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HomeMy WebLinkAboutOrd 2009-3131ORDINANCE NO. 3131 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING ORDINANCE 2716 TO UPDATE THE POGGI CANYON SEWER BASIN DEVELOPMENT IMPACT FEE TO PAY FOR SEWER IMPROVEMENTS WITHIN THE POGGI CANYON SEWER BASIN AS A CONDITION OF ISSUANCE OF BUILDING PERMITS WHEREAS, the City's General Plan Land Use and Public Facilities Elements require that adequate public facilities be available to accommodate increased population created by new development; and WHEREAS, the City Council has determined that new development within certain areas within the City of Chula Vista as identified in this ordinance, will create adverse impacts on certain existing public facilities which must be mitigated by the financing and construction of those facilities identified in this ordinance; and WHEREAS, developers of land within the City are required to mitigate the burden created by their development by the construction or improvement of those facilities needed to provide service to their respective developments or by the payment of a fee to finance their fair shaze portion of the total cost of such facilities; and WHEREAS, development within the City contributes to the cumulative burden on vazious sewer facilities in direct relationship to the amount of population generated by the development or the gross acreage of the commercial or industrial land in the development; and WHEREAS, the Poggi Canyon Sewer Basin (Basin) is that area of land within the City of Chula Vista which wastewater will flow by gravity from Poggi Canyon into the Main Street Basin; and WHEREAS, on December 9, 1997, the City Council of the City of Chula Vista adopted Ordinance No. 2716 establishing a Development Impact Fee to pay for sewer improvements within the Poggi Canyon Sewer Basin as a condition of issuance of building permits; and WHEREAS, PMC Consultants has prepared the update to the Poggi Canyon Sewer Basin Plan (Report) dated Apri12009; and WHEREAS, said Report includes an estimate of ultimate sewer flows anticipated from development within the Poggi Canyon Basin, recommends sewer facilities needed to transport these flows, and establishes a fee payable by persons obtaining building permits for developments within these basins benefiting from the construction of these facilities; and WHEREAS, on May 11, 2009, City staff notified major developers of the proposed Poggi DIF Update via e-mail and conventional mail, and asked developers to provide comments on the Report and City staffs recommendations for amending the Poggi Canyon Sewer Basin Development Impact Fee (Impact Fee); and Ordinance No. 3131 Page 2 WHEREAS, the City's Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 (b) (4) [Creation of funding mechanisms] of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary; and WHEREAS, on June 16, 2009 a Public Heazing was held before the City Council to provide an opportunity for interested persons to be heazd on the approval of the Report and revising of the Poggi Canyon Sewer Basin Development Impact Fee; and WHEREAS, the City Council determined, based upon the evidence presented at the Public Hearing, including, but not limited to, the Report and other information received by the City Council in the course of its business, that imposition of the Impact Fee on all developments within the Poggi Canyon Basin in the City of Chula Vista for which building permits have not yet been issued is necessazy in order to protect the public safety and welfaze and to ensure effective implementation of the City's General Plan; and WHEREAS, the City Council has determined that the amount of the Impact Fee levied by this ordinance does not exceed the estimated cost of providing the public facilities identified by the Report. NOW, THEREFORE, BE IT ORDAINED that the City Council of the City of Chula Vista does as follows: Ordinance 2716 is hereby amended to read as follows SECTION 1. Environmental Review. That the activity will have no significant environmental impacts, and therefore is not subject to the California Environmental Quality Act (CEQA). SECTION 2. Approval of Report. The City Council has independently reviewed and approved the Report herewith presented, and finds that it is fair, reasonable and equitable to all parties, and herewith adopts same in the form on file with the City Clerk, known as the update to the Poggi Canyon Sewer Basin Plan, dated Apri12009, a copy of which is on file in the office of the City Clerk and the City Engineer. SECTION 3. "Facilities" The facilities which aze subject matter of the impact Fee are fully described in Table 5-2 of the Report on page 5-3, attached as Exhibit "A", and incorporated herein by this reference, (Facilities), all of which Facilities may be modified by the City Council from time to time by resolution. The locations at which the Facilities will be constructed are shown on Figure 2, which is included in the Report. The City Council may modify or amend the list of projects herein considered to be part of the Facilities by written resolution in order to maintain compliance with the City's Capital Improvement Program or to reflect changes in land development and estimated and actual wastewater flow. Ordinance No. 2009-3131 Page 3 SECTION 4. Territory to Which Fee Is Applicable. The azea of the City of Chula Vista to which the Impact Fee herein established shall be applicable is set forth on Figure 2 of the Report, and is generally described herein as the "Territory." SECTION 5. Purpose. The purpose of this ordinance is to provide the necessazy financing to construct the Facilities within the areas shown in Figure 2 of the Report, in accordance with the City's General Plan. SECTION 6. Establishment of Fee. The Impact Fee, to be expressed on a per Equivalent Dwelling Unit (EDU) basis, and payable prior to the issuance of building permits for development projects within the Territory, has been established to pay for the Facilities. SECTION 7. Due on Issuance of Building Permit. The Impact Fee shall be paid in cash upon the issuance of a building permit. Early payment is not permitted. No building permit shall be issued for development projects within the Territory unless the developer has paid the Impact Fee imposed by this Ordinance. SECTION 8. Determination of Equivalent Dwelling Units. Each single family detached dwelling or single family attached dwelling shall be considered one EDU for purposes of this Impact Fee. Each unit within amulti-family dwelling shall be considered 0.75 EDU. Every other commercial, industrial, non-profit, public or quasi-public, or other usage shall be charged at a rate calculated in accordance with the method for estimating EDUs set forth in Exhibit "B", Sewer Benefit Area Fees Based on Land Use Categories. SECTION 9. Time to Determine Amount Due; Advance Payment Prohibited. The Impact Fee for each development shall be calculated at the time of building permit issuance and shall be the amount as indicated at that time and not when the tentative map or final map was granted or applied for, or when the building permit plan check was conducted, or when application was made for the building permit. SECTION 10. Purpose and Use of Fee. The purpose of the Impact Fee is to pay for the planning, design, construction and/or financing (including the cost of interest and other financing costs as appropriate) of the Facilities, or reimbursement to the City or, at the discretion of the City if approved in advance in writing, to other third parties for advancing costs actually incurred for planning, designing, constructing, or financing the Facilities. Any use of the Impact Fee shall receive the advance consent of the City Council and be used in a manner consistent with the purpose of the Impact Fee. Ordinance No. 3131 Page 4 SECTION 11. Amount of Fee; Amendment to the Master Fee Schedule. The Impact Fee shall be calculated at the rate of $265 per EDU. Chapter XVI, Other Fees, of the Master Fee Schedule is hereby amended to add Section D, which shall read as follows: Poggi Canyon Sewer Basin Development Impact Fee. This section is intended to memorialize the key provisions of Ordinance No. 2716, and any amendments thereto, but said Ordinance governs over the provisions of the Master Fee Schedule, except with respect to changes permitted by resolution under Section 11 D(d). For example, in the event of a conflict in interpretation between the Master Fee Schedule and the Ordinance, or in the event that there are additional rules applicable to the imposition of the Impact Fee, the language of the Ordinance governs. A. Territory to which Fee Applicable The area of the City of Chula Vista to which the Impact Fee herein established shall be applicable is set forth in Figure 2 of the Poggi Canyon Basin Gravity Sewer Development Impact Fee Update dated April, 2009, and is generally described as the Poggi Canyon Basin. B. Rate per EDU. The Impact Fee shall be calculated at the rate of $265 per EDU, which rate shall be adjusted from time to time by the City Council. C. EDU Calculation. Each single family detached dwelling or single family attached dwelling shall be considered one EDU for purposes of this Impact Fee. Each unit within a multi- family dwelling shall be considered 0.75 EDU. Every other commercial, industrial, non-profit, public or quasi-public, or other usage shall be charged at a rate calculated in accordance with the method for estimating EDUs, attached as Exhibit "B", "Sewer Benefit Area Fees Based on Land Use Categories". D. When Payable. The Impact Fee shall be paid in cash not later than immediately prior to the issuance of a building permit. The City Council shall review the amount of the impact Fee annually or from time to time. The City Council may, at such reviews, adjust the amount of this Impact Fee as necessary to assure construction and operation of the Facilities. The reasons for which adjustments may be made include, but are not limited to, the following: changes in the costs of the Facilities as may be reflected by such index Ordinance No. 2009-3131 Page 5 as the Council deems appropriate, such as the Engineering-News Record Construction Cost Index (ENR-CCI); changes in the type, size, location or cost of the Facilities to be financed by the Impact Fee; changes in land use in the City's General Plan; other sound engineering, financing and planning information. Adjustments to the above Impact Fee may be made by resolution amending the Master Fee Schedule. SECTION 12. Authority for Accounting and Expenditures. The proceeds collected from the imposition of the Impact Fee shall be deposited into a public facility financing fund ("Poggi Canyon Sewer Basin Benefit Area Fee Fund", or alternatively herein "Fund") which is hereby created and shall be expended only for the purposes set forth in this ordinance. The Director of Finance is authorized to establish various accounts within the Fund for the Facilities identified in this ordinance and to periodically make expenditures from the Fund for the purposes set forth herein in accordance with the facilities phasing plan or capital improvement plan adopted by the City Council. SECTION 13. Findings. Based on all written oral testimony at the hearing on the amendment to the Development Impact Fee, including the Report, the City Council hereby finds the following: A. The establishment of the Impact Fee is necessary to protect the public safety and welfaze and to ensure the effective implementation of the City's General Plan. B. The Impact Fee is necessazy to ensure that funds will be available for the construction of the Facilities concurrent with the need for these Facilities and to ensure certainty in the capital facilities budgeting for growth impacted public facilities. C. The amount of the fee levied by this ordinance does not exceed the estimated cost of providing the Facilities for which the fee is collected. D. New development projects within the Territory will generate a significant amount of wastewater that current sewer facilities can not service, therefore construction of the Facilities will be needed to service new development projects. E. That there is a reasonable relationship between the need for the public facility and the type of development project on which the fee is imposed and the amount of the fee is roughly proportional thereto. SECTION 14. Impact Fee Additional to other Fees and Charges. Ordinance No. 3131 Page 6 The Impact Fee established by this section is in addition to the requirements imposed by other City laws, policies or regulations relating to the construction or the financing of the construction of public improvements within subdivisions or developments. SECTION 15. Mandatory Construction of a Portion of the Facilities; Duty to Tender Reimbursement Offer. Whenever a developer is required as a condition of approval of a development permit to construct or cause the construction of the Facilities or a portion thereof, the City may require the developer to install the Facilities according to design specifications approved by the City and in the size or capacity necessary to accommodate estimated ultimate flow as indicated in the Plan and subsequent amendments. If such a requirement is imposed, the City shall offer, at the City's option, to reimburse the developer from the Fund either in cash or over time as Fees aze collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, for the design and construction of the Facility not to exceed the estimated cost of that particular Facility as included in the calculation and updating of the Impact Fee. The City may update the Impact Fee calculation as City deems appropriate prior to making such offer. This duty to offer to give credit or reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 16. Voluntary Construction of a Portion of the Facilities; Duty of City to Tender Reimbursement Offer. If a developer is willing and agrees in writing to design and construct a portion of the Facilities in conjunction with the prosecution of a development project within the Territory, the City may, as part of a written agreement, reimburse the developer from the Fund either in cash or over time as Fees aze collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their contribution to such Facilities as required by this Ordinance, for the design and construction of the Facility not to exceed the estimated cost of that particulaz Facility as included in the calculation and updating of the Impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. The City may update the impact Fee calculation as City deems appropriate prior to making such offer. This duty to extend credits or offer reimbursement shall be independent of the developer's obligation to pay the Impact Fee. SECTION 17. Procedure for Entitlement to Reimbursement Offer. The City's duty to extend a reimbursement offer to a developer pursuant to Section 15 or 16 above shall be conditioned on the developer complying with the terms and conditions of this section: A. Written authorization shall be requested by the developer from the City and issued by the City Council by written resolution before developer may incur any costs eligible for reimbursement relating to the construction of the Facilities, excluding any work attributable to a specific subdivision project. Ordinance No. 2009-3131 Page 7 B. The request for authorization shall contain the following information, and such other information as may from time to time be requested by the City: (1) Detailed descriptions of the work to be conducted by the developer with the preliminary cost estimate. C. If the Council grants authorization, it shall be by written agreement with the Developer, and on the following conditions among such other conditions as the Council may from time to time impose: (1) Developer shall prepare all plans and specifications and submit same to the City for approval; (2) Developer shall secure and dedicate any right-of--way required for the improvement work; (3) Developer shall secure all required permits and environmental clearances necessary for construction of the improvements; (4) Developer shall provide performance bonds in a form and amount, and with a surety satisfactory to the City; (5) Developer shall pay all City fees and costs. (6) The City shall be held harmless and indemnified, and upon demand by the City, defended by the developer for any of the costs and liabilities associated with the improvements. (7) The developer shall advance all necessary funds for the improvements, including design and construction. The City will not be responsible for any of the costs of constructing the facilities. (8) The developer shall secure at least three (3) qualified bids for work to be done. The construction contract shall be granted to the lowest qualified bidder. Any claims for additional payment for extra work or charges during construction shall be justified and shall be documented to the satisfaction of the Director of Public Works. (9) The developer shall provide a detailed cost estimate which itemizes those costs of the construction attributable to the improvements. The estimate is preliminary and subject to final determination by the Director of Public Works upon completion of the Public Facility Project. (10) The agreement may provide that upon determination of satisfactory incremental completion of the public facility project, as approved and Ordinance No. 3131 Page 8 certified by the Director of Public Works, the City may pay the developer progress payments in an amount not to exceed 75 percent of the estimated cost of the construction completed to the time of the progress payment but shall provide in such case for the retention of 25% of such costs until issuance by the City of a Notice of Completion. (11) The agreement may provide that any funds owed to the developer as reimbursements may be applied to the developer's obligations to pay the Impact Fee for building permits to be applied for in the future. (12) When all work has been completed to the satisfaction of the City, the developer shall submit verification of payments made for the construction of the project to the City. The Director of Public Works shall make the final determination on expenditures which aze eligible for reimbursement. (13) After final determination of expenditures eligible for reimbursement has been made by the Public Works Director, the parties may agree to offset the developer's duty to pay Impact Fees required by this ordinance against the City's duty to reimburse the developer. (14) If, after offset if any, funds aze due the developer under this section, the City may at its option, reimburse the developer from the Fund either in cash or over time as Fees aze collected, or give a credit against the Impact Fee levied by this Ordinance or some combination thereof, in the amount of the costs incurred by the developer that exceeds their required contribution to such Facilities as required by this Ordinance, for the design and construction of the Facility not to exceed the estimated cost of that particular Facility as included in the calculation and updating of the Impact Fee and in an amount agreed to in advance of their expenditure in writing by the City. SECTION 18. Procedure for Fee Modification. Any developer who, because of the nature or type of uses proposed for a development project, contends that application of the Impact Fee imposed by this ordinance is unconstitutional or unrelated to mitigation of the burdens of the development, may apply to the City Council for a waiver or modification of the Impact Fee or the manner in which it is calculated. The application shall be made in writing and filed with the City Clerk not later than ten (10) days after notice is given of the public heazing on the development permit application for the project, or if no development permit is required, at the time of the filing of the building permit application. The application shall state in detail the factual basis for the claim of waiver or modification, and shall provide an engineering and accounting report showing the overall impact on the DIF and the ability of the City to complete construction of the Facilities by making the modification requested by the applicant. The City Council shall make reasonable efforts to consider the application within sixty (60) days after its filing. The decision of the City Council shall be final. Ordinance No. 2009-3131 Page 9 The procedure provided by this section is additional to any other procedure authorized by law for protection or challenging the Impact Fee imposed by this ordinance. SECTION 19. Fee Applicable to Public Agencies. Development projects by public agencies, including schools, shall not be exempt from the provisions of the Impact Fee. SECTION 20. Assessment District. If any assessment or special taxing district is established to design, construct and pay for any or all of the Facilities ("Work Alternatively Financed"), the owner or developer of a project may apply to the City Council for reimbursement from the Fund or a credit in an amount equal to that portion of the cost included in the calculation of the Impact Fee attributable to the Work Altematively Financed. In this regard, the amount of the reimbursement shall be based on the costs included in the Report, as amended from time to time, and therefore, will not include any portion of the financing costs associated with the formation of the assessment or other special taxing district. SECTION 21. Expiration of this Ordinance. This ordinance shall be of no further force and effect when the City Council determines that the amount of Impact Fees which have been collected reaches an amount equal to the cost of the Facilities. SECTION 22. Time Limit and Procedure for Fee Protest and Legal Action. Any fee protest or legal action, including those to attack, review, set aside, void or annul this ordinance, shall be conducted in the manner and within the time limitations set forth in Chapter 9 of the Mitigation Fee Act, title Protests, Legal Actions and Audits, starting with Government Code Section 66020. SECTION 23. Other Not Previously Defined Terms. For the purposes of this ordinance, the following words or phrases shall be construed as defined in this Section, unless from the context it appears that a different meaning is intended. A. "Building Permit" means a permit required by and issued pursuant to the Uniform Building Code as adopted by reference by this City. B. "Developer" means the owner or developer of a development. C. "Development Permit" means any discretionary permit, entitlement or approval for a development project issued under any zoning or subdivision ordinance of the City. Ordinance No. 3131 Page 10 D. "Development Project" or "Development" means any activity described in Section 66000 of the State Government Code. E. "Single Family Attached Dwelling" means a single family dwelling attached to another single family dwelling, with each dwelling on its own lot. SECTION 24. Effective Date. This ordinance shall become effective sixty (60) days after its second reading and adoption. Presented by Richazd A. opkins Director of Public Works Approved as to form by Exhibits: A) Program Costs, Table 5-2 from Poggi Canyon Gravity Sewer Development Impact Fee Update report dated Apri12009. B) Development Impact Fee Per Land Use Category from Poggi Canyon Gravity Sewer Development Impact Fee Update report dated Apri12009. Ordinance No. 2009-3131 Page 11 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 23rd day of June 2009, by the following vote: AYES: Councilmembers: NAYS: Councilmembers ABSENT: Councilmembers ABSTAIN: Councilmembers ATTEST: Bensoussan, Castaneda, Ramirez, and Cox None None McCann Cheryl Cox, Ma} r -~4.~!~d Donna R. Norris, C C, City Clerk STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CHULA VISTA I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing Ordinance No. 3131 had its first reading at a regular meeting held on the 16th day of June 2009 and its second reading and adoption at a regular meeting of said City Council held on the 23rd day of June 2009; and was duly published in summary form in accordance with the requirements of state law and the City Charter. Executed this 23rd day of June 2009. ~-- ~~~ Donna R. Norris, CMC, City Clerk Ordinance No. 3131 Page 12 Exhibit A- Program Costs c6nstt,lct6d Pr6jeas rent, R6achas 201-204, 206.207' AY~N 41,046,032 Raad7203 Cty/DIF 7,4349t6 Read7m 206.273' Aym 736,105 Re4el1274 to 217 o16y Rand+ Ca. 63fl,748 React~278 [6219 McMllin 412,938 Raad+279m 227 ouy 6axh Ca. 261,190 P08p Eaaalon in Olympic Pow j Eudtke 24,000 PaBp Edenaion' Easdaka 7,094,707 9~moi 33.070,736 F7dve (,Gn6trtlCJlnt1 Cents P213R-P270 Olympic Pakway wa(d Bradvwine Ave. 5534,400 P220 • P305 Olympic Parkway aaA of 6nndyvrine Ave. 5481.600 9ub6N61 3976,300 MBullaneats Cw! 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