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Sand Point-CS 921006~' ,~~ ~~ .~~ f. i r ~i,h-:~ ~~ PRIVILEGED AND CONFIDENTIAL. A ATTORNEY WORK PRODUCT REPORT October 6, 1992 FROM: LAWRENCE W. JACKSON, CITY ATTORNEY TO: CITY COUNCIL OF THE CIlY OF COPPELL AND CITY MANAGER !.s ~-~ 5 r~ ,;~' R~~~ P`, .. PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE ~ ATTORNEY WORK PRODUCT REPORT FROM: LAWRENCE W. JACKSON, CITY ATTORNEY TO: CITY COUNCIL OF THE CITY OF COPPELL AND CITY MANAGER SUBJECT: Street Pro Rata Provisions of the Subdivision Ordinance As requested I have reviewed the Street Escrow Provisions of the Subdivision ~ Ordinance No. 341, to wit: Appendix A, Part 1, A,17b (Copy attached as Exhibit "A" and hereinafter referred to as "Appendix A Section 17b". At the time the Subdivision Ordinance was adopted it was a fairly common practice '~ for home rule cities to require a developer to upgrade sub-standard roadways adjacent to the developer's subdivision as a condition for approval of the developer's final subdivision plat. There was no statutory authority for this type of requirement. Home ~ rule cities exercised such authority pursuant to their home rule powers on the premises that the new proposed subdivision would not be feasible without the improved roadway and that without the improved roadway the ~Y would be justified in refusing to approve the final subdivision plat. In other words, the city would say "improve the roadway or your final plat will not be approved" basing its authority on the city's ability to withstand an attack for failure to approve the plat. The leverage the ~Y used in making this demand was based on the city's ability to support denial of the plat because of lack of suffiaent roadways adjacent to the subdivision. In "good times" when development was in full swing and developers could easily pass along these costs, this leverage was never tested even in cases where the city would have had a difficult time justifying denial of a subdivision plat on the ground of inadequate adjacent roadway. Growing out of this requirement that the adjacent road be immediately constructed, was a provision similar to Coppell's Append'a A Section 17b that permitted the developer to escrow pro rata funds where there was some reason to decay immediate construction of the roadway. However, again the leverage of the city came from being able to justify denial of the subdivision plat because of an inadequate adjacent roadway. It was not considered a charge for off-site street construction as in the case of an impact fee. This was acxromplished by escrow agreements such as those that have been executed by developers in the City of Coppell. K its my opinion that where sufficient adjacent roadway exists so that the city would not be justified in withholding plat approval t ~. '~ unless the roadway Is constructed or improved, the city may not torte the option ~ of pro rata escrow. To do so would make the escrow a charge for off-site street construction rather than a condition of plat approval. -~ Adoption of the state "impact fee" law also has limited the dties' options in regard to charging property owners for off-site street construction costs. R is my opinion that the only way the city can now charge a property owner for off-efts street ~ construction costs is through a regular street assessment program brought pursuant to the state statute or through a properly adopted Impact fee ordinance. In other words, the impact fee statute preempted the sties' right to charge adjacent , property owners for off-site roadway fadlities except through a properly adopted impact fee ordinance or through an assessment specifically authorized by state law. -~ .~ 7 a ^ Having said this it is my opinion that where the city has a roadway on which it intends to levy a standard street assessment the dty may have an ordinance that permits a developer to make an escrow deposit which, according to the contractual agreement, could accomplish one or more agreed upon objectives. For instance, the agreement could provide for a deposit which would have the effect of paying up any future street assessment with no additional refunds or charges to the developer when the street is constructed or improved. This would allow the developer to represent to any purchaser that all street assessments have been prepaid. It would also be an advantage to a developer who would want to spread any future street assessment liability over his entire tract so that the sale of lots or building pads adjacent to the street would not be subject to future street assessment. The escrow agreement could be similar to the one the city has been using that provides for a deposit based upon an estimate of the future street assessment charge with the right of devebper to receive a refund or be billed depending upon the actual cost of the roadway. It is, however, my opinion that such agreements would have to be voluntarily made on the part of the developer with the amount of escrow deposit having some reasonable relationship to the future cost that would be imposed on the property as the result of the regular street assessment program, inducting consideration of enhancement to the property resu~ing from the street construction. It is my opinion that the only argument that the dty can raise to justify a demand that a developer put up a pro rata escrow under the provisions of Appendix A Section 17b is where we have a situation wherein the dty would be justified in denying approval of the subdivision plat based upon lads of roadway or improved roadway. ~ is my opinion that when a proposed subdivision is adjacent to a main road such as Sandy Lake Road, the dty would not be able to justify denial of the subdivision plat because of the lack of improved roadway. w I have also been asked to review the last sentence of Appendix A Section 17b that states as follows: ~ 'The amount of escrow shall be as determined by a 'pro rata' charge as prescribed by the pro rata ordinance of the city and shall be payable prior to approval of plans by the City Engineer." J A question has been raised as to whether or not the city has such a "pro rata ordinance" from which the pro rata charge can be determined. I have reviewed this ordinance, looked at the original ordinances on file in the office of the City Secretary, discussed the matter with Wayne Gin who prepared the basic subdivision ordinances. '~ Ginn Inc. prepared Ordinance No. 312 in 1984 and in 1985 brought this ordinance .~ forward with amendments as Ordinance No. 341. I did not review or approve Ordinance 312, but was instructed to prepare only the cover or adoptive ordinance provisions. I was to have the adoptive provisions ready at the council meeting. See Exhibit "B". When ask ~ to approve the full ordinance I made it known to the City Administrator that I was concerned that I had not had a chance to review the entire ordinance. He wished to ~ proceed with submission of the ordinance so I ask that the minutes reflect that I had ~ added only the prefix and signature blocks. (See Exhibit "C") I then approved the ordinance with the following notation: ~? "APPROVED AS TO FORM NC:" ~ The NC was added to remind me that I approved the ordinance as to form Not Content. (See last page of Exhibit "B") Thereafter, I furnished Ginn Inc. with changes that I felt needed to be made to language of Ordinance 312 so that when it came forward again for amendment it could be corrected to meet some of my original concerns. However, I failed to suggest any changes to Appendix A, as it was to be substantially revised. ~ ORDINANCE NO. 341: Because of a rush to adopt a new ordinance, I was again directed to bring the cover ordinance to the council meeting and did not see the new Appendix A that was brought forward with Ordinance 341 until the night of the counal meeting at which it was - adopted. When I got to the counal meeting I realized that I had prepared the ordinance on legal size paper and Ginn Inc. had the text material bound in a letter size volume. The council adopted the text material with my legal size cover ordinance. On October 15, 1985, I sent Dorothy a copy of the ordinance reduced to letter size. (See Exhibit "D") APPENDIX B AND C: (Both a part of Ordinance 312 and Ordinance 341) It is my opinion that Ginn Inc., originally intended to have what later became Appendix B and C, adopted as separate ordinances, and therefore the reference in Appendix A Section 17b to "the pro rata ordinance." However, for some reason the plan ~' was changed and the items were added to the subdivision ordinance as Appendix B and Appendix C. This theory is further supported by the fact that the first page of Appendix B starts of with language that would have been used if the subject matter was going to be a new ordinance. Also, the table of content of both Ordinance 312 and Ordinanoe 341 list both Appendix B and C as a part of the ordinance. It is therefore, my opinion that what is referred to in Appendix A, Section 17b as the "pro rata ordinance" is in fact Appendix C that was adopted by +.he same ordinance. Appendix B dealing with water and sewer pro rata charges and Appendix C dealing with the method of determining assessment for thoroughfare improvements. I should, however, point out that Wayne Ginn remembers a separate "pro rata o"rdinance" being adopted, but I have found no record of such an ordinance. J THE BRAMBURG DISPUTE: J `i J Attached as Exhibit "F" is a copy of a letter from Mr. Bramburg's attorneys. k is my opinion that the City's position in making Mr. Bramburg put up the pro rata deposit for Sandy Lake Road can not be supported by our ordinances or under State Law. In other words, if sued on this the City will lose. Mr. Bramburg's subdivision is unique in that it does not have any access to Sandy Lake Road. It is my opinion that the City should use this as a reason for reaching some time of agreement with him short of a iaw suit. Respectively submitted, J NICHOLS, JACKSON, KIRK 8~ DILLARD By: ,t,~rt~c~% La ence W. Jacks 17. Ia! Escrows for Adjacent Streets. ;. t~ When a proposed subdivision of land abuts on both 1 sides of an existing substandard road according to 1 the then existing current City of Coppell standards, the Developer shall be required to improve the existing rond to bring the same to the City of Coppell standards. Any reimbursement, if due, to the Developer by the City will be made when funds become available. 17. lbl ' if the proposed subdivision is located along only one side of a substandard road, and when in the City Council's judgment, it is not feasible to reconstruct 1 said substandard road at the time of development of i said subdivision, the~City Council may permit the I ? Developer to pay into escrow an amount equal to the Developer's share of the cost of said improvements as a condition for the approval of the final plat of the subdivision. The amount of escrow shall be as determined by a "pro rata" charge as prescribed by the Pro Rata ardinanc.e of the City and shall be payable prior to approval of plans by the City Engineer. J 17 . ( c I When funds have been provided and placed in escrow i ~ with the City of Coppell for the development of a Appendix A ~+ ~~ EXHIBIT "A" :, t~ SUBDIVISION ORDIIdANCE OF THE CITY OF COPPELL, TE%AS ORDINANCE NO. '~~ AN ORDINANCE OF THE CITY OF COPPELL, TEXAS, PRESCRIBING RULES AND REGULATIONS GOVERNING PLATS AND SUBDIVLSIONS OF LAND WITHIN THE CORPORATE LIMITS AND EXTRATERRITORIAL JURLSDICTION OF THE CITY OF r COPPELL, TE!{AS, CONTAINING CERTAIN DEFINITIONS; PROVIDING FOR ~ A PRELIMINARY PLAT; PROVIDING FOR A FINAL PLAT AND PROVIDING FOR FINAL APPROVAL OF SUBDIVLSIONS AND SUBDIVISION PLATS; PRESCRIBING REGULATIONS FOR FILING PLATS, SUBDIVLSION CONSTRUCTION, ACCEPTANCE OF SUBDIVLSIONS AND ISSUANCE OF BUILDING PERMITS; ~o"'~ ~jC~"+~+~.5~~~ .~_...,.,.,~ ~r_ YS;=STREETS.UR-F.ACIN.G.,..STD.RNLSE.YV.ERS;MSANITAR-Y-SEWERS;~WATERr~1rIAINS, -S~EET~•LI~}I1CS; fP;ARKS,._..1'~'.A.TE•R--ANDwSE~WFRr-PRO-._,RA.TA~.AND'_ASS•ESSM-E'N~-FOR •'I_} ORpCI.G.H.EA.RE:~~-IMPROVEMEN'~S; PRESCRIBING FEES TO BE CHARGED; ESTABLISHING JURISDICTION WITHIN THE CORPORATE LIMITS OF THE CITY AND WITHIN THE EXTRATERRITORIAL JURISDICTION OF THE CITY OF COPPELL; REPEALING ANY PART OF ANY ORDINANCE IN CONFLICT WITH THIS ORDINANCE; --S~P~E-- FCj ICALL'~Y~ KEPI:ALZN~G==.ORDINAN•CE~:;N~O~226;~ND::SE.CTIOI~S 1`3=I=1"-""7~ND""•1`3~1-2~ ,.. ... OF°-THE ••-CODE•'~'=OF>-ORDINANCES O,F_~=...THE--CITY::°.Q.E„n:.COPPELIJ; PROVIDING A SEVERABILITY CLAUSE; PROVIDING PENALTIES FOR VIOLATION OF THIS ORDINANCE NOT TO EXCEED THE SUM OF TWO HUNDRED DOLLARS 0200.00) FOR EACH OFFENSE AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, by Article 974e, Texas Civil Statutes, the laws of the State of Texas provide that every owner of any tract of land situated within the corporate limit~~p~-••~ _within • five- miles -of °-thecorporate • limits of any- city= in the State .of- Texas,.who may divide the same in two or more parts for the purpose of laying out any subdivision of any tract of land or any addition to any town or city, or for laying out suburban lots i ~: EXHIBIT "B" • or building lots, or any lots, and streets, alleys or parks or other portions intended for public use, or the use of purchasers or owners of lots fronting thereon or adjacent thereto, shall cause a plat to be made thereof which shall accurately describe all of said subdivision or addition by metes and bounds and locate the same with respect to an original corner of the original survey of which it is a part, giving the dimensions thereof of said subdivision or addition, and the dimensions of all streets, alleys, squares, parks or other portions of same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto; and WHEREAS, by Article 970x, Texas Civil Statutes, said law of the State of Texas provides that the governing body of any city may extend, by ordinance, to all of the area under its extraterritorial jurisdiction the application of the city's ordinance establishing rules and regulations governing plats and the subdivision of land; and WHEREAS,. the City Council of the City of Coppell, Texas, being so empowered by law, does hereby promulgate and establish such a plan for the City of Coppell, Texas, and this ordinance shall hereinafter be known as the Subdivision Ordinance of the City of Coppell, Texas. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION 1. ADOPTION OP SUBDIYLSION REGULATIONS The term subdivision means the division of any tract of land situated within the corporate limits of the City or within the City's extraterritorial jurisdiction, into two or more parts for the purpose of laying out any subdivision of any tract of land or any addition to the City of Coppell, Texas, or for laying out suburban lots or building lots, or any lots, and streets, alleys or parks or other portions intended for public use, or the use of purchasers or owners of lots fronting thereon or adjacent thereto for the purpose, whether immediate or future, of creating building sites. Subdivision includes resubdivision. • :. The rules and regulations attached hereto including the attached Appendix- A, Specific-Requirements 'and Design Criteria; Appendix B, Pro Rata Assessments; and Appendix C, Procedure for. Assessments of Thoroughfares; are hereby adopted as the subdivision regulations of the City of Coppell and are made a part hereof for all purposes. No person shall create a subdivision of land, as hereinabove defined, within the corporate limits of the City or within the extraterritorial jurisdiction of the City, without complying with the provisions of these regulations. All plats and subdivisions of any such land shall conform to the rules and regulations herein adopted. SECTION 2. REPEALING CLAUSE All ordinances, or parts of ordinances, inconsistent or in conflict with the provisions of this ordinance are hereby repealed. The Subdivision Ordinance of~ the City in effect as of the date of the passage of this ordinance, Ordinance No..22'6; is hereby specifically repealed ~along_anr.ith_Sections--13-1-1•-ana.-13-1-Z-~of-the-Gode--of Ordinances of -the-Cl-ty--of ••-Coppell. However, the repeal of existing ordinances by this ordinance shall not affect or prevent the prosecution or punishment of any person for any act done or committed prior to the effective date of this ordinance in violation of any ordinance hereby repealed; and prosecution for such offenses may be instituted and causes presently pending proceeded with in sll respects as if such prior ordinance or ordinances had not been repealed. SECTION 3. SEYERABILITY CLAUSE If any article, paragraph or subdivision, clause or provision of this ordinance shall be adjudged invalid or held unconstitutional, the same shall not affect the validity of this ordinance as a whole or any part or provision thereof, other than the part so decided to be invalid or unconstitutional. SECTION 9. PENALTY CLAUSE Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by a penalty of fine not to exceed the sum of Two Hundred Dollars (200.00) for each offense, and each and every day such offense is continued shall constitute a new and separate offense. SECTION 5. EFFECTIVE DATE ~ , This ordinance shall take effect immediately from and after the publication of its caption, as the law in such cases provides. DULY PASSED by the City Council. of the City of Coppell, Texas, this the .~ day of t~c 1984. e nonnvFn• ATTEST: lJZ,yc~ Cl S CRE ARY APPROVED AS TO FORM N C: ~ ~~ ~ .y. - ' , / CITY ATTOfRNEY ../ .~'• ~~ .,__ ie~es~ ie:es CITY aF L eez - Minutac of July 24, 1984 The City Council of the City of Coppell met in regular called session at 7:30 p.m. on the 24th day of Juty, 1984, in the Coppell High School Admini- stration building. Tt~e following members were present: Andrew brown, Jr., Mayor Donny Thompson, Mayor f'ro Tcm Lou Duggan, Councilman ~ Dale Ware. Councilman John bailey, Councilman ' Nalter Petti3ohn, Councilman Also present were City Manager Ron Ragland, City Attorney Larry Jackson end Secretary Debbie Layton. ITEM N0. 3: Approval of minutes of July 10, July 17, and July 19, 1904 Mayor Pro Tem Thompson moved that the minutes of July 10, July 17, and July 19 be approved; Councilman Dailey seconded end motion carried G-0. ITEM N0. 4: Approval of bills City Menayer Run RaylanJ pointed out a correction on the bills at the bottom of the second page. On the invoice to Ginn, Inc., the amount should be ~91j.bu instead of 1,933.50. Mayor Pro Tem Thompson moved that the bills be approved as corrected; Councilman Dailey seconded and motion carried 5-0. ITEM N0. 5: Confider approval of an ordinance approving the method of charging for installation of gas main extenslons on request of Lone Star Gas Company Mr. Don Buff representing Lone Star Gas made the presentation t'o the Council. ' Ne stated that this ordinance would change the existing main line extension rate for residential extenslons xithin the City from X4.50 per foot to npproximately ~5.4U per toot to more closely match the rate with the actual cosh of e~lnnsivn. Following discussion, Counci~lnan Ware moved that this ordinance be approved; Mayor Pro Tem Thompson seconded and motion corried 6. 0. ITEM N0. 6: Consider approval of a revised Subdivision flydinnnce City Manager Ron Ragland stated that City Attorney Larry Jackson has added the prefix and signature blocks which provides for penalty clauses, special provisions and definitions. Following discussion, Councilman Duggan moved that this ordinance be approved; Councilman bailey seconded and motion carr~led r-0. ITEM N0. 7: Lunsldrr• appr•vval of an u~-dinence abandoning the right-of•way on the proposed Bethel Road extension Mr. Larry Martin was present to discuss this item with the Council. Mayor Andy Rrnwn Axplained that several years ago a Dortion at Bethel Road was dedicated for the extension across Denton Tap. It was later determined that • the extension would not be needed; therefore, it is the Mayor's recommendation and the City staff's recommendetlon that this rigflt-of-way be abandoned. Mayor Pro Tem Thompson then moved that this ordinance abandoning the right-of-way on the proposed uethel Road extension be approreJ; Cvuncilnon Petti3ohn seconded and motion carried 5-0. • 1TEM N0. 8: Consider approval of contract with Arthur Andersen and Company for audit services far fiscal yenr ending September 30. 1984 .~: John Vollmer of Arthur Andersen & Co. made the presentation to tho Council. • Following discussion, Mayor Pro Tem Thompson moved that the contract for audit services for the fiscal year ending September 30, 19b4 be renewed; Councilman Duggan seconded end motion carried 5-0. ITEM N0. 9: Public hearing to consider annexation to the City of Coppell of approximately 129.1049 acres of land located at tire southwest corner of the intersection of De11:1ine Road and Cowboy Drive on request of Connell Develop- ment Company. R-95X EXHIBIT ~~C~' 10-06-92 10:13AM P002 it37 APPENDIX B WATER 8 SEWER PRO RATA t r AN ORDINANCE OF THE CITY OF COPPELL REGULATING THE INSTALLATION ~ OF WATER AND SEWER MAIN EXTENSIONS, PROVIDING FOR PRO RATA r CHARGES, PROVIDING FOR REFUNDS, PROVIDING AN ALTERNATIVE METHOD t FOR EXTENDING WATER AND SEWER MAINS, METHOD OF ENFORCING PAYMENT t OF PRO RATA CHARGES, PROVIDING 7HE EFFECTIVE DATE OF THE ORDINANCE, AND PROVIDING A SEVERABILITY CLAUSE, REPEAL OF CERTAIN CONFLICTING ORDINANCES. i 13E IT ORDAINED BY 1HE C11~Y COUNCIL OF THE CITY OF COPPELL, TEXAS: SECTION_1__-_.DEFINITIONS_ The following definitions apply in tF,e construction of this ordinance: AeQroach_Moin - Lines required to interconnect property being ~ developed with the existing water and sewer systems. ' Offsite_Main - Means same as approach main. i Onsite_Main - A1] water and sewer mains required within a • subdivision. Temeorary_Line - Any line constructed by a developer as an expedient to develop a particular area not required in the City's c • ultimate development plan. Appendix B 1 EXHIBIT "E" r 5ervice_.Connection - A water or sewer connection extending from the main line to serve a consumer. r _ Developed_Area - An area is developed at such time ns the City "Councl~~~has approved the final plat of a subdivision, and <... building permits have been issued. r f=rontage - Property abutting either side of a water and/or sewer line. r Pro_Ratn - A charge made against the consumer or property owner to pay for replacement or extension of water and sanitary sewer mains as provided for in this ordinance. r Consumer - The actual user of water from a City water connection. F?roperty_Owners - The record title holder of premises served with water from a connection by the City of Coppell. Oversize_Cost - The difference between the estimated cost of the main as built and the cost of the main determined to be the minimum size required to serve the subdivision. F SECTION_2:__DEVELOPMENT_RESPONSIBILITYr All property owners shall be partially responsible for water and/or sanitary sewer mains running along any platted streets or dedicated right-of-way '~ which fronts their property. Properties which lie on a Corner will be responsible for utility lines entirely across both e frontages. In the event that no utility lines have been constructed along the frontage of a property, it will be the responsibility of the Developer to bring the utilities to his property texcept as out- Appendix B 2 .~ -, lined be]ow1 and across his frontage to the adjacent property. In the event that lines have already been constructed along the frontage, pro rata must be paid for the lines according to the terms of Lhis ordinance. SECTION_3____PRO_RATA_CHARGES_ The City of Coppell may extend ~' water and sanitary sewer mains in the streets and alleys, or easements, within the city limits of the City of Coppell in order to permit connections by persons seeking water and sanitary sewer ~ service. A charge which shall be known as the "Pro Rata" shall be made against each lot or tract of land, and the owner thereof, ~' at the time of platting for issuance of a building permit, if the property is already plattedl, shall pay to the City according to _ the following rates: ~ S10 per front foot for water mains, which amount should ~ cover all appurtenances, valves, hydrants and fittings. '' ~t S10 per front foot for sewer mains, which amount should cover the cost of manholes and other nppurtennnces. ~ These amounts shall be reviewed periodically by the City Engineer. _~ ~ In addition to the pro rata charge on water and sewer mains, the ~ property owner must pay the tap charges as established by the• City of Coppell. Appendix B 3 r ,, --, ' SECTION_4__=_EXTENSION_OF_WATER_ANp_SEWER_LINES_ Upon request of the owner, or his agent, of a given lot or tract of land, for the r purpose of this ordinance known as "Applicant" accompanied by the payment of the charges due under this ordinance, the City of _ Coppell may extend or cause to have extended, lay or construct all necessary sanitary sewer and water mains, including valves and hydrants, n distance of 100 feet elys_the_distance_across_the r frontage necessary to provide the service for which application has been made. The applicant to be served shall be required to r pay the charges herein provided for. The owners of all intervening property served by the given main extensions shall be ' required to pay the charges provided for herein at such time as their praperty is platted. Where an applicant for service secured an extension and service under this particular option for ` main extension, he shall pay the pro rata charges on all property owned by him and which is served by the requested extension. In - applying the 100 foot rule, the required extension of the main shall be figured in such a manner as to leave out of the calculation of that portion of any main adjacent to property already having other than a temporary service and for which - the pro rata charge thereon has been paid or credited under the terms of this ordinance. An exception to the above 100 foot rule shall be made where two or more individual applicants desire water and/or sewer service and the nearest applicant is more than 100 feet from existing lines, the City of Coppell will extend or - cause to have extended their mains upon payment of the charge due Appendix B 4 ender this ordinance provided there is one customer for every 100 feet of such extension, excluding street intersections and that portion of the extension adjacent to property already having other than temporary water and/or sewer service. SECTION_S,_._A~TERNATIVE_METHOD_ At the option of the City of Coppell the following methods for extending water and sewer mains may be used where the applicant's property is more than 100 feet from an existing water or sewer main. t11 the applicant may deposit with the City of Coppell the entire pro rata amount due on the line or lines and the City will cause the line to be extended. When and as, pro rata is received from property owners nlong this line seeking to serve their property, the City will reimburse the applicant up to the amount of his deposit, less his own pro rata. 121 The applicant may, at his option, elect to install the utility lines at his own expense instead of paying a pro rata. the City will provide, if necessary, a means to reimburse him for the pro rata due on the other side of the line, when and as the other property ownerlsl seek to provide service to their property. The Developer of an. addition or plat shall design and prepare construction plans of water and sanitary sewer facilities, or either of them, to serve the subdivision, including any access of offsite facilities that may be required. these plans shall Appendix B 5 ;~. '" conform in all details to the City's standards as to the design, grade, location, size and quality of materials and r construction. 1 r SECTION_6,_=_REFUNp_OF_COST_OF_EXTENSION_ Where extensions of r water and sewer mains are required to serve property which has been subdivided or platted for development and resale and the , final plat has been approved by the City Gouncil~,,the City of '~ ... Coppell shall construct or cause to have constructed such mains r upon deposit of the total cost of such extensions, including the .- cost of approach mains fronting property now owned by the Developer, but necessary to connect the area for which r application is made with the City of Coppell water and sewer system. r The Developer will beat the total cost of construction of offsite - or approaching mains required to interconnect property to be - developed with existing mains, the sizes to be determined by the City of Coppell, and with the only refunds to be the pro rata as collected by the City. Any refund to the Developer shall not exceed the total of the pro rata charges, or the total cost of - the octual construction, whichever is the lesser amount. There shall be a maximum of ten 1101 years as the period of eligibility wherein the original depositor may request a refund of pro rata payments under this section. In the event the abutting property is not developed during the said ten year _ period, then no refund shall be mode under this section. The Appendix B 6 eriod of eligibility shall begin as of the date of final P inspection and acceptance of the extensions by the City of r Coppell. The City of Coppell will return all refunds due from other Developers when and as they are received. Oversize payments and r the City's portion of one-sided lines will be refunded by January 1 of each year for the funds due from the previous fiscal year., No refunds will be made which might reduce the capability of the water and sewer fund to maintain its coverage, to meet its annual r budget obligations and to extend lines according to Section ~ of this ardinance. All refunds due from the City for oversize or one-sided lines will be paid in full at one time. In the event r of a large refund being due, the City Council may elect to include the refund in a future bond program. SECTION_.7__=_COST_OF_ONSITE_MAINS_ The Developer will bear the total cost of onsite mains throughout his subdivision with sizes to be determined by the City of Coppell, except that the City of _ Coppell will refund the increment of cost on water and sewer mains over ten inches in diameter. The increment of cost borne by - the City shall be determined on the basis of the difference between the unit prices established in this ordinance. The current unit prices are: Appendix B 7 Water 10" - 512.00 - Per Lineal Foot 12" - 14.00 - Per Lineal Foot r 14" - 15.00 - Per Lineal Foot 16" - 19.00 - Per Linea] Foot 20" - 22.00 - Per Lineal Foot 24" - 25.00 - Per Lineal Foot Sewer 10" - 514.00 - Per Lineal Foot 12" - 15.00 - Per Lineal Foot If the City has no funds available, it is not required to participate in oversizing costs. '- SECTION_8____LINES_ABUTTING_ADJACENT_CITIES_ In the event that a water or sewer line is to be constructed along the boundary line r between Coppell and one of its adjoining cities, the City will ~ bear the responsibility for eventually refunding pro rata to the r Developer as if the City was"the property owner on the opposite '' side. The City will not be responsible, however, unless such '' line is considered essential to the completion of the master plan. Any refunds will be made according to the terms of Section 6. r SECTION_9____TEMPORARY_LINES_ Where temporary lines are ~- constructed as an expedient to develop a particular urea, such as across easements within the subdivision of which no frontage can be connected, or where sewers are constructed which otherwise are not required in the ultimate plan of development for the sanitary sewer system, the Developer will bear the total cost without refund. Moreover, the Developer or owner will still be liable for pro rata charges on permanent lines when they are installed. Appendix B 8 r SECTION_10~___NO_Fl1NDS_AVAILABLE_ In no event will the City of Coppell be required to make extensions under the provisions of this ordinance if there are no funds available on hand for the purpose. SECTION_I1____METHOD_OF_ENFORCING_PAYMEN7_ That nothing herein shall be deemed in any way to be an exclusive method of enforcing the payment of the pro rata cost against the consumer and property owners, and shall not be deemed in any manner to be a waiver of the City's right to validly assess the property owners -- and/or consumers concerned for cost of the installation of standard size water and sewer mains and to fix and enforce liens r against said property, all which may be done as provided by ~ ordinance in the manner prescribed by law. r r' SECTION_12____LIFT_STATIONS_AND_SPECIAL_1NSTALLATIONS_ In the -° event lift stations or other special installations are required, r the same shall be installed under separate agreements between tf~e City of Coppell and the Developer. SECTION_13__=_PRO_RATA_CHARGES_FOR_MAINS_EXISTING_AT_THE_TIME_OF PASSAGE_OF_THIS_ORDINANCE; All structures existing or under . construction for which tap fees have already been paid, will be exempt from the pro rata charges for the water and sewer mains. All other properties, including those abutting water and sewer t mains which have not already paid tap fees, or previous pro rata Appendix 8 9 fees, shall be required to pay the pro rata charges and tap fees before receiving water and sewer services. SECTION_14r_=_CHARGES_CREDITED_TO_WATER_ANp_SEWER_FUI~D_ Any and all sums of money hereinafter col]ected as a pro rata charge or deposit for water and/or sewer extensions, at the rates set forth 1 in this ordinance, sha]1 be credited to the Nater and Sewer Fund of the City and all refunds shall be paid from this same account. The Water and Sewer Fund will maintain a capital fund for future construction and reimbursements. .- SECTION_15,_=_PURPOSE_OF_ORDINANCE;_WHERE_FRpNT_FOOT_RULE_IS INEOUITABLEi_NO_VESTED_RIGHT1_SEVERABILITY_CLAUSE_ The intent and purpose of this ordinance is to provide an equitable charge for water and sanitary sewer connections as a proportionate ~ distribution of the costs of water and sanitary sewer main extensions to serve properties in the City of Coppell. In case a r property or a tract of land is so situated or shaped that the front foot rule creates an inequitable basis as between it and t other tracts of land in the City of Coppell, then, in that event, '' the City Engineer shall determine the proper charge in accord with the intent and purpose of this ordinance. No person shall acquire any vested right under the terms and provisions of this _ ordinance. That the terms and provisions of this ordinance shnll be deemed to be severable, in that if any section, phrase, ward _ or part thereof shall be deemed to be invalid, the same shall not affect the validity of the remaining portions of this ordinance. Appendix B 10 SECT]ON_16, - Ordinance ~____ and all other conflicting ordinances are hereby repealed except ordinance nos.____, ____, and and any pro rata resolutions enacted under said ordinance ~____ shall remain in full force and effect. APPROVED: -------------------------- MAYOR ATTEST: Appendix B 11 A P P E N D I X C CITY OF COPPELL _ PROCEDURE USED TO DETERMINE ASSESSMENT FOR THOROUGHFARE IMPROVEMENTS - Calc~lating_the_Actual_Assessment_Value_Used g, the following bid items cost from the actual low bid is tabulated: a. Roadway Excavation ' b. Lime Slurry c. Lime Treatment -- d. Pavement - e. Curb ~ Gutter f. All storm drainage g. Median landscaping _ h. Raised pavement markers (divided streets only( i. Street Lights ~. Add the design engineering cost for the total project. tThis amount is determined from the curves in "Manual ~+5" .published by the American Society of Civil Engineers.) Testing and inspection fees are not included. _ 3. The sum of the above gives the portion of the project cost that is to be used for assessment value. ~+, 1~he City of Coppell's policy is to relate the above value to ^ what it would cost to construct a 3?-ft. co]lector thorough- fare. this is done by calculating the percentage l~l of a 37-ft. wide street compared to the actual total pavement ' width of the project at hand. 5. The assessment per front foot is figured from assessment value above, divided by total front foot, and multiplied by the calculated percentage. Appendix C ;~. CONFlD~NTIAL Fax: _'11Flii-9001 Telex: ii lli_' lt'riter's Direct Dial Vumber JOHNSON & GIBBS A Professional Corporation ATTORNEYS AND COUNSELORS 100 Founders Square 900 Jackson Street Dallas, T'ea:as 75202-4499 214/97 i-9000 (214)977-9526 October 5, 1992 a~ .. ~Y .`~L ,\. t!'YT t-, [' ~... C VIA FAX AND CERTIFIED MAII. NO. P715 936 837 RETURN RECEIPT REQUESTED Larry W. Jackson, Esq. Nichols, Jackson, Kirk & Dillard Suite 1800 500 N. Akard Street Dallas, Texas 75201 .~ ~ ~:~ ," ~ . /~/I - ~ - I ~G~.M,2c Other Locations: .Austin Houston 1~'ashington, D. C. Berlin ,~ j ~~~,/ a Re: Frank Bamburg Builders/City of Coppell Dispute Dear Larry: This letter will confirm our telephone discussions of September 29 and October 5, 1992. We have been retained by Frank Bamburg Builders ("Bamburg") in connection with three disputes between Bamburg and the City of Coppell ("Coppell") concerning improper assessments and inverse condemnation relating to Bamburg's development along Sandy Lake Road. First, Coppell has demanded that Bamburg pay in excess of $64,000 to be escrowed for the upgrade of Sandy Lake Road -- allEgedly pursuant to the Master Fee Schedule, Ordinance 92-565, Article 18-11, "Street 'Pro Rata' Charges." Under Texas law this is an unauthorized and illegal assessment against Bamburg. In addition, since this ordinance was signed on September 8, 1992, effective September 21, 1992, several months after Bamburg applied for subdivision approval and was assessed this illegal $64,000+ fee, the assessment constitutes an unconstitutional ex post facto application of law. Further, because this assessment is not being applied evenly to all adjoining land owners, it illegally penalizes only certain property owners along the road. Lastly, we understand that Proposition 5 of Coppell's $20,000,000 bond proposal, passed in the March 3, 1990 election, included a provision of $7.3 Million for expansion of Sandy Lake Road and $100,000 for repairs of "subgrade failures:' Thus, any assessment against Bamburg concerning Sandy Lake Road constitutes illegal double taxing. Larry W. Jackson, Esq. October 5, 1992 Page 2 Since Coppell has told Bamburg that he cannot close the sale of any of his houses until this $64,000+ assessment is paid, and Hamburg expects to close the sale of his first home by October 20, 1992, it is imperative that this issue be resolved immediately. Otherwise, Bamburg will suffer immediate and irreparable harm for which damages will not be an adequate remedy. Unless Coppell permits Bamburg to close the sale of his completed houses without prior payment of this illegal, assessment, Bamburg will have to pursue all his legal rights to save his business -- including the Kling of a lawsuit and seeking injunctive relief, if necessary. Second, Coppell required Bamburg to dedicate, under protest, to Coppell a strip of land along Sandy Lake Road approximately 25 feet wide and 380 feet long. Under Texas case law, this dedication deprived Bamburg of the use and enjoyment of his property without just compensation, entitling Bamburg under the United States and Texas constitutions to seek compensation. Bamburg purchased this property for approximately $1.35/sq. ft. By developing and improving the property, Bamburg estimates it will sell for approximately $5.00/sq. ft. We believe that Bamburg is entitled to at least $1.35/sq. ft. and can recover, in court, as much as $5.00/sq. ft. In addition, Bamburg may be entitled to recover damages caused to the remainder of the property that was diminished in size and value by the taking of the 25 foot wide strip of land. Third, under Coppell's Impact Fee Ordinance, Coppell required Bamburg to pay, under protest, more than $6,000 as a sewer impact fee. Our review of the ordinance and Section 395 of the Local Government Code have confirmed Hamburg's belief that this assessment was illegal, among other reasons, for Coppell's failure to comply with all the requirements of Section 395. Larry, these issues are negotiable and Bamburg and I are desirous of sitting down with you and authorized Coppell officials to resolve these matters. However, regardless of the ultimate resolution, Coppell must allow Bamburg to close on the sale of completed houses without hinderance or delay. To that end, we request that Coppell provide Bamburg and me with a letter confirming that it will not use Hamburg's refusal to pay the disputed "Pro Rata Escrow Fee to hinder, delay, or otherwise prevent Bamburg from closing on his homes. Otherwise, we have been authorized to pursue all legal action necessary to facilitate the sale of Hamburg's houses -- including the filing of a lawsuit and the seeking of injunctive relief. Unless .~ we have a letter in our hands no later than noon October 16, 1992, we will seek relief from the courts. As to the other remaining issues, we think that it behooves all parties to meet and discuss them as soon as possible. Please contact me with available dates and times for direct discussions between Frank Bamburg, me, you, and authorized city officials. Larry W. Jackson, Esq. October 5, 1992 Page 3 Thank you in advance for your immediate attention to these matters. I look forward to hearing from you. Sincerely, ~~ ~~~'~~1. Robert R. Gibbons RRG:cmh cc: Frank Bamburg ,- City of Coppell v Maria Karos Davis, Esq.