Parks Coppell ABQ-CN 870127 AMENDMENT TO CONTRACT OF SALE
This Amendment to Contract of Sale ("Amendment") is made
and entered into as of the ~7~ day of January, 1987, by and
between the Parks of Coppell Joint Venture II ("Owner"), a
Texas joint venture, and the City of Coppell ("City"), a
municipal corporation and political subdivision of the State of
Texas.
W I T N E S S E T H :
WHEREAS, heretofore on December 30, 1982, Owner and City
entered into a Contract of Sale (the 'Agreement"), pursuant to
which Owner agreed to sell to City, and City agreed to purchase
from Owner, a' Municipal Center Site (herein so called) and
Phase I of the Park Site (herein so called); and
WHEREAS, in connection with the Agreement, Owner granted
City options to purchase Phase II of the Park Site (herein so
called) and Phase III of the Park Site (herein so called); and
WHEREAS, the Municipal Center Site, Phase I of the Park
Site, Phase II of the Park Site and Phase III of the Park Site
are described by metes and bounds in Exhibits A, B, C and D,
respectively, attached hereto; and
WHEREAS, pursuant to the Agreement and the option covering
Phase II of the Park Site, the City acquired: (i) the
Municipal Center Site on December 30,' 1982, for a total
purchase price of $361,292.00; (ii) Phase I of the. Park Site on
December 30, 1982, for .a total purchase price of $233,750.00;
and (iii) Phase II of the Park Site on March 14, 1986, for a
total purchase price of $388,800.00; and
WHEREAS, certain appraisals prepared by Bill Dotson
Associates indicate that the appraised fair market value of:
(i) the Municipal Center Site as of August 5, 1983, was
$960,000.00; (ii) Phase I of the Park Site as of December 1,
1982, was $743,000.00; and (iii) Phase II of the Park Site as
of May 3i, 1985, was $2,035,000.00; and
WHEREAS,. ,Owner sold the Municipal Center Site, Phase I of
the Park $.i~e and Phase II of the Park Site to City at a price
substantially less than such properties' true fair market value
as indicated by the aforesaid appraisals; and
W~EREAS, .the sales price for Phase III of the Park Site
also'¥{s'substantially less than the true fair market value of
such property; and
WHEREA'S, the sale 6f '~he Municipal Center Site, Phase I of
the Park Site and Phase II of the Park Site 'by Owner to City
for a price substantially less than such properties' true fair
market value and Owner's agreement to sell Phase III of the
Park Site to City for a price substantially less than such
property's true fair market value was in part in consideration
of and reliance upon the agreements of City contained in the
Agreement and the options covering Phase II of the Park Site
and Phase III of the Park Site; and
WHEREAS, initially City aqreed to purchase the Municipal
Center Site, Phase I of the Park Site, Phase II of the Park
Site and Phase III of the Park Site as undeveloped land; and : ..-'...
WHEREAS, in the negotiations between Owner and City, City
requested that Owner make certain investment expenditures and
permit filling in connection with the Municipal Center Site,
Phase fi of the Park Site and Phase III of the Park Site, and
Owner agreed to such requests by City in consideration of and
in reliance upon the agreements of City contained in the
Agreement and in the options covering Phase II of the Park Site
and Phase III of the Park Site; and
WHEREAS, subsequent to the execution of the Agreement and
the options covering Phase II of the Park Site and Phase II1 of
the Park Site and in reliance upon the agreements of City
contained in the Agreement and such options, Owner has:
(i) prepared development plans pertaining to the property of
Owner located near the Municipal Center Site and the Park Site;
(ii) invested substantial sums of money pursuant to such
development plans; and (iii) taken other actions in good faith
reliance upon the agreements of City contained in the Agreement
and such options; and
W}{EREAS, Owner would not have made such plans or
investments or 'taken such actions except for the agreements of
City contained in the Agreement and such options, and Owner
will suffer irreparable harm if such agreements are breached by
City; and
WHEREAS, in connection with the sale of Phase I of the Park
Site and Phase II of the Park Site, Owner placed certain
restrictions on the use thereof in the special warranty deeds
conveying the same to City; and
WHEREAS, Owner further has the right to repurchase Phase I
of the Park Site and Phase II of the Park Site and to void
City's option to purchase Phase III of the Park Site if City
breaches certain of City's agreements set forth in the
Agreement; and
WHEREAS, City has requested that Owner release a portion of
the restrictions on the use of Phase I of the Park Site and
Phase II of the Park Site and Owner's right to repurchase
Phase I of the Park Site and Phase fi of the Park Site in order
to enable City to obtain certain governmental grants of park
funds; and
W~EREAS, to induce Owner to release and/or to agree to
release s.uch restrictions and rights to repurchase, City has
agreed to pay certain additional consideration to Owner if City
breaches City's agreements under the Agreement and to confirm
and make ce.{.~a~n other agreements with Owner as set forth in
this Amendment;
NOW, THEREFORE, for and in consideration of the premises
and of the agreements contained herein, Owner and City hereby
agree..~S follows: -'
1. Defined Terms. .All capitalized terms contained in
this Amendment shall-.have, the same meaning ascribed to such
terms in the Agreement Unl%ss a contrary intent is indicated or
unless the context clearly indicates otherwise..
2. Purchase of Phase III of the Park Site.
Notwithstanding anything to the contrary contained in the
option agreement (as amended to date) covering the same, City
agrees to purchase Phase III of the Park Site from Owner on or
before December 1,-1987, for the price and upon the terms and
conditions contained in such option agreement; provided,
however, Owner agrees that Owner will not impose Owner's right
to repurchase Phase III of the Park Sire and that the
restrictions to be placed in the special warranty deed from
Owner to City covering Phase III of the Park Site will not
include the Deleted Language (hereinafter defined). If City
fails or refuses to purchase Phase !II of the Park Site on or
before December 1, 1987, Owner shall have the right at Owner's
option to either enforce specific performance of such agreement
to purchase or to cancel City's option to purchase Phase III of
the Park Site. As partial consideration for Owner entering
into this Amendment, City agrees to pay all ad valorem taxes
payable with respect to Phase III of the Park Site for all
periods of time after December 31, 1985, which shall be due and
payable within thirty (30) days after Owner submits paid tax
receipts to City evidencing payment of such taxes by Owner.
Concurrently with the execution of this Amendment, City agrees
to pay Owner the sum of $8,089.00 in reimbursement for ad
valorem taxes paid by Owner with respect to Phase III of the
Park Site for calendar year 1986.
3. Notice and Cure. Neither Owner nor City shall be in
breach of any of the applicable party's duties, obligations or
agreements under the Agreement unless the applicable duty,
obligation or agreement remains unperformed ninety (90) days
after the applicable party has been delivered written notice by
the other party of the applicable party's failure to perform
the applicable duty, oDligation or agreement; provided,
however, if the applicable duty, obligation or agreement is
non-monetary and cannot be performed within such ninety (90)
day period, the applicable party shall have an additional
ninety (90) days (a total of 180 days) to perform the
applicable duty, obligation or agreement so long as the
applicable party commences action to perform the applicable
duty, obligation or agreement within the initial ninety (90)
day period and continues to diligently pursue such action.
Notwithstanding the foregoing, it is understood and agreed that
the provisions of this paragraph 3 shall not apply to City's
obligation to purchase Phase III of the Park Site on or before
December 1, 1987.
4. Additional Purchase Price. If City breaches any duty,
obligation or agreement bf City under the Agreement, as amended
hereby, City hereby-agrees that Owner shall have the right at
Owner's option to either enforce specific performance of such
duty, obligation or agreement, or to receive the Additional
Purchase Price (hereinafter defined) from City. If Owner
elects to receive the Additional Purchase Price from City, City
agrees to pay the Additional Purchase Price to Owner within
ninety (90) days after the amount of the Additional Purchase
Price has been established by appraisal. If on December 30,
2002, Owner has not notified City pursuant to paragraphs 3 and
24 of this Amendment of City's failure to perform one or more
of City's'"'d~ties, obligations or agreements under the
Agreement, 'which failure would constitute a breach by City
under the Agreement if not performed within the time(s)
specified in paragraph 3 of this Amendment, Owner shall no
longer have the right to receive the Additional Purchase Price
from City as a' 'remedy 'for City's breach of any duty, obligation
or agreement of City under the Agreement, but Owner shal~
continue to have all .other rights and remedies under the
Agreement o{ otherwise' available at law or in equity to enforce
City's duties, obligations and agreements under the Agreement
or to seek redress for City's failure to perform City's duties,
obligations and agreements under the Agreement. If on or
before December 30, 2002, Owner has notified City pursuant to
paragraphs 3 and 24 of this Amendment of City's failure to
perform one or. more of City's duties, obligations or agreements
under the Agreement (the "Specified B~eaches#), it is
understood and agreed that City's failure to cure the Specified
Breaches within the time(s) specified in paragraph 3 of t~is
Amendment shall be the only breaches of the Agreement which
will allow Owner to receive the Additional Purchase Price from
City, and that Owner will be limited to the other rights and
remedies under the Agreement or otherwise available at law or..
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in equity in connection with any other failure by City to
perform one or more of City's duties, obligations or agreements
under the Agreement.
5. Establishing Additional Purchase Price. As used
herein, 'Additional Purchase Price" means that amount equal to
(x) the then current fair market value of Phase ! of the Park
Site, Phase II of the Park Site and Phase III of the Park Site
(if City has previously purchased Phase III of the Park Site),
less, (y) the amounts previously paid by City to Owner for the
purchase of Phase I of the Park Site, Phase II of the Park Site
and Phase III of the Park Site (if applicable); provided,
however, the then current fair market value of Phase I of the
Park Site, Phase II of the Park Site and Phase III of the Park
Site (if applicable) shall be deemed to be not less than the
Floor (hereinafter defined) and not more than the Ceiling
(hereinafter defined). As used herein, 'Floor' means that
amount equal to the total of (x) $2.63, multiplied by, the
number of square feet of the applicable acreage which is not
Floodway Land (hereinafter defined), plus, (y) $0.23,
multiplied by,. the number of square feet of the applicable
acreage which is Floodway Land. As used herein, "Ceiling'
means that amount equal to the total of (x) $4.38, multiplied
by, the number of square feet of the applicable acreage which
is not Floodway Land, plus, (y) $0.39, multiplied by, the
number of square feet of the applicable acreage which is
Floodway Land. As used herein, 'Floodway Land' means that part
of the applicable acreage which is located between the
encroachment limits on either side of the stream bed of Denton
Creek as shown on the Flood Insurance Rate Map and Floodway
Boundary and Floodway Map for the City of Coppell, Texas
(Community Panel Number 480170-0005-C), issued February 15,
1984, by the Federal Emergency Management Agency ("FEMA Map"),
or on a subsequently amended and updated FEMA Map issued by the
Federal Emergency Management Agency, or applicable successor
body. If it becomes necessary to establish the then current
fair market value of Phase I of the Park Site, Phase II of the
Park Site and Phase III 'of the Park Site (if applicable), Owner
shall notify City .in writing of the need to establish the
same. Owner and City during the thirty (30) day period
following such notice shall attempt to agree upon an
appraiser. If Owner and City agree on an appraiser, such
appraiser shall proceed to determine the then current fair
market value of the applicable acreage in an unimproved and
unencumbered state (for the uses for such acreage established
under the Zoning Plan), and the findings of such appraiser
shall be conclusive and binding upon Owner and City. If Owner
and City agree, on an appraiser, the fees and expenses of such
appraiser S'hs~l be divided and paid equally by Owner and City.
If, during'such thirty (30) day period, Owner and City cannot
agree on an appraiser, then' Owner and City each shall select
one appraiser. Such selection of appraisers shall be evidenced
by the delivery of written notification by each party to the
othe~3=,of each' party'~ selection before the expiration of
twenty-one (21) days after the expiration of such initial
thirty (30) day period...If either party fails to timely select
an appraiser, the other..' party shall select an additional
appraiser on behalf of the failing party within ten (10) days
after the expiration of such twenty-one (21) day selection
period. The two (2) appraisers so selected promptly shall
select a third appraiser and shall notify both Owner and City
in writing 6f the date of selection and the name of the third
appraiser. Each of such three (3) appraisers promptly and
independently' shall proceed to determine his appraisal of the
then current fair market value of the app.licable acreage, and
each appraiser 'shall submit his appraisal in writing to both
Owner and City within sixty (60) days following the date of the
selection of the third appraiser. The then current fair market
value of the.applicable acreage shall be the arithmetic mean -.-
(average) of the three (3) independent appraisals unless dna.,
-. . ~.~;~,.~:~
- 4 - '. "~'...h~
(1) appraisal shall deviate by more than twenty-five percent
(25%) from the arithmetic mean of the three (3) appraisals in
which event the deviating appraisal shall be disregarded and
the then current fair market value of the applicable acreage
shall be the arithmetic mean of the other two (2) appraisals.
Owner and City shall pay the fees and expenses of the appraiser
selected by them or on their behalf, and the fees and expenses
of the third appraiser shall be divided and paid equally by
Owner and City. Ail appraisers shall be members of the
American Institute of Real Estate Appraisers (or its successor
organization), or if the American Institute of Real Estate
Appraisers or its successor no longer exists, another
professional organization of equivalent standing.
6. Release of Repurchase Rights. Owner hereby releases
all of Owner's rights to repurchase Phase I of the Park Site
and Phase II of the Park Site. Concurrently with the execution
of this Amendment, Owner agrees to execute and deliver those
two certain Release(s) of Repurchase Rights attached hereto as
Exhibit E releasing Owner's right to repurchase Phase I of the
Park Site and. Phase II of the Park Site. City shall be
entitled to record such releases in the Deed Records of Dallas
County, Texas, after execution and delivery thereof by Owner,
7. Partial Release of Deed Restrictions. Owner hereby
releases that portion of the deed restrictions placed by Owner
on Phase I of the Park Site and Phase II of the Park Site which
reads: 'It is agreed and understood, however, that the
foregoing restrictions are not, and shall not be deemed to be,
a dedication of the Property to the public.' (such language,
the "Deleted Language"). Concurrently with the execution of
this Amendment, Owner agrees to execute and deliver those two
certain Partial Release(s) of Deed Restrictions attached hereto
as Exhibit F releasing the Deleted Language from the use
restrictions placed by Owner on Phase I of the Park Site and
Phase II of the Park Site but otherwise leaving such use
restrictions in full force and effect. City shall be entitled
to record such releases' in the Deed Records of Dallas County,
Texas, after execution and delivery by Owner.
8. Dedication of Park Site. City hereby agrees that City
will use Phase I of the Park Site, Phase II of the Park Site
and Phase III of the .Park Site (if acquired by City)~only for
public park purpose~ until the expsratson < of~the4~use-
restrictions."~laced by'Owner on each applscable phase of-the"
Park Site..
9. Park .Site - Acceptance and Release~. City hereby~...
acknowledges-.that City has reviewed and-approved~{~he~plans~for~=
all work performed by Owner, Wiseco Land Development, Inc..
('Wiseco') and other third 'parties~on the Park Site and has
carefully inspected.the condition of Phase I of.the Park Site,
Phase II of the Pa~k. Site and Phase III of the.~Park Site,
including all 'work and' improvements performed and/or placed by
Owner', wiseco or other third'-parties thereon, and accepts such'"
lands and all improvem~nt-s ~hereon in .their,prese'~t,condition, '
as zs, where ~s,, wsth..-.all, faults~,;!~f~.Csty .... furtSec,,..hereby
releases Owner from all claims by City involving wthe..condition'
of Phase I of the. Park .Site ...... Phase II of the...Park. Site or
Phase III of.the~..~rk~S~e~whether now existing..or.,.hereafter
arising, including all work~and.improvements performed~..and/or'
placed by O~ner~Wiseco or.~kother...third, parties~,thereo~. __Th~"'
focegoinq acceptance, and ' ' .~ . ..,~..~ ~
release ~ncludes, but, ~s~not.,~'.lxmLted
to, all work and -improvements involving -streets%~ utilities,
fill, grading, dirt removal,., drainage, drainage .-structures,
-..-manholes and la~dscapihg within"the Park Site.
10. Municipal Center Site - Acceptance and Release:.,..City
...31~hereby acknowledges that City has reviewed and approv~?-the-~
.... ,_?~plans for all work performed by Owner, wiseco or other thir~
~arties on the Municipal ..Center~Site _and,e~has~,~carefully ....
lns~ecte~ the. ~on~i~io%~o'f.~he~Municipal_~.Cente~Srte~-and2a~.~.
wor~ per£ormeo~oy~oWner~,~wiseco,~or~other~third '~ar~es~the~h~.'
and accepts such..lands~-and-~work..-in~their present.conditq'0n,'-..~'as~
is, where is, with-..al-l', fail'ts". City further hereby releases'~
Owner from all claims by City involving the condition of the
Municipal Center Site, whether now existing or hereafter
arising, including all work performed by Owner, wiseco or other
third parties thereon.
11. Mutual Waiver. Owner hereby waives all breaches by
City of City's duties, obligations and agreements under the
Agreement existing on the date of this Amendment. City hereby
waives all breaches by Owner of Owner's duties, obligations and
agreements under the Agreement existing on the date of this
Amendment. The foregoing mutual waivers apply only to any
breaches by the applicable party of such party's duties,
obligations and agreements under the Agreement existing on the
· -. ~.~ { date of this Amendment and not to an breaches by the
~f¢ ~f.~k.-s~---~ppl~cable partyl of such party's duties, obligations and
[~__~..~.~ fe~¢g~l agreements under the Agreement after the date of this Amendment.
12. Park Site Maintenance and Standards. City hereby
acknowledges and agrees that City is responsible for the
/~/~ maintenance o~ Phs'semi,of the Park Site, ~hase'~{IIj~of the Park
rurther respons~il~ty~for~a'~y~ of~[such,~ain~n~nc~..~O~"~e~an~
he work descrlbe~-~n-pae~'agraph~0~ hereof~and~.femoval-.'of~
the existing temporary~hau'l~oa~co~structed~o~' the Park S~te
by Owner' s--cont.racto-r~Own~ ~gr~s~not~e~fo~m~ny~work~on{
unless su6h 'work~s.'~a'~r69e~'i,n~'kti~q~bY~C~t~9 ,.. Since Owner"
owns lands-adjacent to the Park Site, Owne~' desires that the
Park Site be maintained in a first class condition. Subject to
budgetary constraints, City hereby agrees to use City's good
faith efforts to: (i) mow and remove trash and debris from
unimproved portions of the Park Site on a regular basis so that
the same do not become ~nsightly; (ii) keep the improvements in
improved portions of the Park Site in good condition; and
(iii) keep finished landscaped areas in good condition,
including adequately watering and caring for all plant
materials, replacement of dead plantings and trees and repair
and replacement of ali irrigation systems.
13. Parkway Median Maintenance'..~ City hereby.:acknowledges ...
and agrees that City. ii's .responsibl~'4~f~r the maint'~ance"of?th~
parkway medians.on.~P~.rkway, m. Boulevard ff6m
Lodge Road and.on' Moor~ Roa~'.~orth'of'~Sand~,Lake:.'~a'd%~ Subject
to budgetar.y..constraints, City hereby ~qrees~to-.-~se-Ci~y's good
faith efforts to maintain such parkway medians in good
condition, including replacement of dead plantings and trees
and repair and replacement of all irrigation systems.
Concurrently with the execution of this Amendment, City agrees
to pa~ Owner the sum of $4,755.90 in reimbursement for utility
cost~"relating to such parkway median maintenance prior to the
date of this Amendment which was the responsibility of City.
Future utility costs. ~e~atinq to parkway median maintenance
shall be p~orated on the basis set forth in .attached Exhibit G,
and Owner and City each shall pay the portion for which each
party is responsible. Owner agrees not to install additional
landscaping in the parkway medians which City is required to
maintain without the prior written approval of City.
14. Construction Cost Reimbursements.
A. C,.R..Shaw Co~C0n~Ct~i~£ C~ncurrently with the
execution of this Amendment, City agrees to pay Owner the
% sum of~.$1,154'.00j!~in reimbursement of ~osts incurred by - .
Owner ih"connection with damage caused by the contractor
under the' C.R. Shaw Co. contract.% ..., .:
B. City, Hall~ Construction.- Concurrently with the
execution of this Amendment,. City,agrees to pay Owner the
sum of ~ $1,181.46'~'in reimbursement of costs incurred by
Owner in connection with damage caused in the construction
of the Coppell city hall.
C.. Tei'~ph6~e~N~'6~k.~Constructi6~- City agrees to
pay Owner the sum of $7,721.94 on the earlier of that date
which is sixty (60) days after the date of this Amendment
or ten (10) days after the date that City collects monies
from GTE, in reimbursement of costs incurred by Owner in
connection with damage caused in the construction of
underground telephone network improvements in Parkway
Boulevard by GTE.
15. Parkway Boulevard'~,Pavers.~ City acknowledges and
agrees that Owner has no further responsibility in connection
with the pavers existing at the entrance to the Coppell city
hall, and City accepts all responsibility for any removal,
relocation or additional work in connection with such pavers.
16. Open Drainage Channels.· Without in any way affecting
Owner's rights to utilize open drainage channels as set forth
in subsection (h) of Section 2 of the Agreement, City hereby:
(i) approves the conceptual design plans for the Linear Lake
system submitted by Owner and agrees to mark City's approval on
one set of such conceptual design plans and deliver the same to
Owner concurrently with City's execution of this Amendment; and
(ii) agrees that the standards set forth on attached Exhibit H
are acceptable to City for maintenance of water quality in
ponds, lakes, channels or other ware[ways within the Property.
17. Parkway Boulevard .... City agrees to complete the north
lane of Parkway Boulevard-'adjacent to the Park Site on or
before July 1, 1988.
18. MacArthur Road Extension. City hereby 'agrees that
Owner will not be responsible for any costs in connection with
the construction of bridges relating to the extension of
MacArthur Road northward from its intersection with Deforest
Road. City further agrees that City will not levy any
assessments against 'any portion of the Property or other
property owned by Owner to recover any of such costs.
19. City's Obligation to Improve Park Site.. City agrees
to continue to use City's good faith efforts to make
improvements to the Park Site according to City's current plan
therefor, a copy of which is attached hereto as Exhibit
provided th&t. City shall have the right to modify such plan
from time .to time. City agrees to apply all funds received
from governmental grants fdr the Park Site (whether received
for land acquisition costs or for park improvements) toward
improving the Park Site. City hereby reaffirms City's
agre~en~ to use all of the park fees collected in connection
with development within the Property ('Property Park Fees")
toward improving the Park Site; provided, however, City shall
have the ·right to -re.im~urse City's park fund from future
Property Park Fees to the extent that park fees collected in
connection with developments outside the boundaries of the
Property have previously been used for improvements to the Park
Site.
20. Drainage '~Improvement s
the plans subm~tted~by~Owner~for.~drainag~im~9~.t~-~a't_~f~e~
shall cause such drainage improvements to be constructed
without material deviation from such plans. ~A~f,ter · ~ C~i ty ' s :.
engineer has confirmed~that~'Owner~,has~cbmplet'e'd~-~"~{~{-~e~
~repa~r andwrepla6ectheT-sameC.' Where such-la~"d-'~is~n6~~ owned~-by
City, ~ner agrees to 'gran~~ City easements (in form mutually
acceptable to Owner and City) covering the areas in which such
drainage improvements are located to allow City to use,
maintain, repair and replace the same.
21. water ' Liner~.Reimb~ement.(~ Concurrently with the
execution of this Amendment, City agrees to pay Owner the sum
of $6,100.00 to reimburse Owner fo~ one-half of the costs
extending a sixteen (16) inch water line in Parkway Boulevard.
confirms that City will abide by the agreements of City
contained in the Agreement, including, without limitation,
those agreements contained in Articles IV, V and X of the
Ag. reement rega rding zoning, subdivision ordinance
~gterpretatio9 and paving assessments. ~ Owner agrees~that_Owner
~he .r~ghti%o~f~.0~s~dent~a~lots...on.%Moore;~Samuells ,.:
ae~ r~z]. ~-a nd~Pa~wa~Bou 1~%~ r d~p'rov i ded~z t h'm t~;!~.r e a r
23. Road Name"~::Change.~ Owner and City hereby agree that
Samuells Road is hereby substituted for Deforest Road wherever
Deforest Road appears in the Agreement..,~The.~fore~oing~4sentencel.
does not apply to the reference' to Deforest~2Rb~d~c0'n'~ai'ned'":.~i'h~
paragraph i8 of .th~s.A~ndm~:'. ' ' · ............ '
24. Notice. Any notice or co~unicat ion required or
permitted pursuant to the Agreement shall be given in writing,
sent by United States mail, postage prepaid, r~gistered or
certified mail, return r~ceipt requested, addressed as follows:
To ~ner:
Parks .of Coppell Joint Venture II
12770 Colt Road, Suite 1215
Dallas, Texas 75251
To City:
City of Coppell
P.O. Box 478
Coppell, Texas 75019
Attn: City Manager
or to such other address or to the attention of such other
person as . hereafter 'shal-1. be designated in writing by the
applicable party. Any such notice or communication shall be
deemed to have been given as of the date of deposit in the
United States mail.
25. Tim~ of Essence. Time is important to both Owner and
City in the p.e£formance of the Agreement, and they have agreed
that strict compliance is required as to any date set forth
therein. If the final date of any period w.hich is set forth in
any term or provision of the Agreement falls upon a Saturday,
Sunday or legal holiday under the laws of the United states or
the State of Texas, then, and in such event, the time of such
period shall be extended to the next day which is not a
Saturday, Sunday or lega! holiday.
26. Severability. If any term or provision of the
Agreement is held to be illegal, invalid or unenforceable, the
legality, validity and enforceability of the remaining terms
and provisions of the Agreement shall not be affected thereby,
and in lieu of each such illegal, invalid or unenforceable term
or provision, there shall be added automatically to the
Agreement a legal, valid and enforceable term or provision as
similar as possible to the term or provision declared illegal,
invalid or unenforceable.
27. No Waiver. No failure by Owner or City to insist upon
the strict performance of any duty, obligation or agreement
contained in the Agreement under any circumstance shall
constitute or be deemed a waiver or estoppel of the right to
later insist upon the strict performance of the same duty,
obligation or agreement under the same or other circumstances.
Neither Owner nor City shall be deemed to have waived the
strict performance of any duty, obligation or agreement
contained in the Agreement unless such waiver is in writing
signed by the party waiving such duty, obligation or agreement.
28. Incorporation. All exhibits and annexes to the
Agreement and this Amendment are incorporated therein and
herein by reference for all purposes.
29. No Change Unless Expressly Made. Except as expressly
changed by this Amendment, the Agreement and all duties,
obligations and agreements of Owner and City under the
Agreement remain in full force and effect.
30, . Effect.--of_.City's Failure-to Acquire PhasefIII.~0f~th-~
Park Si'~. ~ If City_fails~to~acquire~Phase~I.I.I~,f~the.=Park-Site~
be required-t
· .. '.~ .
taxes, paid 'or' 'payable...
here6f; ~ (ii) mai~a'ln"-Ph~s~f~'~o~f..~.He"~P~fk~ ~e~s'~r~ui.r~d~
in. par~ra~h~.12'hereof.
31. Meaning Of Agreement. It is expressly understood and
agreed that the breach by Owner or City of any of the duties,
obligations or agreements contained in either the Agreement or
in this Amendment shall be a breach of the Agreement. From and
after the execution of this Amendment, the Agreement, as such
term is used in. the Agreement and as such term is used in this
Amendment, "~hall mean the Agreement, as amended by this
Amendment.
32. Complete Agreement. The Agreement, as amended by this
Amendment, embodies the complete agreement between Owner and
City ~.it~ resp'eCt to the subject matter thereof and cannot be
varied or amended except by an instrument executed by both
Owner and City.
33. Bi~ding EffectS' 'The Agreement, as amended by this
Amendment, shall be binding upon and inure to the benefit of
Owner and City and their respective successors and assigns.
34. Authbrity. Owner aqrees to furnish City with evidence
that the execqt[on of this Amendment by the joint venturers of
Owner executing this Amendment has been duly authorized by all
required joint . v~nture .action and that this Amendment is
binding on Owner. City agrees to furnish 'Owner with evidence
that the execution of this Amendment by the Mayor and the City
Administrator on behalf of the City has been duly authorized by
all required, municipal action and that this Amendment is
binding on City. '% '".~'.'i~''
.~(~-'.
· ~'~.
EXECUTED as of the date first above written.
OWNER: C X TY:
PARKS OF COPPELL JOINT CITY OF COgPELL
VENTURE I I
i: l,,.],.,;' 'D "'
' ~chae[ R. A~[en 3o[n~ Ven~u~e~
', John B.~' d City Administrator
Uoint Venturer
I ~'~.: ~' .. ~,~.".
'G~efl A. ~inckl~y
Joint Venturer
3513S