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Lake Park-CS 950824WISECO LAND DEVELOPMENT, INC., § IN THE DISTRICT COURT ' ' Plaintiff, § ., .~ :,~iC. ~ v. § DALLAS COUNTY. TEXAS CITY OF COPPELL, T~CA$, § Defendant. § DISTRICT PLAINTIFF'S_ORIGINAL PETITIc N For cause of action plaintiff alleges: 1. Plaintiff is a Texas corporation. 2. Defendant City of Coppell, Texas ("the City") is an incorporated city and gOV¢~fiztK~.~al nnit within th~ iva~ni~g and provi~iOl~ of tl~ Constitution of tho Stal~ of Texas and ~ Texas Oovcfmnm Code. Service of ~.oc~s may be nmomplMml on th~ City by serving Liada Grau, City ~, 255 Paflcway ~, Coffl~ll, Texas '- -- '- 3. Ti~ City is located in D~fll~ County, Texa~. Veat~ of tl~ civil profit ia D~II~ County, Text. 4. Heretofore, prior to g~pt~mber 1~0, tbe govemm~ of tl~ City ~ to be cre~ted th~ Copp~ll Municil~! Utility District 1~,'o. I ('Cop~il M.U.D.'). 1~4 tbe city abolished the COPl~ll M.U.D. ~ti ~ it~ contr~ obli~tiom ~d liabiliti~. 5. On ~ptember 30, 1990, Wilco ~ tl~ CoPl~ll M.U.D. tmd~ a conlr~ called the 'Project Agreer~nt', a copy of which is gl~ch~ h~r~to ~ Exhibit 'A cotpor~ted h~r~in by r~fer~n~. P!.AINTIFF'~ Olilf~INAI. PWI'ITION - Page 1 6. Wiseco has completed all of its required performance under the project Agreement. The City continues to fail and refuse to pay Wiseco the balance owed under the Project Agreement to Wiseco's damage in the amount of $159,276.62. 7. Wiseco is entitled to recover pre-judgment interest on this debt at the highest legal rate. 8. Wiseco is entitled to recover reasonable attorney's fees for all trials and appeals herein. 9. All conditions precedent to Wiseco's fight to recover have been satisfied or waived. For the foregoing reasons, plaintiff respectfully requests that defendant be cited to appear and answer herein, and that upon final hearing plaintiff recover judgment from defendant for its damages, interest, attorney's fees, costs and ~_ch other relief as tl~ BEN L. 11700000) MARTIN I. SWEENEY (# KASMIR & KRAGE, L.L.P. 2001 Br),sn Tow~', Suite 2700 Dallas, Texas 75201-3059 214--969-7500 Tclecop¥ No. 214-220-0230 ATTORNEYS FOR PLAINTIFF PI.AINTIFF'S ORIGINAl. PETITION - Page 2 Exhibit A STATE OF TEXAS § PROJECT AGREEMENT COUNTY OF DALLAS § This Agreement is entered into as of the 30th day of September, 1990, by and between COPPELL MUNICIPAL UTILITY DISTRICT NO. I (the "District") and WISECO LAND DEVELOPMENT CO., INC. (~he "Developer") for the purpose of providing the terms and conditions for the District to provide water, sewer and drainage facilities (the "Facilities") for the Developer~s 26.2 acre, more or less, residential development in the District designated as "Lake Park" (the "Project"). WITNB 8 S B TH: WHBRBAS, the Developer requested the District to enter into an agreement to provide the Facilities needed to serve the Pro~ect which is described in Exhibit A and shown on the map attached hereto and made'a, part hereof (the "Agreement Area"); and · WH~RBAS,.th~"Developer has submitted the required $5,000.00 deposit and engineering plans, specifications and cost estimatea. for the Facilities, and the District is willing to proceed with the requested hgreenent under and sub, eot to certain terns and conditions; MoW, THBRBFORB, in consideration of the mutual promis, es of the District and the Developer (collectively the "Parties") and the mutual benefits to be obtained, the adequacy of which is hereby acknowledged, the Parties hereby agree as follows-* 1. Upon approval of plans and sp~cifications for the Facilities, the District shall advertise for bids and award a contract, therefor, if the amount thereof is acceptable to the District and the Developer, upon receipt of an acceptable letter of credit from the Developer and Developer*s affidavit as specified in subsections (a) and (b}, supra, the District shall enter into a contract to construct the Facilities and take all necessary action to proceed 'with the construction and completion of the Facilities. The construction contract shall be bonded as to payment and performance and contain such other provisions as the District determines are necessary and/or appropriate for this matter. a. The letter of credit shall be issued by an entity and be of for~ and content acceptable to the District in its sole 1 discretion. The lette~ of credit shall be in an amount equal to 100% of the Total Costs and Develope~ts share of the costs of relocating the District's trunk sewer main, plus 20% thereof, be irrevocable for a term of the proposed construction contract plus ninety (90) days, provide for multiple draws with the amount of the letter of credit automatically reducing by the amount of each monthly payment made by Developer, and contain such other provisions as the District may reasonably require. b. The Developer shall submit an affidavit within thirty (30) days from the date hereof that has not rendered for 1990 and shall not hereafter render the property in the Agreement Area for ad valorem taxation based on any value other than market value, and that rollback taxes, if any, owed to the District because of previous valuations based on other than market value have been paid in full. 2. The Developer shall pay the "Total Costs" of providing Facilities to the Project and 52.63% of the Total Costs of the costs of constructing that portion of a new District trunk sewer main line withintheAgreement Area. Total Costs shall include all costs incurred by the District whether eligible and ineligible for reimbursement l/~reunder, including all costs incurred in the construction of F~Oi~lties (including change orders), and all costs incurred by ~he District for engineering services (including construction ~anage~ent, regulatory co~liance and inspeo~l~n. expenses), legal fees, advertising expenses and all other expenses, or the portion thereof, directly reZated to the Project. The District, in its sole discretion, shall detezline costs and expenses which are ineligible for reimbursement, which shall include but not be limited to constructing the aforesaid new trunk sewer main line, facilities of a size, type or cost not needed to serve the Project and fees and expenses in excess oft hose usually required which were caused by the Developer or due to matters peculiar to this particular Project. Total Costs shall be paid monthly by the Developer under the followin~, procedures: a. The Districtts engineers shall obtain a monthly pay request from the contractor, shall review the same, make any necessary changes and deduct retainage, add all non-construction costs, and remi~, the District's Request for Payment to the Developer not later than the 25th day of that month. The Request for Payment shall include the Total Costs due to the District for that pay period. ~he Developer shall remit the amount of the Request for Payment to be received by the D~strict on or before the 10th calendar day of the following month. The Developer's payment shall be drawn on a banking institut~on in Dallas County, Texas. If full payment is not received by the time specified, the District shall initiate proceedings to obtain payment thereof under the letter of credit above specified, and all future payments shall be obtained under the letter of credit. All additional costs 2 incurred by the District as a result of Developer's failure to make payment when due shall be an ineligibl~ Total Cost of the Project. b. upon completion of the Facilities contract, the engineer shall submit a final Total Costs for the Pro, eot and, unless payment is obtained under the letter of credit as provided in subsection a. above, the Developer shall within ten (10) days make the final payment due or if overpayment of the Total Costs has been made by the Developer, the District shall refund such overpayment. c. If within thirty (30) days from the date of expiration of the letter of credit the Facilities have not been completed and all payments made by the Developer, the Developer shall either'obtain an extension of the letter of credit or'submit a cash deposit for the amount estimated by the District to complete the work and pay all Total Costs. The failure to either submit the letter of credit or make the deposit shall be an event of default which shall render thisAgreement null and void. 3. Upon acceptance of the Facilities, receipt of all payments due b~ Developer and its compliance with all other provisions of t~t~ Agreement, the District shall issue its Commitment to pay the Developer, subject to the hereinafter specified conditions, an amount equal to 50% of the Total Costs%. less the cost of any ineligible Facilities, services or pe~altye provided that the eligible a~ount for drainage facilities is limited to $2,500.00 per acre of theAgreement Acre. B~acce~tance of the Commitment, the Developer is deemed to release any lien-or encumbrance it has or could assert on the Facilities, end to waive reimburse~ent or payment of any kind except any paymsnt whichmay be owed under the Commitment as its only recourse against the District. In addition to the sum specified in the Commitment, the District shall pay the Developer 7% simple interest on the original amount of the Commitment for a period not tb~xceed two (2) years. The Commitment shall be dated as of the date of acceptance of the Facilities by the District ~nd shall ex[.ire in four (4) years from its date. If payment under the Commitment has not been earned within four years, all rights of the Developer under the Commitment and thisAgreement are null and void. The Developer Lust earn the entire amount of the Commitment or forfeit the entire amount, provided that the .Developer may waive payment of interest. 4. Payment of'the Commitment by the District is subject to the following conditions: a. The Texas Water Commission ("TWC"), or its successor, must authorize the District to make such payment, and the Developer hereby agrees to be bound by the Commission~s 3 determination as to the amount of the Commitment to be paid to the Developer. Any portion of the Commitment which is not approved by the TWC shall be null and void. The District shall act in good faith to obtain TWC approval and shall promptly notify the Developer upon receipt of notification by the TWC that all or any portion of the Commitment is being disallowed. b. The amount of the Commitment approved by TWC is payable solely from the proceeds of bonds issued by the District for that purpose. -Upon TWC approval, the District shall promptly proceed in good faith to sell bonds with terms, conditions and maturities substantially the same as its outstanding bonds. The District shall deduct 50% (or the Developer's prorata share of 50% if more than one project is included in the bond sale) of its bond issuance costs, excluding capitalized interest, from the amount due to the Developer. c. The payment of any money under the Commit~ent is expressly subject to and contingent upon the Developer earning payment based upon an increase in the assessed valuation of all property within the Agreement Area over and above the assessed market valuation for 1990, to wit: $189,840 (the "Base Value"). When the assessed 'valuations in the Agreement Area, as certified by the Dallas C~tral Appraisal District (#DCADm) , have increased over the Base Vale&-to the extent that it is estiiated a tax rate of $0.15 per SG00 assessed valuation at 95% collections on property within the Agreement Area will a~ortize District bonds issued to. fund the Comit~ent, the District shall sub, it its Application to the TWC fo~ approval to issue its bonds for this purpose. Upon TWC approval, the District shall offer bonds for sale and sell the same when the bonds can .be amortized with a $0.15 tax rate at 95% collections. No partial payment will be paid on the Commitment and the Developer must earn the total amount due, save and except for the waiver of interest, or forfeit any payment under the Commitment. d. The District shall ascert&~.n increases in the assessed valuation of property in the Agreement Area from the Certified Appraisal Rolls provided to the District by .DCAD and shall annually review the same to determine if the Developer has qualified to receive payment under the Commitment. 5. The Devel. oper agrees to: (l) convey any required easements to the D~strict for the Fac~l~ties without charge, (ii) convey any easements to needed for any District facilities on land adjacent to the Project owned by Developer or any person or entity having an interest in the Project at the lower of the cost or market price thereof, (iii) convey any required sites for the Developer's actual cost plus accrued carrying costs, (iv) and 'pay .when due all taxes, fees and charges owed to the District. The failure to comply with the provisions of this Section are an event 4 of default which shall render this Agreement null and void as to Developer being entitled to any payment under thisAgreement o= the Commitment. The letter of credit shall' survive and remain in full force and effect and any payments due to District shall be obtained thereunder. 6. This Agreement is entered into by the District in reliance upon the representations of the Developer that it shall develop the land within the Agreement Area. Accordingly, this Agreement is null and void unless construction is commenced within one (1) year from the date hereof to reclaim the land from the 100 year floodplain, install all'utilities and drainage facilities, do all site improvements and install streets within the Project. The Developer shall submit satisfactory evidence prior to commencing construction.of utilities that the Agreement Area is not within the 100 year floodplain, that a FiRM map revision has been submitted to the City of Coppell and to applicable Federal agencies and that any necessary envirormental studies have been satisfactorily completed. The Developer hereby agrees to hold the District harmless from any and all clalls'of any kind or type pertaining to land in the Agreement Area which involve (i) prohibited environmental hazards or problems, (ii) reclamation of the land and (iii) flooding df. the land by storm waters. · that such home is within 400 feet of its District's DeForest Sewer Lift Station and thatthere~aybeadditional sound and odor levels as a result of the ho~e~s proximity to said Lift Station. Said notice shall also advise prospective purchasers of any other information requested by the District or required by laws applicable to the District. 8. In addition to all other requirements terms and condit~ons of th~sAgreement, the Developer shall and hereby agrees to: (a) pay any rollback taxes due to District on that part of the Agreement Area which was in the District prior to the District's annexation of a portion of the ProJect~ (b) pay 52.63% of the District~s Total CoSts of constructing a new trunk sewer ma~n line from the western portion of the Agreement Area to said DeForest Sewer Lift Station. Upon completion thereof, the District shall abandon its existing trunk sewer main line and release any easement therefor within the Agreement Area. Said line shall be installed prior to paving any street in whichsaid line shall be located~'and (c) construct in accordance with plans and specifications, and the proposed contract, approved by the District a masonry retaining 5 wall, with gate, around the District~s DeForest Sewer Lift Station and provide necessary gravel for the entrance road to and for said site. The District shall pay the prorata share of the cost of the east side of said retaining wall upon completion and acceptance thereof All said improvements shall be conveyed free of lien or encumbrance to the District. The District shall within thirty (30) days from the date hereof refund $1,397.70 to the Developer for taxes paid to the District on that portion of the Agreement Area which was not within the District, and the Developer accepts said amount as the agreed amount due and shall hold the District harmless from any claims against the District for refund of said taxes. 9. In the event of any default hereunder, except for non- payment of taxes, charges or fees when due, the District shall give the Developer notice thereof and the Developer shall have ten (10) days in which to cure the default. No notice by the District of delinquent payment of taxes, charges and fees owed by theDeveloper is required or necessary. In .case of notice of default or any other notice required or given hereunder, the notice shall be sent to the following address until notice of change thereof is given= TOT HE DISTRICT~ TOT HE DEV~LOP~I~: 8300 Douglas, 8ui~-800 1331 Maxwell Road Dallas, TX 75225 Hasler, TX 76052 At,n: Nr.-Paul W. Ph¥ Attn: Mr. Tomuy wise 10. 'ao~hing in this Agreement,. express or implied, is intended or shall be construed to confer on any person or entity other than the Parties, any right, remedy, or claim, legal or equitable, under or by reason of this Agreement. This Agreement is for the sole and exclusive benefit of the Parties. This Agreement shall be binding on and inure to the benefit of the Parties and no assignment of any rights hereunder shall be effective without the prior approval of ~h0 other Party, except transfers effected by operation of law. Provided, however, that Developer may designate any other party to receive payment of the amount due under th~ Comuitmen~ :~ut such designated party shall have no rights under the Agreement or the Cemuit except to receive any funds paid. 11. The District and the Developer each hereby represent that they have the legal authority to enter into this Agreement, and have taken al! necessary action for this Agreement to be binding upon them according to its terns. The Developer further represents to the District that it is the legal owner of the Agreement Area and acknowledges that the District has made no representations that the 'Developer can or will earn payment of the Connitm~nt. Developer further acknowledges that it understands the provisions of this Agreement and has freely entered into this Agreement with 8 full appreciation of the costs and risks under the terms and conditions hereof. IN WITNESS WHEREOF, this Agreement has been duly executed in multiple copies, any one of which shall constitute an original, by the duly authorized officers of each Party hereto, and said officers by their signatures hereon affirm their authority to so act for and on behalf of the Party indicated, as of the date above first written. COPPELLMUNICIPAL UTILITY DISTRICT NO. I Attest: Secretary, ..Board of Directors P~s~dent, Board of Directors WISECO LAND DEVELOPMENT CO., INC · (seal) ' · - / · · Tommy C. ~se, President 7