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DR9303-CS 970531 '~'f ~..~.r "2 ~ .L _l l/.-.L -"" ' '"" '"- ' Mr. Kenneth M. Griffin . A~t. City Manager / City Engineer Ci~' of Coppell P.O Box 478 Coppell, TX. 75019 ~: Drainage and E~crow Agreement - Austin pla~e Dear Mr. Griffin: Upon the sale of the Austin Place property to Standard Pacific (Purchaser) from Barbara Austin (Seller), the Purchaser assumed the right and obligation of the Seller regarding the drainage improvements proposed and since constructed along Moore Rd. The said assumption was documented between Purchaser and Seller through a Deed of Trust, with a release to be filed upon satisfactory completion of the drainage improvements to Moore Rd. Please acknowledge below that the improvements as described in the Drainage and Escrow Agreement dated June 10, 1994 (and attached to this letter) has been completed and the owner has no further obligations. Sincerely, .Michael Brady f President ~ Standard Pacific of Dallas/Austin Acknowledg~)?nd~greedthisthe~] day of ~A.-d1997./ By: CiO' of Coppell 5525 .x. lacAr;i~cr B~ulcvard · Suite 5,g0 · I.~.-ing, Texas · 75038 · (214'~ 550-0426 · (214) 550-7591 DRAINAGE AND ESCROW AGREEMENT STATE OF TEXAS § § COUNTY OF DALLAS § This agreement is made and entered into, by and between the City of Coppell, Texas, a home rule city and municipal corporation of Texas (hereinafter referred to as "the CITY") and Barbara Austin (hereinafter referred to as "the OWNER"). WHEREAS, Barbara Austin ("OWNER") desires to develop real property at the intersection of Moore Road and Sandy Lake Road, Tract 2, Abstract 638, S. M. Hiatt Survey, City. of Coppell, Dallas County, Texas, and being more particularly described in Exhibit "A" attached hereto and incorporated herein by reference ("PROPERTY"); and WHEREAS, a dispute exists between the CITY and the OWNER regarding the existence and cause of certain drainage damage to the property described in Exhibit "A", and generally described by the OWNER to be the result of the development of downstream property and the rerouting of some drainage areas, and with respect to the rights and liabilities of the parties in regard to the cause and remediation of said drainage problem, hereinafter referred to as the "DISPUTE"; and WHEREAS, the CITY and the OWNER understand and agree that the claims asserted between them are doubtful and in dispute, and have settled such disputes by compromise to avoid litigation and buy peace; NOW, THEREFORE, in consideration of the premises and mutual promises and" covenants herein contained, and for Ten Dollars ($10.00) and other valuable consideration, the receipt and sufficiency Of which is hereby acknowledged, the CITY and OWNER agree as follows: 1. Except with respect to the performance of the CITY's obligations hereunder, the OV~ER compromises and settles, releases and discharges the CITY, its officers, agents and employees from any and all liability for any claims for damages, on or to the PROPERTY described in Exhibit "A', referenced above ("PROPERTY") including those which may hereafter develop as well as those now apparent, and also releases and discharges the CITY, its officers, agents and employees, and its successors, of and from all suits, actions, causes of action and claims for damages which the OWNER now or hereafter may or might have arising out of or because of the DISPUTE, and OWNER hereby acknowledges full satisfaction of all such liabilities and causes of action. DRAINAOI! AND ESCROW AGRF=E`ME, NT - PAGE. 2. The CITY agrees to design and take full responsibility for the adequacy of the drainage solution for the property. The drainage solution generally is described as involving approximately 1350 linear feet of 66" RCP, 170' of 6 X 4 box culvert, the addition of a 48" RCP beneath Moore Road and the construction of various inlets and manholes to accommodate the drainage coming south of Sandy Lake down Moore Road in the CITY of Coppell, Tcxas. The drainage solution is also known as the Moore Road Drainage Project DR 93-03, and is attached hereto and incorporated herein by reference as Exhibit "B" (hereinafter referred to as "the PROJECT'). 3. The CITY and OWNER agree that the cost of the PROJ'EC"F shall be paid as follows: a. The CITY pays $130,000.00 of total PROJECT cost. b. The OWNER pays balance of total PROJEC'F cost. 4. The CITY shall design, advertise, bid and award a contract for the PROJECT after complying with all applicable state and local competitive bidding requirements. Prior to awarding the contract, the City Engineer shall notify the OWNER, in writing, of the total estimated PROJECT costs. Such notification shall include detailed information regarding the contractor selected by the CITY and the bid for the PROJECT submitted by such contractor. If the total estimated PROJECT costs, as specified in the bid, exceed Two Hundred Eighty-Five Thousand and No/100 Dollars ($285,000.00), then CITY may, after consultation with the OWN'ER: a. Reject the bids and deliver written notice of such rejection to the OWNER within ten (10) business days of the rejection; or b. Readvertise the PROJECT for bids in accordance with .state law and local competitive bidding requirements, and submit the bids received to the OWNER in accordance with the provisions of this paragraph; or C. Elect to terminate this Agreement, in which ca~e this Agreement shall be null and void and of no force or effect whatsoever. At least seven (7) days prior to the award of the contract for the PROJECT, the OWNER shall pay its pro rata portion of the PROJECT cost (total estimated PROJECT cost minus $130,000.00) by deposit of said sum into the Moore Road Drainage Project DR 93-03 escrow fund established and maintained by the CITY. Contemporaneously with the award DRAINAGE A~%'D F..SCROW AGI~:~MF-.~rI' - PAGE 2 party's obligations hereunder. CITY understands that OWNER is in the process of negotiating an agreement with a third party with respect to the payment of a portion of OWNER's share of the PROJECT costs and the limitation of OWNER's exposure under this Agreement. The obligation of OWNER to comply with the provisions of this Agreement (including the deposit of any portion of the PROJEC'r cost) is contingent upon OWNER entering into such third party agreement in form and substance satisfacto~ to OWNER. If OWNER has not entered into such third party, agreement at the time that any obligation of OWNER arises hereunder, then OWNER may, at her option and in her sole discretion, terminate this Agreement, in which case this Agreement shall be null and void and of no effect whatsoever. 9. This agreement, along with attachments and other construction documents referred to herein, contain the entire understanding between and among the parties hereto relating to the improvements and the escrow funds, and shall be binding upon and inure to the benefit of such parties, and their respective successors, heirs, assigns and legal representatives. If any action in law or equity is brought to enforce or interpret the provisions of this agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other remedy to which the party may be entitled. 10. The validity of this agreement and any of its terms and provisions as well as the rights and duties of the parties shall be governed by the laws of the State of Texas; and venue for any action concerning this agreement shall be in Dallas County, Texas. 11. This agreement shall be amended only by mutual agreement of the parties, in writing, to be attached to and incorporated in this agreement. 12. In the event any one or more of the provisions contained in this agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality., or unenforceability shall not affect any other provision, and the agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 13. Any notices required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to the CITY or OWNER, as the case may be, at the address set forth below the signature of the party.. DRAINAGE AIqD ESCROW AGRF, F.2dE.'~'I' - PAGE 4 of the contract for the PROJECT, the CITY shall deposit the total sum of $130,000.00 into the Moore Road Drainage Project DR 93-03 escrow fund. 5. In the event the Moore Road Drainage Project DR 93-03 escrow fund is insufficient to complete the construction of the PROJECT in accordance with the final plans and specifications, the OWNER shall be liable for the balance of the cost of completion of the improvements. Any changes requested by the OWNER or CITY to the original scope of the PROJECT which results in change orders, will be paid by the party requesting the change or additional work unless otherwise agreed by the parties. In the event the OWNER requests a change or has agreed to pay the cost or any portion of the cost, the OWNER shall deposit said sum into the Moore Road Drainage Project DR 93-03 escrow fund prior to the approval of the applicable change order to the contract. 6. The Moore Road Drainage Project DR 93-03 escrow fund shall be held by the CITY in interest-bearing accounts, FDIC insured, with a maximum of $100,000.00 in each separate account, if such separation of accounts is feasible and can be accomplished in a manner consistent with FDIC deposit insurance regulations. The CITY shall use its best efforts to obtain the maximum lawful rate of interest from time to time available for funds of a similar nature held by the CITY. Any interest accrued on the escrow fund shall be added to the principal of such fund and disbursed in accordance with the terms hereof. The CITY agrees to disburse the amounts from the escrow fund, including any and all interest thereon, towards completion of the PROJECT. The CITY Engineer shall oversee the disbursement of the escrow fund and make periodic disbursements in accordance with the contract documents, provided however no such disbursement shall be made without prior approval of OWNER or her designee. In the event the escrow fund is insufficient to complete the construction in accordance with the final plans and specifications and awarded contract, the OWNER shall be liable for the costs of the completion of the improvements. In the event the fund is insufficient to complete the PROJECT, the CITY Engineer shall notify the OWNER, in writing, of the deficient. The OWNER shall have thirty (30) days upon receipt of the notice of deficiency to pay to the CITY the required costs of completion" of the PROJECT. 7. After all improvements are completed and are in substantial compliance with the final plans and specifications, and the CITY has approved and accepted the improvements, and after final payment to the contractor has been made, any remaining funds in the escrow fund shall be returned to the OWNER. 8. If any party hereto fails to contribute funds to the escrow fund as herein provided; or if any party fails to obtain, cause to be obtained or otherwise fails to obtain or provide right-of-way and/or other easements if required for the PROJECT, or, if any party otherwise fails to abide by his obligations hereunder; then, any other party hereto, shall, in addition to any other rights or remedies available to such other party at law or in equity, be entitled to terminate this agreement or to enforce specific performance of the defaulting DRAINAGF. AND F...~CROW AGRFF-MEN'r - PAGE 3 Executed the lC)*''' day of CITY OF COPPELL (CITY) BARBARA AUSTIN (OWNER) Mayor Tom Morton P. O. Box 478 P.O. Box 499 Coppell, Texas 75019 Coppell, Texas 75019 ATTEST: By: City S~cretao, / /4 a TI ~'.b- City Attorney DRAINAGE A/nD F...SCROW AGE. EF-~MFa\"r - PAGE ~bi~:f.c A AbetracC Ho. ~3B Ln the City o~ Coppell, Dellae CounCy, Texae and b~Lng more particularly de~cribed as BE~xI~qxNo et a poLnc ~or corne~ on the north l~no o~ Sind~ Lake Road (& $0 foot ~ight-o£-way) and tho eaa~ ~Lna o~ HOOFO Road (a va~able ~ldth right-o£-way) aa ~ecorded In Volume 84088, Page 3?$? o£ the Deed Records o~ Dallae County, Texae; ~-I~N(~N. 00053'5?" ~., L220.S8 ~ee~ along the ~aid eae~ o~ Moore Road to a po£n~ ~o~ coL-nar; THENCE N.'89o2L°03m ~.0 480.S9 ~eeC ~eav!ng the eaLd east o~ Hooc~Roed to a po£nt £o~ co~ner; THENCE S. 00e06'03' W., 9~0.R0 feec Co a po~nt £0r co~ne~; TH~CE S. 89~20°SS- Wo,'488.$4 fee~'co a poin~ £or THENCE S. 00°53'5?- ~., 2S0.09 ~ee~ Co a po£nt ~or corne~ on ~be ee~d notch l~ne o~ Sand~ ~a~e-Road; THENCE S. 89~20'S5' ~o, 6.19 ~eet along ~he oeid no,th ~ine Sandy Lake Road to the Point o~ Beginning and conta~ning L0.888 ecree (4~4,38L square £ee~) o£ lend.