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ST1002-CN080529 (11/15/2011) Ken Griffin - Fwd: FW: CSE Redline AttachedPage 1 From: Mindi Hurley To: Griffin, Ken; Phillips, Clay; Sieb, Gary; Witt, Jim Date: 5/29/2008 11:55 AM Subject: Fwd: FW: CSE Redline Attached Attachments: CSE Redline.doc Here is the red-line version of the agreement. We don't have their changes to the Option Agreement yet, but there are so many changes to this document that we might not have time to get to the Option Agreement anyway. See you all at 3:00. Mindi Hurley Economic Development Coordinator City of Coppell 255 Parkway Blvd. Coppell, TX 75019 (972) 304-3677 (972) 304-3673 (fax) www.ci.coppell.tx.us >>> "Pete Smith" <Psmith@njdhs.com> 5/29/2008 10:40 AM >>> Mindi here is a red line- a lot of changes- not sure how far we will get today. Peter G. Smith Nichols, Jackson, Dillard Hager & Smith, LLP 1800 Lincoln Plaza 500 North Akard Street Dallas, Texas 75201 214-965-9900 214-965-0010 Fax **Information contained in this transmission is attorney privileged and confidential. It is intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone. ________________________________ (11/15/2011) Ken Griffin - Fwd: FW: CSE Redline AttachedPage 2 From: Tammie Carswell Sent: Thursday, May 29, 2008 10:35 AM To: Pete Smith Subject: CSE Redline Attached Tammie Carswell Assistant to Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, LLPC 500 N. Akard 1800 Lincoln Plaza Dallas, Texas 75201 214-665-3378 Telephone No. 214-965-0010 Facsimile No. STATE OF TEXAS § Formatted: Different first page header § Economic Development Incentive Agreement § COUNTY OF DALLAS § This Economic Development Incentive 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 (through the Coppell Economic Development Foundation, Inc.) owns the real property commonly know as the Carter Crowley Property generally located at Coppell Road, Burns Road and Hammonds Road within the City as further described in Exhibit “A” (the “Land”); and WHEREAS, the City intends to acquire through the power of eminent domain (or sale in lieu thereof) all or a portion of the real property within the City and adjacent to the Land described in Exhibit “B” (the “Hassan Land”) (any portion of the Hassan Land, once acquired by the City, shall be included within the definition of the “Land” under this Agreement); WHEREAS, the Company desires to purchase the Land pursuant to the Option Agreement (hereinafter defined) and to develop the Land for a mixed use development consisting of approximately ten (10) retail office cottages built with craftsman architectural style, forty-four (44) towntown homes, eight (8) retail service buildings, one (1) restaurant and future commercial development to be agreed upon by the parties, all of which is to be anchored by a publicly-owned town square (the “Project”); and WHEREAS, the Company will purchase and develop the Land in phases; and WHEREAS, the parties have or intend to enter into the Option Agreement pursuant to which the Company shall have the option to purchase the Land or portions thereof as provided therein; and WHEREAS, the Company has advised the City that a contributing factor that would induce the Company to develop the Land and construct the Project would be an agreement by the City to provide an economic development grant to the Company; and WHEREAS, the City has adopted programs for promoting economic development; and WHEREAS, the City is authorized by T.L. G’.C§380.001to provide Formatted: Indent: First line: 0.5" EX OCOVT ODE economic development grants to promote local economic development and to stimulate business and commercial activity in the City; and Formatted: Font: Not Bold PGS Draft 5/29/08 WHEREAS, the City has determined that making an economic development grant to the Company in accordance with this Agreement will further the objectives of the City, will benefit the City and the City’s inhabitants and will promote local economic development and stimulate business and commercial activity in the City. NOW THEREFORE, in consideration of the foregoing, and other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Article I Term The term of this Agreement shall begin on the last date of execution hereof (“Effective Date”) and continue until the Expiration Date, unless sooner terminated as provided herein. Article II Definitions Wherever used in this Agreement, the following terms shall have the meanings ascribed to them: “City” shall mean the City of Coppell, Texas. The term “City” shall include the Coppell Economic Development Foundation, Inc. to the extent necessary for the fulfillment of this Agreement. “City Facilities” shall collectively mean the Public Infrastructure and the Town Square. “Commencement of Construction” shall mean, for the respective phase of the Public Work or Private Work in question, that: (i) the plansPlans have been prepared and all approvals thereof required by applicable governmental authorities have been obtained for the respective phase of the Project or the Infrastructure, as the case may be; (ii) all necessary permits for construction of the respective phase of the Project or the Infrastructure, pursuant to the respective plansPlans therefore havinghave been issued by all applicable governmental authorities; and (iii) grading of the Land has commenced for the respective phase of the Project or the Infrastructure, as the case may be. “Company” shall mean CSE Commercial Real Estate. LP, a Texas limited partnership, or its permitted assigns. “Completion of Construction” shall mean that: (i) the Project or the InfrastructurePhase One or the City Facilities, has been substantially completed, and (ii) a certificate of substantial completion has been issued by the general contractor(s) for the Project or the InfrastructurePhase One or the City Facilities; and (iii) the City has accepted the respective InfrastructureCity Facilities or the City has issued a Certificate of Occupancy for the respective phase of the Projectimprovements included within Phase One, as the case may be. 2 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 “Engineering Costs” shall mean all costs of the Engineering Services authorized by the Company and approved by the Cityto 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 ProjectPrivate Infrastructure and the City Facilities as set forth in the Company’s contract(s) with the Project Engineers. “Entrance Features” shall mean entrance features to the Project and the City Facilities in locations and in accordance with plansPlans approved by the City. Formatted: Left, Indent: First line: 0.5", Tab “Entrance Feature Grant” shall mean an economic development grant in the amount of the stops: Not at -0.5" lesser of: (i) fifty percent (50%) of the actual costs of design and construction paid and incurred by the Company for the Entrance Features; and (ii) $25,000, to be paid as set forth herein. Formatted: Body Text Indent, Indent: First “Event of Bankruptcy or Insolvency” shall mean the dissolution or termination of a party’s line: 0.5", Don't hyphenate 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 Formatted: Condensed by 0.15 pt 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. Formatted: Body Text Indent, Left, Don't th “Expiration Date” shall mean the tenth (10) anniversary of the date of Commencement of hyphenate Construction of the City issues the notice to proceed with the construction of the InfrastructureFacilities, unless sooner terminated as provided herein. Formatted: Not Expanded by / Condensed by “Finished Lot” shall mean a developed lot or parcel with frontage on a public street with on-site utilities installed. Formatted: Justified, Indent: First line: 0.5" “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 Formatted: Indent: First line: 0.5" 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. 3 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 “Infrastructure” shall mean public streets, alleys, parking contiguous to the Town Square, parking on Public Infrastructure and the west side of the Coppell entry to the Project, water, storm water and sanitary sewer in public right-of-way, retention pond if necessary, streetscape improvements in the public right-of-way and the Town SquarePrivate Infrastructure. “Land” shall mean the real property described in Exhibit “A”. “Old Coppell Design Guidelines” shall mean the development guidelines for Old Coppell Design as approved by the City, from time to time. “Old Coppell Design Guideline Variances” shall mean the variances to the Old Coppell Design Guidelines requested by the Company and described on Exhibit “C”. “Option Agreement” shall mean that certain option to purchase the Land by and between Formatted: Underline the Coppell Economic Development foundationFoundation, Inc. and the Company of approximate even date herewith pursuant to which the Company shall provideagree to pay a non- refundable$2,000,000 option price of $2 Million Dollars withfor the unilateral right to purchase the Land (less approximately 2 acres for the Town Square and area necessary for a retention pond) at $1.00 per acre of net land area for a period of seven (7) years. from the Completion of Construction of the Public Infrastructure. “Phase One” shall mean the first phase of the Project which shall consists of at least one retail service building on the west side of the Town Square and one cottage on the north side of the Town square Square and the initial phase of 16 units of towntown homes fronting on the Town Square, together with the necessary water, sewer and other infrastructure including the respective portion of the Private Infrastructure. The retail service building fronting the west side of the Town Square shall consist of approximately 20,000 square feet of space and the cottages fronting the north side of the Town Square shall be designed, constructed and leased such that at least forty percent (40%) of the total cumulative square feet available will be used for restaurant and retail uses that produce regular daily foot traffic within the Project. “Planned Development District 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 City Facilities as approved by the City pursuant to Section 3.1(b). “Private Engineering Costs” shall mean the portion of the Engineering Costs applicable to the Private Infrastructure. “Private Infrastructure” shall mean and refer to all private parking areas located adjacent to public streets and Finished Lots, specifically excluding all parking areas contiguous to the Town Square (which shall be part of the Public Infrastructure); water, storm water and sanitary sewer taps for service to the Finished Lots; pipes, transformers, switchgears, conduits, equipment or risers necessary for future utility services to the Finished Lots; private alleys; the serpentine red 4 27192 Formatted: Condensed by 0.15 pt Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 cedar landscape screening at Burns Street (to be designed); landscape buffer adjacent to the existing office building at 717 S. Coppell Road. “Private Work” shall mean the construction of the improvements on the Land that are to be privately owned under the terms of this Agreement. “Project” shall mean a mixed use development to be constructed on the Land, or portion thereof, consisting of approximately ten (10) retail office cottages built with craftsman architectural style, forty-four (44) towntown homes, eight (8) retail service buildings, one (1) restaurant and future commercial development to be defined and agreed upon by the parties to be anchored by the Town Square, private parking on the west, east and south sides of the perimeter of the City Facilities, together with other required parking and landscaping all as further described in the submittals filed with the City in order to obtain a building permit(s) from time to time. The term “Project” shall not include within its meaning any portion of the City Facilities. “Project Engineers” shall mean the certified professional engineers selected by the Company and approved by the City to provide the Engineering Services. Freese and Nichols, Inc. is hereby approved as an acceptable Project Engineer. “Project Sign Grant” shall mean an economic development grant in an amount equal to fifty Percent (50%) of the actual costs incurred and paid by the Company to construct a Project Sign at Bethel Road and Denton Tap Road, Freeport Parkway and Bethel Road and at Sandy lake Road and Coppell Road, to be paid as set forth herein“Public Engineering Costs” shall mean the portion of the Engineering Costs applicable to the City Facilities, including the Public Infrastructure. “Public Infrastructure” shall mean and refer to all public streets; parking contiguous to the Town Square; parking on the west side of the new public street entry from Bethel Road; parking on the east and west side of Coppell Road; 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 and Town Square; all street or pedestrian lighting in the public right-of-way; earthwork, fill dirt and retaining walls required to create Finished Lots; landscaping and hardscaping of the public right-of-way; Storm Water Pollution Prevention Plan and implementation; and hydro-mulching of the final grading of the Land, if required. “Public Work” shall mean the construction of the improvements on the Land that are to be publicly owned under the term of this Agreement. Formatted: Body Text Indent, Left, Don't “Related Agreements” shall mean the Option Agreement and any other appropriate agreement(s) related to the Project. hyphenate “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 landscaping, a Formatted: Not Expanded by / Condensed by pavilion, interactive water feature,public restrooms and playground equipment, and one additional 5 Formatted: Indent: Left: 0", First line: 0.5" 27192 Formatted: Normal, Justified, Hyphenate Formatted: Left Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 public use venue or other mutually agreed upon improvementstogether with the landscaping and hardscaping of Town Square. The portion of the Land encompassing the Town Square is shown on the Site Plan (as hereinafter defined). “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 Project 3.1 Construction Design of the Project. The Company shall, subject to Events of Force Majeure, cause Commencement of Construction of Phase One of the Project to within four (4) months after City approval of the final plat for Phase One and shall, subject to Events of Force Majeure, cause Completion of Construction thereof to occur within _____ (_) months thereafter. The Company shall design and construct the Project in accordance with the applicable City development regulations including the Old Coppell Design Guidelines and the Planned Development District. Notwithstanding anything to the contrary, the Company shall, subject to Events of Force Majeure, cause Completion of Construction of the entire the Project (including the City Facilities) to occur within ten (10) years after the Effective Date. Formatted: Body Text Indent, Don't keep with 3.2 Construction of Infrastructure. (a) For the consideration and upon and subject next, Don't keep lines together, Don't to the terms, provisions and conditions hereinafter set forth in this Section, Company agrees to sell and convey unto City, and City agrees to purchase from Company the Infrastructure, or hyphenate portion thereof, specifications and warranties related to the Infrastructure or potion thereof, it being agreed that Company shall own such Infrastructure or portion thereof, until payment therefore is made by City in accordance with the terms of this Section. The parties acknowledge that the Infrastructure is to be constructed as the Land is developed and that the City will purchase the Infrastructure as such portions are completed during the development in accordance with this section. Formatted: Body Text Indent, Centered, (b) Purchase Price. A purchase price equal to the actual costs paid and incurred by Indent: First line: 0", Don't keep with next, the Company for the construction of the Infrastructure, or portion thereof as mutually agreed to by the parties shall be due and payable as set forth in this Section. For the purpose of securing the Don't keep lines together, Don't hyphenate performance of the City under the terms of this Section, the purchase price for the Infrastructure, or portion thereof shall be paid by City in installments as construction of the Infrastructure, or portion thereof progresses, in the amounts and in accordance with an installment schedule Formatted: No underline approved by the City Engineer. The obligation of the City to make each installment is subject to the prior occurrence of each of the following conditions: (i) City shall have received from Company evidence reasonably satisfactory to the City that the construction of the Infrastructure, or portion thereof complies with all applicable laws. 6 27192 Formatted: Font: Bold Formatted: Font: Bold Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 (ii) City shall have received from Company a cost breakdown reasonably satisfactory to City showing the total costs of constructing the Infrastructure, or portion thereof free and clear of liens or claims for material supplied and for labor services performed. (iii) City shall have received from Company a copy of each contract and agreement entered into between Company and any contractor pertaining to the design, construction and completion of the Infrastructure, or portion thereof, unless previously provided. (iv) City shall have received from Company a waiver of lien or a lien subordination agreement executed by each contractor, laborer and supplier that has furnished labor and/or materials in connection with the completed aspects of the Infrastructure, or portion thereof, in a form reasonably acceptable to the City. (v) City shall have received a title report dated within five (5) days of the installment payment date from the Title Company showing no state of facts objectionable to the City including, but not limited to, a showing that no claim for mechanic’s or materialmen’s liens has been filed against the Infrastructure, or portion thereof. (vi) The representations and warranties made by Company, as contained in this Agreement, shall be true and correct as of the date of each installment. 3.1 Engineering Services. (a) The Company shall cause the Project Engineers to estimate, in advance, the Engineering Costs and also cause them to break out the Engineering Costs between the City Facilities and the Private Infrastructure. The Company shall submit such cost estimates to the City and the City shall have a period of fifteen (15) business days to approve such estimates for the City Facilities (the “Engineering Cost Approval Period”). The City shall be deemed to have approved the estimated Engineering Costs unless it has provided written notice to the Company to the contrary prior to the expiration of the Engineering Cost Approval Period. If the City has objections to the estimated Engineering Costs, the City shall note such objections in writing and the Company shall attempt to cause the Project Engineers to adjust such estimates to address such objections and re-submit the estimated Engineering Costs to the City for approval (subject to the same Engineering Costs Approval Period). This process shall continue until the City has approved the estimated Engineering Costs or either party has determined, acting in good faith, that the City objections can not be addressed, in which case, either party may, by written notice to the other, terminate this Agreement and the Option Agreement and the City shall return to the Company all sums paid pursuant to the Option Agreement. Once approved by the City, the City shall have no right to object to the Engineering Costs so long as they do not exceed the overall approved estimate by in excess of ten percent (10%). (b) Prior to the solicitation of bids for the construction of the City Facilities, the Company shall, at its cost, contract with the Project Engineers to design the City Facilities (the “Plans”) and assist with the bidding and oversight of the construction of the improvements 7 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 described therein within the cost estimate approved by the City pursuant to Section 3.1(a). The Company shall cause the Project Engineers to provide the City with the Plans on or before January 31, 2009 for review and approval. The Plans may include all or portions of the Private Infrastructure. The Project Engineers shall indicate the proposed locations for an outdoor theater and interactive water feature within the Town Square as part of the Engineering Services, but no other design work shall be performed on such improvements. The City shall have the right to approve the Plans within fifteen (15) business days following receipt of the Plans by the City (the “Plan Approval Period”). The City shall be deemed to have approved the Plans unless it has provided written notice to the Company to the contrary prior to the expiration of the Plan Approval Period. If the City has objections to the Plans, the City shall note such objections in writing and the Company shall attempt to cause the Plans to be revised to address such objections and re-submit the Plans to the City for approval (subject to the same Plan Approval Period). This process shall continue until the City has approved the Plans or either party has determined, acting in good faith, that the City objections can not be addressed, in which case, either party may, by written notice to the other, terminate this Agreement and the Option Agreement and the City shall return to the Company all sums paid pursuant to the Option Agreement. (c) The City shall be responsible for all costs for the Engineering Services for the City Facilities and for any change orders or increases in the costs of the Engineering Services for the City Facilities approved by the City. The Company shall be responsible for all other costs for the Engineering services for the Private Infrastructure and for any change orders or increases in the costs of the Engineering Services for the Private Infrastructure. (d) The Company shall submit invoices to the City as received from the Project Engineers for the Public Engineering Costs and the City shall make direct payment thereof within thirty (30) days thereafter. The Company shall be responsible for the payment of all Private Engineering Costs. (e) The Company and the City shall each act in good faith in attempting to ensure a proper allocation of the Engineering Costs between the City Facilities and the Private Infrastructure. Article IV Bidding 4.1 Bidding. (a) Solicitation of Bids. The Company shall, within 30 days after the City approval of the Plans, cause a bid package to be prepared to be sent out to prospective bidders for the performance of the Public Work. The bid package may include a request for bids on all or a portion of the Private Work, but bidders shall be instructed to break out their bid between the Public Work and the Private Work. Bidders shall also be instructed to break out their bid between the Public Infrastructure and the Town Square Improvements. The Company shall provide a copy of the proposed bid package to the City Engineer for approval and the City shall have a period of 8 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 fifteen (15) business days to approve such bid package (the “Bid Package Approval Period”). The City shall be deemed to have approved the submitted bid package unless it has provided written notice to the Company to the contrary prior to the expiration of the Bid Package Approval Period. If the City has objections to the bid package, the City shall note such objections in writing and the Company shall attempt to cause the bid package to be revised to address such objections and re-submit the bid package to the City for approval (subject to the same Bid Package Approval Period). This process shall continue until the City has approved the bid package or either party has determined, acting in good faith, that the City objections can not be addressed, in which case, either party may, by written notice to the other, terminate this Agreement and the Option Agreement. Once the bid package is approved by the City, the Company shall solicit at least three (3) competitive bids and/or competitive sealed proposals for the construction of the Public Work for the review and approval by the City Engineer. (b) Bid Review. The Company shall provide a copy of the bids to the City Engineer for approval along with notification of the bid which the Company wishes to accept (the “Recommended Bid”). The City shall have a period of fifteen (15) business days to approve the Recommended Bid (the “Bid Approval Period”). The City shall be deemed to have approved the Recommended Bid unless it has provided written notice to the Company to the contrary prior to the expiration of the Bid Approval Period. If the City has objections to the Recommended Bid, the City shall note such objections in writing and the Company and the City shall meet as promptly as possible thereafter to review and discuss all bids. The Company may, after such meeting, ask the bidders to revise their bids and re-submit bids to the Company and the City for approval. This process shall continue until the City has approved a Recommended Bid or either party has determined, acting in good faith, that a bid acceptable to the City cannot be obtained, in which case, either party may, by written notice to the other, terminate this Agreement and the Option Agreement and the City shall return to the Company all sums paid pursuant to the Option Agreement. Notwithstanding the foregoing, the City shall not have the right to disapprove a qualified bid for the City Facilities that is less than $2,500,000. The Company shall have the right to terminate this Agreement if a bid for the Private Work acceptable to the Company cannot be obtained, in which case all sums paid by the Company pursuant to the Option Agreement shall be forfeited. (c) Bid Award. The Company shall award the construction contract(s) to the mutually approved bidder (the “Contract Award”). The Company shall enter into a construction contract with the approved bidder promptly thereafter for the construction of the Infrastructure. The City shall contract directly with the approved bidder for the construction of the Town Square Improvements. 9 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Article V Company Construction Obligations; City Purchase Obligations 5.1 Construction of the Project. 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 the Public 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 (as modified by the Old Coppell Design Guideline Variances) and the Planned Development District Ordinance. 5.2 Construction and Purchase of Public Infrastructure. (a) Agreement to Construct and Sell Public Infrastructure. For the consideration and upon and subject to the terms, provisions and conditions hereinafter set forth in this Agreement, Company agrees to construct and sell unto City, and City agrees to purchase from Company, the Public Infrastructure, including all warranties related to the Public Infrastructure, it being agreed that the City shall own the Public Infrastructure, subject to the obligation of the City to make payment therefore in accordance with the terms of this Section. If feasible, the Company shall assign any right, title or interest of the Company in the Public Infrastructure to the City as portions of the work are completed and full payment is made for such portion. The Company shall have no right to encumber any City Facilities. (b) Purchase Price. A purchase price equal to the actual costs paid and incurred by the Company for the construction of the Public Infrastructure, including, without limitation, an allocable share of all insurance, bonding and other soft costs approved by City (not to exceed the amount set forth in the Contract Award as revised pursuant to mutually approved change orders and any other costs approved by City) shall be due and payable as set forth in this Section. For the purpose of securing the performance of the City under the terms of this Section, the purchase price for the Public Infrastructure, or portion thereof, shall be paid by City in installments as construction of the Public Infrastructure progresses, in the amounts and in accordance with the percentage of the Public Work completed. The obligation of the City to make each installment is subject to the prior occurrence of each of the following conditions: (i) City shall have received from Company evidence reasonably satisfactory to the City that the construction of the Public Infrastructure, or portion thereof, complies with all applicable laws. (ii) City shall have received from Company a cost breakdown reasonably satisfactory to City showing the total costs of constructing the Public Infrastructure, or portion thereof, free and clear of liens or claims for material supplied and for labor services performed. 10 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 (iii) City shall have received from Company a copy of each contract and agreement entered into between Company and any contractor pertaining to the design, construction and completion of the Public Infrastructure, or portion thereof, unless previously provided. (iv) City shall have received from Company a waiver of lien or a lien subordination agreement executed by each contractor, subcontractor and supplier that has furnished labor and/or materials in connection with the completed aspects of the Public Infrastructure, or portion thereof, in a form reasonably acceptable to the City. (v) City shall have received a title report (or down date endorsement to a title policy) dated within five (5) days of the installment payment date from the Title Company showing no state of facts objectionable to the City, including, but not limited to, a showing that no claim for mechanic’s or materialmen’s liens has been filed against the City Facilities, or portion thereof. (vi) The representations and warranties made by Company, as contained in this Agreement, shall be true and correct in all material respects as of the date of each installment. (vii) The covenants made by Company to City as contained in this Agreement shall have been fully complied with in all material respects, except to the extent such compliance may be limited by the passage of time or the Completion of Construction of the Public Infrastructure, or portion thereof. (viii) A report of any changes, replacements, substitutions, additions or other modifications in the list of contractors and subcontractors. (ix) City shall have received from Company a request for payment of an installment of the Purchase Price in such form and containing such information as the City may reasonably require, executed by Company stating, among other things, that all work required at the stage of construction when the installment is requested has been done. (x) There shall be no material breach of this Agreement by Company under this Agreement. (xi) The Public Infrastructure, or portion thereof, shall not have been materially damaged or destroyed by Casualty. (xii) Company shall execute and deliver to City a special warranty deed and bill of sale, reasonably acceptable to City conveying to City the Infrastructure, or portion thereof then constructed (it being agreed, however that ownership of the Infrastructure, or portion thereof then constructed shall automatically vest in the City upon payment therefore, without the necessity of any instrument). Payment shall be made by City within fifteen (15) days following submission by the Company of a draw request and satisfaction of the above conditions. 11 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 An amount equal to ten percent (10%) of the Purchase Price shall be retained by City (which shall not be in addition to, but the same as, the retainage held by the Company under its contract with the approved bidder) and shall be paid over by City to Company as the final installment of the Purchase Price, provided that no lien claims are then filed against the InfrastructureCity Facilities, or portion thereof, and when all of the following has occurred to the reasonable satisfaction of City: (i) Company shall have completed all Punch list items, if any; provided, however, if all other conditions have been satisfied, City shall retain 150% of the estimated cost of completing the Punch list items and pay Company the balance due. (ii) City shall have received a completion certificate executed by Company for the Public Infrastructure, or portion thereof, and the City’s inspector stating that the Public Infrastructure, or portion thereof has been completed in substantial accordance with the approved Plans, together with such other evidence that no mechanics or materialmen’s liens or other encumbrances have been filed against the InfrastructureCity Facilities, or portion thereof. (iii) City shall have accepted such Public Infrastructure, such acceptance not to be unreasonably withheld, delayed or conditioned. (iv) Company shall have delivered and assigned all warranties to the City for the Public Infrastructure, or portion thereof. No payment of an installment of the purchase price shall be deemed an acceptance by the City of the work theretofore done. City shall have no obligation to pay any installment of the purchase price during the occurrence of a breach of this Agreement on the part of Company, but the City may do so, provided however if the City elects to pay any such installment, no such payment shall be deemed a waiver of any remedies City may have in respect to such default. Notwithstanding anything contained herein to the contrary, it is the intent of the parties to this Agreement that the City pay 100% of the costs allocable to the Public Work and that the Company pay 100% of the costs allocable to the Private Work. (c) Plans and Specifications. The Company shall be responsible for preparing the Plans for the Infrastructure, or portion thereof. The Company shall submit the Plans for the Infrastructure, or portion thereof for review and obtain approval thereof by the City Engineer prior to the submission of any Construction Plans for the Infrastructure, or portion thereof. It shall be the responsibility of the Company to obtain approval of building, grading and other permits required for the construction of the Infrastructure, or portion thereof from all applicable governmental authorities. The Plans for the Infrastructure, or portion thereof as approved by the City Engineer shall be deemed a part of this Agreement without the necessity of further amendment. (d) Commencement of Construction. The Company shall, subject to events of Force Majeure, cause Commencement of Construction of the Public Infrastructure to occur within 12 27192 Formatted: Indent: First line: 0.5" Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 _____________sixty (60) days of the Contract Award, and shall, subject to events of Force Majeure, cause Completion of Construction thereof to occur within _____ (_) months one (1) year thereafter. (ed) Substantial Completion. The Company will use good faith efforts to notify City (the “Substantial Completion Notice”) of the date that the Company reasonably expects the Public Infrastructure, or portion thereof, to be Substantially Complete, not more than forty-five (45) or less than thirty (30ten (10) business days prior to the date that is set forth in such notice for the Infrastructure, or portion thereof to be Substantially Complete. The failure to provide such notice shall not be considered an event of default. Upon receipt of written notification from the Company that the Infrastructure, or portion thereof is Substantially Completethe Substantial Completion Notice, City shall notify the Company of the date a City inspector intends to make a walk-through inspection of the Public Infrastructure, or portion thereof, to determine Punch-list items, such date to be within ten (10) business days after City’s receipt of such notice. The Company will accompany the City inspector on the walk-through inspection so as to mutually determine the Punch-list of items to be completed or repaired by the Company. The Company will complete all Punch-list items within twenty (20) business days after the date of the walk- through inspection, subject to events of Force Majeure. Notwithstanding the foregoing, if the City approved Contract Award contains a longer period of time for the general contractor to complete Punch-list items, such longer time period shall control. (f) Construction Meetings. The Company agrees to meet with City representatives at least once per month to jointly review the progress of construction and to discuss any other matters pertaining to the construction of the Infrastructure, or portion thereof. The Company will cause minutes of these meetings to be prepared and provided to City. The Company will otherwise keep City reasonably informed as to the progress of the Infrastructure, or portion thereof and agrees to meet with City upon request to discuss the same. Furthermore, the Company will allow City’s inspector to inspect the Infrastructure, or portion thereof at any time during business hours. (g) Warranties. The Company agrees, as a part of the costs of construction, to obtain and assign to City warranties from the Company’s contractors, subcontractors and suppliers providing labor and/or materials in connection with the Infrastructure, or portion thereof; provided that such assignment shall not prevent the Company from enforcing the same. Such warranties shall: (a) be at least standard industry warranties from generally recognized contractors, subcontractors and suppliers with respect to the Infrastructure, or portion thereof; and (b) obligate the Company’s contractors, subcontractors and suppliers to repair all defects in the applicable portion of the Infrastructure, or portion thereof for a period of one (1) year following Completion of Construction. (he) No Delay of Damages. In the event of delay not the fault of the City, then the Company shall be entitled to an extension of time for the Completion of Construction of the Public Infrastructure, or portion thereof only and shall not be entitled to any additional payment from the City on account of such delay. The City shall indemnify and hold the Company harmless from and against any damages incurred by the Company due to a delay by the City. 13 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Formatted: Indent: First line: 0" (i) Casualty. Risk of loss due to casualty shall be borne by the Company until Completion of5.3 General Construction of the Infrastructure, or portion thereof at such time said risk of loss due to Casualty shall be borne by the City. The Company shall carry or cause to be carried insurance in amounts sufficient to restore any of the Infrastructure, or portion thereof damaged by Casualty to substantially the same condition they were in immediately prior to Formatted: Font: Bold, Underline such Casualty. The Company will in any event restore any of the Infrastructure, or portion thereof damaged or destroyed by Casualty as part of its obligation to construct the ImprovementsRequirements. 3.3 General Construction Requirements. (a) Permits. The Company shall cause all necessary permits and approvals required by the City and any applicable governmental authorities to be issued for the construction of the Project and the Public Infrastructure. The Company shall, at its costs, except as otherwise provided herein, be responsible for the design, inspection and supervision of the construction of the Project and the Public Infrastructure. The actual costs incurred for any such permits allocable to the Public Work shall be included in the Purchase Price. (b) ) Compliance with Laws. The Company shall comply with all local and state laws and regulations regarding the design and construction of the Project and the Infrastructure City Facilities applicable to similar facilities constructed by the City, including but not limited to any applicable requirement relating to payment, performance and maintenance bonds; provided, Formatted: Font: Bold however, City acknowledges that the Project and the Public Infrastructure shall be bonded as a private project. Upon Completion of Construction of the Public Infrastructure, the Company shall provide the City with a final cost summary of all costs associated with the construction of the Public Infrastructure, and provide proof that all amounts owing to contractors and subcontractors have been paid in full evidenced by the customary affidavits executed by the Company and/or its contractors. (c) Payment and Performance Bonds. The Company shall in connection with the construction of the Public Infrastructure, or portion thereof provide cause its contractors to provide performance and payment bond(s) in forms reasonably satisfactory to the City for the construction of the Public Infrastructure, or portion thereof and the Vision Project Improvements to ensure completion of such projects thereof in accordance with Chapter 2253, Texas Government Code, as amended,; provided, however, City acknowledges that the Project and cause its contractors to provide such performance bonds, and payment bonds in forms reasonably satisfactory to the City for the construction of the Infrastructure, or portion thereofthe Public Infrastructure shall be bonded as a private project. The cost of all bonds for the Public Infrastructure shall be included in the cost of the Public Infrastructure paid by the City. 3.4(d) Construction of Entrance Features. The Company shall, subject to events of Force Majeure, cause Commencement of Construction of the Entrance Features to occur concurrent with the Commencement of Construction of the Infrastructure, and shall, subject to events of Force Majeure, cause Completion of Construction thereof to occur concurrent with the Completion of Construction of the Infrastructure. The costs of construction of the Entrance 14 27192 Formatted: Font: Bold, Underline Formatted: Font: Not Bold Formatted: Normal, Justified, Indent: Hanging: 0.5" Formatted: Normal, Justified Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Features shall not exceed $50,000 unless otherwise agreed by the parties. The City shall provide an economic development grant in the amount of the lesser of: (i) fifty percent (50%) of the actual costs of construction paid and incurred by the Company for the Entrance Features; and (ii) $25,000, (the “Entrance Feature Grant”) to be paid to the Company within thirty (30) days after receipt of a Payment Request following Completion of Construction of the Entrance Features. Meetings. The Company agrees to meet with City representatives at least once per month to jointly review the progress of construction and to discuss any other matters pertaining to the construction of the Public Infrastructure, or portion thereof. The Company will cause minutes of these meetings to be prepared and provided to City. The Company will otherwise keep City reasonably informed as to the progress of the Public Infrastructure, or portion thereof and agrees to meet with City upon request to discuss the same. Furthermore, the Company will allow City’s inspector to inspect the Public Infrastructure, or portion thereof at any time during business hours. 3.5 Project Sign. The Company shall at its costs construct a Project sign (the “Project Sign”) at Bethel Road and Denton Tap Road, Freeport Parkway and Bethel Road and at Sandy lake Road and Coppell Road; provided however the City shall pay fifty percent (50%) of the actual costs incurred and paid by the Company for the Project Signs in the event the City does not complete the Way-Finding Project (the “Project Sign Grant”). The Project Sign Grant shall be paid by the City to the Company within thirty (30) days after receipt of a Payment Request following Completion of Construction of the Project Sign unless the City has completed the Way- Finding Project(e) Warranties. The Company agrees, as a part of the costs of construction, to obtain and assign to the City warranties from the Company’s contractors, subcontractors and suppliers providing labor and/or materials in connection with the Public Infrastructure, or portion thereof; provided that such assignment shall not prevent the Company from enforcing the same. Such warranties shall: (a) be at least standard industry warranties from generally recognized contractors, subcontractors and suppliers with respect to the Public Infrastructure, or portion thereof; and (b) obligate the Company’s contractors, subcontractors and suppliers to repair all defects in the applicable portion of the Public Infrastructure, or portion thereof, for a period of one (1) year following Completion of Construction. Formatted: Font: Not Bold 3.6 Private Parking. The Company shall, at its sole cost, construct private surface parking on the east, west and south sides of the perimeter of the City Facilities as depicted in Formatted: Normal Exhibit “B”. The Company subject to events of Force Majeure, cause Commencement of Construction of the Private Parking to occur concurrent with the Commencement of Construction of the Infrastructure, and shall, subject to events of Force Majeure, cause Completion of Construction thereof to occur concurrent with the Completion of Construction of the Infrastructure; provide however the streetscape improvements shall not be constructed until improvements are constructed on the Finished Lots.(f) Casualty. Risk of loss due to casualty shall be borne by the Company until Completion of Construction of the Public Infrastructure, or portion thereof, at which time said risk of loss due to Casualty shall be borne by the City. Notwithstanding the foregoing, the City shall reimburse the Company for the amount of any deductible under applicable insurance policies and uninsured theft and casualty losses (so long as Company maintains the insurance coverage required under this Agreement). The Company shall carry or cause to be carried insurance in amounts sufficient to restore any of the Public Infrastructure, or portion thereof, damaged by Casualty to substantially the same condition they 15 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 were in immediately prior to such Casualty, subject to industry standard deductibles. The Company will in any event restore any of the Public Infrastructure, or portion thereof, damaged or destroyed by Casualty as part of its obligation to construct the Improvements, subject to the reimbursement obligations of the City specified in this Subsection. 3.7 Engineering Services. (a) Prior to the solicitation of bids for the construction of the Project, the Company shall at its cost, contract with the Project Engineers. The City shall have the right to approve or reject the Company’s selection of the Project Engineers and the cost of such services, which approvals shall not be unreasonably withheld, conditioned or delayed. The Company shall cause the Project Engineers to provide the City with the Plans on or before ____ for review and approval. The City shall have the right to approve the Plans or to terminate this Agreement upon written notice to the Company. The City shall have the right to approve the Plans or to terminate this Agreement upon written notice to the Company within ___ (__) business days following receipt of the Plans by the City (the “Plan Approval Period”). The City shall be deemed to have approved the Plans for the City Facilities unless it has provided written notice to the Company prior to the expiration of the Plan Approval Period of the City’s objections to the Plans. The Company shall cause the Project Engineers to promptly cured or correct any City objections to the Plans. (b) The City shall be responsible for all costs for the Engineering services for the City Facilities and for any change orders or increases in the costs of the Engineering Services for the (g) NCTCOG Standards. Except as otherwise provided in this Agreement, the design and construction of the City Facilities approved by the City. The Company shall be responsible for all other costs for the Engineering services for the Project and for any change orders or increases in the costs of the Engineering Services for the Project. 3.8 Construction Services. (a) Solicitation of Bids. The Company shall, within ____ days after the City approval of the Plans, solicit at least three (3) competitive bids and/or competitive sealed proposals for the construction of the Project for the review and approval by the City Engineer. The Company shall in such solicitation require the companies providing the competitive bids or proposals for the construction of the Project to bid the total cost of construction of the Project, and to separately bid the cost of City Facilities and the cost of the Company portion of the Project. Each solicited bid or proposal for the construction of the Project shall provide the costs of construction of the City Facilites separate and apart from the costs for the Company’s portion of the Project. (b) Bid Review. The City Engineer shall have the right to review and approve the solicited bids for the construction of the Project and City Facilites. In the event the City does not approve any of the bids or proposals (and/or the companies providing such bids or proposals) this Agreement shall terminate without further notice to either party. (c) Bid Award. The Company shall award the construction contract(s) to the responsible bidder(s) approved by the City Engineer (the “Contract Award”). 16 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 3.9 NCTCOG Standards. Except as otherwise provided in this Agreement, the design and construction of the Project shall be in accordance with the Standard Specifications for Public Works Constructions published by the North Central Texas Council of Governments, as amended, and as modified by the City, and to the extent applicable are hereby incorporated by reference. 3.10 Bonds. The Company agrees to provide a payment bond and a performance bond for the construction of the Project to ensure completion of the City facilities in accordance with Chapter 2253, Texas Government Code, and to cause its contractors and subcontractors to provide such performance bonds, and payment bonds in forms reasonably satisfactory to the City for the construction of the Project to ensure completion of the City Facilities.5.4 Construction of Entrance Features. The Company shall, subject to events of Force Majeure, cause Commencement of Construction of the Entrance Features to occur concurrent with the Commencement of Construction of the Public Infrastructure, and shall, subject to events of Force Formatted: Font: Bold Majeure, cause Completion of Construction thereof to occur concurrent with the Completion of Construction of the Public Infrastructure. The costs of construction of the Entrance Features shall be borne by the Company. The City shall provide an economic development grant in the Formatted: Body Text Indent 2, Left amount of the lesser of: (i) fifty percent (50%) of the actual costs of construction paid and incurred by the Company for the Entrance Features; and (ii) $25,000 (the “Entrance Feature Grant”) to be paid to the Company within thirty (30) days after receipt of a Payment Request following Completion of Construction of the Entrance Features. 3.11 Current Revenue. The Grant made hereunder shall be provided solely from lawfully available funds that have been appropriated by the City. Under no circumstances shall the City’s obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. Further, the City shall not be obligated to pay any commercial bank, lender or similar institution for any loan or credit agreement made by the Company and /or Company. None of the City’s obligations under this Agreement shall be pledged or otherwise encumbered in favor of any commercial lender and/or similar financial institution. 3.12 Concept Plan. The Company shall at its cost prepare and submit a preliminary concept site plan to the City for review and approval prior to closing on the purchase of phase one of the Land for the first phase of the Project. The company shall submit and obtain approval of a final plat for the cottage cluster, first retail services building on the Town Square and the initial phase of townhomes within 120 days after the company closes the purchase of phase one of the Land pursuant to the Option Agreement. 3.13 Project Marketing. The Company at its sole cost shall actively promote and market the Project. 3.14Property Owners Association. The Company shall be responsible for establishing a property owners association to provide for the maintenance of the common areas within the Project. The property owner association documents shall be submitted to the City Attorney for review and approval prior to the approval of the first plat for the development of the land for the Project. 17 27192 Formatted: Header, Justified Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 3.15Residential Lot Development. The Company shall cause all residential lot and structures to be designed and constructed with noise mitigation features as approved by the City. The Company shall grant an avigation easement to the Dallas Forth Worth regional Airport relating to the development of the Land for the Project as the Company closes it purchase of the Land, or portion thereof. The Company shall cause all purchasers, tenants and occupants of the Land and buildings/improvements thereon to be notified in writing of the noise conditions existing on the Land and of the existence of the any avigation easements and noise conditions prior to occupancy. Article IV City Projects 4.1 Fee Waivers. The City agrees to waive building permit fees, inspection fees, platting fees, roadway impact fees and other fees for the development of the Project, excluding water and waste water impact fees assessed against the Land, for the period beginning on the Effective Date and continuing thereafter for a period of ten (10) years. 4.2 Bethel Road Extension. The City agrees to provide the land for and construct the extension of Bethel Road to the Town Square to serve as the Project entrance if the City acquires the necessary right-of-way including the ____ gas station site. 4.3 Retention/Detention Pond. The City agrees to cause the construction of a retention/detention pond for the Project if necessary, to be owned and maintained by the City. The City shall provide all required storm water collection capacity on Bethel Road and South Coppell Road contemporaneously with the construction of the Infrastructure by the Company. In the event the City elects not to construct the retention/detention pond the Company shall have an option to purchase such portion of the Land pursuant to the Option Agreement. 4.4 South Coppell Road. The City shall at its costs, subject to events of Force Majeure, to cause the Commencement of Construction of South Coppell Road southward from Bethel Road to its intersection with Southwestern Boulevard to occur on or before January 1, 2010. 4.5 Historic Overlay District. The City agrees to provide written notice to and consult with the Company prior to the adoption of any amendments to the Historic Overlay District. 4.6 Additional City Facilities. The City agrees at its costs, subject to events of Force Majeure, to construct one (1) pavilion for the Coppell Framers Market and one (1) outdoor theater on the Land within two (2) years after the Company pays the third installment of the Option Price pursuant to the option Agreement. 18 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 4.7 Engineering Costs. The agrees to reimburse the Company for the Engineering costs incurred and paid by the Company for the Project in the event the City elects not to proceed with the Project and City Facilities. Article V Joint Responsibilities 5.1 Storm Water Street Improvement Plan. The parties shall jointly develop a plan for the necessary storm water and street improvements for South Coppell Road where townhomes abut such street as shown on Exhibit “B”. 5.2 Water Feature Study. The parties shall jointly conduct a feasibility study for an interactive water feature element to be constructed on the Town Square. 5.5 Private Parking. The Company shall, at its sole cost, and as part of the Private Infrastructure improvements, construct private surface parking on the east, west and south sides of the perimeter of the City Facilities as depicted in Exhibit “D”. The Company shall, subject to events of Force Majeure, cause Commencement of Construction of the Private Parking to occur concurrent with the Commencement of Construction of the Public Infrastructure, and shall, subject to events of Force Majeure, cause Completion of Construction thereof to occur concurrent with the Completion of Construction of the Public Infrastructure; provide however the streetscape improvements shall not be constructed until improvements are constructed on the Finished Lots. Article VI Termination 6.1 Termination. 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 Formatted: Body Text, Widow/Orphan control, Agreement; (b) the Expiration Date; Don't keep with next, Don't keep lines together, (c) by either party, in the event other party breaches any of the terms or Tab stops: 0.5", Left + Not at -0.5" conditions of this Agreement and such breach is not cured within thirty (30) days after written notice thereof; or (d) by the City, if the Company suffers an Event of Bankruptcy or Insolvency; (e) by the City, if any Impositions owed to the City or the State of Texas by the Company and/or Company shall become delinquent (provided, however the Company retains the right to timely and properly protest and contest any such Impositions) and such delinquent Impositions are not paid within thirty (30) days after written notice thereof; or (f) by the City, if any subsequent Federal or State legislation or any decision by a court of competent jurisdiction declares or renders this Agreement invalid, illegal or unenforceable; 19 27192 Formatted: English (U.S.) Formatted: Heading 2, Widow/Orphan control, Don't keep with next, Don't keep lines together, Tab stops: Not at -0.5" Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 6.2 In the event the Agreement is terminated by the City pursuant to Section 5.1(c), (d), or (e), the City shall be relieved of any further obligation under this Agreement to purchase the Infrastructure from the Company . In the event the Agreement is terminated by the City pursuant to Section 5.1(c), the City may seek specific performance, and/or actual damages incurred as a result of such uncured default by the Company. 6.3 In the event the Agreement is terminated by the Company pursuant to Section 5.1(c) the Company may seek specific performance, and/or actual damages incurred as a result of such uncured default by the City. 6.4 Right of Offset. The City may at its option, offset any amounts due and payable under this Agreement against any debt (including Impositions) lawfully due to the City from the Company, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due the City has been reduced to judgment by a court. Other Company Obligations 6.1 Concept Plan. The Company shall at its cost prepare and submit a preliminary concept site plan (the “Site Plan”) to the City for review and approval prior to closing on the purchase of the Land within Phase One. The Site Plan attached hereto as Exhibit “E” is hereby approved by City. The Company may, from time to time, make alterations to the Site Plan subject to City approval. 6.2 Platting – Phase One. The Company shall submit a preliminary plat for the cottage cluster, first retail services building on the Town Square and the initial phase of town homes within 120 days after the Company closes the purchase of the Land within Phase One pursuant to the Option Agreement. 6.3 Project Marketing. The Company at its sole cost shall actively promote and market the Project. 6.4 Property Owners Association. The Company shall be responsible for establishing a property owners association to provide for the maintenance of the common areas within the Project. The property owner association documents shall be submitted to the City Attorney for review and approval prior to the approval of the final plat for the development of the first portion of the Land within the Project. 6.5 Residential Lot Development. 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 Land for the Project as the Company closes it purchase of the Land, or portions thereof. The Company shall cause all purchasers, tenants and occupants of the Land and buildings/improvements thereon to be notified 20 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 in writing of the noise conditions existing on the Land and of the existence of the any avigation easements and noise conditions prior to occupancy. 6.6 Insurance. Throughout the term of this Agreement, Company shall, at its expense, maintain in full force and effect, the following insurance: (a) a policy of insurance for bodily injury, death and property damage insuring against all claims, demands or actions relating to the Company’s performance of its obligations pursuant to this Agreement with (1) a policy of comprehensive general liability (public) insurance with a minimum combined single limit of not less than $1 Million Dollars per occurrence for bodily injury and property damage with an aggregate of not less than $2 Million Dollars; (2) policy of automobile liability insurance covering any vehicles owned and/or operated by the Company, its officers, agents, and employees, and used in the performance of its obligations hereunder with a minimum of $1 Million Dollars; and (3) 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 and the Public Infrastructure 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 Public Infrastructure; 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-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. 6.7 Design Covenant. 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 21 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 restaurant 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. Article VII City Obligations 7.1 Fee Waivers. The City agrees to waive building permit fees, inspection fees, platting fees, roadway impact fees and other fees for the development of the Project (including with respect to vertical construction), excluding water and waste water impact fees assessed against the 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 thereafter for a period of ten (10) years. Formatted: Heading 2, Left, Don't keep with 7.2 Platting – City Facilities. The City shall cause a final plat of the portion of the Land encompassing the City Facilities to be approved and filed within 30 days following City next approval of the Plans. 7.3 Construction of Town Square Improvements. The City shall, subject to Events of Force Majeure, cause the Completion of Construction of the Town Square Improvements within six (6) months after the Completion of Construction of the Public Infrastructure. 7.4 Coppell Road Extension. The City agrees to provide the land for and construct the extension of Coppell Road from Bethel Road to the Town Square to serve as the Project entrance if the City acquires the necessary right-of-way, including the necessary portion of the Hassan Land. 7.5 Storm Water Facilities. The City shall provide all required storm water collection capacity on Bethel Road and South Coppell Road contemporaneously with the construction of the City Facilities by the Company. 7.6 South Coppell Road. The City shall, at its cost, subject to events of Force Majeure, cause the Completion of Construction of South Coppell Road southward from Bethel Road to its intersection with Southwestern Boulevard to occur on or before January 1, 2010. 7.7 Historic Overlay District. The City agrees to provide written notice to and obtain the consent of the Company prior to the adoption of any amendments to the Historic Overlay District. 7.8 Additional City Facilities. 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 pays the third installment of the Option Price pursuant to the Option 22 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 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. 7.9 Engineering Costs. The City agrees to reimburse the Company for the Engineering Costs incurred and paid by the Company for the Project and City Facilities in the event the City elects not to proceed with the Project and City Facilities in accordance with this Agreement. 7.10 Project Identification on Way-Finding Signs. The City shall at its cost add the Project Name (“”Main Street Coppell”) and directional signage to each Way-Finding Project sign to be constructed by the City and maintain such signage for so long as the City maintains its Way- Finding signs. Article VIII Joint Responsibilities 8.1 Storm Water and Street Improvement Plan. The parties shall jointly develop a plan for the necessary storm water and street improvements for South Coppell Road where town homes abut such street as shown on Exhibit “F”. 8.2 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 9.1 Termination. 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; (b) the Expiration Date; (c) by either party, in the event other party breaches any of the terms or conditions of this Agreement and such breach is not cured within thirty (30) days after written notice thereof, or within such additional period of time as may be reasonably necessary under the circumstances so long as the defaulting party commences the cure of such breach within such 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 and/or Company shall become delinquent (provided, however the Company retains the right to timely and properly protest and contest any such 23 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Impositions) and such delinquent Impositions are not paid within thirty (30) days after written notice thereof; or (f) by the City, if any subsequent Federal or State legislation or any decision by a court of competent jurisdiction declares or renders this Agreement invalid, illegal or unenforceable; provided, however, this paragraph shall be subject to Section 10.9. 9.2 City Rights Upon Termination. In the event the Agreement is terminated by the City pursuant to Section 9.1(d), (e), or (f), the City shall be relieved of any further obligation under this Agreement to purchase the City Facilities from the Company. 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. 9.3 Company Rights Upon Termination. 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. 9.4 Right of Offset. 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 710.1 Binding Agreement; Assignment. 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 (but with notice to the City) assign this Agreement to an entity controlled by Charles Cotten and Greg Yancey. 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. [Note – inability to collaterally assign this agreement to a financial institution is a major issue]. 710.2 Limitation on Liability. 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. 710.3 No Joint Venture. It is acknowledged and agreed by the parties that the terms hereof are not intended to and shall not be deemed to create a partnership or joint venture among the parties. 24 27192 Formatted: Body Text, Left, Don't keep with next, Don't hyphenate Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 710.4 Authorization. Each party represents that it has full capacity and authority to grant all rights and assume all obligations that are granted and assumed under this Agreement. 710.5 Notice. Any notice required or permitted to be delivered hereunder shall be deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid, certified mail, return receipt requested, addressed to the party at the address set forth below or (ii) on the day actually received if sent by courier or otherwise hand delivered. If intended for City, to: Attn: City Manager City of Coppell, Texas P.O. Box 478 Coppell, Texas 75019 With a copy to: Peter G. Smith Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 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. 25 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 710.6 Entire Agreement. This Agreement is the entire agreement between the parties with respect to the subject matter covered in this Agreement. There is no other collateral oral or written Agreement among the parties that in any manner relates to the subject matter of this Agreement, except as provided or referred to in this Agreement (including the Related Agreements) or as provided in any Exhibits attached hereto. 710.7 Governing Law. This Agreement shall be governed by the laws of the State of Texas; and venue for any action concerning this Agreement shall be in the State District Court of Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of said court. 710.8 Amendment. This Agreement may only be amended by a written agreement executed by all parties. 710.9 Legal 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 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. 710.10 Recitals. The recitals to this Agreement are incorporated herein. 710.11 Counterparts. This Agreement may be executed in counterparts. Each of the counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one and the same instrument. 710.12 Exhibits. The exhibits to this Agreement are incorporated herein by reference for all purposes wherever reference is made to the same. 10.13 Survival of Covenants. Any of the representations, warranties, covenants, and 7 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. 10.14 Indemnification by CompanyCITY SHALL NOT BE LIABLE 7 . 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, 26 27192 Formatted: Contract Text, Tab stops: 0.5", Left + Not at -0.5" Formatted: Font: 12 pt Formatted: Font: 12 pt Formatted: Font: 12 pt Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 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 RELATED TO ANY EMINENT DOMAIN PROCEEDINGS (OR PROPERTY ACQUISITIONS IN LIEU THEREOF) RELATED TO THE PROJECT OR THE CITY FACILITIES. 4.8 Insurance. Throughout the term of this Agreement, Company shall, at its expense, maintain in full force and effect, the following insurance: (a) a policy of insurance for bodily injury, death and property damage insuring against all claims, demands or actions relating to the Company’s performance of its obligations pursuant to this Agreement with (1) a policy of comprehensive general liability (public) insurance with a minimum combined single limit of not less than $1 Million Dollars per occurrence for bodily injury and property damage with an aggregate of not less than $2 Million Dollars; (2) policy of automobile liability insurance covering any vehicles owned and/or operated by the Company, its officers, agents, and employees, and used in the performance of its obligations hereunder with a minimum of $1 Million Dollars; and (3) statutory Worker’s Compensation Insurance covering all employees involved in the performance of its obligations hereunder. Insurance covering the Project and the Infrastructure against loss or damage from perils covered by an all risk or special form policy. The must be in amounts not less than eighty (80%) percent of the full insurable value of the buildings and other improvements included in the Project and Infrastructure. Construction liability insurance at all times when demolition, excavation, or construction work is in progress on the Land with limits of not less than $100,000 for property damage and $300,000 for one person and $1,000,000 for one accident for personal injury and must protect City and Company, against all liability for injury or damage to any person or property in any way arising out of demolition, excavation, or construction work on the Land. (b) All insurance and certificate(s) of insurance shall contain the following provisions: (1) name the City, its officers, agents and employees as additional insureds as to all applicable coverage with the exception of Workers Compensation Insurance; (2) provide for at least thirty (30) days prior written notice to the City for cancellation, non-renewal, or material change of the insurance; (3) provide for a waiver of subrogation against the City for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance. (c) All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least “A” by AM Best or other equivalent rating service. 27 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 (d) A certificate of insurance evidencing the required insurance shall be submitted to the City prior to Commencement of Construction. (e) Without limiting any of the other obligations or liabilities of Company, the Company shall require its general contractors, at the general contractor's own expense, to maintain during the term of this Agreement, the required insurance including the required certificate and policy conditions as stated herein. 7.15 Conditions Precedent. This Agreement shall not be effective is subject to and conditioned upon the following conditions having occurred: (i) the parties having entered into the Option Agreement on or before ____ , 2008 or other date agreed to by the parties; (ii) the Company having submitted an application for zoning change for the Planned Development District; and (iii) the City having adopted an ordinance granting the Planned Development District. COMPANY SHALL NOT BE LIABLE OR RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS AND RELEASED BY CITY 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 CITY, OR PROPERTY, ARISING OUT OF, OR OCCASIONED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY AND ANY EMPLOYEE, AGENT OR CONTRACTOR FOR THE CITY. 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. 10.15 Approvals. 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. 10.16 Current Revenue. The Grant made hereunder shall be provided solely from lawfully available funds that have been appropriated by the City. Under no circumstances shall the City’s obligations hereunder be deemed to create any debt within the meaning of any constitutional or statutory provision. Further, the City shall not be obligated to pay any commercial bank, lender or similar institution for any loan or credit agreement made by the Company and /or Company. 10.17 Condition Precedent. This Agreement shall not be effective and is subject to and conditioned upon the the parties having entered into the Option Agreement concurrently with this Agreement. 28 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 10.18 Special Company Termination Right. Notwithstanding anything contained herein to the contrary, if prior to the date on which the second option payment is due under the Option Agreement, the following two conditions shall not have been satisfied: (a) the City shall have adopted a Planned Development District Ordinance (including approval of the Old Coppell Design Guideline Variances) acceptable to the Company; and (b) the City shall have acquired fee simple title to all or such portion of the Hassan Land as the Company shall reasonably deem necessary for the Project, Company may, at its option, terminate this Agreement, in which case, City shall, in addition to paying its share of the Engineering Costs for the City Facilities as otherwise provided herein, reimburse Company for all option payments made under the Option Agreement and all Engineering Costs incurred by Company for the Project. [Signatures Appear on the Following Page] 29 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 EXECUTED in duplicate originals this the ___ day of, _______ Formatted: No underline _________________, 2008. City of Coppell, Texas By: Douglas N. Stover, Mayor Attest: By: Libby Ball, City Secretary Agreed as to Form: By:__________________________ City Attorney EXECUTED in duplicate originals this the day of, , 2008. CSE Commercial Real Estate, LP By: Debco partners, LLC, its general partner By: Name Charles CottonCotten Title: ____________Manager 30 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “A” Description of Land 31 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “B” Description of Hassan Land 32 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “C” Old Coppell Design Guideline Variances 33 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “D” Project Depiction Formatted: Centered 34 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “E” Site Plan 35 27192 Field Code Changed Formatted: Font: 10 pt Formatted: Font: Not Bold PGS Draft 5/29/08 Exhibit “F” South Coppell Road Storm Water and Street Improvement Area 36 27192 Field Code Changed Formatted: Font: 10 pt