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Enclaves/FP-CS 950221LAWRENCE W. JACKSON ROBERT L. DILLARD Ill ROBERT E. HAGER PETER G, SMITH DAVID M. BERMAN BRUCE A. STOCKARD NICHOLS, JACKSON, DILLARD, HAGER & SMITH, I Attorneys & Counselors at Law 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 (214) 954-3333 Fax (214) 954-3334 ROBERT L. DILLARD, JR. OF COUNSEL February 21, 1995 Gary Sieb Director of Planning City of Coppell P.O. Box 478 Coppell, Texas 75019 Dear Gary: At your request, we have reviewed the proposed Development and Maintenance Agreement to be entered into by and among the City, WPC - Parkway Development Corporation, Parkway/Coppell Property Corporation, and the Homeowners' Association of the Enclaves on the Parkway, Inc. Having reviewed this document, we wish to comment as follows. We need to have tangible evidence that the Homeowners' Association has been incorporated. A copy of the Certificate of Incorporation, together with the Articles of Incorporation and the Bylaws should be sufficient. We should review the deed restrictions for the Enclaves to be sure that they require membership of all owners, dues, assessments, and maintenance of the improvements that the Association is responsible for under this Agreement. The City should also have the right to enforce the maintenance requirements of the deed restrictions with regard to common areas and the areas the Association is responsible for under this Agreement. If the Association fails to perform its duties, the City should be authorized to enter on the property, perform those duties, and levy an enforceable assessment against the property owners. Next, has the Parkway/Coppell Property Corporation been created? The same documents could be reviewed for this as were suggested for the Homeowner's Association above. AGG0678C Gary Sieb February 21, 1995 Page 2 If this latter corporation has been formed, has the 2.729 acre tract been conveyed to it? If so, we need a copy of the recorded deed. If not, we should review the proposed deed to be used and require that the conveyance be accomplished before proceeding. When we looked at this matter in December, a portion of the drainage area was owned by RTC. We have seen no evidence that RTC has in fact conveyed that to the Developer or the other corporation created by the Developer for that purpose. Is the final plat contingent on all of the above matters, plus this Agreement? If not, it should be and it should be so stated in the minutes of the City Council meeting where the final plat is approved. When will the park fee be paid? The way the Agreement reads, the park fee is to be paid by the Developer to the City and then back to the Developer to reimburse it for a portion of the cost of the Area A improvements. I believe this park fee should be paid in advance by the Developer and then, when the improvements are completed to the City's satisfaction, the amount of the park fee reimbursed back to the Developer. This should give both parties an incentive to see that the development is well done. The City is also agreeing to reimburse the Developer a portion of the cost of the Area B improvements "as and when payments are required by the applicable construction contracts." Because of this requirement, it appears to me that the City will be required to supervise the performance of the construction contracts for the Area B improvements, or at least to check closely as to the Developer's supervision of those contracts. Under this Agreement, upon completion of the Area A and Area B improvements, the City is responsible for Area B and its maintenance. Although the Agreement provides that the Developer will pay the initial cost of the Area C improvements, it provides that the City will reimburse the Developer those costs "as and when payments are required by the applicable construction contracts." The same comment applies to the Area C improvements as was stated above as to the Area B improvements. However, if the cost is to be initially paid by the Developer, I am not certain I understand what the Agreement means when it states that the City is to reimburse as and when payments are required by the applicable construction contracts. I think that this means that the Developer writes a check to the Contractor as required by the contract and the City writes the Developer a check for the same amount at the same time. Again, AGG~C Gary Sieb February 21, 1995 Page 3 management of these construction contracts and the improvements should be closely monitored by the City at all times. The Agreement states that upon completion of the Area C improvements, the channel tract will be conveyed to the City. We should require that the channel tract owner furnish the City a proposed form of deed at this time, as well as any title commitment or title policy which may have been secured as to the property. Under the Agreement, the City is responsible ultimately for the maintenance of Area B, Area C, the channel tract, and the aeration pump. In cases where the property is not being conveyed directly to the City, the City should acquire an easement on the plat or by separate easement deed. These easements should be acquired in connection with this Agreement. Section 13 of the Agreement refers to a release of this Agreement that the parties will execute for the Developer. If the Developer has a form of release in mind now, we should review that. If not, we can review it at the time it is tendered for execution. Because the City is assuming a great deal of the maintenance cost, some projection or estimates should be made as to what will have to be budgeted annually to perform that function. In connection with the pump, there should be some warranties and perhaps some maintenance obligations by the manufacturer for the near term. However, if a long term maintenance agreement should be secured, that should be investigated as well. To justify the City expenditures, it appears to me that the resolution approving this Agreement should make a finding that reimbursement of the park fee will be for partial payment of park improvements to Area A and that the reimbursement for the Area B improvements will be partial payment for drainage improvements furnished by the Developer. In the latter case, the Council will need to appropriate the amount of the reimbursement from available funds. Except for the legal descriptions of Areas A and C, we have not reviewed any of the Exhibits identified for this Agreement, nor have we reviewed any of the specific plans for the improvements. These will presumably be reviewed by the Public Works Department. Other than the comments of this letter, the form of the Agreement is satisfactory. AGG0678C Gary Sieb February 21, Page 4 1995 Please let me know if you have any other questions at this time about this Agreement or this development in general. Very truly yours, NICHOLS, JACKSON, DILLARD, Itg~GER & SMITH. L.L.P. Robert L. Dillard, III RLD/ckh AGG0678C