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HomeMy WebLinkAboutContract 33465 • CITY SECRETARY CONTRACT NO. PURCHASE CONTRACT THIS PURCHASE CONTRACT ("Contract") is made and entered into by and between the CITY OF FORT WORTH, TEXAS, acting by and through its duly authorized City Manager or Assistant City Manager ("Buyer") and Michael R. McMullen ("Seller") as of the date on which this Contract is executed by the last to sign of Seller and Buyer ("Effective Date"). RECITALS 1. Seller is the owner of Lot 42, Block 2, Greenbriar Addition to the City of Fort Worth, according to the plat recorded in Volume 388-N, Page 1, Plat Records, Tarrant County, Texas and with a street address of 1204 Sharondale Street, Fort Worth, Texas 76115 together with any easements, rights-of-way, licenses, interests, and rights appurtenant thereto (collectively, the "Property"), 2. Buyer is a municipal corporation that desires to acquire the purchase of the Property for public use to create a park entrance to Greenbriar Park. 3. Seller desires to sell the Property for fair market value for development of a park entrance to Greenbriar Park (Project Improvements) and will benefit the citizens of Fort Worth in general. AGREEMENT In consideration of the mutual covenants in this Contract, Seller and Buyer agree as follows: Section 1. Sale and Purchase. (a) Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to purchase and accept the Property from Seller, for the Purchase Price (as defined below), subject to the terms and conditions set forth in this Contract. (b) Seller shall convey the Property to Buyer free and clear of all liens, claims, easements, rights-of-way, reservations, restrictions, encroachments, tenancies, and any other encumbrances (collectively, the "Encumbrances") except the Encumbrances appearing in the Title Commitment (as defined below in Section 3) and the survey that are not cured and that are subsequently waived pursuant to Section 3 below("Permitted Encumbrances"). Section 2. Purchase Price (a) The purchase price ("Purchase Price") for the Property, payable by Buyer to Relh-r in cash at Closing (defined below), is Forty-two Thousand Dollars ($42,000.0 04-28-06 P03 :40 IN - 1 - 04-27-06 A11 :28 IN Section 3. Title Commitment and Survey. (a) Within thirty (30) days after the Effective Date, Buyer shall obtain, at Seller's sole cost and expense (i) an Owner's Commitment for Title Insurance ("Title Commitment") from Alamo Title Company, Attn: Stacey Jandrucko, 3500 Hulen Street, Fort Worth, Texas 76107, Telephone Number 817-731-8715 and Fax Number 817-377-2292 ("Title Company"), setting forth the status of the title of the Property and showing all Encumbrances and other matters, if any, relating to the Property; and (ii) a legible copy of all documents referred to in the Title Commitment, including but not limited to,plats, reservations, restrictions, and easements. 1` (b) Within ten (10) days after the Effective Date of this Contract, Seller shall provide to Buyer a copy of any survey of the Property in Seller's possession. Within forty-five (45) days after the Effective Date, Buyer may obtain, at Buyer's sole cost and expense, an updated survey -� ("Survey") consisting of a plat and field notes describing the Property, prepared pursuant to a current on-the-ground staked survey performed by a registered public surveyor or engineer satisfactory to Buyer and Title Company. The Survey shall (i) be certified to Buyer, its successors and assigns, and Title Company, (ii) reflect the actual dimensions of and the total number of square feet within the Property, net of any portion thereof lying within a publicly dedicated roadway or a utility easement, (iii) identify any rights-of-way, easements, or other Encumbrances by reference to applicable recording data, and (iv) include the Surveyor's registered number and seal, the date of the Survey. The description of the Property prepared as a part of the Survey will be used in all of the documents set forth in this Contract that require a description of the Property. (c) If the Title Commitment or Survey discloses any Encumbrances or other matters which are not acceptable to Buyer in Buyer's sole discretion, then Buyer shall give Seller written notice thereof within fifteen (15) days after receipt of the Title Commitment, Survey and all documents referred to in the Title Commitment, specifying Buyer's objections ("Objections"), if any. If Buyer gives such notice to Seller, Seller shall use its best efforts to cure the Objections, but shall be under no obligation to do so. (d) If Buyer gives notice of Objections and Seller does not cure the Objections, cause the Title Commitment and Survey to be amended to give effect to matters that are cured, and give Buyer written notice thereof within the fifteen (15) day period following receipt of the notice from Buyer ("Cure Period"), Buyer shall have the right either (i) to terminate this Contract by giving written notice thereof to Seller at any time after the expiration of such Cure Period but prior to the expiration of the Option Period, and, upon such termination, neither party hereto shall have any further rights or obligations, or (ii) to waive the Objections and consummate the purchase of the Property subject to the Objections which shall be deemed to be Permitted Encumbrances. Notwithstanding the foregoing sentence, if Seller has commenced curing the Objections and is diligently prosecuting the same, as determined by Buyer in Buyer's sole discretion, then Buyer in Buyer's sole discretion may extend the Cure Period for an amount of time Buyer deems necessary for Seller to cure the same. Section 4. Review Reports. Within twenty (20) days after the Effec ' , shall deliver to Buyer for Buyer's review any environmental reports and 2 — t : .. ✓.:lic3 IF possession concerning the Property ("Reports") that were conducted during or after the demolition of the former improvements on the Property. Section 5. Inspection of the Property (a) Buyer may enter the Property before closing to inspect the Property and conduct a Phase I Environmental. (b) Buyer must notify Seller in advance of Buyer's plans to inspect the Property and conduct and tests so that Seller may be present during such inspections or tests. Section 6. Option Period. (a) Notwithstanding anything to the contrary contained in this Contract, until ninety (90) days after the Effective Date ("Option Period"), the following is a condition precedent to Buyer's obligations under this Contract: Buyer being satisfied in buyer's sole and absolute discretion that the Property is suitable for Buyer's intended uses, including, without limitation, Buyer being satisfied with the results of the Tests (defined in Section 6 below). (b) If Buyer is not satisfied in Buyer's sole and absolute discretion as to the condition precedent described in Section 6(a) above, Buyer may give written notice thereof to Seller on or before the end of the Option Period, whereupon this Contract shall terminate. Upon such termination, and neither party shall have any further rights or obligations under this Contract. (c) The provisions of this Section 6 control all other provisions of this Contract. Section 7. Tests. Buyer, at Buyer's sole cost and risk, shall have the right to go on to the Property, including the Improvements, to make inspections, surveys, test borings, soil analyses, and other tests, studies and surveys, including without limitation, environmental tests, borings, analyses, and studies ("Tests). Any engineering and feasibility tests shall be conducted at Buyer's sole risk and expense, and Buyer agrees to indemnify and defend Seller and the Property from any liens and claims resulting from such tests. Buyer shall be solely responsible for all costs of any environmental site assessments Buyer deems necessary. The Property will be restored by Buyer to its original condition at Buyer' sole expense following any site work. In the event this transaction does not close for any reason whatsoever, the Buyer shall release to Seller any and all independent test studies or tests results obtained during this inspection period. Section 8. Closin . (a) At the Closing, all of the following shall occur, all of which are deemed concurrent conditions: (1) Seller, at Seller's sole cost and expense, shall deliver or cause to be delivered to Buyer the following: (i) a General Warranty Deed ("Deed"), fully qX „ . acknowledged by Seller, conveying to Buyer good and nel � 3 - -_.mom simple title to the Property subject only to the Permitted Encumbrances, with the precise form of the Deed to be determined pursuant to Section 10 below; (ii) Any other instrument or document necessary for Title Company to issue the Owner Policy in accordance with Section 8(a)(3) below. (2) Buyer, at Buyer's sole cost and expense, shall deliver or cause to be delivered to Seller through the Title Company federally wired funds or a certified or cashier's check or such other means of funding acceptable to Seller, in an amount equal to the Purchase Price, adjusted for closing costs and prorations. (3) Title Company shall issue to Buyer, at Buyer's sole cost and expense, an Owner Policy of Title Insurance ("Owner Policy") issued by Title Company in the amount of the Purchase Price insuring that, after the completion of the Closing, Buyer is the owner of indefeasible fee simple title to the Property, subject only to the Permitted Encumbrances, and the standard printed exceptions included in a Texas Standard Form Owner Policy of Title Insurance; provided, however, the printed form survey exception shall be limited to "shortages in area," the printed form exception for restrictive covenants shall be deleted except for those restrictive covenants that are Permitted Encumbrances, there shall be no exception for rights of parties in possession, and the standard exception for taxes shall read: "Standby Fees and Taxes for [the year of Closing] and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership"; (4) Seller and Buyer shall each pay their respective attorneys' fees. (5) Seller shall pay all recording fees (6) The City will conduct an environmental review of the Property and if an environmental hazard is found the City has the right to cancel this contract. (b) Ad valorem and similar taxes and assessments, if any, relating to the Property shall be prorated between Seller and Buyer as of the Closing Date, based on estimates of the amount of taxes that will be due and payable on the Property during the calendar year in which the Closing occurs. As soon as the amount of taxes and assessments on the Property for that year is known, Seller and Buyer shall readjust the amount of taxes to be paid by each party with the result that Seller shall pay for any taxes and assessments applicable to the Property up to and including the date of Closing, and Buyer shall pay for those taxes and assessments applicable to the Property after the Closing. The provisions of this Section 8(b) survive the Closing. (c) Upon completion of the Closing, Seller shall deliver possession of the Property to Buyer, free and clear of all tenancies of every kind. Section 9. Agents. Seller and Buyer each represent and warrant to the it has not engaged the services of any agent, broker, or other similar party in conr e6wn with this transaction. - 4 - rU, LA Section 10. Closing Documents. No later than fifteen (15) days prior to the Closing Date, Seller shall deliver to Buyer a copy of the Deed, which is subject to Buyer's reasonable right of approval. Section 11. Notices. (a) Any notice under this Contract shall be in writing and shall be deemed to have been served if (i) delivered in person to the address set forth below for the party to whom the notice is given, (ii) delivered in person at the Closing (if that party is present at the Closing), (iii) placed in the United States mail, return receipt requested, addressed to such party at the address specified below, (iv) deposited into the custody of Federal Express Corporation to be sent by FedEx Overnight Delivery or other reputable overnight carrier for next day delivery, addressed to the party at the address specified below, or (v) telecopied to the party at the telecopy number listed below, provided that the transmission is confirmed by telephone on the date of the transmission. (b) The address of Buyer under this Contract is: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Laura B. Chavez Telephone: 817-392-2311 (c) The address of Seller under this Contract is: Michael R. McMullen 3000 SW Loop 820 Fort Worth, Texas 76133 Telephone: 817-926-8664 (d) From time to time either party may designate another address or telecopy number under this Contract by giving the other party advance written notice of the change. Section 12. Termination, Default, and Remedies. (a) If Buyer fails or refuses to consummate the purchase of the Property pursuant to this Contract at the Closing for any reason other than termination of this Contract by Buyer pursuant to a right so to terminate expressly set forth in this Contract or Seller's failure to perform Seller's obligations under this Contract, then Seller, as Seller's sole and exclusive remedy, shall have the right to terminate this Contract by giving written notice thereof to Buyer prior to or at the Closing, whereupon neither party hereto shall have any further rights or obligations hereunder. (b) If Seller fails or refuses to consummate the sale of the Property pursuant tis this—� Contract at Closing or fails to perform any of Seller's other obligations hereunder either prior to - 5 - or at the Closing for any reason other than the termination of this Contract by Seller pursuant to a right so to terminate expressly set forth in this Contract or Buyer's failure to perform Buyer's obligations under this Contract, then Buyer shall have the right to terminate this Contract by giving written notice thereof to Seller prior to or at the Closing and neither party hereto shall have any further rights or obligations hereunder. Section 13. Entire Contract. This Contract (including the attached exhibits) contains the entire contract between Seller and Buyer, and no oral statements or prior written matter not specifically incorporated herein is of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. Section 14. Assigns. This Contract inures to the benefit of and is binding on the parties and their respective legal representatives, successors, and assigns. Neither party may assign its interest under this Contract without the prior consent of the other party. Section 15. Time for Execution. If Seller has not executed and returned a fully executed copy of this Contract to Buyer by 5:00 p.m., Fort Worth, Texas time on March 10, 2006, this Contract shall be null and void. Section 16. Time of the Essence. Time is of the essence under this Contract. Section 17. Taking Prior to Closing. If, prior to Closing, the Property or any portion thereof becomes subject to a taking by virtue of eminent domain, Buyer may, in Buyer's sole discretion, either (i) terminate this Contract and neither party shall have any further rights or obligations hereunder, or (ii) proceed with the Closing of the transaction with an adjustment in the Purchase Price to reflect the net square footage of the Property after the taking. Section 18. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Section 19. Performance of Contract. The obligations under the terms of the Contract are performable in Tarrant County, Texas, and any and all payments under the terms of the Contract are to be made in Tarrant County, Texas. Section 20. Venue. Venue of any action brought under this Contract shall be in Tarrant County, Texas if venue is legally proper in that county. Section 21. Severability. If any provision of this Contract is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this Contract will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Section 22. Business Days. If the Closing date or the day for performance of any act required under this Contract falls on a Saturday, Sunday, or legal holiday, then the Closing date or the day for such performance, as the case may be, shall be the next following regular business day. Section 23. Counterparts. This Contract may be executed in multiple c unterparts, each of which will be deemed an original, but which together will constitute one inst nt. - 6 - t" This Contract is executed as of the Effective Date. BUYER: CITY OF FORT WORTH By: Dale Fisseler Assistant City Manager Date: �I ��. /06 I I Attest 1�h :,:,ntract Authoriaatioa Marty Hendrix 4 ,2 n City Secretary Date Approved As to "gal-ity and Form As istant City Attorney SELLER: By: Name: Michael . Mc ullen Date: 3 2- By By its execution below, Title Company agrees to perform its other duties pursuant to the provisions of this Contract. TITLE COMPANY: By: c�f Name: t-k- 2__ Title: - (' 04W Gam. Date: Z O - 7 - Page 1 of 2 City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 4/11/2006 DATE: Tuesday, April 11, 2006 LOG NAME: 30SHARONDALE REFERENCE NO.: **L-14183 SUBJECT: Authorize the Acquisition of 1204 Sharondale Street, Fort Worth, Texas for the Purpose of Making Improvements to Greenbriar Park According to the North Greenbriar Model Blocks Neighborhood Plan. (DOE 5231) RECOMMENDATION: It is recommended that the City Council authorize the City Manager to purchase 1204 Sharondale (Lot 42, Block 2, Greenbriar Addition to the City of Fort Worth, according to the plat records in Volume 388-N, Page 1, Plat Records, Tarrant County, Texas) from Michael R. McMullen for a total cost of $45,000 including closing costs for improvements to Greenbriar Park as included in the North Greenbriar Model Blocks Neighborhood Plan. DISCUSSION: Staff recommends the acquisition of the above-referenced property to create a concrete pedestrian walk and associated pedestrian curb ramps through the Sharondale property, and connect to the Community Center walkway into Greenbriar Park. The land will be cleared of the existing residential improvements and incorporated into the park boundary for future park improvements. (See attached park plan map). The goal of the Greenbriar Park Improvements is to improve neighborhood access and expand recreational opportunities for the North Greenbriar neighborhood residents as detailed in the Model Block plan for the area. The purchase price is based on an outside independent appraisal and is in accordance with the Uniform Relocation Act provisions and is a voluntary sale. The property will be dedicated as park land. The property will be purchased with Community Development Block Grant (CDBG) funds. CDBG funds totaling $200,000 have been previously allocated by City Council including up to $50,000 for the land acquisition costs and $150,000 for park improvements. This project is located in COUNCIL DISTRIC 9, Mapsco 90R. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Grants Fund. TO Fund/Account/Centers FROM Fund/Account/Centers GR76 539120 005206929770 $45,000.00 Submitted for City Manager's Office by: Marc Ott (6122) Originating Department Head: A. Douglas Rademaker (6157) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 5/1/2006 Page 2 of 2 Additional Information Contact: A. Douglas Rademaker (6157) http://www.cfwnet.org/council_packet/Reports/mc_print.asp 5/1/2006 • i OWNER POLICY OF TITLE INSURANCE Issued By POLICY NUMBER 33-34-93- 27459 Alamo Title Insurance SUBJECT TO THE EXCLUSIONS FROM COVERAGE,THE EXCEPTIONS FROM COVERAGE CON- TAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS,ALAMO TITLE INSURANCE, a Texas corporation, herein called the Company,insures,as of Date of Policy shown in Schedule A,against loss or damage,not exceeding the Amount of Insurance stated in Schedule A,sustained or incurred by the Insured by reason of: 1 Title to the estate or interest described in Schedule A being vested other than as stated therein; 2. Any defect in or lien or encumbrance on the title; 3. Any statutory or constitutional mechanic's,contractor's,or materialman's lien for labor or material having its inception on or before Date of Policy; 4. Lack of a right of access to and from the land; 5. Lack of good and indefeasible title. The Company also will pay the costs, attorneys'fees and expenses incurred in defense of the title,as insured, but only to the extent provided in the Conditions and Stipulations. IN WITNESS HEREOF,Alamo Title Insurance has caused this Policy to be executed by its President under the seal of the Company, but this Policy is to be valid only when it bears an authorized countersignature, as of the date set forth in Schedule A. Alamo Title Insurance *�00 secretary Form 33-34-93 Printed(4/02) Texas Form T-1:Owner Policy of Title Insurance-Effective 4/4/02 0/7 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this Policy and the Company will not pay loss or damage,costs,attorneys'fees or expenses which arise by reason of: 1. (a) Any law,ordinance or governmental regulation(including but not limited to building and zoning laws,ordinances,or regulations)restricting,regulating, prohibiting or relating to:(i)the occupancy,use,or enjoyment of the land;(ii)the character,dimensions or location of any improvement now or hereafter erected on the land;(iii)a separation in ownership or the change in the dimensions or area of the land or any parcel of which the land is or was a part;or(iv)environmental protection,or the effect of any violation of these laws,ordinances or governmental regulations,except to the extent that a notice of the enforcement thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by(a)above,except to the extent that a notice of the exercise thereof or a notice of a defect,lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy,but not excluding from coverage any taking that has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge. 3. Defects,liens,encumbrances,adverse claims or other matters: (a) created,suffered,assumed or agreed to by the Insured Claimant; (b) not known to the Company,not recorded in the public records at Date of Policy,but known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this Policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy; (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the estate or interest insured by this Policy. 4. The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule A because of unmarketability of the title. 5. Any claim which arises out of the transaction vesting in the person named in paragraph 3 of Schedule A the estate or interest insured by this policy,by reason of the operation of federal bankruptcy,state insolvency,or other state or federal creditors'rights laws that is based on either:(i)the transaction creating the estate or interest insured by this Policy being deemed a fraudulent conveyance or fraudulent transfer or a voidable distribution or voidable dividend;(ii)the subordination or recharacterization of the estate or interest insured by this Policy as a result of the application of the doctrine of equitable subordination;or(iii)the transaction creating the estate or interest insured by this Policy being deemed a preferential transfer except where the preferential transfer results from the failure of the Company or its issuing agent to timely file for record the instrument of transfer to the Insured after delivery or the failure of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. CONDITIONS AND STIPULATIONS 1. DEFINITION OF TERMS. The following terms when used in this Policy mean: (a) "insured":the Insured named in Schedule A.and subject to any rights or defenses the Company would have had against the named Insured,those who succeed to the interest of the named Insured by operation of law as distinguished from purchase including, but not limited to, heirs,distribulees, devisees, survivors, personal representatives, next of kin,or corporate, partnership or fiduciary successors,and specifically,without limitation, the following: () the successors in interest to a corporation, limited liability company or limited liability partnership resulting from merger or consolidation or conversion or the distribution of the assets of the corporation,limited liability company or limited liability partnership upon partial or complete liquidation; (ii) the successors in interest to a general or limited partnership or limited liability company or limited liability partnership which dissolves but does not terminate; (iii) the successors in interest to a general or limited partnership resulting from the distribution of the assets of the general or limited partnership upon partial or complete liquidation; (iv) the successors in interest to a joint venture resulting from the distribution of the assets of the joint venture upon partial or complete liquidation; (v) the successor or substitute trustee(s)of a trustee named in a written trust instrument;or (vi) the successors in interest to a trustee or trust resulting from the distribution of all or part of the assets of the trust to the beneficiaries thereof. (b) "insured claimant": an Insured claiming loss or damage. (c) "knowledge"or"known": actual knowledge,not constructive knowledge or notice that may be imputed to an Insured by reason of the public records as defined in this Policy or any other records which impart constructive notice of matters affecting the land. (d) "land": the land described or referred to in Schedule A,and improvements affixed thereto that by law constitute real property. The term"land"does not include any property beyond the lines of the area described or referred to in Schedule A,nor any right,title,interest,estate or easement in abutting streets,roads,avenues,alleys,lanes,ways,or waterways,but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this Policy. (e) "mortgage": mortgage,deed of trust,trust deed,or other security instrument. (f) "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section 1(a)(iv)of the Exclusions From Coverage,"public records also shall include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "access": legal right of access to the land and not the physical condition of access. The coverage provided as to access does not assure the adequacy of access for the use intended. 2. CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this Policy shall continue in force as of Date of Policy in favor of an Insured only so long as the Insured retains an estate or interest in the land,or holds an indebtedness secured by a purchase money mortgage given by a purchaser from the Insured,or only so long as the Insured shall have liability by reason of covenants of warranty made by the Insured in any transfer or conveyance of the estate or interest.This Policy shall not continue in force in favor of any purchaser from the Insured of either:(i)an estate or interest in the land,or(ii)an indebtedness secured by a purchase money mortgage given to the Insured. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT. The Insured shall notify the Company promptly in writing:(i)in case of any litigation as set forth in Section 4(a)below,or(ii)in case knowledge shall come to an Insured hereunder of any claim of title or interest that is adverse to the title to the estate or interest,as insured,and that might cause loss or damage for which the Company may be liable by virtue of this Policy.If prompt notice shall not be given to the Company,then as to the Insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required;provided,however,that failure to notify the Company shall in no case prejudice the rights of any Insured under this Policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice.When, after the date of the Policy,the Insured notifies the Company as required herein of a lien,encumbrance,adverse claim or other defect in title to the estate or interest in the land insured by this Policy that is not excluded or excepted from the coverage of this Policy,the Company shall promptly investigate the charge to determine whether the lien,encumbrance,adverse claim or defect is valid and not barred by law or statute.The Company shall notify the Insured in writing,within a reasonable time,of its determination as to the validity or invalidity of the Insured's claim or charge under the Policy. If the Company concludes that the lien,encumbrance,adverse claim or defect is not covered by this Policy,or was otherwise addressed in the closing of the transaction in connection with which this Policy was issued,the Company shall specifically advise the Insured of the reasons of its determination.If the Company concludes that the lien,encumbrance,adverse claim or defect is valid,the Company shall take one of the following actions:(i) institute the necessary proceedings to clear the lien,encumbrance,adverse claim,or defect from the title to the estate as insured; (ii)indemnify the Insured as provided in this Policy;(iii)upon payment of appropriate premium and charges therefor,issue to the Insured Claimant or to a subsequent owner,mortgagee or holder of the estate or interest in the land insured by this Policy,a Policy of Title Insurance without exception for the lien,encumbrance,adverse claim or defect,said Policy to be in an amount equal to the current value of the property or,if a Mortgagee Policy,the amount of the loan;(iv)indemnify another title insurance company in connection with 4 OWNER'S POLICY OF TITLE INSURANCE SCHEDULE A File Number: 06-1023053 Policy Number: 33-34-93-27459 ch Amount of Insurance: $40,000.00 Premium: $532.45 Date of Policy: May 23, 2006 at 09:31 a.m. 1. Name of Insured: City of Fort Worth, a Municipal Corporation 2. The estate or interest in the land covered by this Policy is: Fee Simple 3. Title to the estate or interest in the land is insured as vested in: City of Fort Worth, a Municipal Corporation 4. The land referred to in this policy is described as follows: Lot 42, Block 2, Greenbriar Addition, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the plat thereof recorded in Volume 388-N, Page 1, Plat Records, Tarrant County, Texas. FORM T-1: Owner's Policy of Title Insurance GF No. 06-1023053 Policy No. 33-34-93-27459 ch SCHEDULE B EXCEPTIONS FRO COVERAGE This policy does not insure against loss or damage land the Company will not pay costs, attorney's fees or expenses) that arise by reason of the terms and conditions of the leases or easements insured, if any, shown in Schedule A and the following matters: 1. The following restrictive covenants of record itemized below (The Company must either insert specific recording data or delete this exception): Volume 388-I, Page 43, Plat Records and Volume 3110, Page 182, Real Property Records, Tarrant County, Texas. Deleting any unlawful discriminatory provisions based on race, color religion, sex, handicap, familial status or national origin. 2. Any shortages in area. 3. Homestead or community property or survivorship rights, if any, of any spouse of any insured. 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or C. to filled-in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or e. to the area extending from the line of mean low tide to the line vegetation, or the right of access to that area or easement along and across the area. 5. Standby fees, taxes and assessments by any taxing authority for the year 2006, and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 1 1.13, Texas Tax Code, or because of improvements not assessed for a previous tax year. 6. The following matters and all terms of the documents creating or offering evidence of the matters. (We must insert matters or delete this exception): FORM T-1: Owner's Policy of Title Insurance GF No. 06-1023053 Policy No. 33-34-93-27459 ch a. The following easements, all according to the plat recorded in Volume 388-N, Page 1, Plat Records, Tarrant County, Texas: Twenty-five foot (25') building line along the front property line. Alamo Title Company ZEZ�174 (Authorized Counte i ature) Countersigned at: , Texas FORM T-1: Owner's Policy of Title Insurance CONDITIONS AND STIPULATIONS-Continued its issuance of a policy(ies) of title insurance without exception for the lien, encumbrance, adverse claim or defect; (v) secure a Blease or other document discharging the lien,encumbrance,adverse claim or defect,or(vi) undertake a combination of(i)through(v)herein. 4. DEFENSEAND PROSECUTION OF ACTIONS'DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the Insured and subject to the options contained in Section 6 of these Conditions and Stipulations,the Company,at its own cost and without unreasonable delay,shall provide for the defense of an Insured in litigation in which any third party asserts a claim adverse to the title or interest as insured,but only as to those stated causes of action alleging a defect, lien or encumbrance or other matter insured against by this Policy. The Company shall have the right to select counsel of its choice(subject to the right of the Insured to object for reasonable cause)to represent the Insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel The Company will not pay any fees, costs or expenses incurred by the Insured in the defense of those causes of action that allege matters not insured against by this Policy. (b) The Company shall have the right,at its own cost,to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the title to the estate or interest as insured,or to prevent or reduce loss or damage to the Insured.The Company may take any appropriate action under the terms of this Policy,whether or not it shall be liable hereunder,and shall not thereby concede liability or waive any provision of this Policy. If the Company shall exercise its rights under this paragraph, it shall do so diligently. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this Policy,the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right,in its sole discretion,to appeal from any adverse judgment or order (d) In all cases where this Policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding,the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding,and all appeals therein,and permit the Company to use, at its option,the name of the Insured for this purpose. Whenever requested by the Company,the Insured, at the Company's expense,shall give the Company all reasonable aid:(i)in any action or proceeding,securing evidence, obtaining witnesses,prosecuting or defending the action or proceeding, or effecting settlement,and(ii)in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the Insured to furnish the required cooperation,the Company's obligations to the Insured under the Policy shall terminate,including any liability or obligation to defend,prosecute,or continue any litigation,with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DAMAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company,a proof of loss or damage signed and sworn to by the Insured Claimant shall be furnished to the Company within 91 days after the Insured Claimant shall ascertain the facts giving rise to the loss or damage.The proof of loss or damage shall describe the defect in,or lien or encumbrance on the title,or other matter insured against by this Policy that constitutes the basis of loss or damage and shall state,to the extent possible,the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the Insured Claimant to provide the required proof of loss or damage,the Company's obligations to the Insured under the Policy shall terminate,including any liability or obligation to defend,prosecute,or continue any litigation,with regard to the matter or matters requiring such proof of loss or damage. In addition,the Insured Claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized represetative of the Company,all records,books,ledgers,checks,correspondence and memoranda,whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage Further,if requested by any authorized representative of the Company,the Insured Claimant shall grant its permission,in writing,for any authorized representative of the Company to examine, inspect and copy all records,books, ledgers,checks correspondence and memoranda in the custody or control of a third party,which reasonably pertain to the loss or damage.All information designated as confidential by the Insured Claimant provided to the Company pursuant to this Section shall not be disclosed to others unless,in the reasonable judgment of the Company,it is necessary in the administration of the claim. Failure of the Insured Claimant to submit for examination under oath, produce other reasonably requested information or grant permission to secure reasonably necessary information from third parties as required in this paragraph shall terminate any liability of the Company under this Policy as to that claim 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS:TERMINATION OF LIABILITY. In case of a claim under this Policy,the Company shall have the following additional options. (a) To pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the Amount of Insurance under this Policy,together with any costs, attorneys'fees and expenses incurred by the Insured Claimant,which were authorized by the Comparty,up to the time of payment or tender of payment and which the Company is obligated to pay Upon the exercise by the Company of this option,all liability and obligations to the Insured under this Policy, other than to make the payment required,shall terminate, including any liability or obligation to defend, prosecute,or continue any litigation, and the Policy shall be surrendered to the Company for cancellation. (b) To Pay or Otherwise Settle With Parties Other than the Insured or With the Insured Claimant (i) to pay or otherwise settle with other parties for or in the name of an Insured Claimant any claim insured against under this Policy,together with any costs,attorneys'fees and expenses incurred by the Insured Claimant,which were authorized by the Company up to the time of payment and which the Company is obligated to pay.or (ii) to pay or otherwise settle with the Insured Claimant the loss or damage provided for under this Policy,together with any costs,attorneysfees and expenses incurred by the Insured Claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs(b)(i)or(it),the Company's obligations to the Insured under this Policy for the claimed loss or damage,other than the payments required to be made,shall terminate,including any liability or obligation to defend,prosecute or continue any litigation. 7. DETERMINATION,EXTENT OF LIABILITY AND COINSURANCE, This Policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the Insured Claimant who has suffered loss or damage by reason of matters insured against by this Policy and only to the extent herein described. (a) The liability of the Company under this Policy shall not exceed the least of: (i) the Amount of Insurance stated in Schedule A, (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien or encumbrance insured against by this Policy at the date the Insured Claimant is required to furnish to Company a proof of loss or damage in accordance with Section 5 of these Conditions and Stipulations. (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land,whichever is less,or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 percent over the Amount of Insurance stated in Schedule A,then this Policy is subject to the following: (i) where no subsequent improvement has been made,as to any partial loss,the Company shall only pay the loss pro rata in the proportion that the Amount of Insurance at Date of Policy bears to the total value of the insured estate or interest at Date of Policy,or (ii) where a subsequent improvement has been made,as to any partial loss,the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to the sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement. The provisions of this paragraph shall not apply to costs,attorneys'fees and expenses for which the Company is liable under this Policy,and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A (c) The Company will pay only those costs,attorneys'fees and expenses incurred in accordance with Section 4 of these Conditions and Stipulations. 8. APPORTIONMENT. If the land described in Schedule A consists of two or more parcels that are not used as a single site,and a loss is established affecting one or more of the parcels but not all,the loss shall be computed and settled on a pro rata basis as it the Amount of Insurance under this Policy was divided pro rata as to the value on Date of Policy of each separate parcel to the whole,exclusive of any improvements made subsequent to Date of Policy, unless a liability or value has otherwise been agreed upon as to each parcel by the Company and the Insured at the time of the issuance of this Policy and shown by an express statement or by an endorsement attached to this Policy. 9. LIMITATION OF LIABILTY. (a) If the Company establishes the title,or removes the alleged defect,lien or encumbrance,or cures the lack of a right of access to or from the land,all as insured, or takes action in accordance with Section 3 or Section 6, in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom,it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation,including litigation by the Company or with the Company's consent,the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction,and disposition of all appeals therefrom,adverse to the title as insured. (c) The Company shall not be liable for loss or damage to any Insured for liability voluntarily assumed by the Insured in setting any claim or sui without d � V C O cd �,�'► �, 7 V � mM LL AO i .a O w M li ,� •V = F= C N 0 o a N = d E O r tU E a a D CDa 0 ty r � IL to UJ x CONDITIONS AND STIPULATIONS-Continued the prior written consent of the Company 10. REDUCTION OF INSURANCE:REDUCTION OR TERMINATION OF LIABILITY. All payments under this Policy, except payments made for costs, attorneys'fees and expenses,shall reduce the amount of the insurance pro tanto. 11. LIABILITY NONCUMULATI)(E. It is expressly understood that the Amount of Insurance under this Policy shall be reduced by any amount the Company may pay under any Policy insuring a mortgage to which exception is taken in Schedule B or to which the Insured has agreed,assumed or taken subject,or which is hereafter executed by an Insured and which is a charge or lien on the estate or interest described or referred to in Schedule A,and the amount so paid shall be deemed a payment under this Policy to the insured owner. 12. PAYMENT OF LOSS. (a) No payment shall be made without producing this Policy for endorsement of the payment unless the Policy has been lost or destroyed,in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations,the loss or damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. (a) The Company's Right of Subrogation. Whenever the Company shall have settled and paid a claim under this Policy,all right of subrogation shall vest in the Company unaffected by any act of the Insured Claimant.The Company shall be subrogated to and be entitled to all rights and remedies that the Insured Claimant would have had against any person or property in respect to the claim had this policy not been issued.If requested by the Company,the Insured Claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect this right of subrogation.The Insured Claimant shall permit the Company to sue,compromise or settle in the name of the Insured Claimant and to use the name of the Insured Claimant in any transaction or litigation involving these rights or remedies. If a payment on account of a claim does not fully cover the loss of the Insured Claimant,the Company shall be subrogated to these rights and remedies in the proportion that the Company's payment bears to the whole amount of the loss. If loss should result from any act of the Insured Claimant,as stated above.that act shall not void this Policy,but the Company,in that event,shall be required to pay only that part of any losses insured against by this Policy that shall exceed the amount,if any, lost to the Company by reason of the impairment by the Insured Claimant of the Company's right of subrogation. (b) The Company's Rights Against Non-Insured Obligors. The Company's right of subrogation against non-insured obligors shall exist and shall include,without limitation,the rights of the Insured to indemnities, guaranties,other policies of insurance or bonds,notwithstanding any terms or conditions contained in those instruments that provide for subrogation rignts by reason of this Policy. 14. ARBITRATION. Unless prohibited by applicable law or unless this arbitration section is deleted by specific provision in Schedule B of this Policy,either the Company or the Insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association.Arbitrable matters may include.but are not limited to,any controversy or claim between the Company and the Insured arising out of or relating to this Policy,and service of the Company in connection with its issuance or the breach of a Policy provision or other obligation.All arbitrable matters when the Amount of Insurance is 51,000.000 or less SHALL BE arbitrated at the request of either the Company or the Insured,unless the Insured is an individual person(as distinguished from a corporation,trust. partnership,association or other legal entity).All arbitrable matters when the Amount of Insurance is in excess of$1.000,000 SHALL BE arbitrated only when agreed to by both the Company and the Insured.Arbitration pursuant to the Policy and under the Rules in effect on the date the demand for arbitration is made, or at the option of the Insured.the Rules in effect at the Date of Policy shall be binding upon the parties.The award may include attorneys'fees only if the laws of the state in which the land is located permit a court to award attorneys'fees to a prevailing party.Judgment upon the award rendered by Arbitrators) may be entered in any court having jurisdiction thereof. The law of the situs of the land shall apply to any arbitration under the Title Insurance Arbitration Rules. A copy of the Rules may be obtained from the Company upon request. 15. LIABILITY LIMITED TO THIS POLICY:POLICY ENTIRE CONTRACT. (a) This Policy together with all endorsements, if any, attached hereto by the Company is the entire Policy and contract between the Insured and the Company. In interpreting any provision of this Policy,this Policy shall be construed as a whole. (b) Any claim of loss or damage whether or not based on negligence and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim shall be restricted to this Policy. (c) No amendment of or endorsement to this Policy can be made except by a writing endorsed hereon or attached hereto signed by either the President,a Vice President,the Secretary,an Assistant Secretary or validating officer or authorized signatory of the Company. 16. SEVERABILITY. In the event any provision of the Policy is held invalid or unenforceable under applicable law.the Policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES WHERE SENT. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this Policy and shall be addressed to the Company at P.O.Box 45023,Jacksonville,Florida 32232-5023. COMPLAINT NOTICE. Should any dispute arise about your premium or about a claim thatou have filed,contact the agent or write to the Company that issued the Policy. If the problem is not resolved,you also may write the Texas Department of Insurance.P.O.Box 149091,Austin,TX 78714-9091,Fax No.(512)475-1771. This notice of complaint procedure is for information only and does not become a part or condition of this Policy.