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 §
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§ Economic Development Incentive Agreement
§
COUNTY OF DALLAS §
This Economic Development Incentive Agreement (this “Agreement”) is made by and
among the City 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
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EX OCOVT ODE
economic development grants to promote local economic development and to stimulate business
and commercial activity in the City; and
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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.
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“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.
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“Entrance Feature Grant” shall mean an economic development grant in the amount of the
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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.
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“Event of Bankruptcy or Insolvency” shall mean the dissolution or termination of a party’s
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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
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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.
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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.
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“Finished Lot” shall mean a developed lot or parcel with frontage on a public street with
on-site utilities installed.
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“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
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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.
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“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
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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
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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
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pavilion, interactive water feature,public restrooms and playground equipment, and one additional
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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.
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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.
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(b) Purchase Price. A purchase price equal to the actual costs paid and incurred by
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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
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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
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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.
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(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
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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
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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.
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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.
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(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.
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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
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_____________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.
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(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
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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,
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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
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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.
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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
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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
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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”).
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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
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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
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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.
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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.
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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
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(b) the Expiration Date;
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(c) by either party, in the event other party breaches any of the terms or
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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;
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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
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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
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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.
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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
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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
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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.
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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.
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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,
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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.
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(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.
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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]
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EXECUTED in duplicate originals this the ___ day of, _______
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_________________, 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
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Exhibit “A”
Description of Land
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Exhibit “B”
Description of Hassan Land
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Exhibit “C”
Old Coppell Design Guideline Variances
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Exhibit “D”
Project Depiction
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Exhibit “E”
Site Plan
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Exhibit “F”
South Coppell Road Storm Water and Street Improvement Area
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