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.
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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).
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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
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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.
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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
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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
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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
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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
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