ST0102-CN021205REAL ESTATE PURCHASE AGREEMENT
,T[-IIS REAL E~TATE PURCHASE AGREE,,,ME,,NT (this Agreement ) is executed as of the O___--
day of~ 2002 (the "Agreement Date ), by the CITY OF COPPELL, TEXAS, a Home
Rule City ("Seller"), and TEXAS DUGAN LIMITED PARTNERSHIP, a Delaware limited
partnership ("Buyer"), who acknowledge that the following facts are true:
A. Seller is the owner in fee simple of certain real estate located in Coppell, Dallas County,
Texas, the first such parcel containing approximately 1.281 acres and more particularly shown and
described on Exhibit A-I attached hereto and incorporated herein by reference ("Parcel One"), and the
second such parcel containing approximately 1.033 acres and more particularly shown and described on
Exhibit A-2 attached hereto and incorporated herein by reference ("Parcel Two"), together with all of
Seller's right, title and interest in and to all easements, utility reservations, fights of way, strips and gores of
land, mineral rights, water and water rights, wells, well fights and permits, water and sewer taps, sanitary or
storm sewer capacity or reservations, fights under utility agreements with any applicable governmental or
quasi-governmental entities or agencies with respect to the providing of utility services to such real
property, tenements, hereditaments, privileges, licenses and appurtenances, reversions and remainders in
any way belonging, remaining or appertaining thereto and together with all improvements, fixtures, personal
property, trees, timber, or other crops and plants and minerals located thereunder or thereon (collectively,
the "Property"); and
B. Buyer desires to purchase, and Seller desires to sell the Property.
AND, in consideration of the mutual covenants hereinafter contained, Seller and Buyer agree as
follows:
1. Purchase and Sale. Seller agrees to sell, and Buyer agrees to purchase the Property for
the price and subject to the terms and conditions hereinafter set forth.
2. Purchase Price. The purchase price for the Property (hereinafter called the "Purchase
Price") shall be Two Hundred and Fifty-three Thousand and No/100 Dollars ($253,000.00). The Purchase
Price shall be paid by Buyer to Seller on the Closing Date after crediting the Earnest Money, hereinafter
defined, and subject to the prorations and adjustments hereinafter described, by a certified or Federal
Reserve check, or in funds immediately available in Dallas, Texas on the Closing Date.
The Purchase Price shall be paid by Buyer to Seller on the Closing Date after crediting the Earnest
Money (hereinafter defined), and subject to the prorations and adjustments hereinafter described, by a
certified or Federal Reserve check, or otherwise in funds immediately negotiable in on the Closing Date.
Contemporaneously with the execution of this Agreement, Buyer has delivered to Seller the sum of
Fifty and No/100 Dollars ($50.00) (the "Independent Contract Consideration"), which amount the
parties bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement
and the right granted to Buyer to purchase the Property upon and subject to the terms and conditions of this
Agreement. The Independent Contract Consideration is in addition to and independent of any other
consideration or payment provided in this Agreement, is non-refundable and shall be retained by Seller
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agreements\purchase agreement\contractS--final.doc
notwithstanding any other provision of this Agreement. Seller hereby acknowledges receipt of the
Independent Contract Consideration.
3. Payment of Purchase Price. The Purchase Price shall be paid to Seller as follows:
(a) Within five (5) business days from execution of this Agreement by both Buyer and
Seller, Buyer shall Earnest Money with Allegiance Title Company ("Escrow Agent"), whose office is
located at 2100 McKinney Avenue, Suite 1200, Dallas Texas 75201, Attn: Ms. Kerri Majors, an earnest
money Earnest Money in the amount of One Thousand and No/100 Dollars ($1,000.00) (the "Earnest
Money"). Such Earnest Money shall be held, applied, returned or retained in accordance with the terms
of this Agreement and the terms of the Escrow Agreement, which is attached hereto as Exhibit B and
incorporated herein by reference. The Earnest Money shall be invested by Escrow Agent as directed by
Buyer, and all interest on the Earnest Money shall be applied to the Purchase Price, or if the Closing (as
defined in paragraph 10 hereof) does not occur, credited to the party to receive the Earnest Money
pursuant to the terms hereof. If Buyer shall fail or refuse to perform its obligations herein specified after
all conditions in this Agreement have been satisfied, Escrow Agent shall pay the Earnest Money to Seller
as liquidated damages and Seller waives any claim for damages, at law or in equity, and waives any claim
for specific performance and agrees that such liquidated damages shall be Seller's sole remedy at law or
in equity.
(b) The remainder of the Purchase Price, plus or minus any prorations and adjustments made
pursuant to this Agreement, shall be paid by Buyer in cash, certified check, wire transfer or other
immediately available funds at the Closing.
4. Conditions. The Buyer's obligations under this Agreement are subject to the satisfaction
(or waiver in writing by Buyer) of the conditions in this Paragraph 4 by Closing (hereinafter defined). At
any time after the Agreement Date, Buyer and its agents shall have the right to (and Seller hereby grants
permission to Buyer to) enter upon the Property and make all engineering, soil boring, percolation and
other tests and inspections deemed necessary by Buyer to satisfy Buyer as to the condition of the
Property; provided, however, that Buyer shall restore any damage to the Property resulting from the entry
of Buyer or its agents, and Buyer shall indemnify and hold Seller harmless from and against any liability
with respect to personal injury or property damage resulting from the right of access provided herein).
All such tests shall be at Buyer's cost and expense. If for any reason whatsoever Buyer determines, in
Buyer's sole discretion, that the Property is not satisfactory, then Buyer may terminate this Agreement by
delivering written notice of such termination to Seller on or before the Closing Date. In the event Buyer
gives such termination notice as provided herein, the Earnest Money (less $100 to be paid to Seller) shall be
returned to Buyer and neither party hereunder shall have any further rights, liabilities, or obligations,
hereunder, except for those matters contained herein which expressly survive termination of this Agreement.
(a) Status of Title. Buyer shall have received the Title Commitment and Survey, as each is
hereinafter defined, in the condition and as required under Paragraphs 5 and 6 of this Agreement.
(b) Zoning and Subdivision Approvals. Buyer shall have determined, in its sole discretion,
that the Property is suitably zoned to a zoning classification compatible for development of the Property
as a truck court and parking lot (hereinafter referred to as "Buyer's Use") with all necessary
classifications, variances, permissions, exceptions, conditional uses, plat and other approvals required for
Buyer's Use having been obtained from all applicable governmental agencies and such approvals being
final, nonappealable and in full force and effect.
(c) Utilities. Buyer shall have determined, in its sole discretion, that utilities, including, but
not limited to, gas, electricity, water, sanitary sewer, storm sewer and telephone utilities, shall be
available at the Property or at such distances from the Property as are satisfactory to Buyer and shall be
available for connection and extension to the Property at such distances, in such quantities and at such
costs as are satisfactory to Buyer.
(d) Access. Buyer shall have determined, in its sole discretion, that the Property has free,
unrestricted and direct legal rights of access and ingress and egress to one or more public roads or
highways.
(e) Permits. Buyer shall have determined, in its sole discretion, that all permits, consents,
approvals and other things required or desired by Buyer to be obtained from all federal, state and local
governmental, municipal, public and other authorities, bodies and agencies, and those required by any
design review board established pursuant to any declaration which may encumber the Property
(collectively "Approvals"), to permit Buyer to use the Property for Buyer's Use shall have been
obtained.
(f) Soil Conditions. Buyer shall have determined, in its sole discretion, that the surface
water drainage and soil conditions, qualities, density and bearing capacity of the Property are suitable for
Buyer's Use without the necessity of any extraordinary filling or compaction or any other extraordinary
engineering or construction measures or expenditures which, in the opinion of Buyer, would impair the
feasibility of the use, development and improvement of the Property.
(g) Environmental Condition. Buyer shall have determined, in its sole discretion, that (a) the
Property is not contaminated with any toxic waste or hazardous substance; (b) the Property contains no
asbestos or PCB's; (c) the Property does not appear on any state or federal CERCLA (Comprehensive
Environment Responsibility Compensation and Liability Act or Superfund) list; (d) the Property contains
no underground storage tanks; and (e) the Property is not located in any area of special flood hazard, as
designated by the United States Department of Housing and Urban Development or the Federal
Emergency Management Agency, or in any flood plain, floodway or other flood control district
designated by any federal, state or local governmental municipal, public or other authority, body or
agency.
(h) Restrictions on Development. Buyer shall have determined, in its sole discretion, that
there are no federal, state or local laws, ordinances, rules, regulations, codes or orders and no covenants
or restrictions affecting or running with the Property which would, in Buyer's sole judgment, prohibit,
prevent, delay, interfere with or impair the feasibility of Buyer's use, development or improvement of the
Property for Buyer's Use; and in Buyer's sole judgment, there are no claims, demands, actions or
proceedings pending or threatened against Seller or the Property before any court or governmental
authority, body or agency (including, without limitation, condemnation or eminent domain proceedings)
which would so prevent, prohibit, delay, interfere with or impair the feasibility of Buyer's development of
the Property for Buyer's Use.
(i) Improvements. Buyer shall have determined that all improvements, if any, on the
Property are located entirely within the bounds thereof, and that there are no encroachments upon the
Property by improvements or appurtenances on property adjoining the Property; and Buyer shall have
determined that there are no existing violations of zoning ordinances or other laws, ordinances,
restrictions or covenants applicable to the Property.
(j) Approvals. Buyer and Seller shall have received all requisite approvals necessary to
complete the sale and purchase of the Property.
5. Seller's Title.
(a) Seller shall convey good, marketable and insurable fee simple title to the Property to Buyer,
free and clear of all liens and encumbrances. Buyer shall cause, at Buyer's expense, Escrow Agent to
deliver to Buyer a commitment for an owner's policy of title insurance (the "Title Commitment") issued
by a title insurance company satisfactory to Buyer on ALTA Owner's Policy Form B-1970, if available
(otherwise in a form acceptable to Buyer), and in which to give Seller written notice of any objections
which Buyer may have. If Buyer fails to give any notice to Seller by such date, Buyer shall be deemed to
have waived such right to object to any title exceptions or defects.
(b) If Buyer does give Seller timely notice of objection, Seller shall have seven (7) days from
the date of receipt of notice of objections in which to review Buyer's notice of title objections, and, if Seller
elects, in which to give Buyer written notice of any objections specified therein which Seller does not intend
to satisfy. If Seller gives Buyer such written notice with respect to any objection specified in Buyer's initial
notice of title objections, then Buyer shall have the right, at Buyer's option, to terminate this Agreement by
giving written notice to Seller within ten (10) days thereafter, in which event the Earnest Money (less $100
to be paid to Seller) shall be refunded to Buyer promptly upon request, all rights and obligations of the
parties hereunder shall expire and this Agreement shall become null and void, except with respect to any
obligations hereunder that expressly survive any such termination. If Buyer fails so to terminate this
Agreement within the time limit specified above, Buyer shall be deemed to have waived any objection
specified in Buyer's notice of title objections as to which Seller has given Buyer such notice.
(c) Seller shall have until the Closing Date to satisfy all objections other than those waived by
Buyer pursuant to subparagraphs (a) and (b) above and, if Seller fails to satisfy any objections which it has
expressly agreed to satisfy, then, at the option of Buyer, Buyer may: (i) terminate this Agreement, in which
event the Earnest Money shall be refunded to Buyer promptly upon request, all rights and obligations of the
parties hereunder shall expire and this Agreement shall become null and void, except with respect to any
provisions that expressly survive termination; (ii) waive such satisfaction and performance and elect to
close, and all objections so waived shall thereafter constitute Permitted Exceptions under this Agreement; or
(iii) extend the Closing Date for a period of up to ninety (90) days, during which time Seller shall cure such
title objections. Buyer shall have the right to object to any change in title occurring after the effective
date of the Title Commitment and prior to the Closing Date, and if Seller cannot or will not cure or
satisfy any such objection by the Closing Date, Buyer may exercise the option set forth in clause (i), (ii)
or (iii) above. The Closing Date shall be automatically extended to allow all time periods in this
subparagraph (c) to run fully.
(d) Notwithstanding any other provision of this Agreement to the contrary, Seller shall, prior to
the Closing Date, satisfy, cure or cause to be released (or bonded off of the Property at Seller's election) (i)
all materialmen's and mechanic's liens affecting the Property and arising out of work done for or on behalf
of Seller, and (ii) any judgment lien against Seller which attaches to the Property prior to the Closing Date
(if any). Seller's failure to satisfy the specific items listed in the previous sentence shall be an event of
default by Seller under Paragraph 26 of this Agreement with respect to which Buyer shall be entitled to (A)
pursue its remedies under Paragraph 26 or (B) close the sale of the Property contemplated herein and accept
the Property subject to such items after reducing the Purchase Price by the amount of such uncured items.
(e) Seller hereby covenants that it shall not voluntarily transfer, sell, assign, encumber, lease,
hypothecate or otherwise dispose of any or all of its right, title and interest in and to the Property nor
consent to the creation of any easement affecting the Property, during the existence of this Agreement,
without the prior consent of Buyer.
6. Survey. Buyer may elect to cause, at Buyer's expense, a staked boundary survey of the
Property (the "Survey") prepared by a registered land surveyor satisfactory to Buyer. Any matters
shown on the Survey and objected to by Buyer on or before the Closing Date shall be additional title
objections, as to which the fights and obligations of Buyer and Seller shall be the same as provided in
Paragraph 5 above.
7. Cooperation of Seller. Seller shall assist Buyer and its representatives, whenever
reasonably requested by Buyer, in obtaining information about the Property.
8. Taxes and Assessments. Buyer will assume and agree to pay (a) all assessments for
municipal improvements becoming a lien against the Property after the Closing and (b) so much of the
real estate taxes and assessments assessed against the Property for and becoming a lien during the
calendar year in which such Closing occurs as shall be allocable to Buyer for the period on and after the
Closing.
Notwithstanding anything to the contrary herein, the parties agree that Seller shall be responsible
for and shall assume any and all "rollback" or similar taxes or assessments applicable to the Property for
the period prior to the Closing Date. At Closing, Seller shall either (i) deposit with Escrow Agent a sum
equal to the "rollback" assessment which would become assessable at Closing, if, hypothetically, the use
of all of the Property changed on the date of Closing to a use not qualifying for "open space" or
"agricultural" status or (ii) credit Buyer at Closing an amount equivalent to said rollback assessment. In
the event Seller shall choose option (i) above, Seller, Buyer and Escrow Agent shall enter into an Escrow
Agreement at Closing providing that the amount of the rollback taxes shall be deposited into an interest-
bearing account, with interest payable to Seller, with such escrow deposit to be utilized by Buyer to
satisfy the assessment and payment of "rollback" assessments against the Property. The provisions of
this Section shall expressly survive the Closing and shall not be merged therein.
9. Conditions to Closing. Buyer's obligations to close on the purchase and sale of the
Property are expressly contingent on the fulfillment of the following conditions (the "Conditions") on or
before the Closing Date (hereinafter defined):
(a) Seller shall approve construction plans (the "Ruby Road Construction Plans")
prepared by Pacheco Koch Consulting Engineers, Inc., for the realignment and reconstruction of Ruby
Road between Freeport Parkway and Coppell Road by November 1, 2002.
(b) Seller shall, by November 12, 2002, present a contract for award to the Coppell City
Council for the realignment and reconstruction of Ruby Road (the "Ruby Road Construction
Contract") as depicted in the Ruby Road Construction Plans. Working days shall commence twenty
(20) days after approval of the award by the City Council.
(c) All pavement and any existing utilities, including, but not limited to, electric and
telephone facilities and equipment shall have been removed and relocated from Parcel One and Parcel
Two to Buyer's satisfaction and at no expense to Buyer prior to the Closing Date.
(d) The Coppell City Council shall abandon that portion of the existing Ruby Road right-of-
way located within Parcel Two prior to the Closing Date. As used herein, "abandon" shall mean
approval by the appropriate governmental authority or other entity having jurisdiction and the expiration
of any period for appeal or reconsideration, without appeal, reconsideration or application therefore
having been made, or in the event of any such appeal or reconsideration, approval upon such appeal or
reconsideration.
(e) The Coppell City Council shall have approved this Agreement for the purchase and sale
of the Property on or before November 12, 2002.
(f) The work depicted on the Ruby Road Construction Plans shall be completed no later
than July 7, 2003.
10. Closing. In the event the conditions contained in Paragraphs 4 and 9 hereof have been
met, the closing of the purchase and sale of the Property (the "Closing") shall occur in escrow at the
office of Escrow Agent or another location selected by both Seller and Buyer on a date (the "Closing
Date") which is ten (10) days following fulfillment of the Conditions set forth in subparagraphs 9(a) - (e)
above; provided, however, in no event shall Closing occur later than March 7, 2003.
11. Closing Documents and Closing Costs. At the Closing, Seller shall execute and deliver
to Buyer (a) a special warranty deed (the "Deed") conveying the Property to Buyer free and clear of all
liens and encumbrances except such as have been approved in writing by Buyer, (b) a Vendor's Affidavit
in a form satisfactory to the Buyer and the title insurer, (c) a Certification of Non-Foreign Status pursuant
to Section 1445(b)(2) of the Internal Revenue Code, (d)a Closing Statement, and (e)such other
instruments, certificates or affidavits as may be provided herein or as Buyer or the title insurer may
require to close this transaction in accordance with the terms and conditions set forth in this Agreement.
Buyer shall pay the cost of the title policy and any title insurance endorsements, one-half
(1/2) of any escrow or closing agent charges, all costs associated with any encumbrance Buyer places on the
Property at Closing, the cost of the Survey, the cost of preparation of any plat relative to the incorporation of
the Property from into the adjacent tract owned by Buyer, and all costs of Buyer's due diligence. Seller shall
pay for recording the Deed, and one-half (1/2) of any escrow or closing agent charges. Each party shall pay
its own attorneys. The obligations of the parties to pay applicable escrow or closing charges shall survive
the termination of this Agreement.
12. Possession. Possession of the Property shall be delivered to Buyer on the Closing Date
free and clear of the claims of any other party.
13. Rights and Obligations. The rights and obligations of Seller and Buyer herein contained
shall inure to the benefit of and be binding upon the parties hereto and their respective personal
representatives, heirs, successors and assigns.
14. Notices. Any notices, requests, demands, tenders and communications hereunder shall be
in writing and may be served (i) by depositing same in the United States mail, addressed to the party to be
notified, postage prepaid and registered or certified with return receipt requested; (ii) by recognized
overnight, third party prepaid courier service (such as Federal Express), requiring signed receipt; (iii) by
delivering the same in person to such party; or (iv) by prepaid telegram, telecopy or telex with confirmation
thereof. Any notice or other communication mailed as bereinabove provided shall be deemed effectively
given (a) on the date mailed if sent by overnight express delivery or if sent by U.S. mail; (b) on the date
of delivery, if delivered by hand; or (c) on the date of transmission, if sent by electronic transfer device
with a follow-up by regular mail. Such notices shall be deemed received (a) on the date indicated on the
return receipt if mailed; (b) on the date of delivery, if delivered by hand or overnight express delivery
service; or (c) on the date of transmission, if sent by electronic transfer device. If any notice mailed is
properly addressed but returned for any reason, such notice shall be deemed to be effective notice and to
be given on the date of mailing. Any notice mailed in the foregoing manner shall be effective three (3)
business days after its Earnest Money in the United States mail. Either party may change its address for
notices by giving notice to the other as provided below.
The address for notices is:
Seller:
City of Coppell, Texas
255 Parkway Boulevard
Coppell, Texas 75019
Attn: City Manager
Fax: (972) 304-3673
With copies to:
City of Coppell, Texas
255 Parkway Boulevard
Coppell, Texas 75019
Attn: City Engineer
Fax: (972) 304-7041
Robert E. Hager, Esq.
City Attorney
1800 Lincoln Plaza
500 N. Akard
Dallas, Texas 75201
Fax: (214) 965-9900
Buyer:
Texas Dugan Limited Partnership
c/o Duke Realty Corporation
5495 Belt Line Road, Suite 360
Dallas, Texas 75240
Attn: Mr. Jeff Turner & Mr. Brook Barefoot
Fax: (972) 687-0007
Copy to:
Ann K. Friesen, Esq.
Duke Realty Corporation
3950 Shacldeford Road, Suite 300
Duluth, Georgia 30096-8268
Fax: (770) 717-2431
Such notices shall be deemed received (a) on the date of delivery, if delivered by hand or overnight express
delivery service; (b) on the date indicated on the retum receipt if mailed; or (c) on the date of facsimile, if
sent by facsimile and confirmed.
15. Intentionally Omitted.
16.
that:
Further Representations and Warranties of Seller. Seller hereby represents and warrants
(a) Seller has full power and authority to enter into and consummate the transaction
contemplated by this Agreement, and all consents and approvals necessary therefor have been obtained.
(b) The execution, delivery and performance by Seller of its obligations under this
Agreement will not conflict with or result in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulations, judgment, decree or order by which the Seller is
bound, or by any of the provisions of any contract to which the Seller is bound, or, if Seller is not an
individual, by the Seller's declaration of trust, certificate of incorporation, bylaws or partnership
agreement, as the case may be.
(c) Seller has, as of the Agreement Date, and will have as of the date of the Closing, good,
marketable and indefeasible title to the Property, subject only to the Permitted Exceptions.
(d) Seller has not received any notice of pending or threatened claims, condemnations, planned
public improvements, annexation, special assessments, rezoning or other adverse claims affecting the
Property.
(e) There are no liens, leases, rights of possession, or other encumbrances against the
Property which will not be terminated at or prior to Closing.
(f) All necessary rights-of-way for all roads referenced on the Survey to be obtained by
Buyer have been either acquired by Seller or have been dedicated to public use and accepted by the
appropriate governmental authority for public use and maintenance. The Property has immediate, direct,
and unrestricted access to Ruby Road.
(g) Water, electricity, sanitary sewer, underground storm sewer, gas and telephone services
are available for connection on the Property and in sufficient capacities to serve Buyer's Use.
(h) On the Closing Date, Seller will not be indebted to any contractor, laborer, mechanic,
materialman, architect or engineer for work, labor or services performed or rendered, or for materials
supplied or furnished, in connection with the Property for which any such person could claim a lien
against the Property.
(i) There are no covenants, agreements, restrictions or other arrangements or understandings
(whether in writing or of record) respecting the Seller, the Property or the use or possession of the
Property which would require payment by Buyer to any person, owners' association or other entity of or
for shared easements, improvements, utilities or services; provided, however, in the event any such
covenant, agreement, restriction or other arrangement or understanding exists and has been approved in
writing by Buyer, Seller shall pay at or prior to closing all amounts accruing or becoming due and
payable on or prior to Closing, and any regular periodic payments thereunder accruing in the year of
Closing shall be prorated to the date of Closing.
(j) Seller will pay or cause to be paid promptly when due all city, state and county ad
valorem taxes and similar taxes and assessments, all sewer and water charges and all other governmental
charges levied or imposed upon or assessed against the Property between the date hereof and the Closing
Date.
The foregoing representations are tree, correct and complete, and the foregoing warranties are in
full force and effect and binding on Seller, as of the date hereof, and shall be true and correct and in full
force and effect, as the case may be, and deemed to have been reaffirmed and restated by Seller as of the
date and time of the Closing, shall survive the Closing and shall not be deemed merged into any
instrument of conveyance delivered at the Closing, and shall inure to the benefit of and be enforceable by
Buyer, its successors and assigns.
17. Survival of Representations, Warranties and Covenants. Each of the obligations,
covenants, representations and warranties of the parties hereto set forth in this Agreement shall survive
the Closing and shall not be merged in the deed or other instruments of conveyance.
18. Assignment. Seller shall not assign, transfer, convey, hypothecate or otherwise dispose of
all or any part of its right, title and interest in the Property without Buyer's written consent, which consent
Buyer may withhold in its sole discretion. Buyer may assign any of Buyer's rights hereunder or any part
thereof to any person, firm, partnership, corporation or other entity without the prior written approval of
Seller. Provided, however, that any assignee shall assume all of the duties, obligations and liabilities of
assignor under this Agreement. In the event of any such assignment, assignor shall not be relieved of its
duties and obligations hereunder. The assignor and the assignee shall be jointly and severally liable.
19. Complete Agreement. This Agreement represents the entire agreement between Seller
and Buyer covering everything agreed upon or understood in this transaction. There are no oral
promises, conditions, representations, understandings, interpretations or terms of any kind as conditions
or inducements to the execution hereof or in effect between the parties. No change or addition shall be
made to this Agreement except by a written agreement executed by Seller and Buyer.
20. Authorized Signatories. The persons executing this Agreement for and on behalf of
Buyer and Seller each represent that they have the requisite authority to bind the entities on whose behalf
they are signing.
21. Partial Invalidity. If any term, covenant or condition of this Agreement is held to be
invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
22. Brokers and Commission. All negotiations relative to this Agreement and the transaction
contemplated hereby have been conducted by and between Seller and Buyer without the intervention of any
person as agent or Broker. Seller and Buyer each warrant and represent to the other that there will be no
broker's fees or commissions payable as a consequence of this transaction. Seller and Buyer shall and do
each hereby indemnify and hold the other harmless from and against the claims, demands, actions and
judgments of any and all brokers, agents and other intermediaries alleging a commission, fee or other
payment to be owing by reason of any dealings, negotiations or communications with the indemnifying
party in connection with this Agreement or the sale of the Property.
23. Attorneys' Fees. In the event that either party shall bring an action or legal proceeding
for an alleged breach of any provision of this Agreement or any representation, warranty, covenant or
agreement herein set forth, or to enforce, protect, determine or establish any term, covenant or provision
of this Agreement or the rights hereunder of either party, the prevailing party shall be entitled to recover
from the nonprevailing party, as a part of such action or proceedings, or in a separate action brought for
that purpose, reasonable attorneys' fees and costs, expert witness fees and court costs as may be fixed by
the court or jury.
24. Intentionally Deleted.
25. Governing Law; Construction.
(a)
Texas.
This Agreement shall be interpreted and enforced according to the laws of the State of
(b) All headings and sections of this Agreement are inserted for convenience only and do not
form part of this Agreement or limit, expand or otherwise alter the meaning of any provisions hereof.
(c) This Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original and all of which shall constitute one and the same agreement.
(d) The provisions of this Agreement are intended to be for the sole benefit of the parties
hereto and their respective successors and assigns, and none of the provisions of this Agreement are
intended to be, nor shall they be construed to be, for the benefit of any third party.
(e) In the event any deadline arising under this Agreement shall fall on a Saturday, Sunday, or
legal holiday, such deadline shall be automatically deemed to fall on the first business day immediately
following such Saturday, Sunday, or legal holiday.
26. Default.
(a) If the purchase and sale of the Property contemplated hereby is not consummated in
accordance with the terms and conditions of this Agreement due to circumstances or conditions which
constitute a default by Buyer hereunder, the Eamest Money shall be delivered to Seller as full liquidated
damages for such default. The parties acknowledge that Seller's actual damages in the event of a default by
Buyer hereunder will be difficult to ascertain, and that such liquidated damages represent the parties' best
estimate of such damages. The parties expressly acknowledge that such liquidated damages are not
intended as a penalty, but as full liquidated damages, in the event of Buyer's default and as consideration for
Seller's taking the Property off the market during the term of this Agreement. The right of Seller to receive
such liquidated damages shall be the sole and exclusive damage remedy of Seller hereunder (and Seller shall
not have a right of specific performance or to sue for damages).
(b) In the event of a default by Seller under the terms of this Agreement which is first
discovered by Buyer prior to the Closing and is not cured by Seller as provided hereunder, Buyer shall be
entitled to all remedies provided for herein or otherwise available to Buyer at law or in equity.
10
27. Severability. This Agreement is intended to be performed in accordance with, and only
to the extent permitted by, all applicable laws, ordinances, rules and regulations, and is intended, and
shall for all purposes be deemed to be, a single, integrated document setting forth all of the agreements
and understandings of the parties hereto, and superseding all prior negotiations, understandings and
agreements of such parties. If any term or provision of this Agreement or the application thereof to any
person or circumstance shall for any reason and to any extent be held to be invalid or unenforceable, then
such term or provision shall be ignored, and to the maximum extent possible, this Agreement shall
continue in full force and effect, but without giving effect to such term or provision.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date
first above written.
Seller:
By:CITY ~F C~]~PELL, TEY..A'S !'] ;/~~
J'//~, City Manager
~ibby Ball, c t c;etary
Signatures Continued on Following Page
11
Buyer:
TEXAS DUGAN LIMITED PARTNERSHIP, a
Delaware limited partnership
By: DUGAN GENERAL PARTNER LLC, a
Delaware limited liability company, its general partner
By: DUGAN TEXAS LLC, a Delaware limited
liability company, its sole member
By: DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership, its Manager
By: DUKE REALTY CORPORATION, an
Indiana corporation, ~artner
Jefif~. Turner
S~ice President
12
EXHIBIT A-1
CITY OF' COPPELL
(VOL. 2000242, PG, 08802)
S73'51'12"W 0 1 O0 200 400
GRAPHIC 'SCALE IN FEET
PART OF LOT 1, BLK. A
DUKE-FREEPORT ADDI110N
(VOL. 2001065, PG. 00037)
1.281 ACRES
(55.796 SQ. Pr.)
LOT
I
A
The undenJlgned, Reglet~ed Pr~feJ~lon~i Land BEARING S~
~. h~y c~fl~ ~at ~1. plat of RN~ ~T ~ ~E DUKE-
~T AD~, ~ ~DI~
y ~t~y ~ ~t ~e me~ ~d
· e ~m~t trot d~. TO ~E ~ ~C~P~: ~S
RENDED IN V~UME 2~1~5,
PA~ 037 OF ~E ~ RE~RDS
1.281 ACRE
TRACT
2001065, PG. 7)
1.281 ACRE TRACT OF LAND
Vest Survey, Abstract No. 1508,
City of Coppell, Da~la= County, Texas;
DESCRIPTION. of a 1.281 acre ti'a~ of land situated in {he John Vest Survey, .N~stra~ No. '1508,
City of Coppell, Dallas County, Texas; said tract being a portion of the same tract of land
desoribed in deed to the City of Coppell, Texas recorded In Volume 2000242. Page 6802 of the
Deed Records of Dallas County, Texas; said 1.281 awe tract being more particularly' described
as follows;
COMMENCING, at a point in the south east corner of the Intersection of the east linoof Freeport
Parkway and tho south right of way line of Ruby Road as dedioated by the Duke-Freeport
Addition, an addition to the City of Coppall, Texas a__,~-o_rding to the plat recorded in Volume
2001065, Page 37 of the Deed Records of Dallas County~ Texas; said point also being the north
west comer of Lot 1, Binck A of the said Duke-Freeport Addition;
THENCE, South 89 degrees, :3;? minutes, 4r seconds East, departing the said east line of
Freepart Parkway and along the proposed sol,th line of Ruby Road. a distance of 128.4S feet to
an angle point;
THENCE. South 89 degrees. 06 minutes. 00 seconds East, continuing along the proposed south
line of Ruby Road. a distance of 64.05 feet to a 1/24rich iron rod with "Pacheco Koch" cap set [or
the POINT OF BEGINNING;
THENCE, South 89 degrees, 06 minutes. 00 seconds East, along the said proposed ~south right-
of-way line of Ruby Road, a distance of 903.70 feet to a 1/2-inch iron rod with 'Pacheco Koch'
cap set for comer in the existing north right.of-way line of said Ruby Road;
THENCE, South 73 degrees, 51 minutes, 12 seconds West, departing the said proposed south
line of Ruby Road and along the said existing north line of Ruby Road, a distance of 42t_23 feet
to a 5/8-Inch Iron rod found for comer;
THENCE, North 75 degrees, 15 minutes. 12 seconds Weal, along the said existing north line of
Ruby Road, passing at a distance of 65.87 feet the east comer of Lot 3, Block A, of said Duke-
Freeport Addition; continuing along the north line of said Lot 3 and in a south line of the said City
of Coppell TracL passing at a distance of 396.51 feet the west corner of said Lot 3. continuing in
all a distance of 515.97 feet to the POINT OF BEGINNING;
CONTAINING, 55,796 square feet or t _281 acres of land, more or leas.
2052-261
EXHIBIT A-2
ARC gL.C.
(VOL. 97084. PG. 2081)
UHE TABLE
0 100 , 200 400
GRAPHIC SCALE IN FEET
T-175.50' I I ,
L--352.63' .~_,j.~,,.j..~///_-.r T,,2.~9,90'
c.-s,r~'-~l~. ~/,///~/. / ~_-~,~'
co-~2,m' I I ~'.',~/'//~,'
~ LOT ,1 BLK. A
(,',~009
SCI.
"--~Cl,T...'g~//// '-(VOL. 2~,
, I
The undersigned, Reg~tered Profe~llonal Lond
Surveyor. hereby cettlfie~ that this plat of
survey acc~ratdy eet~ out the mete~ and
of the easemant tract, described.
Prof~_~Tonai Land Sur~y~r
I~M Nm= 1°-2~' m/oz/~O0~ ~
BEARING SYSTL'~ BASF,.D ON THE
FINAL PLAT OF 7H£ DUKE-
FREEPORT ADDI'BON. AN ADDITION
TO THE CITY OF: COPPELL, TEXAS
RECOROED IN VOLUME 2001065,
PAGE 057 OF' THE DFFD RECORDS
OF' DALL.A~ COUNTY, TEXAS.
RUBY ROAD
RIGHT-OF-WAY
ABANDONMENT
1.033 ACRE RIGHT-OF-WAY ABANDONMENT OF RUBY ROAD
John Vest Survey, AJ~ No. 1508,
City of Coppell, Dallas County, Texa~
DESCRIPTION, of a 1.033 sore tract of land situated in the John Vast Survey, AbstraotNo. 1508,
City of Coppell, Dallas County, Texas; said ~ being a portion of the same tract of land
dedicated as Ruby Road on Final Plat of the Duke-Freeport Addition, an addition to lite City of
Coppell, Texas according to the plat recorded in Volume 2001065, Page 37 of the Deed Records
of Dallas County. Texas; said 1.033 acre tract being more particularly described as follows;
BEGINNING, at a 1/2-inoh iron rod with "Pacheco Koch" cap found in the proposed south dght-of-
way line of Ruby Road (a variable width public right-of-way); said point being in a north line Lot 1,
Block A of said Duke-Freeport Addition; said point being South 89 degrees, 32 minutes, 47
seconds East, a distance of 28.45 from Ihs intersection of the said south right-of-way line of Ruby
Road and the east right-of-way line of a right turn lane of Freeport Parkway;
THENCE, South 89 degrees, 32 minutes, 47 seconds East, along the proposed sou~, right-of-
way line of Ruby Road, a distance of 100.00 feet to e point for angle point;
THENCE, South 89 degrees, 06 minutes, 00 seconds East, along the proposed south line of
Ruby to a point for corner; said point being in a northeast line of said Duke-Freeport Addition;
said paint also being In a southwest line of a t~act of land described in deed to the City Of Coppell,
Texas recorded in Volume 2000242. Page 6802 of the Deed Records of Dallas County, Texas
THENCE, South 75 degrees, 15 minutes, 12 seconds East, departing the proposed south line of
Ruby Road and along said southwest line of City of Coppell tract, a distance of 119.45 feat to a
point in the existing north line of said Ruby .Road; said point also being the west comer of Lot 3,
Block A of said Duke-Freeport Addition; said point also being the beginning of a non-tangenl
curve to the right whose cartier bears South 36 degrees. 06 minutes, 38 seconds West e distance
of 480.00 feet from said point;
THENCE, in a southeasterly direction along the southerly line of said Lot 3 and the preSent north
right-of-way line of Ruby Road with the said non-tangent cun~e to the left; through a central angle
of 00 degrees, 51 minutes, 17 seconds, an arc distance of 7.16 feet, on a chord bearing and
distance of South 53 degrees. 27 minutes, 44 seconds East, 7.16 feet to a point; said point also
being the beginning of a tangent reverse Gurve to the left whose center bears North 36 degrees,
57 minutes. 55 seconds East, a distance of 420.00 feet from said point;
THENCE, in a southeasterly direction along the southerly line of said Lot 3 and the present north
right-of-way line of Ruby Road with the said non-tangent curve to the left; through a ceRtrai angle
of 45 degrees. 22 minutes, 38 seconds, an ar= distance of 332.63 feet, on a cflord bearing end
distance of South 75 degrees, 43 minutes, 24 seconds East, 324.01 feet to a point; .said point
being the east comer of said Lot 3;
THENCE, South 75 degrees, 15 minutes, 12 seconds East, a distance of 65.87' feet toe 5/8-inch
iron rod found for angled point;
THENCE. North 73 degrees. 51 minutes, 12 seconds East, continuing with the south line of said
City of Coppell tract and said north line of Ruby Road. a distance of 421.23 feet to a point for
comer in the proposed south line of said Ruby Road;
THENCE, South 89 degrees, 06 minutes, 00 seconds East, del~artJng the said existing north line
of Ruby Road and along the said proposed south line of Ruby Road, a distance of 102.34 feet to
a point for comer in the existing south line oir Ruby Road; said point being in the north line of said
Lot 1;
Right-of-Way Abandonment of Ruby Road
John Vest Survey, Abstract No. 1508
Page 2
THENCE. westerly, along the existing south right-of-way line of Ruby Road, and Ihs said north
line of L~! 1, the following three calls;
South 73 degrees, 5t minutes, 12 seconds West, a distance of 519.07 feet to a point at
the beginning of a curve to the dght whose center bears North 15 degrees. 08 minutes,
48 seconds West, a distance of 480.00 feet from ssid point;
In a westerly direction, along said tangent curve, through a central angle of 53 degrees,
06 minutes. 43 seconds, an arc distance of 444.96 feel, on a chord bearing and distance
of North 79 degrees, 35 minutes, 27 seconds West, 429.19 feet to a point of reverse
curvature to I/~e left whose center bears Soulh 36 degrees, 57 minutes. 55 seconds
West, a distance of 420.00 feet from said point;
In a westerly direction, along said reverse curve to the left, through a centml:,angle of 36
degrees, 30 minutes, 42 seconds, an arc distance of 267.64 feet, on a chord bearing and
distance of North 71 degrees. 17 minutes, 26 seconds West, 263.14 feet to a the POINT
OF BEGINNING;
CONTAINING, 45,009 square feet or 1.033 acres of land, mere o~ less-
E Date
-I R,P.I. . .
Koch Consulting Engineers, Inc.
Cenfral Expw~. # t 000, Dallas TX 75206
235-3031
EXHIBIT B
FORM OF ESCROW AGREEMENT
This Escrow Agreement (the "Agreement"), is entered into this ~L.~____ day of(f,z~_~, 2002,
ALLEGIANCE TITLE COMPANY ("ALLEGIANCE"),~Hrof'¢~#
among
("SELLER"),
andT~a ~ ,t,~, ~ ("~BUYER").
WITNESSETH:
WHEREAS, Seller and Buyer have entered into that certain Real Estate Purchase Agreement (the
"Purchase Agreement") dated as of ]~-",.5"- t$ ~.. , for the sale and purchase of that certain real property
described therein; the Purchase Agreement is attached hereto as Exhibit A and by this reference made a part
hereof, and all terms used but not defined herein shall have the meanings given to such terms in the
Purchase Agreement; and
WHEREAS, Buyer and Seller desire to have Allegiance hold the Earnest Money in escrow, as
required by the Purchase Agreement and pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and upon and subject to the
terms, provisions and conditions hereinafter set forth, ALLEGIANCE, SELLER and BUYER hereby
agree as follows:
Receipt of Escrowed Fund. ALLEGIANCE hereby acknowledges receipt from BUYER of the
Escrowed Fund and agrees to hold and disburse the same in strict accordance with the provisions
of this Agreement.
Disbursement of Escrowed Fund. The Escrowed Fund will be disbursed by ALLEGIANCE upon
J
Any excess_funds remaining after the disbursement called for above has been made shall be
payable to ~'o~/,t C .
!
Interest. Insert as appropriate.
Liabilities of ALLEGIANCE TITLE COMPANY. ALLEGIANCE shall be liable only to hold
the Escrowed Fund received herewith and to deliver same to persons or entities named herein in
accordance with the provisions of this Agreement and any amendments hereto. It is being
expressly understood that by acceptance hereof ALLEGIANCE is acting in the capacity of a
Earnest Moneyory only and shall not be liable or responsible to anyone for any damages, losses,
or expenses unless same shall be caused by its gross negligence or willful malfeasance.
ALLEGIANCE shall not be bound in any way by any other contract or agreement between
SELLER and BUYER whether it has knowledge of any such contract or agreement or of its
terms or conditions.
13
Modification and Termination. This Agreement shall not be modified, revoked, released or
terminated except upon the mutual consent of SELLER, BUYER and ALLEGIANCE given in
writing and delivered to ALLEGIANCE such parties subject to the provisions of Paragraph 9
hereofi
Resignation of ALLEGIANCE. Should, at any time, any attempt be made to modify this
Agreement in a manner that would increase the duties and responsibilities of ALLEGIANCE
TITLE COMPANY or to modify this Agreement in any manner that ALLEGIANCE TITLE
COMPANY shall deem undesirable, or at any other time, ALLEGIANCE TITLE COMPANY
may resign by notifying the parties hereto in writing, by certified mail to their respective
addresses set forth below; and until (I) the acceptance by a successor as escrow agent as shall be
appointed by such parties; or (ii) fifteen (15) days following the date upon which notice was
mailed, whichever occurs sooner, ALLEGIANCE's only remaining obligation shall be to perform
its duties hereunder in accordance with the terms of this agreement.
Disagreement. Should any controversy arise between the parties with respect to this Agreement
or with respect to the right to receive any portion of the Escrowed Fund, or should
ALLEGIANCE in its sole discretion, deem it desirable, even in the absence of such controversy,
ALLEGIANCE shall have the right to institute a bill of interpleader in any court of competent
jurisdiction to determine the rights of the parties, or ALLEGIANCE may, in either of such
events, refuse to take any action to deliver or dispose of the Escrowed Fund, having the right to
hold the same without any right of obligation to deliver the same until it has been served with a
judgement properly instructing ALLEGIANCE as to the disposition of such Escrowed Fund.
ALLEGIANCE may act upon and dispose of the Escrowed Fund as provided in any such
judgement, even though it is party to the suit. Should a bill of interpleader be instituted and
ALLEGIANCE becomes involved in litigation in any manner whosoever on account of this
Agreement, the parties hereto agree, and bind their heirs, legal representatives, successors, and
assigns, to pay ALLEGIANCE's reasonable attorney's fees incurred and any other reasonable
disbursements, expenses, losses, costs, and damages in connection with or arising from such
litigation. ALLEGIANCE shall have no obligation to take any legal action in connection with
this Agreement or towards its enforcement, or to appear in, prosecute, or defend any action or
legal proceeding which would or might involve it in any cost, expense, loss or liability, unless
security and indemnity shall be furnished.
Binding Effect. This Agreement contains the entire understanding between and among the
parties hereto, and shall be binding upon and insure to the benefit of such parties, and subject to
its terms, their respective successors, heirs, assigns and legal representatives.
Governing Laws. This Agreement is being executed and delivered in and shall be governed by
and construed and enforced in accordance with the laws of the State of Texas.
14
10.
Notices. Any notices required or permitted to be given hereunder shall be given by certified or
registered mail, return receipt requested, to the following addresses or to such other single
address as any party hereto shall notify the others:
ALLEGIANCE TITLE COMPANY
2100 McKinney Avenue, Suite 1200
Dallas, T?xas,75201
Attn: ,4~.rlh_ ~ .
The notice addresses for Seller and Buyer shall be as set forth in the Purchase Agreement.
ALLEGIANCE:
Title~y k~. 0 /~
SELLER:
CITY OF~TEXAS
By: J~lVitt, City Manager
ATTEST/
· Ei¥~y ~,~,, City Secretary '
APPRO~' ,~'t~,~
By: R~b~. H/a~, C~ty/Att o~mey
Signatures continued on following page
15
BUYER:
TEXAS DUGAN LIMITED PARTNERSHIP, a
Delaware limited partnership
By:
DUGAN GENERAL PARTNER LLC, a
Delaware limited liability company, its general partner
By:
DUGAN TEXAS LLC, a Delaware limited
liability company, its sole member
By:
DUKE REALTY LIMITED PARTNERSHIP, an
Indiana limited partnership, its Manager
By:
DUKE REALTY CORPORATION, an
Indiana corporation, its general partner
Je~t~e¥~.~l'urner
SV Vice President
16
D' 'ke
November 18, 2002
Ms. Paula Crocker
Department of Engineering & Public Works
City of Coppell
255 Parkway Boulevard
Coppell, TX 75019
Re: Executed Originals of Ruby Road Purchase Agreement
Dear Paula:
Please fred enclosed three (3) executed originals of the Ruby Road Purchase Agreement. Comments requested
by Ken Griffin in his 10/31/02 e-mail to me have been incorporated in the document. These should be ready for
signature by City Manager Jim Witt. We will appreciate receiving a fully executed version when one is ready.
If you have any questions or comments, please call me at (972) 361-6714.
Thank you for your assistance with this matter.
Sincerely,
Brook Barefoot cI it
Development Services Manager
- /~ - 5495 Belt Line Road Atlanta
v Suite 360 Chicago
Dallas, TX 75254 Cincinnati
972.361.6700 Cleveland
www. dukerealty, com Columbus
Dallas
Indianapolis
Minneapolis
Nashville
Orlando
Raleigh
St. Louis
Tampa