City of Garland, TX DRAINAGE IMPROVEMENT DISTRICTS AND DRAINAGE PARTICIPATION PROJECTS

Drainage improvement districts.

Application for creation of a Drainage Improvement District.

Upon the application of one or more interested property owners whose properties are not contiguous, the City shall determine a preliminary scope of work, prepare an Opinion of Probable Cost (“OPC”), and determine the boundaries of a drainage improvement district. The City shall provide this preliminary information to the applicants for their use. If the preliminary OPC is specified to expire after a certain time period, the City reserves the right to require an updated estimate. When a preliminary determination has been made, the City shall provide the applicant with:

(a)

A list of the names and last known addresses of all property owners within the proposed drainage improvement district.

(b)

A list of total abutting footage for each property owner, total proportional area for each property owner, or other estimate of the proportionate share of the drainage improvement project for each property owner.

(c)

An OPC per property.

Circulation of list; presentation of petition.

(a)

It shall be the responsibility of the applicants to make contact with other property owners within the boundaries of the proposed Drainage Improvement District as established by the City. Said applicants shall circulate a petition containing spaces where each affected property owner may sign the petition indicating their approval and financial commitment of that property owner for the proposed Drainage Improvement District.

(b)

If the petition is returned to the Director of Engineering and is signed by the lesser of fifty-one percent (51%) of the abutting property owners or the owners of at least fifty-one percent (51%) of the abutting frontage, then the Director of Engineering or more of the owners of the property to be included within the district, or at least fifty-one (51) percent of the abutting property footage, then the Director of Engineering may approach the City Council for the initiation of a Drainage Improvement District.

Initiation by City.

Upon the presentation of a proposed Drainage Improvement Project, including an OPC for the project, and the recommendation of the Director of Engineering, the City Council may order the creation of a drainage improvement district. The City may then proceed with creating an actual design plan and specifications for the proposed Drainage Improvement Project. The proposed Drainage Improvement Project must meet the design requirements and limitations specified in Section 31.92.

Drainage participation projects.

Application for the creation of a Drainage Participation Project:

Upon the application of a single property owner, or upon the application of multiple property owners whose properties are contiguous, the City shall determine a scope of work and cost for the Drainage Participation Project. The OPC shall include costs for surveying, geotechnical evaluation, design, construction and all other costs necessary to complete the project. This scope and cost shall be provided to the applicant(s) for their use. The City reserves the right to require an updated OPC if the property owner neglects to respond within thirty (30) days of the date of the proposal.

Upon receiving the applicant(s) signed commitment to proceed with the project, the City shall prepare a cost-sharing agreement to be executed by the City and the aforementioned applicants. For projects involving multiple abutting properties, a separate agreement shall be prepared for each applicant and the project shall not proceed until all applicants have executed their respective cost-sharing agreements. The City may then proceed with the design plan and specifications for the drainage participation project. The design must meet the requirements and fall within the limitations specified in Section 31.92.

(Ordinance 7052, sec. 19, adopted 5/7/19)

§ 31.92 Design requirements and limitations.

Design.

The design of drainage improvements shall be in accordance with this Chapter and with the GDC, where applicable. Any materials used in the improvements must be pre-approved by the City. Failure to obtain pre-approval may result in the City, at its sole discretion, requiring the improvement, in whole or in part, to be removed and replaced at the applicants’ expense.

Limitations.

Drainage Improvement Projects are specifically intended to protect private property from erosion loss due to the flow of water in natural or manmade watercourses within the City. Approval of proposed Drainage Improvement Projects shall be governed by the following conditions:

The proposed cost of the Drainage Improvement Project must be no greater than fifty (50) percent of the total property value, as determined by the Dallas County Central Appraisal District (“DCAD”).

The proposed Drainage Improvement Project must be located entirely within properties owned by participants in a Drainage Improvement District, or upon an easement voluntarily granted by a property owner not participating in the Drainage Improvement Project.

No Drainage Improvement Project shall be approved which create any increase in 100-year water surface elevations, whether the watercourse in question is located within a Special Flood Hazard Area as delineated on the current Flood Insurance Rate Maps issued by the United States Federal Emergency Management Agency (“FEMA”) or not. All Drainage Improvement Projects must conform to the requirements of Chapter 31, Article VII of the Ordinances of the City of Garland, Texas, as well as to any and all applicable requirements of FEMA and the United States Army Corps of Engineers (the “Corps”). Any costs associated with the review and/or mitigation of any FEMA and/or Corps will be shared on the same cost share basis as the original contract. The City, at its sole discretion, reserves the right to require the applicants to hire a Texas-licensed Professional Engineer to conduct a study verifying that the proposed project will meet this requirement. The cost of any such study shall be borne in its entirety by the applicants.

(4)

Applications intended to address erosion loss due to sheet flow across a lot (as opposed to flow in a watercourse) shall not be approved.

(5)

Applications arising due to the normal settlement of soil on a property (whether due to settlement over time or to normal soil movement from variable moisture content or seasonal shifting) shall not be approved.

(6)

Applications arising due to the failure of existing retaining walls (due to age or structural deficiency not related to erosion) shall not be approved. The City shall make the final determination as to whether or not an existing wall failure is due to erosion or some other cause.

(7)

Before a Drainage Improvement Project is approved, it must be demonstrated that a structure to be protected must be located a horizontal distance of no further than three times the maximum vertical height of the proposed wall as measured from the top of the wall. By way of example, a proposed wall ten (10) feet high must have a structure to be protected no further than thirty (30) feet from the top of the wall. For the purposes of this Article VI, a “structure to be protected” shall be defined as a residential or commercial building, swimming pool, non-moveable storage building, detached garage, non-movable machinery serving a building, or other similar structure. Fences, trees, landscaping, amenities and similar features do not qualify as “structures to be protected.”

(8)

The City reserves the right to disapprove any project which, as determined by the Director of Engineering, exposes the City to potential liability due to risk of damage to existing structures.

(Ordinance 4389, sec. 3, adopted 12/19/89; Ordinance 7052, sec. 20, adopted 5/7/19)

§ 31.93 Cost-sharing policy and limitations; completion of design; solicitation of bids.

Cost-sharing policy and limitations.

Assessment determinations.

Alternative methods for determining the apportionment of the costs associated with the Drainage Improvement Project include the following:

(a)

By determining the amount of linear feet of property abutting the proposed Drainage Improvement Project.

(b)

By determining the square footage of property within the Drainage Improvement District.

(c)

By such other method calculated to produce a substantial equity of benefits received and burdens imposed.

Share.

For commercial properties, including multifamily residential properties, the City shall bear thirty-three percent (33%) of the direct costs of the improvements associated with the drainage improvement district and the property owners within the drainage improvement district shall be assessed for the remaining sixty-seven percent (67%) of those costs. For single-family residential properties, or non-profit, non-residential uses such as buildings of worship, the City shall bear fifty percent (50%) of the direct costs of the improvements associated with the Drainage Improvement District shall be assessed for the other fifty percent (50%) of those costs. A proportionate reduction in the costs of the improvements to be assumed by property owners within the drainage improvement district may be allowed for the abutting footage, area or other appropriate unit of measurement of the streets, alleys, parks or other City property contained within the Drainage Improvement District.

For purposes of this Section, a property is considered to be “non-profit” if it is owned by an individual or entity with tax exempt status pursuant to 26 U.S.C. §501.

Completion of design.

In the case of projects initiated by multiple property owners with non-contiguous frontage, after the design for the proposed Drainage Improvement Project has been completed, an OPC for those improvements shall be prepared. If the estimated cost of the improvement project is within or below the range submitted to the property owners in response to the application or to the City Council, as the case may be, then the City may solicit bids for the construction and implementation of the drainage improvements. In the event that either the OPC or the bid for the project, or both, is above the submitted range, then at least 51%of the property owners within the improvement district must affirm the increased costs. Should the property owners choose to opt out of the project, they will be responsible for proportional costs incurred up to that date.

If less than 51% of those property owners affirm the project, then the project may, at the discretion of the City, be suspended or terminated. If the improvement project, with the increased costs, is reaffirmed by 51% or more of the property owners within the district, then the City may solicit bids for the project. For projects initiated by the City, in the event the OPC is above the submitted range, then the City Council may affirm and continue the project, or the project may be suspended or terminated.

Solicitation of bids.

Bids for the Drainage Improvement Project shall be solicited in accordance with applicable state law. When a responsive bid or responsive bids from a responsible bidder or responsible bidders has or have been tendered, then the bid or bids, as the case may be, shall be submitted to the City Council for consideration.

(Ordinance 7052, sec. 21, adopted 5/7/19)

§ 31.94 Assessment hearing; notice.

No assessment shall be made against any property within a drainage improvement district, or its owners, until after reasonable notice and opportunity for hearing. No assessment shall be made against such property, or its owners, by reason of the drainage improvements other than the property owner’s appropriate proportionate share.

Reasonable notice of the hearing on the Drainage Improvement Project’s assessments shall be provided by advertisement in a newspaper having a general circulation in the City at least 14 days before the date of the hearing, and by depositing in the United States mail, postage prepaid, a written notice of the hearing addressed to the owners of the respective properties located within the Drainage Improvement District as the names and addresses of the respective owners appear on the then-current tax rolls of the City.

The notice, as provided in subsection (B) above shall include the following information:

The date, time and place of the hearing;

The general nature of the proposed improvements;

The total estimated cost of the improvements;

(4)

The boundaries of the drainage improvement district;

(5)

The proposed apportionment of cost between the City and the drainage improvement district as a whole; and

(6)

That written and oral comments and objections will be considered at the hearing.

(D)

The hearing shall be held by and before the City Council. The appropriate department or departments of the City shall present testimony and other evidence before the City Council as to the property owner’s proportionate share of the Drainage Improvement Project value accruing to the property within the Drainage Improvement District by reason of the improvements. At such hearing the owners, lienholders and other interested parties may address and contest the bid or bids to be considered, the amounts of the proposed assessments, the lien and liability of the proposed assessments,. If the proportionate share is based on the frontage, all project costs, including labor, materials, permits, engineering, design, obtaining easements, obtaining construction easements, and any other cost incurred through this Drainage Improvement Project shall be included in determining the amount of a property owner’s proportionate share. The City Council may then correct any errors, inaccuracies, and irregularities and may determine the appropriateness of any bid or bids, the amounts of assessments, and all other necessary matters.

(E)

At the close of the hearing, the City Council may then award such bid or bids on the drainage improvement project as it deems appropriate and may determine the amounts, if any, to be assessed so as to produce substantial justice. The City Council shall levy such assessments by ordinance.

(Ordinance 7052, sec. 22, adopted 5/7/19)

§ 31.95 Assessment lien; enforcement; payment.

An assessment levied under this article shall constitute a personal charge against the owner of the property assessed, and shall be secured by a lien on such property having priority over all other liens, claims or titles except for taxes. Such personal liability and lien may be enforced either by suit in a court of competent jurisdiction or by enforcement of the lien as provided by law.

Assessments may be paid in full at the completion of the Drainage Improvement Project or as indicated on the following chart. If the amount is not paid in full at the completion of the Drainage Improvement Project, it may bear interest not to exceed the maximum rate allowed by state law. Any property owner may discharge the whole amount assessed against the owner, or any installment, at any time before maturity, upon payment with accrued interest. Upon payment of an assessment in full, the City shall cause to be executed, by the City Manager, a release of the lien of assessment, duly acknowledged and suitable for filing of record.

City participation.

The City may participate in the reconstruction provided monies are available for this program from bond funds. If monies are available, City participation in the cost of improvements will be on a cost share basis with the abutting property owner as provided for in this Article VI. If the property owner’s share of the cost of improvements is equal to or greater than the amounts shown below, payment may be made in not more than the corresponding number of equal monthly payments for that amount as shown below at an interest rate not to exceed the maximum interest rate paid by the City on the bond funds from which the reconstruction monies are obtained:

If the property owner’s share is between $2,000.00 and $9,999.99 (inclusive), the payment plan may extend to not more than thirty-six (36) months.

If the property owner’s share is between $10,000.00 and $19,999.99 (inclusive), the payment plan may extend to not more than forty-eight (48) months.

If the property owner’s share is $20,000.00 or more, the payment plan may extend to not more than sixty (60) months.

(Ordinance 7052, sec. 23, adopted 5/7/19)

§ 31.96 Suit to set aside or correct.

Any property owner against whom or whose property an assessment or reassessment has been made pursuant to this article may, within ten (10) days thereafter, bring suit in any court having jurisdiction to set aside or correct the same, or any proceeding relating to the assessment on account of any error, invalidity or other matter, but thereafter such owner, his heirs, assigns or successors shall be barred and estopped from in any manner contesting or questioning such assessment or the amount, accuracy, validity, regularity or sufficiency of the assessment and the proceedings, bids, contracts or improvements relating to or arising from such assessment.

§ 31.97 Errors; corrections; reassessments.

No error in any proceeding under this article, or in the description of property, or in the name of its owner, shall invalidate an assessment, which shall nevertheless be in effect as against the real and true owner and the property. In case any assessment has been held or determined to be invalid or unenforceable, the City Council may correct the error or insufficiency and may levy and reassess any owner or property erroneously assessed, after lawful notice and hearing and in accordance with benefits as provided in this article as to original assessments, and may fix the time and terms of payment of the sums so reassessed. In making such reassessments it shall not be necessary to do any act, or take any step, or again perform any prerequisite already legally done or performed with reference to the original assessment, but the City Council may in its discretion proceed without again taking steps already validly taken or performed; provided, that no reassessment shall be made until after notice and hearing and in accordance with benefits, as provided in this article.

§ 31.98 Maintenance of completed improvements.

Upon substantial completion of any Drainage Improvement Projects under the provisions of this Article VI, the City shall provide drainage and erosion control maintenance for the structural improvements to the drainageways for a period of not more than two years after final acceptance of the improvements. At the end of the two-year maintenance period, the ownership and maintenance responsibilities become that of the adjacent property owners and the City’s maintenance obligation shall terminate. Upon completion and acceptance of any drainage improvement projects under this article, the property owner on whose property the channel improvements lie, or whose property directly abuts such channel improvements, shall assume full ownership of the drainage improvements, including maintenance, and be responsible for any necessary mowing, irrigation, weeding, picking up litter, fertilizing and such other maintenance as is required to maintain a healthy stand of grass or other ground cover.

If, subsequent to the completion and acceptance of any improvements constructed under the provisions of this Article, the property owner, or subsequent property owner, constructs subsequent additional improvements to the property which damage said erosion wall or subject it to additional loading which could result in damage or failure, or undertakes any change to the property which, in the opinion of the City, causes damage to the wall, the City may, at its discretion, terminate its maintenance obligation. The City shall not be responsible for any damage to any structure or property improvements that were constructed subsequent to the completion and acceptance of the erosion wall.