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HomeMy WebLinkAboutCity Council Resolutions (R-89-410)-03/07/1989 1 2 3 4 5 RESOLUTION NO. R-89-410 WHEREAS, there is currently pending a suit styled Builders Association of Fort Worth and Tarrant County, Gary Sheffield and Alan Youngblood v. City of Co11eyvi11e in the 67th District Court of Tarrant County, Texas bearing Cause No: 67-101203-86, wherein the imposition of impact fees by the City of Colleyville has been challenged; and the parties to that suit have negotiated a settlement which is a fair and equitable resolution of the dispute; and 6 I WHEREAS, 7 a 9 10 WHEREAS, a written agreement which contains recitations, all of which recitations are hereby incorporated herein for all purposes as if fully written, and provides for the disposition of all issues between the parties, 11 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: 12 13 14 15 16 17 18 Sec. 1: That the Release and Settlement Agreement which is attached hereto as Exhibit "A" be entered into by the City and that the Mayor is hereby authorized to execute same by and on behalf of the City of Colleyvil1e. That Resolution number 88-372 prohibiting the spending of capital recovery funds is hereby declared to be of no further force or effect. Sec. 2: AND IT IS SO RESOLVED. pass'tf}ra!clYi of </. o on this 1-ti? day of to 1989. CITY OF COLLEYVILLE tf,I~11 ~ ;tJ. R. Hubbard Mayor :: I ATTES] ~ I~aba 21 City Secretary 22 I 23 I 24 I 25 26 :a:;~UGA~RM: Ro sT. (Foster ---- City Attorney r RELEASE AND SETTLEMENT AGREEMENT THIS AGREEMENT is made this the day of , 1989, by and between the CITY OF COLLEYVILLE, a home rule municipal corporation in the State of Texas, hereinafter "City", the BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY, a non-profit Corporation organized under the laws of the State of Texas and consisting of members of the building industry, hereinafter "Association", GARY SHEFFIELD, an individual, hereinafter "Sheffield", and ALAN YOUNGBLOOD, an individual, hereinafter "Youngblood". The Association, Sheffield and Youngblood are sometimes collectively referred to herein as "Plaintiffs". WHEREAS, in November of 1986, the city enacted ordinances requiring the payment of fees upon issuance of building permits to finance roadway and water system improvements to the City, ("impact fees"), and WHEREAS, said ordinances provided for adjustment procedures to reduce impact fees based upon the installation of improvements to the City's roadway and water distribution systems by owners of the property subject to impact fees, and WHEREAS, certain owners have requested and received adjustments to impact fees under the terms of the ordinances, and WHEREAS, the impact fees paid on the lots listed in Schedule "A" hereto have been adjusted in accordance with the terms of the ordinances, and WHEREAS, substantial improvements were made to the City'S 1 r roadway and water distribution system by owners of other residential property subject to impact fees without a corresponding reduction in impact fees, and WHEREAS, numerous builders have paid impact fees to the City on residential lots which would have been subject to adjustment, as the result of the installation of improvements, and WHEREAS, the City deems it is fair and equitable to allow an adjustment of impact fees to reflect the value of improvements made to the City for which no adjustment has been previously given, and WHEREAS, the City finds that at this time it would be impossible to compute pursuant to the City's impact fee ordinances the exact amount of adjustment, which should be made on each lot, and WHEREAS, the City finds that an adjustment of the roadway impact fee to $1,265.00 and the water distribution impact fee to $620.25 as of December 1, 1989 for all residential lots in the city, which have not received an adjustment, is fair, equitable and in accordance with the intent of the City's impact fee ordinances, and WHEREAS, the Association, Sheffield and Youngblood have challenged the validity of the impact fees assessed by the city on residential lots on several basis, including the failure of the city to make adjustments for improvements added to the City, in a suit filed in the 67th District Court of Tarrant County, Texas, styled Builders Association of Fort Worth and Tarrant 2 r County, Garv Sheffield and Alan Younqblood v. city of Collevville, No. 67-101203-86, and WHEREAS, subsequent to the passage of the ordinances imposing impact fees by the City, the legislature of the State of Texas adopted V.A.T.S. Article l269j - 4.11, which regulates the adoption of impact fees and requires that existing impact fee ordinances be revised to comply with said Statute, and WHEREAS, the City, the Association, Sheffield, and Youngblood desire to settle all matters in controversy, and NOW, THEREFORE, for and in consideration of the mutual covenants, conditions and promises contained herein, the parties agree as follows: 1. Revision of Impact Fees 1.1. The City shall immediately begin the process of revising its impact fee ordinances in compliance with the provisions of V.A.T.S. Article l269j - 4.11, as amended. 1.2. Except for those impact fees referred to in paragraphs 2.1 and 2.2 below, and except for those fees set out in paragraph 3 below, the City shall not henceforth impose any impact fee, or charge any other fee, upon issuance of a building permit, except in accordance with V.A.T.S. Article 1269j - 4.11. 1.3. The membership of the Advisory Committee of the City, established pursuant to section 7 of V.A.T.S. Article 1269j - 4.11, shall be revised so that 40% of its members shall be individuals nominated by the Association and approved and appointed by the City Council of the City. If the Association 3 r fails to nominate individuals to the Advisory Committee within 10 days' written notice by the City, then the city Council may appoint anyone it deems appropriate. 2. Interim Impact Fees 2.1. From December 1, 1988, until a roadway impact fee is adopted by the City pursuant to V.A.T.S. Article 1269j - 4.11, no person shall be required to pay a residential roadway impact fee which exceeds the sum of $1,265.00. 2.2. From December 1, 1988, until a water distribution impact fee is adopted by the City pursuant to V.A.T.S. Article 1269j - 4.11, no person shall be required to pay a residential water distribution impact fee which exceeds the sum of $620.25. 3. Adjustment of Other Fees 3.1. The City shall immediately review all fees charged builders, including, but not limited to, inspection fees, tap fees, meter deposit fees, and other fees for services supplied by the City upon the issuance of a building permit. The City shall adjust those fees where necessary to reflect the actual cost incurred by the City in performing the inspection, installing the tap or meter, or performing the other services for which the fee is charged. 4. Refunds 4.1. As to each building permit issued for a residence and issued on or before November 30, 1988, for which an impact fee was collected, the City shall refund the sum of $900.00 per 4 r lot. 4.2. As to each building permit issued on or before November 3D, 1988, upon which an impact fee was collected for installation of a sprinkler system on commonly owned property, the City shall refund a sum equal to 50% of the roadway impact fee paid and 25% of the water impact fee paid. 4.3. As to each building permit issued for a residence and issued on or after December 1, 1988, for which an impact fee was collected, the City shall refund the difference between the impact fee paid and the amounts set forth in paragraphs 2.1 and 2.2 above. 4.4. The obligation of the city to pay the refunds here provided for shall be conditioned upon compliance with parts 5.1 and 5.2 below. 5. Refund Procedure 5.1. All refunds provided for under this agreement shall be made pursuant to the following procedure: (a) A written application for said refund must be made to the City within 180 days of the date of dismissal of the above described litigation pursuant to paragraphs 7.1-7.3 below. (b) Each written application for refund shall be accompanied by reasonably sufficient proof that the applicant is the original payor of the impact fee on identified lots. The sufficiency of proof of payment shall be determined in the reasonable discretion of the City. (c) The identified lots or common property on 5 r which refund is sought shall not be listed in Schedule "A" hereto. (d) The applicant shall execute a Release in a form sUbstantially the same as the document attached hereto as Exhibit "B". 5.2. In the event the City is subjected to multiple or disputed claims to a particular refund, the City may satisfy its obligation hereunder by filing an interpleader action in Tarrant County, Texas, and paying the disputed amount into the registry of the Court to be distributed pursuant to the Order of the Court. 5.3. The Association shall use its best efforts to require and shall cooperate with its members in making applications, receiving refunds and executing releases to the City. 6. Payment to Association 6.1. Upon the execution of this Agreement and compliance with section 7.1 hereof, the City shall pay the sum of $112,000.00 into escrow with , as Escrow agent. 6.2 Said escrow shall be deposited in two interest bearing accounts, each totalling $56,000.00. Said sums shall be held and distributed by the Escrow agent as follows: (a) The sum of $56,000.00, plus accumulated interest on said amount, shall be paid to the Association when the suit is dismissed pursuant to paragraph 7.1 and 7.2 below. 6 (b) The remaining funds, including accumulated interest, shall be paid to the Association when the City has made refunds or received releases, in accordance with paragraph 5 above, for 280 lots, other than lots located in Schedule "A" hereto. 6.3. If the suit is not dismissed in accordance with paragraph 7.1-7.3 below, then the Escrow agent shall return all of said funds, with accumulated interest, to the City. If the suit is so dismissed and in the further event that the City ultimately does not make refunds and/or receive releases for 280 lots, in accordance with paragraph 6.2(b) above, then the Escrow agent shall return the funds described in 6.2(b) above plus accumulated interest, to the City. 7. Settlement Procedure 7.1. Upon the execution of this Agreement, Plaintiffs and Defendants shall execute a Joint Motion for Severance and Dismissal, together with an Agreed Order, in the form attached hereto as Exhibit "C". Said Motion and Order shall be delivered to the City's Attorney in escrow and shall not be submitted to the Court until the City has passed the resolution herein described. The City shall proceed to consider a resolution adopting a general adjustment to impact fees, which results in the imposition of the fees set out in sections 2.1 and 2.2 hereof. 7.2. Upon signing of the Agreed Order by the Court and passage of the resolution by the City, the Escrow agent shall pay 7 r. $56,000.00 to the Association as provided in section 6.2(a) above. 7.3. The City shall select the members of the Advisory Committee as provided for in paragraph 1.3 above. 8. Non-participation 8.1. The Association, Sheffield, and Youngblood shall not in any manner cooperate or participate, whether actually or by financial contribution, in any claim, cause of action or suit against the City by any other person or entity arising out of impact fees paid or assessed by the City prior to the date of this Agreement, or any impact fee paid or assessed after the date of this Agreement, so long as said fee complies with the terms of this Agreement and V.A.T.S. Article 1269j - 4.11, except for litigation to enforce this Agreement. The City shall not in any manner challenge the validity of this Agreement. 9. Release 9.1. The Association, Sheffield and Youngblood hereby fully, finally, and forever, release, discharge and quit-claim the City from any and all claims or causes of action which it had or may have had as a result of the adoption, assessment, or collection of any impact fee prior to the execution of this Agreement, except otherwise set forth herein. The city hereby fully, finally, and forever, releases, discharges and quit-claims the Association, Sheffield, and Youngblood from any claim arising from their filing and prosecuting this suit, including attorney's fees. 8 r 10. Survival 10.1. In the event any covenant or obligation of the City given hereunder is held by a Court of competent jurisdiction to be invalid or void for any reason, such ruling shall not affect any promise, covenant, obligation, or release herein given or undertaken by the Association, and the Association shall perform pursuant to the terms of this agreement, not withstanding said ruling. 11. Miscellaneous Provisions 11.1. No admissions. This Agreement including the Agreed Order referred to in paragraph 1 above, is made and entered into to settle a dispute between Plaintiffs and the City. By entering into this Agreement and by approving the Agreed Order and by converting to the dismissal of this suit with prejudice, no party makes any admission for any purpose whatsoever. 11.2. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Texas. Venue for any action that may be brought in connection with the enforcement of this Agreement shall be Tarrant County, Texas. 11.3. The City shall pay the amounts which it is required to pay under this Agreement from impact fees previously collected. The City represents that the impact fees which it has collected are and shall be sufficient to pay all amounts due under this Agreement. 11.4. Entire Agreement. This Agreement contains the 9 f'. entire agreement between the parties with respect to the transactions contemplated herein and supersedes all previous written or oral negotiations, commitments and understandings. No representations and warranties are made by any of the partes other than those expressly contained in this Agreement. 11.5. Counterparts and Headings. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. All headings are inserted for convenience of reference only and shall no affect its meaning or interpretation. 11.6. Severability. If and to the extent that any court of competent jurisdiction holds any provision (or any part thereof) of this Agreement to be invalid or unenforceable, such holding shall in no way affect the validity of the remainder of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above. Attest: CITY OF COLLEYVILLE LaVada Johnson, City Secretary By: Buck Hubbard, Mayor 10 r GARY SHEFFIELD ALAN YOUNGBLOOD Approved: Frank Gilstrap, Attorney for Association, Sheffield and Youngblood r BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY By: President Ross T. Foster, Attorney for City of colleyville 11 SCHEDULE "A" Lot/Block Subdivision 7-1 The Hills of Central Park of the City of Co11eyville 9-1 The Hills of Central Park of the City of Co11eyvi11e 12 r EXHIBIT "B" RELEASE For and in consideration of the payment of ($ ), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I, the undersigned, hereby fully, finally and forever RELEASE, DISCHARGE, AND QUITCLAIM the City of Colleyville from any and all claims or causes of action which arise out of or pertain to the imposition or collection by the City of Colleyville of impact fees, prior to the date of this release. I recognize that the payment of the foregoing consideration by the City of Colleyville is done for the purposes of settling any claim I may have against the City, is for the purpose of the City buying its peace, and does not constitute an admission of anything on the part of the City. In witness I have hereby set my hand onto this document on the day of 19 STATE OF TEXAS COUNTY OF TARRANT This instrument was acknowledged before me on the day of , 19 , by Notary's commission Expires: Notary PUblic, State of Texas 1 r' EXHIBIT "c" NO: 67-101203-86 BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY, GARY SHEFFIELD AND ALAN YOUNGBLOOD CITY OF COLLEYVILLE [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] TARRANT COUNTY, TEXAS IN THE DISTRICT COURT VS. 67TH JUDICIAL DISTRICT JOINT MOTION FOR SEVERANCE AND DISMISSAL WITH PREJUDICE NOW COMES, the Plaintiffs herein, BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY, GARY SHEFFIELD AND ALAN YOUNGBLOOD, and the Defendant, CITY OF COLLEYVILLE, and file this Joint Motion for Severance and Dismissal with Prejudice and would show unto the Court as follows: 1. This suit was originally filed by Plaintiffs against the Defendant, challenging the validity of certain ordinances passed and adopted by the Defendant. Subsequent to the filing of Plaintiffs' suit, without leave of Court, Northeast Properties, Inc., intervened in said suit and asserted rights similar to those asserted by the Plaintiffs herein. 2. The Plaintiffs and the Defendant have settled all matters in controversy between the parties and desire that the original suit be dismissed with prejudice to the right of the Plaintiffs to refile same. WHEREFORE, PREMISES CONSIDERED, the Plaintiffs and the 1 r Defendant pray that the original suit of the Builders Association of Fort Worth and Tarrant County, Gary Sheffield and Alan Youngblood vs. the City of Colleyville, be severed from the claims of Northeast Properties, Inc., against the City of Colleyville. The parties further pray that after said severance that the original suit be dismissed with prejudice to the right of either party to refile same. The parties pray for general relief. Respectfully submitted, STAPLES, FOSTER & HAMPTON Ross T. Foster 860 Airport Freeway West Suite 701 Hurst, Texas 76054 (817) 281-2222 State Bar No. 07295500 Attorney for Defendant Frank Gilstrap Attorney for Plaintiffs 2 r .~ - ." ,.- ~ ~~} NO: 67-101203-86 BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY, GARY SHEFFIELD AND ALAN YOUNGBLOOD VS. (] (] ( ] (] ( ] [ ] [ ] (] 67TH JUDICIAL DISTRICT IN THE DISTRICT COURT TARRANT COUNTY, TEXAS CITY OF COLLEYVILLE ORDER OF SEVERANCE AND DISMISSAL WITH PREJUDICE Came on to be heard on the -A /~ day of A6'r; L Defendant herein , 1989, the joint motion of the Plaintiffs and the for severance and dismissal with prejudice. The Court after reviewing the pleading_ and hearing argument i. ot the opinion that said Motion should be in all things granted. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the suit of the Builders Association of Fort Worth and Tarrant county, Gary Sheffield and Alan Youngblood vs. the City of Colleyville be severed from the suit of Northeast Properties, Inc., as Intervenor, against the City of Colleyville. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the continuing cause of action of Northeast Properties, Inc., against the City of Colleyville be assigned Cause No: and the severed cause of action wherein the Builders Association of Fort Worth and Tarrant County, Gary Sheffield and Alan Youngblood are Plaintiffs and the City of Colleyville is Defendant, retain the original Cause Number of 67-101203-86. 3 ~.. .-;. # f; J .' ... IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Cause Number 67-101203-86 in the 67th District Court of Tarrant County, Texas, wherein the 8uilders Association of Forth Worth~nd Tarrant County, Gary Sheffield and Alan Youngblood ar, ~laintiffs and the City of Colleyville is Defendant be and the same is in all matters dismissed with prejUdice to the right of either party to refile same. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs incurred in Cause Number 67-101203-86 in the 67th District Court of Tarrant County, Texas be assessed against the party incurring same for which let execution issue. It<- ' I SIGNED this the j.LJ day of ~~Lng , 19.9 ') Approved: Ross T. Foster, Attorney for Defendant Frank Gilstrap Attorney for Plaintiffs 4 r-' STAPLES, FOSTER & HAMPTO ATTORNEYS AT LAW 701 Texas Commerce Bank Building 860 Airport Freeway West Hurst, Texas 76054 . . George Staple., P.C. ROil T. FOller, P,C. Carter L. Hempton, P.C. April 17, 1989 Mr. Larry Wood Summit Title Company 1330 Summit Avenue Fort Worth, Texas 76102 Re: Cause No: 67-101203-86 Builders Association of Fort Worth and Tarrant County, et a1., vs. City of Co11eyvi11e Dear Mr. Wood: Please find enclosed a copy of an Order of Dismissal with Prejudice signed by the Judge in the above referenced cause on the 14th day of April, 1989. You are additionally advised that the City has passed the Resolution described in section 7.1 and 7.2 of the Settlement Agreement between the parties. RTF:dw Enclosure cc: Mr. Bo McDaniel, City Manager. City of Co11eyvi11e -- r' NO: 67-101203-86 BUILDERS ASSOCIATION OF FORT WORTH AND TARRANT COUNTY, GARY SHEFFIELD AND ALAN YOUNGBLOOD CITY OF COLLEYVILLE [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] TARRANT COUNTY, TEXAS IN THE DISTRICT COURT VS. 67TH JUDICIAL DISTRICT ORDER OF SEVERANCE AND DISMISSAL WITH PREJUDICE Came on to be heard on the day of , 1989, the joint motion of the Plaintiffs and the Defendant herein for severance and dismissal with prejudice. The Court after reviewing the pleadings and hearing argument is of the opinion that said Motion should be in all things granted. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the suit of the Builders Association of Fort Worth and Tarrant County, Gary Sheffield and Alan Youngblood vs. the City of Colleyville be severed from the suit of Northeast properties, Inc., as Intervenor, against the City of Colleyville. IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the continuing cause of action of Northeast Properties, Inc., against the City of Colleyville be assigned Cause No: and the severed cause of action wherein the Builders Association of Fort Worth and Tarrant County, Gary Sheffield and Alan Youngblood are Plaintiffs and the City of Colleyville is Defendant, retain the original Cause Number of 67-101203-86. 3 r IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Cause Number 67-101203-86 in the 67th District Court of Tarrant County, Texas, wherein the Builders Association of Forth Worth and Tarrant County, Gary Sheffield and Alan Youngblood are Plaintiffs and the City of colleyville is Defendant be and the same is in all matters dismissed with prejudice to the right of either party to refile same. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs incurred in Cause Number 67-101203-86 in the 67th District Court of Tarrant County, Texas be assessed against the party incurring same for which let execution issue. SIGNED this the day of , 19 Judge presiding Approved: Ross T. Foster, Attorney for Defendant Frank Gilstrap Attorney for Plaintiffs 4