Old Town-CS100720
(8/3/2010) Keith Marvin - Fwd: FW: Coppell ProjectPage 1
From: Mindi Hurley
To:klaughlin@njdhs.com; Phillips, Clay; psmith@njdhs.com
CC:Griffin, Ken; Marvin, Keith; Reid, Brad; Sieb, Gary; Steer, Matt
Date: 7/20/2010 4:38 PM
Subject: Fwd: FW: Coppell Project
Attachments:Development Agreement - City Draft 6-8-10 - RL.doc; Option Agreement - City
Draft 6-8-10 - RL.doc; Shared Parking Agreeement (City7-12-10 redline of C
SE 4-15-10 draft) - RL.doc
Here are their revisions to the last set of documents we sent them. Please look these over and let me know any issues you
have with the changes they made.
Pete and Kevin, we might need to sit down and discuss some of these changes based on the fact that they changed some
of the things we very specifically added last time (i.e. the reimbursement of the $50,000, etc.). Please let me know your
thoughts.
Mindi Hurley
Economic Development Coordinator
City of Coppell
255 Parkway Blvd.
Coppell, TX 75019
(972) 304-3677
(972) 304-3673 (fax)
mhurley@coppelltx.gov
www.coppelltx.gov
>>> "Jeff Fink" <jfink@applenorrisfink.com> 7/20/2010 4:25 PM >>>
Mindi, at the request of CSE Development, attached please find revised
versions of the Development Agreement, Option Agreement and Shared
Parking Agreement. The documents have all been red-lined to show changes
made from the most recent City drafts. We thought it would be helpful to
explain some of the changes in greater detail so that we can hopefully
reach a prompt resolution of the remaining outstanding issues.
A. Development Agreement:
1. Definition of "Covenants" - Due to the desire to get input and
approval from the residential developer and project lender, CSE proposes
that the Covenants be drafted and approved during the Inspection Period.
Note that City approval is a condition to the right of CSE to purchase
the Phase One Land (See new Section 2.2(d) of the Option Agreement).
2. Section 6.8 - After further consideration, it seemed to make more
sense to have the City be responsible for the maintenance and repair of
parking areas and sidewalks located on public land (including those
portions paid for by CSE as part of of the Private Infrastructure). CSE
does not believe the purchasers of lots will be willing to absorb this
cost when the parking is not dedicated for private use.
3. Section 7.6 - CSE cannot agree to open-ended uses such as "public
recreational areas" or "public buildings" that might adversely impact
the remainder of the project. CSE is willing to consider other specific
approved uses.
B. Option Agreement
1. Section 2.4 - CSE requests 30 days from the end of the Inspection
Period to exercise the option on the Phase One Land in order to have a
reasonable amount of time to satisfy City and expected lender
requirements for exercise of the option.
(8/3/2010) Keith Marvin - Fwd: FW: Coppell ProjectPage 2
2. Section 3.2(c) - CSE has never agreed to forfeit the initial $50,000
deposit if the City is unable to provide title in an acceptable state
for development. In addition, CSE believes that it is a fair request and
a likely condition of any lender for CSE to recover a pro rata share of
its costs, including payments for the private infrastructure and utility
work, if an affirmative action by the City post-closing of the Phase One
Land causes CSE to terminate the Option Agreement due to a title defect.
Due to the large sums which will have been expended by CSE at this
stage, they cannot be put into a position of walking away from that
investment with nothing more than a pro rata return of the deposit.
3. Section 4.3(b) - Same reasoning as Section 3.2(c). CSE needs the
ability to recover sunk costs if the project is terminated due to a city
default.
C. Shared Parking Agreement
1. Section 3.1 - Makes clear that the City will allow the inclusion of
the public parking areas for the purpose of satisfying the minimum
parking requirements for the project.
2. Section 3.7 - Buyers purchasing lots in the project will want and
need assurances that the parking availability will not be materially
changed or reduced.
3. Section 3.8 - Confirms City responsibility for maintenance of the
public parking areas and sidewalks consistent with the Development
Agreement.
4. Section 5.1(b) - Confirms that the parking agreement will remain in
effect with respect to lots already purchased pursuant to the Option
Agreement. A complete termination of the agreement will likely eliminate
any ability to sell lots since the buyer will have no assurances on
available parking and satisfaction of minimum parking requirements.
My client and I would be happy to meet with City staff and legal counsel
if needed to discuss these issues and provide further clarification of
the need for these changes. Please let us know how you would like to
proceed from here. Thanks.
Jeff Fink
Apple Norris & Fink, L.L.P.
735 Plaza Boulevard, Suite 200
Coppell, Texas 75019
Phone: (972) 315-1900 x232
Fax: (972) 315-1955
www.applenorrisfink.com <http://www.applenorrisfink.com/>
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(8/3/2010) Keith Marvin - Fwd: FW: Coppell ProjectPage 3
IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that any tax advice contained in this
communication (including any attachments) was not intended or written to
be used, and cannot be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code or (ii) promoting, marketing
or recommending to another party any matters addressed herein.
CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
STATE OF TEXAS §
§ Development Agreement
COUNTY OF DALLAS §
This Development Agreement (this “Agreement”) is made by and among the City of
Coppell, Texas (the “City”), and CSE Commercial Real Estate, LP, a Texas limited partnership or its
permitted assigns (the “Company”), acting by and through their respective authorized officers or
partners.
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
Exhibit “A
further described in ” (the “Land”); and
WHEREAS,Exhibit
the Company desires to purchase a portion of the Land described in
“A-1”
(the “Option Land”) pursuant to the Option Agreement (hereinafter defined) and to
develop the Land for a mixed use development consisting of (i) approximately thirteen (13) retail
office cottages built with craftsman architectural style, (ii) forty-four (44) town homes or thirty-
eight (38) garden patio homes, (iii) eleven (11) retail service buildings, and (iv) two (2)
restaurants, all of which is to be anchored by a publicly-owned town square (the “Project”); and
WHEREAS
, the Company will purchase and develop the Option 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 Option 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 purchase the Option Land and construct the Project would be an
agreement by the City to design and construct the Infrastructure and Town Square Improvements
(as those terms are defined below); and
WHEREAS
, the City has determined that designing and constructing the Infrastructure
and Town Square Improvements 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:
City/CSE Development Agreement - Page 1 29153
CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
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 of Coppell, Texas.
“City Facilities” shall collectively mean the Public Infrastructure and the Town Square
Improvements.
“Commencement of Construction” shall mean, for the respective phase of the City
Facilities or Private Work as applicable, that: (i) the plans have been prepared and all approvals
thereof required by applicable governmental authorities have been obtained; (ii) all necessary
permits for construction pursuant to the respective plans therefore have been issued by all
applicable governmental authorities; and (iii) grading of the Land has commenced for the
respective phase of the City Facilities or Private Work, as the case may be.
“Company” shall mean CSE Commercial Real Estate, LP, a Texas limited partnership, or it’s
permitted assigns.
“Completion of Construction” shall mean for the respective phase of the Private Work,
Phase One, City Facilities or the Project that: (i) the respective phase of the Private Work, Phase
One, City Facilities or the Project, as the case may be, has been substantially completed, and (ii) a
certificate of substantial completion has been issued by the general contractor(s) for the work or
project; and (iii) the City has accepted the City Facilities, the Private Infrastructure or the Public
Infrastructure, or the City has issued a final certificate of occupancy for the improvements
included within Phase One, or the Private Work, as the case may be.
“Concept Plan” shall mean a preliminary conceptual plan for the development of the Land for
Exhibit “B”
the Project and the City Facilities as depicted in .
“”
Covenants shall mean a declaration of covenants, conditions, and restrictions to be
Deleted:
that certain
recorded in the Official Public Records of Dallas County, Texas concurrently with the closing by
Deleted:
in the form attached hereto as
Exhibit “C”
the Company of the purchase of the Phase One Land. The Company and the City shall use good
faith efforts to agree upon the form of the Covenants prior to the end of the Inspection Period (as
defined in the Option Agreement) and it shall be a condition to the Company’s right to purchase
the Phase One Land that the Covenants shall have been approved by the City.
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
“Engineering Costs” shall mean all costs of the Engineering Services to be incurred in
connection with the design and construction of the Private Infrastructure and the City Facilities.
“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 Private Infrastructure and the Public Infrastructure as
set forth in the City’s contract(s) with the Project Engineers.
“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.
th
“Expiration Date” shall mean the tenth (10) anniversary of the date the Contract Award
as defined in Article IV, 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 the Public Infrastructure and the Private Infrastructure.
Exhibit “A”.
“Land” shall mean the real property described in
“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 Option Land by and
between the Coppell Economic Development Foundation, Inc. and the Company of approximate
even date herewith pursuant to which the Company shall have the unilateral right to purchase the
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
Option Land in phases for a total purchase price of One Million Five Hundred Fifty-Four
Thousand Seventy-Five Dollars ($1,554,075.00) for a period of seven (7) years as set forth
therein.
Exhibit “A-1”.
“Option Land” shall mean the real property described in
“Phase One” shall mean the first phase of the Project which shall consist 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 town homes or 14 units of garden patio
homes fronting on the Town Square, together with the necessary electrical, phone, cable, water,
sewer and other infrastructure not constructed by the City. The retail service buildings fronting
the west side of the Town Square (consisting of approximately 20,000 square feet of space), the
cottages fronting the north side of the Town Square (consisting of approximately 10,000 square
feet of space in the aggregate) and the restaurants on the north side of the Town Square
(consisting of approximately 8,000 square feet of space) 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. No restaurants
with drive thru, drive up or drive-in service shall be permitted within the Project; provided,
however, such restriction shall not limit the right of a restaurant to designate no more than two
(2) parking spaces adjacent to the restaurant for take-out customers.
“Phase One Land” shall mean a portion of the Option Land consisting of not less than
84,200 square feet that is specifically described in the notice required by Section 2.2(b) of the
Option Agreement and upon which Phase One will be constructed.
“Planned Development District Ordinance” 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
Infrastructure and Town Square Improvements as approved by the City pursuant to Section 3.1.
“Private Construction Costs” shall mean and refer to the third-party hard and soft costs
incurred by the City to construct the Private Infrastructure, including, without limitation, an
allocable share of all insurance, bonding and other soft costs; but in no event to exceed the
amount set forth in the Contract Award (defined below) as revised pursuant to change orders
mutually approved by Company and City.
“Private Engineering Costs” shall mean the portion of the Engineering Costs applicable to the
Private Infrastructure.
“Private Infrastructure” shall mean and refer to (i) all water, storm water and sanitary
sewer for service to the Finished Lots and (ii) all parking areas located adjacent to public streets
Deleted:
private
and Finished Lots, save and except all parking areas contiguous to the Town Square, the parking
on the east and west of the new proposed Burnet Street and the parking on the east and west side
of the new Main Street (which shall be part of the Public Infrastructure). For purposes of
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
clarification, the proposed streets and parking areas within the Project that are intended to be
Private Infrastructure are highlighted in blue on the Concept Plan.
“Private Work” shall mean the construction of the improvements on the Land that are to
be privately owned under the terms of this Agreement including the Project.
“Project” shall mean a mixed use development to be constructed on the Option Land, or
portion thereof, consisting of (i) approximately thirteen (13) retail office cottages built with
craftsman architectural style, (ii) forty-four (44) town homes or thirty-eight (38) garden patio
homes, (iii) eleven (11) retail service buildings, and (iv) two (2) restaurants, 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. The term
“Project” shall not include within its meaning any portion of the City Facilities.
“Project Engineers” shall mean Freese and Nichols, Inc., certified professional engineers
selected by the City and approved by the Company to provide the Engineering Services.
“Public Construction Costs” shall mean and refer to the third-party hard and soft costs
incurred by the City to construct the City Facilities.
“Public Engineering Costs” shall mean the portion of the Engineering Costs applicable to
the City Facilities.
“Public Infrastructure” shall mean and refer to all public streets; public parking contiguous
to the Town Square; public parking on the east and west side of the new proposed Burnet Street
entry from Bethel Road and on the east and west side of the new Main Street; water, storm water
and sanitary sewer in the public right-of-way in suitable capacities for the completion of the
Project; public fire hydrants; streetscape improvements in the public right-of-way that abuts the
Town Square; all street or pedestrian lighting in or adjacent to the public right-of-way; earthwork
necessary to provide positive drainage from the southwest to the northeast corner of the Land, fill
dirt; landscaping and hardscaping of the public right-of-way contiguous to Town Square and the
new Main Street; the initial Storm Water Pollution Prevention Plan and implementation; hydro-
mulching of the final grading of the Land, if required; and the serpentine red cedar landscaping at
Burns Street. Public Infrastructure does not include any streetscape work on private property. For
purposes of clarification, the proposed streets and parking areas within the Project that are
intended to be Public Infrastructure are highlighted in red on the Concept Plan.
“Related Agreements” shall mean the Option Agreement, the Shared Parking Agreement,
the Covenants and any other appropriate agreement(s) related to the Project.
“Shared Parking Agreement” shall mean that certain shared parking agreement to be
Exhibit “C”.
entered into between the City and the Company in the form attached hereto as
Deleted:
D
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
“Substantially Complete” or “Substantial Completion” shall mean that stage by which the
construction of the respective improvements and/or infrastructure or the designated portion
thereof, is sufficiently complete in accordance with the Plans and that the City and/or the
Company, as applicable, can occupy and/or enjoy the beneficial use of the respective
improvements or designated portion thereof, for its intended purpose, exclusive of punch list
items even though minor miscellaneous beyond punch list work and/or adjustment may be
required.
“Town Square” shall mean approximately two (2) acres of the Land on which the City
intends to construct a town square open space, generally initially consisting of a pavilion, public
restrooms and playground equipment, together with the landscaping and hardscaping of Town
Square. The portion of the Land encompassing the Town Square is shown on the Concept Plan.
“Town Square Improvements” shall mean the publicly-owned vertical improvements to be
constructed within the Town Square, including the pavilion, public restrooms and playground
equipment, together with the landscaping and hardscaping of Town Square.
Article III
Design of the Infrastructure and City Facilities
The City shall cause the Project Engineers to design the Private Infrastructure and City
Facilities. The Company shall have the right to review and provide input on all plans and
specifications prepared by the Project Engineers for the Private Infrastructure, but final approval
shall rest solely with the City. The final plans and specifications for the Private Infrastructure and
City Facilities shall be referred to herein as the “Plans”. The City shall cause the Project Engineers
to break out the Engineering Costs between the Public Engineering Costs and the Private
Engineering Costs. The City shall act in good faith in attempting to ensure a proper allocation of
the Engineering Costs. Company shall reimburse City for the Private Engineering Costs as
provided in Article V below.
Article IV
Bidding and Contract Award
The City shall, within 30 days after its approval of the Plans, cause a bid package to be
prepared to be sent out to prospective bidders for the construction of the Private Infrastructure
and the City Facilities. Bidders shall be required to break out their respective bid between the
Public Construction Costs and the Private Construction Costs. The Company shall have the right
to review and provide input on the bid package for the Private Infrastructure, but final approval
shall rest solely with the City. Once the bid package is approved by the City, the City shall solicit
competitive bids and/or competitive sealed proposals for the construction of the Private
Infrastructure and City Facilities for the review and approval by the City Engineer. The Company
shall have the right to review and provide input on the bids for the Private Infrastructure, but final
approval shall rest solely with the City. The City shall award the construction contract(s) for the
Private Infrastructure and City Facilities to the bidder selected by the City (the “Contract
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
Award”). The City shall enter into a construction contract with the approved bidder promptly
thereafter for the construction of the Private Infrastructure and City Facilities; provided, however,
in no event shall the City be required to commence construction of the Infrastructure prior to the
date specified in Section 5.2(c) below. The contract shall include a clear break out of cost
between the Private Construction Costs and the Public Construction Costs and a copy thereof
shall be provided by City to Company.
Article V
Company and City Construction Obligations; Company Reimbursement Obligations
Construction of the Project and the Town Square Improvements
5.1 .
Construction of the Project
(a) . The Company shall, subject to Events of
Force Majeure, cause Commencement of Construction of Phase One of the Project to
occur within four (4) months after the later to occur of (i) Completion of Construction of
the Infrastructure, and (ii) 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
twenty-four (24) 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 Ordinance. Notwithstanding
anything to the contrary, the Company intends, subject to Events of Force Majeure, to
cause Completion of Construction of the entire Project to occur within ten (10) years after
the date of Contract Award.
Construction of the Town Square Improvements
(b) . The City shall,
subject to Events of Force Majeure, cause Commencement of Construction of the Town
Square Improvements to occur within four (4) months after the completion of the Public
Infrastructure, and shall, subject to Events of Force Majeure, cause Completion of
Construction thereof to occur within one hundred eighty (180) days thereafter.
Construction of Infrastructure; Reimbursement of Private Engineering Costs
5.2
and Private Construction Costs.
Agreement to Construct Infrastructure
(a) . For the consideration and upon
and subject to the terms, provisions and conditions hereinafter set forth in this Agreement,
City agrees to construct the Infrastructure.
Reimbursement of Private Engineering Costs and Private
(b)
Construction Costs
. Company shall reimburse City for the full amount of the Private
Engineering Costs and Private Construction Costs (collectively, the “Private Costs”) upon
the later to occur of (i) thirty (30) days following the Completion of Construction of the
Infrastructure, and (ii) the closing of the purchase of the Phase One Land. The obligation
of the Company to reimburse City for the Private Costs is subject to the prior occurrence
of each of the following conditions:
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
(i) Company shall have received from City evidence reasonably
satisfactory to the Company that the construction of the Private Infrastructure
complies with all applicable laws; provided, however, a certificate to such effect
from the Project Engineers shall be satisfactory to Company.
(ii) Company shall have received from City a copy of all warranties and
bonds that relate to the construction of the Private Infrastructure.
(iii) Company shall have received a title report (or down date
endorsement to a title policy) dated within five (5) days of the reimbursement date
from the Title Company (as defined in the Option Agreement) showing that no
claim for mechanic’s or materialmen’s liens has been filed against the Option Land,
or portion thereof.
(iv) Company shall have received from City at least thirty (30) days
prior to the date of reimbursement a written confirmation of the amount of Private
Costs.
(v) There shall be no material breach of this Agreement by City.
(vi) The Private Infrastructure shall not have been materially damaged
or destroyed by Casualty.
Payment for the Private Costs shall be made by Company in immediately available funds.
Notwithstanding anything contained herein to the contrary, it is the intent of the parties to
this Agreement that the City pay 100% of the Public Engineering Costs and Public
Construction Costs and that the Company, if it elects to purchase the portion of the Phase
One Land, pay 100% of the Private Engineering Costs and Private Construction Costs.
Commencement and Completion of Construction
(c) . The City shall,
subject to events of Force Majeure, cause Commencement of Construction of the
Infrastructure to occur within sixty (60) days after the Contract Award, and shall, subject
to events of Force Majeure, cause Completion of Construction thereof to occur within one
(1) year thereafter; provided, however, in no event shall City be required to cause
Commencement of Construction of the Infrastructure until sixty (60) days following the
earlier to occur of (i) the closing of the purchase of the Phase One Land, and (ii) full
payment of the Option Fee (as defined in the Option Agreement) .
General Construction Requirements.
5.3
Permits.
(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. The Company shall, at its cost, except as otherwise provided
herein, be responsible for the design, inspection and supervision of the construction of the
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
Project, but the Company shall not be responsible for the design or construction of the
Infrastructure or Town Square Improvements.
Compliance with Laws.
(b) The Company shall comply with all local and
state laws and regulations regarding the design and construction of the Project.
Construction Meetings
(c) . City and Company representatives shall meet as
reasonably requested by either party to jointly review the progress of construction and to
discuss any other matters pertaining to the construction of the Infrastructure.
Warranties.
(d) The City shall reasonably cooperate with Company to
enforce any warranties applicable to the Private Infrastructure, but shall not be required to
incur any expenses in providing such cooperation.
Casualty
(e) . Risk of loss to the Infrastructure due to casualty shall be borne
by the City until closing of the purchase of each phase of the Option Land pursuant to the
Option Agreement, at which time risk of loss to the Private Infrastructure located on,
under or above the portion of the Option Land being purchased due to Casualty shall be
borne by the Company.
NCTCOG Standards
(f) . Except as otherwise provided in this Agreement,
the design and construction of the Public Infrastructure 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.
Parking Limitations
5.4 . The City agrees, to the extent allowed by law, to not allow
other development to include the private parking and public parking in satisfying the parking
requirements of such development, except as provided in the Shared Parking Agreement.
Article VI
Other Company Obligations
Detail Site Plan
6.1 . The Company shall, at its cost, prepare and submit to the City a
detailed site plan (the “Site Plan”) with respect to each portion of the Option Land being
purchased and obtain approval thereof prior to closing on the purchase of such portion of the
Option Land.
Platting – Phase One
6.2 . The Company shall submit and obtain final re-plat approval
of the final plat of the Project for Phase One within 120 days after the Company closes the
purchase of the Phase One Land pursuant to the Option Agreement.
Project Marketing
6.3 . The Company at its sole cost shall actively promote and
market the Project.
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
Property Owners Association.
6.4 The Company shall be responsible for
establishing a property owners association to provide for the maintenance of the common areas
within the Project consistent with the Covenants. The property owner association documents
shall be submitted to the City Attorney for review and approval prior to the approval of the final
plat for the development of Phase One, and the Covenants shall be file of record concurrently with
the closing of the purchase of the Phase One Land.
Residential Lot Development.
6.5 The Company shall cause all residential lots and
structures to be designed and constructed with noise mitigation features as reasonably determined
by Company and approved by the City. The Company shall grant an avigation easement to the
Dallas Forth Worth Regional Airport relating to the development of the Option Land for the
Project as the Company closes it purchase of the Option Land, or portions thereof. The Company
shall cause all purchasers, tenants and occupants of the Option Land and buildings/improvements
thereon to be notified in writing of the noise conditions existing on the Option Land and of the
existence of the any avigation easements and noise conditions prior to occupancy.
Insurance.
6.6 Commencing upon the date on which Company begins construction of
any improvements in Phase One and continuing until this Agreement terminates, 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) if the Company hires any employees, statutory Worker’s Compensation
Insurance covering all employees involved in the performance of its obligations hereunder;
insurance covering the Project against loss or damage from perils covered by an all risk or
special form policy in amounts not less than eighty (80%) percent of the full insurable
value of the buildings and other improvements included in the Project; and 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-
City/CSE Development Agreement - Page 10 29153
CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
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.
Design Covenant.
6.7 The retail service buildings fronting the west side of the
Town Square (consisting of approximately 20,000 square feet of space), the cottages fronting the
north side of the Town Square (consisting of approximately 10,000 square feet of space) and the
two (2) restaurants on the north side of the Town Square (consisting of approximately 8,000
square feet of space in the aggregate) 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. No restaurants with drive
thru, drive up or drive-in service shall be permitted within any of the Private Improvements;
provided, however, such restriction shall not limit the right of a restaurant to designate no more
than two (2) parking spaces adjacent to the restaurant for take-out customers.
Repair and Maintenance of Infrastructure.
6.8 Following the closing of the
Deleted:
Private
purchase of the Phase One Land, the owners association to be formed pursuant to the Covenants
shall be responsible for the maintenance and repair of the Private Infrastructure, including
specifically the private parking areas, but excluding private parking areas and sidewalks located
on publicly owned land and meters, valves, pumps, pipes and other equipment normally owned
and maintained by the utility provider, including the City. The City shall be responsible for the
maintenance and repair of the Public Infrastructure and all parking and sidewalks located on
publicly owned land.
Article VII
City Obligations
Fee Waivers.
7.1 The City agrees to waive building permit fees, zoning application fees,
inspection fees, platting fees, roadway impact fees and other fees for the development of the Project
(including with respect to vertical construction), excluding water and waste water impact fees, assessed
against the Option Land, which shall be refunded to the Company following completion of the related
portion of the Project in accordance with City policy, for the period beginning on the Effective Date
and continuing until the Expiration Date.
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Storm Water Facilities.
7.2The City shall provide all required storm water
collection capacity within Bethel Road and South Coppell Road necessary to accommodate the
improvements shown on the Concept Plan with current City projects for the widening of such
Deleted:
¶
¶
roads.
Historic District
7.3 . The City agrees to provide written notice to the Company prior
to the adoption of any amendments to the Historic District.
Additional City Facilities
7.4 . The City agrees, at its cost, subject to events of Force
Majeure, to construct one (1) additional City Facility on the Town Square within two (2) years
after the Company closes the purchase for the portion of the Phase One Land pursuant to the
Option Agreement. Additional City Facilities may include an interactive water feature or outdoor
theatre. Any other proposed uses must be approved in advance by the Company, which shall not
be unreasonably withheld, denied or delayed.
Project Identification on Way-Finding Signs.
7.5 If the Company wants to modify
the Way Finding Signs to include signage identifying the Project other than by “Old Town
Coppell” then such modifications shall be mutually agreed by the parties and all costs of such
modifications shall be paid by the Company.
Use Restrictions on Adjacent City Land
7.6 . With respect to the land area shown as
“Future Public Use” on the Concept Plan (which is not part of the Project), City agrees that for a
period of seven (7) years following the Effective Date or the termination of the Option
Agreement, whichever is earlier, such land shall not be used for any purpose other than for a
community theater, public meeting space, library, museum, police station or such other uses
Deleted:
a public recreational area,
approved by Company or, following the termination of this Agreement, the owners association to
Deleted:
, or other public building,
be created pursuant to the Covenants, and related lighting, driveways and parking areas. City
Deleted:
shall use good faith efforts to minimize the impact of any lighting on the private improvements
within the Project. The provisions of this Section 7.6 shall be included within the Covenants.
Article VIII
Water Feature Study
The parties shall jointly conduct a feasibility study for an interactive water feature element
to be constructed on the Town Square; provided, however, the Company shall not be required to
spend any money on any such study.
Article IX
Termination
Termination.
9.1 This Agreement shall terminate upon the occurrence of any one or
more of the following:
(a) the execution by all parties of a written agreement terminating this Agreement;
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Formatted: Underline
CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
(b) the Expiration Date;
(c) by either party, in the event the 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, provided however such period shall be extended for an additional
period of thirty (30) days so long as the defaulting party commences the cure of
such breach within such initial 30-day period and thereafter diligently pursues the
completion of such curative action; 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 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;
(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; provided, however, this paragraph shall be subject to Section
10.9;
(g) upon termination of the Option Agreement if the Company fails to exercise the
Option to purchase the Phase One Land within the time required by the Option
Agreement; or
(h) upon termination of the Option Agreement if Company fails to close on the
purchase of the Phase One Land within the time required by the Option
Agreement.
City Rights Upon Termination.
9.2 In the event the Agreement is terminated by the
City pursuant to Section 9.1(d), (e), (f), (g), or (h), the City shall be relieved of any further
obligations under this Agreement. In the event the Agreement is terminated by the City pursuant
to Section 9.1(c), the City may seek specific performance and/or actual damages incurred as a
result of such uncured default by the Company; provided, however, notwithstanding anything
contained herein to the contrary, the obligations of Company contained in Section 5.1(a) of this
Agreement shall be personal to Company and any assignee entity controlled by Charles Cotten
and Greg Yancey and those parties shall be the only parties against which City may seek specific
performance and/or actual damages for a breach thereof.
Company Rights Upon Termination.
9.3 In the event the Agreement is terminated by
the Company pursuant to Section 9.1(c) the Company may seek specific performance, and/or actual
damages incurred as a result of such uncured default by the City.
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Right of Offset.
9.4 The City may, at its option, following a default by the Company
which is not cured within any applicable cure period, 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 X
Miscellaneous
Binding Agreement; Assignment.
10.1 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; provided, however, the
Company may, without City Manager approval, upon thirty (30) days prior written notice to the
City, assign this Agreement to an entity controlled by Charles Cotten and Greg Yancey if the new
entity agrees in writing to assume all rights and obligations of the Company under this Agreement.
In addition, this Agreement may be collaterally assigned by the Company (or any permitted
assignee) to a financial institution providing financing to the Company (or any permitted assignee)
for the purchase and/or development of the Project.
Limitation on Liability
10.2 . 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.
No Joint Venture.
10.3 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.
Authorization
10.4 . 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.
Notice
10.5 . 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.
If intended for City, to:
Attn: City Manager
City of Coppell, Texas
P.O. Box 478
Coppell, Texas 75019
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With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
If intended for Company, to:
CSE Commercial Real Estate, LP
4956 N. O'Connor Blvd.
Irving, Texas 75062
Attn: Charles Cotten
With a copy to:
Jeffrey Fink
Apple Norris & Fink, LLP
735 Plaza Boulevard
Suite 200
Coppell, TX 75019
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.
Entire Agreement
10.6 . 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 providedor referred to in this Agreement (including the Related Agreements) or as provided in
any Exhibits attached hereto.
Governing Law
10.7 . 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.
Amendment
10.8 . This Agreement may only be amended by a written agreement
executed by all parties.
Legal Construction
10.9 . In the event any one 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
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CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
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.
Recitals
10.10 . The recitals to this Agreement are incorporated herein.
Counterparts
10.11 . 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.
Exhibits
10.12 . The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
Survival of Covenants
10.13 . 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.
Indemnification by Company
10.14 CITY SHALL NOT BE LIABLE OR
.
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY COMPANY 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 COMPANY 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 COMPANY TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF THE COMPANY’S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR
DAMAGE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THE COMPANY SHALL NOT DEFEND, INDEMNIFY OR HOLD THE CITY
HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF, OR OCCASIONED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY OR
RELATED TO ANY EMINENT DOMAIN PROCEEDINGS (OR PROPERTY
ACQUISITIONS IN LIEU THEREOF) RELATED TO THE PROJECT OR THE CITY
FACILITIES.
Approvals.
10.15 Whenever an approval or consent is required by a party under the
terms of this Agreement, such approval or consent shall not be unreasonably withheld, delayed or
conditioned.
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Current Revenue
10.16 . 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 /or Company.
Condition Precedent
10.17 . (a) This Agreement shall not be effective and is subject
to and conditioned upon the following conditions having occurred: (i) the Company and the
Deleted:
n
Coppell Economic Development Foundation, Inc. having entered into the Option Agreement
concurrently with this Agreement; (ii) the Company having submitted an application for zoning
change for the Planned Development District Ordinance; (iii) the City shall have adopted the
Planned Development District Ordinance with no changes or conditions to the application not
approved by the Company; and (iv) the City shall have caused a final plat of the Land to be
approved (which plat shall lay out the blocks and public streets within the Project).
(b) If the Company shall terminate this Agreement due to the failure of the conditions
described in clauses (a) (iii) or (iv) above, City shall reimburse the Company for all option
payments made under the Option Agreement.
Employment of Undocumented Workers
10.18 . During the term of this Agreement the
Company agrees not to knowingly employ any undocumented workers and if convicted of a violation
under 8 U.S.C. Section 1324a (f), the Company shall repay the amount of the any grants and any other
funds received by the Company from the City as of the date of such violation within 120 business days
after the date the Company is notified by the City of such violation, plus interest at the rate periodically
announced by the Wall Street Journal as the prime or base commercial lending rate, or if the Wall
Street Journal shall ever cease to exist or cease to announce a prime or base lending rate, then at the
annual rate of interest from time to time announced by Citibank, N.A. (or by any other New York
money center bank selected by the City) as its prime or base commercial lending rate, from the date of
such notice until paid.
Attorneys Fees.
10.19 If it becomes necessary for either party hereto to file a suit to
enforce this Agreement or any provisions contained herein, the Prevailing Party in such action is
entitled to recover, in addition to all other remedies or damages, reasonable legal fees and court
“”
costs incurred by the Prevailing Party in such suit. The term Prevailing Party means the Party
whose relief in an action is closest to the relief sought in the initial pleading in such proceeding
(whether by way of affirmative recovery or defense of claim).
[Signatures Appear on the Following Page]
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EXECUTED
in duplicate originals this the ___ day of _________________, 2010.
City of Coppell, Texas
By:
Bob Mahalik, Mayor Pro Tem
Deleted:
Jayne Peters
Attest:
By:
Libby Ball, City Secretary
Agreed as to Form:
By:__________________________
City Attorney
EXECUTED
in duplicate originals this the day of , 2010.
CSE Commercial Real Estate, LP
By: Debco partners, LLC, its general partner
By:
Name Charles Cotten
Title: Member
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Exhibit “A”
Description of Land
Deleted:
and Public Infrastructure
Purchase
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Exhibit “A-1”
Description of Option Land
I. Net Land Area as of 4/05/10 per F & N Plat Drawing
Square Feet Acres
1. Block 2 Cottage 1 – Cottage 4 23,351
2. Block 3 Cottage 5 – Cottage 10 30,884
3. Block 1 Cottage 11-13 + Parking 60,856
4. Block 4 Retail 1-5 / Service 1-6 123,858
5. Block 5 Square Restaurants F1-F2 30,100
6. Block 7 TH 1W-14W; 1E-14E 114,693
7. Block 9 Townhomes 1S-10S 54,552
Total Developer Net Land Area: 438,294
43,560 10.06
Future Public Development Site 199,569 43,560 4.58
Total Net Land Area of Project 637,863
43,560 14.64
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PLAT
[to be attached]
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Exhibit “B”
Concept Plan
Deleted:
Economic
Deleted:
and Public Infrastructure
Purchase
Exhibit “B” to City/CSE Development Agreement - Page 1 29153
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Deleted:
Exhibit “C”¶
Covenants¶
Exhibit “C” to City/CSE Economic Development and Public Infrastructure Purchase Agreement – Page 1 29153
CITY REDLINE 6/8/10 OF CSE DRAFT 4/15/10
Exhibit “C”
Deleted:
D
Shared Parking Agreement
Deleted:
D
Deleted:
Economic
Deleted:
and Public Infrastructure
Purchase
Exhibit “C” to City/CSE Development Agreement - Page 1 29153
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State of Texas §
§ Option Agreement
County of Dallas §
This Option Agreement (“Agreement”) is made and entered into on __________, 2010,
by and between CSE Commercial Real Estate, LP, a Texas Limited Partnership (the
“Company”), and the Coppell Economic Development Foundation, Inc., a Texas nonprofit
corporation (the “CEDF”) acting by and through their authorized representatives.
WHEREAS,
CEDF owns or has contracted to purchase approximately 24 acres, more
the
Exhibit “A”
or less, of real property described in (the “Land”), attached hereto and incorporated
herein by reference, and desires to grant Company an option to purchase certain portions of the
Exhibit A-1
Land described in (the “Option Land”), as set forth herein (the “Option”); and
WHEREAS,
the Company desires to purchase the Option Land pursuant to the Option
and to develop the Option Land for a mixed use development anchored by a town square and
consisting of (i) approximately thirteen (13) retail office cottages built with craftsman
architectural style, (ii) forty-four (44) townhomes or thirty-eight (38) garden homes, (iii) eleven
(11) retail service buildings, and (iv) two (2) restaurants (the “Project”); and
WHEREAS
, the Company will purchase and develop the Option Land in phases;
NOW, THEREFORE,
in consideration of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
Article I
Definitions
Whenever used in this Agreement, the following words, terms, and phrases shall have the
following meanings:
“City”
shall mean the City of Coppell, Texas.
City Facilities”
“ shall collectively mean the Public Infrastructure and the Town Square
Improvements.
“Commencement of Construction”
shall mean for the respective phase of the City
Facilities or Private Work, as applicable, that: (i) the plans have been prepared and all approvals
thereof required by applicable governmental authorities have been obtained; (ii) all necessary
permits for construction 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 City Facilities or Private Work, as the case may be.
“Company”
shall mean CSE Commercial Real Estate, LP, a Texas limited partnership, or
its permitted assigns.
CEDF CSE Option Agreement Page-1 29147
CITY REDLINE 6/8/10 OF CSE 4/15/10 Draft
“Completion of Construction”
shall mean for the respective phase of the Private Work,
Phase One, City Facilities or the Project that: (i) the respective phase of the Public Work, the
Private Work, Phase One, City Facilities or the Project, as the case may be, has been
substantially completed, and (ii) a certificate of substantial completion has been issued by the
general contractor(s) for the work or project; and (iii) the City has accepted the City Facilities,
the Private Infrastructure, or the Public Infrastructure, or the City has issued a final certificate of
occupancy for the improvements within Phase One, or the Private Work, as the case may be.
“Covenants”
shall have the meaning assigned by the Development Agreement.
“Development Agreement”
shall mean that certain Development Agreement by and
between the Company and the City dated of approximate even date herewith.
“Effective Date”
shall mean the last date of execution hereof.
“Event of Bankruptcy, Insolvency, or Forfeiture”
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. An event
of forfeiture shall also include the suspension or termination of the right to conduct business in the
State of Texas pursuant to applicable provisions of the Texas Business Organizations Code for
failure to pay required Impositions or file required reports.
th
“Expiration Date”
shall mean the seventh (7) anniversary of the Completion of
Construction of the Public Infrastructure.
“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 the Public Infrastructure and the Private Infrastructure.
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“Inspection Period”
shall mean the period beginning on the Effective Date and ending
Deleted:
p
at 5:00 p.m. on the date 240 days thereafter.
“Land”
shall mean the real property described in Exhibit “A”.
“Net Land Area”
shall mean the “Total Developer Net Land Area” as shown on Exhibit
“A-1”.
“Old Coppell Design Guidelines”
shall mean the development guidelines for Old
Coppell Design as approved by the City, from time to time.
“Option”
shall mean the right granted to Company herein to purchase the Option Land,
in one or more sales transactions that close within the periods required by this Agreement.
“Option Fee”
shall mean the sum of $Two Hundred Fifty Thousand Dollars
($250,000.00) to be paid by Company to the CEDF as independent consideration for the Option
as set forth herein. The Option Fee shall be credited against the Purchase Price of the Option
Land as provided in Section 3.7(e) below.
Deleted: b
“Option Land”
shall mean the real property described in Exhibit “A-1”.
“Parties”
shall mean collectively Company and CEDF.
“Phase One”
shall mean the first phase of the Project which shall consist of at least (i)
one retail service building on the west side of the Town Square, (ii) one cottage on the north side
of the Town Square, and (iii) the initial phase of 16 units of townhomes or 14 units of garden
patio homes fronting on the Town Square together with the necessary electrical, phone, cable,
water, sewer and other infrastructure not constructed by the City. The retail service building
fronting the west side of the Town Square (consisting of approximately 20,000 square feet of
space), the cottages fronting the north side of the Town Square (consisting of approximately
8,000 square feet of space in the aggregate) 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. No restaurants with drive
thru, drive up or drive-in service shall be permitted within the Projectprovided, however, such
;
restriction shall not limit the right of a restaurant to designate no more than two (2) parking
spaces adjacent to the restaurant for take-out customers.
“Phase One Land”
shall mean a portion of the Option Land consisting of not less than
84,200 square feet that is specifically described in the notice required by Section 2.2(b), below,
and upon which Phase One will be constructed.
“Plans”
shall mean the plans and specifications for design and construction of the
Infrastructure and the Town Square Improvements as approved by the City pursuant to Section 3.1
of the Development Agreement.
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“Private Infrastructure”
shall mean and refer to all parking areas located adjacent to
Deleted: private
public streets and Finished Lots, specifically excluding all parking areas contiguous to the Town
Square, the parking on the east and west of the new proposed Burnet Street and the parking on
the east and west side of the new Main Street (which shall be part of the Public Infrastructure);
and water, storm water and sanitary sewer for service to the Finished Lots.
“Project”
shall mean a mixed use development to be constructed on the Option Land, or
portion thereof, to be anchored by the Town Square, and consisting of (i) approximately thirteen
(13) retail office cottages built with craftsman architectural style, (ii) forty-four (44) town homes
or thirty-eight (38) garden patio homes, (iii) eleven (11) retail service buildings, and (iv) two (2)
restaurants, (v) private parking on the west, east and south sides of the perimeter of the City
Facilities, together with other required parking, and (vi) landscaping, all as further described in
the submittals filed with the City in order to obtain a building permit(s) from time to time. The
term “Project” shall not include within its meaning any portion of the City Facilities.
“Public Infrastructure”
shall mean and refer to all public streets; public parking
contiguous to the Town Square; public parking on the east and west side of the new proposed
Burnet Street entry from Bethel Road and on the east and west side of the new Main Street;
water, storm water and sanitary sewer in the public right-of-way in suitable capacities for the
completion of the Project; public fire hydrants; streetscape improvements in the public right-of-
way that abuts Town Square; all street or pedestrian lighting in or adjacent to the public right-of-
way; earthwork necessary to provide positive drainage from the southwest to the northeast corner
of the Land, fill dirt; landscaping and hardscaping of the public right-of-way contiguous to Town
Square and the new Main Street; the initial Storm Water Pollution Prevention Plan and
implementation; hydro-mulching of the final grading of the Land, if required and the serpentine
red cedar landscaping at Burns Street. Public Infrastructure does not include any streetscape
work on private property.
“Purchase Price”
shall mean a total purchase price for the Option Land of One Million
Five Hundred Fifty-Four Thousand Seventy-Five Dollars ($1,554,075.00). The Purchase Price
for each phase of the Option Land being purchased shall be the product found by multiplying
$3.55 by the Net Land Area of the tract of land being purchased.
“Related Agreements”
shall mean the Development Agreement, the Shared Parking
Agreement, the Covenants and any other appropriate agreement(s) related to the Project.
“Shared Parking Agreement”
shall have the meaning assigned by the Development
Agreement.
“Substantially Complete” or "Substantial Completion"
shall mean that stage by
which the construction of the respective improvements and/or infrastructure or the designated
portion thereof, is sufficiently complete in accordance with the Plans that the City and/or the
Company, as applicable, can occupy and/or enjoy the beneficial use of the respective
improvements or designated portion thereof, for its intended purpose, exclusive of punch list
items even though minor miscellaneous beyond punch list work and/or adjustment may be
required.
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“Title Company”
shall mean Republic Title Company of Texas, Inc., whose address is
8810 N. MacArthur Boulevard Irving, Texas 75063.
“Town Square”
shall mean the approximately two (2) acres of the Land on which the
City intends to construct a town square open space, generally initially consisting of a pavilion,
public restrooms and playground equipment together with the landscaping and hardscaping of
Town Square.
Article II
The Option
2.1 Option Fee
. Except as otherwise provided in this Agreement, or in the
Development Agreement, the Option Fee is non-refundable. Company shall pay the Option Fee
to CEDF in installments as follows:
(a) $50,000.00 to be paid upon the Effective Date; and
(b) $200,000.00 to be paid not later than the earlier of:
(1) Closing on the purchase of the Phase One Property; and
(2) 240 days after the Effective Date.
Each installment of the Option Fee must be paid by certified or cashiers check made payable to
CEDF, or wired directly to an account designated by CEDF.
2.2 Option Granted.
In consideration of payment of the Option Fee, CEDF hereby grants to Company the
Option, which may be exercised only upon and subject to the following:
(a) All installments of the Option Fee that are due must be paid and current;
(b) Company must deliver to CEDF a written notice of its desire and intent to close
on a portion of the Option Land (“the Option Notice”) which must include:
(1) a survey containing at least the legal description of the portion of the
Option Land that Company desires to purchase; provided, however, if the portion of the
Option Land on which the Company desires to exercise its option to purchase can be
described solely by reference to a final plat approved by City and recorded in the Official
Public Records of Dallas County, Texas, without need to include a metes and bounds
description, the Option Notice shall contain such description and no survey shall be
required;
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(2) an acknowledgement and agreement that the purchase of the Option Land
is subject to the provisions of this Agreement and that this Agreement is in full force and
effect; and
(3) the date of the proposed closing, which date shall be not later than forty-
five (45) days following delivery of the Option Notice to CEDF, but in any case not later
than the Expiration Date;
Deleted:
and
(c) Company must be in material compliance with the Development Agreement; and
Deleted:
.
(d) Company and City must have agreed upon the form of Covenants to be recorded
concurrent with the closing of the Phase One Land.
2.3 Failure to Exercise Subsequent Options by Expiration Date:
Company’s right to exercise the Option with respect to any or all of the Option Land will
terminate if not exercised on or before the Expiration Date.
2.4 Exercise of Option to Purchase Phase One Land:
Notwithstanding anything
herein to the contrary, Company must exercise the option to purchase the Phase One Land not
later than thirty (30) days following the end of the Inspection Period.
Deleted: st
the first (1) business day
Article III
Sale of Option Land
3.1 Generally.
Upon the timely exercise of the Option by Company through delivery of an Option
Notice to CEDF, the CEDF agrees to sell, and Company agrees to purchase, the portion of the
Option Land described in the Option Notice subject to and in accordance with the provisions of
this Article III and Articles V and VI, below.
3.2Survey and Title Commitment.
(a) Not later than twenty (20) calendar days after the date of receipt of the Option
Notice, the CEDF shall deliver to Company:
(1) a current commitment for title insurance for the Option Land, or portion
thereof, from the Title Company, setting forth the state of title to the Option Land, or
portion thereof, as the case may be, together with any easements or restrictions (existing
or created pursuant hereto) benefiting or burdening the Option Land, together with all
exceptions or conditions to such title;
(2) legible copies of all documents referenced in the title commitments;
(3) tax statements for current and prior years.
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The Company may at its option and expense, also cause a survey to be made of the portion of the
Option Land being purchased (the “Survey”).
(b) The Company shall, not later than twenty (20) days after the Company’s receipt
of the last of the Survey and Title Commitment, notify CEDF and Title Company of any
objections to the Survey or Title Commitment. If there are objections to the Title Commitment
or Survey by Company, CEDF shall in good faith attempt to satisfy them prior to closing, but
CEDF shall not be required to incur any cost to do so. If CEDF delivers written notice to
Company on or before the original date for Closing that CEDF is unable to satisfy such
objections to Title Commitment or Survey prior to Closing, the date for Closing shall, at the
request of CEDF, be extended for a period of 60 days to provide additional time to cure said
objection. If CEDF is unable to cure the objection by the date of Closing, the Company may
either, waive such objection(s) and accept such title as CEDF is able to convey, or terminate its
exercise of the Option to purchase the Option Land or portion thereof by written notice to CEDF.
(c) If CEDF is unable to cure the objection to Title Commitment or Survey prior to
Closing and the Company elects to terminate its exercise of its Option to purchase the portion of
the Option Land described in the Option Notice, upon execution by Company of a release said
tract from this Option Agreement, CEDF agrees to refund the Option Fee in an amount equal to:
(1) the ratio of the Net Land Area of the portion of the Land described in the
related Notice of Exercise of Option to the entire Net Land Area; multiplied by
(2) $250,000.00.
Deleted:
0
In addition, , if the objection results from any action taken by or consented to by the City or
CEDF after the date of the purchase of the Phase One Land by CSE, CEDF shall also reimburse
Company for the same pro rata share of all direct costs incurred by the Company for the Project
to date, plus interest on all of the above (including the portion of the Option fee being refunded)
from the date paid by the Company until reimbursed at the rate of eight percent (8%) per annum.
Deleted:
¶
.
3.3Insured Amount of Title Policy.
For purpose of determining the insured amount
of each title policy to be issued with respect to each sale a portion of the Option Land pursuant to
this Agreement, the amount shall be the Purchase Price for the portion of the Option Land being
sold.
3.4Title to the Option Land
.
At closing, the Company shall be entitled to receive, and CEDF shall deliver, good and
indefeasible fee simple title to the portion of the Option Land described in the Option Notice,
free and clear of all liens and encumbrances, except:
Exhibit “B”
(a) the title exceptions shown on ;
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(b) the Covenants and the Shared Parking Agreement;
(c) such liens and encumbrances in favor of the Company’s lenders as may be created
at the time of Closing; and
(d) such other matters as Company may waive or consent to as part of the platting
process of the Land.
3.5Permitted Exceptions.
. Company acknowledges and agrees that the Option
Land, or portion thereof, will be conveyed by CEDF at closing subject to the Covenants and the
Shared Parking Agreement, and that the Special Warranty Deed shall be subject to such
provisions. The zoning, the lien for current taxes, the environmental condition of the Option
Land and the Covenants and the Shared Parking Agreement shall be deemed to be Permitted
Exceptions. CEDF and Company agree and understand that CEDF is conveying the Option
Land as an independent foundation for the City of Coppell, Texas, and Company acknowledges
that the Option Land is conveyed subject to the Covenants and the Shared Parking Agreement.
3.6Additional Condition to Closing
. Each closing is conditioned upon the CEDF
closing on the purchase of the Option Land, or that portion thereof, from the City pursuant to a
purchase and option agreement for the Land by and between the CEDF and City.
3.7Closing and Settlement
.
Closing Date.
(a) Unless otherwise provided hereinabove, the closing and settlement
of the purchase and sale of the Option Land pursuant to any exercise of the Option shall be made
th
not later than the forty-fifth (45) day following delivery of the Option Notice to CEDF (“the
Closing Date”) .
Purchase Price.
(b) At closing, Company shall pay the Purchase Price, in cash or by
certified or cashier’s check.
Special Warranty Deed.
(c) At Closing, CEDF shall deliver to Title Company for
delivery to the Company a special warranty deed and bill of sale conveying the tract described in
the Option Notice which shall be in form and substance reasonably satisfactory to CEDF, the
Company, and their respective counsel and containing such reservations and exceptions to title as
allowed by the provisions of this Agreement, including, but not limited to, the Permitted
Exceptions in accordance with the foregoing provisions
Covenants and Shared Parking Agreement.
(d) At the Closing of the purchase of
the Phase One Land, the CEDF (and/or City) and the Company shall execute and record the
Deleted:
portion of Option
Covenants and the Shared Parking Agreement. Upon the Closing of each additional phase, the
Company shall execute and record an amendment to the Covenants making the portion of the
Option Land being purchased subject to the Covenants, said amendment to be approved by City
in the same manner as the Covenants.
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Crediting Option Fee to Purchase Price.
(e) The Option Fee shall be credited to
the Purchase Price of the last 70,423 square feet of the Option Land to be purchased by the
Company at a rate of $3.55 per square foot; provided, however:
(1) no such credit shall be given until the Company has closed on the
purchase of all of the Option Land except 70,423 square feet; and
(2) notwithstanding (1), above, if the exercise of an Option results in less than
70,423 square feet of the Option Land remaining unsold, the Option Fee shall be applied
to the Purchase Price of the Option Land described in the notice of exercise of the
Option, but only in an amount equal to 70,423 square feet less the square footage of the
unsold Option Land multiplied by $3.55.
3.8 CEDF’s Closing Costs.
CEDF hereby agrees to pay and be responsible for the following closing cost:
(a) the cost of all tax certificates relating to all taxes and other assessments incurred
or arising in relation to the Option Land;
(b) one-half (½) of the Title Company’s escrow fees;
(c) all costs and expenses incurred by or on behalf of the CEDF, including CEDF’s
attorney’s fees;
(d) such other incidental costs and fees customarily paid by sellers of real property in
Dallas County, Texas, for transactions of a similar nature to the transaction contemplated herein,
and
(e) all fees and premiums for the Basic Owner’s Title Policy; provided, however,
CEDF’s responsibility for payment of title policy fees and premiums for all transactions closed
pursuant to this Agreement shall not exceed the amount that would be paid for a single issuance
of an owner’s title policy in the amount of $1,554,075.00 as of the date of Closing on the Phase
One Land.
3.9 The Company’s Closing Cost.
The Company hereby agrees to pay and be responsible for the following closing cost:
(a) all fees and premiums for any endorsements to the Basic Owner’s Title Policy,
and fees and premiums for concurrent issuance of any mortgagee’s policy or interim construction
binder for the benefit of the Company’s lender;
(b) all fees and premiums for the Basic Owner’s Title Policy in excess of the amount
CEDF is required to pay pursuant to Section 3.8(e), above.
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(c) all costs for the Survey(s);
(d) recording fees for the Covenant, the Shared Parking Agreement and any and all
deeds of trusts, security agreements, collateral assignments, assignments of rents, and other
similar documents related to any loan procured by the Company;
(e) one-half (½) of the Title Company’s escrow fees;
(f) all costs and expenses incurred by or on behalf of the Company, including the
Company’s attorneys’ fees;
(g) such other incidental costs and fees customarily paid by purchasers of property in
Dallas County, Texas, for transactions of a similar nature to the transaction contemplated herein.
3.10Proration of Taxes.
Ad valorem taxes against the tract described in the Option Notice shall be prorated as of
the Closing Date and become the responsibility of the Company as of the Closing Date. The
CEDF shall pay or cause to be released any assessments or other charges against the tract
described in the Option Notice on or before the Closing.
3.11 Representations and Covenants.
CEDF represents and covenants that: (a) it has
authority to enter into this Agreement; and (b) no other person has any interests in or claims
against the Land (other than as reflected by the Title Commitment), and it will not hereafter
encumber the Land. Company represents that it has authority to enter into this Agreement. The
only representations made by any party concerning the Land, the Option Land and this
Agreement are as set out in this Section 3.11.
3.12Right to Inspect Option Land; Option Land Sold As Is.
.
(a) Company shall have the right to conduct such inspections and obtain such reports
from third party engineers and consultants (including environmental consultants) as it may
require, to satisfy itself, as to the condition of the Option Land, or portion thereof. CEDF shall
cause the City to provide Company, without representation or warranty of any kind, copies of all
third party environmental, drainage and soil condition reports relating to the Land in the
possession of City. Company may, at its sole discretion, if it is not satisfied with the Option Land
for any reason, terminate this Agreement and the Development Agreement by written notice to
CEDF and City delivered on or before the expiration of the Inspection Period, in which case
CEDF shall return to Company any portion of the Option Fee paid.
(b) Company represents that as of the closing of any purchase pursuant to the Option
that Company will have fully inspected the Option Land, or portion thereof, will have made all
investigations as it deems necessary or appropriate and will be relying solely upon its inspection
and investigation of the Option Land, or portion thereof, for all purposes whatsoever, including,
but not limited to, the determination of the condition of the structures, improvements, soils,
subsurface, drainage, surface and groundwater quality, and all other physical characteristics;
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availability and adequacy of utilities; compliance with governmental laws and regulations;
access; encroachments; acreage and other survey matters and the character and suitability of the
Option Land.
(c) In addition, Company acknowledges and agrees that the Option Land is being
purchased and will be conveyed “AS IS” with all faults and defects, whether patent or latent, as
of the Closing.
(d) Except with respect to the quality of the title being conveyed by CEDF to
Company pursuant to this Agreement, Company acknowledges and agrees thatthere have been
no representations, warranties, guarantees, statements or information, express or implied,
pertaining to the Option Land, its condition, or any other matters whatsoever, made to or
furnished to Company by CEDF or City or any employee or agent of CEDF or City, except as
specifically set forth in this Agreement and the Development Agreement.
(e) The provisions of this Section 3.12 shall survive the Closing, whether one or
more, and the termination of this Agreement.
Article IV
Default, Termination, Remedies
4.1 Termination Events.
In addition to such other circumstances as set forth
elsewhere in this Agreement, this Agreement shall terminate upon the occurrence of any one or
more of the following:
(a) the execution by the Parties of a written agreement terminating this Agreement;
(b) the Expiration Date;
(c) by a party providing written notice of termination to the other party after the party
receiving the notice has (1) failed to cure a breach of the terms and conditions of this Agreement
within 30 days after receiving written notice of said breach or (2) with respect to a breach that
cannot under the circumstances be reasonably cured within said 30 day period, the breaching
party has failed to commence the cure of such breach within 30 days after receiving written
notice of said breach and thereafter diligently pursued to completion the cure of said breach;
(d) by CEDF, if the Company suffers an Event of Bankruptcy, Insolvency, or
Forfeiture; provided that, in the case of a Forfeiture involving the suspension or termination of
Company’s right to conduct business in the State of Texas, the City has sent written notice of
such event to the Company and the Company has failed to cause the revocation (or equivalent
action) of such suspension or termination within sixty (60) days thereafter;
(e) subject to Section 3.12(a), the failure of the Company to exercise the Option to
purchase the Phase One Land within the time provided in Section 2.4, above;
Deleted: Property
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(f) the failure of the Company to close on the purchase of the Phase One Land within
Deleted: Property
the time provided by Section 2.2(b)(iii), above, unless the date of such Closing is extended by
Deleted:
4
agreement of the parties or as otherwise allowed by the provisions of this Agreement; and
(g) the failure of a financial institution, its successors, or assigns that holds a security
interest in this Agreement pursuant to a collateral assignment as described in Section 6.3(a) to
assume, within thirty (30) days following the foreclosure of such collateral assignment, the rights
Deleted:
such
and obligations of the Company in this Agreement.
4.2 Termination by CEDF
. In the event this Agreement is terminated by CEDF
pursuant to Section 4.1(c), (d), (e), (f) or (g), CEDF shall, as its sole and exclusive remedy:
Deleted: or
(a) be relieved of any further obligation under this Agreement to sell any portion of the
Option Land to the Company for which closing has not yet occurred; and
(b) be relieved of any obligation, if any, to refund any portion of the Option Fee paid
pursuant to this Agreement, to the extent this Agreement would otherwise require such refund.
4.3 Termination by the Company.
In the event this Agreement is terminated by the
Company pursuant to Section 4.1(c) prior to the Closing on all portions of the Option Land,
Company’s sole remedy shall be to either:
(a) enforce specific performance of the Obligations of CEDF under this Agreement;
or
(b) recover liquidated damages from CEDF equal to the sum of (i) the amount of the
Option Fee paid to date plus (ii) all direct costs incurred by the Company for the Project to date,
Deleted:
less $50,000.00. .
multiplied by the ratio found by dividing the net area of the portion of the Land which has not
been conveyed to the Company by the entire net area of the Land, plus interest on the sums
described in clauses (i) and (ii) above from the date paid by the Company until reimbursed at the
rate of eight percent (8%) per annum.
Article V
Notices
5.1Delivery of Notices.
All notices, requests, demands or other communications
required or permitted hereunder shall be in writing and shall be deemed to have been fully and
completely made when given by hand, by confirmed facsimile transmission or by overnight
delivery by Federal Express or other reliable courier or the mailing of such by registered or
certified mail, addressed as follows:
If intended for CEDF, to:
Coppell Economic Development Foundation, Inc.
255 Parkway Blvd.
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Coppell, Texas 75019
Attn: Clay Phillips
Telephone (972) 304-3677
With copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 N. Akard Street
Dallas, Texas 75201
Telephone (214) 965-9900
Fax (214) 965-0015
Email: psmith@njdhs.com
If intended for Company, to:
CSE Commercial Real Estate, L.P.
4956 N. O’Connor Blvd.
Irving, Texas 75062
Attn: Charles Cotten
With Copy to:
Jeffrey Fink
Apple Norris & Fink,LLP
735 Plaza Boulevard, Suite 200
Coppell, Texas 75019
5.2 Change of Address for Notice.
Any party may at any time and from time to
time by notice in writing to the other party hereto change the name or address of the person to
whom notice is to be given as hereinbefore provided.
Article VI
Miscellaneous.
6.1 Entireties
. This Agreement and the Related Agreements contain the entire
agreement of the Parties pertaining to the Land and the Option Land.
6.2Modifications
. This Agreement may only be modified by a written document
signed by the Parties.
6.3Assignment
. Company may not assign its rights under this Agreement to any
entity without the express written consent of CEDF; provided, however, Company may, without
prior approval but with written notice to CEDF:
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(a) grant a security interest in this Agreement by means of a collateral assignment of
this Agreement to a financial institution providing financing to the Company for the purchase of
the Option Land and/or development of the Project, but only if such collateral assignment
obligates the financial institution:
(1) to notify CEDF of any default in the provisions of any note or security
agreement which is secured in whole or in part by a security agreement in this
Agreement; and
(2) acknowledges and agrees that CEDF may terminate this Agreement pursuant
to Section 4.1(g) if the financial institution, its successors, and assigns fails within thirty
(30) days following such foreclosure to agree in writing to assume the rights and
obligations of the Company in the event the financial institution forecloses its security
interest in this Agreement;
Deleted:
.
(b) assign this Agreement to an entity duly authorized to conduct business in the State
of Texas controlled by Charles Cotten and Greg Yancey but only if the new entity agrees in
writing, in a form approved by the CEDF, to assume all rights and obligations of this Agreement.
The Company understands, acknowledges and agrees that CEDF shall be under no obligation to
release the Company, its partners, shareholders, successors, representatives, or assigns from the
obligations set forth in this Agreement in the event of any assignment of this Agreement,
whether such assignment is made with or without the consent of CEDF.
6.4Estoppel Letter.
CEDF shall, upon the written request of Company, and within a
reasonable time thereafter, provide an estoppel letter or similar document requested by any
financial institution providing financing for the Project confirming the existence and terms of
this Agreement and the other Project Documents, and such other matters as shall be reasonably
requested by such financial institution.
6.5Time is of the Essence
. Time is of the essence with respect to the performance
by the Parties of their respective obligations hereunder.
6.6 Non-Business Day
. If the final date of any period provided herein for the
performance of an obligation or for the taking of any action falls on a Saturday, Sunday, or
holiday, then the end of such period shall be extended to the next business day.
6.7Zoning
. CEDF assumes no obligation to change the current zoning on the Land.
6.8Brokers
. The Parties represent and warrant that they have not worked with any
broker relative to this transaction and that no brokerage commission is due and payable upon the
Closing. Each party shall indemnify each other from any claim for brokers’ commissions
relative to the sale of the property and alleged to be due.
6.9Counterparts
. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original for all purposes and constitute one and the same
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instrument; but in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
6.10Legal Construction
. In the event any one 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 the Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in
it.
6.11Law Governing
. This Agreement shall be construed under and in accordance
with the laws of the State of Texas; and venue for any action arising from 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.
6.12Survival 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 Closing or the termination of the Agreement shall survive.
6.13 Attorneys Fees.
If it becomes necessary for either Party hereto to file a suit to
enforce this Agreement or any provisions contained herein, the Prevailing Party in such action is
entitled to recover, in addition to all other remedies or damages, reasonable legal fees and court
“”
costs incurred by the Prevailing Party in such suit. The term Prevailing Party means the Party
whose relief in an action is closest to the relief sought in the initial pleading in such proceeding
(whether by way of affirmative recovery or defense of claim).
6.14 Recording; Memorandum of Option.
The Parties hereto agree that this
Agreement shall not be recorded. The Parties shall, concurrently with the execution of this
Agreement, execute and record a Memorandum of Option describing the option granted to
Company hereunder.
(Signatures on Following Page)
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EXECUTED
this the _______ day of ___________, 2010.
Deleted:
09
Coppell Economic Development Foundation
By: ____________________
Name: Clay Phillips
Title: President
EXECUTED
this the ________ day of ___________, 2010.
Deleted:
09
CSE Commercial Real Estate, L.P.
By: Debco Partners, LLC, its general partner
By: _________________________
Charles Cotten, Member
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Exhibit "A"
Legal Description of the Land
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Exhibit "A-1"
Legal Description of the Option Land
I. Net Land Area as of 4/05/10 per F & N Plat Drawing
Square Feet Acres
1. Block 2 Cottage 1 – Cottage 4 23,351
2. Block 3 Cottage 5 – Cottage 10 30,884
3. Block 1 Cottage 11-13 + Parking 60,856
4. Block 4 Retail 1-5 / Service 1-6 123,858
5. Block 5 Square Restaurants F1-F2 30,100
6. Block 7 TH 1W-14W; 1E-14E 114,693
7. Block 9 Townhomes 1S-10S 54,552
Total Developer Net Land Area: 438,294
43,560 10.06
Future Public Development Site 199,569 43,560 4.58
Total Net Land Area of Project 637,863
43,560 14.64
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PLAT
[to be attached]
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Exhibit “B”
Title Exceptions
A. Easement to Texas Power & Light Company for electric transmission and distribution
line created by instrument dated 03/31/1926, filed 04/17/1926, executed by J.D. Thweatt,
recorded in Volume 1305, Page 348, of the Real Property Records, Dallas County, Texas.
B. Easement to Home Interiors & Gifts, Inc. created by Sanitary Sewer Easement dated
05/27/1975, filed 06/09/1975, executed by Thomas C. McBride, et al, recorded in
Volume 75112, Page 1980, of the Real Property Records, Dallas County, Texas.
C. Terms and conditions of Ordinance No. 71-100, entitled Airport Zoning Ordinance of the
Dallas-Fort Worth Regional Airport, filed September 2, 1982, recorded in Volume
82173, Page 178, Real Property Records of Dallas County, Texas.
D. Mineral lease, and all rights incident thereto, to MCGR Operating Company, Inc. from
City of Coppell, Texas described in instrument filed 02/06/2008, cc# 20080039819, Real
Property Records of Dallas County, Texas. Title to said interest not checked subsequent
to the date thereof.
Exhibit “B” to CEDF CSE Option Agreement Page-1 29147
City Redline 7/12/10 of CSE Draft 4/15/10
STATE OF TEXAS §
Shared Parking Agreement Between
§
City of Coppell, Texas, and
§
CSE Commercial Real Estate, LP
COUNTY OF DALLAS §
This Shared Parking Agreement (this “Agreement”) is made by and between the City of
Coppell, Texas (the “City”), and CSE Commercial Real Estate, LP, a Texas limited partnership and its
permitted assigns (the “Company”), acting by and through their respective authorized officers and
partners.
WITNESSETH:
WHEREAS
, the City owns the real property commonly known as the Carter Crowley
Property generally located at Coppell Road, Burns Road and Hammonds Road within the City as
Exhibit “A
further described in ” (the “Land”); and
WHEREAS,
the City (or in the case of the Option Agreement, the Coppell Economic
Development Foundation, Inc.) and the Company have previously executed that certain Option
Agreement and that certain Development Agreement (both hereinafter defined) with respect to
the Company’s purchase and development of a portion of the Land for a mixed use development
consisting of (i) approximately thirteen (13) retail office cottages built with craftsman
architectural style, (ii) forty-four (44) townhomes or thirty-eight (38) garden patio homes, (iii)
eleven (11) retail service buildings, and (iv) two (2) restaurants, all of which is to be anchored by
a town square (the “Project”); and
WHEREAS,
the development and construction of the Project requires the construction of
certain public parking within the Project; and
WHEREAS,
the City and the Company desire to enter an agreement regarding the terms
and conditions for shared use of portions of the parking to be developed as part of the Project;
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 terminated as provided herein.
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Article II
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed to
them:
“Approval” shall mean all City standard development approval processes.
“City” shall mean the City of Coppell, Texas.
“Company” shall mean CSE Commercial Real Estate, LP, a Texas limited partnership and its
permitted assigns.
“Covenants” shall mean that certain declaration of covenants, conditions, and restrictions
Deleted:
for the Land to be recorded in the Official Public Records of Dallas County, Texas concurrently
with the recordation of this Agreement.
“Development Agreement” shall mean that certain Development Agreement by and
between the parties dated _____, 2010.
“Effective Date” shall mean the last date of execution hereof.
“Land” shall mean the real property described in Exhibit “A”.
“Option Agreement” shall mean that certain option to purchase the Option Land by and
between the Coppell Economic Development Foundation and the Company dated _____, 2010.
“Option Land” shall mean the real property described in Exhibit “A-1” attached.
“Planned Development District Ordinance” shall mean the planned development zoning
ordinance governing the development of the Land.
“Project” shall mean a mixed use development to be constructed on the Land, or portion
thereof, consisting of (i) approximately thirteen (13) retail office cottages built with craftsman
architectural style, (ii) forty-four (44) townhomes or thirty-eight (38) garden patio homes, (iii)
eleven (11) retail service buildings, and (iv) two (2) restaurants, to be anchored by the Town
Square, private parking on the west, east and south sides of the perimeter of the Town Square,
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.
“Public Parking” shall mean and refer to all parking areas within the Project constructed
upon those portions of the Land owned by the City or the Coppell Economic Development
Foundation, regardless of whether the cost of constructing such parking areas was paid by the
Deleted:
are originally constructed
City or the Company.
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“Related Agreements” shall mean the Option Agreement, the Development 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 a pavilion, public restrooms
and playground equipment, together with the landscaping and hardscaping of the Town Square.
Article III
Right to Use Public Parking; Limitations
3.1 Developer Use of Public Parking
City agrees that during the term of this Agreement,
Company and its officers, directors, members, employees, agents, successors, assigns, tenants, invitees,
licensees, contractors, customers, and guests, and the officers, directors, members, employees, tenants,
invitees, licensees, contractors, customers, and guests of the successors and/or assigns of Company and
its interest in the Option Land, shall have the non-exclusive right to use the Public Parking for the
purpose of parking motor vehicles with respect to the uses developed on the Option Land by Company
or its successors or assigns. City further agrees that Company and its successors and assigns shall allow
the inclusion of the Public Parking in satisfying the minimum number of parking spaces required by the
City’s land use and development ordinances and regulations for the use and development of the Land
3.2 Enforcement of Laws and Ordinances.
The use of the Public Parking by those
authorized by Sections 3.1, above, shall be used in accordance with all applicable laws and
ordinances relating to the regulation of parking as may from time to time be established by City or
pursuant to state law, including any restriction designations made by City pursuant to Section 3.3,
below.
3.3 Designation of Special Parking.
City shall retain the right to designate spaces
within the Public Parking that are limited for special uses, such as parking for disabled people,
loading zones, and fire zones.
3.4 City Use of Parking.
Company understands and acknowledges that, except for
those parking spaces within the Public Parking that may be designated by City for limited use as
noted in Section 3.3, above, the Public Parking will be accessible to, and may be used by, any
member of the public at any time. Except as otherwise authorized by a resolution or ordinance
approved by City’s city council (including the Planned Development District Ordinance), no space
located within Public Parking shall:
(a) be designated by Company, its successors or assigns, for exclusive use by
users of the Option Land or portion thereof; or
(b) be posted by Company, its successors, assigns, or tenants, with a sign
limiting the time (whether hours or duration) during which the parking space may be used.
3.5 Cooperation During Conflicting Uses.
City and Company agree to use
reasonable efforts to conduct events or operations, or limit the conduct of events or operations by
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others, in a manner that will allow those parties described in Sections 3.1 and 3.4, above, to use
the Public Parking without entirely excluding others within the respective described groups from
using the Public Parking. However, Company understands and acknowledges that:
(a) City will, from time to time, be sponsoring special public events or
authorize private events that will use the Town Square or other city-owned facilities in the
Project that will attract a substantial number of members of the public who will use the
Public Parking during such events; and
(b) Such use may be to the extent that available spaces in Public Parking may
be substantially reduced to the point of being unavailable for use by Company or
subsequent owners of the Option Land.
COMPANY AGREES THAT CITY SHALL HAVE NO LIABILITY TO COMPANY OR ITS
OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS,
TENANTS, INVITEES, LICENSEES, CONTRACTORS, CUSTOMERS, AND GUESTS,
AND THE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, TENANTS, INVITEES,
LICENSEES, CONTRACTORS, CUSTOMERS, AND GUESTS OF THE SUCCESSORS
AND/OR ASSIGNS OF COMPANY AND ITS INTEREST IN THE OPTION LAND, AND
HEREBY RELEASES AND HOLDS CITY HARMLESS, WITH RESPECT TO ANY
CLAIMS FOR ACTUAL OR CONSEQUENTIAL DAMAGES AS THE RESULT OF THE
UNAVAILABILITY OF PARKING FOR USE BY THOSE DESCRIBED IN SECTION 3.1
ABOVE.
3.6 Use of Parking by Third Parties to Meet Minimum Parking Requirements.
City agrees, to the extent allowed by law, to not allow the inclusion of the Public Parking in
satisfying the minimum number of parking spaces required by the City’s land use and development
ordinances and regulations for the use and development of property that is not part of the Land;
provided, however, City shall have the right to allow owners of non-residential uses in the area
commonly known as “Old Coppell” to include the Public Parking located along Burnett Street and
on West Bethel Road to be used to satisfy said owners’ minimum parking requirements. City
understands, acknowledges, and agrees that except as provided herein City has no authority to
allow any third party the right to include parking constructed on any property owned by
Developer within said third party’s minimum off-street parking requirement.
3.7 Limitations on Changes to Public Parking.
During the term of this Agreement,
City agrees not to make any material changes to the amount or configuration of the Public
Parking without the prior written consent of Company (for so long as Company owns any part of
the Option Land) and the Owners Association to be formed under the Covenants.
3.8Repair and Maintenance of Public Parking.
The City shall be responsible for
the maintenance and repair of the Public Parking and all sidewalks located on publicly owned
land. Such maintenance and repair shall be performed to the same standards as other similarly
situated public streets and sidewalks in the City.
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Article IV
Miscellaneous
Binding Agreement; Assignment.
4.1 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; provided, however, the
Company may, without City Manager approval, upon thirty (30) days prior written notice to the
City, assign this Agreement to an entity controlled by Charles Cotten and Greg Yancey, but only
if the new entity agrees in writing to assume all rights and obligations of the Company under this
Agreement. In addition, this Agreement may be collaterally assigned by the Company (or any
permitted assignee) to a financial institution providing financing to the Company (or any permitted
assignee) for the purchase and/or development of the Project.
Limitation on Liability
4.2 . 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.
No Joint Venture.
4.3 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.
No Grant of Property Interest.
4.4 The parties hereto understand and agree that this
Agreement does grant or convey, and is not intended to grant or convey, an interest in real
property to the Company or the City.
Authorization
4.5 . 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.
Notice
4.6 . 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.
If intended for City, to:
Attn: City Manager
City of Coppell, Texas
P.O. Box 478
Coppell, Texas 75019
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With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
Telephone (214) 965-9900
Fax (214) 965-0010
If intended for Company, to:
CSE Commercial Real Estate, LP
4956 N. O'Connor Blvd.
Irving, Texas 75062
Attn: Charles Cotten
With a copy to:
Jeffrey Fink
Apple Norris & Fink, LLP
735 Plaza Boulevard
Suite 200
Coppell, Texas 75019
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.
Entire Agreement
4.7 . 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 providedor referred to in this Agreement (including the Related Agreements) or as provided in
any Exhibits attached hereto.
Governing Law
4.8 . 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.
Amendment
4.9 . This Agreement may only be amended by a written agreement
executed by all parties, including all subsequent owners of any portion of the Land; provided, however,
with respect to any portion of the Land that is developed for residential use which requires mandatory
membership in an owners association, such association may bind all such owners and the approval of
each individual owner shall not be required.
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Legal Construction
4.10 . In the event any one 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.
Recitals
4.11 . The recitals to this Agreement are incorporated herein.
Counterparts
4.12 . 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.
Exhibits
4.13 . The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
Survival of Covenants
4.14 . 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.
Indemnification by Company
4.15 CITY SHALL NOT BE LIABLE OR
.
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY COMPANY 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 COMPANY 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 COMPANY TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF THE COMPANY’S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR
DAMAGE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THE COMPANY SHALL NOT DEFEND, INDEMNIFY OR HOLD THE CITY
HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF, OR OCCASIONED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY.
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Approvals.
4.16 Whenever an approval or consent is required by a party under the
terms of this Agreement, such approval or consent shall not be unreasonably withheld, delayed or
conditioned.
Article V
Termination
5.1 This Agreement shall terminate upon any one or more of the following events:
(a) The parties (including the Company, any successor owners of any portion
of the Land, and their respective mortgagees) mutually agree in writing to terminate this
Agreement; or
(b) The Related Agreements are terminated prior to Company purchasing all or
any portion of the Option Land pursuant to the Option Agreement; provided, however,
this Agreement shall remain in effect with respect to any Option Land purchased pursuant
to the Option Agreement prior to termination.
[Signatures Appear on the Following Page]
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EXECUTED
in duplicate originals this the ___ day of _________________, 2010.
City of Coppell, Texas
By:
Bob Mahalik, Mayor Pro Tem
Deleted:
Jayne Peters
Attest:
By:
Libby Ball, City Secretary
Agreed as to Form:
By:__________________________
City Attorney
EXECUTED
in duplicate originals this the day of , 2010.
CSE Commercial Real Estate, LP
By: Debco Partners, LLC, its general partner
By:
Charles Cotten
Member
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City Acknowledgment
State of Texas §
§
County of Dallas§
This instrument was acknowledged before me on the _____ day of __________, 2010 by
Bob Mahalik, Mayor Pro Tem of the City of Coppell, a Home Rule Municipality.
Deleted:
Jayne Peters
Notary Public, State of Texas
My Commission expires:
Company Acknowledgment
State of Texas §
§
County of Dallas §
This instrument was acknowledged before me this _________ day of ___________, 2010,
by Charles Cotten, a member of Debco Partners, LLC, a Texas limited liability company the
general partner of CSE Commercial Real Estate, LP, a Texas limited partnership, on behalf of said
limited partnership.
Notary Public, State of Texas
My Commission expires:_____________
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Exhibit “A”
Legal Description of Land
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Exhibit “A” to City/CSE Commercial Real Estate, L.P. Shared Parking Agreement -Page 29092
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Exhibit “A-1”
Legal Description of Option Land
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Exhibit “A” to City/CSE Commercial Real Estate, L.P. Shared Parking Agreement -Page 29092