ST9502-CN 960227 (2)AGENDA REQUEST FORM
CITY COUNCIL MEETING: February 27, 1996
ITEM CAPTION:
ITEM #
Consideration and approval of a Public Road Escrow Agreement between the Parks of Coppell Trust
and the City of Coppell and authorizing the Mayor to sign.
SUBMITtED BY: Kenneth M. Griffin, P.E.
TITLE: Assistant City Manager/City Engineer INITIALS ~
STAFF COMMENTS:
This agreement is very similar in nature to the East-West Agreement approved by City Council on
November 14, 1995. This agreement provides for the sharing of various cost associated with the
construction of Town Center Blvd. by the City of Coppell and the Parks of Coppell Trust. The
Parks of Coppell Trust is contributing approximately fifty percent on the paving, storm sewer and
water facilities located within the right-of-way limits of Town Center Blvd. This equates to an actual
cost to the Parks of Coppell of $116,906.95 for the water, sewer and drainage. In addition to that
there are additional dollars set aside for offsetting engineering cost and landscaping.
STAFF RECOMMENDATION Approval X Denial
EXPLANATION:
Staff recommends approval of the agreement and will be available to answer any questions at the
Council meeting.
BUDGET AMT. $
FINANCIAL COMMENTS .'~
FINANCIAL REVIE~
Agenda Request Form - Revised 1/94
AMT. EST.$ +/- BUD:$
CITY MANAGER REVIEW:
Document Name eng.01
NORTH SPINE ROAD ESCROW AGREEMENT
This North Spine Road EscrowAgreement ("EscrowAgreement,,) is
made and entered into as of the__day of 1996, by
and among The Parks of Coppell Trust, a Texas trust, acting by and
through its sole Trustee, The A P of C VI Exchange Trust, a Texas
trust, acting by and through its sole Trustee, and The H P of C VI
Exchange Trust, a Texas trust, acting by and through its sole
Trustee (all of the foregoing trusts collectively, the "Trust"),
the City of Coppell, Texas, a municipal corporation, acting by and
through its duly authorized City Manager, and Jay S. Turner, P.C.
("Escrow Agent"), a Texas professional corporation, acting by and
through its duly authorized officer.
WITNESSETH:
Recitals
A. On the date hereof, the Trust and the City have entered
into that certain Construction Supervision Agreement (herein so
called) which, among other things, provides for the escrow of funds
by the Trust and the City with Escrow Agent in connection with the
construction of the North Spine Road.
B. All capitalized terms used but not defined in this Escrow
Agreement shall have the meanings ascribed to such terms in the
Construction Supervision Agreement all of which are hereby
incorporated herein by reference for all purposes.
C. This Escrow Agreement is the North Spine Road Escrow
Agreement referred to in the Construction Supervision Agreement and
is being entered into by the Trust, the City and Escrow Agent to
satisfy the terms and conditions contained in the Construction
Supervision Agreement regarding the escrow of funds with Escrow
Agent by the Trust and the City in connection with the construction
of the North Spine Road.
NOW, THEREFORE, for and in consideration of the premises and
of the agreements contained herein, the Trust, the City and Escrow
Agent hereby agree as follows:
1. Concurrently herewith, the Trust has deposited with
Escrow Agent the sum of $133,336.30, which is the Trust's agreed
upon portion of the North Spine Road Approved Costs, and the City
has deposited with Escrow Agent the sum of $310,877.95, which is
the City's agreed upon portion of the North Spine Road Approved
Costs (the total of $442,214.25 deposited with Escrow Agent by the
Trust and the City, the "Escrowed Funds").
2. EscrowAgent shall invest the Escrowed Funds from time to
time in accordance with written instructions from the Trust and the
City in certificates of deposit, savings accounts or money market
funds. If the Trust and the City cannot agree on any investment of
the Escrowed Funds, the Escrowed Funds shall be placed in savings
account(s) in bank(s) or savings and loan company(s) selected by
Escrow Agent. All accounts in which Escrow Agent holds all or
portions of the Escrowed Funds shall be insured by the Federal
Deposit Insurance Corporation. All interest earned with respect to
the Escrowed Funds shall become part of the Escrowed Funds.
3. The Escrowed Funds shall be disbursed by Escrow Agent to
the City from time to time upon delivery to Escrow Agent by the
City of Request(s) for Escrow Disbursement in the form attached
hereto as Schedule 1. Each Request for Escrow Disbursement shall
have all blank spaces completed, shall be dated, shall be executed
by a duly authorized representative of the City and shall have
Annexes A and B attached. At the time each Request for Escrow
Disbursement is delivered to Escrow Agent, a true, correct and
complete copy of such Request for Escrow Disbursement shall be
delivered to the Trust, together with Annexes A and B attached
thereto. The Trust shall have the right, at any time within seven
calendar days after receipt of each such request, to give written
notice to the City and to Escrow Agent prohibiting the disbursement
of the funds requested if (i) the work performed or material
supplied for which the disbursement is requested has not been
completed, or (ii) the Request for Escrow Disbursement or anyAnnex
attached thereto contains omissions or errors of a material nature.
Any such notice from the Trust to the City and Escrow Agent shall
set forth in detail the reasons for the Trust's objection to the
requested disbursement of the Escrowed Funds. If the Trust does
not object to any requested disbursement within seven calendar days
after receipt of the applicable Request for Escrow Disbursement,
Escrow Agent shall issue a check from the Escrowed Funds payable to
the order of the City in the amount requested in the applicable
Request for Escrow Disbursement. If the Trust objects to any
requested disbursement within seven calendar days after the Trust's
receipt of the applicable Request for Escrow Disbursement, the City
shall undertake to satisfy the Trust's objections and resubmit to
the Trust and to Escrow Agent a corrected Request for Escrow
Disbursement. If the Trust does not object to any corrected
Request for Escrow Disbursement within seven calendar days after
the Trust's receipt of such corrected Request for Escrow
Disbursement, Escrow Agent shall issue a check from the Escrowed
Funds payable to the order of the City in the amount requested in
such corrected Request for Escrow Disbursement. Escrow Agent
promptly shall deliver to the Trust copies of Escrow Agent's
check(s) issued to the City in payment of such requested amounts.
4. This Escrow Agreement shall terminate and be null and
void upon the happening of any one of the following events, and
thereupon 30% of any remainder of the Escrowed Funds promptly shall
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be disbursed by Escrow Agent to the Trust and 70% of any remainder
of the Escrowed Funds promptly shall be disbursed by Escrow Agent
to the City: (i) upon the mutual written instructions of the Trust
and the City; or (ii) upon the delivery by the City to Escrow Agent
of a certificate certifying that the North Spine Road has been
completed, that all of the costs to construct the same have been
paid and that the City does not intend to request any further
disbursements pursuant to paragraph 3 of this Escrow Agreement.
5. The following provisions shall control with respect to
the rights, duties, liabilities, privileges and immunities of
Escrow Agent:
(a) Escrow Agent is not a party to, and is not bound by,
the Construction Supervision Agreement or any other agreement
out of which this. escrow may arise.
(b) EscrowAgent shall act hereunder as a depository and
disbursing agent only, and Escrow Agent shall not be liable
for anything which Escrow Agent may do or refrain from doing
in connection herewith except for Escrow Agent's own gross
negligence or willful misconduct. Under no circumstances
shall Escrow Agent be responsible for the genuineness,
validity, legality or negotiability of any instruments
constituting the subject matter of this Escrow Agreement nor
shall Escrow Agent be charged with notice of the contents of
any instrument or document deposited hereunder nor shall the
terms thereof be considered to be adopted in whole or in part
by Escrow Agent.
(c) Escrow Agent shall be protected in acting upon any
written notice, request, waiver, consent, certificate,
receipt, authorization, power of attorney or other paper or
document which Escrow Agent in good faith believes to be
genuine and what it purports to be.
(d) Escrow Agent may advise with legal counsel in the
event of any dispute or question with respect to any of the
provisions hereof or Escrow Agent's duties hereunder, and
Escrow Agent shall incur no liability and shall be fully
protected in acting in accordance with the opinion and
instructions of such counsel.
(e) In the event of any disagreement between any of the
parties to this Escrow Agreement resulting in conflicting
claims or demands being made in connection with this Escrow
Agreement, or in the event that Escrow Agent, in good faith,
is in doubt as to what action Escrow Agent should take
hereunder, Escrow Agent may, at Escrow Agent's option, refuse
to comply with any claims or demands on EscrowAgent or refuse
to take any other action hereunder, so long as such
disagreement continues or such doubt exists, and in any such
event, Escrow Agent shall not be or become liable in any way
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or to any party for Escrow Agent's failure or refusal to act,
and Escrow Agent shall be entitled to continue to so refrain
from acting until (i) the rights of all parties shall have
been fully and finally adjudicated by a court of competent
jurisdiction, or (ii) all differences shall have been adjusted
and all doubts resolved by agreement between the Trust and the
City, and Escrow Agent shall have been notified thereof in
writing signed by the Trust and the City. In this regard,
should any controversy arise pertaining to the ownership or
right to receive the Escrowed Funds, Escrow Agent shall have
the right to institute a Bill of Interpleader in any court of
competent jurisdiction to determine the rights of any parties
claiming an interest therein. EscrowAgent shall have a prior
lien upon the Escrowed Funds for all reasonable expenses,
charges and attorneys' fees incurred by Escrow Agent incident
to any Bill of Interpleader. The rights of Escrow Agent under
this paragraph are cumulative of all other rights which Escrow
Agent may have by law or otherwise.
(f) Except for any expenses, charges or attorneys' fees
incurred by Escrow Agent in connection with any Bill of
Interpleader, Escrow Agent shall not make any charge for
Escrow Agent's services pursuant to this Escrow Agreement.
(g) Jay S. Turner, P.C. shall have the right to resign
as Escrow Agent hereunder at any time by giving 30 calendar
days prior written notice of such resignation to the Trust and
to the City. In the event that Jay S. Turner, P.C. shall at
any time fail or refuse to serve or shall resign' as Escrow
Agent hereunder, or if either the Trust or the City shall at
any time elect by written notice to the other party to remove
Jay S. Turner, P.C. as Escrow Agent hereunder, then the Trust
shall have the right to designate a successor Escrow Agent,
subject to the prior written approval of the City, which
approval shall not be unreasonably withheld. If any successor
EscrowAgent hereunder shall at any time fail or refuse to act
as EscrowAgent, or shall be removed by either party hereto in
accordance with the provisions hereof, then a further
successor shall be selected by the Trust, subject to the prior
written approval of the City, as aforesaid.
6. Any notice or demand required to be given or to be served
upon any party hereunder must be in writing, may be delivered by
certified mail, return receipt requested, and shall be deemed to
have been given and received when a certified letter, return
receipt requested, containing such notice or demand, properly
addressed, with postage prepaid, is deposited in the United States
mail. If given otherwise than by certified mail, return receipt
requested, a notice or demand shall be deemed to have been given
when delivered to or received by the party to whom addressed. Such
notices or demands shall be given to the parties hereto at the
following addresses:
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If to the Trust:
The Parks of Coppell Trust
The A P of C VI Exchange Trust
The H P of C VI Exchange Trust
12221 Merit Drive, Suite 1750
Dallas, Texas 75251-2252
Attn: Harry M. Hargrave
If to the City:
City of Coppell, Texas
255 Parkway Boulevard
Coppell, Texas 75019
Attn: Jim Witt, City Manager
If to Escrow Agent:
Jay S. Turner, P.C.
598 Denton Tap Road, Suite 106
Coppell, Texas 75019
Attn: Jay S. Turner, President
Any party hereto may at any time, by giving written notice by
certified mail, return receipt requested, to the other parties
hereto, designate any other address in substitution of the
foregoing address to which such notices or demands shall be given.
7. This EscrowAgreement shall be binding'upon and inure to
the benefit of the parties hereto and their respective successors
and assigns; provided, however, that in no event shall Escrow Agent
be obligated to deal with any party with respect to this Escrow
Agreement other than the Trust and the City.
EXECUTED as of the day and year first above written.
TRUST:
The Parks of Coppell Trust
By
Harry M. Hargrave,
Trustee
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The A P of C VI Exchange Trust
By
Jay S. Turner, P.C.,
Trustee
By ~n~~
The H P of C VI Exchange Trust
By
Jay S. Turner, P.C.,
Trustee
By
~r'esident
CITY:
City of ppell, Texas
B ~
;~ m W; ~, Tom Morton,
City Ma~a~z Mayor
ESCROW AGENT:
Jay S. Turner, P.C.
By
~reSiaentrner'
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Schedule 1
REOUEST FOR ESCROW DISBURSEMENT
Jay S. Turner, P.C.
598 Denton Tap Road, Suite 106
Coppell, Texas 75019
Attn: Jay S. Turner,
President
1. Pursuant to that certain North Spine Road Escrow
Agreement (the "Escrow Agreement"), dated , 1996, among
The Parks of Coppell Trust, The A P of C VI Exchange Trust,
The H P of C VI Exchange Trust (collectively, the "Trust"), the
City of Coppell, Texas (the "City") and Jay S. Turner, P.C.
("Escrow Agent"), the City hereby requests a disbursement from the
Escrowed Funds (herein so called) held pursuant to the Escrow
Agreement in the amount of $ to pay the costs of labor
and materials incurred in connection with the construction of the
North Spine Road.
2. As Annex A, the City has provided herewith: (i) itemized
statements, bills or invoices for labor and materials utilized in
connection with the construction of the North Spine Road, in
support of the disbursement requested in paragraph 1 of this
Request for Escrow Disbursement; and (ii) lien waivers or releases
covering labor or materials funded by any preceding disbursement
under the Escrow Agreement.
3. The City has provided herewith, as Annex B, a certificate
executed by Ken Griffin, City Engineer and Assistant City Manager,
which sets forth: (i) the portion of the North Spine Road that has
been completed; (ii) a statement that the labor and materials
covered by this Request for Escrow Disbursement have been performed
and/or are in place; and (iii) the aggregate amount of
disbursements from the Escrowed Funds that have been advanced to
the City to date.
4. The City hereby certifies that: (i) to the best of the
City'S knowledge, the statements made in this Request for Escrow
Disbursement and any documents submitted herewith and identified
herein are true, correct and complete in all material respects; and
(ii) all previous disbursements under the Escrow Agreement have
been applied in payment of the obligations set forth in any prior
Request for Escrow Disbursement delivered to Escrow Agent.
5. Concurrently herewith, the City has delivered to the
Trust a true and correct copy of this Request for Escrow
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Disbursement together withAnnexes A and B attached hereto. Unless
Escrow Agent receives written objection from the Trust to the
disbursement requested hereby within seven calendar days after the
Trust's receipt hereof, in accordance with paragraph 3 of the
Escrow Agreement, Escrow Agent is instructed to disburse to the
City the total amount set forth in paragraph 1 of this Request for
Escrow Disbursement.
DATED: '~/[x{~/, ? , 1996.
CITY OF COPPELL, TEXAS
Name Tom Morton
Title Mayo~
cc:
The Parks of Coppell Trust
The A P of C VI Exchange Trust
The H P of C VI Exchange Trust
12221 Merit Drive, Suite 1750
Dallas, Texas 75251-2252
Attn: Harry M. Hargrave
RMD/449041.0'2/D
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