual financial reports to be provided to the Director of Administrative Services; and

(F)

Restrictions on the return on equity and developers fee recipients may receive, where applicable.

(f)

Financial management of in-lieu fees collected. The City’s Director of Administrative Services shall maintain a separate in-lieu housing fees account which details all programs and any required related subsidiary funds and transfer the balance on deposit from such funds on an annual basis with a report prepared for City Council review.

(g)

Applicability of fee requirement.

(1)

This section shall apply to subdivision projects that are proposing the construction, addition, or interior remodeling of any residential project involving two or more units.

(2)

This section shall not apply to projects which fall within one or more of the following categories:

(A)

Projects which are already the subject of a development agreement currently in effect with the City; or of a disposition agreement, owner participation agreement, or memoranda of understanding with the San Juan Capistrano Community Redevelopment Agency, approved prior to the effective date of this section, and where such agreements or memoranda: (1) limit the application of fees in a manner which specifically precludes the fees which would otherwise be imposed by this section, or (2) provide alternative means of addressing the project contribution to very low and low income housing need, which means are quantitatively comparative to the fees herein;

(B)

Single room occupancy developments;

(C)

Residential additions which does not exceed more than 50% of the existing square footage of the subject building that do not create an additional dwelling unit;

(D)

That portion of any development project located on property owned by the State of California, the United States of America or any of its agencies, with the exception of such property not used exclusively for state governmental or state educational purposes;

(E)

Any development project which has received a vested right to proceed without payment of housing impact fees pursuant to State Law;

(F)

Any construction which is for any general government purposes;

(G)

Qualified residential housing which provide housing units consistent with the provisions of this chapter; or

(H)

Relocation of existing historically significant structures to secondary locations within the City.

(Ord. No. 869, § 2; Ord. No. 955, § 1 (Exh. A), 4-7-2009; Ord. No. 997, § 1, 9-18-2012)

§ 9-5.105 Major thoroughfare and bridge fee.

(a)

Prior to issuance of a building permit, the developer shall pay a fee as hereinafter established to defray the costs of constructing bridges over waterways, railways, freeways and canyons, or constructing major thoroughfares.

(b)

Definitions.

The term “construction”

as used in this section includes preliminary studies, design acquisition of right-of-way, administration of construction contracts, and actual construction.

The term “major thoroughfare”

means those roads designated as transportation corridors and major, primary, secondary, or commuter highways on the Master Plan of Arterials Highways, the Circulation Element of the General Plan. The primary purpose of such roads is to carry through traffic and provide a network connecting to the state highways system.

"Bridge facilities"

means those locations identified in the transportation or flood control provisions of the Circulation Element or other element of the General Plan as requiring a bridge to span a waterway, a railway, a freeway, or a canyon.

"Area of benefit"

means a specific area wherein it has been determined that the real property located therein will benefit from the construction of a major thoroughfare or bridge project.

(c)

The provisions herein for payment of a fee shall apply only if the major thoroughfare or bridge facility has been included in an element of the City’s General Plan or the General Plan of the County of Orange adopted at least 30 days prior to the application for a building permit and on land located within the boundaries of the area of benefit.

(d)

Payment of fees shall not be required unless any major thoroughfares are in addition to, or a widening or reconstruction of, any existing major thoroughfares serving the area at the time of the adoption of the boundaries of the area of benefit.

(e)

Payment of fees shall not be required unless any planned bridge facility is a new bridge serving the area or an addition to an existing bridge facility serving the area at the time of the adoption of the boundaries of the area of benefit.

(f)

Action to establish an area of benefit may be initiated by the City Council upon its own motion or upon the recommendation of the Director of Engineering and Building Services. The City Council shall set a public hearing for each proposed area benefitted. Notice of the time and place of said hearing, including preliminary information related to the boundaries of the area of benefit, estimated costs and the method of fee apportionment shall be given in accordance with Section 9-2.311 Appeals.

(g)

(1)

At the public hearing the City Council will consider the testimony, written protests, and other evidence. At the conclusion of the public hearing the City Council may, unless a majority written protest is filed and not withdrawn as specified in paragraph (3) of this subsection (g), determine to establish an area of benefit. If established, the City Council shall adopt a resolution describing the boundaries of the area of benefit, setting forth the cost, whether actual or estimated, and the method of fee apportionment. A certified copy of such resolution shall be recorded by the City Clerk with the Orange County Recorder’s Office.

(2)

Such apportioned fees shall be applicable to all property within the area of benefit and shall be payable as a condition of issuing a building permit for such property or portions thereof. Where the area of benefit includes lands not subject to the payment of fees pursuant to this section, the City Council shall make provisions for payment for the share of improvement cost apportioned to such lands from other sources.

(3)

Written protests shall be received by the City Clerk at any time prior to the close of the public hearing. If written protests are filed by the owners of more than one-half (½) of the area of the property to be benefitted by the improvement, the sufficient protests are not withdrawn so as to reduce the area represented by the protests to less than one-half (½) of the area to be benefitted, then the proposed proceedings shall be abandoned, and the City Council shall not, for one year from the filing of said written protests, commence or carry on any proceedings for the same improvement under the provisions of this section. Any protests may be withdrawn by the owner making the same, in writing, at any time prior to the close of the public hearing.

(4)

If any majority protest is directed against only a portion of the improvement, then all further proceedings under the provisions of this section to construct that portion of the improvement so protested against shall be barred for a period of one year, but the City Council shall not be barred from commencing new proceedings not including any part of the improvement so protested against. Such proceedings shall be commenced by a new notice and public hearing as set forth in subsection (f) of this section.

(5)

Nothing in this section shall prohibit the City Council, within such one-year period, from commencing and carrying on new proceedings for the construction of an improvement or portion of the improvements so protested against if it finds, by the affirmative vote of four-fifths (4/5) of its members, that the owners of more than one-half (½) of the area of the property to be benefitted are in favor of going forward with such improvement or portion thereof.

(h)

Fees paid pursuant to this section shall be deposited in a planned bridge facility or major thoroughfare fund. A fund shall be established for each planned bridge facility project or each planned major thoroughfare project. If the area of benefit is one in which more than one bridge or major thoroughfare is required to be constructed, a separate fund may be established covering all of the bridge projects or major thoroughfares in the area of benefit. If the area of benefit encompasses one or more bridges and one or more thoroughfares and all lands within the area of benefit are subject to the same proportionate fee for all bridges and thoroughfares, a single fund may be established to account for pees paid. Moneys in such funds shall be expended solely for the construction or reimbursement for construction of the improvements serving the area to be benefitted and from which the fees comprising the fund were collected, or to reimburse the City for the costs of constructing the improvement.

(i)

The City Council may approve the acceptance of improvements in-lieu of the payment of fees established herein.

(j)

The City Council may approve the advancement of money from the City’s General Fund or Road Fund to pay the costs of constructing the improvements covered herein and may reimburse the City’s General Fund or Road Fund for such advances from planned bridge facility or major thoroughfare funds established pursuant to this section.

(k)

If the building permit applicant, as a condition of the issuance of the building permit, is required or desires to construct a bridge or major thoroughfare, the City Council may enter into a reimbursement agreement with the applicant. Such agreement may provide for payments to the applicant from the bridge facility or major thoroughfare fund covering that specific project to reimburse the applicant for costs not allocated to the applicant’s property in the resolution establishing the area of benefit. If the bridge or major thoroughfare fund covers more than one project, reimbursement shall be made on a pro rata basis reflecting the actual or estimated costs of the projects covered by the fund.

(Ord. No. 869, § 2)

§ 9-5.107 Parkland in-lieu fee.

Where a fee is required to be paid in-lieu of the dedication of land, the amount of such fee shall be based upon the average estimated fair market value for suitable park land in the City. Such average estimated fair market value shall be set by resolution of the City Council and it may be adjusted by the City Council to keep current with property appreciation.

(Ord. No. 869, § 2)

§ 9-5.109 Private improvement fees and bonds.

The City Engineer shall collect fees and require bonds for private improvements as follows:

(a)

Fees. Plan-checking fees and inspection fees shall be paid prior to the approval of plans. The amount of the fees shall be determined in the same manner as set forth for public improvements and as authorized by Section 9-5.101 Fees, Deposits, and Bonds and the resolution therein authorized and establishing the amount of fees.

(b)

Bonds. A performance bond or surety device acceptable to the City Engineer shall be given to the City prior to the approval of plans. The amount of the bond or surety device shall be equal to the estimated construction costs of the private improvement subject to the City plan review and inspection as determined by the City Engineer.

Such bond or surety device shall be held by the City until the formal approval of the improvements by the City and written acceptance of the improvements is received from the persons or organizations responsible for the maintenance of the private improvements subject to City plan review and inspection.

The City Engineer shall insure that bonds are not required by the EMA for private improvements for which the City has required such performance bond or security device.

(Ord. No. 869, § 2)

§ 9-5.111 Sand, gravel, and mineral extraction fees and bonds.

(a)

Permit fees.

(1)

Plan-checking and processing fees. With the submission of an application for a permit or whenever new plans are required to be submitted for review by the Department of Building and Engineering Services, a plan-checking and processing fee set by City Council resolution.

(2)

Permit and inspection fees. An annual fee in the amount set forth in this subsection shall be submitted to the Department of Building and Engineering Services on or before July 1 of each year to cover the costs of inspection for the subsequent fiscal year, except that the initial fee shall be prorated on the basis of the portion of the fiscal year remaining, with a minimum fee of $100.00. The annual permit and inspection fee shall be computed on the basis of the previous year’s production from the site which the permit shall cover.

(b)

Conditional use permits, fees, and taxes. All uses pertaining to the mining; quarrying, or commercial extraction of sand, gravel, rock, aggregate, clay, or similar materials on private property in the City shall require a conditional use permit. In addition:

(1)

A fee shall be paid for a mineral extraction permit at the time of the initial construction.

(2)

Business license taxes shall be paid as levied annually.

(3)

Mining taxes shall be paid and shall require a written statement setting forth the total amount of material extracted, regardless of whether or not all the material is usable, during the previous quarter of extraction.

The fees and taxes required by this section shall be set by the City Council by resolution. Such fees may be changed, amended, or deleted at any time by the City Council.

(c)

Bonds. A corporate surety bond in the following form and amounts shall be submitted by each applicant, for a permit to perform any mining, quarrying, or commercial extraction of sand, gravel, rock, aggregate, clay, or similar materials on private property in the City:

(1)

Every bond shall be executed by the operator for the faithful performance of the work to be undertaken and by a corporate surety insurer authorized to do business in the State as surety or, in-lieu thereof, a written agreement for such faithful performance, accompanied by a deposit in cash or such other financial security as shall be approved by the Director of Engineering and Building Services and City Attorney, may be executed.

(2)

Every bond shall be in a form approved by the City Attorney.

(3)

Every bond or agreement in-lieu thereof shall be so conditioned that the operator shall faithfully comply with all the provisions of Section 9-3.539 Sand, Gravel, and Mineral Extraction until the site is properly abandoned in conformity with the provisions of Section 9-3.539 Sand, Gravel, and Mineral Extraction.

(4)

The bond or agreement in-lieu thereof shall secure the City against all costs, charges, and expenses caused by the failure of the principal to fully comply with the provisions of this chapter.

(5)

Whenever the Director of Engineering and Building Services shall find that a default has occurred in the performance of any requirement of Section 9-3.539 Sand, Gravel, and Mineral Extraction, written notice, as provided in Section 9-3.539 Sand, Gravel, and Mineral Extraction, shall be given to the principal and surety on the bond or depositor, as the case may be. Such notice shall specify the default and demand correction within 30 days, or such longer time as the Director of Engineering and Building Services may allow, on penalty of the forfeiture of the reasonable costs of making the necessary corrections by the City. The Director of Engineering and Building Services shall proceed by such method as he or she deems convenient to cause the required work to be performed and completed.

(6)

Any bond issued in compliance with the provisions of this section shall be exonerated and the surety relieved of all obligations thereunder when the Director of Engineering and Building Services certifies that the site has been abandoned in conformity with all the provisions of Section 9-3.539 Sand, Gravel, and Mineral Extraction.

(7)

A substitute bond may be filed in-lieu of any bond on file pursuant to the provisions of this section, and the Director of Engineering and Building Services shall accept and file such bond if it is qualified and in proper form and substance, and the bond for which it is substituted shall be exonerated, but only if the Director of Engineering and Building Services finds that no default exists as to performance upon which the bond is conditioned to the date of substitution.

(Ord. No. 869, § 2)

§ 9-5.113 Temporary caretaker residences deposit.

In order to assure compliance with the requirements of Section 9-3.553 Temporary Uses and Structures, a cash deposit or other form of surety shall be deposited with the City for the period a temporary caretaker residence is to be located on a property. The surety shall be in an amount established by the Planning Director which covers the total estimated cost of removing the temporary caretakers residence and storing the same for a period of at least 30 days. The surety shall be accompanied by a written authorization from the property owner which allows the City to enter the property and remove the temporary caretaker residence if all the requirements for its placement and use are not met.

(Ord. No. 869, § 2)

§ 9-5.115 Water fees and bonds.

Water fees and bonds shall be required as established by resolution.

(Ord. No. 869, § 2)