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Chautaugua Pl/FP-CS 920109NDk NATHAN D. MAIER CONSULTING ENGINEERS, INC. January 9, 1992 J N- 919 2 By:. Engineering HAND DELIVERED Gary Sieb City of Coppell P.O. Box 478 Coppell, TX 75019 Dear Gary, Enclosed for City use and review, please find a copy of the Road Improvements Construction and E~row Agreement for Harris/Bethel Road in Coppell. Developers of each of the three participating private trac~ have reviewed the document and are prepared to proceed based upon Coppell's concurrence. / ~ understanding is that Matthews Investments Southwest has scheduled an agenda item on the (January~L4.~genda to receive general approval by the Council to proceed with the contract and respective '?~-~xdol~'~ction. We trust that all is acceptable to the City and timely processing of all of the appropriate documents and escrows can follow. Should there be any questions, please feel free to contact me at 739-4741 or Tim House of Matthews Southwest at 934-0123. Sincerely, NATHAN D. CONSULTING ENGINEERS,INC. Peter Staks Tim House - Matthews Southwest John J. Stenger,Esq. - Holmes Millard and Duncan H.D. Ardinger Three NorthPark/8800 N. Central Expwy./Suite 300/Dallas, Texas 75231/(214) 739-4741 Holmes Millard & Duncan Draft No. 4 December 30, 1991 ROAD IMPROVEMENTS CONSTRUCTION AND ESCROW AGREEMENT by and between THE CITY OF COPPELLv TEXAS, MATTHEWS INVESTMENTS SOUTHWEST, INC. Xv H.D. ARDINGER, JR. and CHICAGO TITLE COMPANY TABLE OF CONTENTS ARTICLE I. Covenants with Respect to Construction of Roads and Related Improvements 1.1 Definition of Bethel School Road Improvements ................. 1.2 Dedication ................... 1.3 Construction Plans and Specifications .... 1.4 Construction Covenants, Representations and Warranties .................. 1.5 Access .................... ARTICLE II Temporary Construction Easements 2.1 Construction Easements ......... - - - 2.2 Adjacent Property Owners' constrUction Easement ................... ARTICLE III Road Escrow Fund Agreement 3.1 Establishment of Escrow ........... 3.2 Deposit of Escrowed Funds .......... 3.3 Receipt of Road Escrow Fund ......... 3.4 Interest ................... ARTICLE IV Disbursements from Road Escrow Fund 4.1 Appointment of Representative ........ 4.2 Periodic Disbursements ............ 4.3 Final Disbursement .............. 4.4 The Escrow Agent's Fees ........... 4.5 Resignation of the Escrow Agent ....... ARTICLE V Defaults and Remedies 5.1 Default and Remedy .............. ARTICLE VI Miscellaneous 6.1 GOVERNING LAW ................ 6.2 Modification and Termination ......... 6.3 Binding Effect ................ 6.4 Notices ............ . ....... 6.5 Entirety and Amendments ........... 6.6 Multiple Counterparts ............ 6.7 Time of the Essence ............. 6.8 Severability ................. 6.9 Attorneys Fees ................ 6.10 Terminology ................ 4 5 5 5 5 6 7 8 8 8 9 9 9 9 10 10 10 11 11 11 (i) Holmes Millard & Duncan Draft No. 4 December 30, 1991 ROAD IMPROVEMENTS CONSTRUCTION AND ESCROW AGREEMENT THIS ROAD IMPROVEMENTS CONSTRUCTION AND ESCROW AGREEMENT (this "Agreement") is entered into as of the day of January, 1992, by, between and among THE CITY OF COPPELL, TEXAS, a body politic (the "City"), H.D. ARDINGER, JR, an individual residing in the State of Texas ("Ardinger"), MATTHEWS INVESTMENTS SOUTHWEST, INC. X, a Texas business corporation ("Matthews") and CHICAGO TITLE COMPANY (the "Escrow Agent"). W I T N E S E T H: WHEREAS, Ardinger and Matthews (hereinafter sometimes referred to collectively as the "Developers") propose the development of real estate projects on tracts of land adjacent to a portion of Bethel School Road in the City of C°ppell, County of Dallas, Texas, which real estate development tracts are hereinafter sometimes referred to individually as the Ardinger Tract (more particularly described on Exhibit A attached hereto and incorporated herein by reference), the Matthews Tract #1 (more particularly described on Exhibit B attached hereto and incorporated herein by reference), and the Matthews Tract #2 (more particularly described on Exhibit C attached hereto and incorporated herein by reference), and collectively, as the Tracts; and WHEREAS, the Developers desire to improve Bethel School Road and to dedicate or cause to be dedicated to the City, certain real property for right-of-way purposes and for other improvements to Bethel School Road, as said Road lies adjacent to the Tracts; and WHEREAS, the Developers and the City now desire to enter into this Agreement among themselves and with the Escrow Agent to describe the respective obligations of each of them relating to: the construction of certain road and other improvements along Bethel School Road where the same abuts the Tracts; obtaining right-of-way, if needed, to accommodate the proposed improvements to Bethel School Road; the escrow of certain funds to pay for the construction of such improvements; and certain other matters, all as more fully set forth hereinbelow. ROAD ESCROW AGREEMENT Page I NOW, THEREFORE, for and in consideration of the premises, the covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: ARTICLE I. Covenants with Respect to Construction of Roads and Related Improvements 1.! Definition of Bethel School Road Improvements. As used herein, cerm "Improvements" to Bethel School Road means and shall refer to the construction of a concrete roadway and related utilities and drainage along the road-bed of existing Bethel School Road and extending, along the Tracts, from Point A to Point E as identified on the drawing attached hereto as Exhibit D and incorporated herein by this reference, together with appropriate ancillary improvements, and such additional improvements as may be set forth on the final Plans and Specifications (herein so called) for the Improvements which Plans and Specifications shall be prepared and approved as hereinafter set forth. 1.2 Dedication. Each of the Developers shall dedicate or cause to be dedicated to the City, within 3 months from the date hereof and prior to the commencement of construction of the Improvements, any right-of-way abutting their respective Tracts necessary for the completion of the Improvements in accordance with the Plans and Specifications. The City shall cause to be dedicated, within 3 months from the date hereof, necessary right- of-way (if any) abutting Bethel School Road between Point A and Point E which is not owned or controlled by Ardinger or Matthews. 1.3 Construction Plans and Specifications. Construction of the Bethel School Road Improvements, shall be undertaken pursuant to, and in conformity with, the final Plans and Specifications; and the construction of the Improvements shall not commence until such time as all of the parties to this Agreement have approved, in writing, such final Plans and Specifications (which approval shall not be unreasonably withheld or delayed by any party). Upon approval of the Plans and Specifications by all parties, such final Plan and Specifications shall be attached, or deemed to be attached, hereto as Exhibit.__~ and incorporated herein by reference for all purposes. 1.4 Construction Covenants, RepreseD~ations and Warranties. (a) Construction of the Improvements shall be undertaken in accordance with the final Plans and Specifications and the construction of the roadway improvements shall include, but not be limited to, all design, engineering, labor, services, material, tools, equipment, supervision, and the performance ROAD ESCROW AGREEMENT Page 2 of all related work for the roadway, utility and drainage construction, in compliance, in all material respects, with the final Plans and Specifications and all accompanying drawings, specifications and contract documents as may be referred to herein and/or attached hereto (',Construction Documents"). (b) Ardinger shall select a qualified Engineer (herein so called), reasonably satisfactory to Matthews and the City to prepare the Plans and Specifications and to supervise the construction of the Improvements. The Engineer shall, with the consent of Ardinger, Matthews and the City (which consent shall not be unreasonably withheld or delayed), select one or more contractors to perform the construction work comprising the Improvements. All contractors and subcontractors performing work hereunder shall be bonded with performance bonds reasonably satisfactory to the parties hereto. The Engineer shall provide competent construction observation, in attendance, as necessary, at the site of the construction of the Improvements during the progress of such construction work. (c) It is expressly agreed that no party hereto shall have any personal liability whatsoever under this Agreement, except for (i) liability for its portion of the cost of construction of the Improvements (as hereinafter discussed), and (ii) the gross negligence or willful malfeasance, if any, of any such party. 1.5 Access. The parties hereto owning property adjacent to Bethel School Road shall, at all times after the commencement of construction of the Improvements have reasonable access to their respective Tracts from Bethel School Road, notwithstanding the progress of construction of the Improvements. ARTICL__~_EII. Temporary ConstNuction Easements 2.1 Construction Easement~. Each party hereto owning a Tract which abuts Bethel School Road shall grant a temporary construction easement (if the Engineer determines such easement or easements to be necessary) upon and across such Tract. 2.2 Adjacent Property Owners' Construction Easement. The City shall obtain temporary construction easements (if the Engineer determines such easement or easements to be necessary) from and any and all other owners (that is, owners who are not parties to this Agreement) of real property located adjacent to, or along, the construction site for the proposed Bethel School Road Improvements. ROAD ESCROW AGREEMENT .Page 3 ARTICLE III. Road Escrow Fund Aqreement 3.1 Establishment of Escrow. (a) The Developers each mutually acknowledge and agree, one with the other, that the costs and expenses incurred incident to the planning of the proposed Improvements and the preparation of this Agreement shall be aggregated, and then borne by them in accordance with the percentages set forth below (hereinafter referred to as the "Contribution Percentages"): (i) 66.8% by Ardinger; (ii) 13.3% by Matthews for Matthews Tract #1; and, (iii) 19.9% by Matthews for Matthews Tract #2. The Developers each mutually acknowledge and agree, one with the other, that each shall be liable for the costs incurred incident to the preparation and approval of final Plans and Specifications including, without limitation, all costs payable to the Engineer in connection therewith, and such costs shall be borne by each of the Developers in accordance with its respective Contribution Percentage, as set forth above in this Section 3.1(a). From and after this date, each of Ardinger and Matthews shall contribute to the cost of construction of the Improvements in accordance with its respective Contribution Percentage. The City shall not be liable for any costs incurred incident to the planning of the proposed Improvements prior to the date of execution of this Agreement. The City shall be responsible only for a contribution to the cost of the engineering design and construction of the Improvements and such contribution shall be in an amount equal to (and not greater than) the amount, (plus accrued interest thereon) previously tendered to the City (or to an independent escrow) by Centex Development for the construction of similar improvements to Bethel School Road. (b) In order to ensure that the Improvements are completed in a cost-effective manner, the Engineer shall prepare and submit to each of the Developers for approval (which approval shall not be unreasonably withheld or delayed) a Road Construction Budget (herein so called) which, following approval by all parties, shall be (or shall be deemed to be) attached hereto as Exhibit F and incorporated herein by reference. In the event of variances in the Road Construction Budget and in the event the Road Escrow Fund (hereinafter defined) is insufficient to complete the construction of the ROAD ESCROW AGREEMENT Page 4 Improvements in accordance with the final Plans and Specifications, the Developers (but not the City) shall be liable for their ratable share of the cost of completion of the Improvements, in accordance with their respective Contribution Percentages hereinabove set forth, notwithstanding anything to the contrary contained in this Agreement. (c) In order to provide for the payment of the costs necessary to complete the Improvements in accordance with the approved Road Construction Budget, the City shall contribute to the Road Escrow Fund (herein so called) the amount hereinabove described in Section 3.1(a) and estimated to be approximately $42,000, and each of the Developers shall contemporaneously with their approval of the Road Construction Budget contribute to the Road Escrow Fund an amount equal to their respective Contribution Percentages of the difference between $42,000 and the total amount necessary for construction of the Improvements on shown on the approved Road Construction Budget. For example, if the Road Construction Budget indicates that the total cost of the Improvements will be $250,000, the City shall contribute $42,000 and the remainder ($250,000 - $42,000 = $208,000) shall be contributed to the Road Escrow Fund by the Developers in accordance with their respective Contribution Percentages. 3.2 Deposit of Escrowed Funds. Contemporaneously with the approval of the Road Construction Budget as hereinabove provided, the Road Escrow Fund shall be deposited with the Escrow Agent, which Road Escrow Fund shall be held in escrow and administered in accordance with the terms hereof pending completion of construction of the Improvements in accordance with this Agreement. 3.3 Receipt of Road Escrow Fund. Upon receipt of the Road Escrow Fund, the Escrow Agent shall acknowledge receipt of the Road Escrow Fund, and agree to hold and disburse such monies in strict accordance with the provisions hereof. 3.4 Interes%. The Road Escrow Fund shall be held by the Escrow Agent in interest-bearing accounts, FDIC insured, with a maximum of $100,000 in each separate account. The Escrow Agent 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 Escrow Agent. Any interest accrued on the Road Escrow Fund shall be added to the principal of such Fund and disbursed in accordance with the terms hereof. ROAD ESCROW AGREEMENT Page 5 ARTICLE IV. Disbursements from Road Escrow Fund 4.1 Appointment of Representative. Ardinger, at the sole cost and expense of Ardinger, shall select a representative, which may be the Engineer (the "Representative") to oversee disbursement of the Road Escrow Fund. 4.2 Periodic Disbursements. The Escrow Agent agrees to disburse amounts from the Road Escrow Fund, including any and all accrued interest thereon, in the manner hereinafter set forth. (a) As construction of the Improvements progresses, the constructing party (i.e,., the contractor(s)) shall be entitled to receive periodic disbursements out of the Road Escrow Fund for the amount of invoices received periodically from third parties, and for labor and materials incorporated into the Improvements, less 10% retainage. (b) Such constructing party may request disbursements from the Road Escrow Fund not more often than every 30 days. Each such request for disbursement shall be evidenced by a written request ("Disbursement Request") from such constructing party sent to the Representative with return receipt requested, specifying in reasonable detail, the work performed and material incorporated into the Improvements, together with invoices from all third party contractors and materialmen evidencing the amounts due with respect to the invoices for such labor and materials. (c) Upon receipt of such Disbursement Request, the Representative shall promptly review same, and, to the extent accurate, shall certify to the parties hereto that the work described in the Disbursement Request has been performed and the materials described therein have been incorporated into the Improvements (the foregoing certification shall hereinafter be referred to as the "Representative's Certificate"). Contemporaneously with his delivery of the Representative's Certificate, the Representative shall also advise the parties to this Agreement as to his opinion of the adequacy of the balance remaining in the Road Escrow Fund to pay for the uncompleted portions of the Improvements. (d) If, within 10 days after receipt of such Disbursement Request, the Representative fails to either (i) disapprove, in writing, such Disbursement Request (which disapproval shall be accompanied with the reasons therefor), or (ii) approve such Disbursement Request by delivering to the constructing party the Representative's Certificate, then such Disbursement Request shall be deemed to be approved. If the Representative fails timely to approve or disapprove the ROAD ESCROW AGREEMENT Page Disbursement Request, the constructing party shall deliver to the Escrow Agent a certificate (the "Constructing Party's Certificate") stating (i) that the Representative is deemed to have approved the Disbursement Request, and (ii) specifying the date that such Disbursement Request was sent to the Representative. The Escrow Agent shall confirm that the Representative actually received the Disbursement Request at least 10 calendar days prior to the Escrow Agent's receipt of the Constructing Party's Certificate. (e) Copies of all Disbursement Requests (including all exhibits and attachments required hereunder), and all Constructing Party's Certificates (if any), shall be simultaneously delivered by the constructing party to each of the parties hereto at their respective addresses for notices as specified hereinbelow. (f) After the Representative's approval or deemed approval of a Disbursement Request, the constructing party shall submit the Disbursement Request (without any accompanying invoices) along with the Representative's Certificate (or the Constructing Party's Certificate, if applicable) to the Escrow Agent. Disbursement Requests for which an appropriate Certificate has been received by the Escrow Agent, shall be paid by the Escrow Agent within 3 days after such Certificate is received. (g) Notwithstanding anything herein to the contrary, after the first Disbursement Request, each subsequent Disbursement Request must be accompanied by appropriate evidence (including, without limitation, receipts and lien waivers) that the funds disbursed pursuant to the immediately preceding Disbursement Request were actually applied towards the costs indicated in, and to the parties described in, such previous Disbursement Request. (h) In addition, in connection with any Disbursement Request, the constructing party may request that retainage previously withheld be disbursed as to fully completed subcontracts, so long as the constructing party submits with such Disbursement Request, a final lien waiver executed by such subcontractor and the Representative certifies in the Representative's Certificate that such subcontract has been fully completed. (i) It is expressly agreed that the Escrow Agent shall have no responsibility whatever to determine the accuracy of the Disbursement Request or the Representative's Certificate. The Escrow Agent's sole responsibility in connection with the disbursement of the. escrowed funds pursuant to this Section 4.2 is to disburse the amounts shown on the ROAD ESCROW AGREEMENT Page 7 Disbursement Request (less 10% retainage) as approved or deemed approved by the Representative. 4.3 Final Disbursement. Notwithstanding Section 4.2 to the contrary, in no event shall more than ninety percent (90%) of the Road Escrow Fund be disbursed until the Improvements have been finally completed and accepted by the City (in which event the remaining 10% shall be disbursed after any statutory retainage period has elapsed and all appropriate lien waivers and releases have been received by the Escrow Agent and the Representative). After all Improvements are completed in substantial compliance with the final Plans and Specifications, the City has approved and accepted the Improvements, and after the final Disbursement Request and the Representative's Certificate has been sent to and paid by the Escrow Agent, any remaining funds in the Road Escrow Fund shall be jointly disbursed to the Developers, in proportion to their respective Contribution Percentages, upon the Escrow Agent's receipt of a written certification that all construction is complete, approved and accepted by the City. 4.4 The Escrow Aqent's Fees. In consideration of the services to be performed by the Escrow Agent hereunder, the Escrow Agent shall be paid a fee, payable by the parties hereto, in proportion to their respective contributions to the Road Escrow Fund. In no event shall such Escrow Agent's fee be paid out of the Road Escrow Fund. 4.5 Resiqnation of the Escrow Aqent. If any attempt be made to modify this Agreement in a manner that would increase the duties and responsibilities of, or reduce the compensation payable to, the Escrow Agent, such Escrow Agent may resign by notifying the parties hereto, in writing, by certified mail to their respective addresses set forth below, which resignation shall be effective upon the earlier of (i) the acceptance by such successor escrow agent as may be appointed by the parties hereto; or (ii) the expiration of 30 days following the date upon which the Escrow Agent's resignation notice was mailed. Any such resignation will be subject to the Escrow Agent executing all necessary and appropriate documents to (i) effectively transfer the Road Escrow Fund to its successor, and (ii) provide indemnification from the Escrow Agent to the other parties hereto relating to any loss caused, in whole or in part, by such resignation or the transfer of the Road Escrow Fund. ARTICLE V. Defaults and Remedies 5.1 Default and Remedy. If any party hereto fails to contribute monies to the Road 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 as herein provided; or, if any party otherwise fails to abide by its ROAD ESCROW AGREEMENT Page 8 obligations hereunder; then, any other party hereto, for the benefit of all parties hereto, shall be entitled to enforce specific performance of the defaulting party's obligations hereunder. ARTICLE VI. Miscellaneous 6.1 GOVERNING LAW. THIS AGREEMENT IS BEING EXECUTED AND DELIVERED IN, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS. 6.2 Modification and Termination. This Agreement may not be modified, revoked, released, or terminated, except upon the receipt of mutual written consent of the parties hereto, with subsequent notice given in writing and delivered to the Escrow Agent. 6.3 Bindinq Effect. This Agreement (along with the attachments and other Construction Documents referred to herein) contains the entire understanding between and among the parties hereto relating to the Improvements and the Road Escrow Funds, and same shall be binding upon and inure to the benefit of such parties, and (subject to its terms) their respective successors, heirs, assigns, and legal representatives. 6.4 Notices. Ail notices, demands, or other communications of any type, whether required by this Agreement or in any way related to the transaction herein described, shall be void and of no effect unless given in accordance with the provisions of this Article VI, or as may be otherwise provided in this Agreement. Any notice or other communication required or permitted hereby, or convenient to the parties hereto in connection with the consummation of the transaction contemplated hereby, shall be deemed delivered (a) when personally delivered or delivered by telecopy to the number set forth below, or (b) 2 days after deposit in a receptacle of the United States Postal Service, as registered or certified mail, return receipt requested, postage prepaid, and addressed as follows: If to the City: City of Coppell: Coppell, Texas Attention: Mayor Mark Wolfe Telephone No. 214/462-0022 Telecopy No. ROAD ESCROW AGREEMENT Page 9 With copy to: If to Ardinger: City Attorney Coppell, Texas Telephone No. Telecopy No. H.D. Ardinger, Jr. With copy to: Telephone No. Telecopy No. Telephone No. Telecopy No. If to Matthews: Matthews Investments Southwest, Inc. X 5220 Spring Valley, Suite 500 Dallas, Texas 75240 Attention: Tim House Telephone No. 934-0123 Telecopy No. 980-2421 With copy to: Holmes Millard & Duncan 2200 Renaissance Tower 1201 Elm Street Dallas, Texas 75270 Attention: John J. Stenger, Esq. Telephone No. 747-2200 Telecopy No. 939-1517 Either party hereto may change the address for notice specified above by giving the other party 5 days advance written notice of such change of address. 6.5 Entirety and Amendments. This Agreement (along with the attachments 'and other Construction Documents referred to herein), embodies the entire agreement between the parties hereto relating to the Improvements and the Road Escrow Fund, and supersedes all prior agreements and understandings, if any, specifically relating to the subject matter hereof, and may be amended or supplemented only by an instrument in writing executed in accordance with the terms and provisions of this Agreement. 6.6 Multiple Counterparts. This Agreement may be executed in a number of identical counterparts. If so executed, each of the counterparts shall be deemed to be an original for all purposes, and all the counterparts shall, collectively, constitute but one ROAD ESCROW AGREEMENT Page 10 agreement. In making proof of this Agreement it shall not be necessary to produce or account for more than one counterpart. 6.7 Time of the Essence. Time is of the essence with respect to this Agreement; provided, however, in the event the date for performance of any obligation or delivery of any notice hereunder falls on a Saturday, Sunday or a federal holiday, the date for such performance or delivery of such notice shall be postponed until the next ensuing business day. 6.8 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason by held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not effect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 6.9 Attorneys Fees. If any dispute between any party to this Agreement relating to the transactions contemplated by this Agreement should result in litigation, the prevailing party shall recover from the non-prevailing party(ies), jointly and severely, all reasonable costs incurred in connection therewith, including, without limitation, reasonable attorneys' fees and court costs. 6.10 Termino__~. The captions beside the section numbers of this Agreement are for reference only, and shall not modify or affect this Agreement in any manner whatsoever. Whenever required by the context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. IN WITNESS WHEREOF, the undersigned have executed this Agreement dated effective as of the date first set out above. THE CITY OF COPPELL, TEXAS By: Name: Title: H.D. ARDINGER, jR. H.D. Ardinger, Jr. ROAD ESCROW AGREEMENT Page 11 MATTHEWS INVESTMENTS SOUTHWEST, INC. X By: Name: Title: By: Name: Title: ESCROW AGENT: CHICAGO TITLE COMPANY By: Name: Title: SCHEDULE OF EXHIBITS Exhibit A - Exhibit B - Exhibit C - Exhibit D - Exhibit E - Exhibit F - Legal Description Ardinger Tract Legal Description Matthews Tract #1 Legal Description Matthews Tract #2 Bethel School Roadway Drawing Plan and Specifications Road Construction Budget 33Z.&l V: \R~:\JJ$\25J,~ ROAD ESCROW AGREEMENT Page 12 EXHIBIT A Leqal Description Ardinger Tract EXHIBIT B Legal Description Matthews Tract EXHIBIT C Leqal Description Matthews Tract EXHIBIT D Bethel School Roadway Drawinq EXHIBIT E Plan and Specifications EXHIBIT F Road Construction Budqet 332.&1 V: \R~\J J$\25&~6