HomeMy WebLinkAboutContract 53414 1h
RECEIVED CITY SECRETARY
JAN 2 2 2020 CONTRACT NO.
CITY OFFORTWORT11 CONTRACT OF SALE AND PURCHASE
C[TYSFCRErARY AND ESCROW AGREEMENT
THIS CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT (this
"Contract") is made and entered into by and between the CITY OF FORT WORTH, TEXAS, a
home rule Municipal Corporation of the State of Texas, acting by and through its duly authorized
City Manager or Assistant City Manager ("Purchaser"), and CLEARFORK RETAIL
DEVELOPMENT COMPANY, LLC, a Texas limited liability company ("Seller"), which
constitutes (i) a contract of sale and purchase between Purchaser and Seller, and (ii) an escrow
agreement among Seller, Purchaser and RATTIKIN TITLE COMPANY ("Escrow Agent"),
effective as of the Effective Date (as defined in Section 24 ).
RECITALS:
WHEREAS, as of the Effective Date, Seller has contracted with Young Men's Christian
Association of Metropolitan Fort Worth, a Texas nonprofit corporation ("YMCA"), the current
owner of the Property (defined below), for YMCA's sale of the Property to Seller pursuant to the
terms and conditions of that certain Commercial Contract— Improved Property between YMCA,
as seller, and Seller, as buyer, dated effective November 27, 2019 (as may be amended from time
to time, the "Existing Contract").
WHEREAS, Purchaser desires to, subsequent to the consummation of Seller's purchase
of the Property from YMCA pursuant to the Existing Contract (the "YMCA Closing"), purchase
and accept the Property from Seller to be used by Purchaser and the public as a public park
("Purchaser's Intended Use"), and Seller desires to sell and convey the Property to Purchaser,
subject to the terms and conditions set forth in this Contract.
AGREEMENT:
NOW, THEREFORE, for and in consideration of the mutual covenants in this Contract,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Purchaser agree as follows:
Section 1. Sale and Purchase.
(a) After the YMCA Closing, Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase and accept from Seller, on and subject to the terms and conditions
set forth in this Contract, the surface estate only of approximately 4.672 acres of land more
particularly described on Exhibit A attached hereto and incorporated herein for all purposes (the
"Land"), together with (i) all buildings, fixtures, structures and improvements thereon
(excluding those buildings, fixtures, structures and improvements to be demolished/removed, or
caused to be demolished/removed, by Seller in conjunction with the
Abatement/Demolition/Removal Condition [as defined in Section 7(a)(2) hereofJ); (ii) all rights,
privileges, and appurtenances pertaining to the Land, including Seller's right, title and interest in
any utilities, adjacent streets, alleys, strips, gores, and rights-of-way; (iii) Seller's interest in all
licenses and permits related to the Land; and (iv) Seller's interest in all third arty warranties or
OFFICIAL RECORD
CITY SECRETARY
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT
FT. WbATH,TX
guaranties, if transferable, relating to the Land or any fixtures . The Land and Items (i)-(iv) are
collectively referred to as the "Property". Notwithstanding anything to the contrary, there shall
be forever and perpetually reserved and excepted from the conveyance of the Property hereunder
for Seller and Seller's successors and assigns all oil, gas, and other minerals of whatsoever kind
or nature in, on, under and that may be produced from the Property and all leases, royalties and
rights related to same (collectively, the "Mineral Interest"); provided, however, Seller shall
waive and relinquish in the Deed (hereinafter defined) any of Seller's surface rights for the use of
the surface of the Property, so that Seller shall not at any time have any right of ingress and
egress or other right to enter upon the surface of the Property for the purpose of exploring for,
developing, processing, drilling, producing, marketing, transporting, mining, treating or any
other purpose incident to the development or production of the Mineral Interest. Notwithstanding
anything to the contrary, nothing herein shall be construed as limiting Seller's ability to pool or
unitize the Mineral Interest with land(s) other than the Property and explore for, develop or
produce oil, gas and other minerals by means of wells that are drilled or mines that open on
land(s) other than the Property. The above described mineral reservation and surface waiver shall
be Permitted Encumbrances (defined below) and shall be included in the Deed.
(b) Subject to the terms and conditions set forth in this Contract, Seller shall convey
the Property to Purchaser at the Closing (hereinafter defined) 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 specifically
provided for in this Contract, any Encumbrances appearing in the Title Commitment and the
Survey (hereinafter defined) not shown on the Existing Commitment (hereinafter defined) or the
Existing Survey (hereinafter defined) that do not materially adversely interfere with Purchaser's
Intended Use, and any New Material Encumbrances (hereinafter defined) that are not cured and
that are subsequently waived pursuant to Section 3 (collectively, "Permitted Encumbrances").
Section 2. Independent Contract Consideration, Escrow, and Purchase Price.
(a) 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 non-refundable, and shall be retained
by Seller notwithstanding any other provision of this Contract; however, upon Closing (as
hereinafter defined), the Independent Contract Consideration shall be applied as a credit toward
the Purchase Price (as hereinafter defined).
(b) Contemporaneously with the execution of this Contract, Purchaser deposits into
escrow with the Escrow Agent the sum of One Million Five Hundred Forty-Five Thousand
and 00/100 DOLLARS ($1,545,000.00), i.e., the Purchase Price (defined below) (the
"Deposit"). The parties agree that Seventy-Five Thousand and 00/100 DOLLARS
($75,000.00) out of the Deposit is referred to herein as the "Earnest Money". The Deposit,
including the Earnest Money, will be held in escrow and delivered by Escrow Agent in
accordance with the provisions of this Contract. Notwithstanding anything to the contrary, upon
the YMCA Closing, the Deposit shall immediately become the property of, and title to same
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 2
shall pass to, Seller, and Purchaser shall not be entitled to return of the Deposit for any reason or
circumstance, except in the event Seller fails or refuses to timely consummate the sale of the
Property pursuant to this Contract at the Closing;provided, however, the Deposit shall continue
to be held in escrow by Escrow Agent to be delivered by Escrow Agent in accordance with the
provisions of this Contract and shall be applied toward the Purchase Price (hereinafter defined)
in the event the sale and purchase of the Property closes under this Contract.
(c) The purchase price ("Purchase Price") for the Property, payable by Purchaser to
Seller at Closing (as hereinafter defined), is One Million Five Hundred Forty-Five Thousand
and 00/100 DOLLARS ($1,545,000.00). The parties acknowledge and agree that the Purchase
Price has been calculated based, in part, on costs to be incurred by Seller to satisfy the
Abatement/Demolition/Removal Condition (the "Abatement/Demolition/Removal Costs"),
said costs being $180,520.00, as more particularly set forth in that letter from Brian Choate,
Midwest Wrecking Co. of Texas ("Midwest"), dated January 15, 2020, attached hereto as
Exhibit G. The Abatement/Demolition/Removal Costs, as may be adjusted pursuant to Section
7La)Q below, shall be paid to Midwest at Closing from the Deposit.
Section 3. Title Commitment and Survey.
(a) Attached hereto as Exhibit B is the Commitment for Title Insurance issued by
Title Company (hereinafter defined), as agent for Chicago Title Insurance Company, on
November 25, 2019, dated effective October 30, 2019, in connection with the Existing Contract
(the "Existing Commitment"), which Purchaser hereby approves (except with respect to (i)
those references in Schedule B, Item 1 of the Existing Commitment to covenants as recorded in
Volume 5349, Page 299 and in Volume 5349, Page 308, (ii) Schedule B, Item 10.c of the
Existing Commitment, (iii) Schedule B, Item 10.1 of the Existing Commitment, (iv) Schedule B,
Item 10.j of the Existing Commitment, (v) Schedule B, Item 10.k of the Existing Commitment,
and (vi) Schedule B, Item 10.q of the Existing Commitment [collectively, the "Removal
Items"], each of which Seller shall endeavor to cause Title Company to delete prior to Closing
so as to not appear as exceptions in the Owner Policy [defined below]). Purchaser acknowledges
that Purchaser has been provided copies of all documents referred to in the Existing
Commitment. Notwithstanding anything herein to the contrary, Purchaser hereby agrees that all
matters disclosed and/or excepted to in the Existing Commitment (except for the Removal Items)
are, and shall be at Closing, Permitted Encumbrances. Within ten (10) days after the Effective
Date, Purchaser shall obtain, at Purchaser's sole cost and expense, a Commitment for Title
Insurance ("Title Commitment") from Rattikin Title Company, 3707 Camp Bowie Blvd, Suite
120. Fort Worth, Texas 76107, Telephone: 817-737-4800, Attention: -David Bailiff, Vice
President/Commercial Escrow Officer (the "Title Company"). The Title Commitment shall be
effective as of a date which is on or after the Effective Date, showing YMCA as the record title
owner of the Land, and shall show all Encumbrances and other matters, if any, relating to the
Property. Purchaser shall also cause the Title Company to deliver contemporaneously with the
Title Commitment legible copies (to the extent available) of all documents referred to in the Title
Commitment, including but not limited to, plats, reservations, restrictions, and easements. The
Title Commitment shall be updated after the YMCA Closing, at Purchaser's sole cost and
expense, to show Seller as the record title owner of the Land.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 3
(b) Attached hereto as Exhibit C is a copy of the survey of the Property prepared by
J.B. Davies, III, R.P.L.S. No. 4368, dated November 25, 2019 (the "Existing Survey"), which
Purchaser hereby approves. Notwithstanding anything herein to the contrary, Purchaser hereby
agrees that all matters disclosed in the Existing Survey are, and shall be at Closing, Permitted
Encumbrances. Within ten (10) days of the Effective Date, Purchaser may, at Purchaser's sole
cost and expense, have the Existing Survey re-certified (as re-certified, the "Survey") to name
Purchaser and its successors and assigns, in which case Purchaser shall promptly deliver a copy
of the Survey to Seller and cause Seller to be named in the surveyor's certification. The
description of the Property prepared as a part of the Existing Survey/Survey will be used in all of
the documents set forth in this Contract that require a legal description of the Property.
(c) Subject to Section 3(e) below, in the event the Title Commitment or the Existing
Survey/Survey are revised after the Effective Date so as to include any additional exceptions or
encumbrances not shown on the Existing Commitment or the Existing Survey that materially
adversely interfere with Purchaser's Intended Use ("New Material Encumbrances"), Purchaser
may, within two (2) business days after Purchaser first receives the revised title commitment or
revised survey that first refers to or discloses such New Material Encumbrances ("Title Review
Period"), notify Seller in writing of any objections ("Objections") Purchaser has to such New
Material Encumbrances.
(d) Seller shall have the option, but not the obligation, to remedy or remove all
Objections (or agree irrevocably in writing to remedy or remove all such Objections at or prior to
Closing) during the period of time (the "Cure Period") ending on the tenth business day after
Seller's receipt of Purchaser's notice of such Objections. Except to the extent that Seller cures, or
agrees in writing to cure, such Objections during the Cure Period, Seller shall be deemed to have
elected not to cure such matters. Subject to Section Re) below, if Seller is, or is deemed to be,
unable or unwilling to remedy or cause the removal of any Objections (or agree irrevocably to do
so at or prior to Closing) within the Cure Period, then either (i) this Contract may be terminated
in its entirety by Purchaser by giving Seller written notice to such effect during the period of
time (the "Termination Period") ending on the third business day following the earlier of(x)
the end of the Cure Period, and (y) written notice to Purchaser that Seller is unable or unwilling
to remedy or cause the removal of any Objections, and the parties shall be released of further
obligations under this Contract, except for those that expressly survive termination; or (ii) any
such Objections may be waived by or on behalf of Purchaser, without reduction to the Purchase
Price, with Purchaser to be deemed to have waived such Objections if notice of termination is
not given within the Termination Period. Any New Material Encumbrances to which Purchaser
does not object within Title Review Period (or which are thereafter waived or deemed to be
waived by Purchaser) shall be deemed to be Permitted Encumbrances.
(e) Notwithstanding anything to the contrary, Purchaser shall have no right to object
to any New Material Encumbrances or terminate this Contract under Section 3(d) above after the
YMCA Closing, unless such New Material Encumbrances are a direct result of Seller.
Section 4. Phase I and Asbestos Survey; Property Condition; As-Is.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 4
(a) Purchaser acknowledges and agrees that, as of the Effective Date, Seller has
provided Purchaser copies of(i) that certain Phase I Environmental Site Assessment concerning
the Property prepared by Terracon Consultants, Inc. dated December 4, 2019, Terracon Project
No. 95197784 (the "Phase I"), and (ii) that certain Asbestos Survey concerning the Property
prepared by Terracon Consultants, Inc., dated December 23, 2019, Terracon Project No.
95197808 (the "Asbestos Survey"), each of which Purchaser hereby approves.
(b) Purchaser hereby acknowledges and agrees that, as of the Effective Date,
Purchaser has been afforded the opportunity to inspect the condition of the Property, Purchaser is
satisfied as to the condition of the Property in all respects, and Purchaser shall have no right to
object to the condition of the Property or terminate this Contract at any time based on the
condition of the Property.
(c) THE PROPERTY IS BEING SOLD AND WILL BE CONVEYED "AS IS,
WHERE IS, WITH ALL FAULTS," WITHOUT ANY WARRANTIES, EXPRESS OR
IMPLIED, EXCEPT FOR THE WARRANTY OF TITLE TO BE CONTAINED IN SELLER'S
SPECIAL WARRANTY DEED TO BE DELIVERED TO PURCHASER AT CLOSING, AND
EXCEPT FOR ANY SPECIFIC WARRANTIES OR REPRESENTATIONS EXPRESSLY SET
FORTH HEREIN. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EXCEPT AS SET FORTH HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY 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 (i) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE SURFACE WATER, GROUND WATER, SOIL AND GEOLOGY, OR
THE PRESENCE OR ABSENCE OF ANY POLLUTANT, HAZARDOUS WASTE, GAS OR
OTHER SUBSTANCE OR SOLID WASTE ON OR ABOUT THE PROPERTY, (ii) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (iii) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY
INTEND TO CONDUCT THEREON, (iv) THE COMPLIANCE OF OR BY THE PROPERTY
OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY GOVERNMENTAL AUTHORITY OR BODY HAVING JURISDICTION, (v) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
OF THE PROPERTY, AND (vi) ANY OTHER MATTER RELATED TO OR CONCERNING
THE PROPERTY, EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, AND
PURCHASER SHALL NOT SEEK RECOURSE AGAINST SELLER ON ACCOUNT OF
ANY LOSS, COST OR EXPENSE SUFFERED OR INCURRED BY PURCHASER WITH
REGARD TO ANY OF THE MATTERS DESCRIBED IN CLAUSES (i) THROUGH (vi)
ABOVE. THE FOREGOING PROVISION WILL SURVIVE CLOSING AND WILL BE SET
FORTH IN THE DEED TO BE EXECUTED BY SELLER AT CLOSING.
Section 5. No Representation or Warranty as to Delivered Items. WITHOUT
LIMITING THE GENERALITY OF SECTION 4(c), SELLER MAKES NO
REPRESENTATION OR WARRANTY AS TO THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY MATERIALS, DATA OR INFORMATION DELIVERED, OR
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 5
CAUSED TO BE DELIVERED, BY SELLER TO PURCHASER IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT, INCLUDING,
WITHOUT LIMITATION, THE EXISTING SURVEY, THE EXISTING COMMITMENT,
THE PHASE I, AND THE ASBESTOS SURVEY. PURCHASER ACKNOWLEDGES AND
AGREES THAT ALL MATERIALS, DATA AND INFORMATION DELIVERED, OR
CAUSED TO BE DELIVERED, BY SELLER TO PURCHASER IN CONNECTION WITH
THE TRANSACTIONS CONTEMPLATED BY THIS CONTRACT ARE PROVIDED TO
PURCHASER AS A CONVENIENCE ONLY AND THAT ANY RELIANCE ON OR USE OF
SUCH MATERIALS, DATA, OR INFORMATION BY PURCHASER SHALL BE AT THE
SOLE RISK OF PURCHASER.
Section 6. Purchaser's Deliveries and Seller's Deliveries to Escrow Agent.
(a) Purchaser shall, contemporaneously with the execution of this Contract, deliver to
Escrow Agent the following:
(1) The Deposit, in accordance with Section 2(b).
(b) Purchaser shall, at or before Closing, deliver to Escrow Agent each of the
following:
(1) An executed settlement statement reflecting the prorations and
adjustments required under Section 9 (the "Purchaser's Settlement Statement").
(2) The amount, if any, required of Purchaser under Section 9.
(3) Any additional documents that Escrow Agent or Title Company may
reasonably require for the proper consummation of the transaction contemplated
by this Contract (provided, however, no such additional document shall expand
any obligation, covenant, representation or warranty of Purchaser under this
Contract beyond those expressly set forth in this Contract).
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 6
(c) Seller shall, contemporaneously with the execution of this Contract, deliver to
Escrow Agent the following:
(1) A special warranty deed (the "Deed") in the form of Exhibit D attached
hereto and incorporated herein by reference, executed and acknowledged by
Seller, pursuant to which Seller shall convey title to the Property subject only to
the Permitted Encumbrances. In the event there are additional Permitted
Encumbrances as of the Closing Date other than those listed on Exhibit B of the
Deed attached hereto, the Deed shall be revised to include such additional
Permitted Encumbrances prior to recording.
(d) Seller shall, at or before Closing, deliver to Escrow Agent each of the following:
(1) An executed settlement statement reflecting the prorations and
adjustments required under Section 9 (the "Seller's Settlement Statement").
(2) An executed copy of an affidavit in the form of Exhibit E attached hereto
and incorporated herein by reference with respect to the Foreign Investment in
Real Property Tax Act (the"FIRPTA Affidavit").
(3) Any additional documents that Escrow Agent or Title Company may
reasonably require for the proper consummation of the transaction contemplated
by this Contract (provided, however, no such additional document shall expand
any obligation, covenant, representation or warranty of Seller under this Contract
beyond those expressly set forth in this Contract).
(e) All documents delivered by Purchaser and Seller to Escrow Agent under this
Section 6 shall be dated by Escrow Agent effective as of the Closing Date.
Further, Escrow Agent shall insert the effective date of this Contract in the blank
in the first paragraph on the second page of the Deed.
(f) The failure of Purchaser or Seller to make any delivery required above by and in
accordance with this Section 6 which is not waived in writing by the other party
shall constitute a default by Purchaser or Seller, as applicable
Section 7. Conditions to the Parties' Obligations.
(a) Purchaser's obligation to purchase and accept the Property as described in this
Contract is expressly conditioned only upon the following:
(1) Performance in all material respects of the obligations and covenants of, and
deliveries required of, Seller pursuant to this Contract.
(2) Seller, following the YMCA Closing, (i) abating/removing, causing the
abatement/removal of, asbestos-containing material from the improvements and
buildings to be demolished/removed pursuant to (ii) below; (ii)
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 7
demolishing/removing, or causing the demolition/removal of, (x) the swimming
pool located on the Land, including decking and shade structures, and related
electrical, plumbing and mechanical infrastructure, which shall include
backfilling, or causing to be back-filled, all voids created from the removal of the
swimming pool with select fill compacted in six (6) inch lifts, (y) two (2)
buildings located on the Land and related items, and (z) a sign, each as identified
on the "Demolition and Removal Plan" on Exhibit F attached hereto and
incorporated herein(collectively, the "Abatement/Demolition/Removal
Condition");provided, however, that Purchaser shall have the option to request in
writing to Seller by February 14, 2020, that the Abatement/Demolition/Removal
Condition be revised to exclude any or all of items (ii)(x), (ii)(y), or (ii)(z) above,
together with related abatement/removal of asbestos-containing material under
item (i), as applicable, in which case Seller shall request Midwest revise its letter
attached hereto as Exhibit G to exclude such items, and the Purchase Price shall
be adjusted downward by the difference between $180,520.00 and the total cost
stated in such revised letter provided by Midwest. In the event Purchaser revises
the Abatement/Demolition/Removal Condition as described above so as to
exclude all of items (ii)(x), (ii)(y) and (ii)(z) above, Purchaser shall be deemed to
have waived the Abatement/Demolition/Removal Condition, the Purchase Price
shall be adjusted downward by $180,520.00, and Escrow Agent shall proceed to
Closing pursuant to Section 8, Section 9 and Section 10 below.
(b) Seller's obligation to sell and convey the Property as described herein is expressly
conditioned upon the following:
(1) Consummation of YMCA Closing. Purchaser acknowledges and agrees that
whether to proceed with the YMCA Closing shall be at Seller's sole and absolute
discretion.
(2) Performance in all material respects of the obligations and covenants of, and
deliveries required of, Purchaser pursuant to this Contract.
(c) The Abatement/Demolition/Removal Condition, as may be revised pursuant to
Section 7(a)(2) above, shall be deemed satisfied upon the issuance of a demolition completion
report or similar documentation from Midwest indicating that the asbestos-containing material
from the improvements and buildings to be demolished/removed pursuant to Section 7(a)(2)(ii)
above was properly abated and disposed of at an off-site facility, if applicable in the event
Purchaser revises the Abatement/Demolition/Removal Condition pursuant to Section 7(a)(2)
above, and the improvements and buildings to be demolished pursuant to Section 7(a)(2)(ii)
above were demolished and the demolition debris related to same was removed and disposed of
off-site, if applicable in the event Purchaser revises the Abatement/Demolition/Removal
Condition pursuant to Section 7(a)(2) above ("Demo Completion Report"). Once Seller
delivers the Demo Completion Report to Escrow Agent (with copy to Purchaser), Escrow Agent
shall proceed with Closing pursuant to Section 8, Section 9 and Section 10 below.
Section 8. Date and Manner of Closing.
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(a) Escrow Agent shall close the escrow ("Closing") as soon as all conditions to
closing contained in this Contract have been satisfied (or deemed satisfied) or waived which
shall in any event be not later than the date that is ten (10) days after Escrow Agent receives the
Demo Completion Report (the "Closing Date"), time being of the essence, by recording and
delivering all documents and funds as set forth in Section 10. Notwithstanding the forgoing, in
the event Purchaser is deemed to have waived the Abatement/Demolition/Removal Condition
pursuant to Section 7(a)(2) above, the Closing Date shall be February 21, 2021.
(b) At Closing, Title Company shall issue to Purchaser, at Purchaser'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, at
Purchaser's sole cost and expense, 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, taxes and assessments for the year [of Closing],
and subsequent years, and subsequent assessments 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 11.13, Texas Tax Code, or because of
improvements not assessed for a previous tax year".
(c) Upon completion of the Closing, Seller shall deliver possession of the Property to
Purchaser, free and clear of all tenancies of every kind except those disclosed in the Permitted
Encumbrances.
Section 9. Proration, Fees, Costs and Adjustments.
(a) Purchaser represents and warrants to Seller that Purchaser will qualify for
exemption from ad valorem taxation for the Property, and no ad valorem taxes will accrue after
the date of Closing. Ad valorem and similar taxes and assessments relating to the Property for
the year of Closing shall be prorated between Seller and Purchaser as of the Closing Date. If the
actual amount of taxes for the calendar year in which the Closing shall occur is not known as of
the Closing Date, the proration shall be based upon the most current assessed value and tax rates
then in effect with respect to the Property as of the Closing Date. Seller agrees to notify
Purchaser if Seller receives notice of any proposed increase in assessed valuation for the year of
Closing. If the proration at Closing is based upon an estimate, then any difference between the
actual and estimated taxes for the year of Closing shall be adjusted between the parties upon
receipt of the tax bills for the year of Closing. In the event the Land or any portion thereof is
currently assessed for tax purposes as part of a larger tax parcel, the taxes to be allocated to such
Land shall be equal to the taxes assessed against the larger tax parcel, multiplied by the area
contained within such Land, divided by the area of the larger tax parcel. All prior years' taxes
and assessments will be Seller's obligations. Notwithstanding anything to the contrary, any taxes,
penalties, or interest levied or assessed for periods before Closing as a result of a change in land
usage or ownership (such taxes, penalties, and interest being referred to herein as "Roll-Back
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 9
Taxes") shall be the sole responsibility of Purchaser, and Purchaser agrees to indemnify and hold
Seller harmless with respect to such Roll-Back Taxes. The provisions of this Section 9(a) survive
Closing.
(b) Seller shall pay Seller's own attorneys' fees.
(c) Purchaser shall pay (i) Escrow Agent's escrow fee, (ii) the title premium for the
basic Owner Policy, (iii) the cost of any extended title coverage or title insurance endorsements
ordered by Purchaser, (iv) any costs incurred with respect to the re-certification of the Existing
Survey pursuant to Section 3(b), (v) any costs associated with recording the Deed, and (vi)
Purchaser's own attorneys' fees.
Section 10. Distribution of Funds and Documents.
(a) Delivery of the Purchase Price. At the Closing, Escrow Agent shall deliver the
Purchase Price to Seller, and the transaction shall not be considered closed until such delivery
occurs.
(b) Other Monetary Disbursements. Escrow Agent shall, at the Closing, hold for
personal pickup or arrange for wire transfer, (i) to Seller, or order, as instructed by Seller, all
sums and any proration or other credits to which Seller is entitled and less any appropriate
proration or other charges, and (ii) to Purchaser, or order, as instructed by Purchaser, any excess
funds theretofore delivered to Escrow Agent by Purchaser and all sums and any proration or
other credits to which Purchaser is entitled and less any appropriate proration or other charges.
(c) Recorded Documents. Escrow Agent shall cause the Deed and any other
documents that Seller or Purchaser desires to record to be recorded with the appropriate county
recorder and, after recording, returned to the grantee, beneficiary or person acquiring rights
under said document or for whose benefit said document was required.
(d) Documents to Purchaser. Escrow Agent shall at the Closing deliver by
overnight express delivery to Purchaser the following:
(i) one (1) conformed copy of the Deed showing all recording data;
(ii) one (1) copy of the FIRPTA Affidavit;
(iii) one (1) original of the Purchaser's Settlement Statement;
(iv) one (1) original of the Owner Policy; and
(v) one (1) copy of all additional documents delivered by Purchaser pursuant to
Section 6(b)(3).
(e) Documents to Seller. Escrow Agent shall at the Closing deliver by overnight
express delivery to Seller, the following:
(i) one (1) conformed copy of the Deed showing all recording data;
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 10
(ii) one (1) copy of the FIRPTA Affidavit;
(iii)one (1) original of the Seller's Settlement Statement;
(iv)one (1) copy of the Owner Policy; and
(v) one (1) copy of all additional documents delivered by Seller pursuant to Section
6d 3 .
(f) All Other Documents. Escrow Agent shall at the Closing deliver by overnight
express delivery, each other document received hereunder by Escrow Agent to the person
acquiring rights under said document or for whose benefit said document was required.
Section 11. Return of Documents and Funds Upon Termination.
(a) Return of Seller's Documents. If escrow or this Contract is terminated for any
reason, Escrow Agent shall deliver all documents and materials deposited by Seller and then in
Escrow Agent's possession to Seller and shall mark any and all documents executed by both
Purchaser and Seller"VOID." Upon delivery by Escrow Agent to Seller of such documents and
materials denoted "VOID", Escrow Agent's obligations with regard to such documents and
materials under this Agreement shall be deemed fulfilled and Escrow Agent shall have no further
liability with regard to such documents and materials to either Seller or Purchaser.
(b) Return of Purchaser's Documents. If escrow or this Contract is terminated for
any reason, Escrow Agent shall deliver all documents and materials deposited by Purchaser and
then in Escrow Agent's possession to Purchaser and shall mark any and all documents executed
by both Purchaser and Seller "VOID." Upon delivery by Escrow Agent to Purchaser of such
documents and materials denoted "VOID," Escrow Agent's obligations with regard to such
documents and materials under this Agreement shall be deemed fulfilled and Escrow Agent shall
have no further liability with regard to such documents and materials to either Seller or
Purchaser.
(c) Deposit. If escrow or this Contract is terminated by Purchaser prior to the
YMCA Closing pursuant to an express right of termination hereunder, Purchaser shall be entitled
to return of the Deposit. Notwithstanding anything to the contrary, upon the YMCA Closing, the
Deposit shall immediately become the property of, and title to same shall pass to, Seller, and
Purchaser shall not be entitled to return of the Deposit for any reason or circumstance, except in
the event Seller fails or refuses to consummate the sale of the Property pursuant to this Contract
at the Closing.
(d) Disbursement of Deposit. If Escrow Agent receives a notice from either party
instructing Escrow Agent to deliver the Deposit, or component thereof, to such party, Escrow
Agent shall deliver a copy of the notice to the other party within three (3) days after receipt of
the notice. If the other party does not object to the delivery of the Deposit or component thereof
as set forth in the notice within three (3) business days after receipt of the copy of the notice,
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 11
Escrow Agent shall, and is hereby authorized to, deliver the Deposit or component thereof to the
party requesting it pursuant to the notice. Any objection hereunder shall be by notice setting
forth the nature and grounds for the objection and shall be sent to Escrow Agent and to the party
requesting the Deposit or component thereof. In the event that the Deposit is delivered to Seller
in accordance herewith, other than with respect to Closing, Escrow Agent, at the request of
Purchaser, shall deliver the Deed to Purchaser.
(e) No Effect on Rights of Parties; Survival. The return of documents and monies
as set forth above shall not affect the right of either party to seek such legal or equitable remedies
as such party may have under Section 16 with respect to the enforcement of this Contract. The
obligations under this Section 11 shall survive termination of this Contract.
Section 12. Representations and Warranties.
(a) Seller hereby represents and warrants to Purchaser, as of the Effective Date and as
of the Closing Date, except as otherwise disclosed in written notice from Seller to Purchaser at or
prior to Closing, that:
(1) Seller's Authority. This Contract has been duly authorized by requisite
action and is enforceable against Seller in accordance with its terms; neither the
execution and delivery of this Contract nor the consummation of the sale provided for
herein will constitute a violation or breach by Seller of any provision of any agreement or
other instrument to which Seller is a party or, to Seller's current, actual knowledge, to
which Seller may be subject although not a party, or will, to Seller's current, actual
knowledge, result in or constitute a violation or breach of any judgment, order, writ,
junction or decree issued against or binding upon Seller or the Property;
(2) No Pending Proceedings. To Seller's current, actual knowledge, there is
no action, suit, proceeding or claim affecting the Property or any portion thereof, or
affecting Seller and relating to the ownership, operation, use or occupancy of the
Property, pending or being prosecuted in any court or by or before any federal, state,
county or municipal department, commission, board, bureau, agency or other
governmental entity and, to Seller's current, actual knowledge, no such action, suit,
proceeding or claim is being threatened or asserted;
(3) Seller is Not a Foreign Person. Seller is not a foreign person or entity as
defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and
Purchaser is not obligated to withhold any portion of the Purchase Price for the benefit of
the Internal Revenue Service;
(4) No Insolvency Proceedings. To Seller's current, actual knowledge, no
attachment, execution, assignment for the benefit of creditors, receivership,
conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any
other debtor relief laws is contemplated or has been filed by or against Seller or the
Property, nor, to Seller's current, actual knowledge, is any such action pending by or
against Seller or the Property; and
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 12
(5) No Competing Rights. To Seller's current, actual knowledge, no person,
firm or entity, other than Purchaser, will, as of the Closing Date, have any right to
purchase, lease or otherwise acquire or possess the Property or any part thereof.
(b) Purchaser hereby represents and warrants to Seller, as of the Effective Date and as
of the Closing Date, that this Contract has been duly authorized by requisite action and is
enforceable against Purchaser in accordance with its terms; neither the execution and delivery of
this Contract nor the consummation of the sale provided for herein will constitute a violation or
breach by Purchaser of any provision of any agreement or other instrument to which Purchaser is
a party or to which Purchaser may be subject although not a party, or will result in or constitute a
violation or breach of any judgment, order, writ, junction or decree issued against or binding
upon Purchaser.
(c) Seller and Purchaser each acknowledge that the other party has relied and will
rely on the representations and warranties of the other party above in executing this Contract and
in closing the purchase and sale of the Property pursuant to this Contract, and Seller and
Purchaser, during the term of this Contract, each agree to notify the other party promptly in the
event that Seller or Purchaser obtains knowledge of any change affecting any of such
representations and warranties of either party, in which event Purchaser and Seller, as applicable,
shall be entitled to exercise the remedies set forth in Section 16 hereof.
(d) Whenever the phrase "to Seller's current, actual knowledge" or any similar phrase
referencing or qualifying a representation by Seller's knowledge is used herein, Seller's
knowledge shall be deemed to be limited to the current, actual knowledge (as opposed to
imputed or constructive knowledge) of Paxton Motheral, Manager of Seller, without any
independent inquiry or investigation having been made;provided, however, such individual shall
have no personal liability under this Contract or otherwise with respect to the Property.
(e) Seller's representations and warranties will survive the Closing for a period of six
(6) months, at which time they shall be merged with the Deed. Notwithstanding anything to the
contrary contained herein, (1) Seller shall have no liability (and Purchaser shall make no claim
against Seller) for a breach of any representation or warranty or any other obligation of Seller
under the this Contract or any document executed by Seller in connection with the this Contract,
unless (i) the valid claims for actual damages incurred due to such breaches collectively amount
to, in the aggregate, more than Fifty Thousand and No/100 Dollars ($50,000.00), (ii) written
notice containing a description of the specific nature of such breach shall have been given by
Purchaser to Seller prior to the expiration of said six (6) month period and an action is
commenced by Purchaser against Seller with respect to any such claims by the second
anniversary of the Closing; and (2) the liability of Seller under the this Contract and the
documents executed by Seller in connection therewith shall in no event exceed, in the aggregate,
the amount of One Hundred Thousand and No/100 Dollars ($100,000.00). The provisions of this
Section 12(e) shall expressly survive Closing.
Section 13. Seller's Covenants.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 13
(a) Updating of Information. Without limiting, and subject to, Section 5, Seller
acknowledges that Purchaser will rely upon the Existing Commitment, Existing Survey, and
other materials delivered by Seller to Purchaser hereunder to satisfy itself with respect to the
condition and operation of the Property, and Seller agrees that, if Seller discovers that the
information contained in any of the materials delivered to Purchaser hereunder is inaccurate or
misleading in any respect, then Seller shall promptly notify Purchaser of such changes and
supplement such materials. Notwithstanding anything to the contrary, Seller shall have no duty
to conduct independent inquiry or investigation of any kind with respect to any materials
delivered by Seller to Purchaser hereunder.
(b) Prohibited Activities. During the pendency of this Contract, save and except in
connection with the Abatement/Demolition/Removal Condition, Seller shall not, without the
prior written consent of Purchaser, which consent Purchaser shall have no obligation to grant and
which consent, if granted, may be conditioned in such manner as Purchaser shall deem
appropriate in the sole discretion of Purchaser: (i) grant any licenses, easements or other uses
affecting any portions of the Property; (ii) permit any mechanic's or materialman's lien to attach
to any portion of the Property; (iii) place or permit to be placed on, or remove or permit to be
removed from, the Property any trees, buildings, structures or other improvements of any kind;
or(iv) excavate or permit the excavation of the Property or any portion thereof.
Section 14. Agents. Seller and Purchaser each represent and warrant to the other that
neither is a party to any brokerage or commission agreement with regard to the purchase or sale
of the Property. It is agreed that if any claims for any brokerage, finders or other fees are ever
made against Seller or Purchaser in connection with the transaction contemplated by this
Contract, all such claims shall be paid by the party whose commitments form the basis of such
claims. Seller and Purchaser each agree to indemnify and hold harmless the other from and
against any and all liabilities, claims, demands, or actions for or with respect to any other
brokerage, finders or other fees asserted by any person, firm or any court costs, attorneys' fees or
other costs and expenses arising therefrom, insofar as any such liabilities, claims, demands or
actions are based upon a contract or commitment of the indemnifying party. This Section 14
shall survive Closing.
Section 15. 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, (v) telecopied by facsimile transmission to such party
at the facsimile number specified below, or (vi) sent by email to such party at the email address
specified below. All notices and communications shall be deemed given and effective upon
receipt thereof.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 14
(b) The address of Buyer under this Contract is:
City of Fort Worth With a copy to:
Property Management Department Leann D. Guzman
200 Texas Street City Attorney's Office
Fort Worth, Texas 76102 200 Texas Street
Attn: Roger Venables Fort Worth, Texas 76102
Telephone: 817-392-6334 Telephone 817-392-7600
Email: Email:
Roger.Venables@fortworthtexas.gov Leann.Guzman@fortworthtexas.gov
(c) The address of Seller under this Contract is:
Clearfork Retail Development
Company, LLC With a copy to:
c/o Cassco Development Co., Inc. McDonald Sanders, P.C.
4200 S. Hulen Street, Suite#614 777 Main Street, Suite 2700
Fort Worth, Texas 76109 Fort Worth, Texas 76102
Attn: Paxton Motheral Attn: Robert L. Ginsburg
Telephone: 817-731-7396 Telephone: 817-336-8651
Email: paxton(i<cassco.coni Email: rlg@mcondaldlaw.com
(d) From time to time either party may designate another address or fax number
under this Contract by giving the other party advance written notice of the change.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 15
Section 16. Termination, Default, and Remedies.
(a) If Purchaser fails or refuses to timely 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 to so terminate expressly set forth in this Contract or Seller's failure
to perform Seller's material obligations under this Contract, and Purchaser's failure or refusal is
not cured within five (5) business days of written notice of default from Seller, then Seller, as
Seller's sole and exclusive remedies, shall have the right to:
(1) enforce specific performance of Purchaser's obligations under this Contract; or
(2) 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, other than those that expressly survive termination of this
Contract. If Seller terminates this Contract pursuant to this Section 16(a) prior to
the YMCA Closing, the Escrow Agent will then deliver the Earnest Money to
Seller as liquidated damages, free of any claims by any person, including
Purchaser, and return the remaining portion of the Deposit to Purchaser. If Seller
terminates this Contract pursuant to this Section 16(a) after the YMCA Closing,
the Escrow Agent will then deliver the entirety of the Deposit to Seller as
liquidated damages, free of any claims by any person, including Purchaser. THE
EARNEST MONEY AND THE DEPOSIT, AS APPLICABLE, TO WHICH
SELLER MAY BE ENTITLED IS THE PARTIES' REASONABLE
FORECAST OF JUST COMPENSATION FOR THE HARM THAT
PURCHASER'S BREACH WOULD CAUSE, WHICH IS OTHERWISE
IMPOSSIBLE OR VERY DIFFICULT TO ESTIMATE ACCURATELY.
(b) If (1) Seller fails or refuses to timely consummate the sale of the Property
pursuant to this Contract at Closing, and Seller's failure or refusal is not cured within five (5)
business days of written notice from Purchaser (provided, however, that if such failure cannot
reasonably be cured within such 5 business day period and Seller shall have commenced to cure
such failure within such 5 business day period and thereafter diligently proceeds to cure the
same, such 5 business day period shall be extended for such time as is reasonably necessary for
Seller in the exercise of due diligence to cure such failure), (2) at the Closing any of Seller's
representations, warranties or covenants contained herein is not true or has been breached or
modified and materially adversely interferes with Purchaser's Intended Use, and such
representation, warranty or covenant is not cured by Seller within five (5) business days of
written notice thereof from Purchaser (provided, however, that if such representation, warranty
or covenant cannot reasonably be cured within such 5 business day period and Seller shall have
commenced to cure same within such 5 business day period and thereafter diligently proceeds to
cure the same, such 5 business day period shall be extended for such time as is reasonably
necessary for Seller in the exercise of due diligence to cure such representation, warranty or
covenant), or(3) Seller fails to perform any of Seller's other material 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 to so terminate expressly set forth in this Contract or Purchaser's failure to
perform Purchaser's obligations under this Contract, and Seller's failure or refusal is not cured
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 16
within five (5) business days of written notice of default from Purchaser(provided, however, that
if such failure cannot reasonably be cured within such 5 business day period and Seller shall
have commenced to cure such failure within such 5 business day period and thereafter diligently
proceeds to cure the same, such 5 business day period shall be extended for such time as is
reasonably necessary for Seller in the exercise of due diligence to cure such failure), then
Purchaser, as Purchaser's sole and exclusive remedies, shall have the right to:
(i) 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, other than those that expressly survive termination of this Contract;
(ii) waive, prior to or at the Closing, the applicable objection or condition and
proceed to close the transaction contemplated hereby in accordance with the
remaining terms hereof, or
(iii) enforce specific performance of Seller's obligations under this Contract.
Section 17. 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 to this Contract are
binding on either party unless set forth in a document executed by the parties or other duly
authorized agents, officers or representatives.
Section 18. Assi ns. 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 written consent of the other party.
Section 19. Taking Prior to YMCA Closing. If, prior to the YMCA Closing, Seller receives
written notice that action has been initiated (other than by Purchaser) to take the Property, or a
"material" part thereof, by eminent domain proceedings or by deed in lieu thereof, Seller shall
give Purchaser prompt written notice thereof. Purchaser shall elect, in a writing delivered to
Seller within five (5) days following the date of such notice (and Closing shall be extended to
allow for such five (5) day period) either to (a) terminate this Contract, in which event the
Earnest Money shall be refunded to Purchaser, and neither party shall have any further
obligations hereunder, other than those that expressly survive termination, or (b) consummate the
Closing, in which latter event all of Seller's assignable right, title and interest in and to the award
of the condemning authority shall be assigned to Purchaser at the Closing, without warranty or
recourse, and there shall be no reduction in the Purchase Price. For purposes of this Section 19
"material" shall mean a taking which materially adversely interferes with Purchaser's Intended
Use. Notwithstanding anything to the contrary, Purchaser shall have no right to terminate this
Contract under this Section 19 after the YMCA Closing.
Section 20. Governing Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Texas.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 17
Section 21. 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 22. Venue. Venue of any action brought under this Contract shall be in Tarrant
County, Texas if venue is legally proper in that County.
Section 23. 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 24. Business Days/Effective Date. If the Closing or the day for performance of any
act required under this Contract falls on a Saturday, Sunday, or legal holiday, then the Closing or
the day for such performance, as the case may be, shall be the next following regular business
day. The date the last of the two parties and the Escrow Agent have each executed this Contract
as set forth underneath their respective signatures shall be considered the "Effective Date" of
this Contract.
Section 25. Counterparts. This Contract may be executed in multiple counterparts, each of
which will be deemed an original, but which together will constitute one instrument.
Section 26. Terminology. The captions beside the section numbers of this Contract are for
reference only and do not modify or affect this Contract in any manner. Wherever required by
the context, any gender includes any other gender, the singular includes the plural, and the plural
includes the singular.
Section 27. Construction. The parties acknowledge that each party and its counsel have
reviewed and revised this Contract and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party is not to be employed in the
interpretation of this Contract or any amendments or exhibits to it.
Section 28. Attorney's Fees. If any action at law or in equity is necessary to enforce or
interpret the terms of this Contract, the prevailing party or parties are entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief to which such
party or parties may be entitled.
Section 29. Exchange. Purchaser hereby acknowledges that Seller may affect an IRC Section
1031 Tax Deferred Exchange. Seller's rights under this Contract may be assigned, at the
discretion of Seller, for the purposes of completing such an exchange. Purchaser agrees to
cooperate with the designee of Seller and complete the exchange, as part of a so-called like kind
exchange, but Purchaser shall not have to incur any expense related thereto nor take title to any
other property.
Section 30. Confidentiality. Purchaser hereby acknowledges that certain Due Diligence
Access Agreement between Seller and YMCA dated effective as of November 12, 2019 (the
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 18
"Due Diligence Agreement") is in full force and effect, including the confidentiality provisions
thereof. Purchaser hereby agrees that Purchaser shall maintain, and cause to be maintained, as
confidential any and all information or materials gained by or delivered to Purchaser with respect
to the Property in connection with this Contract, including, without limitation, the Existing
Survey, the Existing Commitment, the Phase I and the Asbestos Survey, consistent with the
confidentiality provisions of the Due Diligence Agreement. The terms of this Section 30 shall
survive the Closing or termination of this Contract.
Section 31. Delivery of Due Diligence Information and Return of Purchaser's
Information. If Seller or Purchaser shall terminate this Contract for any reason, Purchaser will
return to Seller all materials, including copies, that Seller delivered to Purchaser under this
Contract, and, in the event any materials were transmitted to Purchaser electronically, Purchaser
shall delete/dispose of such materials and promptly certify to Seller in writing that it has done
SO.
Section 32. Escrow Agent Duties and Disputes. (a) Escrow Agent shall not be bound in any
way by any other agreement or contract between Seller and Purchaser, whether or not Escrow
Agent has knowledge thereof. Escrow Agent's only duties and responsibilities with respect to
the Deposit shall be to hold the Deposit and other documents delivered to it as agent and to
dispose of the Deposit and such documents in accordance with the terms of this Contract.
Without limiting the generality of the foregoing, Escrow Agent shall have no responsibility to
protect the Deposit and shall not be responsible for any failure to demand, collect or enforce any
obligation with respect to the Deposit or for any diminution in value of the Deposit from any
cause, other than Escrow Agent's gross negligence or willful misconduct. Escrow Agent may, at
the expense of Seller and Purchaser, consult with counsel and accountants in connection with its
duties under this Contract. Escrow Agent shall not be liable to the parties hereto for any act
taken, suffered or permitted by it in good faith in accordance with the advice of counsel and
accountants. Escrow Agent shall not be obligated to take any action hereunder that may, in its
reasonable judgment, result in any liability to it unless Escrow Agent shall have been furnished
with reasonable indemnity satisfactory in amount, form and substance to Escrow Agent.
(b) Escrow Agent is acting as a stakeholder only with respect to the Deposit. If there is
any dispute as to whether Escrow Agent is obligated to deliver the Deposit or as to whom the
Deposit is to be delivered, Escrow Agent shall not make any delivery, but shall hold the Deposit
until receipt by Escrow Agent of an authorization in writing, signed by all the parties having an
interest in the dispute, directing the disposition of the Deposit, or, in the absence of
authorization, Escrow Agent shall hold the Deposit until the final determination of the rights of
the parties in an appropriate proceeding. Escrow Agent shall have no responsibility to determine
the authenticity or validity of any notice, instruction, instrument, document or other item
delivered to it, and it shall be fully protected in acting in accordance with any written notice,
direction or instruction given to it under this Contract and believed by it in good faith to be
authentic. If written authorization is not given, or proceedings for a determination are not begun,
within thirty (30) days after the date scheduled for the closing of title and diligently continued,
Escrow Agent may, but is not required to, bring an appropriate action or proceeding for leave to
deposit the Deposit with a court of competent jurisdiction in Tarrant County, Texas pending a
determination. Escrow Agent shall be reimbursed for all actual and reasonable costs and
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 19
expenses of any action or proceeding, including, without limitation, reasonable attorneys' fees
and disbursements incurred in its capacity as Escrow Agent, by the party determined not to be
entitled to the Deposit. Upon making delivery of the Deposit in the manner provided in this
Contract, Escrow Agent shall have no further liability hereunder. In no event shall Escrow
Agent be under any duty to institute, defend or participate in any proceeding that may arise
between Seller and Purchaser in connection with the Deposit.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Page 20
This Contract is EXECUTED to be effective as of the Effective Date.
SELLER:
CLEARFORK RETAIL DEVELOPMENT COMPANY,LLC,
a Texas limited iia ' ' company
By:
Crawford H. Edwards, Manager
Date Signed:
PURCHASER:
CITY OF FORT WORTH,TEXAS
By:
Kevin Gun , Interim Assistant City Manager
Date Signed: f Z 2v�/�
.Attest:
>y� i
C ty ecr
M&C - 00�- 01/141ao
]Date Signed: � �
APPROVED AS TO LEGALITY AND FORM
t
illkav'x OZLM at,
As istant City Attorney
Date Signed: I 117 n2,�2
OFF10AL RECORD
CITY SECRETARY
FT. WORTH,TX
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT
CONSENT AND AGREEMENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (1) accept the foregoing Contract, (ii) be escrow
agent under said Contract, and (iii) be bound by said Contract in the performance of its duties as
escrow agent.
RATTIKIN TITLE COMPANY
By:
Name:
Title:
Date:
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Signature Page
EXHIBIT A
Legal Description of the Land
Being all of Block One (1), OVERTON SOUTH ADDITION, an addition to the City of Fort
Worth, Tarrant County, Texas according to the map or plat recorded in Volume 388-89, Page 4
of the Map Records of Tarrant County, said Block 1 being deeded to Young Men's Christian
Association of Metropolitan Fort Worth by Cass O. Edwards, II and Eva Colleen Geren as
recorded in Volume 5349, Page 308, filed on November 15, 1972, in the Deed Records of
Tarrant County, Texas; SAVE AND EXCEPT that portion conveyed to the City of Fort Worth in
deed dated June 25, 2014, filed for record under Clerk's File No. D214241954, Deed Records of
Tarrant County, Texas.
Tarrant County Tax Account No. 02097621
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit A
EXHIBIT B
Existing Commitment
[Attached]
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit B
THE FOLLOWING COMMITMENT FOR TITLE INSURANCE IS NOT VALID UNLESS YOUR NAME AND THE
POLICY AMOUNT ARE SHOWN IN SCHEDULE A, AND OUR AUTHORIZED REPRESENTATIVE HAS
COUNTERSIGNED BELOW.
COMMITMENT FOR TITLE INSURANCE
Issued By
CHICAGO TITLE INSURANCE COMPANY
We (Chicago Title Insurance Company) will issue our title insurance policy or policies (the Policy) to You (the
proposed insured) upon payment of the premium and other charges due, and compliance with the requirements in
Schedule C. Our policy will be in the form approved by the Texas Department of Insurance at the date of
issuance, and will insure your interest in the land described in Schedule A. The estimated premium for our Policy
and applicable endorsements is shown on Schedule D. There may be additional charges such as recording fees,
and expedited delivery expenses.
This Commitment ends ninety (90) days from the effective date, unless the Policy is issued sooner, or failure to
issue the Policy is our fault. Our liability and obligations to you are under the express terms of this Commitment
and end when this Commitment expires.
Authorized CHICAGO TITLE INSURANCE COMPANY
RATTIKIN TITLE COMPANY
_ ' ►' By.
l�
By. � %'L'
ni-c-r:sT Preslacoc
�yyouc
O secretur
FORM T-7: Commitment for Title Insurance 19-4668
TEXAS TITLE INSURANCE INFORMATION
Title insurance insures you against loss resulting from certain risks to your title.
The commitment for Title Insurance is the title insurance company's promise to issue the title insurance policy.
The commitment is a legal document. You should review it carefully to completely understand it before your
closing date.
El seguro de titulo le asegura en relacion a perdidas resultantes de ciertos riesgos que pueden afectar el titulo
de su propiedad. El Compromiso para Seguro de Titulo es la promesa de la compahia aseguradora de titulos
de emitir la poliza de seguro de tiitulo. El Compromiso es un documento legal. Usted debe leerlo
cuidadosamente y entenderlo complemente antes de la fecha para finalizar su transaccion.
Your Commitment for Title Insurance is a legal contract between you and us. The Commitment is not an opinion
or report of your title. It is a contract to issue you a policy subject to the Commitment's terms and requirements.
Before issuing a Commitment for Title Insurance (the Commitment) or a Title Insurance Policy(the Policy), the title
Insurance Company (the Company) determines whether the title is insurable. This determination has already
been made. Part of that determination involves the Company's decision to insure the title except for certain risks
that will not be covered by the Policy. Some of these risks are listed in Schedule B of the attached Commitment
as Exceptions. Other risks are stated in the Policy as Exclusions. These risks will not be covered by the Policy.
The Policy is not an abstract of title nor does a Company have an obligation to determine the ownership of any
mineral interest.
MINERALS AND MINERAL RIGHTS may not be covered by the Policy. The Company may be unwilling to insure
title unless there is an exclusion or an exception as to Minerals and Mineral Rights in the Policy. Optional
endorsements insuring certain risks involving minerals, and the use of improvements (excluding laws, shrubbery
and trees) and permanent buildings may be available for purchase. If the title insurer issues the title policy with an
exclusion or exception to the minerals and mineral rights, neither this Policy, nor the optional endorsements,
ensure that the purchaser has title to the mineral rights related to the surface estate.
Another part of the determination involves whether the promise to insure is conditioned upon certain requirements
being met. Schedule C of the Commitment lists these requirements that must be satisfied or the Company will
refuse to cover them. You may want to discuss any matters shown in Schedules B and C of the Commitment with
an attorney. These matters will affect your title and your use of the land.
When your Policy is issued, the coverage will be limited by the Policy's Exception, Exclusions and Conditions,
defined below.
EXCEPTIONS are title risks that a Policy generally covers but does not cover in a particular instance.
Exceptions are shown on Schedule B or discussed in Schedule C of the Commitment. They can also be
added if you do not comply with the Conditions section of the Commitment. When the Policy is issued, all
Exceptions will be on Schedule B of the Policy.
EXCLUSIONS are title risks that a Policy generally does not cover. Exclusions are contained in the Policy
but not shown or discussed in the Commitment.
CONDITIONS are additional provisions that qualify or limit your coverage. Conditions include your
responsibilities and those of the Company. They are contained in the Policy but not shown or discussed in
the Commitment. The Policy Conditions are not the same as the Commitment Conditions.
You can get a copy of the policy form approved by the Texas Department of Insurance by calling the Title
Insurance Company at (800)925-0965 or by calling the title insurance agent that issued the Commitment. The
Texas Department of Insurance may revise the policy form from time to time.
FORM T-7: Commitment for Title Insurance 19-4668
Title Insurance Information
TEXAS TITLE INSURANCE INFORMATION
(Continued)
You can also get a brochure that explains the policy from the Texas Department of Insurance by calling
(800)252-3439.
Before the Policy is issued, you may request changes in the policy. Some of the changes to consider are:
Request amendment of the "area and boundary" exception (Schedule B, paragraph 2). To get this
amendment, you must furnish a survey and comply with other requirements of the Company. On the
Owner's Policy, you must pay an additional premium for the amendment. If the survey is acceptable to the
Company and if the Company's other requirements are met, your Policy will insure you against loss
because of discrepancies or conflicts in boundary lines, encroachments or protrusions, or overlapping of
improvements. The Company may then decide not to insure against specific boundary or survey
problems by making special exceptions in the Policy. Whether or not you request amendment of the"area
and boundary" exception, you should determine whether you want to purchase and review a survey if a
survey is not being provided to you.
Allow the Company to add an exception to "rights of parties in possession". If you refuse this exception,
the Company or the title insurance agent may inspect the property. The Company may except to and not
insure you against the rights of specific persons, such as renters, adverse owners or easement holders
who occupy the land. The company may charge you for the inspection. If you want to make your own
inspection, you must sign a Waiver of Inspection form and allow the Company to add this exception to
your Policy.
The entire premium for a Policy must be paid when the Policy is issued. You will not owe any additional premiums
unless you want to increase your coverage at a later date and the Company agrees to add an Increased Value
Endorsement.
FORM T-7: Commitment for Title Insurance 19-4668
Title Insurance Information
COMMITMENT FOR TITLE INSURANCE (FORM T-7)
SCHEDULE A
Issued By
CHICAGO TITLE INSURANCE COMPANY
Effective Date: October 30, 2019 GF No.: 19-4668
Commitment No. 19-4668, issued November 25, 2019, 8:00 AM
1. The policy or policies to be issued are:
a. OWNER'S POLICY OF TITLE INSURANCE (Form T-1)
(Not applicable for improved one-to-four family residential real estate)
Policy Amount: $1,119,587.00
PROPOSED INSURED: Clearfork Retail Development Company, LLC, a Texas limited liability company
b. TEXAS RESIDENTIAL OWNER'S POLICY OF TITLE INSURANCE
ONE-TO-FOUR FAMILY RESIDENCES (Form T-1R)
Policy Amount:
PROPOSED INSURED:
c. LOAN POLICY OF TITLE INSURANCE (Form T-2)
Policy Amount:
PROPOSED INSURED:
Proposed Borrower:
d. TEXAS SHORT FORM RESIDENTIAL LOAN POLICY OF TITLE INSURANCE (Form T-2R)
Policy Amount:
PROPOSED INSURED:
Proposed Borrower:
e. LOAN TITLE POLICY BINDER ON INTERIM CONSTRUCTION LOAN (Form T-13)
Binder Amount:
PROPOSED INSURED:
Proposed Borrower:
f. OTHER
Policy Amount:
PROPOSED INSURED:
2. The interest in the land covered by this Commitment is:
Fee Simple
3. Record title to the land on the Effective Date appears to be vested in:
YOUNG MEN'S CHRISTIAN ASSOCIATION OF METROPOLITAN FORT WORTH
FORM T-7: Commitment for Title Insurance 19-4668
Schedule A
SCHEDULE A
(Continued)
4. Legal description of land:
BEING a portion of Block 1, Overton South Addition, (Block 1) Fort Worth. Tarrant County, Texas according to
the Plat recorded in Volume 388-89, Page 4 of the Plat Records of Tarrant County, Texas (PRTC) and as
described in the Deed to the Young Men's Christian Association of Metropolitan Fort Worth (YMCA) recorded
in Volume 5349, Page 308 of the Deed Records of Tarrant County, Texas (DRTC), save and except, that
portion of the said Block 1 Overton South Addition, described in the Deed to the City of Fort Worth recorded in
D214241954 DRTC (Fort Worth tract), said tract being tied to the Texas Coordinate System using RTK
surveying methods tied to the SmartNet Network tied to reference Station No 2308, bearings are grid and
distances are horizontal ground measurements, said tract being more particularly described as follows:
BEGINNING a found capped iron pin (CIP)for the south corner of the said Block 1, being the northwest
intersection of Barwick Drive and Westhaven Drive West, said point being on a curve from which the center
bears S 48' 37' 06"W, 475.31 ft;
THENCE northwest with said curve along the northeast right-of-way of the Barwick Drive, through a central
angle of 3° 16' 51"for a distance of 117.89ft to a point, from which a found 5/8in iron pin bears S 41° 12'42"
W, 0.62ft;
THENCE N 30'40' 16" E with the west line of the said Block 1, 585.80ft to a point, from which a found CIP
bears S 55' 25' 28"W, 0.49ft;
THENCE N 89' 53'44"E, 220.04ft to a point,from which a found CIP bears S 43'43' 06"W, 0.36ft, said point
being the northwest corner of the said Fort Worth tract and being non-tangent to a curve from which the center
bears S 89' 34'71" E, 218.03ft.
THENCE southeasterly with the said curve and the western boundary of the said Fort Worth tract, through a
central angle of 40' 03' 32",for a distance of 152.44ft to a point of compound curve,from which a found CIP
bears S 38' 51' 09"W, 0.25ft and from which the center bears N 50' 10, 04" E, 533.57ft;
THENCE continuing with the said western boundary of the said Fort Worth tract, through a central angle of 20'
08'47"for a distance of 187.62ft to a found CIP;
THENCE S 59' 58'44" E, with the said western boundary of the said Fort Worth tract, 60.56ft to a point in the
original east boundary of the said Block 1, from which a found CIP bears N 7° 06' 32"W, 0.19ft;
THENCE S 0° 01' 16" W, with the said east line of Block 1, 149.21ft to a found 5/8inch iron pin being in the
north right-of-way of the said Westhaven Drive West;
THENCE N 62' 30'44"W, with the said north line of Westhaven Drive. 54.25ft to a point from which a found
5/8inch iron pin bears N 25' 20' 10"W, 0.28ft said point being the beginning of a curve from which the center
bears S 27°29' 16" E, 475.31ft;
THENCE westerly with the said curve along the northerly line of the said Westhaven Drive, through a central
angle of 75' 31' 58"for a distance of 626.60ft to a found bent 5/8inch iron pin;
THENCE S 41° 57' 16"W 94.75ft to the place of beginning and containing 4.672 acres of land.
NOTE: THE COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE OR SQUARE FOOTAGE
CALCULATIONS ARE CORRECT.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule A
SCHEDULE B
Commitment No.: 19-4668 GF No.: 19-4668
EXCEPTIONS FROM COVERAGE
In addition to the Exclusions and Conditions and Stipulations, your Policy will not cover loss, costs, attorney's fees,
and expenses resulting from:
1. The following restrictive covenants of record itemized below:
Covenants as recorded in Volume 5349, Page 299, in Volume 5349, Page 308, and in Volume 388-89, Page
4, Deed Records of Tarrant County, Texas, but omitting any covenant or restriction based on race, color,
religion, sex, handicap, familial status or national origin unless and only to the extent that said covenant (a) is
exempt under Chapter 42, Section 3607 of the United States Code or(b) related to the handicap but does not
discriminate against handicapped persons.
2. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or
any overlapping of improvements.
3. Homestead or community property or survivorship rights, if any of any spouse of any insured. (Applies to the
Owner's Policy only.)
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 of vegetation, or the rights of access to
that area or easement along and across that area.
(Applies to the Owner's Policy only.)
5. Standby fees, taxes and assessments by any taxing authority for the year 2019, 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 11.13, Texas Tax Code, or because of improvements not assessed for a
previous tax year. (If Texas Short form Residential Loan Policy (T-2R) is issued, that policy will substitute
"which become due and payable subsequent to Date of Policy" in lieu of "for the year 2019, and subsequent
years.")
6. The terms and conditions of the documents creating your interest in the land.
7. Materials furnished or labor performed in connection with planned construction before signing and delivering
the lien document described in Schedule A, if the land is part of the homestead of the owner. (Applies to the
Loan Title Policy Binder on Interim Construction Loan only, and may be deleted if satisfactory evidence is
furnished to us before a binder is issued.)
FORM T-7: Commitment for Title Insurance 19-4668
Schedule B
SCHEDULE B
(Continued)
8. Liens and leases that affect the title to the land, but that are subordinate to the lien of the insured mortgage.
(Applies to Loan Policy(T-2) only.)
9. The Exceptions from Coverage and Express Insurance in Schedule B of the Texas Short Form Residential
Loan Policy of Title Insurance (T-2R). (Applies to Texas Short Form Residential Loan Policy of Title Insurance
(T-2R) only.) Separate exceptions 1 through 8 of this Schedule B do not apply to the Texas Short Form
Residential Loan Policy of Title Insurance(T-2R).
10. The following matters and all terms of the documents creating or offering evidence of the matters:
a. Intentionally deleted.
b. All leases, grants, exceptions or reservations of coal, lignite, oil, gas and other minerals, together with
all rights, privileges and immunities relating thereto, appearing in the Public Records whether listed in
Schedule"B"or not. There may be leases, grants, exceptions or reservations of mineral interest that
are not listed.
C. Rights of parties in possession. (Owners Policy Only)
d. A variable width drainage and utility easement along the Northwest, North and most Easterly side(s) of
the property, as shown by plat recorded in Volume 388-89, Page 4, Deed Records of Tarrant County,
Texas, and shown on survey plat dated November 25, 2019 prepared by J.B. Davies, III, Registered
Professional Land Surveyor No. 4368.
e. A 10 foot wide sanitary sewer easement across the property, as shown by plat recorded in Volume
388-89, Page 4, Deed Records of Tarrant County, Texas, and shown on survey plat dated November
25, 2019 prepared by J.B. Davies, III, Registered Professional Land Surveyor No. 4368.
f. A 15 foot wide drainage easement across the Southeast portion of the property, as shown by plat
recorded in Volume 388-89, Page 4, Deed Records of Tarrant County, Texas, and shown on survey
plat dated November 25, 2019 prepared by J.B. Davies, III, Registered Professional Land Surveyor
No. 4368.
g. A 20 foot by 20 foot public open space restriction and/or easement over the most Southerly corner(s)
of the property, as shown by plat recorded in Volume 388-89, Page 4, Deed Records of Tarrant
County, Texas, and shown on survey plat dated November 25, 2019 prepared by J.B. Davies, III,
Registered Professional Land Surveyor No.4368.
h. Notice(s) of any law, ordinance, permit, fees or governmental regulation (including building and
zoning) restricting, regulating, prohibiting or relating to the occupancy, use, or enjoyment of the
property, as noted and/or shown on plat recorded in Volume 388-89, Page 4, Deed Records of
Tarrant County, Texas.
i. Terms, conditions, option to repurchase, restrictions, stipulations of, and easements reserved in deed
recorded in Volume 5349, Page 308, Deed Records of Tarrant County, Texas.
j. The reversionary rights contained in the restrictions of record in Volume 5349, Page 308, Deed
Records of Tarrant County, Texas.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule B
SCHEDULE B
(Continued)
k. Terms, conditions, restrictions, option to repurchase, right of first refusal, stipulations of, and
easements set forth in Agreement recorded in Volume 5349, Page 299, Deed Records of Tarrant
County, Texas.
I. Terms, conditions, stipulations of, and easements granted by Drainage Ditch Maintenance
Agreement, recorded in Volume 5636, Page 327, Deed Records of Tarrant County, Texas, and noted
on survey plat dated November 25, 2019 prepared by J.B. Davies, III, Registered Professional Land
Surveyor No. 4368.
M. Easement for right-of-way granted to TEXAS ELECTRIC SERVICE COMPANY by instrument
recorded in Volume 5703, Page 35, Deed Records of Tarrant County, Texas, and shown on survey
plat dated November 25, 2019 prepared by J.B. Davies, III, Registered Professional Land Surveyor
No. 4368.
n. Easement for right-of-way granted to TEXAS ELECTRIC SERVICE COMPANY by instrument
recorded in Volume 7510, Page 2341, Deed Records of Tarrant County, Texas, and noted on survey
plat dated November 25, 2019 prepared by J.B. Davies, III, Registered Professional Land Surveyor
No. 4368.
o. Terms, conditions, and stipulations of Oil, Gas and Mineral Lease dated May 4, 2007, filed for record
under Clerk's File No. D207188510, Deed Records of Tarrant County, Texas. Title to said Lease has
not been checked subsequent to the date of recording of said Lease.
P. Easement for permanent sewer and right of way filed for record under Clerk's File No. D209192967,
Deed Records of Tarrant County, Texas, and shown on survey plat dated November 25, 2019
prepared by J.B. Davies, III, Registered Professional Land Surveyor No. 4368.
q. Rights of tenants in possession, as tenants only, under any unrecorded leases or rental agreements.
r. Consequences, if any, including rights and interests of others, arising out of or evidenced by the
following matters as disclosed on the survey dated November 25, 2019, prepared by J.B. Davies, III,
Registered Professional Land Surveyor No. 4368:
1) Underground sewer lines as evidenced by a sanitary sewer clean out along the South property line.
2) Overhead electrical lines, power poles, anchors and guys along the North and Northwest property
lines.
3)A chain link fence inside and outside of the North, Northwest, Northeast, East and South property
lines.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule B
SCHEDULE C
Commitment No.: 19-4668 GF No.: 19-4668
Your Policy will not cover loss, costs, attorney's fees, and expenses resulting from the following requirements that
will appear as Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction,
before the date the Policy is issued:
1. Documents creating your title or interest must be approved by us and must be signed, notarized and filed
for record.
2. Satisfactory evidence must be provided that:
a. no person occupying the land claims any interest in that land against the persons named in
paragraph 3 of Schedule A,
b. all standby fees, taxes, assessments and charges against the property have been paid,
C. all improvements or repairs to the property are completed and accepted by the owner, and that
all contractors, sub-contractors, laborers and suppliers have been fully paid, and that no
mechanic's, laborer's or materialmen's liens have attached to the property,
d. there is legal right of access to and from the land,
e. (on a Loan Policy only) restrictions have not been and will not be violated that affect the validity
and priority of the insured mortgage.
3. You must pay the seller or borrower the agreed amount for your property or interest.
4. Any defect, lien or other matter that may affect title to the land or interest insured, that arises or is filed
after the effective date of this Commitment.
5. OTHER SPECIFIC EXCEPTIONS:
a.
i. Unless otherwise requested in writing prior to closing of the subject transaction, all
Endorsements to each Loan Policy of Title Insurance issued pursuant to this
Commitment able to be incorporated by reference will be so incorporated in each said
Loan Policy.
ii. The Company shall follow the Rules as set out by the Texas Department of Insurance in
disbursing the funds provided by the Assured and/or Insured on Schedule A of this
Commitment. Good Funds shall be as defined in Rule P-27; however, the Company
requires that such funds be "collected funds" prior to disbursement, except for funds
delivered to the Company by bank wire, cashier's check or cash. The Company does
not accept any ACH (Automated Clearing House) funds of any type or form. The
Company's wire transfer instructions are attached to this commitment.
iii. Your policy will contain an arbitration provision. It allows you or the Company to require
arbitration if the amount of insurance is $2,000,000 or less. If you want to retain your
right to sue the Company in case of a dispute over a claim, you must request deletion of
the arbitration provision before the policy is issued. You can do this by signing the
enclosed form and returning it to the Company at or before the closing of your real
estate transaction. (Not applicable to Residential Owner Policy)
iv. The Contract you entered into agreeing to purchase the property described in Schedule
FORM T-7: Commitment for Title Insurance 19-4668
Schedule C
SCHEDULE C
(Continued)
A of this Commitment may provide that the standard Owner Title Policy contains an
exception as to "discrepancies, conflicts, shortages in area or boundary lines,
encroachments or protrusions, or overlapping of improvements", and that Buyer, at
Buyer's expense or at the expense of the party designated in the Contract, may have the
exception amended to read, "shortages in area", thereby giving you coverage for these
matters.
Also, the Texas Title Insurance Information portion of this Commitment for Title
Insurance advises the Insured that the Policy will insure against loss because of such
discrepancies or conflicts in boundary lines, encroachment or protrusions, or overlapping
of improvements, so long as a survey is provided that is acceptable to the Company,
and an additional premium for the coverage is paid.
The Owner Policy of Title Insurance to be issued in this transaction will contain the
coverage described in the above paragraph, and, unless the Contract provides
otherwise, the Insured will be charged the additional premium promulgated by the Texas
Department of Insurance, unless an acceptable survey is not furnished, or, on or before
the date of closing, the Insured advises the Company in writing that the Insured rejects
this coverage.
(Applies to the Owner Title Insurance Policy only)
V. The Texas Title Insurance Information portion of this Commitment advises the Insured
that the Policy is not an abstract of title and that the Company does not have an
obligation to determine the ownership of any mineral interest(s). In addition, it states that
minerals and mineral rights may not be covered by the Policy and that the Company may
include an exclusion or exception as to minerals and mineral rights in the Policy. In the
event the Company issues the Policy with an exclusion or exception to mineral and
mineral rights, optional endorsements insuring certain risks involving minerals and the
use of improvements (excluding lawns, shrubbery and trees) and permanent buildings,
as applicable for the nature of the property to be insured, may be available upon
payment of an additional premium. However, if the Policy is issued with an exclusion or
exception as to minerals and mineral rights, neither this Policy, nor the optional
endorsements insure that the Insured has title to the minerals or mineral rights related to
the surface estate.
The Owner's Policy of Title Insurance to be issued in this transaction will contain the
coverage described in the above paragraph, and the Insured will be charged the
additional premium promulgated by the Texas Department of Insurance, unless, on or
before the date of closing, (i) the Company chooses not to issue such coverage or, (ii)
the Insured advises the Company in writing that the Insured rejects this coverage.
(Applies to the Owner's Policy of Title Insurance only.)
vi. All oil, gas, and/or other reservations created at closing of the subject transaction
shall be included as an exception in the Policy/Policies issued.
vii. This transaction may be subject to a confidential order issued pursuant to the Bank
Secrecy Act. Information necessary to comply with the confidential order must be
provided prior to the closing. This transaction will not be insured until this information is
submitted, reviewed and found to be complete.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule C
SCHEDULE C
(Continued)
viii. Notwithstanding any other requirements made herein - For entities purchasing,
borrowing, refinancing, or selling real property, the Company will require evidence that
verifies the entity's validity, good standing or ability to conduct business in the State of
Texas. Further requirements will be made to verify who has authority to sign on behalf of
the entity and that the proposed transaction has been authorized.
6. No outstanding voluntary liens are found of record affecting the subject property. Inquire into the existence
of any unrecorded liens or other indebtedness which could give rise to a security interest in the subject
property.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule C
SCHEDULE D
Commitment No.: 19-4668 GF No.: 19-4668
Pursuant to the requirements of Rule P-21, Basic Manual of Rules, Rates and Forms for the writing of Title
Insurance in the State of Texas, the following disclosures are made:
1. The issuing Title Insurance Company, Chicago Title Insurance Company, is a corporation whose shareholders
owning or controlling, directly or indirectly, 10%of said corporation, directors and officers are listed below:
Shareholders: Fidelity National Title Group, Inc.which is owned 100% by FNTG Holdings, LLC which is owned 100%
by Fidelity National Financial, Inc.
Directors: Edson N. Burton, Jr., Marjorie Nemzura, Michael J. Nolan,Anthony J. Park, Raymond R. Quirk
Officers: President, Raymond R. Quirk, Executive Vice President,Anthony J. Park, Secretary, Marjorie Nemzura,
Treasurer, Daniel K. Murphy
2. The following disclosures are made by the Title Insurance Agent issuing this commitment:
RATTIKIN TITLE COMPANY, a Texas corporation, Title Insurance Agent
The names of each shareholder, owner, partner, or other person having, owning or controlling one (1)
percent or more of the Title Insurance Agent that will receive a portion of the premium are as follows:
Jack Rattikin III, Alicia Rattikin Lindsey, Jeffrey Alan Rattikin and Allyson Rattikin Grona.
The names of the president, the executive or senior vice-president, the secretary and the treasurer of
Rattikin Title Company: Jack Rattikin, Jr., Chairman of the Board; Jack Rattikin III, President and CEO;
Brian Grona, Senior Vice President; Richard M. Miles, Senior Vice President; Mark Moore,Vice President,
Controller and Treasurer; Diane Harris, Vice President and Secretary; Jack Rattikin, Jr., Director; Glenda
S. Rattikin, Director; Jack Rattikin III, Director; Alicia Rattikin Lindsey, Director; Jeffrey Alan Rattikin,
Director; and Allyson Rattikin Grona, Director
3. You are entitled to receive advance disclosure of settlement charges in connection with the proposed
transaction to which this commitment relates. Upon your request, such disclosure will be made to you.
Additionally, the name of any person, firm or corporation receiving any sum from the settlement of this
transaction will be disclosed on the closing or settlement statement.
You are further advised that the estimated title premium* is.-
Owner's Policy $ 6,093.00
Endorsement Charges $ 963.95
Total $ 7,056.95
Of this total amount: 15% will be paid to the policy issuing Title Insurance Company; 85% will be retained by the
issuing Title Insurance Agent; and the remainder of the estimated premium will be paid to other parties as follows:
Amount To Whom For Services
'The estimated premium is based upon information furnished to us as of the date of this Commitment for Title
Insurance. Final determination of the amount of the premium will be made at closing in accordance with the Rules
and Regulations adopted by the Commissioner of Insurance.
This commitment is invalid unless the insuring provisions and Schedules A, B, and C are attached.
FORM T-7: Commitment for Title Insurance 19-4668
Schedule D
DELETION OF ARBITRATION PROVISION
(Not applicable to the Texas Residential Owner's Policy)
Commitment No.: 19-4668 GF No.: 19-4668
ARBITRATION is a common form of alternative dispute resolution. It can be a quicker and cheaper means to
settle a dispute with your Title Insurance Company. However, if you agree to arbitrate, you give up your right to
take the Title Insurance Company to court and your rights to discovery of evidence may be limited in the arbitration
process. In addition, you cannot usually appeal an arbitrator's award.
Your policy contains an arbitration provision (shown below). It allows you or the Company to require
arbitration if the amount of insurance is $2,000,000 or less. If you want to retain your right to sue the
Company in case of a dispute over a claim, you must request deletion of the arbitration provision before
the policy is issued. You can do this by signing this form and returning it to the Company at or before the
closing of your real estate transaction or by writing to the Company.
The arbitration provision in the Policy is as follows:
"Either the Company or the Insured may demand that the claim or controversy shall be submitted to
arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association
("Rules"). Except as provided in the Rules, there shall be no joinder or consolidation with claims or
controversies of other persons. 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, any service in
connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising
out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is
$2,000,000 or less shall be arbitrated at the option of either the Company or the Insured, unless the
Insured is an individual person (as distinguished from an Entity). All arbitrable matters when the Amount
of Insurance is in excess of$2,000,000 shall be arbitrated only when agreed to by both the Company and
the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties.
Judgment upon the award rendered by the Arbitrator(s) may be entered in any court of competent
jurisdiction."
SIGNATURE DATE
FORM T-7: Commitment for Title Insurance 19-4668
Deletion of Arbitration Provision
Rattikin Title Company
PRIVACY STATEMENT
Rattikin Title Company and its subsidiaries ("RTC") respect the privacy and security of your non-public personal
information ("Personal Information") and protecting your Personal Information is one of our top priorities. This
Privacy Statement explains RTC's privacy practices, including how we may use the Personal Information we
receive from you and from other specified sources, and to whom it may be disclosed. RTC follows the privacy
practices described in this Privacy Statement and, depending on the business performed, RTC companies may
share information as described herein.
Personal Information Collected
We may collect Personal Information about you from the following sources:
• Information we receive from you on applications or other forms, such as your name, address, social
security number,tax identification number, asset information, and income information;
• Information we receive from you through our Internet websites, such as your name, address, email
address, Internet Protocol address, the website links you used to get to our websites, and your activity
while using or reviewing our websites;
• Information about your transactions with or services performed by us, our affiliates, or others, such as
information concerning your policy, premiums, payment history, information about your home or other real
property, information from lenders and other third parties involved in such transaction, account balances,
and credit card information; and
• Information we receive from consumer or other reporting agencies and publicly recorded documents.
Disclosure of Personal Information
We may provide your Personal Information (excluding information we receive from consumer or other credit
reporting agencies) to various individuals and companies, as permitted by law, without obtaining your prior
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Privacy Statement 19-4668
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We restrict access to Personal Information about you to those employees who need to know that information to
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As required by applicable law, we will afford you the right to access your Personal Information, under certain
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Attn: Diane Harris
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Privacy Statement 19-4668
IMPORTANT NOTICE
FOR INFORMATION, OR TO MAKE A COMPLAINT CALL OUR TOLL-FREE TELEPHONE NUMBER
(800)925-0965
ALSO YOU MAY CONTACT THE TEXAS DEPARTMENT OF INSURANCE AT
(800)252-3439
to obtain information on:
1. filing a complaint against an insurance company or agent,
2. whether an insurance company or agent is licensed,
3. complaints received against an insurance company or agent,
4. policyholder rights, and
5. a list of consumer publications and services available through the Department.
YOU MAY ALSO WRITE TO THE TEXAS DEPARTMENT OF INSURANCE
P.O. BOX 149104
AUSTIN, TEXAS 78714-9104
FAX NO. (512)490-1007
AVISO IMPORTANTE
PARA INFORMACION, O PARA SOMETER UNA QUEJA LLAME AL NUMERO GRATIS
(800)925-0965
TAMBIEN PUEDE COMUNICARSE CON EL DEPARTAMENTO DE SEGUROS DE TEXAS AL
(800)252-3439
para obtener informacion sobre:
1. como someter una queja en contra de una compania de seguros o agente de seguros,
2. si una compania de seguros o agente de seguros tiene licencia,
3. quejas recibidas en contra de una compania de seguros o agente de seguros,
4. los derechos del asegurado, y
5. una lista de publicaciones y servicios para consumidores disponibles a traves del Departamento.
TAMBIEN PUEDE ESCRIBIR AL DEPARTAMENTO DE SEGUROS DE TEXAS
P.O. BOX 149104
AUSTIN, TEXAS 78714-9104
FAX NO. (512)490-1007
FORM T-7: Commitment for Title Insurance 19-4668
Important Notice
EXHIBIT C
Existing Survey
[Attached]
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit C
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BOUNDARY DESCRIPTION FOR
4.672 AC TRACT A PORTION OF
BLOCK 9 OVERTON SOUTH ADDITION
FORT WORTH TARRANT COUNTY TEXAS
BEING a portion of Block 1, Overton South Addition, (Block 1)Fort Worth, Tarrant County, Texas
according to the Plat recorded in Volume 388-89, Page 4 of the Plat Records of Tarrant County, Texas
(PRTC)and as described in the Deed to the Young Men's Christian Association of Metropolitan Fort
Worth(YMCA) recorded in Volume 5349, Page 308 of the Deed Records of Tarrant County, Texas
(DRTC),save and except, that portion of the said Block 1 Overton South Addition, described in the Deed
to the City of Fort Worth recorded in D214241954 DRTC(Fort Worth tract), said tract being tied to the
Texas Coordinate System using RTK surveying methods tied to the SmartNet Network tied to reference
Station No 2308, bearings are grid and distances are horizontal ground measurements, said tract being
more particularly described as follows:
BEGINNING a found capped iron pin (CIP)for the south corner of the said Block 1, being the northwest
intersection of Barwick Drive and Westhaven Drive West, said point being on a curve from which the
center bears S48037'06"W,475.31ft;
THENCE northwest with said curve along the northeast right-of-way of the Barwick Drive, through a
central angle of 3°16'51'for a distance of 117.89ft to a point, from which a found 5/8in iron pin bears
S41°12'42"W, 0.62ft;
THENCE N30040'16"E with the west line of the said Block 1, 585.80ft to a point, from which a found CIP
bean;S55°25'28 W, 0.49ft;
THENCE N89053'44"E, 220.04ft to a point, from which a found CIP bears S43043'06'W, 0.36ft, said point
being the northwest corner of the said Fort Worth tract and being non-tangent to a curve from which the
center bears S89047'17'E, 218.03ft.
THENCE southeasterly with the said curve and the western boundary of the said Fort Worth tract,
through a central angle of 40003'32", for a distance of 152.44ft to a point of compound curve,from which
a found CIP bears S38°51'09"W,0.25ft and from which the center bears N50010'04"E, 533.57ft;
THENCE continuing with the said western boundary of the said Fort Worth tract,through a central angle
of 20008'47"for a distance of 187.62ft to a found CIP;
THENCE S59°58'44"E, with the said western boundary of the said Fort Worth tract,60.56ft to a point in
the original east boundary of the said Block 1,from which a found CIP bears N700632"W, 0.19ft;
THENCE SO"01'21"W, with the said east line of Block 1 , 380.18ft to a found 5/8inch iron pin being in the
north right-of-way of the said Westhaven Drive West;
THENCE N62°30'44"W, with the said north line of Westhaven Drive, 54,25ft to a point from which a found
5/8inch iron pin bears N25020'10"W, 0.28ft said point being the beginning of a curve from which the
center bears S27029'16'E, 475.31ft;
THENCE westerly with the said curve along the northerly line of the said Westhaven Drive, through a
central angle of 75031'58"for a distance of 626.60ft to a found bent 5/8inch iron pin;
THENCE S41°57'16"W, 94.75ft to the place of beginning and containing 4,672 acres of land. tit y t
J B Davies Inc 4� tip` 4
November 21, 2019
TxBPLS No 10159100 ° *" �►���'� '"
� D
EXHIBIT D
SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON,
YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION
FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC
RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE
NUMBER.
THE STATE OF TEXAS §
COUNTY OF TARRANT §
CLEARFORK RETAIL DEVELOPMENT COMPANY, LLC, a Texas limited
liability company (hereinafter called "Grantor"), for and in consideration of the sum of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration in hand paid to Grantor by
CITY OF FORT WORTH, TEXAS, a home rule Municipal Corporation of the State of Texas
(hereinafter called "Grantee"), whose mailing address is Property Management Department, 200
Texas Street, Fort Worth, Texas 76102, the receipt and sufficiency of which are hereby
acknowledged, has GRANTED, SOLD, AND CONVEYED, and by these presents does
GRANT, SELL, AND CONVEY unto Grantee the surface estate only in that certain tract of
land described in Exhibit A attached hereto (the "Land"), together with: all buildings,
improvements, and fixtures located on the Land; all rights, privileges, and appurtenances
pertaining to the Land, including Grantor's right, title and interest in any utilities, adjacent
streets, alleys, strips, gores, and rights-of-way; Grantor's interest in all licenses and permits
related to the Land; and Grantor's interest in all third party warranties or guaranties, if
transferable, relating to the Land or any fixtures (collectively, the "Property").
Notwithstanding anything to the contrary, Grantor hereby forever and perpetually
reserves and excepts from the conveyance of the Property for Grantor and Grantor's successors
and assigns, all oil, gas, and other minerals of whatsoever kind or nature in, on, under and that
may be produced from the Property and all leases, royalties and rights related to same
(collectively, the "Mineral Interest"); provided, however, Grantor hereby waives and
relinquishes any of Grantor's surface rights for the use of the surface of the Property, so that
Grantor shall not at any time have any right of ingress and egress or other right to enter upon the
surface of the Property for the purpose of exploring for, developing, processing, drilling,
producing, marketing, transporting, mining, treating or any other purpose incident to the
development or production of the Mineral Interest. Notwithstanding anything to the contrary,
nothing herein shall be construed as limiting Grantor's ability to pool or unitize the Mineral
Interest with land(s) other than the Property and explore, develop or produce oil, gas and other
minerals by means of wells that are drilled or mines that open on lands other than the Property.
This conveyance is made and accepted subject to the matters set forth Exhibit B attached
hereto and made a part hereof("Permitted Encumbrances"),but only to the extent such Permitted
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 1
Encumbrances validly exist and affect the Property.
GRANTEE HAVING HAD THE OPPORTUNITY TO THOROUGHLY INSPECT THE
PROPERTY, THE PROPERTY IS BEING SOLD, CONVEYED AND ACCEPTED "AS IS,
WHERE IS, WITH ALL FAULTS," WITHOUT ANY WARRANTIES, EXPRESS OR
IMPLIED, EXCEPT FOR THE WARRANTY OF TITLE CONTAINED HEREIN AND
EXCEPT FOR ANY SPECIFIC WARRANTIES OR REPRESENTATIONS EXPRESSLY SET
FORTH IN CONTRACT OF PURCHASE AND SALE AND ESCROW AGREEMENT
BETWEEN GRANTOR AND GRANTEE DATED , 2020
("CONTRACT"). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
EXCEPT AS SET FORTH HEREIN, GRANTOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY 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 (i) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE SURFACE WATER, GROUND WATER, SOIL AND GEOLOGY, OR
THE PRESENCE OR ABSENCE OF ANY POLLUTANT, HAZARDOUS WASTE, GAS OR
OTHER SUBSTANCE OR SOLID WASTE ON OR ABOUT THE PROPERTY, (ii) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (iii) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY
INTEND TO CONDUCT THEREON, (iv) THE COMPLIANCE OF OR BY THE PROPERTY
OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY GOVERNMENTAL AUTHORITY OR BODY HAVING JURISDICTION, (v) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE
OF THE PROPERTY, AND (vi) ANY OTHER MATTER RELATED TO OR CONCERNING
THE PROPERTY, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE
CONTRACT, AND GRANTEE SHALL NOT SEEK RECOURSE AGAINST GRANTOR ON
ACCOUNT OF ANY LOSS, COST OR EXPENSE SUFFERED OR INCURRED BY
GRANTEE WITH REGARD TO ANY OF THE MATTERS DESCRIBED IN CLAUSES (i)
THROUGH (vi) ABOVE.
TO HAVE AND TO HOLD the Property, together with all and singular the rights and
appurtenances thereto in anywise belonging, unto Grantee and Grantee's successors, legal
representatives and assigns forever, subject to the Permitted Encumbrances; and Grantor does
hereby bind itself and Grantor's successors, legal representatives and assigns to WARRANT
AND FOREVER DEFEND, all and singular the Property unto Grantee and Grantee's
successors, legal representatives and assigns against every person whomsoever lawfully claiming
or to claim the same or any part thereof when the claim is by, through or under Grantor, but not
otherwise, subject to the Permitted Encumbrances.
Ad valorem taxes on the Property for the year 2020 having been prorated between
Grantor and Grantee, Grantee, by the acceptance hereof, assumes payment of 2020 taxes and
taxes for subsequent years.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 2
EXECUTED on the date of the acknowledgment below, to be effective as of
, 2020.
CLEARFORK RETAIL DEVELOPMENT
COMPANY, LLC,
a Texas limited liability company
By:
Name: Crawford H. Edwards
Title: Manager
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was acknowledged before me this day of January, 2020, by
Crawford H. Edwards, as Manager of Clearfork Retail Development Company, LLC, a Texas
limited liability company, on behalf of said company.
Notary Public, State of Texas
AFTER RECORDING RETURN TO:
City of Fort Worth
Property Management Department
200 Texas Street
Fort Worth, Texas 76102
Attn: Roger Venables
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 3
EXHIBIT A
Legal Description of the Property
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 4
EXHIBIT B
Permitted Encumbrances
1. Covenants as recorded in Volume 388-89, Page 4, Deed Records of Tarrant County,
Texas, but omitting any covenant or restriction based on race, color, religion, sex,
handicap, familial status or national origin unless and only to the extent that said
covenant (a) is exempt under Chapter 42, Section 3607 of the United States Code or (b)
related to the handicap but does not discriminate against handicapped persons.
2. The following matters and all terms of the documents creating or offering evidence of the
matters:
a. Intentionally deleted.
b. All leases, grants, exceptions or reservations of coal, lignite, oil, gas and other
minerals, together with all rights, privileges and immunities relating thereto,
appearing in the Public Records whether listed in Exhibit B or not.
C. Intentionally deleted.
d. A variable width drainage and utility easement along the Northwest, North and
most Easterly side(s) of the property, as shown by plat recorded in Volume 388-
89, Page 4, Deed Records of Tarrant County, Texas, and shown on survey plat
dated November 25, 2019 prepared by J.B. Davies, III, Registered Professional
Land Surveyor No. 4368.
e. A 10 foot wide sanitary sewer easement across the property, as shown by plat
recorded in Volume 388-89, Page 4, Deed Records of Tarrant County, Texas, and
shown on survey plat dated November 25, 2019 prepared by J.B. Davies, III,
Registered Professional Land Surveyor No. 4368.
f. A 15 foot wide drainage easement across the Southeast portion of the property, as
shown by plat recorded in Volume 388-89, Page 4, Deed Records of Tarrant
County, Texas, and shown on survey plat dated November 25, 2019 prepared by
J.B. Davies, III, Registered Professional Land Surveyor No. 4368.
g. A 20 foot by 20 foot public open space restriction and/or easement over the most
Southerly corner(s) of the property, as shown by plat recorded in Volume 388-89,
Page 4, Deed Records of Tarrant County, Texas, and shown on survey plat dated
November 25, 2019 prepared by J.B. Davies, III, Registered Professional Land
Surveyor No. 4368.
h. Notice(s) of any law, ordinance, permit, fees or governmental regulation
(including building and zoning) restricting, regulating, prohibiting or relating to
the occupancy, use, or enjoyment of the property, as noted and/or shown on plat
recorded in Volume 388-89, Page 4, Deed Records of Tarrant County, Texas.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 5
i. Intentionally deleted.
j. Intentionally deleted.
k. Intentionally deleted.
1. Terms, conditions, stipulations of, and easements granted by Drainage Ditch
Maintenance Agreement, recorded in Volume 5636, Page 327, Deed Records of
Tarrant County, Texas, and shown on survey plat dated November 25, 2019
prepared by J.B. Davies, 11I, Registered Professional Land Surveyor No. 4368.
in. Easement for right-of-way granted to TEXAS ELECTRIC SERVICE
COMPANY by instrument recorded in Volume 5703, Page 35, Deed Records of
Tarrant County, Texas, and shown on survey plat dated November 25, 2019
prepared by J.B. Davies, III, Registered Professional Land Surveyor No. 4368.
n. Easement for right-of-way granted to TEXAS ELECTRIC SERVICE
COMPANY by instrument recorded in Volume 7510, Page 2341, Deed Records
of Tarrant County, Texas, and shown on survey plat dated November 25, 2019
prepared by J.B. Davies, 111, Registered Professional Land Surveyor No. 4368.
o. Terms, conditions, and stipulations of Oil, Gas and Mineral Lease dated May 4,
2007, filed for record under Clerk's File No. D207188510, Deed Records of
Tarrant County, Texas.
P. Easement for permanent sewer and right of way filed for record under Clerk's File
No. D209192967, Deed Records of Tarrant County, Texas, and shown on survey
plat dated November 25, 2019 prepared by J.B. Davies, 11I, Registered
Professional Land Surveyor No. 4368.
q. Intentionally deleted.
r. Consequences, if any, including rights and interests of others, arising out of or
evidenced by the following matters as disclosed on the survey dated November
25, 2019, prepared by J.B. Davies, 111, Registered Professional Land Surveyor
No. 4368:
1) Underground sewer lines as evidenced by a sanitary sewer clean out
along the South property line.
2) Overhead electrical lines, power poles, anchors and guys along the
North and Northwest property lines.
3) A chain link fence inside and outside of the North, Northwest, East and
South property lines.
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit D—Page 6
EXHIBIT E
FORM OF FIRPTA CERTIFICATE
[Attached]
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit E—Page I
SELLER'S CERTIFICATION OF NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U.S. real
property interest must withhold tax if the transferor (seller) is a foreign person. For U.S. tax
purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a
U.S. real property interest under local law) will be the transferor of the property and not the
disregarded entity. To inform the transferee that withholding of tax is not required upon the
disposition of a U.S. real property interest by Clearfork Retail Development Company, LLC.,
a Texas limited liability company ("Transferor"), the undersigned hereby certifies the following
on behalf of the Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the U.S. Internal Revenue Code and Income
Tax Regulations);
2. Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii);
3. Transferor's U.S. taxpayer identification number is ; and
4. Transferor's office address is
The transferor understands that this certificate may be disclosed to the Internal Revenue Service
by transferee and that any false statement contained in this certificate may be punished by fine or
imprisonment or both.
Under penalties of perjury I declare that I have examined this certification and to the best of my
knowledge and belief it is true, correct and complete, and I further declare that I have the
authority to sign this document on behalf of Transferor.
Date signed:
CLEARFORK RETAIL DEVELOPMENT
COMPANY, LLC,
a Texas limited liability company
By:
Name:
Title:
A disregarded entity is defined in Sec. 1.1445-2(b)(2)(iii) as "an entity that is disregarded as an
entity separate from its owner under Sec. 3301.7701.3 of this chapter, a qualified REIT
subsidiary as defined in Section 856(i), or a qualified subchapter S subsidiary under Section
1361(b)(3)(B)."
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit E—Page 2
EXHIBIT F
Demolition and Removal Plan
' + # INS
{
w
Two Building Structures-to
/ adjacent landscaping and +
Pool-to inchrdt stairs,dedkmg,
Out Shucttues-to include pool
# - _ hut.mechanical area and ,
• shed k wood fmcmg k A.+ +''
to 'playground-to include ecluipmenL t.
* Chain Link Fencing(tl'P anssarbcmg.
Wrought lrou Fencing
yWE5rlIAVEM \
it. T /
r
4 4M
r
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit F
EXHIBIT G
MIDWEST LETTER
[Attached]
CONTRACT OF SALE AND PURCHASE AND ESCROW AGREEMENT Exhibit G
i
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible I
for the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
I
I
R ger n le
Assistant Director PropeLly Management Department
Title
i
I
i
i
❑ This form is N/A as No City Funds are associated with this Contract
Printed Name Signature
I
i
I
I
i
I
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH,TX
M&C Review Page 1 of 2
Official
FORT WORTI I
CITY COUNCIL AGENDA -
DATE: 1/14/2020 REFERENCE NO.: M&C 20-0026 LOG NAME: 21VANZANDT YM(
NOW PUBLIC
CODE: L TYPE: CONSENT HEARING:
NO
SUBJECT: Authorize the Acquisition of a Fee Simple Interest in Approximately 4.672 Acres of Land
Being a Portion of Block 1, Overton South Addition,Located at 4801 Westhaven Drive,
Formerly Known as Van Zandt YMCA, from Clearfork Retail Development Company,
LLC, in the Amount of$1,545,000.00, Authorize the Payment of Estimated Closing Cost
in the Amount of$25,000.00 and Dedicate the Property as Parkland to be Known as
Westhaven Park (2018 Bond Program) (COUNCIL DISTRICT 6)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the acquisition of a fee simple interest in approximately 4.672 acres of land being a
portion of Block 1, Overton South Addition, located at 4801 Westhaven Drive, formerly known as Vai
Zandt YMCA, from the Clearfork Retail Development Company, LLC in the amount of$1,545,000.00
2. Authorize the payment of estimated closing costs in the amount of$25,000.00;
3. Authorize the City Manager, or his designee, to accept the conveyance, pay just compensation,
and execute and record the appropriate instruments; and
4. Dedicate the property as parkland upon conveyance as Westhaven Park.
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to acquire land located at 4801
Westhaven Drive in accordance with the Neighborhood and Community Park Dedication Policy and
the Park, Recreation and Open Space Master Plan, which calls for the provision of adequate park an
recreational areas in the form of Neighborhood-Based Parks and Community-Based Parks.
The Park & Recreation Department (PARD) conducted an assessment of potential properties in
southwest Fort Worth for neighborhood park land acquisition. The proposed 4.672 acre site is locate
in Neighborhood Park Unit 1-03 which is underserved by 11.3925 acres of Neighborhood-Based
parkland. Because the site is centrally located adjacent to multiple neighborhood subdivisions and is
fronted by a collector street to existing neighborhoods with pedestrian access, it has been determine(
suitable for recreational amenity development with good site conditions and available utilities.
An independent appraisal was conducted and the owner, Clearfork Retail Development Company,
LLC, has agreed to the negotiated purchase price of$1,545,000.00 which includes the owner's
removal of two (2) buildings and a swimming pool, and environmental assessment. The mineral
estate will not be acquired and the deed will contain a surface waiver for the exploration of the miner-,
estate. The real estate taxes will be pro-rated with the seller being responsible for taxes due up to th
closing date. The Seller provided a site survey which will be reviewed by City staff prior to closing.
The City will pay estimated closing costs up to $25,000.00.
In addition, the PARD staff will ensure the property meets the requirements for its proposed use as a
neighborhood park by performing due diligence on the site and structures in order to properly evaluai
their suitability and potential repurposing including the costs of design and construction of recreation
and support facilities typically associated with the development of a traditional public neighborhood
park.
Staff recommends acquiring approximately 4.672 acres of land located at 4801 Westhaven Drive fror
http://apps.cfwnet.org/council_packet/mc review.asp?ID=27595&councildate=1/14/2020 1/21/2020
M&C Review Page 2 of 2
Clearfork Retail Development Company, LLC to help meet an underserved need in this sector of the
City.
The esitmated annual operating costs to maintain Westhaven Park will be $12,295.00. As of Octobe
31, 2019, the cumulative total of additional park maintenance cost for FY2021 is $26,717.00. Any
M&C's adopted after October 31, will increase this amount.
Funds for this project are included in the 2018 Bond Program. Available resources within the GenerE
Fund will be used to provide interim financing until debt is issued. Once debt associated with the
project is sold, bond proceeds will reimburse the General Fund in accordance with the statement
expressing official Intent to Reimburse that was adopted as part of the ordinance canvassing the bon
election (Ordinance No. 23209-05-2018).
This property is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendations, funds will be
available in the current capital budget, as appropriated, of the 2018 Bond Program Fund. Prior to
expenditures being made, the participating department has the responsibility to validate the
availability of funds.
TO
Fund Department Account Project Program Activity Budget Reference# Amoun.
ID ID Year Chartfield 2
FROM
Fund Department Account Project Program Activity Budget Reference # Amoun
ID I I ID I Year Chartfield 2
Submitted for City Manager's Office by: Kevin Gunn (2015)
Originating Department Head: Steve Cooke (5134)
David Creek (5744)
Additional Information Contact: Roger Venables (6334)
ATTACHMENTS
Van Zandt M and C map 11-26-19.pdf
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=27595&councildate=l/14/2020 1/21/2020