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345 bear the expense but bear the legal responsibility; the condition must be remedied and there will be a cost to that and Upper Twelve Oaks is willing to go along with the staff report and get the improvements done and spreading the cost among all Upper and Lower homeowners. Whether there is eventual reim- bursement later, that can be discussed in the judicial system where they are right now because of the Stansell lawsuit. Councilmember Brandes stated Mr. Smith seemed to be suggesting that he favors Alternative 3; that the City finance the improvements until the private parties determine who should pay. He stated he has a problem with that. He asked Mr. Smith if the Homeowners Association could find a suitable alterna- tive without the City paying the cost. Mr. Smith suggested that a representa- tive of Twelve Oaks and himself could meet with the City Engineers to under- stand what engineering .structures need to be accomplished and then let them get some bids and proposals from appropriate licensed contractors; they might be able to finance that themselves without the City financing it. They would need several weeks to accomplish that. The problem with that is properly as- sessing the lower homeowners. The City may have the right to do that as a PUD; he would have to research whether the upper homeowners would have the right to assess the Gloria Court homeowners if they did it privately. Councilmember Butler stated Council may be able to separate two issues here; the City may be able to determine what its responsibilities and rights are with regard to the PUD if Council can find a way to let the Association take care of the physical improvements, that is probably a good way to sepa- rate it. Mayor Mercer asked staff if the City is proposing any other solution to this drainage problem other than what has been talked about in the last three or four months and what has been brought in by the Twelve Oaks Homeowners As- sociation. Mr. Elliott advised the City is not proposing any other solution. Mayor Mercer asked why the City would need another several weeks to decide what needs to be done. Mr. Elliott stated it depends on who does the job. Mr. Smith stated they were not sure exactly what needs to be done and they question whether it can be done for the $5,000.00 estimate set forth in the staff report. If '~t can be done for $5,000.00 then he felt they could easily remedy the problem now, but they do not know that. For him to say they will take responsibility for it they would have to find out if they can do it for $5,000.00. Mayor Mercer asked Mr. Smith if he has read the PUD. He advised that he had. Mayor Mercer asked Mr. Smith if he felt that the whole upper and lower is a part of the same PUD. Mr. Smith answered Yes. He felt he had to agree and compliment the City Attorney for the in-depth report. He felt they are all subject to the PUD and he firmly believed it was developed in two phases; but there is now an unfortunate situation where there are some innocent parties both upper and lower that are caught up in the developers debris when the developer did not properly take care of these issues when he should have. It is his firm opinion that the ultimate responsibility it that of the developer, and the Homeowners Association has been trying to take care of that for a couple of years; so far unsuccessfully. He pointed out that Twelve Oaks Homeowners Association came to him in 1984, before Mr. Stansell had any prob- lem, and because there was a V-ditch that was part of the drainage system that was questionable in terms of design and function, Twelve Oaks was concerned about their neighbors below and asked him to look into it. They did an in- 5 - 1-6-87