ST1002-CN080424
Ken Griffin - Carter Crowley Development Agreeement
From:
To:
"Pete Smith" <Psmith@njdhs.com>
"Mindi Hurley" <mhurley@ci.coppell.tx. us>, <jwitt@ci.coppell.tx. us>,
<kgriffin@ci.coppell.tx. us>
4/24/2008 2:12 PM
Carter Crowley Development Agreeement
2Coppell Eco Devo CSE Commercial27192.doc
Date:
Subject:
Attachments:
Attached is draft of the development agreement for your review and comment. We are working on the
Option Contract and Restriction Agreement.
Peter G. Smith
Nichols, Jackson, Dillard
Hager & Smith, LLP
1800 Lincoln Plaza
500 North Akard Street
Dallas, Texas 75201
214-965-9900
214-965-001 0 Fax
**Information contained in this transmission is attorney privileged and confidential. It is intended for the use of the
individual or entity named above. If the reader of this message is not the intended recipient, you are hereby
notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have
received this communication in error, please immediately notify us by telephone.
STATE OF TEXAS
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Economic Development Incentive Agreement
COUNTY OF DALLAS
This Economic Development Incentive Agreement (this "Agreement") is made by and
among the City ofCoppell, Texas (the "City"), and CSE Commercial Real Estate. LP, a Texas limited
partnership (the "Company"), acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the City owns the real property commonly know as the Carter Crowley
Property generally located at Coppell Road, Burns Road and Hammonds Road within the City as
further described in Exhibit "A" (the "Land"); and
WHEREAS, the Company desires to purchase the Land pursuant to the Option
Agreement (hereinafter defined) and to develop the Land for a mixed use development consisting
of approximately ten (10) retail office cottages built with craftsman architectural style, forty-four
(44) townhomes, eight (8) retail service buildings, one (1) restaurant and future commercial
development to be agreed upon by the parties all of which is to be anchored by a town square (the
"Project"); and
WHEREAS, the Company will purchase and develop the Land in phases; and
WHEREAS, the parties have or intend to enter into the Option Agreement pursuant to
which the Company shall have the option to purchase the Land or portions thereof as provided
therein; and
WHEREAS, the Company has advised the City that a contributing factor that would
induce the Company to develop the Land and construct the Project would be an agreement by the
City to provide economic development grant to the Company; and
WHEREAS, the City has adopted programs for promoting economic development; and
WHEREAS, the City is authorized by TEX. Lac. GoV'T. CODE S 380.001 to provide
economic development grants to promote local economic development and to stimulate business
and commercial activity in the City; and
WHEREAS, the City has determined that making an economic development grant to the
Company in accordance with this Agreement will further the objectives of the City, will benefit
the City and the City's inhabitants and will promote local economic development and stimulate
business and commercial activity in the City.
NOW THEREFORE, in consideration of the foregoing, and other valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Article I
Term
The term of this Agreement shall begin on the last date of execution hereof ("Effective
Date") and continue until the Expiration Date, unless sooner terminated as provided herein.
Article II
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed to
them:
"City" shall mean the City ofCoppell, Texas.
"City Facilities" shall collectively mean the Infrastructure and the Town Square.
"Commencement of Construction" shall mean that: (i) the plans have been prepared and
all approvals thereof required by applicable governmental authorities have been obtained for the
respective phase of the Project or the Infrastructure, as the case may be; (ii) all necessary permits
for construction of the respective phase of the Project or the Infrastructure, pursuant to the
respective plans therefore having been issued by all applicable governmental authorities; and (iii)
grading of the Land has commenced for the respective phase of the Project or the Infrastructure,
as the case may be.
"Company" shall mean CSE Commercial Real Estate. LP, a Texas limited partnership.
"Completion of Construction" shall mean that: (i) the Project or the Infrastructure, has been
substantially completed, and (ii) a certificate of substantial completion has been issued by the
general contractor(s) for the Project or the Infrastructure; and (iii) the City has accepted the
respective Infrastructure or the City has issued a Certificate of Occupancy for the respective phase
of the Project, as the case may be.
"Engineering Costs" shall mean all costs of the Engineering Services authorized by the
Company and approved by the City.
"Effective Date" shall mean the last date of execution hereof
"Engineering Services" shall mean the engineering services to be provided by the Project
Engineers for the design and construction of the Project as set forth in the Company's contract(s) with
the Project Engineers.
"Entrance Features" shall mean entrance features to the Project III locations and III
accordance with plans approved by the City.
"Entrance Feature Grant" shall mean an economic development grant in the amount of the
lesser of: (i) fifty percent (50%) of the actual costs of construction paid and incurred by the
Company for the Entrance Features; and (ii) $25,000, to be paid as set forth herein.
"Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of a party's
existence as a going business, insolvency, appointment of receiver for any significant part of such
party's property and such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors, or the commencement
of any proceeding under any bankruptcy or insolvency laws by or against such party and such
proceeding is not dismissed within ninety (90) days after the filing thereof
"Expiration Date" shall mean the tenth (10th) anniversary of the date the City issues the
notice to proceed with the construction of the Infrastructure, unless sooner terminated as
provided herein.
"Finished Lot" shall mean a developed lot or parcel with frontage on a public street with
on-site utilities installed.
"Force Majeure" means any contingency or cause beyond the reasonable control of a party
including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action (unless caused by acts or omissions of the party) adverse weather, fires,
explosions or floods, strikes, slowdowns or work stoppages.
"Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees, and other charges by public or governmental authority, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed,
charged, levied, or imposed by any public or governmental authority on the Company and/or
affecting the Land.
"Infrastructure" shall mean public streets, alleys, parking contiguous to the Town Square,
parking on the west side of the Coppell entry to the Project, water, storm water and sanitary sewer in
public right-of-way, retention pond if necessary, streetscape improvements in the public right-of-way
and the Town Square.
"Land" shall mean the real property described in Exhibit "A".
"Old Coppell Design Guidelines" shall mean the development guidelines for Old Coppell
Design as approved by the City, from time to time.
"Option Agreement" shall mean that certain option to purchase the Land by and between
the Coppell Economic Development foundation and the Company of approximate even date
herewith pursuant to which the Company shall provide a non-refundable option price of $2
Million Dollars with the unilateral right to purchase the Land (less approximately 2 acres for the
Town Square and area necessary for a retention pond) at $1.00 per acre of net land area for a
period of seven (7) years.
"Phase One" shall mean the first phase of the Project which shall consists of at least one
retail service building on the west side of the Town Square and one cottage on the north side of
the Town square and the initial phase of 16 units of townhomes fronting on the Town Square
together with the necessary water, sewer and other infrastructure including the respective portion
of the Infrastructure. The retail service building fronting the west side of the Town Square shall
consist of approximately 20,000 square feet of space and the cottages fronting the north side of
the Town Square shall be designed, constructed and leased such that at least forty percent (40%)
of the total cumulative square feet available will be used for restaurant and retail uses that
produce regular daily foot traffic within the Project.
"Planned Development District" shall mean the planned development zoning ordinance
governing the development of the Land.
"Plans" shall mean the plans and specifications for design and construction of the City
Facilities as approved by the City.
"Project" shall a mixed use development to be constructed on the Land, or portion thereof,
consisting of approximately ten (10) retail office cottages built with craftsman architectural style,
forty-four (44) townhomes, eight (8) retail service buildings, one (1) restaurant and future
commercial development to be defined and agreed upon by the parties to be anchored by the
Town Square, private parking on the west, east and south sides of the perimeter of the City
Facilities, together with other required parking and landscaping all as further described in the
submittals filed with the City in order to obtain a building permit(s) from time to time.
"Project Engineers" shall mean the certified professional engineers selected by the Company
and approved by the City to provide the Engineering Services.
"Project Sign Grant" shall mean an economic development grant in an amount equal to
fifty Percent (50%) of the actual costs incurred and paid by the Company to construct a Project
Sign at Bethel Road and Denton Tap Road, Freeport Parkway and Bethel Road and at Sandy lake
Road and Coppell Road, to be paid as set forth herein.
"Related Agreements" shall mean the Option Agreement and any other appropriate
agreement(s) related to the Project.
"Town Square" shall mean approximately two (2) acres of the Land on which the City
intends to construct a town square open space, generally consisting of landscaping, pavilion,
interactive water feature, playground equipment, and one additional public use venue or other
mutually agreed upon improvements.
Article III
Project
3.1 Construction of the Proiect. The Company shall, subject to Events of Force
Majeure, cause Commencement of Construction of Phase One of the Project to within four (4)
months after City approval of the final plat for Phase One and shall, subject to Events of Force
Majeure, cause Completion of Construction thereof to occur within _ CJ months thereafter.
The Company shall design and construct the Project in accordance with the applicable City
development regulations including the Old Coppell Design Guidelines and the Planned
Development District. Notwithstanding anything to the contrary, the Company shall, subject to
Events of Force Majeure, cause Completion of Construction of the entire the Project (including
the City Facilities) to occur within ten (10) years after the Effective Date.
3.2 Construction of Infrastructure. (a) For the consideration and upon and subject
to the terms, provisions and conditions hereinafter set forth in this Section, Company agrees to
sell and convey unto City, and City agrees to purchase from Company the Infrastructure, or
portion thereof, specifications and warranties related to the Infrastructure or potion thereof, it
being agreed that Company shall own such Infrastructure or portion thereof, until payment
therefore is made by City in accordance with the terms of this Section. The parties acknowledge
that the Infrastructure is to be constructed as the Land is developed and that the City will
purchase the Infrastructure as such portions are completed during the development in accordance
with this section.
(b) Purchase Price. A purchase price equal to the actual costs paid and incurred by
the Company for the construction of the Infrastructure, or portion thereof as mutually agreed to
by the parties shall be due and payable as set forth in this Section. For the purpose of securing the
performance of the City under the terms of this Section, the purchase price for the Infrastructure,
or portion thereof shall be paid by City in installments as construction of the Infrastructure, or
portion thereof progresses, in the amounts and in accordance with an installment schedule
approved by the City Engineer. The obligation of the City to make each installment is subject to
the prior occurrence of each of the following conditions:
(i) City shall have received from Company evidence reasonably satisfactory to the
City that the construction of the Infrastructure, or portion thereof complies with all applicable
laws.
(ii) City shall have received from Company a cost breakdown reasonably satisfactory
to City showing the total costs of constructing the Infrastructure, or portion thereof free and clear
of liens or claims for material supplied and for labor services performed.
(iii) City shall have received from Company a copy of each contract and agreement
entered into between Company and any contractor pertaining to the design, construction and
completion of the Infrastructure, or portion thereof, unless previously provided.
(iv) City shall have received from Company a waiver of lien or a lien subordination
agreement executed by each contractor, laborer and supplier that has furnished labor and/or
materials in connection with the completed aspects of the Infrastructure, or portion thereof, in a
form reasonably acceptable to the City.
(v) City shall have received a title report dated within five (5) days of the installment
payment date from the Title Company showing no state of facts objectionable to the City
including, but not limited to, a showing that no claim for mechanic's or materialmen's liens has
been filed against the Infrastructure, or portion thereof
(vi) The representations and warranties made by Company, as contained III this
Agreement, shall be true and correct as of the date of each installment.
(vii) The covenants made by Company to City as contained in this Agreement shall have
been fully complied with, except to the extent such compliance may be limited by the passage of
time or the Completion of Construction of the Infrastructure, or portion thereof
(viii) A report of any changes, replacements, substitutions, additions or other
modifications in the list of contractors and subcontractors.
(ix) City shall have received from Company a request for payment of an installment of
the Purchase Price in such form and containing such information as the City may reasonably
require, executed by Company stating, among other things, that all work required at the stage of
construction when the installment is requested has been done.
(x) There shall be no breach of this Agreement by Company under this Agreement.
(xi) The Infrastructure, or portion thereof shall not have been materially damaged or
destroyed by Casualty.
(xii) Company shall execute and deliver to City a special warranty deed and bill of sale,
reasonably acceptable to City conveying to City the Infrastructure, or portion thereof then
constructed (it being agreed, however that ownership of the Infrastructure, or portion thereof
then constructed shall automatically vest in the City upon payment therefore, without the
necessity of any instrument).
An amount equal to ten percent (10%) of the Purchase Price shall be retained by City and shall be
paid over by City to Company as the final installment of the Purchase Price, provided that no lien
claims are then filed against the Infrastructure, or portion thereof, when all of the following has
occurred to the reasonable satisfaction of City:
(i) Company shall have completed all Punch list items, if any.
(ii) City shall have received a completion certificate executed by Company for the
Infrastructure, or portion thereof, and the City's inspector stating that the Infrastructure, or
portion thereof has been completed in accordance with the approved Plans, together with such
other evidence that no mechanics or materialmen's liens or other encumbrances have been filed
against the Infrastructure, or portion thereof
(iii) City shall have accepted such Infrastructure.
(iv) Company shall have delivered and assigned all warranties to the City for the
Infrastructure, or portion thereof
No payment of an installment of the purchase price shall be deemed an acceptance by the City of
the work theretofore done. City shall have no obligation to pay any installment of the purchase
price during the occurrence of a breach of this Agreement on the part of Company, but the City
may do so, provided however if the City elects to pay any such installment, no such payment shall
be deemed a waiver of any remedies City may have in respect to such default.
( c) Plans and Specifications. The Company shall be responsible for preparing the
Plans for the Infrastructure, or portion thereof The Company shall submit the Plans for the
Infrastructure, or portion thereof for review and obtain approval thereof by the City Engineer
prior to the submission of any Construction Plans for the Infrastructure, or portion thereof It
shall be the responsibility of the Company to obtain approval of building, grading and other
permits required for the construction of the Infrastructure, or portion thereof from all applicable
governmental authorities. The Plans for the Infrastructure, or portion thereof as approved by the
City Engineer shall be deemed a part of this Agreement without the necessity of further
amendment.
(d) Commencement of Construction. The Company shall, subject to events of
Force Majeure, cause Commencement of Construction of the Infrastructure to occur within -
, and shall, subject to events of Force Majeure, cause Completion of Construction
thereof to occur within _ CJ months thereafter.
( e) Substantial Completion. The Company will use good faith efforts to notify City
of the date that the Company reasonably expects the Infrastructure, or portion thereof to be
Substantially Complete, not more than forty-five (45) or less than thirty (30) business days prior
to the date that is set forth in such notice for the Infrastructure, or portion thereof to be
Substantially Complete. The failure to provide such notice shall not be considered an event of
default. Upon receipt of written notification from the Company that the Infrastructure, or portion
thereof is Substantially Complete, City shall notify the Company of the date a City inspector
intends to make a walk-through inspection of the Infrastructure, or portion thereof to determine
Punch-list items, such date to be within ten (10) business days after City's receipt of such notice.
The Company will accompany the City inspector on the walk-through inspection so as to mutually
determine the Punch-list of items to be completed or repaired by the Company. The Company
will complete all Punch-list items within twenty (20) business days after the date of the walk-
through inspection, subject to events of Force Majeure.
(f) Construction Meetin2s. The Company agrees to meet with City representatives
at least once per month to jointly review the progress of construction and to discuss any other
matters pertaining to the construction of the Infrastructure, or portion thereof The Company will
cause minutes of these meetings to be prepared and provided to City. The Company will
otherwise keep City reasonably informed as to the progress of the Infrastructure, or portion
thereof and agrees to meet with City upon request to discuss the same. Furthermore, the
Company will allow City's inspector to inspect the Infrastructure, or portion thereof at any time
during business hours.
(g) Warranties. The Company agrees, as a part of the costs of construction, to
obtain and assign to City warranties from the Company's contractors, subcontractors and
suppliers providing labor and/or materials in connection with the Infrastructure, or portion
thereof; provided that such assignment shall not prevent the Company from enforcing the same.
Such warranties shall: (a) be at least standard industry warranties from generally recognized
contractors, subcontractors and suppliers with respect to the Infrastructure, or portion thereof;
and (b) obligate the Company's contractors, subcontractors and suppliers to repair all defects in
the applicable portion of the Infrastructure, or portion thereof for a period of one (1) year
following Completion of Construction.
(h) No Delav of Dama2es. In the event of delay not the fault of the City, then the
Company shall be entitled to an extension of time for the Completion of Construction of the
Infrastructure, or portion thereof only and shall not be entitled to any additional payment from the
City on account of such delay.
(i) Casualtv. Risk of loss due to casualty shall be borne by the Company until
Completion of Construction of the Infrastructure, or portion thereof at such time said risk of loss
due to Casualty shall be borne by the City. The Company shall carry or cause to be carried
insurance in amounts sufficient to restore any of the Infrastructure, or portion thereof damaged by
Casualty to substantially the same condition they were in immediately prior to such Casualty. The
Company will in any event restore any of the Infrastructure, or portion thereof damaged or
destroyed by Casualty as part of its obligation to construct the Improvements.
3.3 General Construction ReQuirements. (a) The Company shall cause all necessary
permits and approvals required by the City and any applicable governmental authorities to be
issued for the construction of the Project and the Infrastructure. The Company shall, at its costs,
be responsible for the design, inspection and supervision of the construction of the Project and the
Infrastructure.
(b) The Company shall comply with all local and state laws and regulations regarding the
design and construction of the Project and the Infrastructure applicable to similar facilities
constructed by the City, including but not limited to any applicable requirement relating to
payment, performance and maintenance bonds. Upon Completion of Construction of the
Infrastructure, the Company shall provide the City with a final cost summary of all costs
associated with the construction of the Infrastructure, and provide proof that all amounts owing
to contractors and subcontractors have been paid in full evidenced by the customary affidavits
executed by the Company and/or its contractors.
(c) The Company shall in connection with the construction of the Infrastructure, or
portion thereof provide performance and payment bond(s) for the construction of the
Infrastructure, or portion thereof and the Vision Project Improvements to ensure completion of
such projects in accordance with Chapter 2253, Texas Government Code, as amended and cause
its contractors to provide such performance bonds, and payment bonds in forms reasonably
satisfactory to the City for the construction of the Infrastructure, or portion thereof
3.4 Construction of Entrance Features. The Company shall, subject to events of
Force Majeure, cause Commencement of Construction of the Entrance Features to occur
concurrent with the Commencement of Construction of the Infrastructure, and shall, subject to
events of Force Majeure, cause Completion of Construction thereof to occur concurrent with the
Completion of Construction of the Infrastructure. The costs of construction of the Entrance
Features shall not exceed $50,000 unless otherwise agreed by the parties. The City shall provide
an economic development grant in the amount of the lesser of: (i) fifty percent (50%) of the actual
costs of construction paid and incurred by the Company for the Entrance Features; and (ii)
$25,000, (the "Entrance Feature Grant") to be paid to the Company within thirty (30) days after
receipt of a Payment Request following Completion of Construction of the Entrance Features.
3.5 Proiect Si2:n. The Company shall at its costs construct a Project sign (the
"Project Sign") at Bethel Road and Denton Tap Road, Freeport Parkway and Bethel Road and at
Sandy lake Road and Coppell Road; provided however the City shall pay fifty percent (50%) of
the actual costs incurred and paid by the Company for the Project Signs in the event the City does
not complete the Way-Finding Project (the "Project Sign Grant"). The Project Sign Grant shall
be paid by the City to the Company within thirty (30) days after receipt of a Payment Request
following Completion of Construction of the Project Sign unless the City has completed the Way-
Finding Project.
3.6 Private Parkin2:. The Company shall, at its sole cost, construct private surface
parking on the east, west and south sides of the perimeter of the City Facilities as depicted in
Exhibit "B". The Company subject to events of Force Majeure, cause Commencement of
Construction of the Private Parking to occur concurrent with the Commencement of Construction
of the Infrastructure, and shall, subject to events of Force Majeure, cause Completion of
Construction thereof to occur concurrent with the Completion of Construction of the
Infrastructure; provide however the streetscape improvements shall not be constructed until
improvements are constructed on the Finished Lots.
3.7 En2:ineerin2: Services. (a) Prior to the solicitation of bids for the construction
of the Project, the Company shall at its cost, contract with the Project Engineers. The City shall
have the right to approve or reject the Company's selection of the Project Engineers and the cost
of such services, which approvals shall not be unreasonably withheld, conditioned or delayed.
The Company shall cause the Project Engineers to provide the City with the Plans on or before
_ for review and approval. The City shall have the right to approve the Plans or to terminate
this Agreement upon written notice to the Company. The City shall have the right to approve the
Plans or to terminate this Agreement upon written notice to the Company within _ (~
business days following receipt of the Plans by the City (the "Plan Approval Period"). The City
shall be deemed to have approved the Plans for the City Facilities unless it has provided written
notice to the Company prior to the expiration of the Plan Approval Period of the City's objections
to the Plans. The Company shall cause the Project Engineers to promptly cured or correct any
City objections to the Plans.
(b) The City shall be responsible for all costs for the Engineering services for the City
Facilities and for any change orders or increases in the costs of the Engineering Services for the
City Facilities approved by the City. The Company shall be responsible for all other costs for the
Engineering services for the Project and for any change orders or increases in the costs of the
Engineering Services for the Project.
3.8 Construction Services.
(a) Solicitation of Bids. The Company shall, within _ days after the City approval
of the Plans, solicit at least three (3) competitive bids and/or competitive sealed proposals for the
construction of the Project for the review and approval by the City Engineer. The Company shall
in such solicitation require the companies providing the competitive bids or proposals for the
construction of the Project to bid the total cost of construction of the Project, and to separately
bid the cost of City Facilities and the cost of the Company portion of the Project. Each solicited
bid or proposal for the construction of the Project shall provide the costs of construction of the
City Facilites separate and apart from the costs for the Company's portion of the Project.
(b) Bid Review. The City Engineer shall have the right to review and approve the
solicited bids for the construction of the Project and City Facilites. In the event the City does not
approve any of the bids or proposals (and/or the companies providing such bids or proposals) this
Agreement shall terminate without further notice to either party.
(c) Bid Award. The Company shall award the construction contract(s) to the
responsible bidder(s) approved by the City Engineer (the "Contract Award").
3.9 NCTCOG Standards. Except as otherwise provided in this Agreement, the
design and construction of the Project shall be in accordance with the Standard Specifications for
Public Works Constructions published by the North Central Texas Council of Governments, as
amended, and as modified by the City, and to the extent applicable are hereby incorporated by
reference.
3.10 Bonds. The Company agrees to provide a payment bond and a performance bond
for the construction of the Project to ensure completion of the City facilities in accordance with
Chapter 2253, Texas Government Code, and to cause its contractors and subcontractors to
provide such performance bonds, and payment bonds in forms reasonably satisfactory to the City
for the construction of the Project to ensure completion of the City Facilities.
3.11 Current Revenue. The Grant made hereunder shall be provided solely from lawfully
available funds that have been appropriated by the City. Under no circumstances shall the City's
obligations hereunder be deemed to create any debt within the meaning of any constitutional or
statutory provision. Further, the City shall not be obligated to pay any commercial bank, lender or
similar institution for any loan or credit agreement made by the Company and lor Company. None of
the City's obligations under this Agreement shall be pledged or otherwise encumbered in favor of any
commercial lender and/or similar financial institution.
3.12 Concept Plan. The Company shall at its cost prepare and submit a preliminary
concept site plan to the City for review and approval prior to closing on the purchase of phase
one of the Land for the first phase of the Project. The company shall submit and obtain approval
of a final plat for the cottage cluster, first retail services building on the Town Square and the
initial phase oftownhomes within 120 days after the company closes the purchase of phase one of
the Land pursuant to the Option Agreement.
3.13 Project Marketin2:. The Company at its sole cost shall actively promote and
market the Project.
3.14 Propertv Owners Association. The Company shall be responsible for
establishing a property owners association to provide for the maintenance of the common areas
within the Project. The property owner association documents shall be submitted to the City
Attorney for review and approval prior to the approval of the first plat for the development of the
land for the Project.
3.15 Residential Lot Development. The Company shall cause all residential lot and
structures to be designed and constructed with noise mitigation features as approved by the City.
The Company shall grant an avigation easement to the Dallas Forth Worth regional Airport
relating to the development of the Land for the Project as the Company closes it purchase of the
Land, or portion thereof The Company shall cause all purchasers, tenants and occupants of the
Land and buildings/improvements thereon to be notified in writing of the noise conditions existing
on the Land and of the existence of the any avigation easements and noise conditions prior to
occupancy.
Article IV
City Projects
4.1 Fee Waivers. The City agrees to waive building permit fees, inspection fees, platting
fees, roadway impact fees and other fees for the development of the Project, excluding water and waste
water impact fees assessed against the Land, for the period beginning on the Effective Date and
continuing thereafter for a period often (10) years.
4.2 Bethel Road Extension. The City agrees to provide the land for and construct
the extension of Bethel Road to the Town Square to serve as the Project entrance if the City
acquires the necessary right-of-way including the _ gas station site.
4.3 Retention/Detention Pond. The City agrees to cause the construction of a
retention/detention pond for the Project if necessary, to be owned and maintained by the City.
The City shall provide all required storm water collection capacity on Bethel Road and South
Coppell Road contemporaneously with the construction of the Infrastructure by the Company. In
the event the City elects not to construct the retention/detention pond the Company shall have an
option to purchase such portion of the Land pursuant to the Option Agreement.
4.4 South Coppell Road. The City shall at its costs, subject to events of Force
Majeure, to cause the Commencement of Construction of South Coppell Road southward from
Bethel Road to its intersection with Southwestern Boulevard to occur on or before January 1,
2010.
4.5 Historic Overlav District. The City agrees to provide written notice to and
consult with the Company prior to the adoption of any amendments to the Historic Overlay
District.
4.6 Additional Citv Facilities. The City agrees at its costs, subject to events of Force
Majeure, to construct one (1) pavilion for the Coppell Framers Market and one (1) outdoor
theater on the Land within two (2) years after the Company pays the third installment of the
Option Price pursuant to the option Agreement.
4.7 En2:ineerin2: Costs. The agrees to reimburse the Company for the Engineering
costs incurred and paid by the Company for the Project in the event the City elects not to proceed
with the Project and City Facilities.
Article V
Joint Responsibilities
5.1 Storm Water Street Improvement Plan. The parties shall jointly develop a plan
for the necessary storm water and street improvements for South Coppell Road where
townhomes abut such street as shown on Exhibit "B".
5.2 Water Feature Studv. The parties shall jointly conduct a feasibility study for an
interactive water feature element to be constructed on the Town Square.
Article VI
Termination
6.1 Termination. This Agreement shall terminate upon the occurrence of anyone or
more of the following:
(a) the execution by all parties of a written agreement terminating this
Agreement;
(b) the Expiration Date;
(c) by either party, in the event other party breaches any of the terms or
conditions of this Agreement and such breach is not cured within thirty
(30) days after written notice thereof; or
(d) by the City, if the Company suffers an Event of Bankruptcy or Insolvency;
(e) by the City, if any Impositions owed to the City or the State of Texas by the
Company and/or Company shall become delinquent (provided, however the
Company retains the right to timely and properly protest and contest any such
Impositions) and such delinquent Impositions are not paid within thirty (30)
days after written notice thereof; or
(f) by the City, if any subsequent Federal or State legislation or any decision by a
court of competent jurisdiction declares or renders this Agreement invalid,
illegal or unenforceable;
6.2 In the event the Agreement is terminated by the City pursuant to Section 5.1 ( c), (d), or
(e), the City shall be relieved of any further obligation under this Agreement to purchase the
Infrastructure from the Company. In the event the Agreement is terminated by the City pursuant to
Section 5.1 ( c), the City may seek specific performance, and/or actual damages incurred as a result of
such uncured default by the Company.
6.3 In the event the Agreement is terminated by the Company pursuant to Section 5.1 ( c)
the Company may seek specific performance, and/or actual damages incurred as a result of such
uncured default by the City.
6.4 Ri2ht of Offset. The City may at its option, offset any amounts due and payable
under this Agreement against any debt (including Impositions) lawfully due to the City from the
Company, regardless of whether the amount due arises pursuant to the terms of this Agreement or
otherwise and regardless of whether or not the debt due the City has been reduced to judgment by
a court.
Article VII
Miscellaneous
7.1 Bindin2 A2reement: Assi2nment. The terms and conditions of this Agreement
are binding upon the successors and permitted assigns of the parties hereto. This Agreement may
not be assigned without the prior written consent of the City Manager.
7.2 Limitation on Liabilitv. It is understood and agreed among the parties that the
Company and the City, in satisfying the conditions of this Agreement, have acted independently,
and assume no responsibilities or liabilities to third parties in connection with these actions.
7.3 No Joint Venture. It is acknowledged and agreed by the parties that the terms
hereof are not intended to and shall not be deemed to create a partnership or joint venture among
the parties.
7.4 Authorization. Each party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
7.5 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the party at the address set forth below or (ii)
on the day actually received if sent by courier or otherwise hand delivered.
Ifintended for City, to:
Attn: City Manager
City ofCoppell, Texas
P.O. Box 478
Coppell, Texas 75019
With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
Ifintended for Company, to:
CSE Commercial Real Estate, LP
With a copy to:
Any party shall have the right to change its address for notice by sending notice of change of
address to each other party, in the manner described above.
7.6 Entire A2:reement. This Agreement is the entire agreement between the parties with
respect to the subject matter covered in this Agreement. There is no other collateral oral or written
Agreement among the parties that in any manner relates to the subject matter of this Agreement, except
as provided or referred to in this Agreement or as provided in any Exhibits attached hereto.
7.7 Governin2: Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of
said court.
7.8 Amendment. This Agreement may only be amended by a written agreement
executed by all parties.
7.9 Le2al Construction. In the event anyone 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 other provisions, and it is the intention of the
parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or
unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable and is
as similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
7.10 Recitals. The recitals to this Agreement are incorporated herein.
7.11 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and
the same instrument.
7.12 Exhibits. The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
7.13 Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period of
time following the termination of this Agreement shall survive termination.
7.14 Indemnification bv Companv. CITY SHALL NOT BE LIABLE OR
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY COMP ANY FROM AND AGAINST ANY AND ALL SUITS,
ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE,
OR DESCRIPTION, INCLUDING ALL REASONABLE EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON,
OR INJURY OR LOSS TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY
PERSON OR PERSONS, INCLUDING THE COMPANY, OR PROPERTY, ARISING OUT
OF, OR OCCASIONED BY THE PERFORMANCE OF COMP ANY UNDER THIS
AGREEMENT. THE PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR
THE BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR
GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY. IT IS THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT
THAT THE INDEMNITY PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY
EXTENDED BY COMP ANY TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF THE COMP ANY'S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR
DAMAGE.
4.8 Insurance. Throughout the term of this Agreement, Company shall, at its
expense, maintain in full force and effect, the following insurance:
( a) a policy of insurance for bodily injury, death and property damage insuring against
all claims, demands or actions relating to the Company's performance of its obligations pursuant
to this Agreement with (1) a policy of comprehensive general liability (public) insurance with a
minimum combined single limit of not less than $1 Million Dollars per occurrence for bodily injury
and property damage with an aggregate of not less than $2 Million Dollars; (2) policy of
automobile liability insurance covering any vehicles owned and/or operated by the Company, its
officers, agents, and employees, and used in the performance of its obligations hereunder with a
minimum of $1 Million Dollars; and (3) statutory Worker's Compensation Insurance covering all
employees involved in the performance of its obligations hereunder. Insurance covering the
Project and the Infrastructure against loss or damage from perils covered by an all risk or special
form policy. The must be in amounts not less than eighty (80%) percent of the full insurable value
of the buildings and other improvements included in the Project and Infrastructure. Construction
liability insurance at all times when demolition, excavation, or construction work is in progress on
the Land with limits of not less than $100,000 for property damage and $300,000 for one person
and $1,000,000 for one accident for personal injury and must protect City and Company, against
all liability for injury or damage to any person or property in any way arising out of demolition,
excavation, or construction work on the Land.
(b) All insurance and certificate(s) of insurance shall contain the following provisions:
(1) name the City, its officers, agents and employees as additional insureds as to all applicable
coverage with the exception of Workers Compensation Insurance; (2) provide for at least thirty
(30) days prior written notice to the City for cancellation, non-renewal, or material change of the
insurance; (3) provide for a waiver of subrogation against the City for injuries, including death,
property damage, or any other loss to the extent the same is covered by the proceeds of insurance.
( c ) All insurance companies providing the required insurance shall be authorized to
transact business in Texas and rated at least "A" by AM Best or other equivalent rating service.
(d) A certificate of insurance evidencing the required insurance shall be submitted to
the City prior to Commencement of Construction.
(e) Without limiting any of the other obligations or liabilities of Company, the
Company shall require its general contractors, at the general contractor's own expense, to
maintain during the term of this Agreement, the required insurance including the required
certificate and policy conditions as stated herein.
7.15 Conditions Precedent. This Agreement shall not be effective is subject to and
conditioned upon the following conditions having occurred: (i) the parties having entered into the
Option Agreement on or before _ , 2008 or other date agreed to by the parties; (ii) the
Company having submitted an application for zoning change for the Planned Development
District; and (iii) the City having adopted an ordinance granting the Planned Development
District.
[Signatures Appear on the Following Page]
EXECUTED in duplicate originals this the ~ day of,
Agreed as to Form:
By:
City Attorney
EXECUTED in duplicate originals this the
City of Coppell, Texas
By:
2008.
Douglas N. Stover, Mayor
Attest:
By:
Libby Ball, City Secretary
day of,
CSE Commercial real Estate, LP
2008.
By: Debco partners, LLC, its general parnter
By:
Name Charles Cotton
Title:
Exhibit "A"
Description of Land
Exhibit "B"
Project Depiction