Loading...
ST9502-CS 821230STATE OF TEXAS ) ) COUNTY OF DALLAS ) THIS CONTRACT OF SALE ("Agreement") is made by and between the PARKS OF COPPELL JOINT VENTURE II (hereinafter "Owner") and the CITY OF COPPELL, a municipal corporation and political subdivision of the State of Texas (hereinafter "City") upon the terms and conditions set forth herein. ARTICLE I DEFINITIONS The following terms shall have the meaning set forth unless the context clearly requires otherwise: 'Property" - The approximately 766 acres of land owned by Owner located within the City, as more particularly described in the attached Exhibit "A", which is incorporated herein by reference. "Municipal Center Site" - The approximately 8 acres of land located within the Property, as more particularly described in the attached Exhibit "B", which is incorporated herein by reference. "Park Site" - The approximately 164.9 acres of land located within the Property, as more particularly described in the attached Exhibit "C", which is incorporated herein by reference. "Zoning Plan" - The zoning for t~e Property, approved by the City Counci~ of the City on June 22, 1982, and evidenced by Ordinance No. 204-~-16, dated July 27, 1982, as more particularly set forth in the attached Exhibit "D", which is incorporated herein by reference. "ZOning Ordinance" - Ordinance No. 204, as amended, as adopted by the City of Coppeli. "Sub-Division Ordinance" - Ordinance No. 185, as amended, as adopted by the City of Coppell. ARTICLE II PURCHASE AND SALE Owner hereby agrees to convey and City hereby agrees to purchase the Municipal Center Site and Phase I (hereinafter designated) of the Park Site, together with all and singular the rights and appurtenances pertaining thereto, in accordance with the terms of this Agreement, it being understood that Owner is simultaneously-granting to City options to purchase the balance of the Park Site (Phases II and III thereof hereinafter designated) under separate option agreements of even date herewith. ARTICLE III PURCHASE PRICE A. Municipal Center Site. The purchase price for the Municipal Center Site shall be Three Hundred Sixty-One Thousand Two Hundred Ninety-Two and No/100 Dollars ($361,292.00). The number of gross square feet has been determined by survey as provided in Article VI hereinafter. The purchase price for the Municipal Center Site shall be paid by City to Owner on the Closing Date, as hereinafter defined, in cash or by cashier's check payable to the order of Owner. B. Park Site Phase I. The purchase pric~ for Phase I of the Park Site shall be Two Hundred Thirty-Three Thousand Seven Hundred Fifty and No/100 Dollars (~233,750.00) for the approximately 51.34 acres designated "Phase I" on Exhibit The purchase price for Phase I of the Park Site shall be paid in cash or by cashier's check payable to the order of Owner. ARTICLE IV CONDITIONS PRECEDENT TO OBLIGATIONS BY O~ER The obligation of Owner to consummate this Agreement shall, at the option of Owner, be subject to the following conditions precedent, any or all of which may We waived in whole or in part by Owner in its sole discretion. It is agreed, however, that City shall perform any particular waived condition following Closing upon Owner's request, any such item being a covenant which shall survive closing. i. The Zoning Plan shall be in full force and effect on the Closing Date. 2. The City Council of the City shall continue to agree that the prbper interpretation of the Sub-Division Ordinance with respect to the Property shall allow for the Property to be developed as follows, it being agreed that such interpretation and the resulting application of the Sub-Division Ordinance is the normal and reasonable course in light of all relevant circumstances: (a) No perimeter alleys shall be required between developments in different zoning classifications; 5A~ (b) Residential lots may front on Moore, Deforest, Lodge, Beartz, Sandy Lake and Denton Tap Roads and Parkway Boulevard, provided that rear access driveways are provided for such lots; (c) Moore, Deforest, Lodge and Heartz Roads and Parkway Boulevard shall have sixty foot (60') rights-of-way with forty-four foot (44') wide paving, provide8 that Parkway Boulevard shall be a divided thoroughfare from Denton Tap Road to Heartz Road with two twenty-four foot (24') paving sections in seventy-four feet (74') Of right-of-way; (d) On Moore, Deforest, Heartz and Lodge Roads and Parkway Boulevard, paving of only twenty-four feet (24') in width shall be required until such time as a final plat is filed of record for the property on the opposite side of such road; -2- (e) Denton Tap add Sandy Lake Roads shall have one hundred twenty foot (!20') rights-of-way, provided neither Owner nor its successors or assigns shall be required to construct, grade, pave or provide drainage for, or be specially assessed for the construction, grading, paving or draining, of such roads; (f) Sidewalks shall not be required to be constructed until such time as a building permit is issued for a particular lot or parcel; at such time, the sidewalk may be constructed at the street curb line; (g) Funds normally escrowed or used for completion of perimeter streets upon approval of a final plat may be used to build other collector streets in the Property, provided that Owner enters into an agreement at the time to replace such funds when a subsequent tract within the Property obtains final plat approval. The deferral of the following perimeter street escrow or construction requirements and the foilOwing replacement substitution is acceptable to the City. Other deferrals and replacements requested by Owner will be reviewed by the City on an individual basis for approval, such approval to not be unreasonably withheld. (i) Deforest Road adjacent to the east side of Tract !7 - to be deferred at the platting of the approximate south one-half (!/2) of Tract 17 and to be replaced with the platting of the remainder of Tract (ii) Lodge Road adjacent to the west side of Tract ll - to.be deferred at the platting of Tract I1 and to be replaced with the platting of Tract 9. (iii) Moore Road adjacent to the west side of Tract 17 - to be deferred at the platting of Tract 17 and to be replaced with the platting of Tract 10. (iv) Deforest Road adjacent to the east side of Tract 15 - to be deferred at the platting of Tract 15 and to be replaced at the platting of Tract 4 (except for Parkway Boulevard right-of-way). (v) Deforest Road adjacent to the east side of Tract 14 - to be deferred at the platting of Tract !4 and to be replaced with the platting of Tract 6 (except for Parkway Boulevard right-of-way). (vi) Owner may substitute other tracts within the Property for any "replacement" tract provided Owner can reasonably demonstrate to the City that the substitute tract has equal or better development potential as the tract for which it is substituted. (h) Enclosed storm sewers shall be provided by Owner in all areas where the quantity of the accumulated storm runoff does not exceed the capacity of a thirty-six inch (36") diameter reinforced concrete pipe on the maximum available slope, as determined by Owner's engineers; where such capacity would be exceeded, open drainage channels may -3- De constructed at Owner's option for the colte~tor. channe!s in such areas within the Property; (i) Consent to borrow from or fill areas within any designated floodway will not be unreasonably withheld by the City; (j) The electrical distribution system shall be permitted to be overhead along Sandy Lake, Denton Tap, Heartz, Moore, Lodge and Deforest Roads and Parkway Boulevard and around the perimeter of each separately numbered zoning tract; within each separately numbered zoning tract, the electrical distribution system shall be underground except as provided above; (k) Filing of a final plat for an area shall constitute acceptance by the City of the streets for maintenance within such areas. It is agreed, however, that Owner and City shall not cause to be filed any previously approved plat until such streets have been constructed in accordance with the city specifications and accepted by the City of Coppall for maintenance as provided in the Subdivision Ordinance. (I) The one-time Park Fee normally imposed by the City shall apply to the Property, provided, however, any Park Fee or similar charge imposed by the City shall not exceed Five Hundred Dollars (S500.00) for any net acre within the Property not conveyed to City pursuant hereto. Proceeds of any such fee shall be used by City either to make payments on the Note or to develop the Park Site. Any such fee due by Owner with respect to the first phase of development by Owner within the Proper~y shall be payable at such time as Owner receives final approval of its second plat submitted for.an area within the Property; and (m)"' Owner shall not be required to build water and sanitary sewer lines with the construction of Parkway Boulevard. Those lines to be located in the Parkway Boulevard right-of-way shall be constructed when and as those tracts adjacent to Parkway Boulevard are developed. 3. The City Council of the City shall have taken appropriate steps, including the adoption of such ordinances, if any should be necessary, in order that: (a) Owner will not be required to participate in any manner in the construction of an extension of Moore Road north of the floodway line. (b) The City will have abandoned Lodge Road along the southern boundary of Tract 9 as shown on the Zoning Plan; (c) The City will have approved a master drainage plan for the Property prepared by Threadgill-Dowdy & Associates, Inc., which will include the location of any fill or borrow areas needed for restoration of mined areas and the location of any berm that may be proposed to be constructed; (d) The City will have granted its consent to the use of fill or borrow areas located on the Park Site or elsewhere as may be specified by Threadgill-Dowdy & Associates, Inc.; and -4- (e) The City will have agreed to accept water detention areas as shown on the master drainage plan for maintenance purposes. ARTICLE V ADDITIONAL AGREEMENTS In consideration of the mutual undertakings set out in this Article V, and as additional consideration for the purchase and sale of the Municipal Center Site and said Phase I, and the granting of the options referenced in Article II above, Owner and City covenant and agree as follows, it being understood that such covenants and agreements are normal and reasonable provisions in light of all the circumstances: 1. The City shall pay its pro rata share of all utilities, paving, culverts, bridges, drainage, and other actual costs of improvements constructed adjacent to or that benefit the Municipal Center Site or Park Site. Attached as Exhibit "E" is a preliminary estimate by Threadgill-Dowdy & Associates, Inc., consulting engineers, of City's pro rata (see items A, C and D thereof) share of Parkway Boulevard adjacent to the Municipal Center Site, it being agreed that actual costs may vary substantially from Exhibit E. City's pro rata share shall be payable within fifteen (15) days after certification from-0wner's engineer that all such improvements or parts thereof have been completed to the standards of the City of CopFell or construction draws have been appropriately certified. Owner agrees that City may construct the north one-half of Parkway Boulevard adjacent to the Park Site subsequent to Owner's construction of the South one-half of Parkway Boulevard, and City agrees to complete construction of the North one-half of Parkway Blvd. no later than three (3) years following closing. All street rights-of-way around the perimeterof such sites shall be located one-half on such sites. The City shall dedicate such rights-of-way on or before the written request of Owner to City. 2. The City will not unreasonably deny permits requested by Owner for the burning of vegetation, brush, and trees cleared from the Property. 3. In areas of the Property zoned Multi-Family 2 in accordance with the Zoning Plan, a courtyard area and swimming pool for the private use of'the occupants of those projects will be provided; 4. A merchants' association with agreement of Owner, shall maintain any landscaping adjacent to the proposed Main Street as shown on the Zoning Plan for a period of ten (10) years after cons:ruction of Main Street commences; provided that such area shall be dedicated to the public, that the City will make water for such maintenance purposes. available free of any and all charges, cost or expense, and that the City will be responsible for maintenance after such ten (10) year period; 5. If the City should ever act to dissolve or acquire the assets of the Coppell Municipal Utility District No. 1 ("C_MUD"), it will assume and make payment, at maturity, Of any outstanding Bond Anticipation Notes issued to Owner by such utility district and honor any -5- agreements between Owner and CM~ by assuming ~ny . outstanding obligations or contracts of the C_MUD made with the Owner. 6. The Municipal Center Site and Park Site shall be used by the City in accord with the zoning of such sites under the Zoning Plan and the City shall not change the Zoning Plan with respect to such sites. All use and construction on such sites shall be subject to the same restrictive covenants as are placed on parts of the Property toned Town Center, including the requirement of plan approval by any architectural review board, or any similar board, established for areas within the Property adjacent to the Municipal Center Site. 7. Owner acquired the Property for investment purposes and desires Zo maintain an investment in real estate following conveyance of %he relevant parts of the Property =o City. To this end, Owner desires to effect a tax deferred, like-kind exchange pursuant to Section 103! of the Internal Revenue Code of 1954, as amended, and in connection therewith, City agrees to cooperate with Owner so long as City shall not become subject to monetary obligations or monetary liabilities greater than those contained in this Contract, and Owner does hereby indemnify and hold City harmless from and against any and all liability arising under, resulting from or in connection with the exchange contemplated by Owner. Without limiting Owner's general rights as herein stated, Owner shall have certain specific rights to effect an exchange transaction under this Contract. At any time before the Closing Date, Owner shall have the right to elect tO make this an exchange transaction rather than a sale transaction by giving City written notice to that effect. If Owner elects to make ~his an exchange transaction, City shall make a good faith ef~rt to purchase, on terms and conditions reasonably determined by Owner, one or more parcels of-real property -to be designated by Seller (the "Exchange Property"). Any contract City may enter into for the Exchange Property shall be freely assignable to Owner, without consent, by City and shall provide that City has no liability thereunder except for any earnest money which may be required to be deposited thereunder. In the event the seller of the Exchange Property alleges any default thereunder, 'City will have the right to assign, and Owner will assume and release City from any obligations and liabilities arising under the contract for the E~xchange Property, in which event an amount equal to the amount of any earnest money deposited by City for the purchase of the Exchange Property shall be immediately paid by Owner to City. The total cost (including prorations and normal ClOSing COSTS) tO City Of acquiring and holding the Exchange Property shall not exceed the applicable purchase prices as set forth herein. On the Closing Date, City shall transfer the Exchange Property to Owner by Special Warranty Deed in exchange for. those portions of the Property to be conveyed pursuant hereto and shall remit any portion of such purchase prices which was not expended in acquiring or holding the Exchange Property. In the event that the Exchange Property has not been located on the Closing Date, Owner may elect to convey the appropriate portions of the Property to City pursuant to a deferred "Starker" exchange- In such event, Owner, on the Closing -6- Date, shall corvey or cause such portions of the Property to be conveyed to City, and all or part of the aforesaid purchase prices, at Owner's option, shall be applied in connection with such deferred exchange to acquire the Exchange Property on such basis as Owner may direct. 8. City acknowledges that the Park Site and 'Municipal Center Site are being acquired in an undeveloped status and are within the 100 year Flood Plain as established by the Federal ~mergency Management Agency and/or the U.S. Corp of Engineers and are subject to inundation of water Irom time to time. City agrees to use all excavation material from the Park Site (except marketable gravel deposits) first for filling areas of the Park Site and Municipal Center Site as designated by Owner from time to time. Owner shall have the right to select in its sole discretion the method of future flood control to .be utilized on the Property (whether by fill, levee system, ~r a combination thereof or any other feasible metbed) and City agrees that its flood control method employed for the Park Site and Municipal Center Site shall be consistent with the method used for the Property as determined by Owner. 9. Owner agrees to construct Parkway Boulevard from Denton Tap Road to Heartz Road, and to commence such construction within one (1) year of Closing. 10. City agrees to build, at its cost, a sixteen inch (16") water line along the east side of Denton Tap Road ~rom Sandy Lake Road to Parkway Boulevard to provide water service to the Park Site and Municipal Center Site, and City agrees to complete construction of such water line prior to Owner's completion of utilities to be constructed in Parkway Boulevard as required by paragraph 9 immediately above. A preliminary estimate of the cost of such water line is set'f~}rth in item B of Exhibit E attached hereto. ARTICLE VI SURVEYS The Owner has delivered to City, at its cost, perimeter surveys of the Municipal Center Site and Phases I, II and III of the Park Site. Such surveys, which are acceptable to City, state the gross number of square feet in the Municipal Center Site and the gross number of acres in each of Phase I, II and III of ~he Park Site, including certain areas to be dedicated by ~he City as rights-of-way pursuant to Article V above. If the closing of %he purchase of such sites fails to occur for any reason, the City shall promptly reimburse Owner for the cost of such surveys. ARTICLE Vii MODIFICATION OF LIENS The obligations.of Owner to consummate this Agreement is expressly'subject to Owner obtaining modifications of the release provisions contained in the Deeds of Trust affecting the Municipal Center Site and Park Site satisfactory to it in order that it can convey such sites in accordance with this Agreement. Owner shall use all reasonable effort to obtain such modifications. ARTICLE VIII TITLE POLICY Within fifteen (15) days after City executes and delivers this Agreement, Owner, at Owner's sole cost and expense, shall cause to be delivered to City an Owner's Title Policy Co~umitment (hereinafter the "Commi=ment") issued by Chicago Title Insurance Company, 2001 Bryan Tower, Dallas, Texas (hereinafter the "Title Company") and accompanied by certified copies of all recorded documents relating to restrictions, easements and other matters affecting the Municipal Center Site and Phase I of the Park Site. City shall give Owner written notice on or before the expiration of two (2) days after it receives the Conunitment and said copies of documents, if any encumbrances listed in the Commitment are not satisfactory to City. In the event City gives notice that any encumbrances are not satisfactory, Owner may undertake to eliminate or modify. all such unacceptable matters to the reasonable satisfaction of City. In the event Owner is unable or unwilling to do so within one (1) day after receipt of such written notice, City may, at its option, terminate this Agreement, in which event neither party hereto shall have any further obligation or liability hereunder. If such notice is not given by City to Owner, the encumbrances shall be deemed to be acceptable and any objection thereto shall be deemed to be waived for all purposes. Notwithstanding anything herein to ~he contrary, eXiSting deed of trust liens and utility easements shall not be the subject of objection by City. ARTICLE IX CLOSING The closing shall be held at the office of the Title Company at 10:00 A.M. on December 31, 1982, unless held upon an earlier date agreed upon by City and Owner (the "Closing Date"). On the Closing Date, Owner shall: 1. Deliver to City duly executed and acknowledged Special Warranty Deeds in forms attached hereto as Exhibits .~- , G and I~ for the Municipal Center Site and Phase I of the Park Site, each conveying good and marketable title in fee simple, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except those approved by City; 2. Cause to be issued to City an Owner's Title Policy in the amount of the total purchase price insuring such title; and 3. Deliver'to City possession of the Municipal Center Site and Phase I of the Park Site. On the Cio~iDg Date, City shall pay in cash the purchase price to Owner-as set forth in Article III hereof. General real estate taxes for the then current year relating to the Municipal Center Site and Phase I of the Park Site shall be prorated as of the Closing Date and shall be adjusted in cash on the Closing Date. If the Closing Date shall occur before the tax rate is fixed for the then current year, the apportionment of taxes shall be upon the basis of the tax rate for the then preceding year applied to the latest -8- assessed valuation. If the Title Company has not made a final determination of the ad valorem taxes due, then Owner shall remain obligated to pay the correct and final taxes following closing. Other costs of closing and consummating the sale and purchase shall be borne and paid as follows: (a) Owner's Title Policy shall be obtained and paid by Owner; (b) Escrow fee, if any, shall be paid by City; (c) Filing Fees shall be paid by City; and (d) Owner and City shall each pay their own attorneys' fees. ARTICLE X CONTINUING AGREEMENT The agreements and covenants set forth in this Agreement are prospective in nature and shall not be merged into the closing of the conveyances contemplated, but shall survive such closing. The City acknowledges that the Owner intends to retain and develop for purposes of leasing to tenants and for investment the balance of the Property not to be conveyed to City pursuant hereto or the aforementioned option agreements and that consequently the Owner would not have agreed to sell the Municipal Center Site and Phase I of the Park Site but for the agreements contained in this Agreement, including without limitation, the provisions of Articles IV and V and this Article X. Therefore, City hereby agrees that it will not, without the written consent of Owner or the owner of the part of the Property that would be affected, through the adoption of new or amended ordinances or any other method,' deny or alter Owner's right, and the right of subsequent owners of any part of the Property, to develop the Property in accordance with the Zoning Plan, the continuing interpretation of the Sub-Division Ordinance, and the agreements contained in Articles IV and V hereof, and to enforce any other agreements made by the City, for a twenty (20) year period commencing on the date of execution of this Agreement by Owner. Should the City do so, or directly or indirectly act or fail to act in a manner which would impair the position or rights of Owner contemplated by this Article X, Owner shall have the right to repurchase Phase I of the Park Site for an amount equal to the purchase price paid by City to Owner, which right shall be set forth in the Special Warranty Deed to be delivered by Owner pursuant to Article IX hereinabove and in a short form recordable memorandum of this Contract of Sale to be executed and delivered at Closing in form satisfactory to Owner. ARTICLE XI BREACH BY OWNER If Owner fails fully and timely to perform any of its obligations hereunder or fails to consummate the sale of the Municipal Center Site and Phase I of the Park Site for any reason, except City's default hereunder, or City or Owner's termination of this Agreement pursuant to the terms hereof, City's sole remedy is to enforce specific performance of this Agreement. ARTICLE XII BREACE EY CITY If City shall fail to consummate the purchase of the Municipal Center Site and Phase I of the Park Site, the conditions to City's obligation have been satisfied and City being in default and Owner not in default hereunder, Owner as its sole remedy may enforce specific performance of the City's obligations hereunder, except that Owner shall not have a right to enforce specific performance to require the City to purchase all or any part of the Municipal Center Site or Phase I of the Park Site. ARTICLE XIII MISCELLANEOUS Parties Bound· This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns, including all owners of any part of the Property.' Prior Agreements Superseded This Agreement and the aforementioned option agreements of even date herewith, constitute the sole and only agreements of the parties hereto and supersede'all prior understandings and written or oral agreements between the parties respecting the within subject matter. Time of the Essence Time is of the essence of this Agreement. EXECUTED AND DELIVERED By City on/Z-~(9 , 1982 Attest: EXECUTED AND DELIVERED By Owner on /D/~O , 1982 CITY": CItY 0F COPPELL ~' "OWNER": ~ PARKS OF COPPELL JOINT VENTURE II M rer