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HomeMy WebLinkAboutResolution 2012-126 N.C.S. 08/27/2012 Resolution No. 2012-126 N.C.S. of the City of Petaluma, California UPDATING THE WATER CAPACITY FEE FOR NEW DEVELOPMENT IN THE CITY OF PETALUMA AND SUPERSEDING SUCH FEE UPDATED BY RESOLUTION NO. 2008-096 N.C.S., ADOPTED MAY 19, 2008 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 ("EIR") was prepared for the General Plan (State Clearinghouse #2004082065) pursuant to the California Environmental Quality Act ("CEQA") and certified by the City Council on April 7, 2008 by Resolution No. 2008-058 N.C.S.; and, WHEREAS, the General Plan area is shown on the land use maps contained in the General Plan; and, WHEREAS, the City Council last updated the City's Water Capacity Fee for New Development by Resolution No. 2008-096 N.C.S., adopted May 19, 2008; 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; and, WHEREAS, the General Plan incorporates policies and programs to mitigate the impacts of such anticipated new development, including policies that require new development to pay for its proportional fair share of the cost of acquiring and improving public facilities necessary to meet the demands of residents, employees, customers, and businesses; and, WHEREAS, the General Plan and its 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 the cost 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 I of the General Plan provides that the City should "Maintain a residential growth management system to ensure public infrastructure keeps pace with growth"; and, Resolution No. 2012-126 N.C.S. Page I WHEREAS, Policy 1-P-48 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 the development," and includes program A which provides that the City should: "Collect proportionate fair 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 to coincide with demand"; and, WHEREAS, Goal 8-G-1 of the General Plan provides that the City should "Provide a safe, reliable, high-quality, economical and sustainable source of water to meet the community's needs"; and, WHEREAS, Program (A) of Policy 8-P-4 of Goal 8-G-1 of the General Plan provides that "The City shall continue to monitor the demand for water for projected growth against actual use, and ensure that adequate water supply is in place prior to, or in conjunction with, project entitlements"; and, WHEREAS, Goal 8-G-7 of the General Plan provides that the City should "Continue to invest in the City's storage and distribution system to insure reliable delivery of high quality water to meet dailyand emergency needs"; and, WHEREAS, Policy 8-P-22 of Goal 8-G-7 of the General Plan provides that the City should "Invest in the maintenance, repair and replacement of the water utility infrastructure"; and, WHEREAS, Policy 8-P -26 of Goal 8-G-7 of the General Plan provides that the City should "Encourage continued development of the City's water supply and distribution system to meet established system pressure and fire flow standards (including reservoirs, mains, and hydrants)"; and, WHEREAS, to plan for anticipated growth under General Plan 2025, the City Department of Water Resources and Conservation and its consultants have undertaken engineering and financial studies to determine the necessary infrastructure and expanded water conservation programs to provide a potable water supply sufficient to serve existing and anticipated development under General Plan 2025; and, WHEREAS, the City retained Bartle Wells Associates to determine, based in part on the land use designations provided by the General Plan, the water and wastewater capacity necessary to maintain the level of such services provided to the community and to fund new development's share of the costs of maintaining adequate capacity for water and wastewater amenities to Petaluma; and, WHEREAS, an analysis of the capacity charges necessary to recover the cost of water facilities needed to serve future costumers was prepared by Bartle Wells Associates dated August 15, 2012, entitled "Water & Wastewater Capacity Charges" ("Report"), a copy of which is on file in the Office of the City Clerk, and is hereby incorporated by reference; and, WHEREAS, the Report, the General Plan and the General Plan EIR describe the facilities necessary to provide adequate water supply in the City; and, Resolution No.2012-126 N.C.S. Page 2 WHEREAS, the Report, the General Plan and the General Plan EIR describe the impacts of contemplated future development on existing public facilities in the City of Petaluma and analyze the need for the new facilities required by future development within the City of Petaluma, described above and in the Report; and, WHEREAS, the Report describes new development's share of the cost of existing facilities (buy-in), and the costs needed to finance construction of necessary capital improvements to serve new development as described in the Report, the General Plan, the City's Urban Water Management Plan and the City's budget for capital improvements (collectively, the "Facilities"); and, WHEREAS, the Report sets forth the relationship between contemplated future development, the Facilities, and the estimated cost of the Facilities; and, WHEREAS, the Report estimates the cost in current dollars of the Facilities, assigns the portion of the cost attributable to new development, and calculates the fees necessary to raise the revenue necessary to pay for the portion of the cost of the Facilities attributable to new development; and, WHEREAS, The Fee is not a "tax" as defined in Section 1, paragraph (e) of Article XIIIC of the California Constitution ("Proposition 26") because such fee is imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable cost to the City of providing the service or product; and/or the fee is imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable cost to the City of providing the service or product; and/or the fee is imposed for the reasonable regulatory costs to the City of issuing licenses and permits, performing investigations, inspections and audits, enforcing agricultural marketing orders and the administrative enforcement and adjudication thereof; and/or the fee is imposed as a condition of property development; and, WHEREAS, the Fee adopted by this Resolution is not subject to the requirements of Article XIIID of the California Constitution ("Proposition 218") concerning property related assessments and fees pursuant to Apartment Association of Los Angeles County v. City of Los Angeles (2001) 24 Ca1.4th 830, in that such fee is not applicable to incidents of property ownership, but rather to actual use of and need for City services and/or facilities; and, WHEREAS, in accordance with Government Code Section 50076, fees and charges that do not exceed the reasonable cost of providing the service or regulatory activity for which the fees are charged and which are not levied for general revenue purposes are not special taxes as defined in Article 3.5 of the Government Code; 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 timely 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 City Council considered the adoption of the Fee; and, Resolution No. 2012-126 N.C.S. Page 3 WHEREAS, ten (10) days advance notice of the public hearing at which the City Council considered the Report and adoption of the Fee was given by publication in accordance with Government Code Section 6062a; and, WHEREAS, on August 27, 2012, the City Council introduced Ordinance No. 2444 N.C.S, which adds a new Title 19, entitled "Development Fees," to the Petaluma Municipal Code and amends, repeals and/or recodilies various provisions authorizing the City's development-related fees, including the City Facilities Development Impact Fee, Open Space Land Acquisition Fee, Park Land Acquisition Fee (Non-Quimby Act), Park Land Acquisition Fee (Quimby Act), Traffic Development Impact Fee, Water and Wastewater Capacity Fees and the Commercial Development Housing Linkage Fee. FINDINGS WHEREAS, the City Council finds as follows: A. After considering the Report, the testimony received at the noticed public meeting at which this resolution was adopted, the accompanying staff report, the General Plan, the General Plan EIR, and all correspondence received at or prior to the public meeting (the "Record"), the Council approves and adopts the Report; and the City Council further finds that the future development in the City of Petaluma will generate the need for the Facilities, and the Facilities are consistent with the City's General Plan. B. The City currently provides water facilities and supplies water to the community and the fee set forth in this resolution will be used to maintain current service levels. As such, the Water Capacity Fee as it relates to development within the City is not a "project" within the meaning of CEQA (Pub.Res. Code §21080(b)(8)(D)). C. In adopting the Water Capacity Fee for New Development in the City of Petaluma, the City Council is exercising its powers under Article XI, §§5 and 7 of the California Constitution, Chapter 5 of Division 1 of the Government Code ("Mitigation Fee Act"), commencing with Section 66000, Section 54 of the City of Petaluma Charter, and Chapter 19.28 of the Petaluma Municipal Code, collectively and separately. D. The Record establishes: 1. In accordance with section 66013, subdivision a, of the Mitigation Fee Act, the Water Capacity Fee imposed by this Resolution ("Fee") does not exceed the estimated reasonable cost of providing the water services for which the Water Capacity Fee is imposed, in that the Fee is calculated based on the relationship between the value of the City's existing water facilities, and the value of upgrades and additional capacity needed to serve new users, and allocates to new water system customers their fair share of the cost of existing and future water improvements needed to Resolution No.2012-126 N.C.S. Page 4 serve the new customers. The Fee includes the buy-in component for existing facilities and projected capital expenditures that strictly benefit new customers, as described in the Report, and Urban Water Management Plan ("UWMP"), which plans are incorporated by reference, as well as in the City's capital improvement plan. The UWMP establishes that water system improvements are required, and justifies the changes in the water capacity charge based on the amount required to "buy into" existing facilities and anticipated City capital expenditures. The Report explains how the capacity charges are calculated on the basis of capital costs related to the upgrades and expansion of the water system required by the addition of future connections. The Fee is necessary to cover the City's cost of improvements required to serve anticipated future connections. 2. The cost estimates set forth in the Report are reasonable estimates for constructing or acquiring the Facilities, and the Fees expected to be generated by future development will not exceed the projected cost of constructing and/or acquiring the Facilities; and, 3. The method of allocation of the Fee to a particular development bears a fair relationship and is roughly proportional to each development's burden on and benefits from the Facilities to be funded by the Fee, in that the Fee is calculated based on the water facilities demand each particular development will generate. 4. The Report is a detailed analysis of how public services will be affected by development in the City and the public facilities required to accommodate that development. 5. The Fee is consistent with the General Plan and, pursuant to Government Code Section 65913.2; the City Council has considered the effects of the Fee with respect to the City's housing needs as established in the housing element of the General Plan. ADOPTION OF FEE NOW, THEREFORE, BE IT RESOLVED, 1. Definitions. a. "Accessory Dwelling" shall mean a second unit which meets the standards set forth in Section 7.030 of Chapter 7, "Standards for Specific Land Uses" of the City of Petaluma Implementing Zoning Ordinance ("IZO"), as modified by any subsequent amendment or successor zoning ordinance and/or development code provision adopted by the City which defines Accessory Dwelling, second unit or second dwelling unit." b. "Commercial" shall mean any development constructed or to be constructed on land having a General Plan 2025 land use or zoning designation, as established in the Implementing Zoning Ordinance, No. 2300 N.C.S., or any successor ordinance, for facilities for the purchase and Resolution No. 2012-126 N.C.S. Page 5 sale of commodities and services and the sales, servicing, installation, and repair of such commodities and services and other uses incidental to these activities. Commercial land uses include but are not limited to: apparel and clothing stores; auto dealers and malls; auto accessories stores; banks and savings and loans; beauty salons; book stores; discount stores and centers; dry cleaners; drug stores; eating and drinking establishments; furniture stores and outlets; general merchandise stores; hardware stores; home furnishings and improvement centers; laundromats; liquor stores; service stations; shopping centers; supermarkets; bicycle shops; cameras and photographic supply stores; convenience stores; department stores; drug stores and pharmacies; jewelry stores; luggage and leather goods stores; sporting goods and equipment stores; stationery stores; collectible stores; second hand goods stores; religious goods stores; hobby materials stores; small wares stores; plant sales; bowling alleys; coin-operated amusement arcades; dance halls, clubs and ballrooms; electronic game arcades; ice skating and roller skating establishments; pool and billiard rooms; amusement and theme parks; go-cart tracks; golf driving ranges; miniature golf courses; water slides; banks and trust companies; credit agencies; holding companies; lending and thrift institutions; securities/commodity contract brokers and dealers; fueling stations and gas stations; security and commodity exchanges; vehicle finance leasing agencies; restaurants, cafés and coffee shops; and movie theatres and civic. theatres. c. "Developed" and "Development" shall mean the construction or alteration of or addition to, other than by the City, of any building or structure within the City of Petaluma and within any areas served by the City outside the jurisdictional limits of the City. d. "Director" shall mean the Director of Public Works and Utilities or his/her designee. e. "Facilities" shall include those facilities that are described in the Report. "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 new development within the City and the need for alternative facilities (2) that the alternative facilities are comparable to the facilities listed in the Report, 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. f. "Industrial" shall mean any development constructed or to be constructed on land having a General Plan 2025 land use or zoning designation as established in the Implementing Zoning Code, Ordinance No. 2300 N.C.S., or any successor ordinance, for the manufacture, production, assembly, and processing of consumer goods, uses incidental to those activities, and research, development and warehousing. Industrial land uses include, but are not limited to: assembly; contractor's storage yards; Resolution No. 2012-126 N.C.S. Page 6 fabrication; lumber yards; manufacturing; outdoor stockyards and service yards; printing; processing; warehouses and distribution centers; wholesale and heavy commercial enterprises; clothing, fabric and other product manufacturing; electronics, equipment, and appliance manufacturing; metal products fabrication, machine and welding shops; paper product manufacturing; food and beverage product manufacturing; small-scale manufacturing; lumber and wood product manufacturing; machinery manufacturing; motor vehicle and transportation equipment manufacturing; stone and cut stone product manufacturing; structured clay and pottery product manufacturing; processing of building materials, chemicals, fabricated metals, paper products, machinery, textiles, and/or equipment; and collection, sorting and processing enterprises. g. "Mixed Development" shall mean a development that includes more than one of the types of development defined in this Section 1. Mixed developments may combine residential types of development (Single Family and Multifamily), non-residential types of development (Commercial, Industrial, and Office), or a combination of residential and non-residential types of development. h. "Multifamily Residential" shall mean any residential Development that does not qualify as detached single family dwelling unit Development as defined in the California Building Standards Code, as adopted by the City. "Non-residential User" includes, but is not limited to, any commercial, industrial or institutional customer. j. "Office" shall mean any development constructed or to be constructed on land having a General Plan 2025 land use or zoning designation, as established in the Implementing Zoning Ordinance, Ordinance No. 2300 N.C.S., or any successor ordinance, for general business offices, medical and professional offices, administrative or headquarters offices for large wholesaling or manufacturing operations, and other uses incidental to these activities. Office land uses include but are not limited to: administrative headquarters; business parks; finance offices; insurance offices; legal offices; medical and health services offices; office buildings; professional and administrative offices; professional associations; real estate offices; and travel agencies. k. "Single Family Residential" shall mean detached, single-family dwelling unit development as defined in the California Builders Standards Code, as adopted by the City. 2. Water Capacity Fee Imposed. In accordance with Government Code Section 66013 and Chapter 19.28 of the Petaluma Municipal Code, a Water Capacity 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 in accordance with the following: Resolution No. 2012-126 N.C.S. Page 7 a. General. Connection may be made to the City's water system in locations approved by and subject to the regulations of the City Council, upon payment to the City of the fee specified below and other specifications hereinafter indicated. b. Capacity Fees. i. New Users. A Fee shall be levied for each new water meter connecting to the City water system according to the size of the meter as shown in Table 2.1. Table 2.1 Water Capacity Fees Meter Size (inches) Fee $3,488 1 (residential) $3,488 1 (nonresidential) $5,825 1 '/z $11,615 2 $18,591 3 $34,880 • 4 $58,145 6 $115,104 ii. Capacity Fee on Rebuilding, Remodeling or 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 water system, in a manner which increases the size of the meter, an additional Fee shall be due. In no instance shall a refund be granted if the rebuilding, remodeling or expansion of a Non-residential User facility decreases the size of the building or the meter. The additional Fee for the expansion, remodeling or rebuilding of any non-residential building, structure, or premises, currently connected to the water system, in a manner which increases the size of the meter shall be calculated as follows: ACF =NCF —OCF Wherein, "ACF" is the additional Fee; "NCF" is the new Fee calculated per Section 2(b) with the size of the meter to be determined based on the facility after the expansion, remodeling or rebuilding; and "OCF" is the old Fee calculated per Section 2(b) with the size of the meter used at the facility prior to any expansion, remodeling or rebuilding. Resolution No. 2012-126 N.C.S. Page 8 iii. Industrial Relocation. This provision shall not be applied to a non- residential property or building that was formerly used for an industrial operation that has vacated the premises, relocated to a different parcel, and/or has received a relocation credit per Section 5. c. Annual Economic Adjustment to Fee. On July 1 of each year, commencing on July 1, 2014, the Fees described herein shall be adjusted to account for increases or decreases in the index set forth below. The Fees shall be adjusted as follows. i. Annual Economic Adjustment to Fee. The Fee shall be adjusted in accordance with the following formula: NCF =OCF + ((OCF) x (ENR Annual Change)) Wherein, "NCF" is the new or adjusted Fee for the upcoming fiscal year; "OCF" is the 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. d. Computation and Payment of Fees: The Director or his/her designee shall compute all Fees set forth in 2(b). Payment for the Fees shall be made in full prior to connection to the water system. e. Refund Applications Based on 2008 Water Capacity Fee Paid: Current owners of development that paid a water capacity fee pursuant to Resolution 2008-096 may apply for a refund of the difference between the that fee and the water capacity fee imposed by this resolution ("current fee"), subject to the following: 1. To be eligible for a refund, current development owners must certify in writing to the City that the owner has not recovered or is not recovering from third parties such as tenants or others the amount of the prior fee paid or the amount by which the prior fee exceeds the current fee. 2. Any refunds pursuant to this provision shall only be paid from existing, unobligated, unspent Fee revenue balances. The City will have no obligation to pay refunds to any owner absent sufficient existing, un-obligated, unspent Fee revenue balance available for that purpose. 3. If existing, unobligated, unspent Fee revenue balances are insufficient to cover eligible applications for refund, such eligible applications shall be paid refunds a pro rata basis in accordance with applicable law. Resolution No. 2012-126 N.C.S. Page 9 3. Time for Imposing Fee for Residential Subdivisions. In accordance with Government Code Section 65961, the Fee for subdivisions 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. 5. Allowance for Industrial Relocation Credit. a. Applicability. This section shall apply to Industrial customers only. If the transfer of an industry, using water, to a different parcel of land does not impose any additional burden on the City's water utility, a credit, which shall be referred to as a relocation credit, may be allowed, provided that: i. 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 water utility; ii. 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. iii. 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 industrial operation transferred, shall be due and payable as of the date said parcel was connected to the City's water utility. iv. Disconnection. The connection to the water 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 water system will pay a new water capacity fee in accordance with this resolution. Resolution No. 2012-126 N.C.S. Page 10 v. Capacity. There is adequate capacity in the City's water utility to accommodate connection of the industrial operation to be transferred. b. Basis for Relocation Credit. The Fee for the relocated industrial operation shall be calculated per Section 2(b). if the meter size for the industrial operation at its new location is equivalent to the meter size for the. industrial operation at its prior location, no additional capacity fee shall be applied. If the meter size for the industrial operation at its new location will be increased over the meter size for the industrial operation at its prior location, then an additional capacity fee shall be calculated per Section 2(b). 6. 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 programs, measures, 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 10 below; and, e. To pay for and/or reimburse costs of program development and ongoing administration and maintenance of the Fee program, including, but not limited to, the cost of studies, legal costs, and other costs of updating the Fee. 7. 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 and its EIR and those City standards reflected in the Report. 8. 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 Resolution No. 2012-126 N.C.S. Page 11 following information for that fiscal year: a. 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. c. 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 8 may be included in the City's annual financial report. The information prescribed in this Section 8 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. 9. Subsequent Analysis and Revision of the Fee. The Fee set forth 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 remain reasonably related to the impacts of development within the City of Petaluma and areas included in the City's General Resolution No. 2012-126 N.C.S. Page 12 Plan. The City Council may revise the Fee to incorporate findings and conclusions of further studies and any standards in General Plan and/or the General Plan EIR, as well as increases due to inflation and increased construction costs. 10. 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. Entering such an agreement is within 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 section, such current facility cost shall be the amount listed in 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 shall not be adjusted for inflation or any other factor. Credit provided pursuant to this section is not transferable. b. Application of Credit. Credit pursuant to this section 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 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.2012-126 N.C.S. Page 13 11. Effective Date. This resolution and the Fee imposed pursuant to Section 2 shall become effective on the effective date of Ordinance No. 2444 N.C.S. 12. Severability. Each component of the Fee and all portions of this Resolution are severable. Should any individual component of the Fee or other provision of this Resolution be adjudged to be invalid and unenforceable, the remaining component or provisions shall be and continue to be fully effective, and the Fee shall be fully effective except as to that component that has been judged to be invalid. 13. Supersession/Repeal/Savings. 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 ofsaid City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the owed as to Council of the City of Petaluma at a Special meeting on the 2T"day of August, brm: 2012,by the following vote: City r ttorney AYES: Albertson, Harris, Healy,Kearney,Vice Mayor Renee NOES: Barrett, Mayor Glass ABSENT: None - ABSTAIN: None ATTEST: J azeic 4erk Mayor Resolution No. 2012-126 N.C.S. Page 14