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PD103-CS 871104 JACKSON, WALKER, WINSTEAD, CANTWELL & MILLER ATTORNEYS AND COUNSELORS 6000 fIRST REPUBLICBANK PLAZA 901 MAIN STREET WRITER'S DIRECT DIAL NO.: CABLE-JWAL 214/953-5980 DALLAS, TEXAS 75202 TELE ...... 85 TELECOPIER-(214) 953 5822 {214) 953-6000 , November 4, 1987 ~~~~~ 4 1987 HAND DELIVERY NOV Mr. H. Dean Wilkerson ~T¥ MANAG~ Gardere & wynne 1500 Diamond Shamrock Tower Dallas, Texas 75201 Dear Dean: Pursuant to the instructions of Mr. Michael R. Allen, enclosed.: are two copies of a revised proposed draft of Park Land Donation Agreement. The enclosed draft contains changes to the. prior draft in the fourth recital, paragraph 2, paragraph 4, paragraph 6, paragraph 7 and paragraph 9. By copy of this letter, I hand delivering copies of the enclosed to Messrs. Allen, Duggan and Ratliff. By copy of this letter, I am requesting that Mr. Ratliff have this matter placed on the agenda for the next City Council hearing. If yOu have any. questions or comments concerning the enclosed or the foregoing, please contact me at your earliest convenience. ~ Richard i. Dooley~ RMD/dj s Enclosures 4217S(7) cc: Mr. Michael R. Allen (w/enc.) - HAND DELIVERY Mayor Lou Duggan (w/enc.) - HAND DELIVERY Mr. Alan D. Ratliff (w/enc.) - HAND DELIVERY PARK LAND DONATION AGREEMENT This Park Land Donation Agreement ("Agreement") is made and entered into as of the day of , 1987, between Coppell Town Center, Inc. (together with its successors or assigns, "Donor"), a Texas corporation, acting by and through its duly authorized officer, and the City of Coppell, Texas (the "City"), a municipal corporation and political subdivision of the State of Texas, acting by and through its duly authorized Mayor and City Administrator. W I T N E S S E T H : WHEREAS, Donor is the owner of that certain tract of land described in Exhibit A attached hereto and incorporated herein by reference for all purposes (the "Park Site"); and WHEREAS, Donor contemplates that a third party (the "Lake Developer") will excavate, grade and grass a portion of the Park Site for the purpose of creating a lake (the "Lake") on the Park Site; and WHEREAS, preliminary plans and specifications for the Lake setting forth the general requirements for water depth, drainage, grading, soil conditions and grassing of the Park Site are attached hereto as Exhibit B and incorporated herein by reference for all purposes (the "Preliminary Plans"); and WHEREAS, prior to the commencement of construction of the Lake by the Lake Developer, final plans and specifications for the Lake (the "Final Plans") will be approved by the City; and WHEREAS, one of the areas of the City which would be benefited by the City's acquisition of the Park Site, including the Lake, is the contemplated Lake Park Village Addition to the City (the "Subdivision"); and WHEREAS, the City wishes to acquire additional park lands and a lake to enhance the quality of life within the City; and WHEREAS, the Park Site is located adjacent to existing park lands owned by the City, and the City wishes to acquire the Park Site, including the Lake, as an addition to the City's park lands; and WHEREAS, the purpose of this Agreement is to set forth certain terms and conditions upon which the City will acquire the Park Site, including the Lake; NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Donor and the City agree as follows: 1. Plan(s) Approval. By the City's execution of this Agreement, the City acknowledges and agrees that the Preliminary Plans are approved by the City. Prior to the commencement of construction of the Lake by the Lake Developer, the Final Plans will be submitted to the City's engineer for approval. The approval of the Final Plans by the City shall be in writing and shall not be unreasonably withheld or delayed if the Final Plans do not materially deviate from the Preliminary Plans. 2. Tripartite Agreements. All design and construction work relating to the Park Site, including the Lake, will be performed pursuant to agreements among the City, the Lake Developer, construction contractors and design professionals (the "Tripartite Agreements"). The Tripartite Agreements must be in form reasonably acceptable to the City. Upon the request of either Donor or the Lake Developer, the City agrees promptly to enter into negotiations to approve the form of the Tripartite Agreements and the parties thereto to serve as construction contractors or design professionals. The City hereby approves Roberts & Dowdy Civil Engineers as design professionals acceptable to the City for the preparation of the Preliminary Plans and the Final Plans. 3. Completion. After the completion of the work specified in the Final Plans (the "Work"), the Lake Developer will notify the City in writing of such completion (the "Completion Notice"). Within fourteen (14) days after the City's receipt of the Completion Notice, the City's engineer will inspect the Work. The City's engineer will not withhold or delay approval of the Work if the Work has been completed without material deviation from the Final Plans. Upon the City's engineer's approval of the Work, the City will issue written approval of the Work to the Lake Developer. As use~ herein, the term "Completion Date" means the date upon which the City issues written approval of the Work to the Lake Developer. 4. Conditions Precedent. As used in this Agreement, the term "Conditions Precedent" means: (i) approval of the Final Plans by the City; (ii) approval of the Tripartite Agreements by the City (which shall be established by the City's execution of the Tripartite Agreements); (iii) written approval of the Work by the City; (iv) the passage of a period of time from the Completion Date ending on the later of one and one-half (1.5) years after the Completion Date or one (1) year after the date that the Lake initially fills to its normal water level (as normal water level is defined in the Final Plans); and (v) the Lake is holding water (taking into account water fluctuations caused by weather conditions) and is in substantially the same condition as it existed on the Completion Date, excepting minor erosion (erosion shall be deemed minor erosion unless such erosion causes gouges or ruts of more than six inches from the original grade of the Lake banks). 5. Acceptance Date. As used in this Agreement, the term "Acceptance Date" means the earlier of: (i) the date that foundations for homes have been completed on seventy-five percent (75%) or more of the lots contained in the Subdivision; or (ii) that date which is three and one-half (3.5) years after the Completion Date. 6. Conveyance of the Park Site. After the satisfaction of the Conditions Precedent, the City agrees to accept the Park Site within thirty (30) days after the Acceptance Date. The Park Site will be acquired by the City's acceptance of a direct conveyance from Donor or through the City's exercise of an option to acquire the same donated to the City by Donor. The conveyance of the Park Site to the City will be by special warranty deed which shall not impose any restrictions on the use of the Park Site by the City other than the !~us~3 of the Park Site as a public park. ~~'~ 7. Ownership Responsibilities and Defects. Upon the City's acquisition of the Park Site, the City shall become responsible for all maintenance, repairs, utility costs, taxes and other costs, expenses, claims and liabilities relating to the ownership or use of the Park Site and all improvements made thereto or placed thereon; provided, however, the foregoing is not intended and shall not be construed to waive, release or otherwise affect any claims of the City against any of the parties to any of the Tripartite Agreements arising or - 2 - resulting from defects in design or defective workmanship. The City acknowledges and agrees that Donor is not responsible for any defects in the design of the Work or any defects in the performance of the Work. 8. Interim Period. During that period beginning on the Completion Date and ending on the date that the City acquires the Park Site (the "Interim Period"), the City agrees that City will: (i) take any. action reasonably requested by the owner of the Park Site to make it clear that the Park Site is not a public park and that the public is not entitled to entry thereon or use thereof; and (ii) not object to an open space or open land valuation of the Park Site for ad valorem tax purposes. 9. Option. This Agreement does not impose any duty or obligation upon Donor or the Lake Developer to cause the construction of the Lake or to donate the Park Site to the City, but in consideration of and as a material inducement to Donor and/or the Lake Developer to undertake the actions contemplated herein, the City agrees that the City is bound by this Agreement unless excavation of the Lake is not commenced on or before the later of: (i) July 1, 1989; or (ii) one hundred eighty (180) days after the date of the approval of the Final Plans and the Tripartite Agreements by the City (if the Final Plans and the Tripartite Agreements have been submitted to the City for approval before July 1,1989) (the applicable date, the "Trigger Date"). Donor shall have the right at any time to terminate this Agreement by delivering written notice of such election to the City. If excavation of the Lake has not commenced on or before the Trigger Date, the City shall have the right to terminate this Agreement by delivering written notice of such election to Donor at any time prior to the commencement of excavation of the Lake. 10. Acknowledgment of Donation. If the Park Site is conveyed to the City, the City acknowledges and agrees that: (i) the donation of the Park Site to the City will greatly enhance the quality of life in the Cit__~ and co~sti _ s a ch~[~tahl_~ donation .~Q th~. Ci-t¥s and ~ii) the .City has no~ °bligation-'~---~-s-~ec~-~ such ~-~i'~b~'Ie donation exce~t~as_~ ~et forth herein. ~ 11. Complete Agreement. is Agreement Nembodies the complete agreement between Donor ~and the City wit~--respec~_.~o the subject matter hereof and .k~n__n_no_t--_be -~varied or amend~d'__~_~ except by an instrument executed by both Donor ~h~~. 12. Binding Effect. This Agreement shall be binding upon and inure to the benefit of Donor and the City and their respective successors or assigns. EXECUTED as of the date first above written. DONOR: THE CITY: COPPELL TOWN CENTER, INC. CITY OF COPPELL By By Title Mayor By City Administrator 4181S - 3 - EXHIBIT A Park Site to be attached) EXHIBIT B Preliminary Plans and Specifications (to be attached)