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2004-174AN ORDINANCE AMENDING THE DENTON CITY CODE BY ADDING ARTICLE VII, ENTITLED "STORM WATER AND DETENTION FACILITY IMPROVEMENTS"; REGULATING THE CONSTRUCTION OF STORM WATER DRAIN LINES, CHANNELS AND DETENTION FACILITIES; PROVIDING FOR PRO RATA CHARGES; PROVIDING A METHOD OF REIMBURSEMENT TO THE DEVELOPER OR TO THE CITY BY PRO RATA PAYMENTS; ESTABLISHING ADMINISTRATIVE FEES; PROVIDING A METHOD OF ENFORCING PAYMENT OF PRO RATA CHARGES; RENUMBERING ARTICLE VII TO ARTICLE VIII UNIFORM REGULATIONS TO GOVERN THE USE AND OCCUPANCY OF PUBLIC RIGHTS-OF-WAY BY PROVIDERS OF ELECTRIC SERVICE IN THE CITY; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES INCONSISTENT OR IN CONFLICT HEREWITH; PROVIDING A SEVERABILITY CLAUSE, PROVIDING A PENALTY NOT TO EXCEED $2000 FOR EACH DAY OF VIOLATION HEREOF; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, under the laws of the State of Texas, every owner of any tract, lot, or plot of land situated within the corporate limits of the City of Denton, Texas (the "City"), or within its jurisdiction, may request the construction of storm water drain lines, channels, and detention facilities; and WHEREAS, when storm water drain lines, channels, and detention facilities are constructed, the developer, consumer, and property owner shall be required to pay pro rata charges for, or participate in, the costs of such improvements; and WHEREAS, the Texas Legislature has specifically exempted drainage pro rata charges from the definition of "impact fee," as referenced in Section 395.001 (4) of the Texas Local Government Code, as amended; and WHEREAS, the City Council of the City of Denton, therefore, is empowered by law to promulgate and establish pro rata charges and participation policies within the City or within its jurisdiction; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The facts and recitations contained in the preamble of this Ordinance are hereby found to be true and correct. SECTION 2. The Denton City Code is hereby amended by adding thereto a new Article VII, which shall read as follows: Article VII. STORM WATER AND DETENTION FACILITY IMPROVEMENTS Sec. 26-235. Definitions. The following words, terms and phrases, when used in this article, shall have the meanings respectively ascribed to them in this section, unless the context clearly indicates otherwise: Capacity shall mean the quantity of storm water that can be distributed, or conveyed, through storm water drain lines, channels or detention facilities. City shall mean the City of Denton, Texas. Cost shall mean the actual costs to design and construct Improvements, including Oversized Improvements, which costs shall include but not be limited to engineering costs and costs for land, labor, and materials. Developer shall mean the party responsible for constructing Oversized Improvements. The term Developer includes the City should the City construct at · its expense or pay for the Oversized Improvements. Impervious Surface shall mean any surface through which water cannot pass, or through which water passes with great difficulty. Improvements shall mean drainage improvements, including, but not limited to storm water drain lines, channels and/or detention facilities, whether on-site or off-site. Oversized shall mean the design and construction of an improvement larger than necessary to support the development and existing up stream run-off, whether on-site or off-site. Pro Rata Charge shall mean a monetary fee charged to a Property Owner to reimburse a Developer for the installation, extension, or any related construction cost of Oversized Improvements provided by a Developer to accommodate the drainage needs of the Property Owner's development. Pro Rata Agreement shall mean an agreement between the City and a Developer, or between the City and a Property Owner, approved by the City Council, establishing reimbursement procedures for the cost of Oversized Improvements constructed by a Developer. 012295.00010:838519.04 Property Owners shall mean the record owners of mai property from which surface water run-off from such real property flows into the Oversized Improvements. Sec. 26-236. Pro Rata Agreement. (a) On and after the passage of this article, the City may enter into Pro Rata Agreements with Developers to impose a Pro Rata Charge due from Property Owners. The Pro Rata Charge shall represent the Property Owner's pro rata share of the calculated Cost of constructing the Oversized Improvements in accordance with the following formula (the "Formula"): The Pro Rata Charge shall be computed based on the additional impervious surface area being generated by the upstream development that contributes surface runoff to the downstream drainage structure. The following method shall be used to determine the Pro-Rata Charge Calculation: Step h Determine impervious cover areas and costs for drainage infrastructure. Drainage improvements shall be sized using the following method: Compute the total impervious surface area within the contributing watershed using existing development conditions with the proposed development added. This impervious area is identified as IMPERVIOUS AREA (IA). Next, determine the peak runoff rate for the new drainage improvements following the procedures described in the Drainage Criteria Manual Section 4. Compute the runoff rate using the existing development conditions of the upstream watershed with the proposed development added. Determine the size and extent of new drainage infrastructure required to convey this peak runoff rate in accordance with the requirements of the Drainage Criteria Manual. Determine the construction cost for the required drainage improvements, identified as DRAINAGE COST ($DC). Next, compute the total impervious surface area within the contributing watershed for a future fully developed condition with the proposed development added. Compute estimates of impervious surface areas for undeveloped sub-areas using the Zoning Classification or Future Land Use identified on the current City of Denton Land Use Plan, and as described in the Drainage Criteria Manual Section 4. Include Planned Unit Developments and Preliminary Plats identified by the City for the impervious surface area computation. This impervious area is identified as FUTURE IMPERVIOUS AREA (FIA). S:~Our Document~\Ordina nces\04\Pro Rata Ord-6-16-04.DOC 3 012295.00010:838519.04 Compute the peak runoff rate using the future fully developed conditions upstream watershed with the proposed development added, following the procedures described in the Drainage Criteria Manual Section 4. Determine the size and extent of new drainage infrastructure required to convey this peak runoff rate in accordance with the requirements of the Drainage Criteria Manual. Determine the construction cost for the required drainage improvements, identified as FUTURE DRAINAGE COST ($FDC). Step 2: Compute the Pro-Rata Formula The Pro-Rata Formula in dollars per square foot of impervious surface shall be calculated as follows: SFDC - SDC FIA- IA The Oversized Improvements' Costs shall be calculated in accordance with the criteria in the Drainage Design Criteria Manual. No Pro Rata Charge is or shall be deemed an impact fee, as defined in Chapter 395 of the Texas Local Govermnent Code, as amended. (b) Upon approval of a Pro Rata Agreement by the City Council, a Pro Rata Charge shall be assessed against all Property Owners and their real property in order to reimburse the Developer for the cost of constructing such Oversized Improvements. All Pro Rata Agreements shall include exhibits listing the affected properties, listing the estimated amounts of the Pro Rata Charges that will be due from each Property Owner, and showing a location map of the Oversized Improvements. The actual amount of the Pro Rata Charges will be determined in accordance with the Formula at the time the Pro Rata Charges are collected. Prior to approving a Pro Rata Agreement the Developer shall submit to the City a watershed map clearly identifying the perimeters of the watershed basin that will be the subject of the Pro Rata Agreement. (c) In addition to Pro Rata Charges for any Oversized Improvements, Property Owners shall pay all other charges related to the use of the Oversized Improvements, including but not limited to, impact and permit fees, if any, as established by the City. (d) Pro Rata Charges will be determined based on the actual amount of calculated surface water runoff determined at the time of f'mal plat application of the affected upstream properties within the same watershed basin, or at the time of S:\Our Doeumen~\Ordina nees~04\Pro Rata Ord-6-16-04.DOC 4 012295.00010:838519.04 building permit application if a final plat is not required, in accordance with the formula set forth in Section 26-236(a) above. Oversized Improvements shall be designed and constructed in accordance with the standards of Subchapter 19 of the Denton Development Code and the Drainage Design Criteria Manual. In the event the Developer wishes to construct Oversized Improvements that exceed the design standards specified in Subchapter 19 of the Denton Development Code and the Drainage Design Criteria Manual, the Costs associated with exceeding such design standards shall not be reimbursable through a Pro Rata Agreement. Because the Pro Rate Charges are based upon the actual development within the watershed basin and the Oversized Improvements are based on the estimated full development of the watershed basin, there is no guarantee that the Pro Rata Charges will completely cover the Cost of the Oversized Improvements. The Pro Rata Charges shall not bear interest and shall not be adjusted for inflation. (e) The Public Improvement Three-Way Agreement between the Developer, the Developer's contractor and the City (the "Three-Way Agreement") shall provide for the construction of the Oversized Improvements at the cost of the Developer. The Three-Way Agreement shall be executed and the Developer shall pay all permit fees, including but not limited to impact, review and inspection fees, if applicable, prior to the release of a construction permit by the City for the Oversized Improvements. The Developer will look solely to the Property Owners within the same drainage basin for reimbursement of the Oversized Costs through the Pro Rata Charges provided for in this ordinance and in the applicable Pro Rata Agreement. (f) Pro Rata Agreements and Pro Rata Charges are subject to the following requirements: 1. Prior to commencing construction of the Oversized Improvements, or prior to acceptance by the City of the Oversized Improvements when an exaction variance request is pending for consideration, the Developer may submit to the City a written request for the establishment of Pro Rata Charges for the Oversized Improvements under this ordinance. The request shall comply with all requirements of this ordinance and shall include documentation of the Costs associated with the construction of the Oversized Improvements, including a copy of the actual construction contract with unit prices as well as an engineer's cost estimate for a system sized for only the Developer's Property and existing off-site conditions with a cost estimate for the Costs of the Oversized Improvements. The Costs of the Oversized Improvements shall be calculated on the basis of the fully developed or redeveloped surface water mn-off within the same watershed basin and based upon the zoning at the time of the calculation of the Oversized Improvements as measured by the criteria in the Drainage Design Criteria Manual. 012295.00010:838519.04 2. The City Engineer, or his designated representative, shall verify the Developer's Cost calculations for reimbursement based on the criteria in the Drainage Design Criteria Manual. In the event of a discrepancy, the City Eng/neer, or his designated representative, shall establish the calculated Cost for the pro rata charge. The City's Cost calculations may be appealed to the Planning and Zoning Commission. 3. The Pro Rata Charge shall be paid by a Property Owner prior to final plat approval of the Property Owner's property. Should final plat approval not be required the Pro Rata Charge shall be paid prior to the issuance of a building permit. 4. The City shall not be obligated to collect all or any part of a Pro Rata Charge from a Property Owner under either of the following situations: A Property Owner has filed written objections to all or part of a Pro Rata Charge as being unlawful or invalid, and the City in its sole opinion determines that such objection has merit. In such case, upon written request from the Developer, the City will assign its right to collect such Pro Rata Charge to the Developer. In such case the City will not withhold the approval of the final plat or build'rog permit for the subject property. A court of competent jurisdiction determines that all or part ora Pro Rata Charge is unlawful or invalid. In such case if the Pro Rata Charge has not been paid at the time of the court determination the City will not withhold approval of the final plat or building permit for the subject property. If the Pro Rata Charge has already been collected by the City and paid to the Developer, the Developer shall refund the Pro Rata Charge to the City with accrued interest, no later than 60 days after written demand from the City. The City will not be obligated to collect any future Pro Rata Charges under the applicable Pro Rata Agreement until this refund is made. 5. In collecting a Pro Rata Charge from a Property Owner, the City is performing a governmental function and thereby has governmental immunity to any claim or action from a Developer under this ordinance or the applicable Pro Rata Agreement. The City shall not be liable to the Developer should it make a mistake in calculating the applicable Pro Rata Charge or inadvertently fail to collect a Pro Rata Charge, whether or not the City acted negligently. In such case, upon written request from the 012295,00010:838519.04 Developer, the City will assign its right to collect such Pro Rata Charge to the Developer. 6. The City hereby establishes reasonable administrative fees to recover its costs in administering the Pro Rata Agreement. An administrative fee is hereby established in the amount of $5000.00. $2500.00 of the administrative fee shall be paid by the Developer upon the approval of the Pro Rata Agreement. The City will collect the remaining $2500.00 by deducting it from Pro Rata Charges collected from Property Owners within the watershed. The percentage of the fee deducted from Pro Rata Charges collected from each Property Owner is the proportionate share of $2500.00 based upon the number of properties within the watershed identified at the time the Pro Rata Agreement is signed. 7. The City may not collect Pro Rata Charges from a Property Owner if more than 20 years have passed since the completion of the Oversized Improvements for which reimbursement is sought. Sec. 26-237. Extension of storm water drain lines to developments and within developments. (a) Extension of Improvements to developments. Where extensions of certain Improvements are required to serve property which will be subdivided or platted for development and resale, the Costs of approach mains or channels fronting on or extending through property not owned by the Developer but required and necessary to connect the Developer's property shall be borne solely by the Developer, unless the City authorizes reimbursement of such Costs related to Oversizing through a Pro Rata Agreement according to the provisions of Sec. 26-236. (b) Oversized Improvements within or downstream of residential or commercial developments. Developers shall bear the entire costs of Improvements required within or downstream of their developments as required by Subchapter 19 of the Development Code, except that the City may elect to participate in the cost of constructing any Oversized Improvements. The City shall only reimburse the Developer for Oversized Improvements by exacting Pro Rata Charges from a Property Owner at such time as such Property Owner develops or redevelops property within the same drainage basin and increases drainage run-off. (c) Detention facilities within residential developments. In the event a detention facility with capacity that exceeds the area necessary to serve a specific development is required, the Developer of that specific development may submit a written request for the establishment of a Pro Rata Charge to reimburse the Developer for the Oversizing Costs associated with the detention facility. The Pro 012295.00010:838519.04 Rata Charge for detention facilities shall be calculated on a cost-per-acre, per tract basis for properties within the approved service area. Sec. 26-238. Payment of Pro Rata Charge. (a) Each Property Owner shall pay the applicable Pro Rata Charge prior to final plat approval and if a final plat is not required, prior to the issuance of a building permit. (b) The Developer will look solely to the Pro Rata Charges provided for in this ordinance and the applicable Pro Rata Agreement for reimbursement for the Oversized Costs. The City has no obligation to pay for the Oversized Costs from its general revenues, bond funds or any other revenues it may receive. Should any court of competent jurisdiction determine that all or part of this ordinance is unlawful or invalid, the City may cease to charge or collect the Pro Rata Charges, and will have no further obligations hereunder or under the applicable Pro Rata Agreement. Should any court of competent jurisdiction determine that a Pro Rata Charge as applied to a particular Property Owner is unlawful, the City will have no further obligation to collect such Pro Rata Charge. By electing to enter into a Pro Rata Agreement the Developer will waive any other claims or causes of action it may have against the City for the Costs to construct the Oversized Improvements other than any claims or causes of action it may have to collect the Pro Rata Charges collected by the City under the Pro Rata Agreement. Sec. 26-239. Enforcement of Pro Rata Agreements and Oversizing Costs. Nothing herein shall be deemed in any way to be an exclusive method of enforcing the payment of Pro Rata Agreements and Oversizing Costs against Property Owners, and this procedure shall not be deemed in any manner to be a waiver of the City's right to validly assess affected persons for the cost of the construction of Improvements and to fix and enforce liens against said property, in the manner prescribed by law. SECTION 3. The Denton City Code is hereby amended by renumbering Article VII to Article VIII Uniform Regulations to Govern the Use and Occupancy of Public Rights-of-Way by Providers of Electric Service in the City. SECTION 4. Any person who shall violate any provision of this Ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined in an amount not to exceed $2,000. Each day of violation shall constitute a separate offense. SECTION 5. All ordinances or parts of ordinances inconsistent or in conflict herewith are, to the extent of such inconsistency or conflict, hereby repealed. SECTION 6. In the event any clause phrase, provision, sentence, or part of this Ordinance or the application of the same to any person or circumstances shall for any reason be adjudged invalid or held unconstitutional by a court of competent jurisdiction, it shall not affect, impair, or 012295.00010:838519.04 invalidate this Ordinance as a whole or any part or provision hereof other than the part declared to be invalid or unconstitutional; and the City Council of the City of Denton, Texas, declares that it would have passed each and every part of the same notwithstanding the omission of any such part thus declared to be invalid or unconstitutional, whether there be one or more parts. SECTION 7. This Ordinance shall take effective fourteen (14) days fi.om the date of its passage, and the City Secretary is hereby directed to cause the caption of this ordinance to be published twice in the Denton Record Chronicle, the official newspaper of the City of Denton, Texas, within ten (10) days of the date of its passage. PASSED AND APPROVED this the/,,.~/'~ day of June, 2004. EULINE BROCK, MAYOR ATTESTED: APPROVED AS TO LEGAL FORM: HERBERT L,ff:~UTY, C/~Y ATTORNEY S:\Our Documents\Ordinanees\04kPro Ram Ord-6-16 04.DOC 9 012295.00010:838519.04