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HomeMy WebLinkAboutContract 55007 CSC No. 55007 CONTRACT OF SALE AND PURCHASE THIS CONTRACT OF SALE AND PURCHASE ("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, Deputy City Manager or Assistant City Manager ("Purchaser") and MARKUM LAND PROPERTIES, L.L.C., a Texas limited liability company ("Seller"), as of the date on which this Contract is executed by the last to sign of Seller and Purchaser("Effective Date"). AGREEMENT In consideration of the mutual covenants in this Contract, Seller and Purchaser agree as follows: Section 1. Sale and Purchase. (a) Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase and accept from Seller, on and subject to the terms and conditions set forth in this Contract approximately 5.146 acres of land situated in George W. Wilkes Survey,Abstract No. 1872,Tarrant County, Texas, and being a portion of land as conveyed via Special Warranty Deed dated April 11, 2017, as recorded in Instrument No. D217100297, of the Deed Records of Tarrant County, Texas (the "Land") and being more specifically described in Exhibit "A" attached hereto for all purposes, together with (i) all buildings, fixtures, structures and improvements thereon; (ii) any strips or gores between the Land and all abutting properties; (iii) all roads, alleys,rights-of-way, easements, streets and ways adjacent to or serving the Land and rights of ingress and egress thereto, whether surface, subsurface or otherwise; (iv) any land lying in the bed of any street,road or access way,opened or proposed,in front of, at a side of or adjoining the Land, to the centerline of such street, road or access way; (v) all of Seller's rights, titles and interest, if any, in and to all water rights or any kind or character pertaining to the Land; and (vi) all licenses, interests, and rights appurtenant to the Land. The Land and Items (i)-(vi) are collectively referred to as the "Property". (b) Seller shall convey the Property to Purchaser free and clear of all liens, claims, easements, rights-of-way, reservations, restrictions, encroachments, tenancies, and any other encumbrances (collectively, the "Encumbrances") except the Encumbrances appearing in the Title Commitment and the Survey (hereinafter defined) that are not cured and that are subsequently waived pursuant to Section 3 ("Permitted Encumbrances"). (c) Notwithstanding anything to the contrary, Seller hereby retains and reserves from this conveyance (and the Property does not include) for itself, and its successors and assigns, any and all interest in any and all oil, gas and other minerals in, on, or under the Land; provided, however, Seller hereby waives and relinquishes access to any use of the surface of the Property. Section 2. Independent Contract Consideration 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). OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX (b) The purchase price("Purchase Price")for the Property,payable by Purchaser to Seller at Closing (as hereinafter defined), is FIVE HUNDRED SEVENTY-FIVE THOUSAND and 00/100 DOLLARS($575,000.00). (c) Within ten (10) days following the Effective Date, Purchaser shall deposit with the Title Company, as defined below, an earnest money deposit in the amount of Ten Thousand and No1100 Dollars ($10,000.00) (the "Earnest Money"). The Earnest Money shall be held, applied, returned or retained in accordance with the terms of this Agreement and shall be deposited with the Title Company pursuant to the terms of a separate escrow agreement, in the form mutually agreeable to Purchaser and Seller, which shall be executed by Purchaser, Seller and the Title Company. The Earnest Money shall be invested by the Title Company as directed by Purchaser, and the Earnest Money and all interest thereon shall be applied as a credit to the Purchase Price, or if the Closing (as defined below) does not occur, credited to the party that is entitled to receive the Earnest Money pursuant to the terms of this Agreement. The remainder of the Purchase Price,plus or minus any prorations and adjustments made pursuant to this Agreement, shall be deposited by Purchaser with the Title Company in immediately available funds, for payment to Seller at Closing. Section 3. Title Commitment and Survey. (a) Within 15 business days after the Effective Date, Purchaser shall obtain at Purchaser's sole cost and expense, a Commitment for Title Insurance ("Title Commitment") from Alamo Title Company, 2900 South Hulen, Suite 30, Fort Worth, Texas 76109, (817) 921-1215, Attention: Lavonne Keith(the "Title Company"). The Title Commitment shall be effective as of a date which is on or after the Effective Date, showing Seller as the record title owner of the Land,and shall show all Encumbrances and other matters, if any, relating to the Property. The Title Company shall also deliver contemporaneously with the Title Commitment legible copies of all documents referred to in the Title Commitment,including but not limited to,plats,reservations,restrictions,and easements. (b) Purchaser may obtain a survey of the Property ("Survey") at Purchaser's sole cost and expense. The Survey shall consist of a plat and field notes describing the Property,prepared pursuant to a current on-the-ground staked survey performed by a registered public surveyor or engineer satisfactory to Purchaser and Title Company. The Survey shall (i) be certified to Purchaser, its successors and assigns, and Title Company, (ii) reflect the actual dimensions of and the total number of square feet within the Property net of any portion thereof lying within a publicly dedicated roadway or a utility easement, (iii) identify any rights-of-way, easements, or other Encumbrances by reference to applicable recording data, and(iv) include the Surveyor's registered number and seal and the date of the Survey. The description of the Property prepared as a part of the Survey will be used in all of the documents set forth in this Contract that require a legal description of the Property. (c) Purchaser shall have a period of time ("Title Review Period") commencing on the Effective Date and ending 30 business days after the Effective Date in which to notify Seller in writing of any objections ("Objections") Purchaser has to any matters shown on the Title Commitment or the Survey. (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 (10'h) 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. 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 Agreement 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 fifth(P)business day following the end of the Cure Period, the Earnest money will be returned to Purchaser,and the parties shall be released of further obligations under this Agreement; or (ii) any such Objections may be waived by or on behalf of Purchaser, with Purchaser to be deemed to have waived such Objections if notice of termination is not given within the Termination Period. Any title encumbrances or exceptions which are set forth in the Title Commitment or the Survey and 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 exceptions(the"Permitted Exceptions")to the status of Seller's title to the Property. (e) Any other provision herein to the contrary notwithstanding,(i)all exceptions disclosed in the Title Commitment(or any subsequent commitment)which arise on or after the Effective Date of this Agreement and are not attributable to actions by Purchaser and (ii) all Objections that Seller agrees in writing to cure at or prior to Closing(collectively, the"Mandatory Cure Items")shall be satisfied,cured or removed by Seller,at Seller's sole cost and expense,at or prior to Closing. Section 4. Due Diligence Documents. Within 5 business days after the Effective Date, Seller shall deliver to Purchaser for Purchaser's review (i)any and all tests, , studies and investigations relating to the Property, including,without limitation, any soil tests,engineering reports or studies, and any Phase I or other environmental audits, reports or studies of the Property; (ii) any and all information regarding condemnation notice(s), proceedings and awards affecting the Property; (iii) any existing survey(s) of the Property; and (iv) all proposed or existing private covenants, conditions and restrictions, of which the Property will be a part and any other private agreements affecting the use or development of the Property. Section 5. Tests. Purchaser, at Purchaser's sole cost and risk, shall have the right to go on to the Property, including the Improvements, to make inspections, surveys, test borings, soil analysis,and other tests, studies and surveys, including without limitation, environmental and engineering tests, borings, analysis, and studies ("Tests"). Any Tests shall be conducted at Purchaser's sole expense. At the conclusion of the Tests, the Property will be restored by Purchaser, at Purchaser's sole expense, to at least a similar condition as before the Tests were conducted. In the event this transaction does not close for any reason whatsoever,the Purchaser shall release to Seller any and all independent studies or results of Tests obtained during the Option Period(as defined below). SELLER SHALL NOT BE LIABLE TO PURCHASER, OR ANY OF PURCHASER'S PERSONNEL OR PURCHASER'S EXPERTS FOR ANY CLAIMS BY ANY PERSON FOR INJURY OR DAMAGES OR LOSS TO PERSONAL PROPERTY RESULTING FROM, INCIDENTAL TO, OR ARISING OUT OF THE CONDUCT OF THE PROPERTY INSPECTION OR THE ENTRY UPON THE PROPERTY BY PURCHASER, PURCHASER'S PERSONNEL AND/OR PURCHASER'S EXPERTS, EVEN IF THE NEGLIGENCE OR STRICT LIABILITY OF SELLER IS ALLEGED OR PROVED TO BE A CAUSE THEREOF; PROVIDED HOWEVER, THIS RELEASE OF LIABILITY SHALL NOT APPLY IF AND TO THE EXTENT THAT SELLER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IS A CAUSE THEREOF OR HAZARDOUS SUBSTANCES NOT CAUSED BY PURCHASER EXIST OR ARE DISCOVERED ON THE PROPERTY. PURCHASER AGREES TO MAKE ANY PERSON OR COMPANY WHO IS ON THE PROPERTY ON BEHALF OF PURCHASER AWARE OF THE AFOREMENTIONED RELEASE OF LIABLITY. Section 6. Option Period. (a) Notwithstanding anything to the contrary contained in this Contract,during the thirty(30) days after the Effective Date ("Option Period"), the following is a condition precedent to Purchaser's obligations under this Contract: Purchaser being satisfied in Purchaser's sole and absolute discretion that the Property is suitable for Purchaser's intended uses, including, without limitation, Purchaser being satisfied with the results of the Tests(defined in Section 5 above). (b) If Purchaser is not satisfied in Purchaser's sole and absolute discretion as to the condition precedent described in Section 6(a) above, Purchaser may give written notice thereof to Seller on or before the end of the Option Period,whereupon this Contract shall terminate. Upon such termination,the Contract will terminate,the Earnest Money will be returned to Purchaser, and neither party shall have any further rights or obligations under this Contract. (c) The provisions of this Section 6 control all other provisions of this Contract. (d) The parties agree that the Option Period will not be extended upon expiration without a written amendment signed by both parties. Section 7. Closine Deadline. The closing ("Closing") of the sale of the Property by Seller to Purchaser shall occur through the office of the Title Company on or before 30 days after the expiration of the Option Period. Section 8. Closins. (a) At the Closing, all of the following shall occur, all of which are deemed concurrent conditions: (1) Seller shall deliver or cause to be delivered to Purchaser the following: (i) A Special Warranty Deed("Deed"),fully executed and acknowledged by Seller, conveying to Purchaser good and indefeasible fee simple title to the Property subject only to the Permitted Encumbrances, but containing a reservation of the mineral rights, with the precise form of the Deed to be determined pursuant to Section 10 below; (ii) A Non-Foreign Person Affidavit, in form and substance reasonably satisfactory to Purchaser, fully executed and acknowledged by Seller, confirming that Seller is not a foreign person or entity within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended; (iii) Evidence of authority to consummate the sale of the Property as is contemplated in this Agreement or as Purchaser may reasonably request; and (iv) Any other instrument or document necessary for Title Company to issue the Owner Policy in accordance with Section 8(a)(3)below. (2) Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to be delivered to Seller through the Title Company federally wired funds or a certified or cashier's check or such other means of funding acceptable to Seller,in an amount equal to the Purchase Price,adjusted for closing costs and prorations. (3) Title Company shall issue to 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 be limited to "shortages in area," the printed form exception for restrictive covenants shall be deleted except for those restrictive covenants that are Permitted Encumbrances, there shall be no exception for rights of parties in possession, and the standard exception for taxes shall read: "Standby Fees and Taxes for the year of Closing and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership"; (4) Seller and Purchaser shall each pay their respective attorneys'fees. (5) Seller shall pay all recording fees and any other closing costs as set forth by the Title Company. (6) Seller shall pay the Broker's fee. (7) Seller shall dedicate a public right-of-way easement to Purchaser for the public's use of a road to be built to serve as access to the Property and to other property. The right-of-way dedication deed shall be in the form attached hereto as Exhibit "B." The road shall be constructed in accordance with applicable City standards and the standards attached hereto as Exhibit"C." (8) Purchaser agrees to pay Seller an additional amount of THREE HUNDRED EIGHTY-TWO THOUSAND and 00/100 DOLLARS ($382,000.00)at the completion of road construction and acceptance by Purchaser. Purchaser will escrow such funds at Closing. Funds escrowed shall be released to Seller upon the completion of said road and subject to Purchaser's approval, such approval not to be unreasonably withheld, and the parties will enter into an escrow agreement with an escrow agent agreed to by both parties reflecting the same. It is further understood the future maintenance of said road will be responsibility of the Seller. The provisions of this Section shall survive the Closing. (b) Purchaser will qualify for exemption from ad valorem taxation for the Property, and no ad valorem taxation shall accrue after the date of Closing. Therefore, any ad valorem taxes assessed against the property for the current year shall be for the period of time the Property was owned by Seller, and based on estimates of the amount of taxes that will be due and payable on the Property during the current year, Seller shall pay for any taxes and assessments applicable to the Property up to and including the date of Closing. As soon as the amount of taxes and assessments on the Property for the current year is known, Seller shall pay any additional amount of taxes to be paid for any taxes and assessments applicable to the Property up to and including the date of Closing. The provisions of this Section 8(b) survive the Closing. (c) Upon completion of the Closing, Seller shall deliver possession of the Property to Purchaser, free and clear of all tenancies of every kind except those disclosed in the Permitted Encumbrances. Section 9. Seller's Representations. 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: (a) 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 Agreement 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 two which Seller 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 Seller or the Property; (b) No Pending Proceedings. 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 o agency or other governmental entity and no such action, suit, proceeding or claim is threatened or asserted; (c) 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 Sales Price for the benefit of the Internal Revenue Service; (d) No Insolvency Proceedings. 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 is any such action pending by or against Seller or the Property; (e) Contract Obligations. Except as otherwise disclosed in the Title Commitment, no lease, contract or agreement exists relating to the Property or any portion thereof which is not terminable at will or upon not more than 30 days' prior notice except tenant leases; (f) No Competing Rights. No person,firm or entity,other than Purchaser,has any right to purchase,lease or otherwise acquire or possess the Property or any part thereof; (g) No Regulatory Violations. The Property is not in breach of any law, ordinance or regulation, or any order of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located, including, without limitation, those relating to environmental matters and hazardous waste,and no claim,action,suit or proceeding is pending or,to the best o Seller's knowledge and belief and after due inquiry, threatened against or affecting Seller or affecting the Property, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or entity wherever located, with respect to the Property or the Seller's present use and operation of the Property; and (h) No Hazardous Materials. To the best of Seller's knowledge, (i) all required federal, state and local permits concerning or related to environmental protection and regulation for the Property have been secured and are current; (ii) Seller is and has been in full compliance with such environmental permits and other requirements regarding environmental protection under applicable federal, state or local laws, regulations or ordinances; (iii) there is no pending action against Seller under any environmental law, regulation or ordinance and Seller has not received written notice of any such action or possible action; (iv) there is not now, nor has there been in the past, any release of hazardous substances on,over,at, from,into or onto any facility at the Property,as such terms are understood under the Comprehensive Environmental Response, Compensation and Liability Act; and (v) Seller does not have actual knowledge of any environmental condition, situation or incident on, at or concerning the Property that could reasonably be expected to give rise to an action or to liability under any law,rule, ordinance or common law theory governing environmental protection. Seller acknowledges that Purchaser has relied and will rely on the representations and warranties of Seller in executing this Agreement and in closing the purchase and sale of the Property pursuant to this Agreement, and Seller, during the term of this Agreement, agrees to notify Purchaser promptly in the event that Seller obtains knowledge of any change affecting any of such representations and warranties,in which event Purchaser shall be entitled to exercise the remedies set forth in Section 14 hereof. Until and unless Seller's warranties and representations shall have been qualified and modified as appropriate by any such additional information provided by Seller to Purchaser,Purchaser shall continue to be entitled to rely on Seller's representations and warranties set forth in this Agreement, notwithstanding any contrary information resulting from any inspection or investigation made by or on behalf of Purchaser. All of Seller's representations and warranties,as so qualified and modified,shall survive Closing. Section 10. Seller's Covenants. (a) Updating of Information. Seller acknowledges that Purchaser will rely upon the Title Commitment, Survey, Due Diligence documents 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. (b) Prohibited Activities. During the term of this Agreement, 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. (c) Cooperation in Permitting Activities. During the term of this Agreement, Seller will cooperate with Purchaser in such manner and at such times as Purchaser may request in obtaining subdivision, zoning or rezoning, site plan development, building permit and other approvals required for Purchaser's proposed use, including without limitation, signing such applications for such approvals and other instruments as may be required or authorizing Purchaser to sign such applications or instruments as Seller's agent or both. Purchaser shall bear the costs and expenses of obtaining all such approvals except for attorneys' fees that Seller may consider necessary in connection with reviewing such applications and instruments,which shall be borne solely by Seller. Section 11. Agents. Seller and Purchaser each represent and warrant to the other that it has not engaged the services of any agent,broker, or other similar party in connection with this transaction other than First Light Commercial Real Estate, Attention: Dawn Potthoff, President (`Broker"). Seller shall indemnify,defend,and hold Purchaser harmless from the claims of Broker and of any other agent,broker, or similar party claiming by,though,or under Seller. Section 12. Closing Documents. No later 3 business days prior to the Closing, Seller shall deliver to Purchaser copies of the closing documents (including but not limited to the Deed) for Purchaser's reasonable right of approval. Section 13. 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, or (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. (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: Ricky Salazar Fort Worth,Texas 76102 Telephone: 817-392-8379 Telephone 817-392-7600 (c) The address of Seller under this Contract is: Kyle Wilks With a copy to: 333 Shops Blvd., Ste 102 Javier Rocha Willow Park,TX 76087 PO Box 1032 Cisco,TX 76437 kyle@wilksdevelopment.com legal@wilksbrothers.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. Section 14. Termination,Default,and Remedies. (a) If Purchaser fails or refuses to consummate the purchase of the Property pursuant to this Contract at the Closing for any reason other than termination of this Contract by Purchaser pursuant to a right so to terminate expressly set forth in this Contract or Seller's failure to perform Seller's obligations under this Contract, then Seller, as Seller's sole and exclusive remedy, shall have the right to terminate this Contract by giving written notice thereof to Purchaser prior to or at the Closing, whereupon neither party hereto shall have any further rights or obligations hereunder. (b) If(1) Seller fails or refuses to timely consummate the sale of the Property pursuant to this Contract at Closing, (2) at the Closing any of Seller's representations, warranties or covenants contained herein is not true or has been breached or modified, or (3) Seller fails to perform any of Seller's other obligations hereunder either prior to or at the Closing for any reason other than the termination of this Contract by Seller pursuant to a right so to terminate expressly set forth in this Contract or Purchaser's failure to perform Purchaser's obligations under this Contract,then Purchaser shall have the right to: (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; (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; (iii) enforce specific performance of Seller's obligations under this Agreement; or (v) institute an action for damages against Seller. Section 15. Survival of Obligations. To the extent necessary to carry out the terms and provisions hereof, the terms, conditions, warranties, representations, obligations and rights set forth herein shall not be deemed terminated at the time of the Closing, nor shall they merge into the various documents executed and delivered at the time of the Closing. All representations and warranties by Seller in this Agreement(i)will expire two years after the Closing as to matters for which Purchaser has not provided written notice to Seller within such period of time; and (ii) will expire as to all matters specified in any such written notice to the extent that such matters are not resolved or made the subject of litigation instituted prior to the expiration of three years after the Closing. Section 16. Entire Contract. This Contract (including the attached Exhibits) contains the entire contract between Seller and Purchaser, and no oral statements or prior written matter not specifically incorporated herein is of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. Section 17. Assigns. This Contract inures to the benefit of and is binding on the parties and their respective legal representatives, successors, and assigns. Neither party may assign its interest under this Contract without the prior written consent of the other party. Section 18. Taking Prior to Closing. If, prior to Closing, the Property or any portion thereof becomes subject to a taking by virtue of eminent domain, Purchaser may, in Purchaser's sole discretion, either(i) terminate this Contract and neither party shall have any further rights or obligations hereunder, or (ii) proceed with the Closing of the transaction with an adjustment in the Purchase Price to reflect the net square footage of the Property after the taking. Section 19. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Section 20. Performance of Contract. The obligations under the terms of the Contract are performable in Tarrant County,Texas, and any and all payments under the terms of the Contract are to be made in Tarrant County,Texas. Section 21. Venue. Venue of any action brought under this Contract shall be in Tarrant County, Texas if venue is legally proper in that County. Section 22. Severability. If any provision of this Contract is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this Contract will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Section 23. Business Days/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 on which the Title Company receipts a copy of the Contract is the"Effective Date." Section 24. 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 25. 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 26. 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 27. 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] This Contract is EXECUTED as of the Effective Date. SELLER: MARKUM LAND PROPE TIES,L.L.0 By: yle Wily resident Date: PURCHASER: CITY OF FORT WORTH,TEXAS AMR By. ST) Dana Burghdoff, Assistant City Manager �,00vnnn�� Attest: a'CIO 0000000. �o° $0-10ii' ,QanaLcl�anzgl s_ ssist�_ 000 o=d .._..old P.Gonzales,r ___... 202012 :ST) 0, 0 o0�00000000o p City Secretary aaa� 54gx APPROVED AS TO LEGALITY AND FORM ✓ � Matthew A.Murray Assistant City Attorney Ordinance No. 24161-04-2020 M&C 20-0778 Date: 10/20/2020 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX By its execution below, Title Company agrees to perform its other duties pursuant to the provisions of this Contract. TITLE COMPANY: Alamo Title Company Lavonne Keith By: Name: Lavo,nne Keith Title: Escrow Officer Date: Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and reporting requirements. -z� 4A�� Ricky Salazar,Real Property Manager OFFICIAL RECORD CITY SECRETARY FT. 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CPN 100378 WESTSIDE III PUMP STATION AND GST SITE SOUTH RIGHT OF WAY EASEMENT GEORGE W.WILKES SURVEY,ABSTRACT NO. 1872 TARRANT COUNTY,TEXAS THE STATE OF TEXAS § COUNTY OF TARRANT § RIGHT-OF-WAY EASEMENT THAT Markum Land Pro erties LLC. a Texas limited liability com an , hereinafter referred to as "Grantor", for and in consideration of Ten Dollars ($10.00) and other valuable consideration paid by the City of Fort Worth, a municipal corporation of Tarrant County, Texas ("City"), receipt of which is hereby acknowledged, does Grant, Bargain,and Convey to said City,its successors and assigns,the use,passage in and along the Property ("Property") situated in Tarrant County, Texas, hereinafter described in the attached Exhibits "A" and "B". Grantor does hereby acknowledge and agree that this conveyance to City includes the right of the City to permit the public to use the Property as a public right-of way. Grantor also hereby acknowledges and agrees that this conveyance to City includes the right of the City to construct and install sidewalks and to permit utilities to be situated within the Property as required by the City or by law. "Utilities" includes but are not limited to: water facilities, sewer facilities, gas facilities, electric facilities, telecommunication facilities, drainage facilities and other utilities as defined by law. It is intended by these presents to convey a right-of-way to the said City of Fort Worth to maintain and construct the right-of-way improvements, with the usual rights of ingress and egress in the necessary use of such right-of-way, in and along said Property. Under Chapter 21, Subchapter E of the Texas Property Code, as amended, the Grantor or the Grantor's heirs, successors, or assigns may be entitled before the 10`s anniversary of the date of this acquisition to repurchase or request certain information about the use and any actual progress made toward the use for which the Property was acquired through eminent domain, and the repurchase price will be the price the City pays Grantor in this acquisition. TO HAVE AND TO HOLD the above described Property,together with, all and singular, the rights and appurtenances thereto in anywise belonging, unto the said City of R10HT4)F-WAY EASEMENT Rev.20190609 Exhibit "B" Fort Worth, its successors and assigns, forever. Grantor does hereby bind itself, it's heirs, successors and assigns, to warrant and forever defend, all and singular, the said premises unto the said City of Fort Worth, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof This document may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. When the context requires, singular nouns and pronouns include the plural. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] RIGHT-OF-WAY EASEMENT Rev.20190609 Exhibit "B" HERETO WITNESS MY HAND this the_,�b day of `�0 �'�b e ,2(1 GRANTOR: Markum Land Properties,LLC, a Texas limited liability company By: yle i resident ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas,on this day personally appeared Kyle Wilks,Markum Land Properties, LLC, a Texas limited liability company known to me to be the same person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Markum Land Properties, LLC and that he/she executed the same as the act of said Markum Land Properties, LLC_ for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of tt1111,N1P.l , 2020 . MA THY L BRINKLEY Notary PubliV.,fj anA Wr the State exas _� •= My Notry ID 012W4640 DooenlbM 5,2024 RIGHT-OF-WAY EASEMENT Rev 20190609 Exhibit' GRANTEE: City of Fort Worth By: Dana Burghdoff,Assistant City Manager APPROVED AS TO FORM AND LEGALITY By(Signature): (Print Name) ,Title ACKNOWLEDGEMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Dana Burghdoff, Assistant City Manager of the City of Fort Worth, known to me to be the same person whose name is subscribed to the foregoing instrument,and acknowledged to me that the same was the act of the City of Fort Worth and that he/she executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ,20_ Notary Public in and for the State of Texas RIGHT-OF-WAY EASEMENT Rev.20190609 EXHIBIT"B" FORT WORTH WATER DEPARTMENT WESTSIDE III PUMP STATION AND GST SITE SOUTH RIGHT OF WAY EASEMENT GEORGE W. WILKES SURVEY, ABSTRACT NO. 1872 TARRANT COUNTY, TEXAS Being a 0.442 acre (19,234 square feet) tract of land situated in the George W. Wilkes Survey, Abstract No. 1872, Tarrant County, Texas, and being a portion of the remainder of a called 100.6611 acre tract of land, described as Tract 1, convey to Markum Land Properties, LLC as recorded in Instrument No. D217100297 of the Official Public Records of Tarrant County, Texas, said 0.442 acre (19,234 square feet) tract of land being more particularly described by metes and bounds as follows: BEGINNING at a point for corner in the west line of Markum Gate Way(an 80.0' right-of-way),said point having grid coordinates of N=6,935,871.31 and E=2,268,406.68, from which a 1/2 inch iron rod with cap stamped "XAS SURVEYING" found for the northwest corner of said Markum Gate Way, the southwest corner of Lot 5, Block 1 of Markum Business Park, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in Instrument No. D216251674 of said Official Public Records of Tarrant County, Texas, and the southeast corner of a called 5.009 acre tract of land conveyed to MC Estates, LLC as recorded in Instrument No. D217244675 of said Official Public Records of Tarrant County, Texas bears North 06 degrees 31 minutes 15 seconds East, a distance of 51.40 feet, and from which a 112 inch iron rod found for the northwest corner of said Lot 5 and the southwest comer of a called 20.000 acre tract of land conveyed to Stephen J. Coulter and Joan M. Coulter as recorded in Volume 16141, Page 47 of the Deed Records of Tarrant County, Texas bears North 06 degrees 31 minutes 15 seconds East, a distance of 341.40 feet; THENCE South 06 degrees 31 minutes 15 seconds West,with the west line of said Markum Gate Way a distance of 15.00 feet to a point for corner, from which a point for the southwest corner of said Markum Gate Way bears South 06 degrees 31 minutes 15 seconds West, a distance of 13.60 feet, said point being the northwest corner of Lot 4, Block 2 of said Markum Business Park and the northeast corner of a called 7.243 acre tract of land conveyed to MC Estates, LLC as recorded in Instrument No. D219051681 of said Official Public Records of Tarrant County, Texas; THENCE North 83 degrees 38 minutes 52 seconds West, a distance of 852.13 feet to a point for corner; THENCE North 04 degrees 05 minutes 43 seconds East, a distance of 369.75 feet to a 5/8 inch iron rod with blue cap stamped "GORRONDONA" set for the southeast corner of a proposed 5.146 acre tract of land; THENCE North 04 degrees 00 minutes 20 seconds East,with the east line of said proposed 5.146 acre tract of land, a distance of 74.49 feet to a point for corner; THENCE South 85 degrees 59 minutes 40 seconds East, a distance of 15.12 feet to a point for corner; THENCE South 04 degrees 05 minutes 43 seconds West, a distance of 429.85 feet to a point for corner; Page 1 of 2 EXHIBIT"B" FORT WORTH WATER DEPARTMENT WESTSIDE III PUMP STATION AND GST SITE SOUTH RIGHT OF WAY EASEMENT GEORGE W. WILKES SURVEY,ABSTRACT NO. 1872 TARRANT COUNTY, TEXAS THENCE South 83 degrees 38 minutes 52 seconds East, a distance of 837.76 feet to the POINT OF BEGINNING, and containing 19,234 square feet or 0.442 acres of land, more or less. Notes: (1) A plat of same date herewith accompanies this legal description. (2) Bearings and coordinates are referenced to the Texas State Plane Coordinate System,NAD-83(2011), North Central Zone(4202).All distances and areas shown are surface. February 14, 2020 IC&RLES S. RUBY p 657 fSSt� '-lam Charles S. Ruby SUR Registered Professional Land Surveyor Texas No. 6574 Gorrondona &Associates. Inc. Texas Firm No, 10106900 Page 2 of 2 EXHIBIT "B " ~ ~FND 3J4'IR I - - ' u E0 lH 20 MONUMENT—�� ELE WITH R -OF- WAY) CALLED 2949 ACRES TRACT 2 ��— DRY RANCH LLC INST. NO. 0217210159 1 O.P.R.T,C.T FND 1/29R /- ES S �� I FND 1J21R GEC SC + ! II I + � 7 CALLED 20.000 ACRES f I REMAINDER OF STEPHEN J. COULTER + CALLED 100.6611 ACRES JOAN M. COULTER f + PROPOSED TRACT 1 VOLUME 16141, PAGE 47 II r D.R.T.C.T. II MARKUM LAND PROPERTIES, LLC + 5.146 ACRES INSt NO. 0217100297 ! + TANK SITE O.P.R.T.C.T. + + L-5 r 1 3 I X I f it,_R I I 1 REMAINDER OF (f N F1'REST'AD09 ACRESCALLED 3804.E ACRR I'1r + 1 WALSH RANCHES UWTED PARTNERSHIP I:7 + � O,P.R.T.C744675 II VOLUME 12624. PAGE 92 I + O.R.T.C.T. II FURTHER DESCRIBED IN ,'f tf3l.f r MEMENT L, VOLUME 3265. PAGE 75 {n } O.R.T.C.T. b pjl.� + SEE w 19,234 so. FT. 1 DETAIL "A" + �` Ii z G 0.442 ACRES 1 q a 6 0 I f f T/1 LIE ` E-7/- S 83'38'52 �-� _I837.76 i I� N 83•38' ~ y MARKUM 52"W 852.13~ `- � GATE WAY I TEMPORARY II TURNAROUND CALLED 7,243 ACRES INST. N0. D2EASEMENT A EMEENT I WSTC 0. D2R19' LLC 051681 O.P.R.7.C.T. I O.PR.T.C.T. MARKUAf LOr 250 125 0 250 BUSINESS I BLOCK 2 PARK INST No D2162s1674 �I SCALE IN FEET — —��OPRTCT ` I lbuftffH City of Fort Worth 200 TEXAS STREET • FORT WORTH, TEXAS 76102 FORT WORTH WATER DEPARTMENTT WESTSDIE III PUMP STATION AND � � # '-J =.1p GST SITE SOUTH CHARLFS IS - U - OWNER: MARKUM LAND PROPERTIES LLC SURVEY: GEORGE W. WILKES SURVEY, ABSTRACT NO. 1872 LOCATION: TARRANT COUNTY, TEXAS sy, - ACQUISITION AREA 19,234 SQUARE FEET OR 0.442 ACRES CHARLES S. RWBY ff-JOB NO. KNA_I612.00 rDRAWN BY: RK CAD FILE 01E-PAE_RO02WG REGISTERED PROFESSIONAL LAND SURVEYOR GORRONDONA & ASSOCIATE INC. • 7524 JACK NEWELL BOULEVARD SOUTH FORT WORTH TX 76118 • 817-498-1424 FAX 817-496-1768 EXHIBIT "B 99 LINE TABLE LINE BEARING DISTANCE L--1 N 06'31'15"E 51.40' L-2 S 06'31'15"W 15.00' L-3 S 06'31'15"W 13.60' L-4 N 04 00'20"E 74.49' L75 S 85'S9 40"E 15.12' I ...... LOT s BLOCK r +quo �/z7e w/aw 'w1s sUNG. I P.0.B. -�r GRID COORDINATE N-8,935,871.31 E-2,268,408.68 L-2 ..• �W .: 852.13' ..�. L-3 r LOT 4 BLOCK 2 DETAIL "A" NOT TO SCALE NOTES: 1. A LEGAL DESCRIPTION OF SAME DATE HEREWITH ACCOMPANIES THIS PUT. 2. BEARINGS AND COORDINATES ARE REFERENCED TO THE TEXAS STATE PLANE COORDINATE SYSTEM, MAD-83 (2011). NORTH CENTRAL ZONE (4202). ALL DISTANCES AND AREAS SHOWN ARE SURFACE. o Wo City of Fort Worth rth 200 TEXAS STREET • FORT WORTH, TEXAS 76102 FORT WORTH WATER DEPARTMENT OFF WESTSDIE III PUMP STATION AND CST SITE SOUTH �R.U8 CHARLES S. t3Y PERMANENT ACCESS EASEMENT „ ` -- - �-- OWNER: MARKUM LAND PROPERTIES LLC 2 SURVEY: GEORGE W. WILKES SURVEY, ABSTRACT NO. 1872 LOCATION: TARRANT COUNTY, TEXAS ACQUISITION AREA: 19,234 SQUARE FEET OR 0.442 ACRES CHARLES S. RUBY JOB NO. KHA-1612.00 DRAWN BY: RK ICAD FILE: OIE—PAE_ROO.DWG REGISTERED PROFESSIONAL LAND SURVEYOR DATE: FEBRUARY 14, 2020 1 EXHIBIT 8 PAGE 2 OF 2 1 SCALE: 1 - 250 NO, 6574 TEXAS FIRM No. 10108900 GORRONDONA do ASSOCIATES, INC. • 7524 JACK NEWELL BOULEVARD SOUTH FORT WORTH, TX. 76118 • 817-498-1424 FAX 817-498-1788 'M'0'8 R co R R cy i H011(l c LO d' R R p C) N w La :2a �� aM am ui o � bio ao J Li W vi N Om Qw 0 uj P rb CD �� ro --Q -------:� --+ _ b co N-, W W J QN m W o W co X 0 °O J J CD R CD D\ N co N' O) l Lo R o _i HODO to M 00 'M'0:8 12/7/2020 M&C Review Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FOR, TTWOO RTn DATE: 10/20/2020 REFERENCE "M&C 20- LOG NAME: 21 WESTSIDE III WATER TANK NO.: 0778 SITE CODE: L TYPE: CONSENT PUBLIC NO HEARING: SUBJECT. (ETJ adjacent to COUNCIL DISTRICT 3)Authorize the Acquisition of a Fee Simple Interest in Approximately 5.146 Acres of Land and a Right-of-Way Easement Interest in 0.442 Acres of Land, Located at 1324 Ranchers Legacy Trail,Tarrant County,Texas,from Markum Land Properties, LLC, in the Amount of$575,000.00, Pay Estimated Closing Costs of Up to$15,000.00,Authorize Execution of Letter Agreement Outlining Road Construction in the Amount of$332,000.00 for a Total Project Cost of$972,000.00, and Adopt Appropriation Ordinances for the Westside III Water Tank Site and Trans Main Project RECOMMENDATION: It is recommended that the City Council: 1. Authorize the acquisition of a fee simple interest in 5.146 acres of land and a right-of-way easement interest in 0.442 acres of land located at 1324 Ranchers Legacy Trail, Tarrant County,Texas from Markum Land Properties, LLC in the amount of$575,000.00 and authorize estimated closing costs of up to $15,000.00 for the Westside III Water Tank and Trans Main project; 2. Authorize execution of letter agreement outlining road construction costs in the amount of $382,000.00. 3. Authorize the City Manager, or his designee, to execute, accept the appropriate closing documents, and record the appropriate instruments to complete the transaction; 4. Adopt the attached Appropriation Ordinance increasing receipts and appropriations in the Water Impact Fee Fund in the amount of$972,000.00 from available funds for the purpose of transferring funds from the Water/WasteWater Wholesale Impact Fees and Wate r/Wa ste Water Retail Impact Fee projects (City Project Nos. B20004 and B20005) to the Westside III Tank and Trans Main project; and 5. Adopt the attached Appropriation Ordinance increasing receipts and appropriations in the Water Impact Fee Fund in the amount of$972,000.00 transferred from the Water Impact Fee Fund to the Westside III Tank and Trans Main project (City Project No. 100378). DISCUSSION: The purpose of this Mayor and Council Communication(M&C)is to seek approval to acquire a fee simple land interest and a right-of-way easement interest in property located at 1324 Ranchers Legacy Trail for the Westside III Tank and Trans Main project.The property is needed for system reliability and growth improvements within west Fort Worth and its Extraterratorial Jurisdiction which require the installation of a ground storage tank,water pump station, and transmission mains in order to provide reliable water service to existing and proposed developments. In addition to land cost,the City has agreed to participate in the road construction cost to the water tank site for a total of $382,000.00.As part of the agreement,the property owner will construct the road to City standards and the money will be escrowed until the construction of the road is complete. An appraisal of the property was prepared by an independent fee appraiser, and the property owner has agreed to the appraised price of$575,000.00.The real estate taxes will be pro-rated with the Seller being responsible for taxes due up to the closing date.The mineral estate will not be acquired. The deed will contain a surface waiver for the exploration of the mineral estate. Upon City Council approval,staff will proceed with acquiring the fee simple and easement interests in the property except for the mineral estate. roperty Property Property Address/Legal Property Ownership PInterest Size Description Amount Markum Land 5.146 George W. Wilkes Survey, Properties, LLC Fee Simple Acres Abstract No. 1872 $535,000.00 Markum Land ROW 0.442 George W. Wilkes Survey, F;Z000.00 Properties, LLC lEasement Acres Abstract No. 1872 7-F- Road Construction Cost $382,000.00 Total Estimated Closing Cost $15,000.00 r r Total Cost $972,000.00 Funding for the Westside III Tank and Trans Main project as depicted in the table below: FUND Existing Appropriations Proposed Project Total Appropriations Water&Sewer Bond $893,100.00 $0.00 $893,100.00 apps.cfwnet.org/council_packet/mc_review.asp?I D=28347&counciidate=l 0/20/2020 1/2 12/7/2020 M&C Review 2017A—Fund 56011 W&S Capital Proj $600,000.00 $0.00 $600,000.00 2018—Fund 56014 WS Capital Project $6,456,974.00 $0.00 $6,456,974.00 2019—Fund 56016 Water&Sewer Bond $700,000.00 $0.00 $700,000.00 2020A—Fund 56017 Water Impact Fee— $0.00 $972,000.00 $972,000.00 Fund 56003 Project Total $8,650,074.00 $972,000.00 $9,622,074.00 *Numbers rounded for presentation purposes. The property is located in Tarrant County,adjacent to COUNCIL DISTRICT 3. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds are currently available in the W/WW Wholesale Impact Fees and W/WW Retail Impact Fees projects within the Water Impact Fee Fund and upon approval of the above recommendations and adoption of the attached appropriation ordinances,funds will be available in the Water Impact Fee Fund for the Westside Tank and Trans Main project to support the approval of the above recommendations and land acquisition. Prior to an expenditure being incurred, the Water Department has the responsibility of verifying the availability of funds. TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year Chartfield 2 Submitted for City Manager's Office by_ Dana Burghdoff(8018) Originating Department Head: Steve Cooke(5134) Additional Information Contact: Ricky Salazar(8379) ATTACHMENTS 21 WESTSIDE III WATER TANK SITE 56003 A021(R4).docx 21 WESTSIDE III WATER TANK SITE 56003 A021(R5).docx WESTSIDE III TANK SITE BOUNDARY r00 SIGNED.pdf WESTSIDE III TANK SITE ROW r00 SIGNED(002).pdf Signature: Email: Vania.Soto@fortworthtexas.gov apps.cfwnet.org/council_packet/mc—review.asp?I D=28347&councildate=10/20/2020 2/2