HomeMy WebLinkAboutContract 56716 DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
CSC No. 56716
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT ("Agreement") is made and entered into effective
as of the Effective Date by and between XTO ENERGY INC., a Delaware corporation("Seller"), and the
CITY OF FORT WORTH, a Texas home-rule municipality("Purchaser").
SECTION 1 —DEFINITIONS
Definitions. As used herein,the following terms have the meanings given to them below:
Broker: On behalf of Seller: Jones Lang LaSalle, 201 Main Street, Suite 500, Fort Worth,
Texas 76102,Attn: Ryan Matthews,Telephone: (817)334-8101, Email: ryan.matthews@amjll.com.
City Council Approval: The approval of this Agreement and the purchase of the
Property by Purchaser's elected governing body, the Fort Worth City Council, during an open and public
meeting. Such approval is currently expected on November 9, 2021.
Closin : The exchange of documents and funds to consummate the transaction
contemplated herein.
Closing Date: The date of Closing, which will be thirty-one (31) days after expiration of
the Inspection Period subject to extension in accordance with Section 12.1.
Code: The Internal Revenue Code of 1986, as heretofore or hereafter amended, and the
regulations from time to time promulgated thereunder.
Coun : Tarrant County,the county in which the Property is located.
Deed: A special warranty deed, in the form of Exhibit C attached hereto and
incorporated herein by reference, conveying the Land and Improvements to Purchaser, subject to the
Permitted Exceptions(as defined below)and the deed restrictions described in Section 12.9.
Earnest Money: Funds delivered by Purchaser to Escrow Agent in accordance with
Section 4 (less the Independent Consideration, to be held by Escrow Agent and applied to the Purchase
Price or otherwise disbursed in accordance with the provisions of this Agreement. If all or a portion of
the Earnest Money is required to satisfy any of Purchaser's obligations under this Agreement, then the
term"Earnest Money" will refer to the portion remaining after the satisfaction of such obligations, if any.
Effective Date: The date on which this Agreement is executed by the latter to sign of
Purchaser or Seller, as indicated on the signature page of this Agreement. If the execution date is left
blank by either Purchaser or Seller, the Effective Date shall be the execution date inserted by the other
party.
Escrow Agent: Title Company.
Improvements: All right, title and interest of Seller in and to any structures, fixtures,
utility lines and infrastructure, if any,presently situated on or under the Land.
Inspection Period: The period of time beginning on the Effective Date and ending at 5:00
p.m. Fort Worth, Texas, time on the date that is sixty (60) days thereafter; provided, however, Purchaser
may extend the Inspection Period for up to one (1) additional period of thirty (30) days by delivering
written notice to Seller of such election to extend at least one (1) business day prior to the scheduled
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OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
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expiration of the Inspection Period and delivering to the Escrow Agent (concurrently with the delivery of
such notice of extension) an extension fee of TEN THOUSAND AND 00/100 DOLLARS ($10,000.00)
in Cash Funds (as defined in Section 3 hereof) for such extension (the "Extension Fee"), which will be
applied to the Purchase Price if Closing occurs. If Purchaser fails to timely deliver the Extension Fee or
written notice of extension of the Inspection Period, then Purchaser will be deemed to have waived its
right to extend the Inspection Period,time being of the essence with respect thereto.
Land: Approximately 29.511 acres of land, improvements and personal property with a
site address of 8900 Jacksboro Highway, 9112 Nine Mile Bridge Road, and 9114 Nine Mile Bridge Road,
Fort Worth, Tarrant County, Texas (as identified by the Tarrant Appraisal District Account Nos.
41448294, 07612931, 07282281, 41303857), Fort Worth, Tarrant County, Texas,being more particularly
described on Exhibit A attached hereto and incorporated herein by reference, together with all benefits,
privileges, hereditaments, rights and appurtenances pertaining to such land; save and except, however,
any and all oil, gas and other minerals owned by Seller and lying under, in, on or about or constituting a
part of such land and all other subsurface rights (the "Subsurface Rights"), which shall be reserved to
Seller subject to a waiver of surface rights as set forth in the Deed.
Permitted Exceptions: The defects, liens, encumbrances and other matters affecting title
to the Property to which Purchaser does not object or is deemed to have accepted in accordance with this
Agreement.
Property: The Land and Improvements.
Purchase Price: The Purchase Price in the amount and manner required by Section 3.
Purchaser: The party described as Purchaser in the initial paragraph of this Agreement,
and any and all successors and assigns of such party, subject to the provisions of Section 15.3.
Seller: The party described as Seller in the initial paragraph of this Agreement.
State: Texas, the state in which the Property is located.
Surviving Obligations: Liabilities and obligations which, by their express terms, survive
the Closing or the termination of this Agreement.
Title Commitment: A current Commitment for Title Insurance pertaining to the Property
for the issuance to Purchaser of the Title Policy from the Title Company.
Title Company: Rattikin Title Company, 201 Main Street, Suite 800, Fort Worth, Texas
76102,Attn: Megan Newburn,Telephone: 817.334.1322,Email: mnewburn@RattikinTitle.com.
Title Policy: An Owner Policy of Title Insurance in the standard form promulgated for
use in the State to be issued by the Title Company in the full amount of the Purchase Price,dated as of the
Closing Date, insuring Purchaser's fee simple title to the Land to be good and indefeasible, subject to the
Permitted Exceptions and the standard printed exceptions contained in a standard form Owner Policy of
Title Insurance.
All terms used herein, whether or not defined in this Section 1, and whether used in singular or plural
form, refer to the object of such term whether such is singular or plural in nature, as the context may
suggest or require.
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SECTION 2—PURCHASE AND SALE
Subject to the terms, provisions and conditions hereinafter set forth, Seller agrees to sell and
convey to Purchaser, and Purchaser agrees to purchase from Seller, the Property for the Purchase Price
and other consideration stated herein.
SECTION 3—PURCHASE PRICE
The Purchase Price for the Property shall be THREE MILLION ONE HUNDRED
THOUSAND AND 00/100 DOLLARS ($3,100,000.00) to be paid to Seller in accordance with Section
12 by wire transfer, a cashier's check or other method sufficient to provide Seller with "same day" or
"good" funds("Cash Funds").
SECTION 4—EARNEST MONEY
4.1 Deposit. Within ten (10) days afterCity Council Approval, Purchaser must deliver to
Escrow Agent an Earnest Money deposit of Ten Thousand and 00/100 Dollars ($10,000.00) in Cash
Funds (the "Earnest Money"). If Buyer elects to extend the Inspection Period pursuant to Section 1, and
timely deposits the Extension Fee, the Extension Fee will then be added to and become part of the
"Earnest Money" for all purposes of this Agreement. Upon the Closing, the Earnest Money will be
applied to the Purchase Price. If the Closing does not occur as required pursuant to this Agreement, then
Escrow Agent must disburse the Earnest Money in the manner provided for elsewhere herein. Escrow
Agent must invest the Earnest Money in an interest-bearing account at a federally-insured bank in a
manner that will allow Escrow Agent to disburse the Earnest Money upon two (2) days' written notice.
All interest or other earnings on the Earnest Money will become a part of the Earnest Money and must be
disbursed to the party entitled to the Earnest Money. Purchaser's obligation to deliver the Earnest Money
as provided in this Section 4.1 is a condition precedent to Seller's obligations and Purchaser's rights
hereunder. If Purchaser fails to deposit the Earnest Money as required herein, Seller may terminate this
Agreement upon written notice to Purchaser prior to Purchaser's deposit of the Earnest Money (without
any opportunity by Purchaser to cure). Following any termination by Seller in accordance with this
Section 4.11 neither party will have any further rights, obligations, or remedies under this Agreement
(other than Surviving Obligations).
4.2 Independent Consideration. Seller and Purchaser hereby acknowledge that $100.00 of
the Earnest Money is independent consideration for this Agreement (the "Independent Consideration").
The parties have bargained for such amount as consideration for Purchaser's exclusive option to purchase
the Property pursuant to the terms of this Agreement and for Seller's execution of this Agreement, in
addition to other consideration described in this Agreement. The Independent Consideration is not
refundable and, upon Closing or upon any termination of this Agreement, Escrow Agent must disburse
the Independent Consideration to Seller. If Escrow Agent returns the Earnest Money to Purchaser in
accordance with this Agreement for any reason, Escrow Agent must deliver the Independent
Consideration to Seller notwithstanding any other provision of this Agreement.
4.3 Escrow Aizent. Escrow Agent must sign this Agreement to acknowledge its receipt of
this Agreement and to evidence that Escrow Agent agrees to be bound by the obligations contained
herein.
SECTION 5—DUE DILIGENCE MATERIALS SURVEY AND TITLE MATTERS
5.1 Submission Items. Within five (5) days after the Effective Date, Seller must furnish to
Purchaser the following due diligence information concerning the Property, to the extent such items are in
Seller's possession or reasonable control(collectively,the"Submission Items"):
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(a) Third Party Reports. Copies of any third party reports for the Property prepared
for Seller(including,without limitation,soil reports, environmental reports and engineering reports).
(b) Tax Statements. Copies of tax statements for the current year and the last two
(2)years.
(c) Survey. A copy of Seller's existing survey (if any) of the Property (the
"Survey").
(d) Title. A copy of Seller's current title policy(if any) for the Property.
5.2 Updated Survey. Within fifteen(15)business days after the Effective Date, Purchaser, at
its sole cost and expense, may obtain a new survey or revise, modify or re-certify the existing Survey as
necessary in order for the Title Company to delete the standard promulgated print survey exception from
the Title Policy, amend the general survey exceptions to "shortages in area", and otherwise satisfy
Purchaser's objectives (the "Updated Survey"). Upon receipt, Purchaser shall deliver a copy of the
Updated Survey to Seller, and cause Seller to be named in the surveyor's certificate. If Purchaser obtains
the Updated Survey then (i) the legal description used in the Updated Survey will be legal description
used in the Closing documents contemplated herein, and (ii) if Closing occurs hereunder, Seller shall
reimburse Purchaser for fifty percent(50%)of the reasonable cost of the Updated Survey.
5.3 Title Commitment. Within ten (10) business days after the Effective Date, Seller must
cause the Title Company to furnish to Purchaser the Title Commitment, together with copies of all
documents constituting exceptions to Seller's title as reflected in the Title Commitment. The failure of
Seller or Title Company to deliver a copy of any documents giving rise to a title exception in the Title
Commitment or Title Policy, or the illegibility thereof, will not be considered a breach by Seller of the
obligation to deliver the Title Commitment (with title exception documents) within the time periods
herein specified or to extend the period of time in which Purchaser would have otherwise had to review
and object to such items. Rather, Purchaser must address any such matters by making an objection
thereto in accordance with the provisions of Section 5.4.
5.4 Review Period. Purchaser will have a period of thirty (30) days after delivery of the
Survey, Title Commitment and the title exception documents in which to review and deliver to Seller in
writing such objections ("Objections") as Purchaser may have to anything contained or set forth in the
Survey, Title Commitment, or the title exception documents. If Purchaser timely objects to any matter
contained therein, Seller will have five (5) business days after receipt of Purchaser's objections within
which Seller may (but will not be obligated to) attempt to cure such Objections. If Seller notifies
Purchaser at any time that Seller is unable or unwilling to cure any such Objections, then within five (5)
business days from Seller's notice, Purchaser must elect to either (i)terminate this Agreement, in which
case Escrow Agent will immediately return the Earnest Money to Purchaser, or(ii)waive such objections
and proceed toward Closing. If Purchaser does not elect either clause i or Cia within such five (5)
business day period, then Purchaser will be deemed to have elected clause GO. In all cases, however,
Purchaser's right to terminate this Agreement pursuant to this Section 5.4 will lapse and terminate upon
the expiration of the Inspection Period, at which time Purchaser's approval of the Title Commitment(and
title exception documents) will become absolute and all items referenced therein will be considered
Permitted Exceptions. Each item to which Purchaser does not object within the 5 business-day period
described above,or to which Purchaser objects,but Purchaser waives, or is deemed to have waived by not
terminating this Agreement, will be considered a Permitted Exception. If any title matters arise after the
initial Title Commitment is received but prior to the scheduled Closing Date,then Purchaser will have the
right to make objections to such items and the process described in this Section 5 will be repeated(and, if
required, the Closing will be extended accordingly), except that (i) Purchaser shall have five (5) days to
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review and deliver to Seller in writing its objections to such title matters, and(ii) Seller will have five (5)
days after receipt of Purchaser's objections within which Seller may(but will not be obligated to) attempt
to cure such objections.
5.4 Title Policy. At Closing, Title Company must commit to issue to Purchaser the Title
Policy. Seller will pay the standard premium for the Title Policy at Closing as a charge against Seller, to
be reflected as such on the closing statement. Purchaser will be responsible for the cost of the "shortages
in area" deletion and any other extended coverage, endorsements, or other modifications to the standard
Title Policy required by Purchaser.
SECTION 6—INSPECTION AND AUDIT
6.1 Scope of Inspection. Seller agrees that Purchaser may enter upon the Property to conduct
such inspections and audits as Purchaser may desire, at Purchaser's sole cost and expense, during the
Inspection Period. Prior to entering upon the Property, however,Purchaser must provide to Seller (i) at
least 24 hours' prior written notice of its election to conduct any such on-site inspection and allow Seller
or its representative a reasonable opportunity to accompany Purchaser during any such on-site inspection
or Studies (defined below), and (ii) adequate insurance underwritten by an insurer reasonably acceptable
to Seller, naming Seller as an additional insured party, and otherwise reasonably acceptable to Seller.
Notwithstanding the preceding, Seller agrees that Purchaser shall be allowed to retain (self-insure) in
whole or in part any insurance obligations required herein at levels commensurate with the obligations
described herein. Purchaser is a governmental entity under the laws of the state of Texas and pursuant to
Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-
insured and therefore is not required to purchase insurance. Furthermore, Purchaser must not undertake
any invasive testing procedures with respect to any portion of the Property without Seller's prior written
approval. Purchaser immediately must restore the Property to its original pre-inspection condition, if
changed due to the tests and inspection performed by Purchaser. Purchaser must promptly deliver to
Seller copies of any and all site plans, studies or tests, including, without limitation, soils tests,
topographical information, structural tests and engineering studies (collectively, the "Studies"), obtained
by Purchaser in connection with its inspection of the Property. If Purchaser discovers any environmental
condition on the Property that is required by law to be reported to any government agency or regulatory
body then Purchaser shall give Seller notice of such condition within one (1) business day after such
discovery and allow Seller adequate time to determine its response prior to any delivery of the Studies to
such government agency or regulatory body. Purchaser shall deliver the Studies to Seller at the expiration
of the Inspection Period. If Purchaser fails to deliver the Studies in accordance with this Section, Seller
shall have the right to terminate this Agreement upon written notice to Purchaser, in which event Escrow
Agent will return the Earnest Money to Purchaser, and neither Purchaser nor Seller will have any further
rights or obligations hereunder except for Surviving Obligations. Purchaser's obligations to restore the
Property to its original pre-inspection condition and to deliver the Studies to Seller under this Section 6.1
are conditions precedent to Purchaser's right to a return of the Earnest Money. The provisions of this
Section 6.1 will survive any termination of this Agreement.
6.2 INDEMNITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND THE
CONSTITUTION OF THE STATE OF TEXAS AND WITHOUT WAIVING ITS GOVERNMENTAL
IMMUNITY, PURCHASER HEREBY INDEMNIFIES, DEFENDS AND HOLDS SELLER AND THE
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF SELLER AND
SELLER'S PARTNERS AND AFFILIATES (COLLECTIVELY, THE "SELLER PARTIES")
HARMLESS FROM AND AGAINST ANY CLAIMS, COSTS, EXPENSES, LOSSES, DAMAGES,
INJURIES, SUITS OR CAUSES OF ACTION (COLLECTIVELY, "INSPECTION CLAIMS") WHICH
ANY SELLER PARTY SUFFERS OR INCURS AS A RESULT OF THE PRESENCE ON THE
PROPERTY OF PURCHASER OR PURCHASER'S AGENTS, INDEPENDENT CONTRACTORS,
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SERVANTS, OR EMPLOYEES, INCLUDING, WITHOUT LIMITATION, (I)ANY AND ALL
ATTORNEYS' FEES INCURRED BY THE SELLER PARTIES AS A RESULT OF AN INSPECTION
CLAIM RELATING TO SUCH MATTERS, AND (II)ANY MECHANICS' OR MATERIALMEN'S
LIENS IMPOSED AGAINST ALL OR ANY PORTION OF THE PROPERTY BY A PARTY
CLAIMING TO BE PERFORMING AN INSPECTION OR AUDIT ON PURCHASER'S BEHALF;
PROVIDED, HOWEVER, THIS INDEMNITY CLAUSE SHALL NOT APPLY TO THE EXTENT OF
(1) SELLER'S OR SELLER PARTIES' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR(2)
ANY PRE-EXISTING LIABILITIES FOR MATTERS MERELY DISCOVERED BY PURCHASER
(I.E., LATENT ENVIRONMENTAL CONTAMINATION) SO LONG AS PURCHASER'S ACTIONS
DO NOT AGGRAVATE OR EXACERBATE ANY SUCH CONDITION OR ANY PREEXISTING
LIABILITY OF SELLER. PURCHASER FURTHER WAIVES AND RELEASES ANY INSPECTION
CLAIMS, DEMANDS, DAMAGES, CAUSES OF ACTION OR OTHER REMEDIES OF ANY KIND
WHATSOEVER AGAINST THE SELLER PARTIES FOR PROPERTY DAMAGE OR BODILY OR
PERSONAL INJURY TO PURCHASER OR PURCHASER'S AGENTS, INDEPENDENT
CONTRACTORS, SERVANTS OR EMPLOYEES ARISING OUT OF THE INSPECTION OF THE
PROPERTY. NOTHING CONTAINED HEREIN SHALL EVER BE CONSTRUED SO AS TO
REQUIRE PURCHASER TO ASSESS, LEVY AND COLLECT ANY TAX TO FUND ITS
OBLIGATIONS UNDER THIS PARAGRAPH. ARTICLE XI SECTION 5 OF THE TEXAS
CONSTITUTION PROVIDES THAT A CITY IS PROHIBITED FROM CREATING A DEBT UNLESS
THE CITY LEVIES AND COLLECTS A SUFFICIENT TAX TO PAY THE INTEREST ON THE
DEBT AND PROVIDES A SINKING FUND. PURCHASER HAS NOT AND WILL NOT CREATE A
SINKING FUND OR COLLECT ANY TAX TO PAY ANY OBLIGATION CREATED UNDER THIS
AGREEMENT. The provisions of this Section 6.2 will survive the Closing and any termination of this
Agreement.
6.3 Inslection Period. If Purchaser notifies Seller in writing on or before the expiration of
the Inspection Period that Purchaser, for any reason whatsoever, does not desire to purchase the Property
pursuant to this Agreement, then this Agreement will terminate, Escrow Agent will return the Earnest
Money to Purchaser, and the parties hereto will have no further obligations hereunder except for
Surviving Obligations. If Purchaser does not deliver written notice of termination on or before the
expiration of the Inspection Period, then Purchaser will have waived any and all claims or rights
whatsoever to terminate this Agreement, pursuant to this Section 6.3, the Earnest Money shall be non-
refundable to Purchaser in all instances except for a Seller default under Section 13.1, and Purchaser and
Seller will proceed with the Closing.
6.4 Confidentiality. Purchaser acknowledges that the any items provided by Seller to
Purchaser before or after the Effective Date hereof (the "Submission Items") are proprietary and
confidential and will be delivered to Purchaser solely to assist Purchaser in determining the feasibility of
purchasing the Property. Purchaser shall not use the Submission Items for any purpose other than as set
forth in the preceding sentence. Purchaser shall not disclose the contents of the Submission Items or any
information obtained during the Inspection Period to any person other than prospective lenders, brokers,
attorneys, accountants and other professional advisors who are responsible for determining the feasibility
of Purchaser's acquisition of the Property and who have agreed to preserve the confidentiality of such
information as required hereby, or except as may be otherwise required by law, including the Texas
Public Information Act. At any time and from time to time, within two (2) business days after Seller's
request, Purchaser shall deliver to Seller a list of all parties to whom Purchaser has provided any
Submission Items or any information taken from the Submission Items. In permitting Purchaser to
review the Submission Items or any other information, Seller has not waived any privilege or claim of
confidentiality with respect thereto.
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SECTION 7—DISCLAIMER OF WARRANTIES• RELEASE AND INDEMNITY
7.1 Disclaimers by Seller. Except as expressly set forth in this Agreement and the Deed,it is
understood and agreed that SELLER AND SELLER'S AGENTS OR EMPLOYEES HAVE NOT AT
ANY TIME MADE AND ARE NOT NOW MAKING, AND THEY SPECIFICALLY DISCLAIM,
ANY WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (a) matters of title (other than
Seller's special warranty of title to be contained in the Deed), (b)environmental matters relating to the
Property or any portion thereof, including,without limitation,the presence of Hazardous Materials in, on,
under or in the vicinity of the Property, (c) geological conditions, including, without limitation,
subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the
withdrawal of water, and geologic faults and the resulting dainage of past and/or future faulting
(d)whether, and to the extent to which the Property or any portion thereof is affected by any stream
(surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special
flood hazard, (e)drainage, (f)soil conditions, including the existence of instability, past soil repairs, soil
additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring,
(g)the presence of endangered species or any environmentally sensitive or protected areas, (h)zoning or
building entitlements to which the Property or any portion thereof may be subject, (i)the availability of
any utilities to the Property or any portion thereof including, without limitation, water, sewage, gas and
electric, 0)usages of adjoining property, (k)access to the Property or any portion thereof, (1)the value,
compliance with the plans and specifications, size, location, age, use, design, quality, description,
suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any
portion thereof, or any income, expenses,charges, liens,encumbrances,rights or claims on or affecting or
pertaining to the Property or any part thereof, (m)the condition or use of the Property or compliance of
the Property with any or all past, present or future federal, state or local ordinances, rules, regulations or
laws,building,fire or zoning ordinances, codes or other similar laws, (n)the existence or non-existence of
underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability
and integrity of the Property, (p)the potential for further development of the Property, (q)the
merchantability of the Property or fitness of the Property for any particular purpose, (r)the truth, accuracy
or completeness of the Submission Items, (s)tax consequences, or (t) any other matter or thing with
respect to the Property.
7.2 SALE "AS IS, WHERE IS". Purchaser acknowledges and agrees that upon Closing,
Seller shall sell and convey to Purchaser and Purchaser shall accept the Property "AS IS, WHERE IS,
WITH ALL FAULTS," except to the extent expressly provided otherwise in this Agreement, in any
document executed by Seller and delivered to Purchaser at Closing and except where abdication of
liability is expressly forbidden by applicable law. Except as expressly set forth in this Agreement,
Purchaser has not relied and will not rely on, and Seller has not made and is not liable for or bound by,
any express or implied warranties, guarantees, statements, representations or information pertaining to the
Property or relating thereto (including specifically, without limitation, Property information packages
distributed with respect to the Property)made or furnished by Seller, or any property manager, real estate
broker, agent or third party representing or purporting to represent Seller, to whomever made or given,
directly or indirectly, orally or in writing. Purchaser represents that it is a knowledgeable, experienced
and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is
relying solely on its own expertise and that of Purchaser's consultants in purchasing the Property and shall
make an independent verification of the accuracy of any documents and information provided by Seller.
Purchaser will conduct such inspections and investigations of the Property as Purchaser deems necessary,
including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same.
By failing to terminate this Agreement prior to the expiration of the Inspection Period, Purchaser
acknowledges that Seller has afforded Purchaser a full opportunity to conduct such investigations of the
Property as Purchaser deemed necessary to satisfy itself as to the condition of the Property and the
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existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or
discharged from the Property, and will rely solely upon same and not upon any information provided by
or on behalf of Seller or its agents or employees with respect thereto, other than such representations,
warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Purchaser
shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction
defects or adverse environmental, health or safety conditions, may not have been revealed by Purchaser's
inspections and investigations. Purchaser hereby represents and warrants to Seller that Purchaser is
represented by legal counsel in connection with the transaction contemplated by this Agreement.
Purchaser waives any and all rights or remedies it may have or be entitled to, deriving from any
significant disparate bargaining position in relation to Seller. For the avoidance of doubt, if Purchaser's
due diligence efforts under this Agreement identify any environmental conditions requiring remediation
or other action pursuant to applicable laws and regulations, Purchaser, if Closing occurs, will assume any
and all such responsibility to conduct any and all such remediation. Purchaser may opt to enter the
Property, after Closing, into the Texas Commission on Environmental Quality's (TCEQ) Voluntary
Cleanup Program(VCP) and if so, Seller agrees to cooperate with Purchaser post-Closing in such efforts
at no cost or liability to Seller and any such assistance shall not increase Seller's obligations under this
Agreement.
7.3 Seller Released from Liability. Purchaser acknowledges that it will have the opportunity
to inspect the Property during the Inspection Period, and during such period, observe its physical
characteristics and existing conditions and the opportunity to conduct such investigation and study on and
of the Property and adjacent areas as Purchaser deems necessary, and Purchaser hereby FOREVER
RELEASES AND DISCHARGES Seller from all responsibility and liability as allowed under applicable
law as outlined above and, including without limitation, liabilities under the Comprehensive
Environmental Response, Compensation and Liability Act Of 1980 (42 U.S.C. Sections 9601 et seq.), as
amended("CERCLA"), the Texas Solid Waste Disposal Act (Texas Health and Safety Code § 361.001 et
seq. (Vernon 2001), as amended ("SWDA"), the Resource Conservation and Recovery Act (42 U.S.C.
Section 9601 et seq.), as amended, and the Oil Pollution Act(33 U.S.C. Section 2701 et seq.) regarding
the condition, valuation, salability or utility of the Property, or its suitability for any purpose whatsoever
(including, but not limited to, with respect to the presence in the soil, air, structures and surface and
subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the
future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be
specially treated, handled and/or removed from the Property under current or future federal, state and
local laws,regulations or guidelines, and any structural and geologic conditions, subsurface soil and water
conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise
affecting the Property). Purchaser further hereby WAIVES (and by Closing this transaction will be
deemed to have WAIVED) any and all objections and complaints (including, but not limited to, federal,
state and local statutory and common law based actions, and any private right of action under any federal,
state or local laws, regulations or guidelines to which the Property is or may be subject, including,but not
limited to, CERCLA) concerning the physical characteristics and any existing conditions of the Property.
Purchaser further hereby assumes the risk of changes in applicable laws and regulations relating to past,
present and future environmental conditions on the Property and the risk that adverse physical
characteristics and conditions, including,without limitation, the presence of Hazardous Materials or other
contaminants,may not have been revealed by its investigation.
7.4 Hazardous Materials Defined. For purposes hereof, "Hazardous Materials" means
"Hazardous Material," "Hazardous Substance," "Pollutant or Contaminant," and "Petroleum" and"Natural
Gas Liquids," as those terms are defined or used in Section 101 of CERCLA, any "solid waste" as defined
in the SWDA and any other substances regulated because of their effect or potential effect on public
health and the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde,
radioactive materials,putrescible materials, and infectious materials.
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7.5 INDEMNITY; COVENANT NOT TO SUE. To the extent permitted by applicable law
and the Constitution of the State of Texas and without waiving its governmental immunity, Purchaser, for
itself and its successors and assigns, (i) agrees and covenants not to sue Seller Parties for any and all
Claims (defined below), and (ii) agrees to acquit, release and forever discharge and to defend, indemnify
and hold harmless Seller Parties from any and all Claims, in both cases (i) and (ii), that arise out of or
relate to, in any way, the condition, ownership,use,maintenance or operation of the Property at any time,
whether before, on or after the Effective Date, no matter how or when caused, whether known or
unknown, that are asserted or made by any person or entity, whether public or private, under any Law.
As used herein, the term "Law" means any statute, law, rule, regulation or ordinance, whether federal,
state or local, whether at law or equity, whether by statute, common law, administrative or regulatory
proceeding or otherwise, whether based on the negligence, gross negligence, strict liability, willful
misconduct or other conduct of any party hereto or otherwise,to include without limitation and by way of
example only, the Resource Conservation and Recovery Act, the Clean Air Act, the Safe Drinking Water
Act, and the Clean Water Act, or similar or counterpart state statutes and all those certain laws and
regulations listed in Section 7.3. As used herein, the term "Claims" means any and all losses, damages,
claims, demands, liabilities, suits, causes of action, cross-claims or counterclaims; any and all rights of
contribution, subrogation, indemnity or reimbursement; any and all liens, payments, penalties or fines
(civil or criminal) or taxes; and any and all expenses, costs or fees, to include without limitation and by
way of example only, attorneys' and expert witness fees and court costs, and any other charges of any
kind or nature whatsoever.
7.6 Survival. The terms and conditions of this Section 7 shall expressly survive the Closing,
not merge with the provisions of any closing documents and shall be incorporated into the Deed.
Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an
integral part of this Agreement and that Seller would not have agreed to sell the Property to Purchaser for
the Purchase Price without the disclaimers and other agreements set forth above.
SECTION 8—BROKERS
8.1 Commission. Seller is responsible for payment of a commission to the Broker per the
terms of a separate agreement. If the Closing does not occur for any reason, no commission is payable to
the Broker.
8.2 INDEMNITY. Each parry hereto represents to the other that (i) there are no real estate
commissions, finders' fees or brokers' fees that have been or will be incurred in connection with this
Agreement or the sale of the Property other than the commission payable to the Brokers, and (ii) such
party has not authorized any broker or finder (other than the Broker) to act on such party's behalf in
connection with the sale and purchase hereunder. SELLER HERETO AGREES TO INDEMNIFY
AND HOLD HARMLESS PURCHASER FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND OR CHARACTER ARISING
OUT OF OR RESULTING FROM ANY AGREEMENT, ARRANGEMENT OR
UNDERSTANDING (EXCEPT AS SET FORTH IN SECTION 8.1) ALLEGED TO HAVE BEEN
MADE BY SELLER WITH ANY BROKER OR FINDER IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY. THIS OBLIGATION
WILL SURVIVE THE CLOSING OR ANY EARLIER TERMINATION OF THIS
AGREEMENT.
8.3 Title. Purchaser acknowledges that Purchaser should have an abstract covering the
Property examined by an attorney of Purchaser's own selection and not rely on any such review by a the
Brokers.
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SECTION 9—CONDEMNATION
9.1 Taking. If there is a taking by condemnation or similar proceedings or actions of only a
portion of the Property which is not material to the use of the remainder of the Property (as mutually
determined by Seller and Purchaser in their reasonable discretion), this Agreement will remain in full
force and effect, and Seller must pay or assign to Purchaser at Closing Seller's interest in and to any
condemnation awards or proceeds from any such proceedings or actions in lieu thereof to the extent such
awards or proceeds relate to the Property. If there is a taking by condemnation or similar proceedings or
actions of all of the Property or a portion of the Property which is material to the use of the remainder of
the Property (as mutually determined by Seller and Purchaser in their reasonable discretion), Purchaser
will have the option to terminate this Agreement upon written notice to Seller within ten(10) days of such
condemnation, but in no event later than the Closing Date, in which event Escrow Agent will return the
Earnest Money to Purchaser, and neither Purchaser nor Seller will have any further rights or obligations
hereunder except for Surviving Obligations. If Purchaser does not exercise its option to terminate this
Agreement, then this Agreement will remain in full force and effect and Seller must pay or assign to
Purchaser at Closing Seller's interest in and to any and all condemnation awards or proceeds from such
proceedings or actions in lieu thereof or to the extent such awards or proceeds relate to the Property.
SECTION 10—REPRESENTATIONS
10.1 Seller Representations. Seller makes the following representations, as of the Effective
Date and as of the Closing Date,provided, however, as used herein "to Seller's knowledge" shall mean to
the current, actual knowledge of Christine Rathbone,without investigation or inquiry.
(a) Authority. Seller is a Delaware corporation validly existing under the laws of the
state of its organization and has all requisite power and authority to enter into and perform this
Agreement. Each person executing this Agreement on behalf of Seller warrants that such person has all
requisite authority to do so.
(b) Foreign Investor Disclaimer. Seller is not a "foreign person," as such term is
defined in Section 1445 of the Code, and the sale of the Property is not subject to the federal income tax
withholding requirements of such section of the Code. Seller shall execute and deliver to Purchaser at
Closing a certificate ("FIRPTA Certificate")certifying to same.
(c) Condemnation. Seller has not received written notice pertaining to pending or
threatened condemnation or similar proceeding affecting the Property.
(d) Litigation. To Seller's knowledge, there is no pending or threatened litigation or
administrative proceeding which would materially adversely affect the ability of Seller to perform Seller's
obligations under this Agreement.
(e) Leases. To Seller's knowledge, there are no leases, tenancies or other similar
rights of occupancy or use for any portion of the Property other than as stated on the Title Commitment.
(f) No Transfer. Seller is not a party to any contract, agreement, or commitment to
sell, convey, assign, transfer or otherwise dispose of any portion of the Property other than this
Agreement.
10.2 Purchaser Representations. Purchaser makes the following representations, as of the
Effective Date and as of the Closing Date:
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(a) Authority. Purchaser is a duly organized and validly existing Texas home-rule
municipality and has all requisite power and authority to enter into and perform this Agreement and the
documents contemplated hereby. Each person executing this Agreement on behalf of Purchaser warrants
and represents that such person has all requisite authority to do so.
10.3 Survival. The representations provided in this Section 10 will survive the Closing for a
period of six (6) months (the "Survival Period"), it being hereby acknowledged that such representations
will not merge with the Deed to be delivered at Closing. Each party shall have the right to bring an action
against the other on the breach of a representation or warranty hereunder, but only on the following
conditions: (a)the party bringing the action for breach first learns of the breach after Closing and gives
written notice of such breach to the other party before the end of the Survival Period and files such action
on or before the first day following the second anniversary of the Closing Date, and (b)neither party shall
have the right to bring a cause of action for a breach of a representation or warranty unless the damage to
such party on account of such breach(individually or when combined with damages from other breaches)
equals or exceeds $10,000.00. Neither party shall have any liability after Closing for the breach of a
representation or warranty hereunder of which the other party hereto had knowledge as of Closing.
Notwithstanding any other provision of this Agreement, any agreement contemplated by this Agreement,
or any rights which Purchaser might otherwise have at law, equity, or by statute, whether based on
contract or some other claim, Purchaser agrees that any liability of Seller to Purchaser will be limited to
$40,000.00. The provisions of this Section 10.3 shall survive the Closing. Any breach of a representation
or warranty that occurs prior to Closing shall be governed by Section 13.
SECTION 11 —COVENANTS AND CONDITIONS
11.1 Seller's Covenants. Seller hereby covenants and agrees with Purchaser as follows during
the term of this Agreement:
(a) Further Encumbrances. After the Inspection Period, Seller will not grant or
purport to create to any third party any interest in the Property or any part thereof or further encumber the
Property without the prior written approval of Purchaser.
(b) Other Agreements. After the Inspection Period, Seller will not enter into any
material maintenance, management or other service contracts relating to the Property without the prior
written approval of Purchaser.
(c) Violations of Law. Seller will promptly notify Purchaser in writing of any
violation of any law, regulation, ordinance, order or other requirement of any governmental authority
having jurisdiction over or affecting the Property, or any part thereof, of which Seller receives written
notice.
11.2 Purchaser's Covenants. Purchaser hereby covenants and agrees with Seller that prior to
the Closing, Purchaser will not pen-nit any lien or other encumbrance to be placed or filed against the
Property.
SECTION 12—CLOSING
12.1 Time and Place. The Closing will occur on the Closing Date at 1:00 p.m. Fort Worth,
Texas, time at the offices of the Escrow Agent or at such other time and place mutually agreed upon by
Seller and Purchaser. The Closing Date will not be extended or postponed for any reason unless
otherwise expressly provided in this Agreement or agreed to by both parties in writing.
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12.2 Conditions to Closing. Purchaser's obligation to close the transaction contemplated by
this Agreement is conditioned upon satisfaction of the following condition(the "Closing Condition):
(a) Approval of the City Council of Fort Worth, Texas. During the Inspection
Period, Purchaser agrees to diligently pursue the City Council Approval. Purchaser shall keep Seller
informed of its efforts to obtain City Council Approval and shall notify Seller within one (1)business day
after Purchaser obtains City Council Approval.
If the Closing Condition has not been satisfied by or on the scheduled Closing Date, then Purchaser will
have the option, exercisable by giving written notice to Seller, to (i)terminate this Agreement, in which
event this Agreement will automatically terminate, Escrow Agent will return the Earnest Money to
Purchaser, and the parties hereto will have no further obligations one to the other hereunder except for
Surviving Obligations, (ii)waive such Closing Condition, or(iii) extend the Closing Date up to sixty(60)
days to satisfy the Closing Condition.
12.3 Seller Delivery. At the Closing, Seller shall deliver or cause to be delivered to Escrow
Agent, at Seller's sole cost and expense, each of the following:
(a) The Deed, duly executed and acknowledged by Seller.
(b) The FIRPTA Certificate, duly executed and acknowledged by Seller.
(c) Such conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Seller by applicable state and local law in connection with the conveyance of the
Property.
(d) Such evidence or documents as may reasonably be required by Purchaser or the
Title Company evidencing the status and capacity of Seller and the authority of the person or persons who
are executing the various documents on behalf of Seller in connection with the sale of the Property.
12.4 Purchaser Delivery. At the Closing, Purchaser shall deliver to Escrow Agent, at
Purchaser's sole cost and expense,the following:
(a) The Purchase Price in the amount and manner required by Section 3.
(b) Such conveyancing or transfer tax forms or returns, if any, as are required to be
delivered or signed by Purchaser by applicable state and local law in connection with the conveyance of
the Property.
(c) Such evidence or documents as may reasonably be required by Seller or the Title
Company evidencing the status and capacity of Purchaser and the authority of the person or persons who
are executing the various documents on behalf of Purchaser in connection with the acquisition of the
Property.
12.5 Adjustments and Prorations. Seller and Purchaser agree to prorate all utilities,
real estate taxes, maintenance charges and other income and operating expenses of the Property,
if any, in accordance with the provisions set forth in this Section 12.5. The date used for
prorations and adjustments hereunder (the "Proration Date") is end of the day immediately
preceding the Closing Date, and accordingly Purchaser will be deemed to own the Property (and
will be entitled to any revenues and be responsible for any expenses) for the entire day upon
which the Closing occurs. Any apportionments or prorations not expressly described herein will
be handled in accordance with the customary practice in the County and State. Escrow Agent
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shall prepare the closing statement reflecting the adjustments and prorations (the "Closing
Statement") prior to the Proration Date, and Seller and Purchaser agree to deliver executed
counterparts of the Closing Statement to Escrow Agent on or before the Closing Date. Seller will
pay any net adjustment in favor of Purchaser in the form of a credit to the Purchase Price.
Purchaser will pay any net adjustment in favor of Seller in Cash Funds at Closing. Seller and
Purchaser will adjust and prorate the following items of income and expense as set forth herein:
(a) Taxes and Assessments. All non-delinquent real estate and personal property
taxes and assessments on the Property will be prorated as of the Proration Date between Seller and
Purchaser,based upon the actual current tax bill for the tax year in which the Closing occurs. If the most
recent tax bill received by Seller as of the Proration Date is not the actual current tax bill,then Seller and
Purchaser must re-prorate the real estate and personal property taxes and assessments at the Final Closing
Adjustment(as defined below)if the actual current tax bill is then available. All amounts payable for real
estate and personal property taxes and assessments accruing up to and including the Proration Date are the
obligation of Seller and all amounts payable for real estate and personal property taxes and assessments
accruing after the Proration Date are the obligation of Purchaser. At Closing, Seller must pay any real
estate and personal property taxes and assessments on the Property that are delinquent as of the Proration
Date, if any. If Seller has paid taxes or assessments for the Property in advance, then Seller will be
entitled to a credit for all amounts attributable to the period after the Closing Date, to be reflected as a
credit on the Closing Statement. Purchaser is responsible for the payment of any taxes or assessments
arising due to a change in the usage or ownership of the Property.
12.6 Possession. Seller will deliver possession of the Property to Purchaser at the time of
Closing, subject only to such rights of others as have been expressly disclosed herein or in the documents
delivered at the Closing.
12.7 Reporting Person. Seller and Purchaser hereby designate Escrow Agent as the
"Reporting Person" as such term is utilized in Section 6045 of the Code. Purchaser agrees to provide
Escrow Agent with such information as may be required for the Escrow Agent to file a Form 1099 or
other required form relative to the Closing with the Internal Revenue Service. Escrow Agent must
provide a copy of the filed Form 1099 or other filed form to Seller and Purchaser simultaneously with its
being provided to the Internal Revenue Service.
12.8 Costs and Expenses. Seller shall be responsible for the following costs and expenses: (i)
the basic premium of the Title Policy in the amount of the Purchase Price; (ii) one-half of the escrow fees;
(iii) one-half of the recording fees; (iv) Seller's counsel and professional service fees; and (v)
reimbursement to Purchaser of one-half of the reasonable cost of the Updated Survey as provided by
Section 5.2. Purchaser shall be responsible for the following costs and expenses: (i) Purchaser's due
diligence costs; (ii) one-half of the recording fees; (iii) one-half of the escrow fees; (iv) any premium for
deletions, endorsements and other modifications requested by Purchaser to the Title Policy; (v) the
Updated Survey [subject to reimbursement in Section 5.2] (vi) cost for UCC searches; (vii) any deed
taxes, documentary stamps, transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or
assessments; (viii) Purchaser's counsel and professional service fees; and (ix) any financing arrangements
made by Purchaser with respect to the Property. Except as otherwise expressly provided in this
Agreement, Seller and Purchaser agree to bear all costs and expenses in connection with the transaction
contemplated by this Agreement in the manner in which such costs and expenses are customarily
allocated between the parties at closings of the purchase or sale of real property similar to the Property in
the County and State.
12.9 Deed Restrictions. Seller and Purchaser agree that Purchaser shall accept title to the
Property subject to the following restrictions (the "Deed Restrictions"), which restrictions shall apply
perpetually from the Closing Date forward.
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a. Sensitive Use and Residential Uses: The Property may not be used for (i) any
"residential" construction, development, use, or purpose, which shall, without limitation, be
interpreted to mean and include a prohibition against use for single- or multi-family residences
and any other "residential land use" restrictions or limitations set forth or described in all
building, zoning and land use ordinances, laws, regulations and restrictions by municipal or other
governmental authorities applicable to the Property, or (ii) any "sensitive" construction,
development, use or purpose, which shall be without limitation interpreted to mean and include a
prohibition against use for group residences for children, the elderly, or the infirm, churches and
places of worship, schools, nurseries and other pre-school facilities, nursing or convalescent
homes, hospitals, health clinics, or other medical facilities, day care facilities, facility or
community playgrounds, recreational parks, hotels, motels, bed and breakfast, parks, and any
other "sensitive use" or similar use or purpose (collectively, the "Sensitive Uses"). The
restrictions in this Section shall not apply if Purchaser or subsequent owner conducts a Phase 1
Environmental Site Assessment and a Phase 2 Environmental Site Assessment of the Land, if
recommended, indicating that no further environmental investigation of the Land is required and
any and all recommended remedial actions are complete in order for the Property, or any portion
thereof,to be used for the Sensitive Uses.
(a) Potable Groundwater. No groundwater in or under the surface of the Property
may be used for any potable purpose unless Purchaser or subsequent owner ensures that a
professional engineer has certified that the groundwater and any treatment to be used for potable
purposes meets all drinking water standards under federal, state and local laws and regulations. It
is recommended that prior to use and on a reasonable interval thereafter, any potable water well
be sampled and confirmed to meet drinking water standards via analysis at a state-certified
laboratory.
SECTION 13 —DEFAULT AND REMEDIES
13.1 Seller Default. If the sale is not consummated because of a default on the part of Seller,
then Purchaser may either (i) enforce specific performance hereunder, or (ii)terminate this Agreement
and obtain the return of the Earnest Money. If Purchaser elects to enforce specific performance
hereunder, it must deliver written notice to Seller of its intent to file a claim for specific performance
within thirty (30)days after the scheduled Closing Date and, after giving such notice, must file suit in the
appropriate court within sixth (60) days after the scheduled Closing Date (and Purchaser's failure to
timely do either will constitute a waiver of the remedy of specific performance hereunder). The remedies
set forth in this Section 13.1 are Purchaser's sole and exclusive remedies. In no event will Seller ever be
liable to Purchaser hereunder for any punitive, speculative, or consequential damages.
13.2 Purchaser Default. If the sale is not consummated because of a default on the part of
Purchaser, then, as Seller's sole and exclusive remedy for such default, Seller may terminate this
Agreement by written notice to Purchaser. In such event, Escrow Agent must deliver the Earnest Money
to Seller as liquidated damages for Purchaser's default. Such amount is agreed upon by and between
Seller and Purchaser as liquidated damages due to the difficulty and inconvenience of ascertaining and
measuring actual damages, and the uncertainty thereof. The remedy set forth in this Section 13.2 is
Seller's sole and exclusive remedy for the sale not being consummated due to a default by Purchaser.
However, nothing contained in this Section 13.2 limits Purchaser's liability for a default in the
performance of any representations, covenants, indemnities (as limited and described herein) or
obligations that survive the Closing or the termination of this Agreement, and Seller will have the right to
pursue any remedies available at law or in equity against Purchaser for a breach of such obligations,
subject to Section 10.3 of this Agreement.
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SECTION 14—NOTICE REGARDING SELLER INSURANCE
14.1 ExxonMobil Policies. All of the insurance policies through which the worldwide
program of coverage is presently or has previously been provided by or to Exxon Mobil Corporation, its
predecessors or affiliates are herein referred to collectively as the "ExxonMobil Policies."
14.2 Acknowledgement. Seller and Purchaser acknowledge that Exxon Mobil Corporation
maintains a worldwide program of property and liability insurance coverage for itself and its affiliates,
including Seller. This program has been designed to achieve a coordinated risk management package for
the entire ExxonMobil corporate group. The program consists principally of five types of policies:
(a) policies issued to Exxon Mobil Corporation or its predecessors;
(b) policies issued directly to affiliates by ExxonMobil's wholly-owned insurance company,
Ancon Insurance Company, Inc., (herein referred to as "ExxonMobil's Captive Insurer");
(c) policies issued to affiliates by locally admitted insurers which are reinsured by
ExxonMobil's Captive Insurer;
(d) policies issued in connection with Joint Ventures (JVs), Limited Liability Companies
(LLCs), corporations, Production Sharing Agreements/Contracts (PSCs/PSAs) or similar business
structures for the affiliates' interest therein, which are insured or reinsured by ExxonMobil's Captive
Insurer.
14.3 Agreement. It is understood and agreed by Purchaser that from and after the Closing:
(a) No insurance coverage shall be provided under the ExxonMobil Policies to Purchaser;
(b) Any and all policies insured or reinsured by any of ExxonMobil's Captive Insurer which,
but for this provision, would have insured the Property shall be deemed terminated, commuted and
cancelled ab initio;
(c) No claims regarding any matter whatsoever, whether or not arising from events occurring
prior to the Closing, shall be made by Purchaser against or with respect to the ExxonMobil Policies
regardless of their date of issuance; and
(d) Purchaser shall bear full responsibility for insuring the Property post-Closing and for all
liability that may arise from Purchaser's failure to insure the Property in whole or in part.
14.4 Insurance Indemnity. To the extent permitted by applicable law and the Constitution of
the State of Texas and without waiving its governmental immunity, Purchaser shall indemnify and defend
Seller, its parents and affiliates (including ExxonMobil's Captive Insurer) against, and shall hold them
harmless from, any claim made after the Closing against any of the ExxonMobil Policies by Purchaser or
its affiliates or any company or person claiming to be subrogated to Purchaser's rights, including all costs
and expenses (including attorneys' fees) related thereto. Such indenmity shall cover, without limitation,
any claim by an insurer for reinsurance, retrospective premium payments or prospective premium
increases attributable to any such claim.
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SECTION 15—MISCELLANEOUS
15.1 Notices. Any notice under this Agreement must be in writing and must be sent to the
appropriate notice address by (i) personal delivery, (ii) a recognized overnight courier, (iii) United States
mail, postage prepaid, certified mail, return receipt requested, or (iv) email so long as the email is
acknowledged by a read receipt from the recipient. Notice by personal delivery, overnight courier, or
email will be effective upon receipt; notice by mail will be effective upon deposit in the United States
mail in the manner above described. Any party may change its notice address by delivering appropriate
written notice to the other party. The change in notice address will be effective ten (10) days after the
date of the notice.
The proper address and email address for Seller is as follows:
XTO Energy Inc.
c/o ERES Companies
6100 Western Place, Suite 905
Fort Worth,Texas 76107
Attn: Christine Rathbone
Email: christine.rthbone@exxommobil.com
and:
Moore Environmental Law Group LLC
PO Box 812
Kittredge, Colorado 80457
Attn: Annette M. Moore
Email: annette@mooreenvirolaw.com
with a copy to: Winstead PC
300 Throckmorton Street, Suite 1700
Fort Worth,Texas 76102
Attn: Beth Thurman
Email: bthurman@winstead.com
The proper address for Purchaser is as follows:
City of Forth Worth
200 Texas Street
Fort Worth,Texas 76102
Attn: Ricky Salazar
Email: ricardo.salazar@fortworthtexas.gov
with a copy to: City of Fort Worth
200 Texas Street
Fort Worth,Texas 76102
Attn: Matt Murray
Email: Matthew.Murray@fortworthtexas.gov
15.2 Confidentiality. Except as otherwise provided herein,Purchaser and Escrow Agent agree
not to disclose to the public or to any third party any information regarding the terms of this Agreement.
Notwithstanding the foregoing, Purchaser or Escrow Agent may disclose any aspect of this if required
under applicable law, including the Texas Public Information Act. Furthermore, Purchaser may disclose
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such matters on a confidential basis to any attorneys, accountants, professional consultants, financial
advisors, partners, investors or potential investors, or lenders or potential lenders to the extent necessary
to complete the transaction contemplated by this Agreement. The provisions of this Section 15.2 will
survive any termination or cancellation of this Agreement.
15.3 Successors and Assignment. This Agreement is binding upon and will inure to the
benefit of the parties and their respective heirs, legal representatives, successors and permitted assigns.
Purchaser shall not assign this Agreement without the prior written consent of Seller; provided, however,
Purchaser may assign its rights under this Agreement upon the following conditions: (a)the assignee of
Purchaser must be an entity controlling, controlled by, or under common control with Purchaser, (b) all of
the Earnest Money must have been delivered in accordance herewith, (c)the Inspection Period shall have
expired, (d)the assignee of Purchaser shall assume all obligations of Purchaser hereunder, but Purchaser
shall remain primarily liable for the performance of Purchaser's obligations, and (e) a copy of the fully
executed written assignment and assumption agreement shall be delivered to Seller at least ten (10) days
prior to Closing.
15.4 No Recordation. Neither party will record this Agreement or any memorandum or
affidavit of this Agreement.
15.5 Governing Law. This Agreement is governed by the laws of the State of Texas and is
performable in, and the exclusive venue for any action brought with respect hereto, will be in Tarrant
County, Texas. Purchaser and Seller acknowledge to each other that Purchaser and Seller are not in
significantly disparate bargaining positions.
15.6 Amendment. To be effective, any amendment or modification of this Agreement must be
in writing and must be signed by an authorized signatory of Seller and Purchaser.
15.7 No Oral or Implied Waiver. The parties may waive any of the rights or conditions
contained herein or any of the obligations of the other party hereunder, but unless this Agreement
expressly provides that a condition, right, or obligation is deemed waived, any such waiver will be
effective only if in writing and signed by the party waiving such condition, right, or obligation. The
failure of either party to insist at any time upon the strict performance of any covenant or agreement in
this Agreement or to exercise any right, power, or remedy contained in this Agreement will not be
construed as a waiver or a relinquishment thereof for the future.
15.8 Time of Essence. Time is of the essence in the performance of the covenants contained
in this Agreement.
15.9 Intentionally Omitted.
15.10 Headings. The descriptive headings of the various Sections contained in this Agreement
are inserted for convenience only and do not control or affect the meaning or construction of any of the
provisions hereof.
15.11 Total Agreement. This Agreement constitutes the entire agreement among the parties
pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith.
15.12 Severability. If any term or provision of this Agreement, or the application thereof to any
person or circumstance will, to any extent, be invalid or unenforceable, the remainder of this Agreement,
or the application of such term or provision to persons or circumstances other than those as to which it is
PURCHASE AND SALE AGREEMENT - Page 17
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
held invalid or unenforceable,will not be affected thereby,and each term and provision of this Agreement
will be valid and enforced to the fullest extent permitted by law.
15.13 Counterpart Execution. To facilitate execution, this Agreement may be executed in as
many counterparts as may be convenient or required and in true and correct pdf. It is not necessary that
the signature of all persons required to bind any party appear on each counterpart. All counterparts
collectively constitute a single instrument.
15.14 Business Days. If the date upon which any duties or obligations hereunder to be
performed occurs upon a Saturday, Sunday or legal holiday, then, in such event, the due date for
performance of any duty or obligation automatically will be extended to the next succeeding business day.
15.15 Rule of Construction. Seller and Purchaser acknowledge that each party and its counsel
have taken the opportunity to review and revise this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party will not be employed in the
interpretation of this Agreement or any amendments or exhibits to this Agreement.
15.16 Offer. This Agreement,when first signed by Purchaser,represents an irrevocable offer to
purchase the Property that may not be rescinded or revoked but will expire automatically (without any
further notice from or action by Purchaser) on the tenth (10`1) business day after execution by Purchaser
unless it is signed by Seller and received by Purchaser within such period.
15.17 City Council Approval Required. Notwithstanding anything herein to the contrary, Seller
hereby acknowledges and agrees that the Purchaser's execution of this Agreement, its representations and
warranties under this Agreement, Purchaser's willingness and agreement to purchase the Property, and to
consummate the transactions contemplated under this Agreement are expressly subject to and contingent
upon the City Council Approval.
SECTION 16—SPECIAL PROVISIONS
16.1 Rollback Taxes. In accordance with Section 5.010(a) of the Texas Property Code, as
amended, Seller hereby notifies Purchaser of the following:
NOTICE REGARDING POSSIBLE LIABILITY FOR ADDITIONAL TAXES
If for the current ad valorem tax year the taxable value of the land that is the subject
of this contract is determined by a special appraisal method that allows for appraisal
of the land at less than its market value, the person to whom the land is transferred
may not be allowed to qualify the land for that special appraisal in a subsequent tax
year and the land may then be appraised at its full market value. In addition, the
transfer of the land or a subsequent change in the use of the land may result in the
imposition of an additional tax plus interest as a penalty for the transfer or the change
in the use of the land. The taxable value of the land and the applicable method of
appraisal for the current tax year is public information and may be obtained from the
tax appraisal district established for the county in which the land is located.
Purchaser shall be responsible for any "rollback taxes", or other taxes resulting from any change
in land usage or ownership that may become due with respect to any calendar year prior to the calendar
year in which Closing occurs and all such taxes for the Property with respect to the elapsed portion of the
calendar year in which Closing occurs, regardless of whether such taxes become due after the Closing
Date. This covenant will not merge with the Deed but will survive Closing.
PURCHASE AND SALE AGREEMENT - Page 18
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
16.2 NOTICE OF INDEMNIFICATION. THE PARTIES TO THIS AGREEMENT
HEREBY ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONTAINS
INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 6.2, SECTION 7.5 AND
SECTION 14.4 HEREOF AND SUCH INDEMNIFICATION APPLIES TO THE EXTENT
PERMITTED BY APPLICABLE LAW AND THE CONSTITUTION OF THE STATE OF
TEXAS.
[Signature page follows.]
PURCHASE AND SALE AGREEMENT - Page 19
DocuSign Envelope ID:33517504-1BE2-42F8-B350-3A09F3D4C7D8
SELLER:
XTO ENERGY INC.,
a Dela TRt" on
By: MNA8781774FA...
Name: Maria M. Quezada
Title: Agent and Attorney-In-Fact
November 22, 2021
PURCHASER:
CITY OF FORT WORTH
Meg 3-Av h
Dana Burghdoff(N 12,202 18:38 CST)
By:
Name: ana Burghdoff
Title: Assistant City Manager
APPROVED AS TO LEGALITY AND FORM FOR
PURCHASER
Matthew A. Murray
Assistant City Attorney
Attest: ab�F Rr�aa
0000000
O
Ronald P. Gonzales l.o ��
Acting City Secretary 0 0 g o=0
o 0
M&C; 21-0858 OA*°�o 0000000 o°°a�
Date:11/9/2021 44r,?EXi St�
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
,arts g l p r r reporting requirements.
R.'cky Saiazar
Assistant Director,Property Management Director
PURCHASE AND SALE AGREEMENT - Page 20 OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
JOINDER AND RECEIPT BY ESCROW AGENT
The Agreement has been received by Escrow Agent on I I- Z Z- , 2021 and Escrow Agent
agrees to be bound by the terms and provisions of this Agreement, including those described in Section 4
hereof.
ESCROW AGENT:
RATTIKIN TITLE COMPANY
By:
Name: Ch# �Ucxa a vti c rrct
Title: EXraw A 55`5{-" '
ATTACHMENTS:
Exhibit A - Land Description
Exhibit B - Form of Special Warranty Deed
PURCHASE AND SALE AGREEMENT - Page 21
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
EXHIBIT A
LAND DESCRIPTION
Approximately 29.511 acres in Fort Worth, Tarrant County, Texas, being a part of the Jacob Wilcox
Survey #35, Abstract 1718 and being all of Lot lA and 113, Block 1, Fox Addition to Tarrant County,
Texas according to plat recorded in Cabinet A, Slide 6069, Deed Records of Tarrant County, Texas,
further described in General Warrant Deeds to XTO Energy Inc., a Delaware Corporation, recorded in
instruments D208084326,D208084324,D207422524, deed records,Tarrant County,Texas.
EXHIBIT A,Legal Description of the Property—Page 1
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR
DRIVER'S LICENSE NUMBER.
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TARRANT §
THAT XTO ENERGY INC., a Delaware corporation (the "Grantor"), for and in consideration of
the sum of Ten and 00/100 Dollars (510.00) cash and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, paid by
a (the "Grantee"),
subject to the provisions set forth herein, HAS GRANTED, BARGAINED, SOLD and CONVEYED, and
by these presents DOES GRANT, BARGAIN, SELL and CONVEY unto Grantee all of that certain tract
or tracts of land in Tarrant County, Texas (the "Land"), described on Exhibit A which is attached hereto
and incorporated herein by reference for all purposes,together with all of Grantor's right,title and interest
in and to any improvements located thereon and any easements, interests, benefits, privileges, rights and
appurtenances pertaining to such Land, (said Land, improvements, easements, interests, benefits,
privileges,rights and appurtenances being herein collectively referred to as the "Property").
From the date hereof,the Property shall be subject to the following restrictions:
a. Sensitive Use and Residential Use: The Property may not be used for (i) any
"residential" construction, development, use, or purpose,which shall,without limitation,be interpreted to
mean and include a prohibition against use for single- or multi-family residences and any other
"residential land use" restrictions or limitations set forth or described in all building, zoning and land use
ordinances, laws,regulations and restrictions by municipal or other governmental authorities applicable to
the Property, or (ii) any "sensitive" construction, development, use or purpose, which shall be without
limitation interpreted to mean and include a prohibition against use for group residences for children, the
elderly, or the infirm, churches and places of worship, schools, nurseries and other pre-school facilities,
nursing or convalescent homes, hospitals, health clinics, or other medical facilities, day care facilities or
community playgrounds, recreational parks, hotels, motels, bed and breakfast, parks, and any other
"sensitive use" or similar use or purpose (collectively, the "Sensitive Uses"). The restrictions in this
Section shall not apply if Purchaser or subsequent owner conducts a Phase 1 Environmental Site
Assessment and a Phase 2 Environmental Site Assessment of the Land, if recommended, indicating that
no further environmental investigation of the Land is required under applicable laws, rules or regulations,
and any and all recommended remedial actions under applicable laws,rules or regulations are complete in
order for the Property, or any portion thereof,to be used for the Sensitive Uses.
b. Potable Groundwater. No groundwater in or under the surface of the Property may be
used for any potable purpose unless Grantee or subsequent owner ensures that a professional engineer has
certified that the groundwater and any treatment to be used for potable purposes meets all drinking water
standards under federal, state and local laws and regulations. It is recommended that prior to use and on a
reasonable interval thereafter, any potable water well be sampled and confirmed to meet drinking water
standards via analysis at a state-certified laboratory.
EXHIBIT B,Form of Special Warranty Deed—Page 1
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
Grantor hereby excepts from this deed and reserves to Grantor, its successors and assigns, all oil,
gas or other minerals in, on and under and that may be taken, saved, extracted or produced from the
Property and all other subsurface rights of the Property; provided, however, that Grantor does hereby
expressly release and waive, on behalf of itself, and its successors or assigns, all rights of ingress and
egress and all other rights of every kind and character whatsoever to enter upon,use or in any way disturb
the surface of the Property or any part thereof, including, without limitation, the right to enter upon the
surface of the Property for purposes of exploring for, developing, drilling, producing, transporting
product, mining, treating, storing or any other purpose incident to the development or production of the
oil, gas and other minerals in, on and under the Property. Nothing herein contained shall ever be
construed to prevent the Grantor, or its successors or assigns, from developing or producing the oil, gas
and other minerals in and under the Property by pooling or by directional drilling under the Property from
well sites not located within the boundaries of such Property and only at a depth of no less than 500 feet
below the surface of the Property.
This Special Warranty Deed and the conveyance hereinabove set forth is executed by Grantor and
accepted by Grantee subject only to the easements, restrictions, reservations and covenants described in
this deed and in Exhibit B attached hereto and incorporated herein by this reference, to the extent the
same are validly existing and applicable to the Property (hereinafter referred to collectively as the
"Permitted Exceptions").
Grantee acknowledges that Grantee has independently and personally inspected the Property.
The Property is hereby conveyed to and accepted by Grantee in its present condition, "AS IS,WITH ALL
FAULTS, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED.
Notwithstanding anything contained herein to the contrary, it is understood and agreed that Grantor and
Grantor's agents or employees have never made and are not now making, and they specifically disclaim,
any warranties, representations or guaranties of any kind or character, express or implied, oral or written,
with respect to the Property, including, but not limited to, warranties, representations or guaranties as to
(a)matters of title (other than Grantor's warranty of title set forth herein), (b)environmental matters
relating to the Property or any portion thereof, including, without limitation, the presence of hazardous
materials in, on, under or in the vicinity of the Property, (c)geological conditions, including, without
limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations
regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future
faulting, (d)whether, and to the extent to which the Property or any portion thereof is affected by any
stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or
special flood hazard, (e)drainage, (f)soil conditions, including the existence of instability, past soil
repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any
undershoring, (g)the presence of endangered species or any environmentally sensitive or protected areas,
(h)zoning or building entitlements to which the Property or any portion thereof may be subject, (i)the
availability of any utilities to the Property or any portion thereof including, without limitation, water,
sewage, gas and electric, 0)usages of adjoining property, (k) access to the Property or any portion
thereof, (1)the value, compliance with the plans and specifications, size, location, age, use, design,
quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of
the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or
claims on or affecting or pertaining to the Property or any part thereof, (m)the condition or use of the
Property or compliance of the Property with any or all federal, state or local ordinances,rules,regulations
or laws,building,fire or zoning ordinances, codes or other similar laws, (n)the existence or non-existence
of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the
stability and integrity of the Property, (p)the potential for further development of the Property, (q)the
merchantability of the Property or fitness of the Property for any particular purpose, (r)the truth, accuracy
or completeness of any diligence items provided by Grantor, (s)tax consequences, or(t)any other matter
EXHIBIT D,Form of Escrow Agreement—Page 2
DocuSign Envelope ID:33517504-1l3E2-42F8-l3350-3A09F3D4C7D8
or thing with respect to the Property. GRANTOR MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND TO GRANTEE, INCLUDING, WITHOUT LIMITATION, THE
PHYSICAL CONDITION OF THE PROPERTY, OR THEIR SUITABILITY FOR ANY PARTICULAR
PURPOSE OR OF MERCHANTABILITY, AND GRANTEE IS RELYING ON ITS
INVESTIGATIONS OF THE PROPERTY IN DETERMINING WHETHER TO ACQUIRE IT. THE
PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL PART OF THE CONSIDERATION FOR
GRANTOR EXECUTING THIS SPECIAL WARRANTY DEED AND SHALL SURVIVE CLOSING.
TO HAVE AND TO HOLD the Property unto Grantee, and Grantee's successors and assigns
forever, and Grantor does hereby bind Grantor, and Grantor's successors and assigns, to WARRANT and
FOREVER DEFEND, all and singular the Property unto Grantee and Grantee's successors and assigns,
against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through
or under Grantor,but not otherwise, subject only to the Permitted Exceptions.
Grantee's address is:
EXHIBIT D,Form of Escrow Agreement—Page 3
DocuSign Envelope ID:33517504-1l3E2-42F8-l3350-3A09F3D4C7D8
EXECUTED to be effective this day of ,20_.
GRANTOR:
XTO ENERGY INC.,
a Delaware corporation
By:
Name:
Title:
STATE OF TEXAS §
COUNTY OF TARRANT §
This instrument was ACKNOWLEDGED before me on 20 by
of XTO
Energy Inc., a Delaware corporation,on behalf of said entity.
Notary Public -State of Texas
After Recording Return To:
Attn:
EXHIBIT D,Form of Escrow Agreement—Page 4
DocuSign Envelope ID:33517504-1 BE2-42F8-B350-3A09F3D4C7D8
EXHIBIT A
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION OF THE LAND
[To Be Attached.]
EXHIBIT B
TO SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
[To Be Attached.]
EXHIBIT D,Form of Escrow Agreement—Page 5
4828-9206-3 728v.2 19005-293
DocuSign Envelope ID:CC700FBF-B918-44EE-A96C-E4E9C4BBE1 B6
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Amendment") is
made and entered into effective as of November 22 , 2021 by and between XTO ENERGY INC., a
Delaware corporation ("Seller") and the CITY OF FORT WORTH, a Texas home-rule municipality
("Purchaser").
WHEREAS Seller and Purchaser are parties to that certain Purchase and Sale Agreement
("Agreement") dated November 22 , 2021 for approximately 29.511 acres of land, improvements and
personal property with a site address of 8900 Jacksboro Highway, 9112 Nine Mile Bridge Road, and 9114
Nine Mile Bridge Road,Fort Worth, Tarrant County, Texas ("Property"); and
WHEREAS the Agreement provides that the Purchaser must deliver the earnest money deposit
within ten(10) days after City Council Approval; and
WHEREAS on November 9, 2021,the Fort Worth City Council approved the Agreement and the
purchase of the Property through Mayor and Council Communication No. 21-0858; and
WHEREAS Seller and Purchaser now wish to amend the Agreement to provide that earnest
money must be delivered upon the later to occur of(1) within three (3) business days after the Effective
Date of the Agreement, or(11)November 30, 2021.
NOW THEREFORE, in consideration of good and valuable consideration, Seller and Purchaser
agree to amend the Agreement as follows:
1. Section 4—Earnest Money is amended to be and read as follows:
SECTION 4—EARNEST MONEY
4.1 Deposit. Upon the later to occur of(1) within three (3) business days after the Effective Date of
this Agreement or (11) November 30, 2021, Purchaser must deliver to Escrow Agent an Earnest Money
deposit of Ten Thousand and 00/100 Dollars ($10,000.00)in Cash Funds (the "Earnest Money"). If Buyer
elects to extend the Inspection Period pursuant to Section 11 and timely deposits the Extension Fee, the
Extension Fee will then be added to and become part of the "Earnest Money" for all purposes of this
Agreement. Upon the Closing, the Earnest Money will be applied to the Purchase Price. If the Closing
does not occur as required pursuant to this Agreement, then Escrow Agent must disburse the Earnest
Money in the manner provided for elsewhere herein. Escrow Agent must invest the Earnest Money in an
interest-bearing account at a federally-insured bank in a manner that will allow Escrow Agent to disburse
the Earnest Money upon two (2) days'written notice. All interest or other earnings on the Earnest Money
will become a part of the Earnest Money and must be disbursed to the party entitled to the Earnest
Money. Purchaser's obligation to deliver the Earnest Money as provided in this Section 4.1 is a condition
precedent to Seller's obligations and Purchaser's rights hereunder. If Purchaser fails to deposit the Earnest
Money as required herein, Seller may terminate this Agreement upon written notice to Purchaser prior to
Purchaser's deposit of the Earnest Money (without any opportunity by Purchaser to cure). Following any
termination by Seller in accordance with this Section 4.1, neither party will have any further rights,
obligations, or remedies under this Agreement(other than Surviving Obligations).
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
8900 Jacksboro,9112 Nine Mile Bridge Road, and 9114 Nine Mile Bridge Road
DocuSign Envelope ID:CC700FBF-B918-44EE-A96C-E4E9C4BBE1 B6
2. All other terms, provisions, conditions, covenants and recitals of the Agreement not expressly
amended herein shall remain in full force and effect.
SELLER:
XTO ENERGY INC.,
a Dela eccm-a-ion
Atavia ft. bla"64
By: B72BM6761774FA...
Name: Maria M. Quezada
Title: Agent and Attorney-In-Fact
November 22, 2021
PURCHASER:
CITY OF FORT WORTH
By: Dana Burghdoff(Nov 22,20 12:09 CST61(
Name: Dana Burghdoff
Title: Assistant City Manager
APPROVED AS TO LEGALITY AND FORM FOR
PURCHASER
Matthew A. Murray
Assistant City Attorney
Attest:
n
0 0Fo0 000 4 i?
Ronald P. Gonzales ado Op��
Acting City Secretary O Z P.
000 g=d
o G d
0 *�
M&C: 21-0858 da 0e000Ooo0o a
Date:November 9, 2021 �a�"six 4
Contract Compliance Manager:
By signing I acknowledge that I am the person responsible
for the monitoring and administration of this contract, including
ensuring all erformance and reporting requirements.
Ricky Salaz r
Assistant Director, Property Management Department
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT OFFICIAL RECORD
8900 Jacksboro, 9112 Nine Mile Bridge Road, and 9114 Nine Mile Bridge Road CITY SECRETARY
FT.WORTH,TX
11/12/21,2:12 PM M&C Review
Official site of the City of Fart Worth,Texas
CITY COUNCIL AGENDA FoRTWoRTII
DATE: 11/9/2021 REFERENCE M&C 21-0858 LOG NAME: 21PMD 8900
NO.: JACKSBORO
CODE: L TYPE: NOW PUBLIC CONSENT HEARING: NO
SUBJECT: (CD 7) Authorize the Acquisition of a Fee Simple Interest in 29.511 Acres of Land
Situated in the Jacob Wilcox Survey No. 35, Abstract No. 1718 with a Site Address of
8900 Jacksboro Highway, in the City of Fort Worth, Tarrant County, Texas from Real
Property Owned by XTO Energy Inc. in the Amount of$3,100,000.00, Adopt the Attached
Appropriation Ordinance, Authorize Up to $20,000.00 for Pre-Acquisition Costs, Pay
Estimated Closing Costs in an Amount Up to $30,000.00, Dedicate the Property as
Parkland as an Addition to the Fort Worth Nature Center & Refuge, and Amend the Fiscal
Year 2022-2026 Capital Improvement Program
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the acquisition of a fee simple interest in 29.511 acres of land situated in the Jacob
Wilcox Survey No. 35, Abstract No. 1718 with a site address of 8900 Jacksboro Highway, in the
City of Fort Worth, Tarrant County, Texas from real property owned by XTO Energy Inc. for
the Fort Worth Nature Center & Refuge (City Project No. 103726) in the amount of
$3,100,000.00;
2. Adopt the attached appropriation ordinance adjusting estimated receipts and appropriations in
the General Gas Lease Capital Projects Fund by increasing estimated receipts and appropriations
in the OSAcq - 8900 Jacksboro Hwy project (City Project No. 103726) in the amount
of $3,150,000.00, and decreasing estimated receipts and appropriations in the Open Space
Appropriations project (City Project No. PA0001) by the same amount, hereby authorizing the
use of Open Space funds to provide land protection and preservation of the habitat, ecosystem,
and recreational opportunities provided by the Fort Worth Nature Center & Refuge;
3. Find that the total purchase price of $3,100,000.00 for the subject property is just
compensation;
4. Authorize payment of estimated closing costs in an amount up to $30,000.00;
5. Authorize the City Manager or his designee to accept the conveyance and record the appropriate
instruments;
6. Accept the property and dedicate the property as parkland upon acceptance as an addition to
the Fort Worth Nature Center & Refuge; and
7. Amend the Fiscal Year 2022-2026 Capital Improvement Program.
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to authorize the acquisition of 29.511
acres of undeveloped land at 8900 Jacksboro Highway for the purpose of providing additional special
use, natural prairie parkland at the Fort Worth Nature Center & Refuge (FWNCR). The property will
be integrated into the FWNCR as endorsed in the Nature Center Master Plan approved by City Council
on June 17, 2003 (M&C G-13998). Land use recommendations in the Master Plan recommend the
acquisition or annexation of property along Jacksboro Highway.
Maintenance will be provided by the Park & Recreation Department (PARD). Funds for annual
maintenance will be budgeted in the PARD annual operating budget, and funding for operations and
maintenance will be allocated to the PARD's base budget beginning in Fiscal Year (FY) 2023. This
acquisition is estimated to increase the department's acreage by 29.511 acres and annual maintenance by
$3,082.00 beginning in FY2022. As of September 30, 2021, the cumulative total of all previously
approved M&Cs increased the department's acreage by an estimated 78.76 acres and estimated annual
maintenance by $456,391.00 beginning in FY2023.
apps.cfwnet.org/council_packet/mc_review.asp?ID=29406&councildate=11/9/2021 1/3
11/12/21,2:12 PM M&C Review
It is estimated that $20,000.00 of Open Space Appropriations project funding is needed for initial site
investigation activities such as appraisal, earnest money, survey, staff time, Environmental Site
Assessment Phase I, and other applicable costs associated with evaluating the property.
An independent appraisal established fair market value for the property and the property owner has
agreed to a negotiated amount of $3,100,000.00 for the fee simple interest in the land. The real estate
taxes will be pro-rated with the seller being responsible for taxes due up to the closing date. The City will
pay total estimated closing costs up to $30,000.00. Funding for this acquisition will come from the Open
Space Conservation Program as the acquisition helps preserve the important habitat, ecosystem
services, and recreational opportunities provided by the FWNCR.
As with all use of funding for Open Space Appropriations acquisition, any unused funding upon actual
project completion will be returned to the Open Space project. Open Space funding was not included in
the FY2022-2026 Capital Improvement Program. Open Space will continue to be appropriated via M&Cs
as funding becomes available and each acquisition or use of funds is identified and requested for
approval by Mayor and Council. The action on this M&C will update the FY2022-2026 Capital
Improvement Program.
Upon City Council approval, Staff will proceed with acquiring the fee simple interest in the property
except for the mineral estate. The deed to the City will contain a surface waiver for the exploration of the
mineral estate.
Property parcel Property Address / Legal Description ROW/Fee Amount
Ownership Simple
XTO 8900 Jacksboro Highway/Jacob Wilcox Survey
Energy Inc. 1 #35, Abstract No. 1718 and Lot 1A & 1B, Block 29.511 Acres $3,100,000.00
1, Fox Addition Fort Worth
Pre-
Acquisition $20,000.00
Costs
[Total I _
Estimated
Closing $30,000.00
Costs
[Total �r
Acquisition $3,150,000.00
Cost
This property is located in COUNCIL DISTRICT 7.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are currently available in the Open Space Appropriations
project within the General Gas Lease Capital Prj Fund and upon approval of the above recommendations
and adoption of the attached appropriation ordinance, funds will be available in the General Gas
Lease Capital Prj Fund for the OSAcq - 8900 Jacksboro Hwy project. Prior to an expenditure being
incurred, the Property Management Department and the Transportation & Public Works Department have
the responsibility of verifying the availability of funds.
apps.cfwnet.org/counciI_packet/mc_review.asp?ID=29406&councildate=11/9/2021 2/3
11/12/21,2:12 PM M&C Review
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 PMD 8900 JACKSBORO 33005 A022(r2).docx
M&C 21 8900 Jacksboro.p±
apps.cfwnet.org/counciI_packet/mc_review.asp?ID=29406&councildate=11/9/2021 3/3