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Coppell Health-CN 890418 SMITH & UNDERWOOD A PROFESSIONAL ¢ORPOF~TION ATrORNEYS AND COUNSELORS AT LAW DALLAS. TEXAS 75240-4694 April 18, 1989 Fax (214) 954-3334 Mr. Lawrence W. Jackson, Esquire Sallinger, Nichols, Jackson, Kirk & Dillard 1800 Lincoln Plaza 500 N. Akard Dallas, Texas 75201 Re: Our File Number F0110105; Lake Level Agreement by and between the Metrocrest Hospital Authority the City of Coppell Dear Mr. Lawrence: Please find enclosed the referenced agreement perusal. Once you have had a chance to review this please get back to me with your comments. Thank you very much. Tincerely' TAMIII/mjj Enclosure cc: Mr. Charles B. Heath, President and Chief Executive Officer Metrocrest Hospital Authority Professional Plaza I, Suite 250 One Medical Parkway Farmers Branch, Texas 75234 (with enclosure) for your agreement, Mr. Lawrence W. April 18, 1989 Page 2 Jackson, Esquire Mr. Alan D. Ratliff City Manager City of Coppell P.O. Box 478 Coppell, Texas 75019 (with enclosure) Lake Level Aareement This Lake Level Agreement (referred to in this instrument as "Agreement"), is entered into effective as of April , 1989, for good, valuable and sufficient consideration had and received, by the Metrocreet Hospital Authority, a Texas statutory hospital authority and instrumentality of the State of Texas, created as per Article 4437e of the Texas Revised civil Statutes Annotated, as amended (referred to in this instrument as "Authority"), and the City of Coppell, a Texas municipal corporation and instrumentality of the State of Texas, created as per the Texas Local Government Code (referred to in this instrument as "City"). The recitations and factual statements in this instrument are not merely precatory; rather they form an integral part of this bargain, and the Consideration that underlies it. Each and every undertaking, covenant, term, provision, fact or recitation contained in this Agreement is material. The Authority and the City represent, warrant and covenant to each other that they, and each of them, have full right, power and authority to enter into this Agreement; that no term or provision of it contravenes any law, order, rule, regulation, or provision of any contract, or any constitutional or statutory provision, by which either of them are governed, or to which either of them are subject; as to the Authority, that the Board of Directors of the Authority has approved the execution of this Agreement by the necessary vote at a regularly held or specially called meeting at which a quorum was present, and with respect to which Article 6252-17 of the Texas Revised Civil Statutes Annotated, as amended was in all respects complied with (such resolution being attached to this instrument as Exhibit "A", and forming a part of it for all purposes, as though it were set out verbatim at this point in this instrument); and as to the City, that the City Council of the City has approved the execution of this Agreement by the necessary vote at a regularly held or specially called meeting at which a quorum was present, and with respect to which Article 6252-17 of the Texas Revised Civil Statutes Annotated, as amended was in all respects complied with (such ordinance being attached to this instrument as Exhibit "B", and forming a part of it for all purposes, as though it were set out verbatim at this point in this instrument). This instrument contains the entire agreement of the Authority and the City with respect to the within subject matter. This Agreement is binding upon and shall inure to the benefit of the respective successors and assigns of the Authority and the City. This Agreement, and each term of it shall run with, benefit and bind both the City Land (defined below) and the Authority Land (defined below). 15.05 F:\Jones%F0110105.ml 04.18.89 Lake Level Aqreement - Paqe 1 No third person, firm, corporation, partnership or any entity of any kind or character shall ever be deemed a third- party beneficiary of this contract, nor may any term or provision of it be construed so as to give rise to rights of any third party, or to obligations of any party signatory to this instrument to any such third party, other than the successors or assigns of the Authority who are the owner or owners of the Authority Land or any part of it or interest in it. The Authority is the owner in fee simple of certain described land in the City of Coppell, Dallas County, Texas, said description being attached to this instrument as Exhibit "C", and forming a part of it for all purposes, as though it were set out verbatim at this point in this instrument. The Authority is going to become the owner in fee simple of certain described land in the City of Coppell, Dallas County, Texas, said description being attached to this instrument as Exhibit "D", and forming a part of it for all purposes, as though it were set out verbatim at this point in this instrument (the land described in Exhibits "C" and "D" being together referred to in this instrument as the "Authority Land"). The Authority is going to construct and pay for a Lake, an aeration fountain pump, and a water line and meter for maintaining the level of the Lake, and associated landscaping and irrigation improvements (referred to in this instrument as the "Lake"), on the Authority Land, as shown on the Final Plat. As shown on the Final Plat, the Lake is being granted, conveyed and dedicated by the Authority to the City forever for the public use and benefit. The Final Plat shall be signed by the Authority and the City forthwith, and filed for record in the real property records in the offices of the Dallas County clerk and recorder. Upon recordation of the Final Plat, the City shall be the owner of the City Land, a description of same being attached to this instrument as Exhibit "C", and forming a part of it for all purposes, as though it were set out verbatim at this point in this instrument (referred to in this instrument as the "City Land"). From the date the Final Plat is recorded, and the City becomes the owner in fee of the City Land, and thereafter in perpetuity, the City shall maintain the Lake at its sole cost (except as set out below), so it remains in good order and repair. The maintenance obligations of the City with respect to the Lake includes (by way of example and not intending to exclude any similar or dissimilar example): 1. maintaining the landscaping improvements on the Lake in accordance with sound horticultural F:%Jones\FOll0105.ml 04.18.89 15.05 Lake Level Aqreement - Paqe ~ practice in the area, including irrigation and preservation of the flora in healthy condition (and periodic replacement of same as required); 2. maintaining all irrigation systems in good order and repair, so that they operate to aid in the automatic watering of the landscaping improvements on the Lake; 3. maintaining the aeration fountain pump in good order and repair, free of obstruction or other impediment to its normal function of maintaining proper Lake levels of oxygenation to prevent eutrophication; and 4. maintaining the level of the Lake at all times at five hundred and and /100tbs feet (5 __') above mean sea level, plus or minus feet (referred to in this instrument as the "Required Lake Level Range"). The maintenance obligations of the City with respect to the Lake are not merely covenants, the breach of which will lay the predicate for a cause of action for damages to lie; rather, they are specifically performable obligations. To the extent that a court of competent Jurisdiction, by final, non-appealable judgment, determines a particular obligation not to be performable specifically, then and only then the measure of damages to the Authority shall be the actual, invoiced cost of the performance of the needed item of maintenance, plus 10% as an administrative expense. In any such cause of action in which the Authority prevails, the Authority shall be entitled to recover its attorney fees and costs of suit from the City. If and to the extent that achievement of the Required Lake Level Range requires more than gallons of water per year to be supplied to the Lake through the water line and meter for maintaining the level of the Lake, during any two out of the three calendar years 1990, 1991 or 1992, then the City shall have the right to require that the Authority construct a water well and associated pumps and lines to assist the City in maintaining the Required Lake Level Range, at the sole cost of the Authority, and at no cost to the City (referred to in this instrument as the "Well"). If the Well is constructed by the Authority at the request of the City, the Authority shall turn the Well over to the City upon its completion, and its maintenance thereafter shall be the sole responsibility of the City, at its sole cost and at no cost to the Authority. The construction obligations of the Authority with respect to the Well are not merely covenants, the breach of which will lay the predicate for a cause of action for damages to lie; F:~Jones\F0110105.ml 04.18.89 15.05 Lake Level Aqreement - Paqe 3 rather, they are specifically performable obligations. To the extent that a court of competent jurisd~iction, by final, non- appealable judgment, determines a particular construction obligation not to be specifically performable, then and only then the measure of damages to the City shall be the actual, invoiced cost of the construction, plus 10% as an administrative expense. In any such cause of action in which the City prevails, the City shall be entitled to recover its attorney fees and costs of suit from the Authority. The City and the Authority so agree. Metrocrest Hospital Authority Attest: By: Max Raulins, Chairman of the Board Bob Hancock, Authority Secretary Approved as to form: Smith & Underwood, Authority Attorneys Thomas Allen Martin III, Esquire City of Coppell Attest: By: Mayor City Secretary F:~Jones~F0110105.ml 04.18.89 15.05 Lake Level Agreement - Page 4 Approved as to form: Sallinger, Nichols, Jackson, Kirk & Dillard, City Attorneys Lawrence W. Jackson, Esquire F:\Jones~F0110105.ml 04.18.89 15.05 Lake Level Aareement - Paqe 5