O447ORDINANCE NO. 447
AN ORDINANCE OF THE CITY OF KENNEDALE, TEXAS, AMENDING
CHAPTER 23 OF THE KENNEDALE CITY CODE OF ORDINANCES
(1991), AS AMENDED, BY ADDING A NEW ARTICLE IX,
"STORMWATER (DRAINAGE) UTILITY SYSTEM" TO ESTABLISH A
MUNICIPAL STORMWATER (DRAINAGE) UTILITY SYSTEM;
ESTABLISH AN ADMINISTRATIVE APPEALS PROCESS; PROVIDE
PENALTIES AND REMEDIES FOR NONPAYMENT; EXEMPT CERTAIN
PROPERTY FROM FEES; AND PROVIDE A PROCESS BY WHICH TO
DISCONTINUE THE STORMWATER (DRAINAGE) UTILITY SYSTEM;
PROVIDING A CUMULATIVE CLAUSE; PROVIDING A SEVERABILITY
CLAUSE; PROVIDING A PENALTY CLAUSE; PROVIDING A SAVINGS
CLAUSE; PROVIDING FOR PUBLICATION; AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, the City of Kennedale, Texas (City) is a home rule city acting under
its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas
Constitution and Chapter 9 of the Local Government Code; and
WHEREAS, within the City there exists a stormwater (drainage) system
developed over a number of years that collects and directs stormwater runoff; and
WHEREAS, portions of the existing stormwater (drainage) utility system are
inadequate to collect and directs stormwater runoff within the City; and
WHEREAS, it is necessary to ensure that the collection of stormwater runoff and
direction of stormwater drainage within the City protects the public health, safety, and
welfare of City residents, as well as protects against property damage; and
WHEREAS, the City Council desires to address the various water quality and
environmental issues that may further burden its stormwater (drainage) infrastructure;
and protect against surface water overflow, standing surface water, and pollution; and
WHEREAS, the City Council desires to establish a stormwater (drainage) utility
system, as authorized by the Texas Local Government Code Chapter 552, Subchapter
C "Municipal Drainage Utility Systems," (the "Act") within the City's municipal
boundaries; and
WHEREAS, the Act further authorizes the City to establish a municipal
stormwater (drainage) utility system service area; provide rules for the use, operation,
and financing of the system; declare, after a public hearing, the City's stormwater
(drainage) system to be a public utility; and prescribe bases upon which to fund a
stormwater (drainage) utility system and to assess the fees and charges to support the
system; and provide exemptions of certain governmental entities; and
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WHEREAS, the City desires to adopt the Act and establish a stormwater
(drainage) utility system as a public utility; and
WHEREAS, it is the intent of the City to fund the stormwater (drainage) utility
system in a manner that fairly, equitably and in a non -discriminatorily manner allocates
the cost of stormwater control and treatment to properties in proportion to stormwater
runoff potential for each class of property; and
WHEREAS, proper notice has been given and a public hearing has been held
regarding the adoption of this Ordinance, as required by law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF KENNEDALE, TEXAS, THAT:
SECTION 1.
Chapter 23 "Water, Sewers, and Sewage Disposal", of the Kennedale City Code,
is hereby amended to add a new Article IX, which reads:
"ARTICLE IX. STORMWATER (DRAINAGE) UTILITY SYSTEM
DIVISION 1. GENERALLY
Sec. 23-501. Authority to create Stormwater (Drainage) Utility System.
The City does hereby declare under the Texas Constitution and the Texas Local
Government Code, Chapter 552, Subchapter C, The Municipal Drainage Utility System
Act (the "Act"), that said Act is hereby adopted and it is declared that the stormwater
drainage of the City of Kennedale (the "City") shall be a public utility. Pursuant to the
provisions of Section 552.046 of the Act, the City incorporates its existing stormwater
(drainage) facilities, materials, equipment, and supplies into the Stormwater (Drainage)
Utility System ("Stormwater (Drainage) System" or "Utility").
Sec. 23-502. Findings and determinations.
(a) Determination of Utility Service Area. The Stormwater (Drainage) System
shall serve the City, the boundaries of which shall be the City's municipal boundaries.
(b) It is hereby found, determined, and declared that the City shall:
(1) Ensure that the cost of operating and maintaining the Stormwater
(Drainage) System, and the financing of necessary repairs,
replacements, improvements, and extension thereof must be
directly related to stormwater (drainage) service and the terms of
the stormwater (drainage) utility fees;
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(2) Provide stormwater (drainage) facilities and services for benefitted
real property within the utility service area upon payment of the
stormwater (drainage) utility fee unless the property is exempt
under Section 23-513; and
(3)
Establish a schedule of stormwater (drainage) utility fees for
benefitted properties within the utility service area in accordance
with the provisions of the Act; and
(4) Offer stormwater (drainage) service under non-discriminatory,
reasonable, and equitable terms.
Sec. 23-503. Application.
This Article applies to the owner or user of a benefitted property within the utility
service area, as determined by Section 23-502, to which stormwater (drainage) service
is provided, either directly or indirectly.
Sec. 23-504. Definitions.
The following definitions shall apply to the establishment and operation of the
Stormwater (Drainage) System:
Act means Chapter 552, Subchapter C "Municipal Drainage Utility Systems," of
the Texas Local Government Code, as amended.
Allocated portion of a parcel means the part a parcel that has been assigned to
an owner or customer based on the portion used by the owner or customer as
compared to the parcel's total area.
Benefitted property means an improved parcel, lot or tract within the utility
service area to which stormwater (drainage) service is made available under this Article.
All real property within the utility service area directly or indirectly receive stormwater
(drainage) service.
City means the City of Kennedale, Texas and the City's officers and employees.
Customer means the person(s) or entity(ies) recorded as the customer or user of
utility services for a parcel based on the records of the City or its contracted utility billing
systems.
Director of Public Works means the City's Director of Public Works or his/her
designee responsible for the administration and enforcement of this Article.
Equivalent residential unit (ERU) means a unit of measurement of impervious
surface area calculated for the average single family residential property within the utility
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service area, as measured in square feet (SF), including the residential structure,
garage, driveway sidewalk, patio, out buildings, and any other impervious surface.
Impervious surface means a surface that has been compacted or covered with a
layer of material so that it is resistant to penetration by water and does not have a
vegetative cover. An Impervious surface includes, but is not limited to, compacted soil
with a surface treatment, gravel, crushed stone surface or soil compacted by vehicle
traffic, asphalt or concrete pavement, a parking lot, a driveway, a sidewalk or private
roadway, a building or artificial structure, or any surface that changes the natural
landscape and increases, concentrates, pollutes, or otherwise alters the flow or amount
of stormwater runoff.
Impervious area means a measurement in square feet (SF) of impervious
surface on which the amount of stormwater runoff potential for a benefitted property
within a customer class is estimated.
Improved parcel means a parcel, lot or tract or portion of lot or tract that has been
changed from its natural state by addition of a building, facility, structure or other
improvement on all or a portion of the parcel, which creates an impervious surface.
Non -Residential property means an improved parcel that is not a residential
property, including commercial, industrial, institutional, and governmental uses, a
condominium or apartment consisting of five (5) or more residential units, a
homeowners' association, or other similar uses or properties. Non -Residential property
shall not include religious organizations.
Owner means the person(s) or entity(ies) listed as the owner of a parcel in the
Tarrant County Appraisal District's or the City's records.
Residential property means an improved parcel upon which five (5) or fewer
residential units are constructed in one building.
Residential unit means any building or portion thereof that contains living
facilities, including provisions for sleeping, eating, cooking and sanitation, as required by
applicable City codes, for not more than one family. A residential unit may be a single-
family house, a town home, a condominium, a manufactured home or a portion of a
duplex, triplex or quadplex.
Service area means the geographic area within the incorporated limits of the
City.
Stormwater (drainage) infrastructure means the property - real, personal or
mixed - that is used in providing stormwater capacity to manage and control stormwater
runoff for the stormwater (drainage) system, including bridges, catch basins, channels,
conduits, creeks, culverts, detention ponds, retention ponds, ditches, draws, creeks,
flumes, pipes, pumps, sloughs, treatment works, and appurtenances to those items,
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whether natural or artificial, or using force or gravity, that are used to draw off surface
water from land, carry the stormwater runoff away, collect, store, or treat the stormwater
runoff, or divert the stormwater runoff into natural or artificial watercourses.
Stormwater (drainage) operations and maintenance expenditures means an
expenditure required to finance, operate and maintain stormwater (drainage)
infrastructure, including debt service, equipment, personnel, educational and
administrative expenditures.
Stormwater runoff potential means the relative potential for causing stormwater
runoff quantities, qualities, or velocities from an improved parcel based on the type of
development or land use on the parcel and the size of the parcel.
Stormwater (drainage) utility fee means the fee established under Division 2,
Article IX of Chapter 23 of the Kennedale City Code that is levied against the owner or
customer of a benefitted property for stormwater (drainage) services provided by the
Stormwater (Drainage) System, including, but not limited to, the items described in the
definition of "cost -of- service" in the Act. The stormwater (drainage) utility fee may also
be referred to as a Fee.
Stormwater (Drainage) System means the Stormwater (Drainage) Utility System
owned or controlled, in whole or in part, by the City, including the City's existing
stormwater facilities, materials, and supplies and any stormwater facilities, materials,
and supplies hereafter constructed or utilized, and dedicated to the service of benefitted
property, and including provision for additions to the system. The Stormwater
(Drainage) System may also be referred to as a Utility.
Wholly sufficient and privately owned stormwater (drainage) system means land
and facilities owned and operated by a person or entity other than the City and from
which stormwater does not discharge, under any storm frequency event or conditions,
into a creek, river, slough, culvert, channel or other infrastructure that is part of the City's
Stormwater (Drainage) System.
Sec. 23 - 505. Administration.
(a) Duty of Director of Public Works. The Director of Public Works shall
administer the Stormwater (Drainage) System. The Director shall maintain an accurate
record of all properties benefitted or served by the Stormwater (Drainage) System and
the stormwater (drainage) utility fee levied for each parcel or portion of a parcel. The
record may be maintained within the City's, utility billing system or in another record
keeping system that may be developed.
(b) Program Implementation. By the adoption of this Article, the City makes
no representation that all stormwater problems may or will be remedied and the City
Council retains full discretion in establishing the priorities in expending funds as they
become available to meet the City's stormwater drainage needs. The adoption of this
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Article shall not be construed to relieve private land owners, developers or other
individuals or entities from providing stormwater (drainage) improvements required by
the Kennedale City Code, and federal or State laws and regulations.
(c) Access to Benefitted Properties. City employees shall have access to a
benefitted property within the utility service area to inspect, maintain, repair, or enforce
this Article or State laws or regulations.
(d) Governmental Immunity. The City does not waive any immunity granted
under any law.
Sec. 23 -506. Stormwater (drainage) utility fee, billing policies, and procedures.
(a) Stormwater (Drainage) Utility Rate Classes. A stormwater (drainage)
utility fee is established, and the fee shall be imposed on each benefitted property within
the utility service area for stormwater (drainage) services and stormwater (drainage)
facilities provided by the Stormwater (Drainage) System. A benefitted property within
the utility service area shall be classified and charged a stormwater (drainage) utility fee
based on the stormwater (drainage) utility rate determined by the property's rate class.
Depending on the use of the benefitted property, the property shall be classified as one
of the following rate classes:
(1) Residential property;
(2) Religious Organizations; or
(3) Non - Residential property.
(b) Responsible Party.
(1) A customer shall be billed monthly for stormwater (drainage)
services. The stormwater (drainage) utility fee shall be levied along
with other municipal utility services provided to the premises,
including water, wastewater or solid waste /refuse services.
(2) The utility bill imposing the stormwater (drainage) utility fee will be
mailed to either the customer or owner who is currently identified as
the responsible party for water, wastewater and solid waste service
for the benefitted property; and, the customer or owner recorded in
the utility billing system shall be responsible for payment of the
stormwater (drainage) utility fee.
(3) If there is no active customer account for a benefitted property
recorded in the City's utility billing system, the benefitted property is
vacant, either on a temporary or permanent basis, or when a
benefitted property is not served by other municipal utility services,
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the Director shall establish a "Stormwater Only Account" and shall
bill the owner of the benefitted property for the stormwater
(drainage) utility fee. The owner of the benefitted property shall be
responsible for payment of fees imposed via a Stormwater Only
Account.
(c) Revision of Rates. The City Council shall establish the initial stormwater
(drainage) utility fee and stormwater (drainage) utility rates via ordinance pursuant to
the provisions of the Act. The City Council reserves the right to review the fee and rate
schedules at any time and may, by ordinance, increase or decrease the stormwater
(drainage) utility fee or rates within the schedule upon a determination that the increase
or decrease is warranted.
(d) Billing Procedures and Policies.
(1) Any partial payment of the stormwater (drainage) utility fee shall be
applied against the amount due in accordance with the policies and
procedures established for municipal utility services.
(2) A late charge and interest may be imposed in accordance with the
policies and procedures established for municipal utility services.
(e) Non - Payment. The City may direct the City Attorney to file suit to recover
any unpaid fees, together with maximum interest, attorneys' fees and other costs and
fees allowable under State or federal law. In addition to any other remedies or penalties
provided by State or federal law or in this Article, a customer's failure to pay the
stormwater (drainage) utility fee when due shall subject the customer to disconnection
of any or all municipal utility services and /or the placement of a lien against the
benefitted property to the extent authorized by law and the Kennedale City Code, as
amended.
Sec. 23 -507. Calculation of fees.
(a) Rates in Accordance with the Act. The Stormwater (Drainage) System
rates shall be established in accordance with the provisions of the Act and this Section.
(b) Fee Calculation. The stormwater (drainage) utility fee shall be based on
an inventory of improved parcels within the service area. The inventory shall evaluate
the stormwater runoff potential for improved parcels within the service area and
establish a rate for each class of benefitted properties. If authorized by the City Council,
the Director may levy an amount to establish one or more funds to finance future
stormwater (drainage) system construction and to improve stormwater quality. The
stormwater runoff potential for each class shall be equitably and proportionately
distributed between classes and among the parcels within each class of benefitted
properties relative to the contribution of each class to stormwater runoff. The
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stormwater (drainage) utility fee shall be set according to the requirements of Section
23 -502.
(c) Stormwater Runoff Potential. For purposes of establishing the stormwater
runoff potential for each class of benefitted properties and between classes of benefitted
properties, the Director shall calculate the impervious area for parcels within the service
area based on data gathered from the Tarrant County Appraisal District, Geographic
Information System records, and aerial photography and site plans or plats available.
The Director shall then determine the relative stormwater runoff potential for each rate
class and among parcels within each rate class. The rate for each class of benefitted
properties and for parcels within each class shall be based on the impervious area
measured in square feet (SF).
(d) Property values. In calculating the stormwater (drainage) utility rate, the
Director shall be prohibited from using property values.
Sec. 23 -508. Stormwater (drainage) utility fee credit.
(a) Any non - residential properties on which stormwater runoff mitigation
measures or best management practices (BMPs) have been implemented or which has
on file with the City an approved individual stormwater management permit issued by
the Texas Commission on Environmental Quality (TCEQ) may be eligible for a credit to
the stormwater (drainage) utility fee.
(b) The Director of Public Works shall adjust the fee for such properties
according to the actual mitigative effect of the measures taken. Best Management
Practices (BMPs) that were required as part of development plan approval will not be
eligible for such credits.
(c) The credit methodology shall be set forth in an administrative policy to be
maintained in the Public Works Department of the City.
(d) The application for credit shall be in writing and shall include an
engineering report sealed by a Texas licensed professional engineer qualified in civil
engineering, or other documentation that the Director of Public Works deems
necessary, to properly evaluate the rationale for determining the credit for the approved
stormwater management techniques. Submitted applications may be reviewed by the
Director or by a third -party licensed engineer to validate the submitted rationale and
methodology. Stormwater credits will begin upon completion and inspection of the
approved mitigation measures on the property. Any property served by a private facility
that is maintained by the City shall not receive a credit and shall be charged the normal
monthly stormwater (drainage) utility fee.
(e) The credit will be only for the impervious area within the total parcel area
which receives the stormwater management technique;
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(f) The maximum credits available with appropriate documentation and
approval by the Director are as follows:
(1) Mitigation efforts impacting stormwater quality are worth up to fifty
percent (50 %) credit against the original fee;
(2) Mitigation efforts impacting stormwater quantity are worth up to fifty
percent (50 %) credit against the original fee.
(g) The Director of Public Works will determine the final credit allowance
based on all engineering reports.
(h) The Director shall have the right to inspect the private stormwater
(drainage) infrastructure facility at any reasonable time to determine if it is in compliance
with the approved design and continues to be capable of functioning properly. If the
facility's performance is affected, because it fails to meet the proper operating
standards, has been altered, or is in disrepair, the customer or owner shall pay the
monthly stormwater (drainage) utility fee at the normal rate, without benefit of reduction,
until such time that the facility is brought into total compliance.
Sec. 23 -509. Collections and liens.
(a) Disconnection of Municipal Utility Service. The City shall keep an itemized
account of the amounts owed pursuant to this Article. If any account is not paid within
the time period established for municipal utility fees for the benefitted property, as
outlined in the City's policies and procedures, and the customer fails to make other
arrangements satisfactory to the City, the City or its contracted utility service provider is
authorized to disconnect utility services pursuant to its normal and customary business
practices.
(b) Notice of Intent to Place Lien. If any amount is not paid within sixty (60)
days of the billing date, the City shall send notice to the customer and the property
owner of its intent to impose a lien against the property to which service is provided.
The notice of intent to place lien shall be mailed to both the property address listed by
the Tarrant County Appraisal District and the property owner's billing address. The
notice of intent to place lien shall contain the following information:
(1) The name and address of the customer to whom utility bills were
sent pursuant to this Article;
(2) The street address and a legal description of the real property on
which the building is or was located;
(3) A statement of fees and the balance due, including any late
charges and administrative fees incurred; and
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(4) A statement that the fees are unpaid and delinquent, and that if not
paid in full within thirty (30) days, a lien will be placed upon the
premises.
(c) Appeal of Notice of Intent to Place Lien. The owner may appeal the
decision to impose the lien against the property to the City Manager and the City
Council under the procedures set forth in Section 23 -510. If the notice of appeal is filed,
the filing of the lien shall not be imposed pending the appeal.
(d) Notice of Lien Filed in County Records. If full payment or a Notice of
Appeal, with sufficient bond guaranteeing payment in a form acceptable to the City
Attorney as provided herein, is not received by the City within ten (10) days of the City's
mailing of the Lien Notice, the City Secretary shall file a notice of lien in the Deed
Records of Tarrant County, Texas. Such notice shall contain the following information:
(1) The name and address of the customer to whom utility bills were
sent pursuant to this Article and the name and address of the
owner of the property; and
(2) The street address and a legal description of the real property on
which the building is or was located; and
(3) An itemized statement of fees and the balance due, including any
late charges and administrative fees incurred.
(e) Personal Obligation of Property Owner. The expenses incurred by the
City as set forth in the notice of lien shall be a personal obligation of both the customer
and the property owner and shall constitute a priority lien against the property, which
lien, however, shall be secondary to an existing, recorded, bona fide mortgage lien.
The City Attorney or his /her designee may bring an action in any court of proper
jurisdiction against the owner of the property to recover the costs incurred by the City.
(f) Lien Shall be Valid and Privileged. Upon filing of the notice of lien in the
Deed Records of Tarrant County, Texas, the City's lien shall be valid against the
property so assessed. The City's lien shall be privileged and superior to all other liens,
including previously recorded judgment liens and any liens recorded after the City's lien.
The lien shall continue until the assessment and all interest due and payable thereon
has been paid.
(g) Lien Must be Paid. No utility service, building permit or certificate of
occupancy shall be allowed or issued on any property against which a lien has been
imposed until the lien is paid in full and such lien is released by the City.
(h) Release of Lien. After the expenses incurred by the City, as set forth in
the notice of lien, have been fully paid with interest of ten percent (10 %) per annum, the
City Secretary shall execute a release of lien, which shall be filed in the Deed Records
of Tarrant County, Texas.
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Sec. 23 -510. Appeal of stormwater (drainage) utility fees.
(a) Appeal to City Manager. An owner or customer who has been charged a
stormwater (drainage) utility fee and believes that the calculation of the stormwater
(drainage) utility fee is incorrect due to the miscalculation of impervious surface area,
the misclassification of the customer class, or the ownership of exempt property, may
appeal the fee to the City Manager. In addition, an owner or customer may appeal the
discontinuance of the utility service, the filing of a lien, or both legal actions for non-
payment of the stormwater (drainage) utility fee. The City Manager shall evaluate the
appeal based on the provisions of this Article.
(b) Process.
(1) To request an appeal, the owner or customer shall file a written
notice of appeal with the City Manager. The notice of appeal must
include the grounds upon which relief is sought and include all
documentation supporting the appeal. The City Manager may
decide the appeal based upon the notice of appeal, supporting
documentation, and information relied upon by the Director in the
original fee determination. Evidence not included with the notice of
appeal shall not be considered, and no hearing shall be held unless
the City Manager determines, in his /her sole discretion, that an
informal hearing would assist his /her determination of the merits of
the appeal. If a hearing is held, the City Manager shall provide at
least ten (10) business days written notice to the appellant of a date
and time for such informal hearing. In any case, the City Manager
shall decide and rule upon the appeal based upon a preponderance
of the evidence.
(2) The City Manager shall issue a written decision on the appeal
within sixty (60) days of the City Manager's receipt of the notice of
appeal.
(A) If the City Manager determines, based upon a
preponderance of the evidence, that a fee adjustment is
warranted or the rate class is incorrect within the first year
following the initial billing date on a benefitted property, the
City Manager shall authorize a rate adjustment, which shall
be retroactive to the beginning of billings for the appealed
fee but the retroactive period shall not exceed one (1) year.
(B) If the City Manager determines, based upon a
preponderance of the evidence, that a fee adjustment is
warranted or the rate class is incorrect after the first year
following the initial billing date on a benefitted property, the
City Manager shall authorize a fee adjustment, which shall
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be prospective and applied to future billings. At the City
Manager's discretion, the fee adjustment may also be
retroactive but the retroactive period shall not exceed three
(3) months prior to the receipt of the notice of appeal.
(c) Supporting Information for Appeal. The owner or customer filing the
appeal may be required, at his/her sole cost, to provide supplemental information to the
City Manager, including but not limited to survey data sealed by a Texas licensed
professional land surveyor, engineering reports sealed by a Texas licensed professional
engineer qualified in civil engineering, or other documentation that the City Manager
deems necessary to properly evaluate the appeal. The owner or customer shall provide
such information within thirty (30) days of the City Manager's request, and the deadline
for determination of the appeal will be extended accordingly. In determining the merits
of the appeal, the City Manager may consider the owner or customer's failure to provide
the requested information in a timely manner.
(d) Appeal to the City Council.
(1) An appellant may appeal the following decisions of the City
Manager to the City Council:
(A) the calculation of the stormwater (drainage) utility fee for a
benefitted property due to the miscalculation of impervious
surface area, the miscalculation of the customer class, or the
ownership of exempt property; or
(B) the discontinuance of utility service, the filing of a lien, or
other legal action for non - payment of the stormwater
(drainage) utility fee.
(2) To appeal, an appellant shall file a written appeal to the City
Council with the City Secretary within fifteen (15) days following
receipt of the City Manager's decision that is being appealed. The
City Council shall hear the appeal within sixty (60) days of receipt of
the appeal by the City Secretary. Notice of the hearing shall be
mailed to the address given in the appeal form or, if no address is
given, to the address on the utility billing statement at least fifteen
(15) days prior to the hearing.
(3) Any appeal under this Subsection shall be governed by the
following rules and procedures:
(A) Such appeal shall be set as an item on the regular City
Council agenda.
(B) At the hearing of the appeal, the City Council may consider
facts or evidence as the City Council determines is
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appropriate. The Director or City Manager, or his designee,
shall present the facts and evidence relied upon and the
reasons for the ruling; the appellant then shall have an
opportunity to present the facts and evidence relied upon by
the appellant; the City Council then shall consider any facts
or evidence from the public or other interested persons. The
City Council may ask questions of the Director, the City
Manager, the appellant, or any other interested persons as
the City Council determines is appropriate. The City Council
may limit the time for any presentation in its sole discretion,
and may continue the hearing to a subsequent meeting at
the City Council's discretion. Upon the conclusion of the
hearing, the City Council may render its decision or it may
take the appeal under advisement and make or render its
decision on the appeal within thirty (30) days of the hearing.
Any appeal shall be determined by majority vote of the
members of the City Council then present at a meeting of the
Council. The City Council's decision shall be final.
(C) Written documents or evidence that any party, including the
Director or City Manager, wishes to submit must be filed with
the City Secretary and submitted to the City Council no
fewer than five (5) business days prior to the appeal hearing.
Any interested party may review any documents so
submitted prior to the hearing upon request, during normal
business hours. The appellant may submit a report
describing the basis for the appeal prepared by a Texas
licensed professional engineer qualified in civil engineering.
The failure to submit such a report shall be considered in
determining whether the applicant has met the burden of
proof and may constitute sufficient grounds for denial of the
appeal.
(D) The burden of proof shall be on the appellant to demonstrate
that the fee is not applicable, that the determination of the
fee amount is incorrect due to the misidentification of
impervious surface area, or that the rate class assigned to
the appellant is incorrect.
(E) No appeal for the same or related issue on the same piece
of property shall be allowed from a previous ruling on any
appeal absent a material change of circumstances. If the
appellant asserts such a change of circumstances and seeks
rehearing of an appeal, such appeal need not be considered
unless the appellant presents in writing evidence
establishing such change of circumstances. Any such
subsequent appeal shall be considered entirely on its merits
W: \Kennedale \ORDINANC \Stormwater Utility System.FN- 002.doc (06/16/10) Page 13
and the peculiar and specific conditions related to the
property on which the appeal is brought.
(F) If the appeal is accompanied by a bond or other sufficient
security satisfactory to the City Attorney in an amount equal
to the original determination of the stormwater (drainage)
utility fee due, any discontinued utility service may be
reinstated while the appeal is pending. The City Council
shall apply the standards and review criteria contained in this
Article.
(G) Following the hearing, the City Council shall consider all
evidence and determine whether the appeal should be
granted, in whole or in part, or denied.
Sec. 23 -511. Termination of stormwater (drainage) utility system.
If, after at least five (5) years of substantially continuous operation of the
Stormwater (Drainage) System, the City Council determines that the Stormwater
(Drainage) System should be discontinued, the powers under the Act should be
revoked, and the provision for financing municipal stormwater costs should be made by
using other revenues, the City Council may adopt an ordinance that in effect, after
providing notice and a public hearing as required by the Act, discontinues the
Stormwater (Drainage) System.
Sec. 23 -512. Stormwater (drainage) utility fund.
(a) Stormwater (drainage) utility fund. A stormwater (drainage) utility fund is
established and may consist of one or more accounts. All stormwater (drainage) utility
fees shall be deposited as collected and received into this fund, and shall be used
exclusively for stormwater (drainage) services as provided in the Act, including, but not
limited to the following:
(1) The cost of the acquisition of land, rights -of -way, options to
purchase land, easements, and interests in land relating to
structures, equipment, and facilities used in draining the benefitted
property;
(2) The cost of the acquisition, construction, repair, and maintenance
of structures, equipment, and facilities used in draining the
benefitted property;
(3) The cost of architectural, engineering, legal, and related services,
plans and specifications, studies, surveys, estimates of cost and of
W : \Kennedale \ORDINANC \Stormwater Utility System.FN- 002.doc (06/16/10) Page 14
revenue, and all other expenses necessary or incident to planning,
designing, providing, or determining the feasibility and capability of
structures, equipment, and facilities used in draining the benefitted
property;
(4) The cost of all machinery, equipment, furniture, and facilities
necessary or incident to the provision and operation of draining the
benefitted property;
(5) The prorated cost of funding and financing charges and interest
arising from construction projects and the start -up cost of a
stormwater (drainage) facility used in draining the benefitted
property;
(6) The prorated cost of debt service and reserve requirements for
funding of stormwater (drainage) infrastructure, equipment and
facilities paid with revenue bonds or other securities or obligations
issued by the City and supported by pledge of stormwater
revenues, including any fees and expenses incidental thereto;
(7) To the extent permitted by law, the cost of constructing, sampling,
monitoring, building, inspecting and maintaining structures needed
for the State's regulation and permitting requirements imposed on
the City for providing stormwater quality improvements for the
benefitted property; and
(8) The administrative costs of the Stormwater (Drainage) System.
(b) Stormwater (drainage) utility fund accounting.
(1) The City shall clearly account for revenues and expenditures
authorized for operation of the Stormwater (Drainage) System.
(2) The revenues collected from stormwater (drainage) utility fees shall
be segregated and completely identifiable from other City funds and
accounts.
(3) Funds and revenues in the stormwater (drainage) utility fund may
be transferred to the City's general fund as allowed by law.
(c) Stormwater (drainage) utility service deposit. A deposit shall not be
imposed for initiation or continuation of stormwater (drainage) utility service.
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Sec. 23 -513. Exemptions.
(a) The following entities or persons shall be exempt from payment of the fees
established by this Article:
(1) Government/Educational Entities.
(A) The State of Texas, including a State agency;
(B) A public or private institution of higher education;
(C) Tarrant County;
(D) City of Kennedale; and
(E) Kennedale Independent School District, conditioned upon
the District entering into separate interlocal agreements for
specific drainage projects benefiting property of the District.
Upon failure to do so, the fees shall be assessed.
(2) Private Property Exemption. Any property to which a mandatory
exemption under Section 552.053 of the Act applies is exempt from
this Article, including without limitation:
(A) Property with proper construction and maintenance of a
wholly sufficient and privately owned stormwater (drainage)
system that does not discharge under any storm frequency
event or conditions to waterways controlled or maintained by
the City;
(B) Property held and maintained in its natural state, until such
time that the property is developed and all of the public
infrastructure constructed has been accepted by the City for
maintenance; and
(C) A subdivided parcel or lot, until a structure has been built on
the lot and a certificate of occupancy has been issued, or the
City has taken another official action to release the property
for occupancy.
(b) Proof of Exemption. If the owner of property asserts that such property is
exempt pursuant to this Section or any other applicable law, such property owner has
the burden to assert such exemption by filing notice of eligibility for such exemption and
sufficient evidence of entitlement to such exemption with the Director of Public Works.
W : \Kennedale \ORDINANC \Stormwater Utility System.FN- 002.doc (06/16/10) Page 16
If the exemption is not granted, the owner may appeal using the procedures for appeal
provided in Section 23 -510, above.
[Sec. 23 -514 to Sec 23 -525 Reserved]"
SECTION 2.
PENALTY FOR VIOLATION
Any person, firm or corporation who violates, disobeys, omits, neglects or refuses
to comply with or who resists the enforcement of any of the provisions of this Ordinance
shall be fined no more than Two Thousand Dollars and no cents ($2,000.00) for each
violation, and in addition shall pay all costs and expenses involved in the case. Each
day a violation occurs is a separate offense. Nothing herein contained shall prevent the
City from taking such other lawful action as is necessary to prevent or remedy any
violation.
SECTION 3.
CUMULATIVE CLAUSE
This Ordinance shall be cumulative of all provisions of all existing ordinances and
of the Kennedale City Code (1991), as amended, including but not limited to all
ordinances of the City of Kennedale affecting stormwater (drainage) services and
stormwater (drainage) utility systems, and shall not repeal any of the provisions of such
ordinances except in those instances where provisions of such ordinances are in direct
conflict with the provisions of this ordinance.
SECTION 4.
SEVERABILITY CLAUSE
It is hereby declared to be the intention of the City Council that the phrases,
clauses, sentences, paragraphs, and sections of this Ordinance are severable, and if
any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared
unconstitutional by the valid judgment or decree of any court of competent jurisdiction,
such unconstitutionality shall not affect any of the remaining phrases, clauses,
sentences, paragraphs and sections of this Ordinance, since the same would have
been enacted by the City Council without the incorporation in this Ordinance of any
such unconstitutional phrase, clause, sentence, paragraph or section.
SECTION 5.
SAVINGS CLAUSE
All rights and remedies of the City of Kennedale are expressly saved as to any
and all violations of the provisions of the Kennedale City Code (1991), as amended, or
any other ordinances regarding stormwater (drainage) services and stormwater
(drainage) utility systems that have accrued at the time of the effective date of this
Ordinance; and, as to such accrued violations and all pending litigation, both civil and
W : \Kennedale \ORDINANC \Stormwater Utility System.FN- 002.doc (06/16/10) Page 17
criminal, whether pending in court or not, under such ordinances, same shall not be
affected by this Ordinance but may be prosecuted until final disposition by the courts.
SECTION 6.
PAMPHLET FORM CLAUSE
The City Secretary of the City is hereby authorized to publish this Ordinance in
book or pamphlet form for general distribution among the public, and the operative
provisions of this Ordinance as so published shall be admissible in evidence in all courts
without further proof than the production thereof.
SECTION 7.
PUBLICATION CLAUSE
The City Secretary of the City of Kennedale is hereby directed to publish the
caption penalty clause publication clause and effective date clause of this Ordinance in
every issue of the official newspaper of the City of Kennedale for two days or one issue
of the newspaper if the official newspaper is a weekly newspaper as authorized by
Section 3.10 of the City of Kennedale Charter.
SECTION 8.
EFFECTIVE DATE
This Ordinance shall be in full force and effect from and after its passage and
publication as required by law, and it is so ordained.
PASSED AND APPROVED THIS 13TH DAY OF MAY, 2010.
,,„1„ /AAA k Jw
Bryan Lankhorst, Mayor
ATTEST:
Kathy Turn , City Secretary
APPROVED AS TO FORM AND LEGALITY:
/` C)./
City Attorney
W : \Kennedale \ORDINANC \Stormwater Utility System.FN- 002.doc (06/16/10) Page 18
OFFIDI CITY
INVOICE SECRETARY'S COPY
Star - Telegram , Customer ID: CIT33
400 W. 7TH STREET Invoice Number: 310582481
FORT WORTH, TX 76102 Invoice Date: 6/8/2010
(817) 390-7761
Federal Tax ID 26- 2674582 Terms: Net due in 21 days
Due Date: 6/30/2010
Bill To: PO Number:
CITY OF KENNEDALE Order Number: 31058248
405 MUNICIPAL DR
KENNEDALE, TX 76060 -2249 Sales Rep: 073
Description: CITY OF KENNED
Publication Date: 6/8/2010
Description Location Col Depth Linage MU Rate Amount
CITY ` KENNEDALE Legal Notices V.r.r� 65 65 LIVE $2.95 $191.55
CI1 Y OF ORDINANCE NO. 4 8O 1
AN ORDINA OF W A T E R,
THE CITY OF I (DRAINAGE) UTILI-1
KENNEDALE, TEX- TY SYSTEM; ES- $10.00
Mlsc Fee AS, AMING TABLISH AN AD-
CHAPTER 23 OF END THE MINISTRATIVE AP-
KENNEDALE CITY PEALS PROCESS;
OF I PROVIDE
AND P D REME-
AMENDED, BY DIES FOR NON -
ADDING A NEW PAYMENT; EXEMPT
W TIC4 E FEES; R R FOM CERTAIN PROPERTY
AND 1 Net Amount: $201.55
(DRAINAGE) UTILI- PROVIDE A PRO -
TV SYSTEM" TO I CESS BY WHICH TO
ESTABLISH A MU- DISCONTINUE THE
NICIPAL STORM - I ( A I-
(DRAINAGE) UTILI-
TY VIDING SA SYSTEM; PRO-
/1 . I.' -' 1'
TIVE CLAUSE; PRO- ```� \♦,III // ''
VIDING A \ \ \` ° O ���
CLAUS B I L I T A
CLAUSE; PROVID -'
ING A PENALTY
CLAUSE; PROVID a
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ING A SAVINGS / �•Q
CLAUSE; PROVID- _ ' G�
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AND APPROVED BY 7C • VIDING E. EFFEC-
TIVE DATE. PASSED .Q
1S
THE CITY COUNCIL '� lilt
` •
• ■
1
OF THE CITY OF ••• S IRE S • .'
2
MAYOR BRYAN
0106RYON ''''' IMO"
THE STATE OF TEXAS i L A N K H O R S T
County of Tarrant ' /ATTEST/ /s/
KATHY TURNER,
CITY SECRETARY /
g
Before me, a Notary Public in an AY NE TO
K. State, this day personally appeared Deborah Baylor Norwood, Bid and Legal Coordinator for
OO E�r. CITY AT ; at F ort Worth, Tarrant County, h, in Tt Count Texas; and who, after being duly sworn, did depose and say
the Star - Telegram, published by T
that the attached clipping of an advertisement was published in the above named paper on the listed dates: BIDS & LEGAL DEPT. STAR TELEGRAM
(817) 390 -7501
Signed ►_ _ SIC� S N � -C
SUBSCRIBED AND SWORN TO BEFORE ME, THIS Wednesday, Ju 10'• l 10. / '
Notary Public /� i .
i 7 �! : ., '�
-
Thank You For Your Payment
Remit To: Star - Telegram Customer ID: CIT33
P.O. BOX 901051 Customer Name: CITY OF KENNEDALE
FORT WORTH, TX 76101 -2051 Invoice Number: 310582481
Invoice Amount: $201.55
PO Number:
Amount Enclosed:
AFFIDAVIT OF PUBLICATION
IN THE STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, a notary public in and for the above named County, on this day personally
appeared the person whose name is subscribed below, who having been duly sworn, says upon oath
that he or she is a duly authorized officer or employee of the Kennedale News, which is a newspaper of
general circulation in the interest, published not less frequently than once each week, entered as
periodical permit postal matter in the county where published, and having been published regularly and
continuously for not less than 6 months prior to the making of any publication. The clipping attached to
this Affidavit was published in said newspaper on the following date(s):
#447
January 22, 2010
Authorized Officer or Employee
LEGAL NOTICE
Notice is hereby given that the City Council of the City
of Kennedale will hold a public hearing on February
11, 2010, at 7:00 P.M. in the Council Chambers at
Kennedale City Hall, 405 Municipal Drive, Kennedale,
TX 76060 to consider the following:
1. Conduct a public hearing on Ordinance No.
447, an ordinance of the City of Kennedale, Texas,
amending Chapter 23 of the Kennedale City Code
of Ordinances (1991), as amended, by adding a new
Article IX, " Stormwater (Drainage) Utility System"
to establish a municipal stormwater (drainage) utility
system; establish an administrative appeals process;
provide penalties and remedies for nonpayment;
exempt certain property fiom fees; and provide a
process by which to discontinue the Stormwater
(Drainage) Utility System; providing a cumulative
clause,; providing a severability clause; providing
a savings clause; providing for publication; and
providing an effective date.
Please see Exhibit "A" for the Ordinance. Any
interested persons and parties may submit any
information they wish to be considered to the City
Secretary prior to the date of the public hearings or
may appear at the public hearings to be heard, or
both.
The facility is wheelchair accessible. If you plan to
attend and you have a disability that requires special
arrangements, please notify the City Secretary 48
hours in advance of the hearings so that reasonable
accommodations can be made. For sign interpretive
services, please call 72 hours in advance.
SECTION 1.
Chapter 23 "Water, Sewers, and Sewage Disposal ", of
the Kennedale City Code, is hereby amended to add a
new Article IX, which reads:
"ARTICLE IX. STORMWATER (DRAINAGE)
UTILITY SYSTEM
DIVISION 1. GENERALLY
Sec. 23 -501. Authority to create Stormwater
(Drainage) Utility System.
The City does hereby declare under the Texas
Constitution and the Texas Local Government Code,
Chapter 552, Subchapter C, The Municipal Drainage
Utility System Act (the "Act "), that said Act is hereby
adopted and it is declared that the stormwater drainage
of the City of Kennedale (the "City") shall be a
public utility. Pursuant to the provisions of Section
552.046 of the Act, the City incorporates its existing
stormwater (drainage) facilities, materials, equipment,
and supplies into the Stormwater (Drainage) Utility
System ( "Stormwater (Drainage) System" or
"Utility").
Sec. 23 -502. Findings and determinations.
(a) Determination of Utility Service Area. The
Stormwater (Drainage) System shall serve the City,
the boundaries of which shall be the City's municipal
boundaries.
(b) It is hereby found, determined, and declared
that the City shall:
For more information on this Legal Notice, please
contact the City Secretary at (817) 985 -2104.
Signed this the 4th day of January, 2010.
I Kathy Turner
City Secretary
Published: January 8, 2010
January 15, 2010
January 22, 2010
Exhibit "A"
f7: - 6"NEI RL61 =19 , I
AN ORDINANCE OF THE CITY OF
KENNEDALE, TEXAS, AMENDING CHAPTER
23 OF THE KENNEDALE CITY CODE OF
ORDINANCES (1991), AS AMENDED, BY
ADDING A NEW ARTICLE IX, " STORMWATER
(DRAINAGE) UTILITY SYSTEM" TO
ESTABLISH A MUNICIPAL STORMWATER
(DRAINAGE) UTILITY SYSTEM; ESTABLISH
AN ADMINISTRATIVE APPEALS PROCESS;
PROVIDE PENALTIES AND REMEDIES FOR
NONPAYMENT- F.XFMPT C'FRTA7N PRnPFRTV
(1) Ensure that the cost of operating and
maintaining the Stormwater (Drainage) System, and
the financing of necessary repairs, replacements,
improvements, and extension thereof must be directly
related to stormwater (drainage) service and the terms
of the stormwater (drainage) utility fees;
(2) Provide stormwater (drainage) facilities
and services for benefitted real property within the
utility service area upon payment of the stormwater
(drainage) utility fee unless the property is exempt
under Section 23 -513; and
(3) Establish a schedule ofstormwater (drainage)
utility fees for benefitted properties within the utility
service area in accordance with the provisions of the
Act; and
(4) Offer stormwater (drainage) service under
non - discriminatory, reasonable, and equitable terms.
Sec. 23 -503. Application.
This Article applies to the owner or user of a benefitted
property within the utility service area, as determined
by Section 23 -502, to which stormwater (drainage)
service is provided, either directly or indirectly.
AFFIDAVIT OF PUBLICATION
IN THE STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, a notary public in and for the above named County, on this day personally
appeared the person whose name is subscribed below, who having been duly sworn, says upon oath
that he or she is a duly authorized officer or employee of the Kennedale News, which is a newspaper of
general circulation in the interest, published not less frequently than once each week, entered as
periodical permit postal matter in the county where published, and having been published regularly and
continuously for not less than 6 months prior to the making of any publication. The clipping attached to
this Affidavit was published in said newspaper on the following date(s):
#447
January 8, 2010
� ra y
Authorized Officer or ee Em to
p Y
8
LEGAL NOTICE
Notice is hereby given that the City Council of the City
of Kennedale will hold apublic hearing on February
11, 2010, at 7:00 P.M. in the Council Chambers at
Kennedale City Hall, 405 Municipal Drive „Kennedale,
TX 76060 to consider the following:
1 Conduct a public hearing on Ordinance No.
447, an ordinance of the City of Kennedale, Texas,
amending Chapter 23 of the Kennedale City Code
of Ordinances (1991), as amended, by adding a new
Article IX, "Stormwater (Drainage) Utility System”
to establish a municipal stormwater (drainage) utility
system; establish an administrative appeals process;
provide penalties and remedies for nonpayment;
exempt certain property from fees; and provide a
process by which to discontinue the Stormwater
(Drainage) Utility System; providing a cumulative .
clause;, providing a severability clause; providing
a savings clause; providing for publication; and
providing an effective date.
Please see Exhibit "A" for the Ordinance. Any
interested persons and parties may submit any
information they wish to be considered to the City
Secretary prior to the date of the public hearings or
may appear at the public hearings to be heard, or
both.
The facility is wheelchair accessible. If you plan to
attend and you have a disability that requires special
arrangements, please notify the City Secretary 48
hours in advance of the hearings so that reasonable
accommodations can be made. For sign interpretive
services, please call 72 hours in advance.
For more information on this Legal Notice, please
contact the City Secretary at (817) 985 -2104.
Signed this the 4th day of January, 2010.
Kathy Turner
City Secretary
Published: January 8, 2010
January 15, 2010
January 22, 2010
Exhibit "A"
ORDINANCE NO. 447
SECTION 1.
Chapter 23 "Water,, Sewers, and Sewage Disposal ", of
the Kennedale City Code, is hereby amended to add a
new Article IX, which reads:
"ARTICLE IX. STORMWATER (DRAINAGE)
UTILITY SYSTEM
DIVISION 1. GENERALLY
Sec. 23 -501. Authority to create Stormwater
(Drainage) Utility System.
The City does hereby declare under the Texas
Constitution and the Texas Local Government Code,
Chapter 552, Subchapter C, The Municipal Drainage
Utility System Act (the "Act"), that said Act is hereby
adopted and it is declared that the stormwater drainage
of the City of Kennedale (the "City") shall be a
public utility. Pursuant to the provisions of Section
552.046 of the Act, the City incorporates its existing
stormwater (drainage) facilities, materials, equipment,
and supplies into the Stormwater (Drainage) Utility
System ( "Stormwater (Drainage) System" or
"Utility").
Sec. 23 -502. Findings and determinations.
(a) Determination of Utility Service Area. The
Stormwater (Drainage) System shall serve the City;
the boundaries of which shall be the City's municipal
boundaries.
(b) It is hereby found, determined, and declared
that the City shall:
(1) Ensure that the cost of operating and
maintaining the Stormwater (Drainage) System, and
the financing of necessary repairs, replacements;
improvements, and extension thereof must be directly
related to stormwater (drainage) service and the terms
of the stormwater (drainage) utility fees;
(2) Provide stormwater (drainage) facilities
and services for benefitted real property within the
utility service area upon payment of the stormwater
(drainage) utility fee unless the property is exempt
under Section 23 -513; and
(3) Establish a schedule ofstormwater (drainage)
utility fees for benefitted properties within the utility
service area in accordance with the provisions of the
Act; and
AN ORDINANCE OF THE CITY 'OF
KENNEDALE, TEXAS, AMENDING CHAPTER
23 OF THE KENNEDALE CITY CODE OF
ORDINANCES (1991), AS AMENDED, BY
ADDING A NEW ARTICLE IX, "STORMWATER
(DRAINAGE) UTILITY SYSTEM" TO
ESTABLISH A MUNICIPAL STORMWATER
(DRAINAGE) UTILITY SYSTEM; ESTABLISH
(4) Offer stormwater (drainage) service under
non- discriminatory, reasonable, and equitable terms.
Sec. 23 -503. Application.
This Article applies to the owner or user of a benefitted
property within the utility service area, as determined
by Section 23 -502, to which stormwater (drainage)