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Ordinance No. 6,005Published In: THE BAYTOWN SUN 910926 -4 Tuesday, October 1, 1991 Wednesday, October 2, 1984DINANCE NO. 6005 AN ORDINANCE AMENDING THE CODE OF ORDINANCES, CITY OF BAYTOWN, TEXAS BY AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE ", SECTION 31 -54, "WATER DEPOSITS AND REFUNDS ", SUBSECTION (b)(1) "AMOUNT OF DEPOSITS ", SO AS TO CHANGE THE AMOUNT OF DEPOSIT; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV, "WATER SERVICE ", SECTION 31 -59, "PROCEDURES AND REMEDIES FOR NONPAYMENT OF WATER BILLS AND VIOLATIONS OF CITY ORDINANCES" BY ADDING SUBSECTION (h) TO REGULATE DELIVERY OF WATER TERMINATION NOTICES AND TO PROHIBIT ALTERING NOTICE REQUIREMENTS AND PROHIBITING HINDRANCE OR INTERFERENCE WITH DELIVERY AND POSTING OF WATER TERMINATION NOTICES OR REMOVAL OF WATER TERMINATION NOTICES; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV, "WATER SERVICE ", SECTION 31 -591 "PROCEDURES AND REMEDIES FOR NONPAYMENT OF WATER BILLS AND VIOLATIONS OF CITY ORDINANCES" BY ADDING SUBSECTION (i) INCLUDING NOTICE REQUIREMENTS AND PROVIDING A PROCEDURE BY WHICH A CUSTOMER WHO HAS RECEIVED WATER TERMINATION NOTICE MAY REQUEST A HEARING ON THE DECISION TO TERMINATE; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE ", SECTION 31 -60 "PENALTY FOR VIOLATION OF ARTICLE ", BY INCREASING THE PENALTY FOR VIOLATION OF ANY PROVISION OF CHAPTER 31 "UTILITIES" ARTICLE IV, "WATER SERVICE ", BY INCREASING THE FINE TO BE IMPOSED FOR SUCH VIOLATION FROM TWO HUNDRED AND N01100 ($200.00) DOLLARS TO FIVE HUNDRED AND N0 1100 ($500.00) DOLLARS; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE ", BY ADDING SECTION 31 -63, "LIENS ", ESTABLISHING LIENS ON THE PROPERTY SERVED FOR WATER, SEWER AND GARBAGE SERVICE DELINQUENCIES IN EXCESS OF THE AGGREGATE SUM OF FIFTY AND N01100 ($50.00) DOLLARS; PROVIDING FOR THE FILING OF SUCH LIEN; PROVIDING FOR NOTICE AND OPPORTUNITY FOR A HEARING WITHIN THIRTY DAYS AFTER THE FILING OF SUCH LIEN WHEREIN THE PROPERTY OWNER MAY PROVE THAT NO BILL FOR UTILITY SERVICES IS DUE AND OWING OR THAT THE SUBJECT PROPERTY HAS BEEN A HOMESTEAD AS DEFINED BY THE TEXAS CONSTITUTION AT ALL TIMES ON AND SUBSEQUENT TO THE DATE ON WHICH THE LIEN WAS FILED AND PROVIDING A PRESUMPTION THAT THE PERSON LAST LISTED IN THE TAX RECORDS OF THE COUNTY WHERE THE PROPERTY IS LOCATED AS OWNER OF THE SUBJECT PROPERTY IS IN FACT THE OWNER AND THAT THE ADDRESS LAST LISTED FOR SAID OWNER ON SAID TAX RECORDS IS IN FACT THE CORRECT ADDRESS OF SAID OWNER; PROVIDING THAT NO WATER OR SEWER SERVICE SHALL BE PROVIDED TO PROPERTY ENCUMBERED BY SUCH LIEN UNLESS THE OWNER THEREOF AGREES IN WRITING TO PAY THE ACCRUED UTILITY CHARGES AND PAY ALL CURRENT UTILITY CHARGES AS THEY COME DUE; PROVIDING THAT SUCH LIEN WILL BE RELEASED BY THE CITY WHEN ANY PERSON OR ENTITY PAYS ALL PRINCIPAL, INTEREST AND THE LIEN FILING FEE ASSOCIATED WITH PROPERTY SO ENCUMBERED; PROVIDING FOR A DECLARATION BY A PROPERTY OWNER THAT SAID PROPERTY IS RENTAL PROPERTY, WHICH DECLARATION WILL 910926 -4a ' HAVE THE EFFECT OF BLOCKING THE IMPOSITION OF A LIEN ON THAT PROPERTY FOR NON - PAYMENT OF UTILITY BILLS FOR SERVICE CONNECTED IN THE TENANT'S NAME AFTER THE FILING OF THE DECLARATION BY THE OWNER; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE", SECTION 31 -55.1, "SERVICE CHARGE FOR WATER TURN ON" BY RAISING THE SERVICE CHARGE FOR WATER TURN ON FROM $5.00 TO $10.00; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE" SECTION 31 -59(f) BY RAISING THE SERVICE CHARGE FOR WATER METER TESTS FROM $5.00 TO $15.00; AMENDING CHAPTER 31 "UTILITIES" ARTICLE IV "WATER SERVICE" SECTION 31 -59 BY ADDING SUBSECTION (j) PROVIDING A $15.00 CUT -OFF FEE'IN CASES WHERE THE WATER METER HAS BEEN TURNED OFF FOR NON - PAYMENT OF CHARGES FOR WATER OR SANITARY SEWER SERVICES, OR WHERE THE WATER METER HAS BEEN TURNED OFF FOR PAYMENT OF WATER SERVICES WITH A CHECK WHICH IS NOT HONORED BY THE DRAWEE BANK; REPEALING INCONSISTENT ORDINANCES; CONTAINING A SAVINGS CLAUSE AND SEVERABILITY CLAUSE; AND PROVIDING FOR THE PUBLICATION AND EFFECTIVE DATE THEREOF. WHEREAS, the City Council of the City of Baytown, Texas, by Ordinance No. 943 § 6; Ordinance No. 1015 S 1; Ordinance No. 2328 S 1; Ordinance No. 3628 S 3; Ordinance No. 3966 S 1; and Ordinance No. 4458 § 1; Ordinance No. 4459 § 1, enacted a comprehensive residential water termination procedure; and WHEREAS, the City Council of the City of Baytown, Texas, finds it to be in the public interest to modify certain time periods, limits, and procedures contained within and referred to in of the aforementioned ordinances to promote administrative efficiency; and WHEREAS, the City Council of the City of Baytown, Texas, has determined that water, sewer and garbage service benefit (1) the occupants of the property served; (2) the owners of the property served; and (3) the property served; and WHEREAS, the City Council of the City of Baytown, Texas, finds it to be in the public interest to impose liens on property for the delinquent sewer charges, garbage collection charges and water charges for those same purposes at that property; and WHEREAS, the City Council of the City of Baytown, Texas finds it to be in the public interest to allow an exception to the water, sewer, and garbage collection lien filing procedures for landlords who do not wish their property to be security for water, sewer, and garbage collection services provided there; and - 2 - 910926 -4b WHEREAS, the City Council of the City of Baytown, Texas, finds that adequate security for the public water, sewer, and garbage collection service funds in the cases in which liens are not filed due to the filing of a declaration of rental property will be provided by the requirement of an enhanced deposit for rental property; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That Chapter 31 "Utilities" Article IV, "Water Services, Section 31 -54, "'Water Deposits and Refunds", Subsection (b) (1) sAmount of Deposits" of the Code of Ordinances, City of Baytown, Texas, shall be amended to hereafter read as follows: (b) Amount of deposits. (1) Residential consumers occupying single family dwelling houses shall be required to place on deposit the amount of f ifty dollars ($50.00) if they are the owners of said dwelling houses; however residential consumers occupying single family dwelling houses shall be required to place on deposit the amount of one hundred twenty -five dollars ($125.00) if they are not the owners of said dwelling houses. Section 2: That Chapter 31 "Utilities" Article IV, "Water Service ", Section 31 -59, "Procedures and Remedies for Nonpayment of Water Bills and Violations of City Ordinances", of the Code of Ordinances, City of Baytown, Texas, shall be amended by adding Subsections (h), (i), and (j) to read as follows: Sec. 31 -59. Procedures and remedies for nonpayment of water bills and violations of city ordinances. (h) It shall be unlawful for any person to hinder or interfere with any Water Department employee or agent who is delivering water termination notices pursuant to Section 31- 59(1)(1) of this title and chapter. It shall further be unlawful for any person, other than an occupant of the premises to which notice is delivered, to remove a water termination notice delivered by the Water Department from any premises to which the Water Department delivered that notice. Sec. 31 -59. Procedures and remedies for nonpayment of water bills and violations of city ordinances. (i) NON- EMERGENCY TERMINATION: Whenever the City of Baytown is authorized to terminate a customer's water services against that customer0s consent - 3 - 910926 -4c and under the provisions of this section or whenever the City of Baytown otherwise terminates water services to a customer in a non - emergency situation other than by the customer's request, the City shall first provide notice in the form and manner described below to the customer and afford the customer an opportunity for a hearing in the form and manner described below before the termination of the services. If after the City has complied with the notice requirements as described below, the customer does not request a hearing for review of the termination within the specified time, the City may terminate water services to the customer on the day and at the time specified in the notice to the customer or within five calendar days thereafter. Any time elapsing after the declared termination date, the elapsing of which is due to the pendency of a hearing or the extension of time granted pursuant to a hearing, shall not be considered when calculating the five days in which the City may terminate water after a declared termination date. 1. NOTICE: Notice must be sent to a water customer at least eight days prior to the proposed termination date of the services to that customer if notice is sent by mail, or at least five days prior to termination if notice is delivered by the Water Department. The notice may be incorporated into the customer's monthly bill, sent by certified letter, or hand delivered to the customer by a Water Department employee or other person designated by the City of Baytown to deliver such notices. The notice must be written and clearly communicate the following information: (a) the name of the customer whose service is proposed to be terminated; (b) the address where service is proposed to be terminated; (c) the reason for the proposed termination, including the amount of delinquency if nonpayment of charges is the reason for termination; (d) the day and time on which the water service will be terminated unless conditions bringing about the termination are sooner remedied; =M 910926 -4d (e) the customer has the right to appear and be heard at a hearing to contest the proposed termination prior to the date of termination; (f) the means by which the customer may arrange for such a hearing; (g) the date by which the customer must request and set the hearing in order to receive it, which deadline may be no earlier than one day prior to the termination date, nor may that deadline ever be sooner than five days from the date sending of notice, the five days not including weekdays on which City offices are closed for holidays. 2. After the deadline for requesting a hearing, as described in part (1)(1)(g) of this section, has passed, a customer may still request a hearing to review the decision to terminate the customer's water service within 10 days of the aforementioned deadline upon presentation to the City Manager of an affidavit declaring that the customer, through no fault of that customer, did not receive notice of termination in time to act upon the same. When a hearing pursuant to this subsection is requested, the City Manager shall as soon as practicable make a determination of whether the appeal appears to be meritorious, and if the City Manager finds it is meritorious the City Manager shall order the continuation or restoration of services pending the appeal. If the hearing officer finds in favor of the customer, the hearing officer may order restoration of service. 3. If the customer to whom water service is proposed to be terminated is a landlord who supplies water services to tenant water users, the City shall attempt to give notice to the tenant water users pursuant to subsection (i) (1) of this section. 4. HEARING: Should any customer request a hearing to review the decision to terminate that customer's water services, the hearing shall be presided over by the City Manager or any fair and neutral person he may appoint, which person must be of managerial employment and not involved in the original decision to terminate services, hereafter in this context known as the hearing officer. The hearing shall be held no sooner than the next business day nor later than fifteen - 5 - 910926 -4e business days after being requested by the customer. The hearing officer may, in his discretion delay or advance the hearing time upon showing of good cause by the customer. At the hearing, the customer shall be given the opportunity to be heard in person to present the customers case, to present testimony from other persons, and to admit documents. The customer may be represented by counsel, though the City shall in no case provide counsel to the customer. The customer shall be given the opportunity to confront and cross examine any witnesses appearing against him at the hearing. The customer may request that a representative of the Water Department be present at the hearing and be subject to questioning. However, the rules of evidence or procedure for civil or criminal trials need not be enforced. The City's reasons for terminating the customer's water service shall be stated at the hearing. Upon reaching a final decision, the hearing officer shall state his reasons for reaching that decision and state the evidence on which the hearing officer relied in reaching those conclusions. Should the hearing officer find in favor of the customer, the customer's water service shall continue. Should the hearing officer find against the customer, the customer's water service shall be terminated. The hearing off icer shall have the power to grant extensions, modify billings, and fashion other reliefs as would be equitable. Sec. 31 -59. Procedures and remedies for nonpayment of water bills and violations of city ordinances. (j) In cases where the water meter has been turned off for nonpayment of charges for water, sanitary sewer service, garbage collection service, or where the water meter has been turned off for payment of utilities services with a check which is not honored by the drawee bank for any reason, a cut -off fee will be charged in the amount of fifteen dollars ($15.00). Section 3: That Chapter 31 "Utilities" Article IV "Water Service ", of the Code of Ordinances, City of Baytown, Texas, shall be amended by amending Section 31 -59(f) to read as follows: Sec. 31 -59. Procedures and remedies for nonpayment of water bills and violations of city ordinances. (f) Should any person request that their water meter be tested, the city water service division shall test their meter. If the meter test shows that z� 910926 -4f the meter registers more water than actually consumed, the last bill shall be corrected according to the test result and the meter shall be replaced. If the meter test shows that the meter correctly registers or registers less water than actually consumed, then the customer shall be charged a fifteen dollar ($15.00) meter testing fee. Section 4: That Chapter 31 "Utilities" Article IV "Water Service", of the Code of Ordinances, City of Baytown, Texas, shall be amended by adding Section 31 -63 "Liens" to read as follows: Sec. 31 -63. Liens. (a) Water 1. After the City has terminated a customer's water pursuant to the requirements of Section 31 -59 (1) of this article and chapter, or after the City terminates water service at the customer's request, the City's Supervisor of the Water Department shall file a lien on the property which the terminated water service served and in the amount that the customer whose service was terminated owed to the City of Baytown for water service at the time of the termination of services. 2. If a property receives water services illegally, without having an account with the City of Baytown Water Department, then the Supervisor of the Water Department shall file a lien against that property in the amount of the proper charge for the water actually used, or, if there is no way of determining the amount of water used, in the amount of the minimum monthly water charge that would have been charged to that property had a legitimate account been opened there multiplied by the number of months during which that property illegally received such water services. (b) Garbage Collection 1. After the City has terminated a customer's water service pursuant to the requirements of Section 31 -59 (i) of this title and chapter, or after the City terminates water service or garbage service at the customer's request, or after a customer without water service becomes more than fifty dollars ($50.00) delinquent for garbage service alone, the City's Supervisor of the Water Department shall file a lien on the property - 7 - 910926 -4g which the terminated garbage collection service serviced and in the amount that the customer whose service was terminated owed to the City of Baytown for garbage collection service at the time of the termination of services. 2. If a property receives garbage collection services illegally, without having an account with the City of Baytown Water Department, then the Supervisor of the Water Department shall file a lien against that property in the amount of the minimum monthly garbage collection charge that would have been charged to that property had a legitimate account been opened there multiplied by the number of months during which that property illegally received such garbage collection services. (c) Sewer service 1. After the City has terminated a customer's water service pursuant to the requirements of Section 31 -59 (1) of this title and chapter, or after the City terminates water service or sewer service at the customers request, or after a customer without water service becomes more than fifty dollars ($50.00) delinquent in payment for sewer charges alone to the City, the City's Supervisor of the Water Department shall file a lien on the property which the terminated water service served and in the amount that the customer whose service was terminated owed to the City of Baytown for sewer at the time of the termination of services or the accumulation of the aforementioned delinquency in payment for sewer services. 2. If a property receives sewer services illegally, without having an account with the City of Baytown Water Department, then the Supervisor of the Water Department shall file a lien against that property in the amount of the minimum monthly sewer charge that would have been charged to that property had a legitimate account been opened there multiplied by the number of months during which that property illegally received such sewer services. (d) If a customer owes less than fifty dollars ($50.00) for the aggregate sum of water charges, garbage collection charges, and sewer charges, at the time of termination of any of those services, no lien shall be filed against the property served by those services. If the customer is not - 8 - 910926 -4h delinquent in payment at the time of termination of any of the services, no lien shall be filed until that customer becomes delinquent in payment. No lien shall be filed on any property that the City knows to be a homestead as defined by the Texas Constitution. (e) Any lien authorized by this section shall be filed with the County Clerk of Harris county, Texas, or with the County Clerk of the County in which the property to which the lien will be attached is located. The City shall then have a privileged lien on as many lots or pieces of property as the terminated services previously served and are described on the lien instrument by metes and bounds, or by City lot and block description, or by any other adequate description. The lien shall secure the charges made by the City for these above discussed services rendered to that property. Such a lien shall be filed pursuant to the authority granted in TEX.REV.CIV.STAT.ANN. art. 1175 S 11 (Vernon 1963), TEX. L.GOV'T.CODE §§ 51.072 and 402.017, and TEX.CONST. art. XI, § 5. The lien shall bear interest at a rate of ten percent 10t per annum. The Supervisor of the Water Department shall add to any lien filed pursuant to this section the amount of the filing fee charged by the County Clerk for filing that lien. The lien shall be effective against that property if the account holder or user of services at that property was either the owner of that property, a tenant of that property or a permissive holder of that property, or an adverse possessor of that property. It is further provided that for any charges for which the lien authorized by this section is designed to secure, suit may be instituted and recovery in the foreclosure of that lien may be had in the name of the City. The City Attorney is authorized to file such suits in a state court of competent jurisdiction. (f) Notice and hearing. After the filing of a lien pursuant to this section, the City Clerk shall within thirty days of the filing of that lien give the owner of that property and the account holder notice that such a lien or liens have been filed on that property and inform the owner and account holder of their rights of appeal. Within thirty days of the postmark of the notice sent to the property owner or account holder, the property owner or account holder may appeal the decision to impose the lien on that property to the City Manager or any fair and impartial person - 9 - 910926 -4i whom the City Manager may designate. The City Manager or his designee shall authorize the release of the lien if the property owner or account holder shows that no bill for the above mentioned services to his property encumbered by the lien or liens is owing, or if the property owner shows that the encumbered property is and at all times from the hour of filing of the lien or liens until the time of the appeal has been a homestead as defined by the Texas Constitution. The City Manager or his designee may modify or release the lien to reflect the true amount of delinquency in payment for services to the property if the owner or account holder demonstrates that a lesser bill is owing than the lien alleged or if the Supervisor of the Water Department cannot show that all the lien alleged is owing. The person last listed on the tax records of the County in which the property is located as being the owner of any given piece of property shall be presumed to be the owner for purposes of this subsection, and the address listed for the owner on said tax records shall be presumed to be the address of the owner. (g) No water, garbage, or sewer services shall be provided to property encumbered by a lien filed pursuant to this title. Provided, however, that the Supervisor of the Water Department shall be authorized to reconnect water, garbage, and wastewater services if the customer agrees in writing to pay the accrued water and wastewater charges for such property in accordance with a payment schedule acceptable to the Supervisor of the Water Department, and that the customer also agrees to pay all current and future water and wastewater charges as they come due. (h) Whenever a person or entity pays all principal, interest, and the filing fee of a lien validly filed pursuant to this section, the Supervisor of the Water Department shall execute a release of that lien and surrender it to the paying party. The release shall be prepared and approved as to form by the City Attorney and shall be duly notarized. The City shall not be responsible for filing that release. (i) Declaration of Rental Property. 1. The owner of any property, which property is rented to another and such tenant carries City water, sewer, or garbage collection services in the tenant's name, may prevent the City from using that property as - 10 - 910926 -4j security for the water, sewer, and garbage collection service charges for service to that property and from filing any lien on such property under the provisions of this Chapter by filing with the City Utilities Department a declaration in writing specifically naming the service address of that property and declaring such to be rental property which the owner does not wish to be security for the water, sewer, and garbage collection service charges for service to that property. 2. When such a declaration has been f iled with the City prior to the time the account holder begins to receive services, the City shall collect a deposit in the amount of one hundred twenty -five dollars ($125.00) pursuant to S 31- 54(b)(1) of this Article and Chapter. If a property owner wishes to declare in regard to the bill of a person or entity already receiving services at a particular property, that declaration shall not be effective until the posting of a deposit in the amount of one hundred twenty - five dollars ($125.00) required by $ 31- 54(b)(1) of this Article and Chapter. 3. Paragraph 2 of this subsection notwithstanding, an owner of property who files the above described declaration on property which is rented to another and the tenant is carrying the City water, sewer, or garbage collection services in the tenant's name at the time of the passage of this Section, then such declaration shall become immediately effective without the posting of a deposit in the amount of one hundred twenty -five dollars ($125.00) a described in § 31- 54(b)(1) of this Article and Chapter. However, if water service is terminated to that tenant for delinquency in payment, a deposit in the amount one hundred twenty - five dollars ($125.00) pursuant to § 31- 54(b) (1) of this Article and Chapter shall be collected before such City water, sewer, or garbage collection service is resumed. Any service account for water, sewer, or garbage collection service established after the passage of this Section shall be subject to paragraphs 1 and 2 above of this subsection. =OW 910926 -4k 4. The declaration of rental property shall be valid only so long as the person making such declaration owns such property, rents such property to another, and the tenant of such property carries City water, sewer, or garbage collection services in the tenant's name. The owner may revoke the declaration of rental property at any time by so notifying the City in writing. (j) This section is cumulative of any other remedies, methods of collection or security available to the City under the charter and ordinances of the City or under state law. Section 4: That Chapter 31 sUtilitiess Article IV sWater Services, of the Code of Ordinances, City of Baytown, Texas, shall be amended by amending Section 31 -55.1 to read as follows: Sec. 31 -55.1. Service Charge Water Turn On. If the City turns on a customers water service at the request of the customer, said customer will be charged a service charge of ten dollars ($10.00). Section 5: All ordinances or parts of ordinances inconsistent with the terms of this ordinance are hereby repealed; provided, however that such repeal shall only be to the extent of such inconsistency and in all other respects this ordinance shall be cumulative of all other ordinances regulating and governing the subject matter covered by this ordinance. Section 6: If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be unconstitutional or invalid, that holding shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Baytown, Texas, hereby declares that it would have passed this ordinance in each section, subsection, sentence, clause, or phrase hereof irrespective of the fact that any one or more of the same be declared unconstitutional or invalid. Section 7: This ordinance shall take effect from and after ten (10) days from its passage by the City Council. The City Clerk is hereby directed to give notice hereof by causing the caption of this ordinance to be published in the official newspaper of the City of Baytown at least twice within ten (10) days after passage of this ordinance. - 12 - 910926 -41 INTRODUCED, READ and PASSED by the aff irmative vote of the City Council of the City of Baytown, this the 26th day of September, 1991. gif-00. HUTTO, Mayor A': TEST : J EILEEN P. HALL, City Clerk - 6NACIO RAMIREZ, S 1City Attorney C:1:73:1 - 13 -