DR9303-AG 940222 (2) AGENDA REQUEST FORM
CrrY COUNCIL MK~rI'ING February 22. 1994 rrKM NUMBER I
1
ITEM CAPTION:
Discussion concerning potential alternative funding for the intersection of Moore Road and Sandy
Lake Road.
SUBMITYED BY: m.~, STAFF REP.: Konnol'h ~,f. Gri~n, P E
r~r's S City Engineer
O~ER R~.:
DATE: Yeb~a~ ~, 199~
EVALUATION OF ITEM:
In 1992, a proj~t w~ submitted for funding under the Cong~tion Mitigation portion of the Intermodal Surface
Tram~rtation Efficiency Act of 1~1. It is my und~tanding that some funding h~ b~n approv~ for the
inters~tion of M~re Road with Sandy ~ke Road. The funding should be an 80/20 split with the federal
government picking up 80%. ~ere is a m~ting scheduled with repr~entativ~ from the No~h Central Tex~
Council of Government ~CTCOG) to discuss what h~ actually b~n funded, the timetable for the funding and
the requiremen~ by the City for the funding. The details of that m~ting and the details of any potential obligatiom
on the City's part will be discussed at the work s~sion. Any n~sary action arising out of the m~ting with
NCTCOG and/or dir~tion provided by the City Council at the February 22, 1994 work s~sion ~ll be brought
forth at a subsequent City Council m~tlng for action by Council.
BUDGET AMT. AMT. ESTI.MATED
A31T. +/- BUDGET FINANCIAL REVIEW BY
COMMENTS:
LEGAL REVIEW BY: REVIEWED BY CM'
AGENDA REQUF.3T FORM REVISED 2-93
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 crrY and OWNER agree
as follows:
1. Except with respect to the performance of the CITY's obligations hereunder,
the OWNER 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 C1TY, 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.
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 thc construction of various inlets and manholes to
accommodate the drainage coming south of Sandy Lake down Moore Road in the CITY of
Coppell, Texas. 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 PROJEC"F').
3. The CITY and OWNER agree that the cost of the PROJECT shall be paid
as follows:
a. The CITY pays $130,000.00 of total PROJECT cost.
b. The OWNER pays balance of total PRO.IECT cost.
4. The CITY shall design, advertise, bid and award a contract for thc 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
thc 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 OWNER:
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 case
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 PRO,IECT 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 AN~ ESCROW AGREEMEN'T - PAGE 2
of the contract for the PROJECTI', the CITY shall deposit the total sum of $130,000.00 into
the Moore Road Drainage Pro. iect 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 Lmprovements. 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 deficiency. 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 ail 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 fight-of-way and/or other easements if required for the PROJECT, or, ff any party
otherwise falls 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
DRAINAGE AND -ESCROW AGP. EEME.N'r . PAGE 3
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 PROJECT cost) is contingent upon
OWNER entering into such third party agreement in form and substance satisfactory 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 attorne.vs'
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 wxiting, 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.
DRALNAGE A_ND ESCROW AGREEME.~,~F - PAGE 4
Executed the t 0 day of ,~ c~ ~ ~_ . 1993'c~~
CITY OF COPPELL (CITY) BARBARA AUSTIN (OWNER)
Mayor Tom Morton I~a~
P. O. Box 478 P.O. Box 499
Coppell, Texas 75019 Coppell, Texas 75019
A'ITEST:
Ci .N'-Secretary. ,~/a F///6-
APPROVED AS TO FORM:
Ci~ Attorney
DRAINAGE AND ESCROW AGREEMF. N'r - PAGE 5 AGO047~A
~E2~ a tract o£ land situated in the S.N. Rla~t gu~"vay,
~baCract No. ~38 in the City o£ CoppaX1, DalLas County, Texas and
being more particularly described as ~ollowa:
B~.~ZNNIN~~a point for corner on ~he north
~ke Road {a ~0 nf~ rlgh~=of-~ay} and che eas~ l~ne o~ ~re Road
{a var~lo w~dch r~gh~-o~-va~) as recorded ~n Vol~o
375~ o~ ~he Deed Records o~ Dallas Count7, Texas;
~ ~. 00es3'57' E., L220.58 fee~ along ~ho ~aid eae~ lane
o~ Moore Road ~o a poin~ ~or
~CEN. 8902X'03w E., 480.59 fee~ leaving 2he said eas~ line
o~ ~g~ad Co a po~n2 ~or co~ert
THENCE 9. 00e06'03' ~., ~70.20 ~eec Co a point
~CE S. ~9~20'55' ~.~'48~.G4 ~ee~'co · po~ne ~or cement
~ S. 00053'57, W., 250.09 ~eeC ~0 a poin~ for co,er on
~he ea~d north l~ne o~ Sand7 Lake-Road~
~8. 89020'SS' W., 6.X9 fee~ along 2he said north line
Sandy ~ke Road ~o ~he Poin~ o~ Beginning and c~aining X0.888 ·
acre~ (474,20~ n~are geco) o~ land.
954 333~
......... " --'v" ...... :' :.-'.::.:_-'::: "-: .... : .... :
~! _: ...... ::. ........ *_._. ::::-ii:
NICHOLS, JACKS01~', KiRK & DILLARD, L.L.P.
qoB[~ L.. D,~,,~O ,,, 500 North Akard
VIA FACSIR~ .~ TRAN'SMISSION
Mr. Ken Gr~-~ P. F..
City Engineer
city of CoppeU
P. O. B~x 478
Coppell, Texas 7~019
Re: Drain~e and Escrow A~eement
Dear Ken:
Enclosed for your review and comment is a proposed Drainage and Hserow
Agrcemcnt bctween the City and Barbara Austin in cormec~ion with the property at More
Road and Sandy Lake Road. Please call me with your commen~ after you have had an
oppormn;v] to look it over.
Thank you for your attention to this matter. If you have any questions about th/s
documem, please call me.
Very truly yours,
1N'ICHOLS, ]ACK, SON, KIRK & Dr~]LARD, L.L.P.
c-.-"Pcter G. Smith'
PG$/jd
STATE OF FOR REVIEw
COUNTY OF DALLAS §
This agreement is made and entered into, by and bc~vecn the City of CoppcB, Texa.~,
a home rule city and m,mlcipal corporation of Texas (hereinafter referred to as "the City'~
and Bazbara Aus~ (hereinafter referred to as "the Owner').
· WHEREA5~ Barbara Austin ("Owner") desires to develop real property at the
intersection of Mo~e Ro~xl and Sandy Lake Road, Coppell, Dallas County, Texas and being
more particularly described on EzhibR "A" attached hereto and incorporated herein by
reference;
·
and cause of ceftin drainage p~'.~.n~.., existing on the property desto'bed in Exhibit
and with respect to the rights and'~ ~fies of the parties in regard to ~aid dra/nage; and
.
WHEREAS, the City and .the O~ understand and agree that the chfims asserted
between them are doubtful and m dlsput~/,and have settled such d/~l:mtes by comprorni.~e
~o avoid l/ti~afion and buy peace;
·
NOW, .'~RE~..ORFo in comidcrat/on ~),(~he pr~mi~e.~ and mutual promises aha
covenants hereto contained, and for Ten Dollars (~I0~00) and other valuable consideration,
the receipt and s,,01~c/ency of wh/ch is hereby acknd~/ged, the City and Owner agree as
follows: ~,
1. The Owner compro '. es and settles, relea.~ and discharges the C/ty, its
officers, agents and employees from an~ and all liabil/ty fo(~y ¢Islms for injuries and
dnm~ses, includ/ag those which _m~.y hereafter develop as well ~f~hcee now .apparent, and
aho releases and discharges the City, its officers, agents and e~?e,e~ and its succe~ors,
and assJ_m~ of and from all suits, acfion~ causes of action and cla/m~ for injuries and
damages which the Owner now or hereafter may or might have ar/s/rig out of or becauae of
the draln=ge problems on the property described/n Exhi~oit 'A" attached hereto, and Owner
hereby acknowledges full safidacfion of all such I/ab/l/tles and causes of act/on.
2. The City a~'ees to design the drslnn~e solution.for the property descn'bed in
Exh/bit 'A'. The dra/nage solution generally/s descn~ as revolving approximately 13~0
linear feet of 66~ RCP, 166' of 6 X 4 box culvert, the add/flon of a 4~" RCP beneath Mo'~e
I R tlMi^'
'/*OR REVl O ¢L ?
Road and the construction of various inlets ~)~mlmlcs to accommodate the drainage
coming SOuth of Sandy Lake dow~ M~re Road m ~h~ ~j~ ~l[~p. pell, Texas. The drainage
solution is also known as the MOle Road Drainage Project DRl~l-9~.ereinaP, er referred
to tbe Project'). '-'t¥L p
The City and Owner agree that the cost of the proieet shall Be paid as follow~:
a. The City pays $130,000.00 of total project cost.
b. The Owner pays balance of total project cost.
4. The City shall design, advertise, bid and award a contract for the project afler
complyinE with all applicable state and local competitive blddln$ requlremenll. At least
thlrt~, (30) day~ or as soon as practicable prior to the award of the comract, the City
Eng/neer shall notify the Owner, in writing, of thc total estimated project costs. Within
fi/teen (15) days thereafter, but no later than prior to the award of the contract for the
project, the Owner sh~l! pay itl pro rata portion of the proje~ cost (total estimated project
cost minuS $130,000.00) by deposit of said mm into the Mo~e Road Drainage Project DR
93-03 escrow fund established and maintained by the City. Contemporaneously with the
award ~f the contract for the project, the City shall deposit the total sum of $130,000.00 into
thc More Road Dralnagc Projec~ DR 93-03 escrow fund.
$. In the event the Mo~e Road Drainage Project DR 93-4)3 escrow fund is
basufficlent to complete the construction of the project in accordance with the final plans
and specifications, the Owner shall be liable for the balanc~ of the cost of completion of the
improvements.
6. The M~e Road Drainage Project DR 93-03 escrow ~und shall be held by the
City in interest-bearing accounts, FDIC insured, with a max/mum of $100,000.00 in each
separate account, ff such separation of accounll is feasible and can be atmomplished in a
manner consistent w/th PI)lC deposit insurance regulations. The City shall use its best
efforts to obtain the maximum lawful rate of interest from fi.me to lime available for funds
of a similar nature held by the City. Any interest accrued on the escrow fund shall be added
to the princ/pal 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 I~ngincer shall oversee the disbursement ot~ the
escrow fund and make periodic disbursements in accordance with the contract documents.
In the evem the escrow fund is in.m~ffldent to complete the consm~cllon in accordance with
th~ final pInns and spec/l~ications and awarded contract, the Owner shall be liable ior the
costs of the completion of the hnprovements. In the event the fund is inp~l~c/ent to
complete the project, tl~,.City Engineer shall notify the Owner, in writing, of the defic/ency.
The Owner shall have ~)_ days upon receipt of the notice of deficiency to pay ~o the
CRy the requh'ed costs of c~ of the project.
7. After all improveme, nts are compleg~llald arc in substantial compliance with
the final plans and specifications, and the C~l~oved and accepted the
improvemenm, and after I~i~! payment to the contractor ~;aVj[~'~i~made, any
funds in the escrow fund sh~ll be returned to the Owner. - '~'
8. I~ any party hereto fails to contribute funds to the escrow fund as herein
provided; orid'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
othenvise fails to abide by his obligations hereunder; then, any other parly hereto, sb~ll be
entitled to enforce specific performance of the defaalting party's obliBafion~ hereunder.
9. ~ agreement, aiong with attachments and other construction d.ocuments
refer~ed to her,.m, contain the entire understanding between and among the par~es hereto.
relat/ng to the unprovemen? and the escrow funds, and shall be bi~.ding upon and enure~'
to the ben.efit of such parues, and their respective successors, he~rs, asstgns and legal ~
representauves. 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 ressonable attorneys'
fees iu addition to any other remedy to which the party rosy be entitled.
10. The validity of this agreement and any of its terms and provisions ns 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 concern/~ this agreement shall be in Dallas County, Texas.
11. This agreement shall be amended by mutual agreement of the parties, in
wrifir~ to be a~tached to and incorporated in this agreement.
~2. In the event any one or more of the provisions co,~tsi~-d in this agreement
shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect' such
invalidity, /llegality, or unenforcesb/llty shall not sffe~ any other provision, and the
agreement sh~I! be construed ~s if such invalid, illegal, or unenforceable provision had never
been cov~slned 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, remm receipt
requested, addressed ~o the City or Owner, as the case may be, at the address set forth
opposite the signature of the party.
14. This agreement may be terminated by either party by pro~ai-g tSi~y days
written notice to the other party.
Executed the '~j.qf ,1993
CITY OF COPPELL (C~TY) ~ BARBARA AUSTIN (OWNER)
P. O. Box 478 ~/~) P.O. Box 499
Cop~e~, ve~ 750~ ~2~.oopen, Texas 7~0~
0
By: Ba~.,Austin
Mayor Tom Morton
ATTEST:
City Secretary
DRAINAOEAb~ESC~OWAO~I/NT-PAGE4 AGC. d~'NIA
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FIRST AMERICAN TITLE INSURANCE CO. ~o~ ,.o=s.. TX
OF TEXAS CORPO~TE DRIVE ESCROW ACCOUNT ~;-n'"~
14C~ CORPORATE DR.
=~vm~, TX 75038-2426 731:c57 I .- ~ i
CITY OF COPPEL[.. TEX~.S
{m'OOh~3?mm" ml~A~qOO222m: mm'O?hOO2h?qqmm'
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D:'aina? & Escrov Agreenmem:t S11%,15!.5( SELLEk : gar~a:'a Sue :%usr:n i
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BUYER : Standard Paczfic of Texas,
~ichael Y. brad}-, }'resident
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