ST1002-CN111227 (3) State of Texas §
§ First Amendment to Development Agreement
County of Dallas §
This First Amendment to Development Agreement ( "First Amendment") is made and
entered into on this 2) ■ day of J ; 2011, by and between CSE Commercial Real
Estate, LP, a Texas Limited Partnership (the "Company"), and the City of Coppell, a Texas
home rule municipality (the "City ") acting by and through their authorized representatives.
RECITALS
WHEREAS, on or about November 29, 2010, Company and Coppell Economic
Development Foundation, Inc., ( "CEDF ") entered into that certain Option Agreement ( "the
Option Agreement") granting to Company an option to purchase certain real property described
in Exhibit "A -1" of the Option Agreement (the "Option Land "); and
WHEREAS, Company and CEDF have entered into an agreement of even date herewith
to make certain amendments to the Option Agreement that the parties thereto believe to be
mutually advantageous; and
WHEREAS, on or about November 29, 2010, Company and City entered that certain
Development Agreement ( "the Development Agreement') setting forth the agreement of the
parties regarding the development by City and Company of the Option Land; and
WHEREAS, Company and City desire to make certain amendments to the Development
Agreement that the parties believe to be mutually advantageous and consistent with the
amendments made to the Option Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, and
promises made one to the other, Company and City agree as follows:
1. The Development Agreement is hereby amended as follows:
A. Exhibit `B" titled "Concept Plan" shall be amended in its entirety and depicted as
set forth in Attachment 1, attached hereto and incorporated herein by reference.
B. The definition of "Covenants" as set forth in Article II shall be amended to read in
its entirety as follows:
"Covenants" shall mean a declaration of covenants, conditions,
and restrictions to be recorded in the Official Public Records of Dallas
County, Texas concurrently with the closing by the Company of the
purchase of the Phase One Land.
PAGE 11 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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C. The definition of "Phase One" as set forth in Article II shall be amended to read in
its entirety as follows:
"Phase One" shall mean the first phase of the Project which shall
consist of at least (i) one retail service building on the west side of the
Town Square, (ii) one cottage on the northwest side of the Town Square,
and (iii) the initial phase of 8 units of garden patio homes to be located on
Lot 1, Block F, Old Town Addition, together with the necessary electrical,
phone, water, sewer and other infrastructure not constructed by the City.
The retail service building fronting the west side of the Town Square
(consisting of approximately 20,000 square feet of space), the cottages
fronting the north side of the Town Square (consisting of approximately
8,000 square feet of space in the aggregate) shall be designed and
constructed such that at least forty percent (40 %) of the total cumulative
square feet available will be used for restaurant and retail uses that
produce regular daily foot traffic within the Project. No restaurants with
drive thru, drive up or drive -in service shall be permitted within the
Project; provided, however, such restriction shall not limit the right of a
restaurant to designate no more than two (2) parking spaces adjacent to the
restaurant for take -out customers.
D. The definition of "Private Infrastructure" as set forth in Article II shall be
amended by deleting the phrase "cable television ".
E. The phrase "thirty -eight (38)" is deleted wherever it appears in the second recital,
the definition of "Project" as set forth in Article II, and Exhibit "C" titled "Form of
Shared Parking Agreement ".
F. The definition of "Public Infrastructure" as set forth in Article II shall be amended
by adding the phrase "public parking identified as `1 and `P2' on the Concept Plan;"
before the word "water" where it first appears in said definition.
G. Section 5.2(c) shall be amended to read in its entirety as follows:
(c) Commencement and Completion of Construction. City
shall, subject to events of Force Majeure, cause Commencement of
Construction of the Infrastructure to occur within sixty (60) days after the
Contract Award and shall, subject to events of Force Majeure, cause
Completion of Construction thereof to occur within eighteen (18) months
thereafter. Notwithstanding the foregoing, City agrees to cause the
Completion of Construction of the public parking areas identified as "P 1"
and "P2" on the Concept Plan not later than nine (9) months after approval
by City of a site plan for the first restaurant to be located on the property
adjacent to said public parking area.
PAGE 4 2FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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H. Section 5.3 shall be amended by adding the following subsection (g) to read as
follows:
(g) Change Orders. City shall provide Company with a copy
of all change orders executed with the contractor selected to construct the
Infrastructure within ten (10) days after full execution.
I. Section 6.5 shall be amended to read in its entirety as follows:
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 (the
"Avigation Easement ") to the Dallas Forth Worth Regional Airport
relating to the development of the Option Land for the Project as the
Company closes it purchase of the Option Land, or portions thereof, in a
form substantially as set forth in Exhibit "D ", hereto. The Company shall
cause all purchasers, tenants and occupants of the Option Land and
buildings /improvements thereon to be notified in writing of the noise
conditions existing on the Option Land and of the existence of the any
avigation easements and noise conditions prior to occupancy. The
Company may satisfy the foregoing requirement by recording the
Avigation Easement prior to the closing of any sale or lease of the Option
Land.
J. The Development Agreement shall be amended by adding a new Exhibit "D"
titled "Form of Avigation Easement" in the form attached hereto as Attachment 2,
attached hereto and incorporated herein by reference.
K. Section 6.7 shall be amended by deleting the phrase "designed, constructed and
leased" and substituting in its place the phrase "designed and constructed ".
L. Section 10.5 shall be amended by adding the name "Robert E. Hager" above the
name "Peter G. Smith" where it appears in said section.
M. A new Section 10.20 shall be added which shall read as follows:
10.20 Temporary Construction Easement. On or prior to the
closing of the purchase of the Phase One Land, City shall grant to the
Company and its successors and assigns a temporary construction
easement substantially in the form attached hereto as Exhibit "E ".
N. The Development Agreement shall be amended by adding a new Exhibit
"E" titled "Form of Temporary Construction Easement" to be substantially in the
form attached hereto as Attachment 3, attached hereto and incorporated herein by
reference.
PAGE 3 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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2. Except as otherwise amended by this First Amendment, the Development Agreement
remains in full force and effect.
3. This First Amendment shall become effective on the date it is signed by authorized
representatives of the parties hereto.
(Signatures on Following Page)
PAGE 4 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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SIGNED AND AGREED this thec St day of � e(enLI,...A , 2011.
City of Coppell, Texas
By:
/.....
Cl Phillips, City Manager
Attest:
/ / ,
By: ■ do. , tee„ i
Christel Pettinos, City Secret. v
Agreed as : rm:
� / .
By: /,!.// _IFi ce!,
City Attorney
SIGNED AND AGREED this thecri day of Q , 2011.
CSE Commercial Real Estate, LP
By: Debco partners, LLC, its general
partner
By: Cr Ct.....,
Charles Cotten, Member
p' TAGE S1FIIiST AMENDMENT TO DEVELOPMENT AGREEMENT
kb1:12/7/11:51410
Attachment 1
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PAGE 1 1 ATTACHMENT 1 TO FIRST AMENDMENT TO DEVELOP1V1ENT AGREEMENT
kb1:12/7/11:51410
Attachment 2
New Exhibit "D" - Form of Avigation Easement
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER
AVIGATION EASEMENT, RELEASE, INDEMNIFICATION,
AND DISCLOSURE AGREEMENT
THE STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF DALLAS §
That CSE Commercial Real Estate, L.P. (hereinafter GRANTOR), for and in
consideration of the sum of TEN AND NO /100 DOLLARS ($10.00) to the undersigned paid by
the GRANTEES herein named, and other good and valuable consideration, the receipt of which
is hereby acknowledged, have executed this Avigation Easement, Release, Indemnification, and
Disclosure Agreement, have GRANTED, SOLD AND CONVEYED, and by these presents do
GRANT, SELL AND CONVEY jointly unto the CITY OF DALLAS and the CITY OF FORT
WORTH, TEXAS, whose mailing address is Airport Leasing Department, Dallas -Fort Worth
International Airport, P. O. Drawer 619428, Dallas -Fort Worth Airport, Texas 75261 -9428
(hereinafter jointly called GRANTEES), an Avigation Easement in, on, over and across the real
property more particularly described in Exhibit "A ", attached hereto and incorporated herein for
all purposes (hereinafter the "Property ").
This Avigation Easement, Release, Indemnification and Disclosure Agreement is for free
and unobstructed passage of aircraft ( "aircraft" being defined as any contrivance now known or
hereafter invented, used or designed for navigation of or flight in the air) landing at or taking off
from, or operating at or on the Dallas -Fort Worth International Airport (hereinafter D -FW
Airport), or any airport owned by either of the GRANTEES, their successors and assigns, by
whomsoever operated, in the airspace above the Property at or above the elevation of &LEV r
feet Mean Sea Level or structural heights established by local zoning ordinances, whichever
height is lower, such area hereinafter referred to as the "permitted air space ", together with the
right in all air space above the surface of the Property to cause damages to the Property or to
persons occupying or on such Property, from noise, vibration, fumes, dust, fuel, lubricant
particles, and all other effects that may be caused by the operation of an aircraft in the permitted
air space while landing at and taking off from, or operating at or on the D -FW Airport as it now
or as it may hereafter be configured, or any other airport owned by either of the GRANTEES,
their successors and assigns. GRANTOR does hereby further grant, sell, and convey to
PAGE 1 A TTACHMENT 2 TO FMST AMENDMENT TO DEVELOPMENT AGREEMENT
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GRANTEES, their successors and assigns, a continuing right and easement to take any action
necessary to prevent the erection or growth of any structure, tree, or other object into the
permitted air space and to remove from such permitted air space any and all structures, trees or
other objects that may at any time project or extend into same, together with the right of ingress
to, egress from and passage over the Property for such purposes. Further, GRANTOR, its,
successors and assigns, are prohibited from any activity on the Property that would interfere with
or be a hazard to the flight of aircraft over the Property, or to and from D -FW Airport, or
interfere with air navigation and communication facilities serving it or any other airport owned
by either of the GRANTEES, their successors and assigns.
It is GRANTOR's intent to permit whatever aircraft noise and related effects occur over
the Property from aircraft using D -FW Airport, regardless of operational levels, air traffic control
procedures, types of aircraft, or airport runway configurations which might come to be in effect
in the future. This Avigation Easement, Release, Indemnification, and Disclosure Agreement is
cumulative of the rights of D -FW Airport in any avigation easement and release to the City of
Coppell, if such exists.
GRANTOR does hereby waive, release, quitclaim and forever hold harmless
GRANTEES, the Dallas -Fort Worth International Airport Board (hereinafter Board), and their
respective successors and assigns, and their officers, agents and employees from any and all
claims for damages of any kind that GRANTOR might hereafter assert by reason of the passage
of any and all aircraft and related effects as described above. By execution of this Avigation
Easement, Release, Indemnification and Disclosure Agreement, GRANTOR agrees not to file a
claim or lawsuit against GRANTEES, the Board, their successors and assigns, and their officers,
agents and employees, and agrees to indemnify, defend and hold harmless GRANTEES, the
Board, their successors and assigns, and their officers, agents and employees, against any and all
claims, lawsuits, judgments, costs and expenses for personal injury (including death), property
damage or other harm for which recovery of damages is sought, suffered by any person or
persons that may arise out of or be occasioned by the operation of aircraft, within the permitted
air space, landing at or taking off from, or operating at or on the D -FW Airport as it is now or as
it may hereafter be configured, or any other airport owned by either of the GRANTEES, except
that the indemnity and release provided for in this paragraph shall not be construed to release the
owners or operators of aircraft from liability for damage or injury to person or property caused
by falling aircraft or falling physical objects from aircraft, except as stated herein with respect to
noise, vibration, fumes, dust and lubricant particles. It is the specific intent of GRANTOR that
the release contained herein shall also include the release of any claim whatsoever for injuries or
damages based upon aircraft flying over properties adjacent to the Property.
GRANTOR, its successors and assigns, hereby agree that they have an affirmative duty at
the time of offering for sale all or any portion of the Property to disclose the existence of this
instrument and avigation easement on the Property to prospective purchasers by means of a sales
listing sheet, whether the sale is listed by GRANTOR or by a licensed agent. Further,
GRANTOR specially agrees that the execution by the GRANTEES of any assignment or
assignments of the terms of this Avigation Easement, Release, Indemnification, and Disclosure
Agreement to any other municipal corporation or public agency shall extend the terms hereof to
any such assignee without extinguishment of its terms, and it is agreed that this Avigation
PAGE 2 T ATTACHMENT 2 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT �a r ��Wry�w ���.
kb1:12/7/11:51410
Easement, Release, Indemnification, and Disclosure Agreement shall be binding upon
GRANTOR, their heirs and assigns, and to any and all successors in interest to all or any portion
of the Property.
This Avigation Easement, Release, Indemnification, and Disclosure Agreement shall be
binding upon GRANTOR, their successors, heirs, executors, administrators and assigns, and
shall be a covenant running with the land, same to be recorded in the Real Property Records of
Dallas County, Texas.
GRANTEES herein, by accepting this Avigation Easement, Release, Indemnification, and
Disclosure Agreement, and in paying the stated consideration therefor, are doing so in
compromise and settlement of any disputed claim, and GRANTEES in no sense are admitting
legal liability for damage to the Property, nor to any abutting, adjacent, or other property in the
vicinity of the Property.
TO HAVE AND TO HOLD said Avigation Easement, Release, Indemnification, and
Disclosure Agreement and all rights appertaining thereto unto the GRANTEES, their successors
and assigns, until said D -FW Airport or successor airports shall be abandoned and shall cease to
be used for public airport purposes, and GRANTOR does hereby bind itself, its successors and
assigns to WARRANT AND FOREVER DEFEND all and singular this Avigation Easement,
Release, Indemnification and Disclosure Agreement unto GRANTEES, and their respective
successors and assigns, against every person whomsoever lawfully claiming or to claim the same
or any part thereof by, through, or under Grantor, but not otherwise.
EXECUTED this grclay of D.P�Gvivvt, .-- , 20 ) .
CSE Commercial Real Estate, L.P., a Texas
limited partnership
By: Debco Partners, LLC, a Texas limited
liability company, its general partner
By: C4r (
Charles Cotten, Member
PAGE 3 ATTACHMENT 2 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT a� ry 1pppH�v��u/
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Acknowledgment
THE STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me on the A7 day of DeC r i t, n , 2011,
Charles Cotten, Member, Debco Partners, L.L.C., a Texas limited liability company and general
partner of CSE Commercial Real Estate, L.P., a Texas limited partnership, for and on behalf of
said company and partnership. 1 Cava KTA/1
�.e'�o, TERESA ELAINE CROW
°: 's Notary Public, State of Texas
�. My Commission Expires Notary Public, State of Texas
January 10, 2013
� printed if 1lai,�e ego
Notary's rinted name:
My Commission Expires: Di ! 1 J
•
AFTER RECORDING RETURN TO:
B. Glen Little
D -FW Land Acquisition Manager
City of Dallas
Dallas Fort Worth International Airport
Airport Leasing Department
P. O. Drawer 619428
Dallas Fort Worth Airport, Texas 75261
Approved as to form and Legality: Approved as to form:
SARAH FULLENWIDER, City Attorney THOMAS P. PERKINS, City Attorney
By: B
Assistant City Attorney Assistant City Attorney
PAGE 4 TTACHMENT 2 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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Attachment 3
New Exhibit "E" — Form of Temporary Construction Easement
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING
INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN
REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS:
YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
This TEMPORARY CONSTRUCTION EASEMENT AGREEMENT (this
"Agreement ") is made and executed as of the 21 `% day of - Dcct.ty‘io.er - , 204, (the
"Effective Date "), by and between CITY OF COPPELL, TEXAS, a Texas home rule
municipality ( "Grantor "), whose mailing address is P.O. Box 9478, Coppell, Dallas County,
Texas 75019, and CSE COMMERCIAL REAL ESTATE, L.P., a Texas limited partnership
( "CSE ") and its permitted successors and assigns under the terms of the Development
Agreement (collectively, "Grantee "), whose mailing address is 4956 N. O'Connor Blvd., Irving,
Dallas County, Texas, 75062.
Preliminary Statements
Grantor and Grantee agree that the following preliminary statements are true and correct
in all material respects and incorporated into this Agreement:
A. Capitalized terms used herein which are not otherwise defined shall have the
meaning set forth in the Development Agreement (as defined below).
B. Grantor owns that certain tract of real property situated in the City of Coppell,
Dallas County, Texas, more particularly described on Exhibit "A" attached and incorporated
into this Agreement (the "Land ").
C. Coppell Economic Development Foundation, Inc. (the "Foundation ") holds an
option to purchase portions of the Land from City and may become the owner of part or all of the
Land during the term of this Agreement.
D. Foundation and Grantee have entered into that certain Option Agreement dated
November 29, 2010 (as amended, the "Option Agreement ") granting Grantee an option to
purchase a portion of the Land, being the real property described in Exhibit "A -1" attached
hereto (the "Option Land ").
PAGE 1 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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E. City and Grantee have entered into that certain Development Agreement dated
November 29, 2010 (as amended, the "Development Agreement ") setting forth the agreement of
the parties regarding the development by the City and Grantee of the Option Land, including the
construction by Grantee of the Project.
F. In order to facilitate the construction of the Project, Grantee has requested a
temporary construction easement over the portions of the Land owned by Grantor (other than the
Town Square and any public streets and parking areas) for the purpose of staging construction of
the Private Infrastructure and the improvements that will comprise the Project.
G. Grantor has agreed to grant a temporary construction easement to Grantee to
facilitate the construction of the Private Infrastructure and the improvements which will
comprise the Project, on the terms and conditions set forth below.
Agreement
NOW, THEREFORE, in consideration of the mutual agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Grant of Temporary Easement for Construction. Subject to the terms and
provisions contained in this Agreement, Grantor hereby grants to Grantee for use by Grantee
and all future owners of all or any portion of the Option Land, and all contractors and
subcontractors of Grantee and future owners of all or any portion of the Option Land
(collectively, the "Beneficiaries "), a non - exclusive temporary easement (the "Construction
Easement ") on, over and across the portions of the Land owned by Grantor (other than the
Town Square and any public streets and parking areas)(the "Construction Staging Area ") for
the purpose of permitting the Beneficiaries to stage construction of the Private Infrastructure
and the improvements which will comprise the Project.
2. Restriction on Use of Construction Staging Area. Use of the Construction
Staging Area by the Beneficiaries shall be subject to the following restrictions:
(a) The use by Beneficiaries of the Construction Staging Area shall not interfere with the
enjoyment and use of the Land by Grantor and its agents, employees, contractors and
invitees (including, without limitation, the use of any drive aisles or parking spaces
located within the Land).
(b) Subject to the terms of the Development Agreement, Grantor shall have the right to
sell, lease or develop the Construction Staging Area. If Grantor gives written notice to
Grantee that Grantor intends to sell, lease or develop all or any portion of the
Construction Staging Area, then the right of the Beneficiaries to use such portion of
the Construction Staging Area shall terminate thirty (30) days after delivery of such
notice by Grantor to Grantee.
(c) The Beneficiaries shall use good faith efforts to minimize the use of the Construction
PAGE 2 rATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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Staging Area and shall to the extent practical use the Option Land for all construction
activities before utilizing the Construction Staging Area.
(d) The Construction Staging Area shall not be used by any Beneficiary for the storage of
materials, supplies or equipment for a period of longer than twelve (12) months
without the prior written consent of Grantor.
(e) All materials, supplies or equipment stored upon the Construction Staging Area shall
be at the sole risk and expense of the owner or lessee of such materials, supplies or
equipment, and Grantor shall have no responsibility or liability whatsoever for any
damage to or theft of such items.
(f) No improvements of any nature, including temporary fencing or latrines, shall be
placed or constructed upon the Construction Staging Area without the prior written
consent of Grantor.
(g) Not later than thirty (30) days after cessation of use of the portion of the Construction
Staging Area used as authorized herein, Grantee shall restore the portion of the
Construction Staging Area used to substantially the same condition as when the use
commenced unless otherwise agreed in writing by Grantor.
3. Reservation of Grantor's Rights. Grantor reserves the right to use the
Construction Staging Area for any purpose not inconsistent with the uses for which the grant of
the Easement is made.
4. Duration of Easement. This Construction Easement and all rights associated
therewith shall be temporary and terminate upon the earlier of (i) the mutual agreement of the
parties (as provided in Section 9 below), (ii) the termination of the Development Agreement or
the Option Agreement, (iii) the completion of all initial improvements upon all of the Option
Land, or (iv) as provided in Section 2(b) above. This Construction Easement and all rights
associated therewith shall also terminate as to those portions of the Land conveyed to Grantee
pursuant to the Option Agreement after the Effective Date. Upon the termination of the
Construction Easement as to the entire Construction Staging Area, Grantee shall, upon request of
Grantor, execute and record in the Official Public Records of Dallas County, Texas, a release of
this Construction Easement.
5. Insurance. Grantee shall, during the term of this Agreement, maintain the
insurance required by Section 6.6 of the Development Agreement. Grantee shall further cause
any contractor, subcontractor, lessee, or other third party authorized by this Agreement to use the
Construction Staging Area to obtain and maintain the insurance required by Section 6.6 of the
Development Agreement during the time such parties are using all or any portion of the
Construction Staging Area.
6. Release. The Beneficiaries hereby release Grantor, its successors and assigns,
and their respective agents, officers, employees, lessees, tenants, subtenants, licensees and
invitees (collectively, the "Protected Parties ") from damage to property or injuries, including loss
N PAGE 3 g ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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of life, sustained by any person or persons caused by or arising out of the use of the Construction
Staging Area or the Construction Easement by the Beneficiaries. In addition, Grantee agrees to
obtain waivers of subrogation rights by Grantee's insurer against the Protected Parties pursuant
to the insurance required to be obtained by Grantee pursuant to Section 5 above. GRANTOR
AND GRANTEE INTEND FOR THE RELEASE AND WAIVER SET FORTH IN THIS
SECTION 6 TO APPLY EVEN IF THE LOSS OR DAMAGE DESCRIBED IN SUCH
SECTION IS CAUSED BY THE NEGLIGENCE OF THE PROTECTED PARTIES AND
EVEN IF THE PROTECTED PARTIES WOULD OTHERWISE BE STRICTLY
LIABLE FOR SUCH LOSS OR DAMAGE UNDER APPLICABLE LAW.
7. Indemnification. GRANTEE SHALL INDEMNIFY, DEFEND, AND
HOLD GRANTOR FOREVER HARMLESS AGAINST AND FROM ANY PENALTY, OR
ANY DAMAGE, OR CHARGE, IMPOSED FOR ANY VIOLATION OF ANY LAW,
ORDINANCE, RULE OR REGULATION ARISING OUT OF THE USE OF THE
CONSTRUCTION STAGING AREA BY ANY BENEFICIARY, WHETHER OCCASIONED
BY THE NEGLIGENT ACT OR OMISSION OF ANY BENEFICIARY, ITS EMPLOYEES,
OFFICERS, AGENTS, CONTRACTORS OR ASSIGNS OR THOSE HOLDING UNDER
GRANTEE. GRANTEE SHALL AT ALL TIMES DEFEND, PROTECT AND
INDEMNIFY AND IT IS THE INTENTION OF THE PARTIES HERETO THAT
GRANTEE HOLD CITY HARMLESS AGAINST AND FROM ANY AND ALL LOSS,
COST, DAMAGE, OR EXPENSE, INCLUDING ATTORNEY'S FEE, ARISING OUT OF
OR FROM ANY ACCIDENT OR OTHER OCCURRENCE ON OR ABOUT THE
CONSTRUCTION STAGING AREA CAUSING PERSONAL INJURY, DEATH OR
PROPERTY DAMAGE RESULTING FROM USE OF THE CONSTRUCTION STAGING
AREA BY ANY BENEFICIARY, ITS OFFICERS, EMPLOYEES, AGENTS,
CONTRACTORS, AND INVITEES IN CONNECTION WITH THIS AGREEMENT,
EXCEPT WHEN CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF GRANTOR, ITS OFFICERS, EMPLOYEES OR AGENTS, AND ONLY
THEN TO THE EXTENT OF THE PROPORTION OF ANY FAULT DETERMINED
AGAINST GRANTOR FOR ITS WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
THE RIGHTS AND PROTECTIONS AFFORDED TO GRANTOR IN THIS SECTION 7
SHALL ALSO EXTEND TO GRANTOR'S ELECTED AND APPOINTED OFFICIALS,
EMPLOYEES, AGENTS, AND REPRESENTATIVES. THIS SECTION 7 SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
8. Benefit; Binding Effect. This Agreement is binding upon and shall inure to the
benefit of Grantor and its successors and assigns and the Beneficiaries, including, without
limitation, all other persons or entities having or acquiring any right, title or interest in the Option
Land, or any portion thereof.
9. Amendment/Termination. This Agreement may be amended or terminated only
by written agreement executed by Grantor and Grantee, without the joinder of any other owners
of all or any portion of the Land or the Option Land. Any such amendment shall be effective
when filed for record in the Official Public Records of Dallas County, Texas.
PAGE 4 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT ry H m Wti�a'
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10. Default. In the event Grantee fails to perform any of Grantee's obligations and/or
comply with any of the restrictions set forth in this Agreement (a "Default "), Grantor may give
written notice to Grantee of said Default (the "Default Notice "). If Grantee does not cure any
such Default within thirty (30) days after receipt of the Default Notice, or such earlier time if the
Default may be reasonably cured prior to such 30 -day period, then Grantor shall be entitled to all
remedies available at law or in equity, including, without limitation, (i) the right to specific
performance and (ii) the right to take such self -help measures as are necessary to cure the
Default. In the latter event, Grantor may, among other things, perform any such maintenance,
repair and/or replacement as is necessary to cure the Default. Any costs incurred by Grantor
shall be reimbursed by Grantee not later than thirty (30) days of presentation of appropriate
statements of actual costs incurred therefor, together with interest at the maximum rate allowable
at law (accruing from the date said expenses were incurred). Notwithstanding the foregoing, no
Default shall entitle Grantor to terminate this Easement other than as provided in Sections 4 and
9 above.
11. Attorneys' Fees. Should any party hereto employ an attorney for the purpose of
enforcing or construing this Agreement, or any judgment based on this Agreement, in any legal
proceeding whatsoever, including insolvency, bankruptcy, arbitration, declaratory relief or other
litigation, the prevailing party shall be entitled to receive from the other party or parties thereto
reimbursement for all reasonable attorneys' fees and all costs, whether incurred at the trial or
appellate level, including but not limited to service of process, filing fees, court and court
reporter costs, investigative costs, expert witness fees and the cost of any bonds, whether taxable
or not, and such reimbursement shall be included in any judgment, decree or final order issued in
that proceeding. 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).
12. Severability. If any provision of this Agreement is held to be invalid, illegal or
otherwise unenforceable for any reason, the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected thereby.
13. Governing Law. The validity of this Agreement and any of its terms and
provisions, as well as the rights and duties of the parties, shall be governed by the laws of the
State of Texas; and venue for any action concerning this Agreement shall be in State District
Court of Dallas County, Texas. The parties agree to submit to the personal and subject matter
jurisdiction of said court.
14. Entire Agreement. This Agreement embodies the complete agreement of the
parties hereto, superseding all oral or written, previous and contemporary agreements between the
parties and relating to the matters m this Agreement, and except as otherwise provided herein
cannot be modified except as provide in Section 9 above. Notwithstanding the foregoing, to the
extent of any inconsistency between the terms and conditions of this Agreement and the terms and
conditions of the Development Agreement, the terms of the Development Agreement shall control.
15. 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,
PAGE 5A TTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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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 Grantor, to:
Attn: City Manager
City of Coppell, Texas
P.O. Box 478
Coppell, Texas 75019
With a copy to:
Robert E. Hager
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
If intended for Grantee, 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. Beneficiaries (other than Grantee)
including, without limitation, all other persons or entities having or acquiring any right, title or
interest in the Option Land, or any portion thereof, by using the Construction Staging Area and
accepting the benefits of this Agreement, are deemed to have irrevocably appointed Grantee as
their agent for purposes of receipt of notice made pursuant to this Agreement, which agency is
accepted by Grantee. Failure of Grantee to forward any notice provided by Grantor pursuant to
this Agreement to a Beneficiary shall not constitute a failure of Grantor to provide proper notice
pursuant to this Agreement.
16. Captions. Titles, headings or captions of articles or paragraphs contained in this
instrument are inserted only as a matter of convenience and for reference, and in no way define,
limit, extend or describe the scope of this instrument or the intent of any provisions hereof.
PAGE 6 g ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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17. Multiple Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which for all purposes shall be deemed an original document and
all of which together shall constitute but one and the same document; but, in making proof of this
Agreement, it shall not be necessary to produce or account for more than one such counterpart.
[Signature Pages Follow]
PAGE 7 ATTAL'HMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
GRANTOR: GRANTEE:
CITY OF COPPELL, TEXAS CSE COMMERCIAL REAL ESTATE, L.P.
By: Debco Partners, L.L.C., a Texas limited
By: liability company, general partner
Name: �W ► 1 . , C/ L61
�, A By: '1�
Title: C +V l. h- Pmt" Charles Cotten, Member
P AGE 8 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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STATE OF TEXAS §
COUNTY OF DALLAS §
This istrument was acknowledged before me this c4/ s d�ay of .6 LP, , 20 /1,
by ( IA ./ PA/ J a i 4s , L1 f the City of Coppell, Texas, a Texas home rule
municipality, on behalf of said hinnicipality.
c $TII. a IlErnNOS �� .14r , r Aare, -
044119,
M!r Consston Expires Notary Public, Sta e of Texas
may 10. 2015
Commission Expires: /144 / / D Z0/3
STATE OF TEXAS §
COUNTY OF DALLAS §
This instrument was acknowledged before me this :VI day of Uteeli VA
20 11, by Charles Cotten, member, Debco Partners, LLC, a Texas limited liability company, on
behalf of said company in its capacity as General Partner for CSE Commercial Real Estate, L.P.,
a Texas limited partnership, for and on behalf of said company and partnership.
P ItOtt- kr"
o TERESA ELAINE CROW
* * Notary Public, State of Texas Notary Public, State of Texas
• My Commission Expires
! January 10, 2013
_ My Commission expires: O i 'I D 901‘3
PAGE 9 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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Exhibit "A"
Land
A 23.118 acres of land located in JAMES A. SIMMONS SURVEY, ABSTRACT NO. 1296,
Coppell, Dallas County, Texas, and being all of the tract of land designated as Tract II in the deed
to the City of Coppell, Texas recorded in Volume 2003094, Page 797 of the Deed Records of
Dallas County, Texas, and all of the tracts of land conveyed to the City of Coppell by the deeds
recorded in County Clerk's File No. 20070000802, and County Clerk's File No. 200900282446
of the Deed Records of Dallas County, Texas. Said 23.118 acres of land being more particularly
described by metes and bounds as follows:
BEGINNING at a 1 /2" iron rod found at the Southeast corner of the aforementioned tract of land
designated as Tract II, in the deed to the City of Coppell, Texas, recorded in Volume 2003094,
Page 797 of the Deed Records of Dallas County, Texas, and said POINT OF BEGINNING also
being the intersection of the West right -of -way line of Coppell Road South, and the North right -
of -way line of Burns Street;
THENCE S 85° 29' 33" W, 878.23 feet, along the North right -of -way line of said Bums Street
and the South boundary line of said Tract II, to a '/2" iron rod found at the Southwest corner of
said Tract II, lying in the East right -of -way line on Hammond Street;
THENCE N 00° 31' 41" W, 1133.41 feet, along the East right -of -way line of said Hammond
Street and the West boundary line of said Tract II, to a 3/8" iron rod found at the Northwest
corner of said Tract II;
THENCE N 89° 18' 49" E, 365.29 feet, along the North boundary line of said Tract II, to a 1 /2"
iron rod found at the Southwest corner of the aforesaid tract of land conveyed to the City of
Coppell by the deed recorded in the County Clerk's File No. 200700802 of the Deed Records of
Dallas County, Texas;
THENCE N 00° 40' 12" W, 219.96 feet, along the West boundary line of said City of Coppell
Tract to a 1/2 " iron rod found at the Northwest comer thereof, lying in the South right -of -way
line of Bethel Road;
THENCE N 89° 19'58" E, 186.10 feet, along the South right -of -way line of said Bethel Road,
and the North boundary line of said City of Coppell Tract, and also the North boundary line of
the aforesaid tract of land conveyed to the City of Coppell by the deed recorded in County
Clerk's File No. 200900282446 to a Y2" iron rod found at the Northeast comer thereof, lying in
the most Easterly West boundary line of aforesaid Tract II;
THENCE N 00° 40' 12" W, 4.64 feet, along the most Easterly West boundary line of said Tract
II, to a %2" iron rod found at the most Northerly Northwest corner thereof, lying in the South
right -of -way line of aforesaid Bethel Road;
PAGE 10 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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THENCE N 89° 44' 28" E, 151.00 feet, along the most Northerly North boundary line of said
Tract II, and the South right -of -way line of said Bethel Road, to a 'A" iron rod found at the most
Northerly Northeast corner of said Tract II;
THENCE S 00° 59' 19" E, 7.78 feet, along the most Westerly East boundary line of said Tract II
to a %2" iron rod marked "Brittain & Crawford ", set;
THENCE S 01° 46' 57" E, 371.27 feet, along the most Westerly East boundary line of said Tract
II to a 1/2" iron rod found;
THENCE N 88° 12' 07" E, 145.09 feet, along the most Southerly North boundary line of said
Tract II to a '/2" iron rod set at the most Easterly Northeast corner of said Tract II, lying in the
West right -of -way line of aforesaid Coppell Road South;
THENCE S 01° 50' 07" E, 922.31 feet, along the East boundary line of said Tract II, and the
West right -of -way line of said Coppell Road South to the POINT OF BEGINNING containing
23.118 acres of land.
PAGE 11 ATTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGRE EMENT
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Exhibit "A -1"
Option Land
Lot 1, Block A, Lot 1, Block B, Lot 1, Block C, Lot 1, Block D, Lot 1, Block E, Lot 1, Block F,
and Lot 2, Block G, Old Town Addition, Addition to the City of Coppell, Dallas County, Texas,
according to the map or plat filed as Instrument No. 201100074924, Official Public Records,
Dallas County, Texas
I. Amended Net Land Area as of 12/05/11 per F & N Plat Drawing
Square Feet Acres
1. Lot 1, Block B Entry; Cottage 1 -4: 23,415 sq. ft.
2. Lot 1, Block. C Cottage 5 -10: 31,032 sq. ft.
3. Lot 1, Block A Cottage 11 -13 + Park: 14,344 sq. ft.
4. Lot 1, Block D Retail 1 -5 /Svc 1 - 6: 123,858 sq. ft.
5. Lot 1, Block E Square Rest. F1 - F2: 30,100 sq. ft.
6. Lot 1, Block F TH 1W - 14W; 1 E - 14E: 115,064 sq. ft.
7. Lot 2, Block G TH 1S -10S: 54,281 sq. ft.
Total Developer Net Land Area: 392,094 sq. ft. = 9.001239669 acres
PAGE 12 A TTACHMENT 3 TO FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
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