(a) Developer projects. The following provisions shall
apply unless the commission, in its discretion, determines that application
to a particular situation renders an inequitable result.
(1) A developer project is a district project that
provides water, wastewater, drainage, or recreational facility service
for property owned by a developer of property in the district, as
defined by Texas Water Code (TWC), §49.052(d).
(2) Except as permitted under paragraph (8) of this
subsection, the costs of joint facilities that benefit the district
and others should be shared on the basis of benefits received. Generally,
the benefits are the design capacities in the joint facilities for
each participant. Proposed cost sharing for conveyance facilities
should account for both flow and inflow locations.
(3) The cost of clearing and grubbing of district facilities'
easements that will also be used for other facilities that are not
eligible for district expenditures, such as roads, gas lines, telephone
lines, etc., should be shared equally by the district and the developer,
except where unusually wide road or street rights-of-way or other
unusual circumstances are present, as determined by the commission.
The district's share of such costs is further subject to any required
developer contribution under §293.47 of this title (relating
to Thirty Percent of District Construction Costs to be Paid by Developer).
The applicability of the competitive bidding statutes and/or regulations
for clearing and grubbing contracts let and awarded in the developer's
name shall not apply when the amount of the estimated district share,
including any required developer contribution does not exceed 50%
of the total construction contract costs.
(4) A district may finance the cost of spreading and
compacting of fill as follows.
(A) A district may finance the cost of spreading and
compacting of fill in areas that require the fill for development
purposes, such as in abandoned ditches or floodplain areas, only to
the extent necessary to dispose of the spoil material (fill) generated
by other projects of the district.
(B) A levee improvement district or a district with
the powers of a levee improvement district may finance the cost of
spreading and compacting fill to remove property from the 100-year
floodplain.
(C) A municipal utility district or a district with
the powers of a municipal utility district may finance the costs of
spreading and compacting fill to provide drainage if the costs are
less than the cost of constructing or improving drainage facilities
which would have been required to achieve a similar purpose as the
fill project, as determined by the district's engineer.
(5) The cost of any clearing and grubbing in areas
where fill is to be placed should not be paid by the district, unless
the district can demonstrate a net savings in the costs of disposal
of excavated materials when compared to the estimated costs of disposal
off site.
(6) When a developer changes the plan of development
requiring the abandonment or relocation of existing facilities, the
district may pay the cost of either the abandoned facilities or the
cost of replacement facilities, but not both.
(7) When a developer changes the plan of development
requiring the redesign of facilities that have been designed, but
not constructed, the district may pay the cost of the original design
or the cost of the redesign, but not both.
(8) A district shall not finance the pro rata share
of oversized water, wastewater, or drainage facilities to serve areas
outside the district unless:
(A) such oversizing:
(i) is required by or represents the minimum approvable
design sizes prescribed by local governments or other regulatory agencies
for such applications;
(ii) does not benefit out-of-district land owned by
the developer;
(iii) does not benefit out-of-district land currently
being developed by others; and
(iv) the district agrees to use its best efforts to
recover such costs if a future user outside the district desires to
use such capacity; or
(B) the district has entered into an agreement with
the party being served by such oversized capacity that provides adequate
payment to the district to pay the cost of financing, operating, and
maintaining such oversized capacity; or
(C) the district has entered into an agreement with
the party to be served or benefitted in the future by such oversized
capacity, which provides for contemporaneous payment by such future
user of the incremental increase in construction and engineering costs
attributable to such oversizing and which, until the costs of financing,
construction, operation, and maintenance of such oversized facilities
are prorated according to paragraph (2) of this subsection, provides
that:
(i) the capacity or usage rights of such future user
shall be restricted to the design flow or capacity of such oversized
facilities multiplied by the fractional engineering and construction
costs contemporaneously paid by such future user; and
(ii) such future user shall pay directly allocable
operation and maintenance costs proportionate to such restricted capacity
or usage rights; or
(D) the district or a developer in the district has
entered into an agreement with a municipality or regional water or
wastewater provider regarding the oversized facilities and such oversizing
is more cost-effective than alternative facilities to serve the district
only. For the purposes of this subparagraph, regional water or wastewater
provider means a provider that serves land in more than one county.
An applicant requesting approval under this subparagraph must provide:
(i) bid documents or an engineer's sealed estimate
of probable costs of alternatives that meet minimum acceptable standards
based on costs prevailing at the time the facilities were constructed;
or
(ii) an engineering feasibility analysis outlining
the service alternatives considered at the time the decision to participate
in the oversizing was made; or
(iii) any other information requested by the executive
director.
(9) Railroad, pipeline, or underground utility relocations
that are needed because of road crossings should not be financed by
the district; however, if such relocations result from a simultaneous
district project and road crossing project, then such relocation costs
should be shared equally. The district's share of such costs is further
subject to any required developer contribution under §293.47
of this title.
(10) Engineering studies, such as topographic surveys,
soil studies, fault studies, boundary surveys, etc., that contain
information that will be used both for district purposes and for other
purposes, such as roadway design, foundation design, land purchases,
etc., should be shared equally by the district and the developer,
unless unusual circumstances are present as determined by the commission.
The district's share of such costs is further subject to any required
developer contribution under §293.47 of this title.
(11) Land planning, zoning, and development planning
costs should not be paid by the district, except for conceptual land-use
plans required to be filed with a city as a condition for city consent
to creation of the district.
(12) The cost of constructing lakes or other facilities
that are part of the developer's amenities package should not typically
be paid by the district; however, the costs for the portion of an
amenity lake considered a recreational facility under paragraph (24)
of this subsection may be funded by the district. The cost of combined
lake and detention facilities should be shared with the developer
on the basis of the volume attributable to each use, and land costs
should be shared on the same basis, unless the district can demonstrate
a net savings in the cost of securing fill and construction materials
from such lake or detention facilities, when compared to the costs
of securing such fill or construction materials off site for another
eligible project. Pursuant to the provisions of TWC, §49.4641,
as amended, a district is not required to prorate the costs of a combined
lake and detention site between the primary drainage purpose and any
secondary recreational facilities purpose if a licensed professional
engineer certifies that the site is reasonably sized for the primary
drainage purpose.
(13) Bridge and culvert crossings shall be financed
in accordance with the following provisions.
(A) The costs of bridge and culvert crossings needed
to accommodate the development's road system shall not be financed
by a district, unless such crossing consists of one or more culverts
with a combined cross-sectional area of not more than nine square
feet. The district's share shall be subject to the developer's 30%
contribution as may be required by §293.47 of this title.
Cont'd... |