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HomeMy WebLinkAboutContract 35571!-STY SF C1r3ETARY:;Z ry C;Of� �"I '1CT NO, �� 1 PURCHASE CONTRACT (West Retail) 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 ("Seller") and Cypress Equities I, LP, or its assigns as herein allowed ("Purchaser") as of the date on which this Contract is executed by the last to sign of Seller and Purchaser ("Effective Date"). RECITALS 1. Seller is the owner of the approximately 194,776 square foot tract of land described as parcel 3A, 4A, 4C on the attached Exhibit A, together with any easements, rights -of --way, licenses, interests, and rights appurtenant thereto (collectively, the "Property) as shown and more particularly described on the attached Exhibit "A", incorporated herein for all purposes. 2. Seller desires to sell the Property for development as a commercial/retail center in accordance with the City's Comprehensive Plan and as stated herein in a manner that will benefit the citizens of Fort Worth in general. 3. Purchaser desires to acquire the Property for development as a commercial or retail center. 4. Seller will convey the Property through direct sale in accordance with Section 272.001(i) of the Texas Local Government Code. AGREEMENT In consideration of the mutual covenants in this Contract, Seller and Purchaser agree as follows: Section 1. Sale and Purchase. (a) Seller agrees to sell and convey the Property to Purchaser, and Purchaser 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 Purchaser 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"). XL aozs6�vi -1- (c) Seller shall retain all mineral interests in the Property if any. Seller waives and conveys to Grantee the right of ingress and egress to and from the surface of the Property relating to the portion of the mineral estate owned by Seller. Section 2. Purchase Price, Independent Contract Consideration, and Earnest Money. (a) The purchase price ("Purchase Price") for the Property, payable by Purchaser to Seller in cash at Closing (defined below), is Seven Hundred and Thirty Thousand, Seven Hundred and 00/Dollars ($730,700), based upon the assumption that the Net Square Feet within the Property is approximately 194,776. For purposes of this Contract, the term "Net Square Feet" means the total gross square feet within the surveyed boundaries of the Property. Seller has determined that the Purchase Price reflects the current fair market value of the Property. (b) Contemporaneously with the execution of this Contract, Purchaser delivers to Seller a check in the amount of $50.00 ("Independent Contract Consideration"), as independent consideration for Seller's execution, delivery, and performance of this Contract. This Independent Contract Consideration is in addition to and independent of any other consideration or payment provided for in this Contract, is nonrefundable, and shall be retained by Seller notwithstanding any other provision of this Contract. (c) Within five days after the execution and delivery of this Contract by Seller to Purchaser, Purchaser shall deliver to Title Company (as defined below in Section 3) a check payable to the order of Title Company or other means of funding reasonably satisfactory to Seller in the amount of $20,000 as earnest money ("Earnest Money"). Title Company shall hold the Earnest Money in escrow and deliver it in accordance with the provisions of this Contract. The Title Company shall invest the Earnest Money in an interest bearing account through a bank or other financial institution selected by Purchaser (hereafter, all references in this Contract to Earnest Money include the amount deposited by Purchaser with the Title Company pursuant to this Section 2(c) together with all interest accrued thereon). Section 3. Title Commitment and Survey. (a) Within thirty (30) days after the Effective Date, Seller shall deliver to Purchaser, at Seller's sole cost and expense (i) an Owner's Commitment for Title Insurance and Title Policy ("Title Commitment") from Republic Title of Texas, Attn: Barbara Hutson, 420 Throckmorton Suite 640, Fort Worth, TX 76102. Telephone number is 817-877-1481 ("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. (b) Within five (5) days after the Effective Date, Seller shall deliver to Purchaser all surveys ("Existing Surveys") of the Property in Seller's possession or control. Within twenty- five (25) days after the Effective Date, Purchaser shall obtain, at Purchaser'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 Purchaser and Title Company. The Survey shall (1) be certified to Purchaser, its successors and assigns, and Title Company, (n) reflect the actual aoas6iv1 -2- dimensions of and the total number of gross and Net Square Feet within the Property, (iii) identify any rights -of --way, easements, or other Encumbrances by reference to applicable recording data, (iv) locate and show the dimensions of any structures in the Property, and (v) include the Surveyor's registered number and seal, and the date of the Survey. (c) If the Title Commitment or Survey discloses any Encumbrances or other matters that are not acceptable to Purchaser in Purchaser's sole discretion, then Purchaser shall give Seller written notice thereof within fourteen (14) days after receipt of the Title Commitment, Survey and all documents referred to in the Title Commitment, specifying Purchaser's objections ("Objections"), if any. If Purchaser 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 Purchaser 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 Purchaser written notice thereof within the seven (7) day period following receipt of the notice from Purchaser ("Cure Period"), Purchaser 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, as defined below, and, upon such termination, Purchaser shall be entitled to the return of the Earnest Money, and 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 Purchaser in Purchaser's sole discretion, then Purchaser in Purchaser's sole discretion may extend the Cure Period for an amount of time Purchaser deems necessary for Seller to cure the same. Section 4. Review Reports. Within twenty (20) days after the Effective Date, Seller shall deliver to Purchaser for Purchaser's review all reports and studies in Seller's possession or control concerning the Property including those environmental or engineering reports and studies that were obtained or conducted during or after the demolition of the former improvements on the Property and all other reports, studies, site plans, technical, engineering and soil tests (all the foregoing being herein called "Reports"). Section 5. Representations, Warranties, "AS IS" (a) As an inducement to Purchaser to purchase the Property and with the understanding and acknowledgment by Seller that Purchaser will materially rely thereon, Seller makes the following representations and warranties to Purchaser to be effective on the Effective Date and on the Closing Date, which representations and warranties shall survive the Closing. (1) The Property is not subject to any agreements of sale, or any options or other rights of third parties to acquire any interest therein (other than pursuant to this Contract). (2) There are no adverse or other parties in possession of the Property, or of any part thereof. No party has been granted, and there does not currently exist, any license, lease or other right relating to the use or possession of the Property, or any part aoag6i�i - 3 - thereof. (3) To the best knowledge of Seller, no condemnation proceedings, eminent domain proceedings or similar actions or proceedings are now pending or threatened against the Property. (4) (i) Seller has not conducted or authorized the generation, transportation, storage, treatment, release or disposal at or from the Property of any Hazardous Substances (as defined below) in violation of any applicable Environmental Laws (as hereinafter defined), (ii) to the best of Seller's knowledge, the Property does not contain any Hazardous Substances in violation of any applicable Environmental Laws, (ill) to the best of Seller's knowledge, there is no pending or threatened litigation or proceedings before any administrative agency or other governmental authority in which any person or entity alleges the presence at, release or threat of release from, or placement on or in, the Property of any Hazardous Substances, (iv) Seller has not received any notice of, and has no actual knowledge that, any administrative agency or other governmental authority or any employee or agent thereof has determined that there has been (or is investigating whether there is) a presence at, release or threat of release from, or placement on or in, the Property of any Hazardous Substances, or any generation, transportation, storage, treatment or disposal at or from the Property of any Hazardous Substance in violation of any applicable Environmental Laws, and (v) no underground storage tanks are located on the Property. "Hazardous Substances" as used herein means (A) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde, polychlorinated biphenyls and radon gas, and (B) any chemicals, materials or substances defined as or included in the definitions of "hazardous substances," "hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "bio-hazard," "biological waste," "medical waste" or words of similar import, under any applicable federal, state or local environmental, safety or health laws, ordinances, rules of common law, regulations or directives (herein called "Environmental Laws"). (5) Neither the execution of this Contract nor the consummation of the transaction contemplated hereby will (A) result in a breach of or default under, any agreement to which Seller is a party or by which Seller is bound; or (B) violate any restriction, court order, agreement or other legal obligation to which Seller is subject. (6) There are no attachments, executions, assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under any other debtor relief laws contemplated by or pending or threatened against Seller or any portion of the Property. (7) Seller has the full right, power and authority to sell and convey the Property to Purchaser as provided in this Contract and to carry out Seller's obligations hereunder. All requisite action necessary to authorize Seller to enter into this Contract and perform its obligations hereunder has been taken. The joinder of no person or entity other than Seller will be necessary to convey the Property fully and completely to Purchaser at Closing. This Contract is a valid and binding obligation of the Seller and is 202861v1 - 4 - enforceable against the Seller in accordance with its terms. (8) All information relating to the Property which has been or will be delivered to Purchaser including, without limitation, the Reports, is true, correct and complete, and does not contain any material misstatements of fact or fail to state any material fact relevant to such information. (b) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS, TO CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OF REQUIREMENTS, INCLUDING SOLID WASTE, AS DEFINED BY THE U. S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER, AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, SELLER AND PURCHASER AGREE THAT PURCHASER IS TAKING THE PROPERTY "AS IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY REPRESENTATIONS, STATEMENTS, ASSERTIONS OR NON -ASSERTIONS BY THE SELLER WITH RESPECT TO THE PROPERTY CONDITION, BUT IS RELYING 2o2s61v1 -5- SOLELY UPON ITS EXAMINATION OF THE PROPERTY. PURCHASER TAKES THE PROPERTY UNDER THE EXPRESS UNDERSTANDING THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR LIMITED WARRANTIES OF TITLE SET FORTH IN THE CLOSING DOCUMENTS). UPON CONVEYANCE, AS BETWEEN SELLER AND PURCHASER, THE RISK OF LIABILITY OR EXPENSE FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, EVEN IF ARISING FROM EVENTS BEFORE CLOSING, WILL BE THE SOLE RESPONSIBILITY OF PURCHASER, REGARDLESS OF WHETHER THE ENVIRONMENTAL PROBLEMS WERE KNOWN OR UNKNOWN AT CLOSING. ONCE CLOSING HAS OCCURRED, PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA), THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT OR THE TEXAS WATER CODE. PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY ARISING AS THE RESULT OF SELLER'S OWN NEGLIGENCE OR THE NEGLIGENCE OF SELLER'S REPRESENTATIVES, BUT NOT ANY WILLFUL ACTS OR OMISSIONS OR GROSS NEGLIGENCE OF SELLER OR SELLER'S REPRESENTATIVES. PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY ARISING AS A RESULT OF THEORIES OF PRODUCTS LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS OR CHANGES TO EXISTING LAWS ENACTED AFTER CONVEYANCE DATE THAT WOULD OTHERWISE IMPOSE ON SELLER IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY, PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. PURCHASER ACKNOWLEDGES AND ACCEPTS ALL THE TERMS AND PROVISIONS BY HIS ACCEPTANCE HEREOF. NOTWITHSTANDING THE FOREGOING, THERE SHALL BE EXCLUDED FROM PURCHASER'S INDEMNIFICATION, HOLD HARMLESS AND RELEASE OF SELLER ANY ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY WHICH ARE DISCLOSED WITHIN ANY REPORT IN THE POSSESSION OF SELLER WHICH WAS NOT DELIVERED TO PURCHASER BUT WHICH WAS REQUIRED TO BE DELIVERED HEREUNDER. (c) The provisions of Section 5(b) shall be incorporated into the Deed. (d) The provisions of 5(a) and (b) shall survive closing. Section 6. Option Period. 202861v1 -6- (a) Purchaser shall have a period of time commencing on the Effective Date and terminating on January 2, 2008 ("Option Period") during which to enter and examine the Property and, at its expense, conduct the Tests (defined below (b) If Purchaser determines at any time prior to the expiration of the Option Period that the Property is not satisfactory to Purchaser for any reason or no reason, in Purchaser's sole discretion, then Purchaser may terminate this Contract by delivering written notice of termination to Seller prior to the end of the Option Period, whereupon this Contract shall terminate. If Purchaser timely delivers the notice of termination to Seller, this Contract shall terminate, the Title Company shall return the Earnest Money to Purchaser, and neither party shall have any further rights, duties or obligations hereunder except with respect to the provisions of this Contract which expressly survive the termination of the Contract. (c) If Purchaser does not terminate this Contract prior to the expiration of the gption Period, then the Earnest Money shall become non-refundable to Purchaser except in the event of Seller's default in the performance of Seller's obligations under this Contract, and Title Company shall release the Earnest Money to Seller at any time thereafter upon request by Seller. (d) The provisions of this Section 6 control all other provisions of this Contract. (e) The parties agree that the Option Period will not be extended upon expiration without a written amendment signed by both parties. Section 7. Tests. Purchaser, at Purchaser's sole cost and risk, shall have the right to go on to the Property, including any improvements thereon, to make inspections, surveys, test borings, soil analyses, and other tests, studies and surveys, including without limitation, environmental and engineering tests, borings, analyses, and studies ("Tests"). Any Tests shall be conducted at Purchaser's sole risk and expense, and Purchaser agrees to indemnify and defend Seller and the Property from any liens and claims resulting from such tests. Purchaser shall be solely responsible for all costs of any environmental site assessments Purchaser deems necessary. The Property will be restored by Purchaser to its original condition at Purchaser' sole expense following any site work. In the event this transaction does not close for any reason whatsoever, the Purchaser shall release to Seller any and all independent test studies or tests results obtained during this inspection period. Section 8. Closing Contingencies. (a) The closing ("Closing") of the sale of the Property by Seller to Purchaser shall occur through the office of the Title Company in no more thirty (30) days after the satisfaction of the following contingencies to Closing ("Closing Contingencies"). The Closing Contingencies are as follows: (1) Purchaser having obtained all necessary municipal approvals for rezoning of the Property to Planned Development Special Use -Mixed Use and Purchaser having rezoned the property to MU4 PDSU with site plan as per the Zoning Code (Ordinance No. 13896) as amended by City Council; aoas6i�i - 7 - (2) Purchaser and Seller having agreed upon the location of a any water, sewer and drainage easement to be dedicated to Seller, at no cost to Seller, located on or adjacent to the Property, however Purchaser and Seller agree that the location(s) of any easement shall not materially impact the proposed development; (3) The Bill Board located on parcel 4A has been removed ; (4) Purchaser and Seller have executed an Economic Development Agreement for the Evans and Rosedale Project Area —herein defined as City owned property located with the boundaries as follows: Terrell to the north, Evans to the east, Rosedale to the South and Interstate 35 to the West. (5) The representations and warranties of Seller contained herein shall be true, correct and accurate in all respects as of the Closing. (b) Purchaser agrees to pursue the approvals and agreements described in the Closing Contingencies above with reasonable diligence. Seller agrees to cooperate fully with Purchaser in connection with Purchaser's pursuit of the above approvals. (c) If any Closing Contingencies are not satisfied to Purchaser's satisfaction so that Purchaser is prepared to close on or before, by January 10, 2008 then either Seller or Purchaser may terminate this Contract, and upon the termination, the Title Company shall deliver to Purchaser the Earnest Money and any interest earned, and neither party will have any further rights or obligations hereunder; however, the Closing may be extended if the Closing Contingencies are not satisfied if agreed to in writing by both parties. Section 9. Closing. (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 Purchaser the following: (i) A Special Warranty Deed ("Deed"), fully executed and acknowledged by Seller, conveying to Purchaser good and indefeasible fee simple title to the Property subject to existing easements, rights -of -way, and prescriptive rights, whether of record or not, with the precise form of the Deed to be determined pursuant to Section 11 below; (ii) Any other instrument or document necessary for Title Company to issue the Owner Policy in accordance with Section 9(a)(3) below, including a termination of a billboard lease affecting the Property. 202861v1 -8- (2) Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to be delivered to Seller through the Title Company federally wired funds or such other means of funding acceptable to Seller, in an amount equal to the Purchase Price, adjusted for closing costs and prorations. (3) The Title Company shall issue to Purchaser, at Seller'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, Purchaser 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) The Earnest Money (including any Additional Earnest Money) shall be applied to the Purchase Price at Closing. (5) An easement shall be reserved by or conveyed to Seller for any needed water, sewer or drainage easements as described in Section 8. (6) Purchaser and Seller shall each pay their normal and customary closing costs. (7) Seller and Purchaser shall each pay their respective attorneys' fees; and (8) Purchaser shall be responsible for all of the escrow and recording fees. (b) Ad valorem and similar taxes and assessments, if any, relating to the Property shall be prorated between Seller and Purchaser 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 Purchaser 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 Purchaser shall pay for those taxes and assessments applicable to the Property after the Closing. The provisions of this Section 9(b) survive the Closing. (c) Upon completion of the Closing, Seller shall deliver possession of the Property to Purchaser, free and clear of all tenancies of every kind. Section 10. Agents. Seller and Purchaser each represent and warrant to the other that it has not engaged the services of any agent, broker, or other similar party in connection with this transaction. 202861v1 -9- Section 11. Closing Documents. No later than fifteen (15) days prior to the Closing Date, Seller shall deliver to Purchaser a copy of the Special Warranty Deed, which is subject to Purchaser's reasonable right of approval. Section 12. 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 Seller under this Contract is: City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Economic Development Telephone : 817-3 92-83 62 (c) The address of Purchaser under this Contract is: Cypress Equities I, LP Attn: Russell Shelton 15601 Dallas Parkway, Suite 400 Addison, Texas 75001 Telephone: 972-361-5182 With a copy to: Vicki Ganske City Attorney's Office City of Fort Worth 1000 Throckmorton Fort Worth, Texas 76102 With a copy to: Dee S. Finley, Jr. Harris, Finley &Bogle 777 Main Street, Suite 3600 Fort Worth, Texas 76102 Telephone: 817-8704787 (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 13. Termination, Default, and Remedies (a) If Purchaser 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 Purchaser 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 Purchaser prior to or at the Closing, whereupon neither party hereto shall have any further rights or obligations hereunder, and Title Company shall deliver the Earnest Money to Seller as 202861v1 -10- liquidated damages, free of any claims by Purchaser or any other person with respect thereto. It is agreed that the Earnest Money to which the Seller is entitled hereunder is a reasonable forecast A just compensation for the harm that would be caused by Purchaser's breach and that the harm that would be caused by such breach is one that is incapable or very difficult of accurate estimation, and that the payment of these sums upon such breach shall constitute full satisfaction of Purchaser's obligations hereunder. (b) If Seller fails or refuses to consummate the sale of the Property pursuant to this Contract at Closing or fails to perform any of Seller's other obligations hereunder either prior to 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 Purchaser's failure to perform Purchaser's obligations under this Contract, then Purchaser shall have the right to terminate this Contract by giving written notice thereof to Seller prior to or at the Closing whereupon the Earnest Money shall be returned to Purchaser and neither party hereto shall have any further rights or obligations hereunder. (c) If either Seller or Purchaser becomes entitled to the Earnest Money upon cancellation of this Contract in accordance with its terms, Purchaser and Seller covenant and agree to deliver a letter of instruction to the Title Company directing disbursement of the Earnest Money to the party entitled thereto. Section 14. Entire Contract. This Contract (including the attached exhibits) contains the entire contract between Seller and Purchaser, 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 15. Assigns. This Contract inures to the benefit of and is binding on the parties and their respective legal representatives, successors, and assigns. Purchaser may at any time assign, transfer or otherwise convey its rights or obligations under this Contract to an Affiliate so long as the proposed Affiliate assignee first executes a written agreement with Seller under which such Affiliate assignee agrees in writing to assume all covenants and obligations of Purchaser under this Contract. For purposes of this Agreement, "Affiliate" shall mean: (a) all entities, incorporated or otherwise, under common control with, controlled by or controlling Purchaser; and (b) all entities, incorporated or otherwise, in which Purchaser and/or its affiliates and The Carlyle Group and/or its affiliatesboth own an interest. For purposes of this definition, "control" means fifty percent (50%) or more of the ownership, determined by either value or vote. Otherwise, neither Seller nor Purchaser shall assign this Agreement or any of the rights or responsibilities hereunder without prior written approval of the other and any attempted assignment without the written consent shall be void. In the event of a permitted assignment, Purchaser shall be released from all liability and obligations hereunder. This Contract shall be binding on and inure to the benefit of Seller and Purchaser, and their permitted lawful successors and assigns. Section 16. Time for Execution. If Purchaser has executed copy of this Contract to Seller by 5:00 p.m., F this Contract shall be null and void. 202861A -11- not executed and returned a fully July�A, 2007, Section 17. Time of the Essence. Time is of the essence under this Contract. Section 18, Taking Prior to Closing. If, prior to Closing, the Property or any portion thereof becomes subject to a taking by virtue of eminent domain, Purchaser may, in Purchaser's sole discretion, either (i) terminate this Contract whereupon the Earnest Money shall be returned to Purchaser, and neither party shall have any further rights or obligations hereunder, or (11) 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 19. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Section 20. 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 21. Venue. Venue of any action brought under this Contract shall be in Tarrant County, Texas if venue is legally proper in that county. Section 22. 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 23. Business Days. If the Closing date or the day for performance of any not 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 24. Counterparts. This Contract may be executed in multiple counterparts, each of Much will be deemed an original, but which together will constitute one instrument. This Contract is executed as of the Effective Date. SELLER: CITY OF FORT WORTH ON Assist nt rt,�; Manager Date: .:�'�� u Attest'�s'.'°t i( Marty Hendrix City Secretary 202861v1 cortrac%t Authora zatioll Date Approved as to Legality and Form Assistant City Attorney PURCHASER: Cypress Equities I, LP, a Texas limited partnership By: Cypress Equities, LLC, a Texas limited liability Chief Financial Officer By its execution below, Title Company acknowledges receipt of the Earnest Money described in this Contract and agrees to hold and deliver the same and perform its other duties pursuant to the provisions of this Contract. TITLE COMPANY: By: Name: Title: Date: zozs6��i -13- EXHIBIT "A" Description of Property 202861v1 REAL PROPERTY DESCRIPTION OF EVANS-ROSEDALE CITY PROPERTIES Description of arouosed Parcel 3A A parcel of land, being a portion o£Block 1, of Schlater's Subdivision of Evans South Addition, according to plat thereof recorded in Volume 63, Page 143, of the Plat Records of Tarrant County, Texas, and all of the included alley within said Block, and being more particularly described as follows; BEGnNNTNG at a damaged highway monument found at the intersection of the east right-oPway of interstate Highway Number 3 5 with the south right -of --way of Terrell Street; THENCE: with said south right -of: --way, North 89 degrees 23 minutes 52 seconds East, 241.0 feet, to a 5/8" iron rod found at its intersection with the west right -of --way of Missouri Avenue; THENCE: witih said west right -of way, South 00 degrees 40 minutes 00 seconds East, 411.0 feet, to a 5/8" iron rod found at its intersection with the north right -of way of Dashwood Street; THENCE: with said north right-of-way, South 89 degrees 16 minutes 08 seconds West, 239.90 feet, to a highway monument found in said east right -of --way; THENCE: with said east right -of --way, North 00 degrees 49 minutes 06 seconds West, 411.57 feet, to the Place of Beginning, and containing a gross area of 98,893 square feet of land, more or less, less 6,616 square feet of land included within the public alley for a net area of 92;277 square feet of land, more or less. Surveyed on the ground from July through October of 2006. Basis of Bearings: The City of Fort Worth Integrated G.P.S. Network System, N.A.D. 833 North Central Texas Zone. Distances are ground measurements. 52656B03HKHBNM.D0C ,��v •��'���A'•.%Fl1 • � to ,�`�_'THE UTY OF FORT TT ORTHIli �. �• REAL PROPERTY DESCRTPTTON OF EVANS-ROSEDALE CITY PROPERTIES Description of proposed Parcel 4A A parcel of land, being a portion of W.J. Boaz's Subdivision of Block 3 of Evans South Addition, according to plat thereof recorded in Volume 106, Page 28, of the Plat Records of Tarrant County, Texas, and a portion of the included alley within said Block, and being more particularly described as follows; BEGINNNG at a Highway Monument faund, at the intersection of the east right-af-way of Interstate Highway Number 35 with the south right• of --way of Dashwood Street; THENCE: with said south right.of-way, North 89 degrees 20 minutes 24 seconds East, 221.91 feet, to a 5/8" iron rod found at its intersection with the west right-of-way of Missouri Avenue; THENCE: with said west right-ofway, South 00 degrees 39 minutes 52 seconds' 400.82 feet, to a S/8" iron rod faund at its intersection with the north right-of-way of Verbena Street, THENCE: with said north right -of --way, South 89 degrees 20 minutes 03 seconds West, at 108.10 feet, pass a 5/8" iron rod found, in a11114.18 feet to the center of an alley; THENCE: departing said north right -of way, and with the centerline of said alley, North 00 degrees 37 minutes 35 seconds West, 50.08 feet; THENCE: South 89 degrees 17 minutes SO seconds West, at 6.0 feet pass a 5/8" iron rod found at the common east corner of Lots 21 and 22 of said Block, and with the common line of said Lot 19, in all, 107.91 feet to a 5/8" iron rod found at its intersection with said east right-of-way of Interstate Bighway Number 35; THENCE: with said east right -of --way, North 04 degrees 38 minutes 28 seconds West, 350.83 feet to Lite Place of Beginning and containing a gross area of 83,583 square feet o£ land, more or less, less 4.535 square feet of land included within the public alley for a net area of 79,048 square feet of land, more or less. J �� ;1WO THE QTY OF FORT ITOM, Printed on recycled paper Surveyed on the ground from July through October of 2006. Basis of Bearings: The City of Fort Worth Integrated G.P.S.. Network System, N.A.D. 83, North Central Texas Zone. Distances are ground measurements. 52656D031'iKHBNM.DOC REAL PROPERTY DESCRIPTION OF EVANS-ROSEDALE CITY PROPERTIES Description of proposed Farcel 4C A parcel of land, being a portion o£Block 5, Evans South Addition, an unrecorded addition, and being more particularly described as follows; BEGINNING at a 5/8" iron rod found at the intersection of the west right -of way of Missouri Avenue with the south fight -of -way of Verbena Street; THENCE: with said west right -of way, South 00 degrees 38 minutes 03 seconds East, 123.50 feet, to a 5/8" iron rod set, at its intersection with the northeasterly right-of-way of East Rosedale Street, THENCE: with said northeasterly right -a£ --way, South 45 degrees 39 minutes 51 seconds West, 26.01 feet, to a 5/8" iron rod set; THENCE: continuing wish said northeasterly right -of way, North 54 degrees 09 minutes 06 seconds West, 237.81 feet, to a "PW' NAIL found at its intersection with said south right-of-way; THENCE: with said south right-o£--way, North 89 degrees 20 minutes 41 seconds East, 210.0 feet, to the Place of Beginning and containing some 16,016 square do land, more or less. Surveyed on the ground from July through October of 2006. Basis of Bearings: The City of Fort Worth Integrated G.P.S. Network System, N.A.D. 83, North Central Texas Zone. Distances are ground measurements. 52656F03HKHBNM.DOC ENGINEERING DEPARTMENT SuRvsv DrnsiON THE CITY OF FORT WORTH * 1 OOO THROCKMORTON STREET *FORT WORTH, TExns 76102-6311 (817) 871-7925 * FAx (817) 871-8845 Printed on recycled paper Page 1 of 3 City of Fort Worth, Texas Mayor and Council Communication DATE: Tuesday, June 05, 2007 LOG NAME: 17EVANSROSEPUR SUBJECT: Authorize the Sale of City Owned Property Located in Cypress Equities, L.P., in accordance with Chapter 272 Adopt Attached Appropriation Ordinances RECOMMENDATION: It is recommended that the City Council: REFERENCE NO.: L-14331 the Evans and Rosedale Project Area to of the Texas Local Government Code and 1. Authorize the City Manager to execute two option agreements to sell City owned property in the Evans and Rosedale Project Area to Cypress Equities, L.P. in accordance with Chapter 272 of the Texas Local Government Code; 2. Authorize the City Manager to execute appropriate deeds conveying the property to Cypress Equities, L.P. if the terms of the option agreements are satisfied; 3. Authorize the use of $1,064,100.00 in Community Development Block Grant (CDBG) Program Income from the proceeds of the land sale; 4. Adopt the attached appropriation ordinance increasing the estimated receipts and appropriation of the Revolving Loan Fund by $1,064,100.00 from available funds; 5. Authorize the transfer of $1,064,100.00 from the Revolving Loan Fund to the Grants Fund; and 6. Adopt the attached appropriation ordinance increasing the estimated receipts and appropriations in the Grants Fund for program income of $1,064,100.00. DISCUSSION: The City owns approximately 8 acres located in the Evans and Rosedale Project Area. The Evans and Rosedale Project boundaries are as follows: Lueda Street to the North, Evans Avenue to the East, Rosedale to the South and Interstate 35W to the West. Earlier this year the City Council approved the selection of Cypress Equities L.P. ("Cypress") as the Master Developer of the Project. As part of the development of the Evans and Rosedale Area, Cypress has requested that the City relocate the fire station located on Evans Avenue. In order to begin the development as soon as possible, staff is recommending that the City enter into two separate option agreements for the property. The first option agreement would be for the City owned property south of Terrell Street and West of Missouri. The second option agreement would be for the City owned property south of Terrell and west of Evans Avenue. A map showing the two phases is attached. The purchase price was determined by an independent appraisal. The terms of the Option Agreements are as follows: n in a in n n n Page 2 of 3 Option I- West Retail - Purchase Price $730,700 - Approximate Size — 194,776 square feet - Option Period — 6 months - City Retains Mineral Interest - "As Is" - Closing Contingencies: - PDSU with site plan - Necessary easements granted to City at no cost - Bill Board Relocated - Certificate of Closure from TCEQ on property - Executed Economic Development Agreement _Option II- Evans Avenue - Purchase Price - $333,400 - Approximate Size- 94,822 square feet - Option Period- 6 months from notice the Fire Station is moving. - City Retains Mineral Interest - "As Is" - Closing Contingencies: - PDSU with site plan - Easements granted to City at no cost - City relocation of fire station - Satisfactory performance of Economic Development Agreement The City purchased the property with Community Development Block Grant (CDBG) funds provided by the U.S. Department of Housing and Urban Department (HUD). The proceeds from the sale, in accordance with federal regulations, must be returned to the City in the form of CDBG program income. The City published notice of its intent to sell the properties in the official newspaper as required under the City Charter on May 11th, May 18th, May 25th and June 1st. The Evans and Rosedale Project Area is in COUNCIL DISTRICT 8. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that upon approval of the above recommendations, adoption of the attached appropriation ordinance and receipt of proceeds, funds will be available in the current operating budget, as appropriated, of the Grant Fund. TO Fund/Account/Centers GR76 444180 005206066000 $1, 064,100.00 GR76 451685 XXX206XXXXXX $1,064,100.00 GR76 539120 XXX206XXXXXX $1, 064,100.00 GR91 5XXXXX 005206066010 $1,064,100.00 GR91 444180 005206066000 $1,064,100.00 FROM Fund/Account/Centers Submitted for City Manager's Office by: Dale Fisseler (6140) Originating Department Head: Tom Higgins (6192) Page 3 of 3 Additional Information Contact: Jay Chapa (5804) M&C Review Page 1 of 2 Cciaf site of Lite City of Fort Worth, Texas COUNCIL ACTION: Approved on 7/14/2009 DATE: 7/14/2009 REFERENCE L-14801 LOG NAME: 17CYPRESSAMEND3 NO.. NOW PUBLIC CODE: L TYPE: CONSENT HEARING: NO SUBJECT: Authorize Amendment to City Secretary Contract No. 35571 a Purchase Agreement to SE City -Owned Property in the Evans and Rosedale Project Area to Cypress Equities I, LP RECOMMENDATION: It is recommended that the City Council authorize the City Manager to: 1. Amend the Purchase Agreement, City Secretary Contract No. 35571 and Amendments to Mayor and Council Communications L-14443 and L-14687 with Cypress Equities I, LP, to extend the Purchase Agreement an additional 12 months; and 2. Execute an appropriate deed conveying the property to Cypress Equities I, LP, and record the deed if terms of the option agreement as amended are satisfied. DISCUSSION: On June 5, 2007, the City Council authorized the sale of approximately 4.5 acres of property located in the Evans and Rosedale Project Area and known as the West Retail to Cypress Equities 1, LP, (Cypress) for $730,700.00 (M&C L-14331). City Council chose Cypress to be the Master Developer of the Evans and Rosedale Project. The west retail portion of the Evans and Rosedale Project Area i the property bounded by the Interstate Highway 35W Service Road, East Terrell Avenue, Missouri Avenue and East Rosedale Street. Pursuant to the Purchase Agreement (Agreement) and Amendments, Cypress had an option period to complete its due diligence. Since the execution of the Agreement, Cypress has actively pursued various restaurants and businesses to relocate in the Evans and Rosedale Project. However, with th recent downturn in the economy progress slowed but currently, infrastructure projects are underway to prep the area for development. Cypress is in serious negotiations with at least one business for th area. Cypress requests to extend its option for an additional 12 months in order to continue to pursue restaurants and businesses that will impact the area in a manner that is consistent with the vision for the area. Cypress' option to purchase the property expired on July 1, 2009. Staff recommends the proposed amendment. The property is located in COUNCIL DISTRICT 8. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that this action will have no material effect on City funds. TO Fund/Account/Centers FROM Fund/Account/Centers M&C Review Page 2 of 2 Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS Tom Higgins (6192) Jay Chapa (5804) Cynthia Garcia (8187) Avis F. Chaisson (6342)