ST0701-AG080826
AGF:\D.\ REQLEST FOR:\1
TH[ CITV OF
DEPT: Engineering
COPPELL
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DATE: August 26, 2008
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D CONSENT
[2] REGULAR
ITEM TYPE: CONTRACT IBID or PROPOSAL
ITEM CAPTION:
Conslaer approval of a Purchase Agreement be:ween Pacific Realty Associates. LP (PacTrust) and the City of
Coppell for tr,e cons:ructlon of Southwestern Boulevard from the Denton Tap/Belt Line intersection to Coppell Road;
and aGtnoflzing Hie City Manager to sign and execute any necessary documents.
GOAL(S) 1.9]
EXECUTrVE SUMMARY:
Approval of the agreement will ailow for the reconstruction and widening of Southwestern Boulevard from the L1enton
Tap/Bel, Line I'ltersection to Coppell Road rcluding the Grapevine Creek bridge
FI~ANCIAL CO\lMENTS:
Funds are availClble ill the Street CIP ClCCOU'lts for thiS prOject (Series 2007).
RECOl\1\lENDED ACTION:
ACTION TAKEN BY COUNCIL:
Stoff recommends approvol of the agreement with PacTrust
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Motion to Approve
M - Peters
S - Hunt
Vote - 6-0
Franklin absent
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Purchase Agreement
COUNTY OF DALLAS
This Purchase Agreement (this "Agreement") is made by and among the City of Coppell,
Texas (the "City") and PW Commerce Center, LP, a Texas limited partnership (the "Company"),
acting by and through their respective authorized officers.
WITNESSETH:
WHEREAS, the Company owns the real property described 111 Exhibit "A" (the
"Land"); and
WHEREAS, The Prentiss/Copley Investment Group, the Company's predecessor in
interest as owner of the Land, and the City have previously entered into a certain Developer's
Agreement for Southwestern Boulevard dated November 11, 1993 (the "Prior Development
Agreement") relative to construction of portions of Southwestern Boulevard adjacent to the
Land;
WHEREAS, the Company and the City have mutually determined that it would promote
their respective interests if they terminated the Prior Development Agreement and the City
purchased from the Company a completed roadway consisting of Southwestern Boulevard from
Denton Tap/Beltline Road to South Coppell Road as described on Exhibit "B" (the "Project");
and
WHEREAS, the Company has agreed to sell, transfer and convey the Project to the City
upon completion thereof in accordance with the tenns and conditions set forth; and
WHEREAS, the City has issued certificates of obligation 2007 series in the principal
amount of $5.54 Million for the design and construction of the Project;
NOW THEREFORE, in consideration of the foregoing, and other valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
Article I
Term
The term of this Agreement shall begin on the last date of execution hereof ("Effective
Date") and continue until the Expiration Date, unless sooner terminated as provided herein.
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Article II
Definitions
Wherever used in this Agreement, the following terms shall have the meanings ascribed to
them:
"City" shall mean the City of Coppell, Texas acting by and through its City Manager, or
designee.
"City Acceptance" shall mean: (i) the Punch List Items have been completed; (ii) City
has been provided with "as-built" plans as required by City Ordinances; and (iii) the City has
been provided with a 2 year maintenance bond for each public improvement comprising the
Project.
"City Engineer" shall mean the city engineer for the City or designee.
"City Project" shall mean that portion of the Project consisting of the design and
construction of the improvement of Southwestern Boulevard from Grapevine Creek (including
the Bridge) to South Coppell Road.
"Commencement of Construction" shall mean that: (i) the Plans have been prepared and
all approvals thereof required from applicable governmental authorities have been obtained for
the Project; (ii) all necessary permits for construction of the Project pursuant to the respective
Plans therefore have been issued by all applicable governmental authorities; (iii) all franchise
utilities or public utilities affected by the Project have been relocated by the respective utility
providers; and (iv) grading of the portion of the Land required for the Project has commenced.
"Company" shall mean PW Commerce Center, LP, a Texas limited partnership, and its
permitted successors and assigns.
"Company Project" shall mean that portion of the Project as generally depicted in
Exhibit "8", consisting of the design and construction of: (i) the improvement of Southwestern
Boulevard from Denton Tap/Belt Line Road to Grapevine Creek, and (ii) the design,
construction and rerouting of the existing twenty-four inch (24") waterline that encroaches onto
the Land off of the Land in accordance with plans approved by the City (50% of the cost of
which is to be paid by each Party).
"Completion of Construction" shall mean that: (i) a certificate of substantial completion
has been issued by the general contractor(s) for the Project; and (ii) the City Acceptance has
been achieved for the Project.
"Effective Date" shall mean the last date of execution hereof.
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"Event of Bankruptcy or Insolvency" shall mean the dissolution or termination of a party's
existence as a going business, insolvency, appointment of receiver for any significant part of such
party's property and such appointment is not terminated within ninety (90) days after such
appointment is initially made, any general assignment for the benefit of creditors, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against such party
and such proceeding is not dismissed within ninety (90) days after the filing thereof.
"Expiration Date" shall mean the date that all parties have fully satisfied their respective
obligations herein.
"Force Majeure" means any contingency or cause beyond the reasonable control of a
party including, without limitation, acts of God or the public enemy, war, terrorism, riot, civil
commotion, insurrection, criminal acts by unrelated third parties, government or de facto
governmental action or delays (unless caused by acts or omissions of the party), adverse weather,
fires, explosions, floods, strikes, slowdowns or work stoppages.
"Impositions" shall mean all taxes, assessments, use and occupancy taxes, charges,
excises, license and permit fees, and other charges by public or governmental authority, general
and special, ordinary and extraordinary, foreseen and unforeseen, which are or may be assessed,
charged, levied, or imposed by any public or governmental authority on the Company and/or
affecting the Land.
"Land" shall mean the real property described in Exhibit "A".
"Material Breach" shall mean a breach of a material term or condition of this Agreement
as follows: (i) failure to construct the Project in substantial accordance with the Plans; (ii) failure
to timely cause Commencement of Construction or Completion of Construction of the Project;
(iii) work or construction delays for a period of 45 days or more with respect to the construction
of the Project not due to Force Majeure; and (iv) failure of the City to pay any installment of the
Purchase Price for the Project in accordance with the terms of this Agreement.
"Party, Parties" shall mean a reference to each of the City and Company.
"Permitted Exceptions" shall mean zoning laws, rules and regulations, the lien for current
taxes, the environmental condition and any easements or restrictions of record.
"Plans" shall mean the plans and specifications for design and construction of the Project, or
respective portion thereof, as approved by the City and the Company.
"Project" shall collectively mean the City Project, the Company Project and the Water
Line Proj ect, as described in Exhibit "B".
"Project Engineer" shall mean Halff & Associates, Inc. (Dave Littleton).
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'.Punch List Items" shall mean the list of items prepared by the City and Company, and
confirmed by the Project Engineer and/or Company's contractor and the City Engineer, which
remain to be completed in accordance with the respective Plans for the respective improvements
at the time of Substantial Completion.
"Purchase Price" shall mean the sum of: (i) the actual costs of design and construction of
the City Project, plus (ii) 50% of the actual costs of construction of the Water Line Project, not
to exceed $1,850,000, subject to adjustment as provided in Section 3.4 hereof.
"Substantially Complete" or "Substantial Completion" shall mean that stage by which the
construction of the Project is sufficiently complete in accordance with the Plans that the City can
enjoy the beneficial use of the Project for its intended purpose, exclusive of Punch List Items
even though minor miscellaneous work beyond punch list work and/or adjustments may be
required.
"Water Line Project" shall mean that portion of the Project consisting of the design,
construction and rerouting of the existing twenty-four inch (24") waterline that encroaches onto
the Land off of the Land in accordance with plans approved by the City and as generally
depicted in Exhibit "B", 50% of the cost of which is to be paid by each Party.
Article III
Project
3.1 Proiect. (a) For the consideration and upon and subject to the terms, provisions
and conditions hereinafter set forth in this Article, Company agrees to sell and convey (or cause
to be sold and conveyed) unto City, and City agrees to purchase from Company the Project and
the plans, specifications and warranties related thereto, it being agreed that Company shall own
such improvements until payment therefore is made by City in accordance with the terms of this
Article. The cost to design and construct the Company Project is to be paid solely by the
Company. The City shall purchase the City Project for the Purchase Price upon Completion of
Construction thereof which shall be paid to Company in accordance with the terms and
conditions of this Agreement. The Company shall design and construct the Water Line Project,
with each Party responsible for 50% of the costs thereof with the City's portion thereof to be
paid as a part of the Purchase Price.
(b) Sidewalks and other Non-Project items. The City will be responsible for: (i)
sidewalks required on north side of Southwestern Boulevard from Grapevine Creek to Belt Line
Road.; (ii) the design and construction, and removal, of a temporary road system to allow access
to Pinkerton Elementary once the Southwestern Boulevard Bridge has been removed; and (iii)
the removal and replacement of sewer system on the north side of Southwestern Boulevard
(identified as Line E in the Construction Documents) and that is not included in the Project.
3.2 Plans. The City shall, at its sole costs, cause the Plans to be prepared for the City
Project. The Company shall at its cost, cause the Plans to be prepared for the Company Project
and for the Water Line Project. The Company shall submit the Plans for the Company Project
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and the Water Line Project to the City Engineer for review and approval who shall have a period
of fifteen (15) business days to approve such plans (the "Plan Approval Period"). The City
Engineer shall be deemed to have approved the submitted plans unless it has provided written
notice to the Company to the contrary prior to the expiration of the Plan Review Approval
Period. If the City Engineer has objections to the plans, the City Engineer shall note such
objections in writing and the Company shall cause the Project Engineer to revise the plans to
address such objections and re-submit the plans to the City Engineer for approval (subject to the
same Plan Approval Period). This process shall continue until the City Engineer has approved
the plans or either Party has determined, acting in good faith, that the City Engineer objections
can not be addressed, in which case, either Party may, by written notice to the other, terminate
this Agreement.
3.3 Biddin2;.
(a) Solicitation of Bids. The Company shall, within the later of: (i) 30 days after the
Effective Date; and (ii) City approval of the Plans, cause a bid package, including the plans and
specifications for the Project to be prepared to be sent out to prospective bidders for the
performance of the Project. The bid package may include a request for bids on all or a portion of
the Project, but bidders shall be required to break out their respective bid between the City
Project, the Company Project and the Water Line Project. The Company shall provide a copy of
the proposed bid package including the plans and specifications to the City Engineer for
approval who shall have a period of ten (10) business days to approve such bid package (the
"Bid Package Approval Period"). The City Engineer shall be deemed to have approved the
submitted bid package unless it has provided written notice to the Company to the contrary prior
to the expiration of the Bid Package Approval Period. If the City Engineer has objections to the
bid package, the City Engineer shall note such objections in writing and the Company shall
cause the bid package to be revised to address such objections and re-submit the bid package to
the City Engineer for approval (subject to the same Bid Package Approval Period). This process
shall continue until the City Engineer has approved (or is deemed to have approved) the bid
package or either Party has determined, acting in good faith, that the City Engineer objections
can not be addressed, in which case, either Party may, by written notice to the other, terminate
this Agreement. Once the bid package is approved by the City Engineer, the Company shall
solicit at least three (3) competitive bids and/or competitive sealed proposals for the construction
of the Project for the review and approval by the City Engineer.
(b) Bid Review. The Company shall provide a copy of the bids to the City Engineer
for approval along with notification of the bid which the Company wishes to accept (the
"Recommended Bid"). The City Engineer shall have a period of ten (10) business days to
approve or reject the Recommended Bid (the "Bid Approval Period"). The City Engineer shall
be deemed to have approved the Recommended Bid unless it has provided written notice to the
Company to the contrary prior to the expiration of the Bid Approval Period. If the City Engineer
has objections to the Recommended Bid, the City Engineer shall note such objections in writing
and the Company and the City Engineer shall meet as promptly as possible thereafter to review
and discuss all bids. The Company may, after such meeting, ask the bidders to revise their bids
and re-submit bids to the Company and the City Engineer for approval. This process shall
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continue until the City Engineer has approved (or deemed to have approved) a Recommended
Bid or either Party has determined, acting in good faith, that a bid acceptable to the City cannot
be obtained. If either party determines that an acceptable bid cannot be obtained, then either
party may terminate this Agreement, in which event the Parties shall have no further duties or
obligations hereunder.
(c) Bid Award. Once a Recommended Bid has been approved (or deemed to have
been approved) by the Parties the Company shall award the construction contract(s) to the
approved bidder (the "Contract Award"). The Company shall enter into a construction
contract(s) for the Project with the approved bidder promptly thereafter (but not later than twenty
(20) business days after the Contract Award) for the construction of the Project.
3.4 Purchase Price. The Purchase Price is due and payable by the City to the
Company from lawful available funds of the City as set forth in this Section. In the event the
Contract Award for the City Project and 50% of the Water Line Project exceeds the amount of
the Purchase Price as set forth in Article II, the Purchase Price shall be increased to the amount
of the Contract Award approved by the City for such portions of the Project unless the Parties
agree otherwise in writing. For the purpose of securing the performance of the City under the
tem1S of this Section, the City shall deliver earnest money to the Company in the amount and on
the date set forth in the Installment Schedule attached as Exhibit "e" (the "Earnest Money"}.
Subject to the satisfaction of the conditions set forth in this Agreement, the Purchase Price less
the Earnest Money for the Project shall be paid by the City to the Company in installments as
construction of the Project progresses, in the amounts and in accordance with Exhibit "e". The
obligation of the City to make each installment payment of the Purchase Price is subject to the
prior occurrence of each of the following conditions:
(i) City shall have received from Company evidence reasonably satisfactory to the
City that the construction of the Project (through its applicable stage of completion) complies
with all applicable laws.
(ii) City shall have received from Company a cost breakdown reasonably satisfactory
to City showing the estimated total costs of constructing the Project free and clear of liens or
claims for material supplied and for labor services performed.
(iii) City shall have received from Company a copy of each contract and agreement
entered into between Company and any contractor pertaining to the design, construction and
completion of the Project, unless previously provided.
(iv) City shall have received an affidavit from the general contractor that has
furnished labor and/or materials in connection with the completed aspects of the Project that
such materials and labor and any suppliers and/or sub-contractor(s) have been paid for such
work, in a form acceptable to the City.
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(v) City shall have received a title report dated within five (5) days of the installment
payment date from the Title Company showing that no claim for mechanic's or materialmen's
liens has been filed against the Project.
(vi) The representations and warranties made by Company, as contained in this
Agreement, shall be true and correct in all material respects as of the date of each installment.
(vii) The covenants made by Company to City as contained in this Agreement shall
have been complied with in all material respects, except to the extent such compliance may be
limited by Force Majeure, the passage of time, or the Completion of Construction of the Project.
(viii) Company shall have delivered to City a report of any changes, replacements,
substitutions, additions or other modifications in the list of contractors and subcontractors.
(ix) City shall have received from Company a written request for payment of an
installment of the Purchase Price in a form that states the amount or percentage of the Project
work completed and that all work required at the stage of construction when the installment is
requested has been done.
(x) There shall be no Material Breach of this Agreement by Company.
(xi) The Project shall not be materially damaged or destroyed by Casualty.
(xii) Company shall execute and deliver (or cause to be executed and delivered) to
City a bill of sale reasonably acceptable to City, substantially in the form of Exhibit "D"
conveying to City the portions of the Project then constructed (it being agreed, however that
ownership of the Project then constructed shall automatically vest in the City upon payment of
the Purchase Price, without the necessity of any instrument). An amount equal to ten percent
(10%) of the Purchase Price shall be retained by City and shall be paid over by City to Company
as the final installment of the Purchase Price, provided that no lien claims are then filed and
remain un-bonded against the Project, when all of the following has occurred to the reasonable
satisfaction of City:
(A) Completion of Construction has occurred for the portion of the Project
then being conveyed.
(B) Company shall have delivered and assigned (or caused to be delivered and
assigned) to the City all warranties for the Project from contractors utilized in the
construction of the Project.
No payment of an installment of the Purchase Price shall be deemed an acceptance by the
City of the work theretofore done. City shall have no obligation to pay any installment of the
Purchase Price during the occurrence of a Material Breach of this Agreement on the pari of
Company, but the City may do so, provided however if the City elects to pay any such
installment, no such payment shall be deemed a waiver of any remedies City may have in respect
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to such breach. If the City does defer any installment of the Purchase Price pursuant to the
preceding sentence, such deferred installments of the Purchase Price shall be fully due and
payable at such time as such Material Breach has been cured or corrected by the Company.
3.5 Construction of Project.
(a) Commencement and Completion of Construction of Project The Company
agrees, subject to events of Force Majeure, to cause Commencement of Construction of the
Project, to occur on or before _sixty (60) days after the Contract Award and subject to events of
Force Majeure, to cause Completion of Construction of the Project to occur within 365 calendar
days thereafter.
(b) Substantial Completion. The Company will use good faith efforts to provide at
least thirty (30) business days prior written notice to the City of the date that the Company
reasonably expects the Project to be Substantially Complete. Upon receipt of written notification
from the Company that the Project is Substantially Complete, City shall notify the Company of
the date the City Engineer intends to make a walk-through inspection of the Project to determine
Punch List Items, such date to be within ten (10) business days after City's receipt of such
notice. A representative of the Company will accompany the City Engineer on the walk-through
inspection so as to mutually determine the Punch List Items to be completed or repaired by the
Company. The Company will complete all Punch List Items within twenty (20) business days
after the date of the walk-through inspection, subject to events of Force Majeure.
(c) Construction Meetine.s. The Company agrees to meet with City representatives
at least once per month to jointly review the progress of construction of the Project and to
discuss any other matters pertaining to the construction of the Project. The Company will keep
City reasonably informed as to the progress of the Project and agrees to meet with City upon
reasonable advance request to discuss the same. Furthermore, the Company will allow City
Engineer to inspect the Project at any time during business hours.
(d) Warranties. The Company agrees, as a part of the costs of construction, to
obtain and assign to City warranties from the Company's contractors, subcontractors and
suppliers providing labor and/or materials in connection with the Project; provided that such
assignment shall not prevent the Company from enforcing the same. Such warranties shall: (a)
be at least standard industry warranties from generally recognized contractors, subcontractors
and suppliers with respect to the Project; and (b) obligate the Company's contractors,
subcontractors and suppliers to repair all defects in the applicable portion of the Project for a
period of two (2) years following Completion of Construction.
(e) No Delay of Damae.es. In the event of delay not the fault of the City, then the
Company shall be entitled to an extension of time for the Completion of Construction of the
Project only and shall not be entitled to any additional payment from the City on account of such
delay.
(f) Casualty. Risk of loss due to casualty shall be borne by the Company until
Completion of Construction of the Project at such time said risk of loss due to casualty shall be
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borne by the City. During the term of this Agreement, the Company shall carry or cause to be
carried insurance in amounts sufficient to restore any of the Project damaged by casualty to
substantially the same condition they were in immediately prior to such casualty. The Company
shall, in any even, restore any of the Project damaged or destroyed by casualty as part of its
obligation to construct same.
3.6 General Requirements for Desh~n and Construction.
(a) Compliance of Plans. The Project shall be designed and constructed in
accordance with the Plans. The Company shall cause all necessary permits and approvals
required by the City and any applicable governmental authorities to be issued for the
construction of the Project.
(b) Compliance of Laws. The Company shall comply with all local and state laws and
regulations regarding the design and construction of the Project applicable to similar facilities
constructed by the City, including but not limited to any applicable requirement relating to
payment, performance and maintenance bonds. Upon Completion of Construction of the Project,
the Company shall provide the City with a final cost summary of all costs associated with the
design and construction of the Project, and provide proof that all amounts owing to contractors
and subcontractors have been paid in full evidenced by the customary affidavits executed by the
Company and/or its contractors.
(c) Bonds. The Company shall in connection with the construction of the Project
cause its contractors to provide performance and payment bond(s) for the construction of the
Project to ensure completion of such Project in accordance with Chapter 2253, Texas
Government Code, as amended in forms reasonably satisfactory to the City for the construction
of the Project to ensure Completion of Construction of such Project.
(d) NCTCOG Standards. Except as otherwise provided in this Agreement, the
design and construction of the Project shall be in accordance with the Standard Specifications for
Public Works Constructions published by the North Central Texas Council of Governments, as
amended, and as modified by the City, and to the extent applicable are hereby incorporated by
reference.
(e) Franchise Utilities. The Company and the City shall cooperate in obtaining all
necessary applications and approvals for franchise utilities that will be included in utility
easements as part of the Project and the City shall assist the Company in any efforts required to
expedite franchise utility approvals or coordinate franchise utility construction schedules with
the construction schedule for the Project. All delays due to construction schedules for franchise
utility suppliers shall be included as items of Force Majeure for all purposes hereunder.
(f) Materials Testinl!. Each party will pay the costs for material testing and special
inspections for its respective portion of the Project. The Company agrees to contract for testing
and inspections services on behalf of the Parties. The City agrees to reimburse the Company for
its share of the costs for testing and inspections for the City Project within thirty (30) days after
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receipt of a written invoice from the Company, which shall include such supporting
documentation as may be reasonably required by the City.
3.7 Representations. Warranties and Covenants. To induce City to enter into this
Agreement, and in addition to any other representatives, warranties and covenants of Company
contained herein, Company specifically represents, warrants and covenants the following to
City:
(a) Company covenants and agrees to cause the Project to be constructed in a
diligent, good and workmanlike manner, in substantial and material compliance with the Plans
and in compliance with all applicable construction ordinances and laws and using only new
materials of similar quality as customary in the industry.
(b) At such time as Company conveys the Project to the City, the Company will have
good and indefeasible title to such portions of the Project as are on parts of the Land so
conveyed, and shall quitclaim to the City all portions of the Project as are located on other
portions of land for which the City has obtained dedications of right-of-way or easements, all
conveyances being subject only to the Permitted Exceptions, and, to the best of Company's
knowledge, there will be no adverse or other parties in possession thereof or any part thereof
pursuant to any license, lease, or other right relating to the use or possession thereof or any part
thereof granted by the Company.
3.8 Indemnification by Company. CITY SHALL NOT BE LIABLE OR
RESPONSIBLE FOR, AND SHALL BE INDEMNIFIED, DEFENDED, HELD HARMLESS
AND RELEASED BY COMPANY FROM AND AGAINST ANY AND ALL SUITS,
ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY CHARACTER, TYPE,
OR DESCRIPTION, INCLUDING ALL REASONABLE EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON,
OR INJURY OR LOSS TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY
PERSON OR PERSONS, INCLUDING THE COMPANY, OR PROPERTY, ARISING OUT
OF, OR OCCASIONED BY THE PERFORMANCE OF COMPANY UNDER THIS
AGREEMENT. THE PROVISIONS OF THIS INDEMNIFICATION ARE SOLELY FOR THE
BENEFIT OF THE PARTIES HERETO AND NOT INTENDED TO CREATE OR GRANT
ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY OTHER PERSON OR
ENTITY. IT IS THE EXPRESSED INTENT OF THE PARTIES TO THIS AGREEMENT
THAT THE INDEMNITY PROVIDED FOR IN THIS AGREEMENT IS AN INDEMNITY
EXTENDED BY COMPANY TO INDEMNIFY AND PROTECT CITY FROM THE
CONSEQUENCES OF THE COMPANY'S NEGLIGENCE, WHETHER SUCH
NEGLIGENCE IS THE SOLE OR PARTIAL CAUSE OF ANY SUCH INJURY, DEATH, OR
DAMAGE.
3.9 Insurance. Throughout the term of this Agreement, Company shall, at its
expense, maintain (or cause to be maintained) in full force and effect, the following insurance:
(a) A policy of insurance for bodily injury, death and property damage insuring
CoppellllPac Trust Southwestern BlvdlPurchase Agreement - 10
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against all claims, demands or actions relating to the Company's performance of its obligations
pursuant to this Agreement with (1) a policy of comprehensive general liability (public)
insurance with a minimum combined single limit of not less than $1,000,000.00 per occurrence
for bodily injury and property damage with an aggregate of not less than $2,000,000.00; (2)
policy of automobile liability insurance covering any vehicles owned and/or operated by the
Company, its officers, agents, and employees, and used in the performance of its obligations
hereunder with a minimum of $1,000,000.00; and (3) statutory Worker's Compensation
Insurance covering all employees involved in the performance of its obligations hereunder.
Insurance covering all improvements located or being constructed on the Project site against loss
or damage from perils covered by an all risk or special form policy in amounts not less than
eighty (80%) percent of the full insurable value of the improvements included in the Project.
Construction liability insurance shall be maintained at all times when demolition, excavation, or
construction work is in progress on the Project site, with limits of not less than $100,000 for
property damage and $300,000 for one person and $1,000,000 for one accident for personal
injury and must protect City and Company against all liability for injury or damage to any person
or property in any way arising out of demolition, excavation, or construction work on the site of
the Project.
(b) All insurance and certificate( s) of insurance shall contain the following
provisions: (1) name the City, its officers, agents and employees as additional insureds as to all
applicable coverage with the exception of Workers Compensation Insurance; (2) provide for at
least thirty (30) days prior written notice to the City for cancellation, or non-renewal; (3) provide
for a waiver of subrogation against the City for injuries, including death, property damage, or
any other loss to the extent the same is covered by the proceeds of insurance.
(c) All insurance companies providing the required insurance shall be authorized to
transact business in Texas and rated at least "A" by AM Best or other equivalent rating service.
(d) A certificate of insurance evidencing the required insurance shall be submitted to
the City prior to Commencement of Construction.
(e) Without limiting any of the other obligations or liabilities of Company, the
Company shall require its general contractors, at the general contractor's own expense, to maintain
during the term of this Agreement, the required insurance including the required certificate and
policy conditions as stated herein.
3.10 Rieht-Of-\Vav. The City shall, at its sole cost and expense, secure all right-of-
way dedications and easements required for construction of the City Project, other than right-of-
way dedications for the portion of the Project required from the Land, which shall be granted by
the Company to the City at no charge. The Company shall be required to dedicate and convey
without cost to the City such easements and right-of-way as are necessary for the portions of the
Project constructed on the Land. The City shall be responsible for the acquisition of such
easements and right-of-way as are necessary for the Project that are constructed off-site of the
Land.
Coppelll/Pac Trust Southwestern Blvd/Purchase Agreement - II
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3.11 Waiver of Fees and Chan:?:es.
(a) Permit and Inspection Fees. The City shall waive all permit fees, inspection
fees and similar charges and fees with respect to the Project.
(b) Roadwav Impact Fees. The City agrees to waive or provide a credit against
roadway impact fees assessed against the Land, if any, pursuant to the City Subdivision
Ordinance.
(c) Water/Waste Water Impact Fees. The City agrees to waive or provide a credit
against water/waste water impact fees assessed against the Land, if any, for the 12 inch water
line being constructed not to exceed the Company's costs to design and construct the 12 inch
water line less the City portion of the cost of the 12 inch water line, if approved by the City
Council by separate action.
Article IV
Termination
4.1 This Agreement terminates upon anyone or more of the following events:
(a) upon mutual written agreement of the parties;
(b) upon Expiration Date;
(c) by either Party, if the other Party has committed a Material Breach of this
Agreement and such Material Breach is not cured within sixty (60) days after written notice
thereof; provided that if the Material Breach cannot reasonably be cured within a sixty (60) day
period and the defaulting Party has diligently pursued such remedies as shall be reasonably
necessary to cure the default, then the non-defaulting Party sha1l extend the period in which the
default must be cured for an additional sixty (60) days; and
(d) by City, if Company suffers an Event of Bankruptcy or Insolvency.
4.2 In the event the Agreement is terminated by the City pursuant to Section 4.I(c) or
(d), the City may seek specific performance, and/or actual damages incurred as a result of such
uncured default by the Company.
4.3 In the event the Agreement is terminated by the Company pursuant to Section 4.1(c)
the Company may seek specific performance, and/or actual damages incurred as a result of such
uncured default by the City.
4.4 Ri2ht of Offset. The City may at its option, offset any amounts due and payable
under this Agreement against any debt (including Impositions) lawfully due to the City and
delinquent from the Company, regardless of whether the amount due arises pursuant to the terms
Cappelli/Pac Trust Southwestern Blvd/Purchase Agreement - 12
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of this Agreement or otherwise and regardless of whether or not the debt due the City has been
reduced to judgment by a court.
Article V
Miscellaneous
5.1 Bindin2 A2reement; Assi2nment. The terms and conditions of this Agreement
are binding upon the successors and permitted assigns of the parties hereto. This Agreement
may not be assigned by the Company without the prior written consent of the City Manager.
5.2 Limitation on Liability. It is understood and agreed among the parties that the
Company and the City, in satisfying the conditions of this Agreement, have acted independently,
and assume no responsibilities or liabilities to third parties in connection with these actions.
5.3 No Joint Venture. It is acknowledged and agreed by the parties that the tem1S
hereof are not intended to and shall not be deemed to create a partnership or joint venture among
the parties.
5.4 Authorization. Each Party represents that it has full capacity and authority to
grant all rights and assume all obligations that are granted and assumed under this Agreement.
5.5 Notice. Any notice required or permitted to be delivered hereunder shall be
deemed received (i) three (3) days after deposit into the United States Mail, postage prepaid,
certified mail, return receipt requested, addressed to the Party at the address set forth below or
(ii) on the day actually received if sent by courier or otherwise hand delivered.
If intended for City, to:
Attn: City Manager
City ofCoppell, Texas
P.O. Box 9478
Coppell, Texas 75019
With a copy to:
Peter G. Smith
Nichols, Jackson, Dillard, Hager & Smith, L.L.P.
1800 Lincoln Plaza
500 North Akard
Dallas, Texas 75201
If intended for Company, to:
Mr. J. Benjamin Chessar
Pacific Realty Associates, L.P.
Coppelll/Pac Trust Southwestern Blvd/Purchase Agreement - ] 3
23]28
15350 S.W. Sequoia Pkwy., Suite 300
Portland, Oregon 97224
With a copy to:
Kirsten Day, Esq.
Pacific Realty Associates, LP
15350 S. W. Sequoia Pkwy., Suite 300
Portland, Oregon 97224
Robert M. Allen
Higier, Allen & Lautin, P.C.
5057 Keller Springs, Suite 600
Addison, Texas 75001
Any Party shall have the right to change its address for notice by sending notice of change of
address to each other Party, in the manner described above.
5.6 Entire A2;reement. This Agreement is the entire agreement between the parties
with respect to the subject matter covered in this Agreement. There is no other collateral oral or
written Agreement among the parties that in any manner relates to the subject matter of this
Agreement, except as provided or referred to in this Agreement or as provided in any Exhibits
attached hereto.
5.7 Governin2: Law. This Agreement shall be governed by the laws of the State of
Texas; and venue for any action concerning this Agreement shall be in the State District Court of
Dallas County, Texas. The parties agree to submit to the personal and subject matter jurisdiction of
said court.
5.8 Amendment. This Agreement may only be amended by a written agreement
executed by all parties.
5.9 Le2;al Construction. In the event anyone or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect other provisions, and it is the intention
of the parties to this Agreement that in lieu of each provision that is found to be illegal, invalid, or
unenforceable, a provision shall be added to this Agreement which is legal, valid and enforceable
and is as similar in terms as possible to the provision found to be illegal, invalid or unenforceable.
5.10 Recitals. The recitals to this Agreement are incorporated herein.
5.11 Counterparts. This Agreement may be executed in counterparts. Each of the
counterparts shall be deemed an original instrument, but all of the counterparts shall constitute one
and the same instrument.
Cappelli/Pac Trust Southwestern Blvd/Purchase Agreement - 14
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5.12 Exhibits. The exhibits to this Agreement are incorporated herein by reference for
all purposes wherever reference is made to the same.
5.13 Survival of Covenants. Any of the representations, warranties, covenants, and
obligations of the parties, as well as any rights and benefits of the parties, pertaining to a period
of time following the termination of this Agreement shall survive termination.
5.14 Covenants and Representations. The Company represents, WaITants and covenants
that it has the authority to: (i) enter into this Agreement and to execute and deliver this Agreement
and (ii) perform and comply with all of the terms, covenants and conditions to be performed and
complied with by the Company hereunder. The City represents warrants and covenants that it has
the authority to; (i) enter into this Agreement and to execute and deliver this Agreement; (ii) perfolll
and comply with all of the terms, covenants and conditions to be performed and complied with by
the City hereunder; (iii) the City has issued and sold certificate of obligations 2007 Series in the
principal amount of $ 5.54 Million for payment of the Purchase Price; and (iv) that the City has
sufficient funds reasonably available to pay any costs of the Project required to be paid by the City
in excess ofthe Purchase Price.
5.15 Time for Performance. Time IS of the essence in the performance of each
Party's obligations hereunder.
5.16 Force Maieure. Whenever a period of time is herein prescribed for action to be
taken by City or Company (other than payment of money), City or Company shall not be liable
or responsible for, and there shall be excluded from the computation for any such period of time,
any delays due to Force Majeure.
5.17 Termination of Prior A2;reement. The parties hereto herby terminate the Prior
Development Agreement for all purposes, and it shall be of no further force and effect with
respect to the Land from and after the date hereof, notwithstanding any subsequent termination
or expiration of this Agreement. If requested by Company, City shall join in a release of such
Prior Development Agreement in recordable form which may be recorded in the Real Property
Records of Dallas County, Texas.
5.18 No Recordinl! of Al!reement. The parties agree that neither Party shall record
this Agreement, any memorandum hereof, or certificate or affidavit pertaining hereto without the
prior written consent of the other Party. Any default by either Party of its obligations under this
provision shall constitute a Material Breach hereunder by the Party that records this Agreement
or any instrument pertaining hereto.
5.19 Emplovment of Undocumented Workers. During the term of this Agreement the
Company agrees not to knowingly employ any undocumented workers and if convicted of a
violation under 8 V.S.C. Section 1324a (f), the Company shall repay the amount of the Grants and
any other funds received by the Company from the City as of the date of such violation within 120
business days after the date the Company is notified by the City of such violation, plus interest at the
rate of 6% compounded annually from the date of violation until paid. The Company is not liable
Cappelli/Pac Trust Southwestern Blvd/Purchase Agreement - 15
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for a violation of this section by a subsidiary, affiliate, or franchisee of the Company or by a person
with whom the Company contracts.
[Signatures Appear on the Following Page]
Cappelli/Pac Trust Southwestern Blvd/Purchase Agreement - 16
23128
EXECUTED in duplicate originals this the ZI3- day of, ~"a
City of Coppell Te
,2008.
By:
Attest:
By
By:
City Attorney
EXECUTED in duplicate originals this the ? (, t! day of, /).0 \.A..) t 2008.
PW Commerce Center, LP
By: PW Fairview, Inc., a Delaware corporation
General Partner
By: c~ lA-> R=--------
Name: ~id {JJ. ~"""US
Title: V f [c..D U
Cappell//Pac Trust Southwestern Blvd/Purchase Agreement - 17
23128
City of Coppell's Acknowledgment
State of Texas ~
~
County of Dallas ~
This instrument was acknowledged before me on the 213 day of
by ~wgl8.8 n ~t0':8r, Ma)'8C of the City of Coppell, Texas, a Texas municipa .
municipality. .JIM WITT, ~fT'l MA,JAtf:,EiL
(prll./Z
My Commission Expires:
Company's Acknowledgment
State of-TexAS Ot2.E...qotJ ~
~
County of~AJ4~k..",\ tv,.., ~
This instrument was acknowledged before me on the l~ day of Au..ulA.~~' 2008, by
tx..lJ;d c.J. ~""""lA..s , the 'J P , of PW Fairview, Inc., a Delaware corporation, the General
Partner of PW Commerce Center, LP, a Texas limited partnership, on behalf of said limited
partnership.
\ f YLO'~
Nota~, State of
My Commission Expires:
_OFFICIAL SEAl.
'i TERRY L O'TOOLE
. .... NOTARY PUBUC
COMMISSION NO~~N
MY COMMISSION EXPIRES AUG. 9, 2012
Coppell//Pac Trust Southwestern Blvd/Purchase Agreement - 18
23128
Exhibit" A"
Description of Land
PWCC means Park West Commerce Center, an addition to the City ofCoppell, Texas
PWCC Lot 1 Block 1
PWCC Lot 2 Block 1
PWCC Lot 3 Block 1
PWCC Block 3
PWCC Block 4
EXHIBIT "B"
DESCRIPTION OF PROJECT
Drainage, paving and utility improvements for Southwestern Blvd., from South Coppell Road to
Grapevine Creek and from Grapevine Creek to Belt Line Road, adjacent to Lots 1-3, Block 1,
Park West Commerce Center, Coppell, Texas, as described in the plans for such improvements
prepared by Halff & Associates, Inc. (June, 2008 version), subject to final review and approval
by the City and the Company, with a description of such final approved Plans to be attached to
this Agreement prior to the commencement of the Bid Package Approval Period described
herein.
Exhibit "c"
Installment Schedule
Earnest Money ...............15% of the Purchase Price to be paid 30 days after Contract Award
Periodic Installments
Periodic installments each in amount equal to 25% of Purchase Price
to be paid as follows:
(I) When the Project is 40% complete, as mutually agreed to by
the City Engineer and the Project Engineer;
(2) When the Project is 65% complete, as mutually agreed to by
the City Engineer and the Project Engineer; and
(3) When the Project is 90% complete, as mutually agreed to by
the City Engineer and the Project Engineer.
Final Installment.. .. .. .. . .. ..10% of the Purchase price to be paid upon Completion of
Constmction of the Project as provided in Section 3.4
Exhibit "D"
BILL OF SALE AND ASSIGNMENT
STATE OF TEXAS
9
9
9
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS
This BILL OF SALE AND ASSIGNMENT (this "Bill of Sale") is made and executed as of
the _ day of , 2008 (the "Effective Date"), by and between PW Commerce
Center, LP, a Texas limited partnership ("Grantor"), and the City of Coppell, Texas, a municipal
corporation ("Grantee").
Preliminarv Statements
Grantor and Grantee agree that the following preliminary statements are true and correct in all
material respects and incorporated into the Bill of Sale:
A. The Parties entered into that certain purchase agreement for the improvement of
Southwestern Boulevard and for the design, construction and rerouting of the existing twenty-
four inch (24") waterline (the "Purchase Agreement").
B. Grantor desires to sell, transfer and assign to Grantee all of Grantor's right, title
and interest in and to that portion of the Project thus completed (as such term is defined in the
Purchase Agreement) located on that certain real property owned by Grantor and located in the
City ofCoppell, Dallas County, Texas, as more particularly described on Exhibit "A" which is
attached and incorporated into this Agreement (the "Land").
C. Grantor also desires to sell, transfer and assign to Grantee all of Grantor's right,
title and interest in and to any warranties and guarantees issued in connection with the
construction of the that portion of the Project (the "Warranties").
Al!reement
NOW, THEREFORE, in consideration of the receipt of TEN AND NOll 00 DOLLARS
($10.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor and Grantee hereby agree as follows:
1. Convevance of Proiect. Grantor hereby ASSIGNS, SETS OVER and TRANSFERS to
Grantee, all of Grantor's right, title and interest in and to that portion of the Project thus
completed as generally described and depicted in Exhibit "B" which is attached and
incorporated into this Agreement.
2. Assignment of Warranties. Grantor hereby ASSIGNS, SETS OVER and TRANSFERS
to Grantee, all of its right, title and interest in and to the Warranties, to the extent said Warranties
are assignable with respect to the Project thus conveyed.
J. Miscellaneous. This Bill of Sale and the obligations of the parties hereunder shall be
binding upon and inure to the benefit of the parties hereto and their respective legal
representatives. successors and assigns.
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