Chambers-CS 930402To: Mayor and City Council
From: Kenneth M. Griffin. P.E., City Engineer ~
Re: Approval of an escrow agreement for Lot 1, Block 1 the Chambers Addition
Date: April_," 1993
Recently, a plat was approved by the Planning and Zoning and City Council for Lot 1, Block
1 Chambers Addition. The plat has been processed through the channels for appropriate
signatures and has been in the City Engineer's office for approximately two months awaiting his
signature as floodplain adlninistrator. The reason my signature has not been affixed to the plat
is that the requirement for escrow for Bethel Road has not been paid. Bethel Road is shown as
a C2U on our Thoroughfare Plan and the escrow per linear foot is S110. This property has 84
foot of frontage, therefore the street escrow is $9,240.
A letter requesting the escrow be paid was sent to the property owners on January 8, 1993. I
did not hear any response from the letter until March 19, 1993, when Mrs. Chambers called
requesting a meeting. I inet with Mr. and Mrs. Chambers on March 23, 1993 concerning the
escrow. The conversation revolved around the fact that they did not wish to provide the $9,240
for street escrow at this time for a street that most likely will not be constructed in the very near
future. This section of Bethel Road is in the historical district of Coppell and there are no
immediate plans t0 reconstruct or widen it. Mr. and Mrs. Chambers both indicated that they
would be more than willing to pay the escrow if they sold the property at some point in the
future or if the City built the street and assessed the cost of the street back to the adjacent
property.
During the course of the conversation, I recalled a type of agreement that I was familiar with
that the City of Arlington uses in these situations. The agreement basically states that the
property owners are aware that they have an obligation to pay the cost or construct the street
when the City demands the payment or construction. Typically, that demand is tied to a street
project to improve the street as a whole. I thought of this potential direction in light of a recent
opinion I received from the City Attorney's office concerning our roadway escrow fees.
Specifically, a letter dated March 26, 1993, (copy attached) states that we should not withhold
the plat from filing because substandard roadway lees are not paid. The opinion goes on to state
"...we again reiterate that the City may not lawfully require the payment of substandard roadway
fees or withhold filing the plat until the fees are paid." Mr. Pete Smith has stated several times
that it was his opinion that our roadway escrow fee was in fact an impact fee and did not
comply with the requirements of Chapter 395 of the Local Government Code. Mr. Smith has
stated that the City may wish to begin looking at an impact fee for roadways, in addition to the
current impact fees for water and wastev,'ater.
I have been somewhat concerned about what to do during the interim period for collection of
escrow on unimproved streets. If the opinion is that we can not lawfully require the escrow,
unless the property owners volunteer to pay it, then I am looking for some alternate means to
insure that the property owners are notified that there will be some payment due on their part
when the street is improved.
If Council approves the agreement for this particular piece of property an executed copy of the
escrow agreement will be brought forth at the April 27th, City Council meeting for approval.
It is not my intention to make this a trend for the collection of escrow for adjacent streets. This
particular piece of property has some peculiarities associated with it such as: it is adjacent to a
street in the historical district that is currently two lanes and in the future will be two lanes, it
is not scheduled to be rebuilt at any time in the future and the property is not going to be sold
ie., it is still going to be under the same ownership.
A copy of the proposed agreement is attached. Staff will be available to answer any questions
at the Council meeting.
March 26, 1993
Mr. Kenneth M. Griffin, P.C. FACSIMILE TO 393-0948
City Engineer
City of Coppell
P.O. Box 478
Coppell, Texas 75019
Re: Substandard Roadway Fees
Dear Mr. Griffin:
This will acknowledge receipt of your letter dated March 18, 1993 again requesting
our opinion regarding substandard roadway fees.
As we previously opined, the Coppell substandard roadway fee is an impact fee
that does not comply with the requirements of Chapter 395 of the Local Government
Code. Under Chapter 395 of the Local Government Code, the substandard roadway fee
ordinance should have been replaced on or before June 20, 1990. Since it has not been
replaced by an impact fee adopted pursuant to Chapter 395 of the Local Government
Code, the City could be liable to any party who pays an impact fee that exceeds the
maximum under Subchapter B of Chapter 395 by more than ten percent (10%), for an
amount equal to two (2) times the difference between the maximum impact fee allowed
and the actual impact fee imposed, plus reasonable attorneys' fees and court costs.
We do not recommend withholding the plat for filing until the substandard roadway
fees are paid. The City should proceed with the process to replace the substandard
roadway fees with an impact fee ordinance for roadway facilities adopted pursuant to
Chapter 395 of the Local Government Code.
You ask if it is our intention that the City cease in the collection of any escrow fees
for adjacent roadways to private property. It is not our position to state the intention of
the City with regard to the collection of substandard roadway fees. Whether or not the
City desires to collect substandard roadway fees will depend on whether or not the City
is willing to assume the risk of having to make a refund in double the amount of any
excess collections, plus reasonable attorneys' fees and court costs. That decision should
be made by the City Manager in consultation with the City Council and not by the City
attorney. If the City elects not to collect the substandard roadway fees and does not
Mr. Kenneth M. Griffin
March 26, 1993
Page 2
proceed with the process to adopt an impact fee ordinance pursuant to Chapter 395 the
only other alternative is street assessments pursuant to Article 1105b of V.A.T.S.
Next you ask if the City elects to proceed with collection of the substandard
roadway fees on the assumption that the fees collected would not be greater than ten
percent (10%) of the maximum impact fee allowed under the statute could the City then
lawfully withhold signing the plat for filing with the county until the fee was collected or
could the City take the risk of enforcing collection even without an impact fee ordinance.
This question has been answered previously and we again reiterate that the City may not
lawfully require the payment of substandard roadway fees or withhold filing the plat until
the fees are paid. The City of course may elect to take the risk of collecting substandard
roadway fees without an impact fee ordinance adopted pursuant to Chapter 395.
Whether the City elects to take the risk of collecting substandard roadway fees in violation
of Chapter 395 of the Local Government Code is not a determination to be made by the
City attorney.
Thank you for your attention to this matter.
Very truly yours,
NICHOLS, JACKSON, KIRK & DILLARD
By: ....... - - · /
Poter G. Smith
PGS\mts
cc: Mr. Frank Trando
Acting City Manager
City of Coppell
P.O. Box 478
Coppell, Texas 75019
AGGO3D(:,8
Marc!', ;. !c)93
Mr. Peter Smith
Nicholas, Jackson. Kirk &Diilard
1800 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201
RE: Chambers Addition
Dear Mr. Smi:i',:
On January 8, 1993. I sent a letter :o Chamber and Schaffer, Inc. concerning the need to pay
escrow for Bethel Road adjacent to the Chambers Addition. A copy of that letter is attached.
After the letter was mailed. I received a note from Mr. Ratliff, stating that I should check with
you to determine if x,.e sl'.:ould send the original letter. I waited in following up with that
direction to ascertain if ti:er paid their escrow. I am currently withholding signatures on their
plat. as the Floodplain :\dminis:rator, until the escrow issue has been resolved. I know that
recently you have stated t'.'.a.', you i:ave concerns about our escrow policy and that we might need
to be headed in ii':e direct!or,, of a ~:reet and:'or traffic impact tee.
By virtue of this letter. I a:n reqt;es~ing direction on how I should proceed with this. Should I
follov,'-up ',vith Chamber and Scl:aft'er, Inc. requesting the payment of the escrow, should I sign
the plat and let it be filed at the county v,'ithout the payment of the escrow, or should I persue
any other option that you perceive as being correct'.)
If you should have any additio:~al questions concerning this issue please feel free to contact me
at your convenience.
Sincerely,
Ken. ~eth M. Griffin, P.E.
City Engineer
CC: Alan D. Ratliff, City Manager
CITY-MANAGER
-I'n:.~ icl:er is v,r:t:en :,~ a :',qlo'~.-up to my J&quarv 6. 1993 telephone conversation with Mr. Pete
He:messcv in ',~h~ch 'ac discussed :he tees for the Chambers Addition. It was noted that at the
Se?-'.ember 24. i992, Development Review Committee meeting, the amount of the fee for the
.,.:feet escro'~' '~.as ?asscd on to the representatives for the Chambers Addition. The final plat
nas since come through for my signature and my investigation shows that the water and sewer
impact fee v, as paid bu.'. the street escrow for Bethel Road has not been paid. Bethel Road is
shov. n on ov:r thoroughfare plan a~ a C2L.'. The street escrow for a C2U street is $110 per
:.!:':ear fcK~t of :'ton:age. This property has 84 feet of frontage on Bethel Road, therefore, the
st."eot c~crov, i_,
,'.'nu; the street cscro,~ :'ce has been paid, tile final plat for this project can not be signed bv the
Er.,~necrin:: Departmc:'..-'.. If you shouid have any questions concerning this issue, please feel
tree to con:act me at your convenience. / ,-/, //,
City
Engineer
Howard Pafford, Water Superintendent ,~.(...~.~-->~'-'--'~------
Alan Johnson, Asst. Finance Director
Gary Sieb. Director Planning & Comm. Service ..'
NICHOL JACKSON KIRK & DILLARD, L.L.P.
--='-' ........ Dallas. Texas 75201
April 5, 1993
Mr. Kenneth M. Griffin FACSIMILE TO 393-0948
City Engineer
City of Coppell
P.O. Box 478
Coppell, Texas 75019
Re: Proposed Perimeter Facility Agreement
Dear Ken:
Pursuant to your request, the undersigned reviewed the proposed Perimeter
Facility Agreement and provide the following opinion.
It is our opinion that the proposed Perimeter Facility Agreement is unenforceable
since it seeks to indirectly collect the substandard roadway fees prohibited by Chapter
395 of the Local Government Code. First, the preamble of the proposed Agreement
improperly attempts to make the construction of the proposed improvement a prerequisite
to the approval of the plat. As we previously advised, the City should not withhold the
plat for filing until the substandard roadway fees are paid. There is simply no
consideration for the Agreement since the City may not require the owner to construct
the improvements or pay the substandard roadway fees, and thus the recital that the
developer is relieved of the responsibility of the immediate construction is of no legal
effect. More importantly, agreeing to construct the road or to pay the City a sum of
money equal to the proposed construction cost is the same as the assessment of an
impact fee, which the City may not lawfully require, since the substandard roadway fee
ordinance is not in accordance with Chapter 395 of the Local Government Code.
Delaying the requirement until the roadway is improved does not in any way lessen the
illegality of the collection of the substandard roadway fee.
Mr. Kenneth M. Griffin
April 5, 1993
Page 2
In summary we do not recommend the City use the proposed Perimeter Facility
Agreement since it is not supported by consideration and seeks to indirectly impose an
unlawful impact fee. If you have any questions in this regard please do not hesitate to
contact me.
Very truly yours,
NICHOLS, JACKSON, KIRK & DILLARD
.... Peter G. S~ith
PGS\mts
AGGO3E18
STATE OF TEXAS }
PERIMETER fACILITY AGREEMENT
COUNTY OF DALLAS }
THIS AGREEMENT is made and entered into this __ day of ,19 ,
by and between the city of Coppell, a municipal corporation hereinafter referred to as "CITY"
and the undersigned, who are all the owners of the hereinafter named subdivision, hereinafter
referred to as "OWNER".
WITNESSETH:
WHEREAS, heretofore, OWNER has submitted a plat map of
, an addition to the City of Coppell, Texas; and
WHEREAS, the construction of or
the execution of a contract by OWNER with CITY concerning the future construction of same
is a prerequisite to the approval of said plat;
NOW THEREFORE, CITY and OWNER do hereby agree that OWNER is hereby
relieved of the responsibility of the immediate construction of same as a prerequisite to the
approval and filing of such final plat map. However, OWNER shall construct same or pay to
the City of Coppell the sum equal to the agreed value necessary for construction at the time the
road is to be improve. CITY hereby reserves the right to demand either the construction of said
project, or the payment of such funds as ¢~tlined above, at its sole discretion.
It is further agreed and understood by the parties that this agreement shall constitute a
negative covenant running with the land and shall be enforceable by the City of Coppell against
OWNER, his subsequent heirs, assigns, and transferees.
IN TESTIMONY WHEREOF, the parties to the Agreement, have hereunto set their hands the
day and year above written.
OWNER:
Signature
Printed Signature & Title
Address
City/State/Zip
Phone
ACCEPTED:
MARK WOLFE
MAYOR
City of Coppell
ATTEST:
Dorothy Timmons, City Secretary
APPROVED AS TO FORM:
PETE SMITH, City Attorney
THE STATE OF TEXAS }
City of Coppell Acknowledgement
COUNTY OF DALLAS }
BEFORE ME, the undersigned authority, on this day personally appeared MARK
WOLFE, Mayor for the CITY OF COPPELL, TEXAS know to me to be the person and officer
whose name is subscribed to the foregoing instrument and acknowledged to me that same was
the act of the CITY OF COPPELL, a Texas home rule city, and that he executed same for the
purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
, 19
Notary Public in and for
The State of Texas
(SEAL)
Notary's Printed Name
My Commission Expires:
THE STATE OF TEXAS }
Corporate Acknowledgement
COUNTY OF DALLAS }
BEFORE ME, the undersigned authority, on this day personally appeared
, (name and title) known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged to me that same
was the act of said , a corporation, and that he
executed same for the purposes and consideration therein expressed and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of
19
Notary Public in and for
The State of Texas
(SEAL)
Notary's Printed Name
My Commission Expires:
THE STATE OF TEXAS
Individual Acknowledgement
COUNTY OF DALLAS }
BEFORE ME, the undersigned authority, on this day personally appeared
, known to me to be the person (s) whose name(s) is/are
subscribed to the foregoing instrument and acknowledged to me that he/she executed same for
the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of ,
19
Notary Public in and for
The State of Texas
(SEAL)
Notary's Printed Name
My Commission Expires: