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HomeMy WebLinkAbout09217 City Clerk’s Office Item # R-8 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: December 11, 2017 TO: President Stephen G. Nawrocki and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: Daniel C. Kogovsek, City Attorney SUBJECT: AN ORDINANCE CREATING A STREET REPAIR UTILITY ENTERPRISE; ESTABLISHING AND IMPOSING A STREET REPAIR UTILITY SERVICE CHARGE AND ESTABLISHING PROCEDURES FOR COLLECTION THEREOF; DETERMINING AND PROVIDING FOR THE PURPOSES AND USE OF SUCH SERVICE CHARGE; PROVIDING FOR ADMINISTRATION OF THE STREET REPAIR UTILITY; ESTABLISHING PROCEDURES FOR ADMINISTRATIVE AND JUDICIAL REVIEW AND PROVIDING FOR PENALTIES FOR VIOLATIONS THEREOF SUMMARY: Attached is a proposed Ordinance establishing a Street Repair Utility Enterprise. PREVIOUS COUNCIL ACTION: On August 14, 2017, by Ordinance No. 9150, City Council referred Ballot Question No. 2C to the voters. The ballot question requested the voters’ consent to the establishment of a Street Repair Utility Enterprise. BACKGROUND: At the General Municipal Election held on November 7, 2017, the voters of the City of Pueblo passed Ballot Question 2C by a margin of 58% to 42%. The attached ordinance implements the decision of the City’s voters to establish a street repair utility. FINANCIAL IMPLICATIONS: The attached ordinance creates a TABOR-exempt enterprise. Enterprises must receive at least 90% of their revenue from fees rather than taxes. Pueblo real property owners will be assessed a monthly fee based upon the generation of vehicular traffic by particular land uses. The monthly street repair fees will be set at a later time by City Council through the adoption of an Ordinance. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Members of the public are the primary stakeholders affected by the proposed Ordinance. The issue of funding street repairs has been discussed at various public Council meetings and work sessions during the past year. On November 7, 2017, voters expressed their consent to the establishment of a Street Repair Utility Enterprise. ALTERNATIVES: If the Ordinance is not approved, the Street Repair Utility Enterprise will not be established. RECOMMENDATION: Approval of the Ordinance. Attachments: Proposed Ordinance ORDINANCE NO. 9217 AN ORDINANCE CREATING A STREET REPAIR UTILITY ENTERPRISE; ESTABLISHING AND IMPOSING A STREET REPAIR UTILITY SERVICE CHARGE AND ESTABLISHING PROCEDURES FOR COLLECTION THEREOF; DETERMINING AND PROVIDING FOR THE PURPOSES AND USE OF SUCH SERVICE CHARGE; PROVIDING FOR ADMINISTRATION OF THE STREET REPAIR UTILITY; ESTABLISHING PROCEDURES FOR ADMINISTRATIVE AND JUDICIAL REVIEW AND PROVIDING FOR PENALTIES FOR VIOLATIONS THEREOF BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PUEBLO, that (brackets indicate matter being deleted; underscoring indicates new matter being added): SECTION 1. Title XII of the Pueblo Municipal Code is hereby amended by the enactment and addition of the following new Chapter 11: CHAPTER 11 STREET REPAIR UTILITY Sec. 12-11-1: Title This Chapter shall be known and cited as the Street Repair Utility Ordinance of Pueblo. Sec. 12-11-2: Legislative intent and purpose. (a) The purpose of this Chapter is to establish a street repair fee within the boundaries of the City. The amount of the fee as established herein is intended to defray the costs of properly maintaining and repairing City streets. (b) It is the intent and purpose of this Chapter: (1) To promote the public health, safety and welfare of the residents of the City; (2) To establish a street repair utility enterprise to coordinate, design, construct, manage, operate, maintain and repair the street and road systems located within the City; (3) To establish reasonable street repair utility service charges based on the use of the City ’s streets and roads; (4) To set aside and utilize the amounts collected by the imposition of the street repair service fees for the sole purpose of defraying the costs of repairing and maintaining the streets and roads located within the boundaries of the City. Sec. 12-11-3: Definitions. (a) For purposes of this Chapter, the following words shall have the following meaning, unless the context clearly indicates otherwise: (1) “City” means the City of Pueblo, CO. (2) “Customer" means a person to whom the City furnishes streets and roads for use. (3) “Director” means the City’s Director of Public Works. (4) "Repair" means activities performed for the upkeep and maintenance of the City 's streets, including but not limited to patching, crack sealing, seal coating, overlaying, resurfacing, and reconstruction. (5) “Project” means the undertaking of repair tasks or activities on the City’s streets or roads. (b) The City Council is authorized to issue regulations not inconsistent with this Chapter to further define such terms as may be necessary or desirable for the administration of this Chapter, and to establish additional procedures as may be necessary or desirable for the administration of this Chapter. Sec. 12-11-4: Street repair utility enterprise. (a) There is hereby created a street repair utility in the Department of Public Works. (b) The street repair utility shall constitute an enterprise empowered to coordinate, design, conduct, manage, operate, maintain and repair the streets and roads of the City and to implement the provisions of this Chapter. The street repair utility enterprise is authorized to issue its own revenue bonds. The enterprise shall be wholly owned by the City and operated in accordance with applicable ordinances and resolutions of the City and other applicable law. (c) The City Council shall act ex officio as the governing body of the street repair utility enterprise. (d) The street repair utility enterprise shall at all times and in all ways conduct its affairs so as to continue to qualify as an “enterprise” within the meaning of Section 20 of Article X of the Colorado Constitution. Specifically, but not by way of limitation, the street repair utility enterprise is not authorized and shall not receive ten percent or more of its annual revenue in grants from all Colorado state and local governments combined. So long as the street repair utility enterprise continues to qualify as an “enterprise,” the street repair utility enterprise and all spending and revenue thereof shall not be subject to Section 20 of Article X of the Colorado Constitution. Sec. 12-11-5: Imposition of a street repair utility service charge. (a) There is hereby imposed a street repair utility service charge on each Customer within the City. All of the proceeds of the service charge are deemed to be in payment for the availability and use of the City’s streets and roads by the affected real property and the owners thereof. (b) All public highways, roadways, streets, alleys, sidewalks, bikepaths, parks, open-spaces and golf courses, and railroad rights of way used for trackage are deemed to be part of the City ’s streets and shall be exempt from all charges and fees imposed by this Chapter. Such exemption shall not apply to public parking lots, driveways, service drives, drive aisles, or internal site roadways and sidewalks. Sec. 12-11-6: Determination of street repair utility service charges. (a) The City Council is hereby authorized and directed to establish a monthly street repair utility service charge or fee. (b) The amount of the fee shall be as set by City Council by ordinance and shall be based upon the Customer's use of a lot, tract, or parcel of land adjacent to City streets and roads, the City's estimate of the relationship between such use and the generation of vehicular traffic on the City's street system, and the City's estimate of the cost of repair of the city's street system as a result of such traffic. (c) The amount of the fee may be changed from time to time based upon revised estimates of the costs of repair of the City's street system, revised categories of uses and traffic generation factors, and other factors reasonably related to the street repair needs created or contributed to by Customers who are subject to the fee. (d) The Director shall no less often than every two (2) years cause a review of project costs and street repair utility service charges to ascertain if the street repair utility service charges generate sufficient revenue to pay the total project costs. The Director shall submit such report to the City Council for its review and consideration. The first such biennial review shall be completed on or before January 1, 2021. (e) To the extent that the funds derived from the street repair fee imposed pursuant to this Chapter are not sufficient to properly maintain and repair the City's street system, the City may augment such funds with other City funds as may be determined by the City Council. Sec. 12-11-7: Street repair utility fund. (a) There is hereby created pursuant to Section 7-21 of the City Charter a special fund designated as the “Street Repair Utility Fund” which shall be separate and segregated from all other City funds. All street repair utility service charges paid and collected pursuant to this Chapter shall be credited and deposited into the Street Repair Utility Fund and shall not be transferred therefrom to any other account of the City or used for any purpose except to pay project costs and administrative costs. The City’s Finance Department shall provide administrative services to the Street Repair Utility Fund and shall collect a reasonable administrative fee for such services which shall be paid into the City’s General Fund. (b) Funds on deposit in the Street Repair Utility Fund shall be invested as permitted by law. (c) The annual budget for the Department of Public Works shall include a proposed budget for project costs for the ensuing budget year. There shall also be included in the annual budget a statement of all amounts in the Street Repair Utility Fund and estimated revenues for the ensuing budget year. Sec. 12-11-8: Street repair utility enterprise debt issuance. (a) The street repair utility enterprise is authorized to issue revenue bonds for the payment or other financing of eligible project costs, or for the purpose of refunding any revenue bonds issued for such purpose. Such bonds shall be authorized by ordinance adopted by the City Council in the same manner as other ordinances of the City. (b) The terms, conditions, and details of revenue bonds, the procedures related thereto, and the refunding thereof shall be set forth in the ordinance authorizing the revenue bonds. Each bond issued under this section shall recite in substance that said bond, including the interest thereon, is payable from the revenues and other available funds of the street repair utility enterprise pledged for the payment thereof. Notwithstanding any other provision of law to the contrary, such revenue bonds may be issued to mature at such times not beyond thirty years from their respective issue dates, shall bear interest at such rates, and shall be sold at private or public sale at, above, or below the principal amount thereof, all as shall be determined by the City Council. The powers provided in this section shall be in addition to and shall not modify, limit, or affect the powers conferred by any other law, either directly or indirectly. (c) The City may pledge all or any portion of the Street Repair Utility Fund, including revenues anticipated to be collected, to the payment of principal, interest, premiums, if any, and reserves for revenue bonds, issued for the payment or other financing of eligible project costs, or for the purpose of refunding any revenue bonds issued for such purposes. Sec. 12-1-9: Billing, collection and liens. (a) Street repair utility service charges shall be billed to the owner or occupant of the property at the same time as the close of their respective water billing cycle. The obligation to pay such bill shall not be affected by the failure of the owner or occupant to receive a statement for services. (b) Bills for street repair utility service charges shall be due and payable upon receipt and delinquent if not paid in full within twenty (20) days from date the statement is sent. (c) The City Council hereby finds and determines that it is the policy of the City that all street and roads furnished, supplied and made available by the City are and shall be deemed to be supplied, furnished and made available to the real property served without regard to the person billed for the street repair utility service charge. (d) All unpaid street repair utility service charges, plus delinquent charges, shall constitute a perpetual lien against the real property served having priority over all other liens except general tax liens. (e) The Director of Finance shall cause a notice of the lien, stating the amount of the due and unpaid street repair utility service charges plus delinquent charges, and describing the property served, to be recorded in the office of the Pueblo County Clerk and Recorder. (f) The Director of Finance is authorized and empowered to certify to the County Treasurer the amount of the due and unpaid street repair utility service charges and delinquent charges, describing the property served upon which the lien is imposed, which shall be collected and paid over to the City by the County Treasurer in the same manner authorized for the collection of delinquent general property taxes. (g) The City may treat any unpaid street repair utility service charges, and delinquent charges, as a debt due the City and may recover the amount thereof from the owner and/or occupant of the property being charged such street repair utility service charge. (h) The remedies for the collection of the delinquent street repair utility service charges are cumulative and the exercise of one shall not bar the exercise of any other. The remedies herein provided shall be in addition to any other lawful remedies for the collection thereof. Sec. 12-11-10: Administration and review. (a) The administration of the provisions of this Chapter is vested in and shall be exercised by the Director who may prescribe forms and rules and regulations in conformity with this Chapter for the proper administration and enforcement of this Chapter. The Director may delegate the administration of this Chapter, or any part thereof, to duly qualified persons in the Department of Public Works. (b) Every decision or determination of the Director shall be in writing and notice thereof shall be served upon or mailed by first class mail, postage prepaid, to the affected person at his or her address shown on the records of the Department of Public Works. Service by first class mail as provided herein shall be conclusive evidence of service of such decision or determination. The decision or determination of the Director shall be final and conclusive upon the affected person unless he or she timely files a petition for hearing. (c) Any person aggrieved by any decision or determination of the Director may petition the City Manager for a hearing on revision or modification of such decision or determination no later than thirty (30) days after notice thereof is served on the aggrieved person. (d) Such petition shall be verified in writing upon forms approved by the Director and specify in detail the aggrieved person’s reasons and grounds for revision or modification. The petition shall be accompanied by all documents or other evidence supporting the petition. (e) The City Manager shall schedule a hearing on the petition not less than sixty (60) days from the date the City Manager receives the petition. The Director may designate a representative of the City as the hearing officer. (f) The hearing shall take place at the time, date and location specified by the City Manager in the notice of hearing. Notice of the hearing shall be given to the petitioner by first class mail addressed to the petitioner at his or her address shown in the petition. The hearing shall be conducted in accordance with the rules and regulations issued by the Director. The petitioner shall have the burden of proof. Failure to timely file a petition or the failure of the petitioner or his or her representative to appear at the hearing shall constitute and be deemed to be a waiver of the right to a hearing by the aggrieved person. (g) Within thirty (30) days after the hearing, the City Manager or hearing officer shall make findings of fact based upon relevant and competent information and evidence submitted at the hearing. The City Manager shall make a decision or determination based upon such findings, and, if appropriate, modify the prior decision or determination accordingly. The decision or determination by the City Manager after hearing shall be final and conclusive upon the petitioner subject only to judicial review pursuant to Rule 106(a)(4) of the Colorado Rules of Procedure. (h) A petition may be filed only once in connection with any decision or determination of the Director. (i) The powers and duties conferred on the City Manager by this Sec. 12-11-10 shall be assumed by the Mayor beginning January 1, 2019. Sec. 12-11-11: Violations and penalties. It shall be unlawful for any person to violate, disobey, neglect, omit or refuse to comply with or resist the enforcement of any provision of this Chapter or to fail to pay any charge or fee imposed by this Chapter, and upon conviction thereof, shall be punished as provided in Section 1-2-1 of this Code. Each day such violation shall continue shall be deemed a separate offense. Sec. 12-11-12: Amendments. The City Council may by ordinance modify, alter, amend or repeal any and all provisions of this Chapter including, without limitation, the street repair utility service charge and its method of determination and computation, payment, and procedures with respect to the collection thereof. SECTION 2. If any section, provision, paragraph, clause or phrase of this Ordinance is held or decided to be unconstitutional, invalid or unenforceable for any reason, such decision shall not affect the constitutionality, validity or enforceability of the remaining portions of this Ordinance. SECTION 3. All other ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. SECTION 4. The officers and staff of the City are authorized and directed to take all action necessary, appropriate or required to implement the provisions of this Ordinance. SECTION 5. This Ordinance shall become effective thirty (30) days after final passage and approval. INTRODUCED: December 11, 2017 BY: Ed Brown PASSED AND APPROVED: December 26, 2017