§ 11-2-6. Participation policies and pro rata fees.

(A)

Participation policies.

1.

Developer's responsibility.

(a)

The developer shall be responsible for the entire cost of designing and installing all public improvements which primarily serve the subdivision. Facilities required by these regulations, unless listed in Section 11-2-6(B), shall be considered as primarily serving the subdivision unless otherwise determined by the City.

(b)

The developer shall also be responsible for his share of the costs of oversized or off-site public improvements needed to assure adequacy of public facilities and services for the subdivision, subject to participation, escrow and reimbursement policies contained in this Section 11-2-6.

(c)

The developer shall be responsible for extending all streets, water, wastewater and drainage facilities to his property, as required by the commission or Council to ensure adequacy of public facilities.

(d)

Should the subdivision abut an existing water or wastewater line installed by someone other than the City, the developer shall pay to the City a pro rata charge to be refunded to the original installer of the line, as prescribed in Section 11-2-6(E) of these regulations.

(e)

Should a lift station, either temporary or permanent, be necessary to provide sanitary sewer service to the subdivision, the developer shall construct the station and all appurtenances at his own expense. If and when the lift station is no longer needed, the installation will, unless other provisions are made, remain the property of the City of Midland for reuse or disposal. A pro rata charge for such lift stations and appurtenances may be established as prescribed in Section 11-2-6(E).

2.

City's share of improvement costs. The City may participate with the developer in the costs of public improvements which are not for the primary benefit of the development and which have been oversized to serve developments other than that for which the plat has been submitted for approval, in an amount not to exceed a maximum of 30 percent of the total construction costs of the public facilities set forth in the development agreement between the City and the developer, and pursuant to the procedures herein set forth. The agreement shall be consistent with the requirements of V.T.C.A., Local Government Code ch. 252, and V.T.C.A., Local Government Code §§ 212.071—212.074, inclusive, as amended. In the event that the City, in its sole discretion, determines to participate to an extent greater than 30 percent of total construction costs of the public facilities set forth in the development agreement, in order to preserve the public health and safety, or to prevent confiscation of property, the developer shall be responsible for compliance with all competitive bidding procedures required by the City and V.T.C.A., Local Government Code ch. 252.

3.

In no event may the City be required to participate in the costs of public facilities if the Council determines in its sole discretion that there are no funds available for such purposes.

(B)

Facilities eligible for city participation. The developer shall be responsible for the entire initial cost of installing public facilities, including oversizing. As funds become available, the City may participate at a maximum in the costs of installing public improvements according to the following schedule:

1.

Streets and thoroughfares. The city's participation in the costs of improvements for perimeter and approach roads shall be computed following determination of the developer's responsibilities and those of abutting property owners. Internal subdivision streets, except arterial streets, are not eligible for city cost participation. The city's maximum share of improvement costs for perimeter and approach roads and for arterial streets is set forth in the following table, which designates the developer's and the City's share for various categories of streets. The costs of improvements which are eligible for city participation include those for construction, utility adjustments, excavation, subgrade preparation, pavement, crossovers, turn lanes, curbs and gutters. All other costs are the responsibility of the developer, except as provided otherwise herein. The city's participation in the costs of streets and thoroughfares applies only within the City limits. If an area zoned as a less restrictive or more intensive district than 1F, MH, TH, or 2F will be abutted by streets that the developer will improve on more than one side, the developer's share for the abutting section of street shall be determined by said zoning district, according to the table. If an area zoned as one of the less restrictive or more intensive districts will be abutted by only one street that the developer will improve, the developer's share for the zoning area shall be applicable to a length of the abutting roadway equal to the square root of the zoning area, regardless of the actual street frontage of the zoning area. The developer's share for the most restrictively or least intensively zoned area shall be applicable to the remainder of street frontage within or abutting the area of the plat after his share for all less restrictively or more intensively zoned areas has been applied.

CITY PARTICIPATION TABLE—STREETS
11-2-6(B)1

Street Class	R.O.W. Pavement	Adjacent Zoning	Developer's Share***	City's Share
Arterial	Various	C-, LI, HI, IP- or major concentration of LR-, O-, or MF-	½ cost of street, based on maximum 28-meter (93-foot) width including C & G, arterial construction standards	Remainder
Arterial	Various	NS, or neighborhood scale* concentration of LR-, O-, or MF-	½ cost of street, based on maximum 20-meter (68-foot) width including C & G, arterial construction standards	Remainder
Arterial	Various	1F-, MH, TH, 2F	1/3 cost of street, based on maximum 20-meter (68-foot) width including C & G, arterial construction standards	Remainder
Arterial	Various	AE or other with minimum residential lot area of 2,500 square meters (27,000 square feet) or greater	1/3 cost of street, based on maximum 15-meter (51-foot) width, no C & G, arterial construction standards	Remainder
Collector or local	Various	AE or other with minimum residential lot area of 2,500 square meters (27,000 square feet) or greater	Full street to a maximum of 8-meter (26-foot) width, no C & G	Remainder
Collector or local	Various	All other	Full street	None
Collector**	Various	All other	Full street to a maximum of 10-meter (34-foot) width, including C & G one side	Remainder

 

*Neighborhood scale commercial: 3.0 hectares (7.5 acres) or less.
Neighborhood scale office: Limited to less than 10,000 square meters (100,000 square feet) of floor area.

**Applicable to an existing street only, where the subdivision neither creates the street nor extends its length.

***For each side of the road which the subdivision abuts.

2.

Water and wastewater. If the request for city participation is approved by the Council, following dedication and acceptance of the facility or appurtenances in which it has agreed to participate, the City shall refund the costs of oversizing such facility in accordance with the following procedures and standards:

(a)

Oversizing standards. The City shall pay the difference in the cost of materials between a "standard" size main (a 20-centimeter (8-inch) water main or a 25-centimeter (10-inch) wastewater main) and a larger size main required by the City, as determined under subparagraph (b) hereof, up to the maximum amount agreed to by the City.

(b)

Oversize cost determination. The extent of the City's participation in the cost of oversized mains shall be determined in the following manner: Estimates of the actual costs of materials, which are provided by the developer's professional engineer along with an estimate of the City participation, according to the policies stated herein, shall be submitted to the director for his review and approval. The approved estimates shall be set forth in the development agreement between the developer and the City, including an estimate of the City's portion. However, the City's participation shall be based on actual bid between the "standard" size main and the oversize main. The developer's engineer shall include the "standard" size main in the base bid with the oversize as an alternate and shall provide for separate unit price bids for labor and materials. All bids received by the developer shall be provided to the City engineer for review and approval. The City has the right to reject any and all bids in which it is participating. In no event shall the City's participation exceed the City's portion of the construction costs set forth in the development agreement, or as may be subsequently amended.

(c)

Participation in costs of construction other than materials. The Council may, in its sole discretion, agree to participate in costs related to water and wastewater main extensions other than the costs determined under subparagraph (b), above, upon a determination by the Council that:

(1)

The size of the water or wastewater line required by the City to be constructed by the developer is necessary for the public health, safety and welfare; and

(2)

The difference in the cost of constructing the oversize line excluding materials costs is so significant over the cost of the standard line as to create an undue and inequitable burden on the developer relative to the benefit the developer's subdivision will receive from use of the oversized line.

3.

Drainage facilities. The developer is required to provide all drainage facilities and appurtenances necessary to conduct stormwater runoff through or along the boundary of his subdivision and all drainage facilities and appurtenances, whether within or outside the boundaries of his subdivision, that are required to conduct stormwater runoff from the subdivision. This includes underground and/or open channel facilities, and detention or retention basins, as well as any required off-site drainage facilities for stormwater runoff from the subdivision. A subdivision which contains a major drainageway and/or draw, or has substantial off-site drainage, is required to provide adequate rights-of-way and channelization for drainage. The City may elect, provided funds are available, to participate in the cost of a major drainage structure (e.g., bridge, culvert, or multi-box culvert) along the perimeter of the subdivision, but the developer shall be responsible for not less than one-third the cost of the structure if it provides access to the subdivision or conveys drainage through or from the subdivision. However, if a major drainage structure is required only to provide access and/or drainage for the subdivision, there will be no city participation in the cost.

(C)

Procedures for city participation.

1.

Participation requests. A request for city participation for those facilities identified in Section 11-2-6(B) shall be initiated through the submission of an application for participation by a developer. Such application shall be submitted in the form specified by the City prior to commencement of construction. The request for participation shall be accompanied by proposed construction drawings showing the reimbursable items, a copy of the contractor's bid for construction, final payments with quantities, oversized calculations for all reimbursable items and a project location map.

2.

City determination of oversized costs. The city engineer initially shall determine an amount for city participation in the costs of public improvements, based on public improvement plans approved by him, in accordance with the criteria in Section 11-2-6(A) and (B). The Council shall approve any requests for participation. The terms of the City's participation shall be incorporated within the development agreement.

3.

Reimbursement. Reimbursement of the City's share of participation in the costs of public improvements shall be made as funds become available, unless otherwise specified in the development agreement.

(D)

Escrow policies and procedures.

1.

Deposit with City. Whenever the City agrees to accept escrow deposits in lieu of construction by the owner of the property under these regulations, the property owner or developer shall deposit an amount in escrow with the City equal to his share of the costs of design and construction. Such amount shall be paid prior to the time of final plat approval.

2.

Determination of escrow amount. The amount of the escrow shall be determined by an estimate of the City engineer based on comparable bids awarded by the City and current market value of the construction. Such determination shall be made as of the time the escrow is due hereunder.

3.

Termination of escrow. Escrows placed with the City under this Section which have been held for a period of ten years from the date of such payment, in the event that the City has not authorized the preparation of plans and specifications for construction of such facilities for which the escrow was made, shall, upon written request, be returned to the property owner, with accrued interest. Such return does not remove any obligations of the owner for construction of the required facilities if a building permit has not been issued on the subject lot or if a new building permit is applied for.

4.

Interest limitation. If money is refunded within six months of deposit, only the principal will be refunded. Monies returned after this date will be refunded with interest accrued, calculated at one percent less than the rate of actual earnings.

(E)

Pro rata fees.

1.

Water and wastewater line reimbursements.

(a)

Nature of fee. A charge known as a "pro rata fee" shall be imposed on each lot or tract abutting an existing water or wastewater main for which such fee has been established pursuant to this Section, as a condition of connection to such main, for the purpose of reimbursing the developer who previously installed or paid for the main.

(b)

Amount of fee. The pro rata fee shall be established for each side of the main to which connections are made. The fee for each side shall be equivalent to one-half the cost of the constructed main less the oversize participation, if any, together with all appurtenances, for that length of the main abutting the property being charged. For mains where connections can be made on one side only, the fee shall be equivalent to the cost of the constructed main less the oversize participation, if any, together with all appurtenances, for that length of the main abutting the property being charged.

2.

Procedure for establishing pro rata fees.

(a)

Request for pro rata fees. Prior to final acceptance of the improvements, the developer who installs a water or wastewater main shall request the establishment of a pro rata fee for such facility.

(b)

Submittal requirements. The request to establish a pro rata fee shall be in a form specified by the City. The request shall include a copy of the actual contract for construction of the water and/or wastewater mains with unit prices. The request must identify the constructed cost of the main, including any fire hydrants, valves, fittings, manholes and other appurtenances which were determined to be necessary for construction of the main.

(c)

Verification of costs by engineer. The director shall verify the developer's calculations of main costs. In the event of disagreement, the director shall establish the cost per unit length for the pro rata fee.

(d)

Reimbursement amount. The maximum amount for which a developer may be reimbursed from the proceeds of pro rata fees shall not exceed the costs determined by the director under subparagraph (c) hereof, less the amount of any city participation in costs pursuant to Section 11-2-6(C) hereof.

3.

Payment of pro rata fees.

(a)

Obligation to pay fee. Any property owner whose property lies adjacent to a street, alley or easement containing an existing water or wastewater main for which a pro rata fee has been established pursuant to these regulations shall pay the applicable fee prior to final plat approval of the property.

(b)

Calculation of fee. The amount of the pro rata fee shall be calculated by multiplying the unit cost determined in paragraph 2 of Section 11-2-6(E) by the length of that portion of the property boundary of a lot which abuts a street, alley or easement containing a water or wastewater main for which pro rata fees have been established. The number of linear feet shall be determined by the following formulas:

(1)

For residential lots: When the main installation is designed to serve property on only one side of the street or alley, the frontage rates established according to paragraph 2 above shall be doubled. The frontage rates shall apply to property fronting on streets in areas platted into the usual rectangular lots or tracts of land, with a depth not to exceed 45 meters (150 feet). Where lots or tracts have greater depth than 45 meters (150 feet) from the front street line and are occupied, or are to be occupied, exclusively as dwelling places then the additional depth shall not be assessed. If the property is later subdivided, requiring the extension of mains to serve same, then the terms of this Chapter shall govern. Where lots or tracts are irregular in size or shape, then the pro rata charged shall be based upon equivalent rectangular lots or tracts using one front meter (foot) for each 150 square meters (feet) of area, or the pro rata charges provided herein on the average frontage of such tracts, whichever is least.

(2)

For commercial lots: On lots or tracts of land which extend through from one street to another, with frontage on both streets, and where the distance between the street lines is 80 meters (260 feet), or more, then the pro rata charges herein provided for shall be paid on both frontages when a connection is secured to the lot or tract.

Where lots or tracts are irregular in size or shape, then the pro rata charged shall be based upon equivalent rectangular lots or tracts using one front meter (foot) for each 150 square meters (feet) of area, or the pro rata charges provided herein on the average frontage of such tracts, whichever is least.

Where lots or tracts have a depth greater than 45 meters (150 feet) from the front street line, then the pro rata herein provided shall be paid on the frontage on all streets which the property may abut minus 45 meters (150 feet) frontage for each corner of the property abutting a street intersection. Should said property be resubdivided whereby further extensions are required to service same, the terms of this Chapter shall apply.

4.

Pro rata fee account. A pro rata fee account is hereby established. The City shall deposit all pro rata fees collected pursuant to Section 11-2-6(E)3 into such account. Expenditures from such account shall be earmarked solely for reimbursement of developers for the reasonable costs of installing water mains or wastewater mains for which pro rata fees have been established pursuant to Section 11-2-6(E)2.

5.

Reimbursement for water and wastewater main extensions.

(a)

Reimbursement time limit. For a period of seven years after dedication to and acceptance by the City of the completed facility, the developer shall be entitled to reimbursement from the proceeds of the pro rata fees established pursuant to Section 11-2-6(E)2 up to the total cost of the extensions established by resolution pursuant to Section 11-2-6(E)3(a). Payment shall be from the pro rata fee account. Upon request of the developer, the City shall make reimbursements for main extensions semiannually on May 1 and November 1 of each calendar year. Following expiration of such period, the City shall cease to collect pro rata fees for the main.

(b)

Unclaimed funds. If the City is unable to reimburse the developer who installed the main following reasonable attempts to locate such developer, the City shall transfer all fees which remain unclaimed seven years following the date of acceptance of the water or wastewater main to the water and sewer fund for disposition in accordance with general provisions.

6.

City collection fee. The City shall collect from the property owner paying pro rata fees an additional two percent of the amount collected plus $100.00 as a collection fee. The City shall establish a collection fee account into which all such monies shall be deposited for purposes of administering this Section. Any interest earned on the pro rata fee account shall also be deposited in the collection fee account.

7.

Method of enforcing pro rata payment. Nothing herein shall be deemed in any way to be an exclusive method of enforcing the payment of pro rata fees against the property owner, and shall not be deemed in any manner to be a waiver of the City's right to validly assess the property owner for the costs of installing a standard size water or wastewater main and to affix and enforce liens against said property, all of which may be done as provided by ordinance in the manner prescribed by law.

8.

Application of pro rata fees to existing mains predating Chapter. Pro rata fees imposed on property abutting a water or wastewater main installed by a developer prior to June 26, 1990, pursuant to former Section 3-1-13 of the City Code, which fees are for the sole purpose of reimbursing such developer for the costs of installing a standard size main, shall be collected at the following rates:

(a)

Six dollars per front foot of the lot or tract of land to which water connections may be made.

(b)

Five dollars per front foot of the lot or tract of land to which wastewater connections may be made.

Computation of fees for such facilities shall be as provided under this Section. Following June 26, 1990, the City shall neither impose nor collect fees for city-installed facilities pursuant to former Sections 3-1-9 through 3-1-18 of the City Code, nor shall the City continue to collect pro rata fees for developer-installed facilities following the expiration of the period for refund pursuant to former Section 3-1-14. The rights of persons entitled to refunds under previous ordinances where the water or wastewater installations have actually been made shall remain unaffected by this Chapter.

(F)

Payment of fees, charges and assessments. As a condition of plat approval, the property owner shall pay all fees, charges and assessments required to assure adequacy of public facilities to the subdivision, as may be imposed under this Chapter or other regulations of the City.

(Ord. No. 7333, § 1, 6-14-1994)