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HomeMy WebLinkAboutResolution 2008-097 N.C.S. 05/19/2008Resolution No. 2008-097 N.C.S. of the City of Petaluma, California A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA UPDATING THE WASTEWATER CAPACITY FEES FOR NEW DEVELOPMENT PROJECTS WIT11-IIN THE CITY OF PETALUMA AND SUPERSEDING SUCH FEE UPDATED BY RESOLUTION N0.2002-190 N.C.S., ADOPTED DECEMBER 2, 2002 RECITALS WHEREAS, the City of Petaluma General Plan 2025 ("General Plan") outlines future land uses within the City of Petaluma ("City") and applies to a planning area which includes the City and land outside the City in unincorporated Sonoma County which must also be considered to properly plan for the City's future; and, WHEREAS, the General Plan of the City was adopted by the Petaluma City Council ("City Council") on May 19, 2008; and, WHEREAS, an Environmental Impact Report (hereafter ``EIR") was prepared for the General Plan (State Clearinghouse Number 2004082065) pursuant to the California Environmental Quality Act ("CEQA") and certified by the City Council on April 7, 2008 by Resolution No. 058-2008 N.C.S.; and, WHEREAS, the General Plan area is shown on the land use maps contained in the General Plan; and, WHEREAS, the General Plan designates a defined land use for all property within the City and, based on those uses, calculates the expected number of residents, residential units, employees, and square footage of nonresidential development that will result if all property in the City is developed as planned by the year 2025. The General Plan incorporates policies and programs to mitigate the impacts of such new development, including policies that require new development to pay for its proportional fair share of the cost of wastewater capacity for residential and nonresidential developments; and, WHEREAS, the General Plan and EIR analyze the impacts of development under the General Plan and proposed mitigation measures, including the creation of fee programs to require new development to pay for its proportional fair share of acquiring and improving public facilities}necessary to meet the demands of new residents, employees, customers, and businesses for such facilities; and, WHEREAS, Goal 1-G-6 of Chapter 1 of the General Plan provides that the City should "Maintain a residential growth management system to ensure public infrastructure keeps pace with growth"; and, WHEREAS, Policy 1-P-47 of Goal 1-G-6 of Chapter 1 of the General Plan provides that the City should "Ensure that all new development provides necessary public facilities to support Resolution No. 2008-097 N.C.S. Page 1 the development," and includes program (A) which provides that the City should: "Collect proportionate faire share of long-term infrastructure improvement costs as entitlements are granted" and program (B): "Initiate design of long term infrastructure improvements in a timely manner to ensure their completeness coincides with demand;" and, WHEREAS, Goal 8-G-4 of Chapter 8 of the General Plan provides that the City should "Manage the wastewater collection and treatment system to address 100 percent capture and treatment of the City's wastewater in an economically and ecologically sound manner"; and, WHEREAS, Policy 8-P-15 of Goal 8-G-4 of Chapter 8 of the General Plan provides that ``Capacity of the water recycling facility shall be maintained, and expanded as necessary, to keep pace with the City's growth"; and, WHEREAS, the City Council may adopt and impose a wastewater capacity fee to pay for wastewater system expansion and other associated municipal improvements to off-set certain impacts of new development under the authority of Article XI, §§ 5 and 7 of the California Constitution, Section 66000 and following of the Government Code ("Mitigation Fee Act"), Section 54 of the City of Petaluma Charter, and Petaluma Municipal Code sections 15.48.010 and 15.72.010, collectively and separately; and, WHEREAS, the City Council of the City of Petaluma adopted wastewater capacity fees by City of Petaluma Resolution No. 2002-190 N.C.S., adopted December 2, 2002; and, WHEREAS, wastewater services provided by the City include, but are not limited to, wastewater collection, treatment, disposal and reuse; and, WHEREAS, Bartle Wells Associates has prepared the City of Petaluma Water and Wastewater Capacity Fee Study dated May 2008 ("Report"), on file in the Office of the City Clerk and hereby made a part of this Resolution by reference; and, WHEREAS, the Report demonstrates the appropriateness of adopting a fee based on current estimates of the need for and cost of wastewater capacity needed to accommodate new development including (1) an evaluation of the wastewater capacity currently available; (2) an estimate of the increase in the City's service population by the year 2025, the planning horizon of the General Plan; and (3) the average cost of acquiring adequate wastewater capacity to meet the demands of the estimated increases in the City's service population by 2025 with respect to residential and non-residential development projects; and, WHEREAS, in accordance with Government Code Section 66016, at least fourteen (14) days prior to the public hearing at which this Resolution was adopted, notice of the time and place of the hearing was mailed to eligible interested parties who filed written requests with the City for mailed notice of meetings on new or increased fees or service charges; and WHEREAS, in accordance with Government Code Section 66016, the Report was available for public inspection, review, and comment for ten (10) days prior to the public hearing at which the Council considered the adoption of the Fee; and, WHEREAS, ten (10) days advance notice of the public hearing at which this Resolution was adopted was given by publication in accordance with Government Code Section 6062a; and, Resolution No. 2008-097 N.C.S. Page 2 WHEREAS, adoption of this Resolution is statutorily exempt from CEQA pursuant to California Public Resources Code Section 2108U(b)(8)(D) and 14 California Code of Regulations ("CEQA Guidelines") Section l 5273 (a)(4) because adoption of fees pursuant to this Resolution involves the establishment, modification, restructuring or approval of fees, as identified and analyzed in the Report, to meet existing expenses and obtain funds for capital projects that are necessary to maintain service within existing service areas; and/or as to the portion of the fees adopted pursuant to this Resolution which funds capital projects which were previously evaluated and analyzed at a program level in the E.I.R. for General Plan (see Volume 2, Appendix C, "Water Supply and Demand Analysis," pp. 3-2 through 3-11 and Exhibit I), no substantial changes have been proposed to the capital projects in connection with this adoption of fees, and pursuant to CEQA Guidelines Section 15162 and 15168(c)(2), adoption of that portion of fees adopted pursuant to this Resolution is within the scope of the General Plan EIR; and, FINDINGS WHEREAS, the City Council finds as follows: A. The purpose of the wastewater capacity fee set forth in this Resolution is to finance wastewater facilities to reduce the impacts caused by future development within the City and areas served by the City outside the jurisdictional limits of the City. Such facilities are described in the Report. B. Pursuant to Government Code Section 66483(f), the planned sanitary sewer facilities described in the Report are in addition to the existing facilities serving the sanitary sewer area covered by the Report at the time of its adoption. C. The wastewater capacity fee collected pursuant to this Resolution shall be used to finance the wastewater facilities described in the Report and/or alternative facilities in accordance with this Resolution. D. After considering the Report, the testimony received at this noticed public hearing, the agenda statements, the General Plan, the General Plan E.I.R., and all correspondence received (together, "Record"), the City Council approves and adopts the Report and incorporates the Report herein and further finds that further development within the City and areas served by the City outside the jurisdictional limits of the City will generate the need for the wastewater facilities described in the Report, and that such wastewater facilities are consistent with the General Plan. E. The Record establishes: 1. That there is a reasonable relationship between the use of the wastewater capacity fee set forth in this Resolution (payment for certain listed wastewater facilities) and the type of development projects on which such fee is imposed in that all development within the City and areas served by the City outside the jurisdictional limits of the City -both residential and non-residential -generates or contributes to the need for the facilities listed in the Report; and 2. That there is a reasonable relationship between the need for the facilities listed in the Report and the type of development projects on which the wastewater capacity fee Resolution No. 2008-097 N.C.S. Page 3 set forth in this Resolution is imposed in that new development within the City and areas served by the City outside the jurisdictional limits of the City -both residential and non-residential -will generate persons who live, work and/or shop in the City and/or other areas served by the City and who generate or contribute to the need for the facilities listed in the Report; and 3. That there is a reasonable relationship between the amount of the wastewater capacity fee set forth in this Resolution and the cost of the facilities listed in the Report or those portions of such facilities attributable to the development on which such fee is imposed. in that such fee is calculated based on: the total cost of construction of such facilities; the anticipated demand for wastewater facilities needed to serve the City and areas served by the City outside the jurisdictional limits of the City; the anticipated wastewater facility service population within the City areas served by the City outside the jurisdictional limits of the City; and the percentage by which development within the City, and areas served by the City outside the jurisdictional limits of the City contributes to the need for such facilities; and. 4. That in accordance with Government Code Section 66013(a), the cost estimates set forth in the Report concerning the land, construction and other costs of establishing the wastewater facilities listed in the Report are reasonable estimates, and the fees expected to be generated by future development will not exceed the estimated reasonable cost of such wastewater facilities; and 5. That the method of allocation of the fee set forth in this Resolution to a particular development bears a fair relationship, and is roughly proportional, to each development's burden on, and benefits from, the wastewater facilities to be funded by such fee, in that such fee is calculated based on new develop>ent estimated to occur by build-out within the City and within the City and areas served by the City outside the jurisdictional limits of the City, and based on the corresponding estimated demands of such new development on the City's wastewater system. 6. That pursuant to Government Code Section 66483(e) the fee as set forth in this Resolution as to any property proposed for subdivision and subject to the Subdivision Map Act (Government Code Section 66410 et seq.) within the sanitary sewer area covered by the Report does not exceed the pro rata share of the amount of the total actual or estimated cost of all of the planned sanitary sewer facilities within such sanitary sewer area which would be assessable on such property proposed for subdivision if such costs were apportioned uniformly on a per acre basis. F. The Report is a detailed analysis of how public services will be affected by development within the City and areas served by the City outside the jurisdictional limits of the City and the wastewater facilities required to accommodate that development. ADOPTION OF FEE NOW, THEREFORE, BE IT RESOLVED: Definitions a. "Accessory Dwelling" means as specified in Article 21 of the Petaluma Zoning Ordinance. Resolution No. 2008-097 N.C.S. Yage 4 b. "BOD" means biochemical oxygen demand. c. "Development" shall mean the construction, alteration or addition of any building or structure, other than by the City within the City and. within any areas served by the City outside the jurisdictional limits of the City. d. "Director" means the Director of the City Water Resources and Conservation, or his/her designee. e. "Domestic Wastewater" means any wastewater which will enter the City's sanitary sewer from the non-industrial operation, preparation, cooking and handling of food; or, containing human waste and similar matter from the sanitary conveniences of dwellings, commercial building, industrial facilities and installations. £ "Dwelling Unit -Single Family" means any single-family residential dwelling or mobile home designed for occupancy by one family, each of which shall be deemed equivalent to one dwelling unit. g. "Dwelling Unit -Multi Family" means any duplex, triplex, fourplex, townhouse or condominium, apartment house, lofts, or other multi-residential establishment, designed for occupancy for living purposes by more than one family, which is divided into separate residential units, each of which is designed for occupancy by one family only, each resident unit shall be deemed equivalent to one dwelling unit. For example, an apartment complex with 10 apartments shall be considered to have 10 dwelling units. h. "Facilities" shall include those facilities that are described in the Report and in the Findings, above. "Facilities" shall also include comparable alternative facilities should later changes in projections of development in the region necessitate construction of such alternative facilities; provided that the City Council later determines in accordance with applicable law (1) that. there is a reasonable relationship between Development and the need for alternative facilities (2) that the alternative facilities are comparable to the facilities listed in the Report and Findings, and (3) that revenue from fees charged pursuant to this Resolution will be used only to pay new Development's fair and proportionate share of the alternative facilities. i. "Fee" shall mean the charge or charges .imposed on Development to fund the Facilities to ensure that such Development pays its fair share of facilities needs generated by such Development pursuant to this Resolution and applicable law. "hcf' means hundred cubic feet. One hcf is equivalent to 748 gallons. k. "Industrial Wastewater" means any non-domestic wastewater which will enter into. the City's sanitary sewer by being discharged from any industrial, manufacturing, commercial or business establishment or process; or from the development, recovery; or processing of any natural resource. 1. "Non-residential User" includes, but is not limited to, any commercial, industrial or institutional customer. m. "Residential User" means any single-family residential dwelling or mobile home designed for occupancy by one family, and any duplex, triplex, fourplex, townhouse or Resolution No. 2008-097 N.C.S. Page 5 condominium, apartment house, mobile home park or other multi-residential establishment, designed for occupancy for living purposes by more than one family, which is divided into separate residential units, each of which is designed for occupancy by one family only. n. "TSS" means total suspended solids. 2. Wastewater Capacity Fee Imposed. a. In accordance with Petaluma Municipal Code Chapter 15.72, Government Code Section 66013 and other applicable law, a Wastewater Capacity Fee ("Fee") shall be imposed and paid at the times, and in the amounts and otherwise apply and be administered as prescribed in this Resolution on Development as described in the Report. b. In accordance with Government Code Section 66483(a), the Fee shall apply to Development projects subject to the Subdivision Map Act (Government Code Section 66410 et seq.) only where the Fee has been in effect pursuant to this Resolution for a period of at least 30 days prior to the filing of the tentative or parcel map applicable to such development project. 3. Time for ImposingLFee for Residential Subdivisions. In accordance with Government Code Section 65961, the Fee for Single Family and Multiple Family subdivision Development for which tentative or parcel maps are required pursuant to the Subdivision Map .Act (Government Code Section 66410 et seq.) shall be imposed at the time of setting the conditions that apply to the tentative or parcel map for such residential subdivision Development, as applicable. Payment of the Fee shall be deemed to be a condition of all such tentative or parcel maps. Notwithstanding this Section 3, the time for payment of the Fee for all Development, including Single Family and Multiple Family subdivisions, shall be as specified in Section 4, below. 4. Time for Fee Payment. A Fee shall be charged and paid for each Development upon issuance of the building permit for such Development, subject to applicable law. Amount of Fee. The amount of the Fee shall be as follows: a. General. Connection may be made to the City's wastewater collection system trunk lines in locations approved by and subject to the regulations of the City Council, upon payment to the City of the capacity fees specified below and other specifications hereinafter indicated. b. Capacity i. Residential Users. A. Dwelling Unit -Single Family. The capacity fee shall be $7,855 per dwelling unit. B. Dwelling Unit -Multi Family. The capacity fee shall be $5,237 per dwelling unit. Resolution No. 2008-097 N.C.S. Page 6 ii. Accessory Dwelling. The capacity fee shall be $3,063 per dwelling unit. iii. Non-Residential Users. A. Formula. The wastewater capacity fee for Non-residential Users shall be based upon the daily flow, BOD and TSS of the wastewater being discharged, except the minimum fee shall be same for Residential Users per Section 5(b)(i)(A). These three parameters shall be applied to the following formula and associated unit costs to determine the capacity fee: Fee = (DF) x ($23.43/gpd) + ($2,324.84/lb) x (BOD x DF) x (1/1,000,000) x 8.34) + ($2,665.82/lb) x (TSS x DF) x (1/1,000,000) x 8.34) Wherein, DF =Customer's Daily Flow (gallons per day) BOD =Customer's Daily Concentration of BOD (mg/L) TSS =Customer's Daily Concentration of TSS (mg/L) gpd =gallons per day mg/L =milligrams per liter B. Loading Parameters. Values for DF, BOD and TSS shall be estimated using Table 3-1. The '`Type of Business/Industry" to be used as the basis for the calculation shall be as determined by the Director or his/her designee. Loading parameters for uses not listed in Table 3-1 shall be as determined by the Director. C. Reconciliation. After connection, the City may, at the request of the Non-residential User, monitor and track the customer's flow based on water use meter readings for a reconciliation period not to exceed one year. After the reconciliation period, the City may, upon request from the Non-residential User, recalculate the capacity fee using the BOD and TSS values estimated in Table 3-1, which is attached to and made a part of this Resolution and the actual average flows as monitored and recorded by the City. 1. Difference Less Than or Equal To $250. If the difference between the recalculated capacity fee and the original capacity fee is less than or equal to $250, no reconciliation shall be made. 2. Difference Of $251 or More. If the recalculated capacity fee exceeds the original capacity fee paid by $251 or more, the customer shall pay the total difference between the original capacity fee paid and the recalculated capacity fee. If the recalculated capacity fee is less than the original capacity fee paid by $251 or more, the. City shall refund the total difference between the original capacity fee paid and the recalculated capacity fee. D. Capacity Fee on Rebuilding, Remodelin og r Expansion of Existing Non-Residential User Facilities. In the event of any expansion, remodeling or rebuilding of any non-residential building, structure, or premises, currently connected to the wastewater system, in a manner which increases the loading parameters, an additional capacity fee shall be due. In no instance shall a refund be granted if the rebuilding, remodeling or expansion of aNon-residential User facility decreases the size of the building or the loading parameters. The additional capacity fee for the expansion, remodeling or rebuilding of any non- Resolution No. 2008-097 N.C.S. ~ Page 7 residential building, structure, or premises, currently connected to the wastewater system, in a manner which increases the loading parameters, shall be calculated as follows: ACF =NCF - OCF Wherein, "ACF" is the additional capacity fee; "NCF" is the new capacity fee calculated per Section 5(b)(iii)(A) with the values of the loading parameters (DF, BOD and TSS) to be determined based on the facility after the expansion, remodeling or rebuilding (note: this is not to be the incremental increase in loading - it is to represent the total loading of the facility); and "OCF" is the old capacity fee calculated per Section 5(b)(iii)(A) with the values of the loading parameters to be based on the facility prior to any expansion, remodeling or rebuilding. 1. Industrial Relocation. This provision shall not be applied to anon-residential property or building that was formerly used for an industrial operation that has vacated the premises, relocated to a different parcel, and has received a relocation credit per Section 6. E. Annual Economic Adjustment To Capacity Fee. On July 1 of each year, commencing on July 1, .2009, the capacity fees and unit costs described herein shall be adjusted to account for increases or decreases in the index set forth below. The capacity fees and unit costs shall be adjusted as follows. 1. Annual Economic Adjustment To Capacity Fee For Residential Customers. The capacity fee for residential customers shall be adjusted in accordance with the following formula: NCFRes = OCFRes + ((OCFRes) x (ENR Annual Change)) Wherein, "NCFRes" is the new or adjusted capacity fee for residential customers for the upcoming fiscal year; "OCFRes" is the capacity fee in effect during the current fiscal year; and "ENR Annual Change" is the percentage change in the Engineering News Record Construction Cost Index for the San Francisco area from December for the second prior calendar year to December for the prior calendar year. 2. Annual Economic Adjustment To Capacity Fee For Accessory Dwellings. The capacity fee for accessory dwellings shall be adjusted in accordance with the following formula: NCFAcc = OCFAcc + ((OCFAcc) x (ENR Annual Change)) Wherein, "NCFAcc" is the new or adjusted capacity fee for accessory dwellings for the upcoming fiscal year; "OCFAcc" is the capacity fee in effect during the current fiscal year; and "ENR Annual Change" is the percentage change in the Engineering News Record Construction Cost Index for the San Francisco area from December for the second prior calendar year to December for the prior calendar year. Resolution No. 2008-097 N.C.S. Nage 8 3. Annual Economic Adjustment To Capacity Fee For Non-Residential Customers. The unit costs for DF, BOD and TSS used in calculating the capacity fee for non-residential customers shall each be adjusted in accordance with the following formula: NUC = OUC + ((OUC) x (ENR Annual Change)) Wherein, "NUC" is the new or adjusted unit cost for DF, BOD or TSS for non-residential customers for the upcoming fiscal year; "OUC" is the unit cost for DF, BOD or TSS in effect during the current fiscal year; and "ENR Annual Change" is the percentage change in the Engineering News Record Construction Cost Index for the San Francisco area from December for the second prior calendar year to December for the prior calendar year. c. COMPUTATION AND PAYMENT OF CAPACITY FEES. i. General. The Director or his/her designee shall compute all fees as set forth in this resolution. Payment for the capacity fees shall be made in full prior to capacity to the wastewater utility, or discharge of wastewater from the facility if there is already a capacity to the wastewater utility. ii. Mixed Use. Parcels that mix Residential Users and Non- Residential Users must be separately metered so Residential Users are served by a meter(s) that is separate from the meter(s) serving Non-Residential Users. 6. Allowance for Industrial Relocation Credit 4ualification for Industrial Relocation Credit i. Applicability. This section shall apply to Industrial Wastewater only, not to domestic wastewater. If the transfer of an industry discharging Industrial Wastewater to a different parcel of land does not impose any additional burden on the City's wastewater utility, a credit, which shall be referred to as a relocation credit, may be allowed, provided that: A. Same Operation. Essentially the same industrial operation, as determined by the Director, has been transferred from one parcel to another and such operation was previously connected to the City's wastewater utility; B. Ownership. The same person now making claim to the relocation credit owned the industrial operation prior to the transfer and will continue to own the industrial operation at the new location. C. Abandonment. The owner has demonstrated to the satisfaction of the City that the industrial operation has been abandoned from the parcel from which the transfer has occurred, or presented a certification in writing that such industrial operation will be abandoned within six (6) months of the City approving an application for connection. Should the industrial operation not be abandoned within the prescribed period, the relocation credit shall be revoked and a capacity fee, with respect to the parcel to which the Resolution No. 2008-097 N.C.S. Page 9 industrial operation transferred, shall be due and payable as of the date said parcel was connected to the City's wastewater utility. D. Disconnection. The connection to the wastewater utility at the prior parcel has been disconnected and capped, the meter has been removed, and the account closed. Any subsequent use of the prior parcel requiring connection to the wastewater system will pay a new wastewater capacity fee in accordance with this resolution. E. Capacity. There is adequate capacity in the City's wastewater utility to accommodate connection of the industrial operation to be transferred. ii. Basis for Relocation Credit. The capacity fee for the relocated industrial operation shall be calculated per Section 5(b)(iii)(A). If the loading parameters (DF, BOD, TSS) for the industrial operation at its new location are equivalent to the loading parameters for the industrial operation at its prior location, no additional capacity fee shall be applied. Ifthe loading parameters for theindustrial operation at its new location will be increased over the loading parameters for the industrial operation at its prior location, then an additional capacity fee shall be calculated per Section 5(b)(iii)(D). 7. Capacity Fees for Restaurants and Laundromats Using Best Available Technolo;y. If a restaurant or laundromat applies for a wastewater capacity fee and installs and continues to use the most water efficient hardware, fixtures, and systems (Best Available Technology) as determined by the Director, the wastewater capacity fee will be 50% less than the fee determined by Table 3-1 8. Use of Fee Revenue. In accordance with Government Code Section 66013(c), the revenues raised by payment of the Fee shall be placed in a separate, interest bearing account to permit accounting for such revenues and the interest which they generate. Such revenues and interest shall be used only for the Facilities and the purposes for which the Fee was collected, which are the following: a. To pay for acquisition of the Facilities; b. To pay for design, engineering, construction of and property acquisition for, and reasonable costs of outside consultant studies related to, the Facilities; c. To reimburse the City for the Facilities constructed by the City with funds from other sources including funds from other public entities, unless such funds were obtained from grants or gifts intended by the grantor to be used for the Facilities. d. To reimburse developers that have designed and constructed any of the Facilities with prior City approval and have entered into an agreement, as provided in Section 12 below; and e. To pay for and/or reimburse costs of program development and ongoing administration of the Fee program, including, but not limited to, the. cost of studies, legal costs, and other costs of updating the Fee. Resolution No. 2008-097 N.C.S. Page 10 9. Standards. The Standards upon which the need for the Facilities is based are the standards of the City, including the standards contained in the General Plan, the General Plan E.I.R., and those City standards reflected in the Report. 10. Periodic Review. In accordance with Government Code Section 66013(d), the City shall make available to the public, within 180 days after the last day of each fiscal year, the following information for that fiscal year: A description of the charges deposited in the account. b. The beginning and ending balance of the account and the interest earned from investment of moneys in the account. The amount of charges collected in that fiscal year. d. An identification of all of the following: i. Each public improvement on which charges were expended and the amount of the expenditure for each improvement, including the percentage of the total cost of the public improvement that was funded with those charges if more than one source of funding was used. ii. Each public improvement on which charges were expended that was completed during that fiscal year. iii. Each public improvement that is anticipated to be undertaken in the following fiscal year. iv. A description of each interfund transfer or loan made from the capital facilities fund. The information provided, in the case of an interfund transfer, shall identify the public improvements on which the transferred moneys are, or will be, expended. The information, in the case of an interfund loan, shall include the date on which the loan will be repaid, and the rate of interest that the fund will receive on the loan. The information required pursuant to this Section 10 may be included in the City's annual financial report. The information prescribed in this Section 10 shall not apply to: moneys received to construct public facilities pursuant to a contract between a local agency and a person or entity, including, but not limited to, a reimbursement agreement pursuant to Government Code Section 66003, or to charges that are used to pay existing debt service or which are subject to a contract with a trustee for bondholders that requires a different accounting of the charges, or charges that are used to reimburse the local agency or to reimburse a person or entity who advanced funds under a reimbursement agreement or contract for facilities in existence at the time the charges are collected. Resolution No. 2008-097 N.C.S. Page 1 1 11. Subsequent Analysis and Revision of the Fee. The Fee set herein is adopted and implemented by the City Council in reliance on the Record identified above. The City may continue to conduct further study and analysis to determine whether the Fee should be revised. When additional information is available, the City Council may review the Fee to determine that the Fee amounts are reasonably related to the impact of development within the City. In addition to the inflation adjustments specified in this Resolution, the City Council may revise the Fee to incorporate the findings and conclusions of further studies and any standards in the EIR and General Plan, or the Report as from time to time amerided by the City. 12. Credits and Reimbursement for Developer Constructed Facilities. The City and a developer may enter into an improvement agreement to allow the developer to construct certain of the. Facilities. Whether the City enters such an agreement is in the City's sole discretion. Such agreement shall provide for security for the developer's commitment to construct the Facilities and shall refer to this Resolution for credit and reimbursement. If the City enters into such an agreement with a developer prior to construction of one or more of the Facilities, the City shall provide the developer a credit in accordance with the following: a. Credit Amount. The credit shall be in the amount of the lowest bid received for construction of the facility, as approved by the Director. However, in no event shall a credit pursuant to this provision exceed the current facility cost. For the purposes of this Sectionl2, such current facility cost shall be the amount listed in Table 1 of the Report for that particular facility as subsequently adjusted pursuant to this Resolution prior to issuance of the building permit for that facility. Once issued, credit pursuant to this Section 12 shall .not be ,adjusted for inflation or any other factor. Credit provided pursuant to this Section 12 is not transferable. b. Application of Credit. Credit pursuant to this Section 12 may be applied by developers against the Fee applicable to a particular project until the credit is exhausted or an excess credit results. The total credit shall be divided by the number of units (for a residential project) to determine the amount of credit which can be applied against the Fee for each unit and, if the credit per unit is less than the Fee per unit, the developer shall pay the difference for each unit. If a credit pursuant to this Section 12 is less than the Fee applicable to a particular non- residential development project, the developer shall pay the City the balance in cash. c. Reimbursement for Excess Credit. Reimbursement for excess credit shall only be from remaining unspent Fee revenues. Once all the Facilities have been constructed or acquired and to the extent Fee revenues are sufficient to cover all claims for reimbursement of Fee revenues, including reimbursement for excess credit, developers with excess credit shall be entitled to reimbursement, subject to such developers certifying in writing to the City that the cost of constructing the facility which resulted in an excess credit was not passed on to homeowners, and indemnifying the City from land owner claims for reimbursement under Government Code Section 66000 et seq. and Section 66001 in particular. If remaining fee revenues after all of the facilities have been constructed or acquired are insufficient to cover all claims for reimbursement of fee revenues, such claims, including claims for reimbursement of excess credit, shall be reimbursed on a pro rata basis in accordance with applicable law. Resolution No. 2008-097 N.C.S. Page 12 13. Effective Date. This Resolution shall become effective on the effective date of the General Plan. In accordance with Government Code Section 66017, the Fee shall be effective 60 days from the effective date of this Resolution. The Fee shall supersede the wastewater fee established and adopted by Resolution Number 2003-206 N.C.S. on October 27, 2003 upon the Fee becoming effective pursuant to Government Code Section 66017. However, in the case of Development , subject to the Subdivision Map Act (Government Code Section 66410 et seq. ),the Fee shall supersede the fee established by Resolution Number 2003-206 N.C.S. on October 27, 2003 as to such development upon the Fee becoming effective pursuant to Government Code Section 66017 and Section 2(b) of this Resolution. 14. Severability. Each component of the Fee and all portions of this Resolution are severable. Should any individual component of the Fee or any portion of this Resolution be adjudged to be invalid and unenforceable by a body of competent jurisdiction, then the remaining Fee components and/or Resolution portions shall be and continue in full force and effect, except as to those Fee components and/or Resolution portions that have been adjudged invalid. The City Council hereby declares that it would have adopted this Resolution and each section, subsection, clause, sentence, phrase, and. other portion thereof, irrespective of the fact that one subsection, clause, sentence, phrase or other portion maybe held invalid or unconstitutional. 15. Su~ersecession/Repeal/Savin>s. All resolutions and parts thereof in conflict with the provisions of this Resolution are superseded and repealed, effective on the effective date of the Fee imposed pursuant to Section 2. However, violations, rights accrued, liabilities accrued, or appeals taken, prior to the effective date of this Resolution, under any chapter, ordinance, or part of an ordinance, or resolution or part of a resolution, shall be deemed to remain in full force for the purpose of sustaining any proper suit, action, or other proceedings, with respect to any such violation; right, liability or appeal. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: 1 hereby certify the foregoing Resolution was introduced and adopted by the pr ~ ~pproved as to Council of the City of Petaluma at a Regular meeting on the 19`~ day of May, 2008, ~~ ~ form: by the following vote: AYES: Barrett, Harris, Nau, O'Brien, Vice Mayor Babbitt, Mayor Torliatt NOES: None ABSENT: Freitas ABSTAIN: None ATTEST: Deputy City Clerk City Attorney Resolution No. 2008-097 N.C.S. Page 13