Coppell Health-CN 890206SALLINGER, NICHOLS, JACKSON,
KIRK & DILLARD
(Formerly Saner, Jack, Sallinger & Nichols)
Attorneys & Counselors at Law
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
(214) 954-3333
Facsimile (214) 954-3334
February 6, 1989
Mr. Jack C. Bailey, President
Metrocrest Hospital Authority
Professional Plaza 1, Suite 200
One Medical Parkway
Farmers Branch, Texas 75234
Re: Metrocrest Hospital Authority Agreement
Dear Mr. Bailey:
This letter is to summarize the meeting of February 3, 1989, between yourself,
Metrocrest attorney Mr. Thomas Martin, Kevin Peiffer, Steve Goram, Russell Doyle,
and myself, concerning the Maintenance Agreement proposed by Metrocrest in connection
with the hospital development in Town Center.
It is my opinion that as a result of this meeting, we came to the conclusion that
the Metrocrest Hospital Authority ("Authority") is going to construct and pay for a
road, and associated roadbed and right-of-way utilities, and associated landscaping and
irrigation improvements on land to be owned by the Authority which will be shown on
the final plat of the Authority land. That the Authority is also going to construct and
pay for the lake and associated landscaping and irrigation improvements as shown on
the final plat. That both the lake and the roadway will be constructed in accordance
with construction plans approved by the city.
On completion of the roadway and upon a determination by the City Council of
the City of Coppell that the roadway has been constructed in accordance with the
approved plans and specifications, the roadway shall be dedicated to the city as a
public roadway, and thereafter managed and maintained by the city in the same way
that it manages and maintains its other public roadways. Contractor shall have executed
the usual one year maintenance bond.
That upon completion of the lake and upon a determination by the City Council
of the City of Coppell that it has been constructed in accordance with the approved
plans and specifications, the lake property shall be dedicated to the city, thereafter to
be managed and maintained by the city as it manages and maintains other lake properties
under its jurisdiction. Contractor to have executed the usual one year maintenance bond.
At this meeting, we discussed the fact that in December of 1982, the City Council
of the City of Coppell entered into an agreement with Parks Coppell Joint Venture II,
the prospective grantor to the Authority. That this agreement, which attempted to
ensure by contractual arrangement the quality of the do,'elopment within the Town
Mr. Jack C. Bailey, President
Metrocrest Hospital Authority
Page 2
February 6, 1989
Center area, was entered into prior to the adoption of many of the City of Coppel]'s
present ordinances, streetscape, and landscape regulations. That notwithstanding any
of the provisions in said agreement, the Authority will, in regard to its property, comply
with exist}ng city ordinances, streetscape, and landscape regulations as the same are
imposed throughout the city and in particular within the Town Center area. That this
would include the obligation of the Authority to maintain its property from the property
line to the curb line on adjacent streets.
At this meeting you reviewed with us the fact that Metrocrest Hospital Authority
feels that it is essential to its development that the lake and roadways be maintained
as quality public facilities. That the Authority realizes that after dedication and
acceptance it shall have no further legal recourse to ensure quality maintenance of
these facilities, but, it will rely upon the good judgment of the present Council and
future Councils of the City of Coppell to maintain a high degree of quality within the
area.
Please let me know if I have left out any matter that we covered at this meeting.
Very truly yours,
SALLINGER, NICHOLS, JACKSON,
KIRK & DILLARD
LWJ/wp
CC:
Mr. Kevin Peiffer
Ginn, Inc.
17103 Preston Road
Suite 100, LB 118
Dallas, Texas 75248
Lawrence ~/~ackson
Mr. Alan D. Ratliff
City Manager
City of Coppell
P. O. Box 478
Coppell, Texas 75019
Mr. Steve Goram
Director of Public Works
City of Coppell
P. O. Box 478
Coppell, Texas 75019
Mr. Thomas Martin
Attorney at Law
Tenth Floor Alpha Tower
5757 Alpha Road
Dallas, Texas 75240
Mr. Russell Doyle, P.E.
City Engineer
City of Coppell
P. O. Box 478
Coppell, Texas 75019
SALLINGER, NICHOLS, JACKSON,
KIRK & DILLARD
(Formerly Saner, Jack, Sa[linger & Nichols)
Attorneys & Counselors at Law
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
(214) 954-3333
Facsimile (214) 954-3334
TO:
Mr. Alan Ratliff, City Manager
City of Coppell
P. O . Box 478
Coppel], Texas 75019
CITY MANAGER
LETTER OF TRANSMITTAL
DATE: January 19, 1989
OUR FILE NO: 340
RE: Metrocrest Hospital Lake Agreement
WE ARE SENDING YOU ATTACHED THE FOLLOWING:
Fax Cover Letter and Draft of Agreement
REMARKS:
The proposed agreement imposes a greater burden on the City of Coppell than
merely accepting libility for the lake. I would like to suggest that we try to get them
to agree that we will accept dedication of the road and thereafter treat it as we would
any other public road. We could agree that we would not impose any additional costs
on the Association. As to the lake I would suggest that we try to get a provision that
we will accept dedication of the lake as a part of our regular park system, but, not
agree to maintain the lake for ever. What about a counter provision that would provide
that if the lake becomes a safety or health problem and the City has to discontinue
the lake the property would be maintained as a park area. I just don't see how we
can agree to maintain the lake i~ perpetuity with out some escape mechanism in the
event the lake becomes a health or safety problem or the cost of maintenance becomes
unrealistic.
I would like to get your thoughts and the input from C0uneilman Morton and the
other council members before suggesting specific changes. I don't want to do anything
to quash the deal. ~ ~ ' ~,
' Lawrence W~ Jackson
55NT' ~y:,~MITH I_INDE~b)OOD HIJNTE~; 1-19-~9 ~: 19PM ; ~146615~91-9214_ 954 ~4 ;~ I
01.19.89 1§.16
Fax Cover
Thomas Allen Martin III
Sender Fax:
661-5689, 661-5691 & 953-5402
Lawrence W. Jackson
Receiver Fax=
991-3334
Nc. Pages
(Incl. Cover):
5
Message:
Lawrence, I represent the Metrocres= Hospital
Authority. I have drafted the Maintenance
Agreement which follows for your p~rusal. My
client has not seen it, ~nd may want ch&nges.
But I wanted tO get this to you at the same
time as I faxed it to my client, to expedite
things. As always, I look fo=ward ~o wor~£ng
with you= firm.
Maln~Cenmnce ~areament
This Maintenance Agreement (referred to in this instrument
as "Agreement"), is entered into effective as of
January 19, 1989, for good, valuable and sufficient consideration
has and received, by the Metrocrest 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 instra~n~
"Authority"), and the City of Coppell, a Texas mun}c~pa~
corporation and instrumentality of the State of TePee,
~er the Texas Local Government Code (referred to
xnstrument as "City"). The recitations and factual statements in
this instrument ere not merely precatory~ rather they form an
integral part cf this bargain, and the consideration that
underlies it. Each and every undertaking, covenant, term,
provision, ~act. 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~ ~hat no ~erm 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~ a~ to the Au~hority, 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 Artio~ 6252-17 w~ .the Texas Revised Civil Statutes
Annotated, amended ~n 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 ware ~et 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 A=raament by the necessary vote at a ra~Alarly held or
special~=~ called meeting at which a q~orum was present, and with
respect to which Article 6252-17 of the Texas Revised Civil
Statutes Annotated, aa 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 astir9 agree~..,ent_ cf._the
Authority and the City with respect ~o..~h~ wxthi~ s,.u~j~cc m~e~
This Agreement is bindin~ upon and snaxA xnura =o =ne oenezm~ ~z
the respective successors and assigns of the Authority and ,the
city,. This ~greement, and each term of it shall run wxth,
benefxt and bxnd both the city Land (defined below) and ~he
Authority Land (defined below).
d:\et(ent\fOllO10$.ml 01.19.89 15.03
SENT'BY:~MITH UNDERWOOD HUNTER; 1-19-69 ~:21PM ; 2146615891~2i4 954 ~G4 ;~ ~
NO o~hirdf person, fir~, co~poration, partnership or ,any
entity any kind or character shall ever be deemed a third-
party beneficiary of ~his contract, nor may any term or provision
of it be construed so as to give rise to rights of any third
percy, or to obligations of any par~y signatory to this
instrument to any s~oh third party~ other than the successors or
assigns of the Authority who ara 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 Coppe11, Dallas COunty, Texas, said
description being attached to this in~trumsnt as Exhibit "C", and
forming a par~ of it for all purposes, as though it were set out
verbatim at ~his point in this instrument.
The Authority ie going to become the owner in fee simple of
certain described land in the City of Copp~ll, Dallas County,
Texas, said description being attached ~o~ this instrument as
Exhibit "D", an~ forming a par% 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~o
in this instrument as the "Authority Land">.-~--- ~ --~
The AUthority iS qoing to construct and pay for a road, and
a~eooiated roadbed and right-of-way utilities, and associated
landecapinq and irrigation improvements (referred to in thi~
instrument as the "~oad"), on the Authority ?-nd, as ahow~ on the
final plat of the Authority Land approved by the City (referred
to in this instrument as the "Final Plat"). The Authority ia
also going to COnstruct eno pay for a lake, and as~ociate~~
.andscaping and irrigation improvements (referred to ~n this ~
strument aa the "Lake"), on the Authority Land, aa shown on t~.e
hal Plat. As shown on the ~lnal Plat, the Road and the Laxe
being granted, conveyed an~ dedicated by the Authority to the
forever for the public usa and benefit.
~ shall be signed by the Authority and the City~ A~
1, shall not be filed fg~record until cump~etion_n~.(~
con.tr~ction of th. Road and the ~%--~m~t~~f '~
conet~uction of the Road and the Lake,~he~~Final Plat shall be--~' ~
filed for record in the real proper~y records in ~a offices o~
the Dallas County clerk and recorder. Upon recoz~ation of the
Final Pla~, the City shall be the owner of the city Land, a
description of same being a~tached to this instrument aa Exhibit
"C", and forming a part of it for all purposes, as though it were
sst out verbatim at this point in this instrument (referred to in
this instz~ment as ~he "City Land").
From the date the Final Plat is recorded, and the City
~the owner in fee of the city Land, and thereafter in
sole coat, so ~/~at they remain in good order and repair. The
maintenance obligations of the city with respect to the City Land
includes (by way of example end not intending to exclude any
similar or dissimilar example)
:
1. maintaining the landscaping improvements on
the city Land in accordance with sound hor~.cultura~
practice in the area, including irrigaczon ana
preservation of ~he flora in healthy condition (and
periodic replacement of sams as re~uired)~
2. m~intaining the Road in good order and
repair, free of debris, potholes, crack~ and heaves~
3. maintaining all irrigation systems in good
order and repair, so that they operate to aid in the
automatic watering cf the landscaping improvements on
the City Land~ .
4. maintaining the storm sewer, sanztary sewer
and water systems in good order and repair, free of
obstruction, buckling, breakage or other impediment to
their respe~tive normal utility functions of carrying
away sewerage and drainage and supplying clean drinking
water to the standard of an approved public water
supply~ and
5. maintaining the level of the Lake at all
mss at five hundred and and
/100ths feet (5 ') above mean sea
iavel, plus or minus one-half foot (0.5').
The maintenance obligations of the City with respect to the
Land 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 exigent
that a cour~ 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 cf
the performance of the needed item of maintenance, plus 10% aa an
a~mlnistrative ewpense. In any such cause of action in which the
Authority prevails, the Authority shall be entitled ~o recover
its attorney fees and costs of suit from the City.
d:\cttent\fO110105.al 01.19.89 15.03
The City and the Authority ac agree.
SENT BY:SMITH UNDERWDOD HUNTER; 1-19-89 ~:22PM ; 2146615691~214~ 954 GG~4 ;~ 5
Metrocrest HosDital Authority
AtteBt:
chairman of t~e ~oard
AuthOrity Seoretary
Approved ~s to form:
Authority Attorney
City of Coppell
Attest:
Mayor
city Secretary
Approved as to ~orm:
City"Attorney
01.19,89 15.03