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STATE OF TEXAS§
§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 owns the real property commonly know as the Carter Crowley
Property generally located at Coppell Road, Burns Road and Hammonds Road within the City as
Exhibit “A
further described in ” (the “Land”); and
WHEREAS,
the City intends to acquire all or a portion of the real property within the
Exhibit “B”
City and adjacent to the Land described in (the “Additional Land”) (any portion of
the Additional Land, once acquired by the City, shall be included within the definition of the
“Land” under this Agreement); and
WHEREAS,
the Company desires to purchase the Land pursuant to the Option
Agreement (hereinafter defined) and to develop the Land for a mixed use development
consisting of approximately fourteen (14) retail office cottages built with craftsman architectural
style, forty-four (44) town homes, eleven (11) retail service buildings, two (2) restaurants 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 Tex. Loc. Gov’t. Code § 380.001 to provide
economic development grants to promote local economic development and to stimulate business
and commercial activity in the City; and
WHEREAS
, the City has determined that making an economic development grant to the
Company in accordance with this Agreement will further the objectives of the City, will benefit
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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.
“City Facilities” shall collectively mean the Public Infrastructure and the Town Square
Improvements.
“Commencement of Construction” shall mean, for the respective phase of the Public
Work or Private Work as applicable, that: (i) the plans have been prepared and all approvals
thereof required by applicable governmental authorities have been obtained; (ii) all necessary
permits for construction pursuant to the respective plans therefore have been issued by all
applicable governmental authorities; and (iii) grading of the Land has commenced for the
respective phase of the Public Work or Private Work, as the case may be.
“Company” shall mean CSE Commercial Real Estate, LP, a Texas limited partnership, or
it’s permitted assigns.
“Completion of Construction” shall mean for the respective phase of the Public Work, the
Private Work, Phase One, City Facilities or the Project that: (i) the respective phase of the Public
Work, the Private Work, Phase One, City Facilities or the Project, as the case may be, has been
substantially completed, and (ii) a certificate of substantial completion has been issued by the
general contractor(s) for the work or project; and (iii) the City has accepted the City Facilities,
the Private Infrastructure or the Public Infrastructure, or the City has issued a final certificate of
occupancy for the improvements included within Phase One, or the Private Work, as the case
may be.
“Concept Plan” shall mean a preliminary conceptual plan for the development of the Land
for the Project and the City Facilities as depicted in Exhibit “C”.
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“Engineering Costs” shall mean all costs of the Engineering Services to be incurred in
connection with the design and construction of the Private Infrastructure and the City Facilities.
“Effective Date” shall mean the last date of execution hereof.
“Engineering Services” shall mean the engineering services to be provided by the Project
Engineers for the design and construction of the Private Infrastructure and the 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 plans approved by the City.
“Entrance Feature Grant” shall mean an economic development grant in the amount of
the lesser of: (i) fifty percent (50%) of the actual costs of design and construction paid and
incurred by the Company for the Entrance Features; and (ii) $25,000, to be paid as set forth
herein.
“Event of Bankruptcy or Insolvency” shall mean the dissolution or termination of a party’s
existence as a going business, insolvency, appointment of receiver for any significant part of such
party’s property and such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against such
party and such proceeding is not dismissed within ninety (90) days after the filing thereof.
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“Expiration Date” shall mean the tenth (10) anniversary of the date the Contract Award
as defined in Section 4.1(c), unless sooner terminated as provided herein.
“Finished Lot” shall mean a developed lot or parcel with frontage on a public street with
on-site utilities installed.
“Force Majeure” means any contingency or cause beyond the reasonable control of a
party including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action (unless caused by acts or omissions of the party) adverse weather, fires,
explosions or floods, strikes, slowdowns or work stoppages.
“Impositions” shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees, and other charges by public or governmental authority, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed,
charged, levied, or imposed by any public or governmental authority on the Company and/or
affecting the Land.
“Infrastructure” shall mean the Public Infrastructure and the Private Infrastructure.
“Land” shall mean the real property described in Exhibit “A” together with such portion
of the Additional Land as shall be acquired by the City.
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“Old Coppell Design Guidelines” shall mean the development guidelines for Old Coppell
Design as approved by the City, from time to time.
“Option Agreement” shall mean that certain option to purchase the Land by and between
the Coppell Economic Development Foundation, Inc. and the Company of approximate even
date herewith pursuant to which the Company shall agree to pay a $2,000,000 option price for
the unilateral right to purchase the Land (less approximately 2 acres for the Town Square) at
$1.00 per acre of net land area for a period of seven (7) years as set forth therein.
“Phase One” shall mean the first phase of the Project which shall consist of at least one
retail service building on the west side of the Town Square and one cottage on the north side of
the Town Square and the initial phase of 16 units of town homes 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 buildings fronting the west side of the Town
Square (consisting of approximately 20,000 square feet of space), the cottages fronting the north
side of the Town Square (consisting of approximately 10,000 square feet of space in the
aggregate) and the restaurants on the north side of the Town Square (consisting of approximately
8,000 square feet of space) shall be designed, constructed and leased such that at least forty
percent (40%) of the total cumulative square feet available will be used for restaurant and retail
uses that produce regular daily foot traffic within the Project. No fast food restaurants, sub or
sandwich shops, pizza parlors or restaurants with drive thru, drive up or drive-in service shall be
permitted within any of the Private Improvements. Only restaurants that provide dine in service
with preparation of food on site with a minimum of ___ square feet of seating space shall be
allowed.
“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, the parking on the east and west side of the new public street entry from Bethel
Road and the parking on the east and west side of Coppell Road (which shall be part of the
Public Infrastructure); water, storm water and sanitary sewer 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 cedar landscape screening at
Burns Street (to be designed); and 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 including the Project.
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“Project” shall mean a mixed use development to be constructed on the Land, or portion
thereof, consisting of approximately fourteen (14) retail office cottages built with craftsman
architectural style, forty-four (44) town homes, eleven (11) retail service buildings, two (2)
restaurants 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 Freese and Nichols, Inc certified professional engineers
selected by the Company and hereby approved by the City to provide the Engineering Services..
“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 east and 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 or adjacent to the public right-of-way; earthwork necessary to provide
positive drainage from the southwest to the northeast corner of the Land, fill dirt ; landscaping
and hardscaping of the public right-of-way; the initial Storm Water Pollution Prevention Plan
and implementation; and hydro-mulching of the final grading of the Land, if required.
“Public Work” shall mean the City Facilities to be constructed of the City Facilities on
the Land that are to be publicly owned under the term of this Agreement.
“Related Agreements” shall mean the Option Agreement and any other appropriate
agreement(s) related to the Project.
"Substantially Complete" or "Substantial Completion" shall mean that stage by which the
construction of the respective improvements and/or infrastructure or the designated portion
thereof, is sufficiently complete in accordance with the respective plans that the City and/or the
Company, as applicable, can occupy and/or enjoy the beneficial use of the respective
improvements or designated portion thereof, for its intended purpose, exclusive of punch list
items even though minor miscellaneous beyond punch list work and/or adjustment may be
required.
“Town Square” shall mean approximately two (2) acres of the Land on which the City
intends to construct a town square open space, generally initially consisting of a pavilion, public
restrooms and playground equipment, together with the landscaping and hardscaping of Town
Square. The portion of the Land encompassing the Town Square is shown on the Concept Plan.
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“Town Square Improvements” shall mean the publicly-owned vertical improvements to
be constructed within the Town Square, including the pavilion, public restrooms and playground
equipment, together with the landscaping and hardscaping of Town Square.
Article III
Design of the City Facilities
Engineering Services
3.1.
(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 Public
Work and the Private Work. In addition, the Company shall cause the Project Engineers to
estimate the cost of constructing the City Facilities. 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 Public Work (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 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 parties, the
parties shall have no right to object to the Engineering Costs unless there is a change in the scope
of the Engineering Services mutually approved by the parties).
(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 for the preparation of the Plans
and assist with the bidding and oversight of the construction of the improvements 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 120 days after
the Effective Date 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
within the Town Square as part of the Engineering Services, but no other design work shall be
performed on the Outdoor Theater. The City shall have the right to approve the Plans within
twenty (20) 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 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,
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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
Public Work and for any change orders or increases in the costs of the Engineering Services for
the Public Work approved by the City. The Company shall be responsible for all other costs for
the Engineering services for the Private Work and for any change orders or increases in the costs
of the Engineering Services for the Private Work.
(d)The Company shall submit invoices to the City as received from the Project
Engineers for the Public Engineering Costs and the City shall reimburse the Company for such
costs 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
Bidding.
4.1
Solicitation of Bids
(a). The Company shall, within 30 days after City approval of
the Plans, cause a bid package, including the plans and specifications for the Public Work 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 required to break out their respective bid between the Public Work and the Private Work.
Bidders shall also be required 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
including the plans and specifications to the City Engineer for approval and the City shall have a
period of twenty (20) 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 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 and the City shall return to the Company all sums paid
pursuant to 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.
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Bid Review
(b). 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 the Project Engineer’s estimated costs of
construction of the Public Work. 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.
Bid Award
(c). 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 (but not later than twenty (20) business
days) for the construction of the Public Work and such portion of the Private Work as shall be
determined by the Company..
Article V
Company Construction Obligations; City Purchase Obligations
Construction of the Project
5.1. 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 and the Planned
Development District Ordinance. Notwithstanding anything to the contrary, the Company
intends, subject to Events of Force Majeure, cause Completion of Construction of the entire
Project to occur within ten (10) years after the date of Contract Award. The Company shall,
subject to Events of Force Majeure, cause Commencement of Construction of the Town Square
Improvements to occur within four (4) months after the completion of the Public Infrastructure,
and shall, subject to Events of Force Majeure, cause Completion of Construction thereof to occur
within 180 days thereafter.
Construction and Purchase of Public Infrastructure.
5.2
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Agreement to Construct and Sell Public Infrastructure.
(a) 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.
Purchase Price
(b). A purchase price equal to the actual costs paid and incurred by
the Company for the construction of the Public Work, 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 Work, or portion thereof, shall be paid by City in installments as construction
of the Public Work 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 Work , 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 Work, 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 Public Work, 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 Work, 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 Public Work, 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.
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(vii)The covenants made by Company to City as contained in this Agreement shall
have been 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 Work, 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.
(xi)The Public Work, or portion thereof, shall not have been materially damaged or
destroyed by Casualty.
(xii)Company shall execute and deliver to City a bill of sale, reasonably acceptable to
City conveying to City the Public Work, or portion thereof then constructed (it being agreed,
however that ownership of the Public Work, 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.
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 City 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 accordance with the Plans, together with
such other evidence that no mechanics or materialmen’s liens or other encumbrances have been
filed against the City Facilities, or portion thereof.
(iii)City shall have accepted such Public Infrastructure, such acceptance not to be
unreasonably withheld, delayed or conditioned if such Public Work is constructed in accordance
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with the Plans.(iv)Company shall have delivered and assigned all warranties to the City for
the Public Work, 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.
Commencement of Construction
(c). The Company shall, subject to events of
Force Majeure, cause Commencement of Construction of the Public Work to occur within sixty
(60) days after the Contract Award, and shall, subject to events of Force Majeure, cause
Completion of Construction thereof to occur within one (1) year thereafter.
Substantial Completion
(d). The Company will use good faith efforts to notify City
(the “Substantial Completion Notice”) of the date that the Company reasonably expects the
Public Work, or portion thereof, to be Substantially Complete, not more than forty-five (45)
business days or less than ten (10) business days prior to the date that is set forth in such notice.
Upon receipt of the Substantial Completion Notice, City shall notify the Company of the date a
City inspector intends to make a walk-through inspection of the Public Work, 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 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.
No Delay Damages
(e). 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 Work, or portion thereof only and shall not be entitled to any additional payment from the
City on account of such delay.
General Construction Requirements.
5.3
Permits.
(a)The Company shall cause all necessary permits and approvals required
by the City and any applicable governmental authorities to be issued for the construction of the
Project and the Public Work. The Company shall, at its cost, except as otherwise provided
herein, be responsible for the design, inspection and supervision of the construction of the
Project and the Public Work.
Compliance with Laws.
(b)The Company shall comply with all local and state laws
and regulations regarding the design and construction of the Project and the 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. Upon Completion of
Construction of the Public Work, the Company shall provide the City with a final cost summary
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of all costs associated with the construction of the Public Work, 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.
Payment and Performance Bonds
(c). The Company shall in connection with the
construction of the Public Work, cause its contractors to provide performance and payment
bonds in forms reasonably satisfactory to the City for the construction of the Public Work to
ensure completion thereof in accordance with Chapter 2253, Texas Government Code, as
amended and thereof.
Construction Meetings
(d). 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 Work, 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 Work, 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 Work, or portion thereof at any time
during business hours.
Warranties.
(e) 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 Work, 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 Work, or portion thereof; and
(b) obligate the Company’s contractors, subcontractors and suppliers to repair all defects in the
applicable portion of the Public Work, or portion thereof, for a period of one (1) year following
Completion of Construction.
Casualty
(f). Risk of loss due to casualty shall be borne by the Company until
Completion of Construction of the Public Work, 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 Work, or portion thereof, damaged by Casualty to
substantially the same condition they were in immediately prior to such Casualty, subject to
industry standard deductibles. The Company will in any event restore any of the Public Work,
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.
NCTCOG Standards
(g). Except as otherwise provided in this Agreement, the
design and construction of the City Facilities 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.
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Construction of Entrance Features.
5.4 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 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 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.
Private Parking
5.5. 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 the Concept Plan. 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 each of the Finished
Lots.
Article VI
Other Company Obligations
Detail Site Plan
6.1. The Company shall at its cost prepare and submit a detailed site
plan pursuant to the Planned Development District Ordinance (the “Site Plan”) to the City for
review and obtain approval thereof prior to closing on the purchase of the Land for Phase One.
Platting – Phase One
6.2. The Company shall submit and obtain final re-plat
approval of the final plat if the Project for Phase One within 120 days after the Company closes
the purchase of the Land for Phase One pursuant to the Option Agreement.
Project Marketing
6.3. The Company at its sole cost shall actively promote and
market the Project.
Property Owners Association.
6.4 The Company shall be responsible for
establishing a property owners association to provide for the maintenance of the common areas
within the Project consistent with the Declaration of Covenants, Conditions and Restrictions for
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 Phase One.
Residential Lot Development.
6.5 The Company shall cause all residential lots and
structures to be designed and constructed with noise mitigation features as reasonably
determined by Company and approved by the City. The Company shall grant an avigation
easement to the Dallas Forth Worth Regional Airport relating to the development of the Land for
the Project as the Company closes it purchase of the Land, or portions thereof. The Company
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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.
Insurance.
6.6 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.
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Design Covenant.
6.7The retail service buildings fronting the west side of the
Town Square (consisting of approximately 20,000 square feet of space), the cottages fronting the
north side of the Town Square (consisting of approximately 10,000 square feet of space) and the
two (2) restaurants on the north side of the Town Square (consisting of approximately 8,000
square feet of space in the aggregate) shall be designed, constructed and leased such that at least
forty percent (40%) of the total cumulative square feet available will be used for restaurant and
retail uses that produce regular daily foot traffic within the Project. No fast food restaurants, sub
or sandwich shops, pizza parlors or restaurants with drive thru, drive up or drive-in service shall
be permitted within any of the Private Improvements. Only restaurants that provide dine in
service with preparation of food on site with a minimum of ___ square feet of seating space shall
be allowed.
Article VII
City Obligations
Fee Waivers.
7.1 The City agrees to waive building permit fees, zoning application
fees, inspection fees, platting fees, roadway impact fees and other fees for the development of the
Project (including with respect to vertical construction), excluding water and waste water impact
fees, assessed against the 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.
Coppell Road Extension.
7.2 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
Additional Land.
Storm Water Facilities.
7.3 The City shall provide all required storm water
collection capacity on Bethel Road and South Coppell Road contemporaneously with the
construction of the City Infrastructure by the Company.
South Coppell Road
7.4. The City shall use commercially reasonable efforts, at its
cost, 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 March 1, 2009 and subject to events of Force Majeure to use commercially
reasonable efforts to cause Completion of Construction thereof to occur on or before January 1,
2010.
Historic District
7.5. The City agrees to provide written notice to the Company prior
Additional City Facilities
to the adoption of any amendments to the Historic District. 7.6.
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 Agreement. Additional City Facilities
may include an interactive water feature or outdoor theatre. Any other proposed uses must be
approved in advance by the Company, which shall not be unreasonably withheld, denied or
delayed.
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Project Identification on Way-Finding Signs.
7.7 The City shall at its cost add the
Project Name (Old Town Coppell”) directional signage to each Way-Finding Project sign for
Freeport/Bethel, Sandy Lake/Coppell Road and Denton Tap/Bethel to be constructed by the City
and maintain such signage in accordance with the City Way Finding Policy for so long as the
City maintains its Way-Finding signs. If the Company wants to modify the Way Finding Signs to
include signage identifying the Project other than by “Old Town Coppell” then such
modifications shall be mutually agreed by the parties and all costs of such modifications shall be
paid by the Company.
Article VIII
Joint Responsibilities
Storm Water and Street Improvement Plan.
8.1 The parties shall jointly develop a
plan for the necessary storm water and street improvements for South Coppell Road where town
Exhibit “E”
homes abut such street as shown on .
Water Feature Study.
8.2The parties shall jointly conduct a feasibility study for an
interactive water feature element to be constructed on the Town Square; provided, however, the
Company shall not be required to spend any money on any such study.
Article IX
Termination
Termination.
9.1 This Agreement shall terminate upon the occurrence of any one or
more of the following:
(a)the execution by all parties of a written agreement terminating this
Agreement;
(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, provided however such period shall
be extended for an additional period of thirty (30) days so long as the
defaulting party commences the cure of such breach within such initial 30-
day period and thereafter diligently pursues the completion of such
curative action; or
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by the City, if the Company suffers an Event of Bankruptcy or Insolvency;
(d)
by the City, if any Impositions owed to the City or the State of Texas by the
(e)
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
by the City, if any subsequent Federal or State legislation or any decision by
(f)
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.
City Rights Upon Termination.
9.2 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.
Company Rights Upon Termination.
9.3In 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.
Right of Offset.
9.4 The City may, at its option, following a default by the Company
which is not cured within any applicable cure period, offset any amounts due and payable under
this Agreement against any debt (including Impositions) lawfully due to the City from the
Company, regardless of whether the amount due arises pursuant to the terms of this Agreement
or otherwise and regardless of whether or not the debt due the City has been reduced to judgment
by a court.
Article X
Miscellaneous
Binding Agreement; Assignment.
10.1 The terms and conditions of this Agreement
are binding upon the successors and permitted assigns of the parties hereto. This Agreement
may not be assigned without the prior written consent of the City Manager; provided, however,
the Company may, without City Manager approval, upon thirty (30) days prior written notice to
the City, assign this Agreement to an entity controlled by Charles Cotten and Greg Yancey and
the new entity agrees in writing to assume all rights and obligations of the Company under this
Agreement. In addition, this Agreement may be collaterally assigned by the Company (or any
permitted assignee) to a financial institution providing financing to the Company (or any
permitted assignee) for the purchase and/or development of the Project.
Limitation on Liability
10.2. It is understood and agreed among the parties that the
Company and the City, in satisfying the conditions of this Agreement, have acted independently,
and assume no responsibilities or liabilities to third parties in connection with these actions.
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No Joint Venture.
10.3 It is acknowledged and agreed by the parties that the terms
hereof are not intended to and shall not be deemed to create a partnership or joint venture among
the parties.
Authorization
10.4. Each party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
Notice
10.5. Any notice required or permitted to be delivered hereunder shall be
deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the party at the address set forth below or
(ii) on the day actually received if sent by courier or otherwise hand delivered.
If intended for City, to:
Attn: City Manager
City of Coppell, Texas
P.O. Box 478
Coppell, Texas 75019
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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Entire Agreement
10.6. This Agreement is the entire agreement between the parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement among the parties that in any manner relates to the subject matter of this
Agreement, except as providedor referred to in this Agreement (including the Related
Agreements) or as provided in any Exhibits attached hereto.
Governing Law
10.7. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of
said court.
Amendment
10.8. This Agreement may only be amended by a written agreement
executed by all parties.
Legal Construction
10.9. In the event any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention
of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or
unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable
and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
Recitals
10.10. The recitals to this Agreement are incorporated herein.
Counterparts
10.11. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one
and the same instrument.
Exhibits
10.12. The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
Survival of Covenants
10.13. Any of the representations, warranties, covenants, and
obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
Indemnification by Company
10.14 CITY SHALL NOT BE LIABLE OR
.
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY COMPANY FROM AND AGAINST ANY AND ALL SUITS,
ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE,
OR DESCRIPTION, INCLUDING ALL REASONABLE EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON,
OR INJURY OR LOSS TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY
PERSON OR PERSONS, INCLUDING THE COMPANY, OR PROPERTY, ARISING OUT
OF, OR OCCASIONED BY THE PERFORMANCE OF COMPANY UNDER THIS
AGREEMENT. THE PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR THE
BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
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ENTITY. IT IS THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT
THAT THE INDEMNITY PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY
EXTENDED BY COMPANY TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF THE COMPANY’S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR
DAMAGE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THE COMPANY SHALL NOT DEFEND, INDEMNIFY OR HOLD THE CITY
HARMLESS FROM AND AGAINST ANY CLAIMS ARISING OUT OF, OR OCCASIONED
BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE CITY OR
RELATED TO ANY EMINENT DOMAIN PROCEEDINGS (OR PROPERTY
ACQUISITIONS IN LIEU THEREOF) RELATED TO THE PROJECT OR THE CITY
FACILITIES.
Approvals.
10.15Whenever 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.
Current Revenue
10.16. 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.
Condition Precedent
10.17. (a)This Agreement shall not be effective and is subject
to and conditioned upon the following conditions having occurred: (i) the parties having entered
into the Option Agreement concurrently with this Agreement; (ii) the Company having submitted
an application for zoning change for the Planned Development District Ordinance; (iii) the City
shall have adopted the Planned Development District Ordinance; (iv) the City shall have
acquired fee simple title to all or such portion of the Additional Land as the City shall reasonably
deem necessary for the Project and which is consistent with the Concept Plan, or initiated
eminent domain proceedings to acquire such (although the Company retains the right to
terminate the Agreement if the City is not able, for whatever reason, to acquire such portion of
the Additional Land as may be reasonably necessary for the Project and consistent with the
Concept Plan); and (v) the City shall have caused a final plat of the Land to be approved (which
plat shall lay out the blocks and public streets within the Project).
(b)If the Company shall terminate this Agreement due to the failure of the conditions
described in clauses (a) (iii), (iv) or (v) above, City shall, in addition to paying its share of the
Engineering Costs for the Public Work as otherwise provided herein, reimburse the Company for
all option payments made under the Option Agreement and all Engineering Costs incurred by the
Company for the Private Work.
Employment of Undocumented Workers
10.18. During the term of this Agreement the
Company agrees not to knowingly employ any undocumented workers and if convicted of a
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violation under 8 U.S.C. Section 1324a (f), the Company shall repay the amount of the any grants
and any other funds received by the Company from the City as of the date of such violation within
120 business days after the date the Company is notified by the City of such violation, plus interest
at the rate periodically announced by the Wall Street Journal as the prime or base commercial
lending rate, or if the Wall Street Journal shall ever cease to exist or cease to announce a prime or
base lending rate, then at the annual rate of interest from time to time announced by Citibank, N.A.
(or by any other New York money center bank selected by the City) as its prime or base commercial
lending rate, from the date of such notice until paid.
Attorneys Fees.
10.19If it becomes necessary for either party hereto to file a suit to
enforce this Agreement or any provisions contained herein, the Prevailing Party in such action is
entitled to recover, in addition to all other remedies or damages, reasonable legal fees and court
“”
costs incurred by the Prevailing Party in such suit. The term Prevailing Party means the Party
whose relief in an action is closest to the relief sought in the initial pleading in such proceeding
(whether by way of affirmative recovery or defense of claim).
[Signatures Appear on the Following Page]
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EXECUTED
in duplicate originals this the ___ day of _________________, 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:
NameCharles Cotten
Title:Member
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Exhibit “A”
Description of Land
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Exhibit “B”
Description of Additional Land
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Exhibit “C”
Concept Plan
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Exhibit “D”
South Coppell Road Storm Water and Street Improvement Area
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Exhibit “E”
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