HomeMy WebLinkAboutContract 42030 CITY SECRETARY �7
CONTRACT NO,
CONTRACT OF SALE AND PURCHASE
THIS CONTRACT OF SALE AND PURCHASE ("Contract") is made and entered
into by and between the CITY OF FORT WORTH, TEXAS, a home rule Municipal
Corporation of the State of Texas, acting by and through its duly authorized City Manager
or Assistant City Manager ("Purchaser") and C-8575BMR, LLC, and M-857513MR, LLC,
("Seller"), as of the date on which this Contract is executed by the last to sign of Seller and
Purchaser ("Effective Date").
RECITALS
1. Seller is the owner of a tract of land out of the Henry Robertson Survey, Abstract
No. 1798, the George Matthews Survey, Abstract No. 1078, the Josiah Walker
Survey, Abstract No. 1600, and the James P. Alford Survey, Abstract No. 53, Tarrant
County, Texas, and being the portions of those certain tracts of land described in
deed to C-8575BMR, LLC and M-857513MR, LLC, as recorded in Volume 14821,
Page 16, Deed Records, Tarrant County, Texas, lying east of the railroad tracks and
containing approximately 245.77 acres, together with any easements, rights-of-way,
licenses, interests, and rights appurtenant thereto (collectively, the "Property"). The
Property will be more specifically described in the Title Commitment (defined
below).
2. Purchaser is a municipal corporation with power of eminent domain that desires to
acquire the Property for public use.
3. In lieu of contesting a proceeding for acquisition of the Property by eminent domain,
Seller desires to sell the Property for fair market value for public use, which will benefit
the citizens of the City of Fort Worth in general.
4. Under Section 21.023 of the Texas Property Code, Seller, Seller's heirs, successors, or
assigns are entitled to repurchase the Property the City seeks to acquire if the public use
for which the Property is acquired is cancelled before the tenth (10th) anniversary of the
date of the acquisition. The repurchase price for the repurchase will be the fair market
value of the Property at the time the public use was cancelled.
AGREEMENT
In consideration of the mutual covenants in this Cor thIff WkE RLdoloft iser agree as
follows:
CITY SECRETARY
Section 1. Sale and Purchase. IMP. WORTH, TX
(a) Seller agrees to sell and convey the Property to Purchaser, and Purchaser agrees to
purchase and accept the Property from Seller, for the purchase price (as defined below), subject
to the terms and conditions set forth in this Contract.
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(b) Seller shall convey the Property to Purchaser free and clear of all liens, claims,
easements, rights-of-way, reservations, restrictions, encroachments, tenancies, and any other
encumbrances (collectively, the "Encumbrances") except the Encumbrances appearing in the
Title Commitment and the Updated Survey (as defined below) that are not cured and that are
subsequently waived pursuant to Section 3 ("Permitted Encumbrances").
(c) Seller shall convey all rights of title and interest in any water and water rights in
the Property. Seller shall retain all (1)oil, gas, hydrocarbon, and mineral interests in the
Property except that Seller shall waive any and all rights of egress and ingress upon or across the
surface of the Property for purposes of exploring for or developing oil, gas hydrocarbons, or
other minerals and (2) lessor's interests under oil and gas leases.
(d) Seller shall have twenty days following Closing (as hereinafter defined) to
remove from the Property all tangible personal property, including but not limited to tractors,
trailers, outboard motor, Polaris ATV and household contents. After the twenty days have
elapsed, Seller shall provide a Bill of Sale to Purchaser listing any and all items that remain on
the Property. The provisions of this Section 1(d)will survive Closing.
(e) The parties agree that, except as otherwise set forth in this Contract, Seller is
selling and Purchaser is buying the Property AS IS, AND WITH ALL FAULTS.
PURCHASER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN THIS CONTRACT AND SELLER'S
WARRANTIES OF TITLE TO BE CONTAINED IN THE DEED TO BE DELIVERED
AT CLOSING, SELLER HAS NOT MADE AND IS NOT MAKING, AND SELLER
SPECIFICALLY DISCLAIMS, ANY WARRANTIES OR REPRESENTATIONS WITH
RESPECT TO THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE
PROPERTY. PURCHASER WILL MAKE SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF. The provisions of this Section 1(e)will survive the Closing.
Section 2. Independent Contract Consideration and Purchase Price.
(a) Contemporaneously with the execution of this Contract, Purchaser delivers to
Seller a check in the amount of One Hundred and 00/100 Dollars ($100.00) ("Independent
Contract Consideration") as independent consideration for Seller's execution, delivery and
performance of this Contract. This Independent Contract Consideration is in addition to and
independent of any other consideration or payment provided for in this Contract, is non-
refundable, and shall be retained by Seller notwithstanding any other provision of this Contract;
however, upon Closing, the Independent Contract Consideration shall be applied as a credit
toward the Purchase Price(as hereinafter defined).
(b) The purchase price ("Purchase Price") for the Property, payable by Purchaser to
Seller at Closing (as defined below), is SEVEN MILLION and 00/100 DOLLARS
($7,000,000.00). Seller has determined that the Purchase Price reflects the current fair market
value of the Property.
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Section 3. Title Commitment and Survev.
(a) Purchaser shall obtain at Purchaser's sole cost and expense (i) a Commitment for
Title Insurance("Title Commitment")from Alamo Title Company,Attn: Lavonne S. Keith,3500
Hulen Street, Fort Worth, TX 76107 ("Title Company") ("Title Company"), setting forth the
status of the title of the Property and showing all Encumbrances and other matters, if any,
relating to the Property; and (ii) a legible copy of all documents referred to in the Title
Commitment, including but not limited to,plats, reservations, restrictions, and easements.
(b) Purchaser has obtained a survey of the Property, and is now obtaining an updated
survey ("Updated Survey") at Purchaser's sole cost and expense. The Updated Survey shall
identify the location of all rights-of-way, easements, or other Encumbrances, including all such
items as shown on the June 30, 2011 Title Commitment from the Title Company.
(c) If the Title Commitment or Updated Survey discloses any Encumbrances or other
matters, which are not acceptable to Purchaser in Purchaser's sole discretion,then Purchaser shall
give Seller written notice thereof within one business day after receipt of the Title Commitment,
Updated Survey and all documents referred to in the Title Commitment, specifying Purchaser's
objections ("Objections"), if any. If Purchaser gives such notice to Seller, Seller may attempt to
cure the Objections,but shall be under no obligation to do so.
(d) If Purchaser gives notice of Objections and Seller does not agree to cure the
Objections, Purchaser shall have the right either (i) to terminate this Contract by giving written
notice thereof to Seller at any time prior to the expiration of the Option Period (as defined below
in Section 6) and, upon such termination, neither party hereto shall have any further rights or
obligations, or(ii)to waive the Objections and consummate the purchase of the Property subject
to the Objections which shall be deemed to be Permitted Encumbrances. Notwithstanding the
foregoing sentence, if Seller has commenced curing the Objections and is diligently prosecuting
the same, as determined by Purchaser in Purchaser's sole discretion, then Purchaser in
Purchaser's sole discretion may extend the Closing for an amount of time Purchaser deems
necessary for Seller to cure the same.
Section 4. Review Reports. [Intentional]y deleted.]
Section 5. Tests. In conducting the Tests, Purchaser shall require in its contracts with any
contractor the following covenants:
(i) Damage Claims. During the course of any activity under this Contract Purchaser
shall require any of Purchaser's contractors (including subcontractors of any tier) to indemnify
and hold harmless Seller against claims or suits (including reasonable attorneys fees and costs of
defense) for damage, liability or loss including property loss, property damage, personal injury
and wrongful death (including but not limited to the injury or death of Seller's officers, agents,
servants and employees) arising out of or related to said contractor's or their subcontractor's
activity on the Property to the extent caused by said contractor's or subcontractor's negligent acts,
errors, omissions and/or wrongful conduct.
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(ii) Performance of work. Purchaser shall require any of Purchaser's contractors
(including subcontractors of any tier) to perform all work done in connection with Tests as
expeditiously as possible so as not to interfere unreasonably with the use and occupancy of
Seller's property by Seller, its agents, contractors and subcontractors, employees, invitees,
licensees, and representatives. In addition, Purchaser shall cause all work to be cleaned up as is
reasonably prompt in order to minimize disruption or Seller's inconvenience in the use of its
property.
(iii) Restoration of Grantor's property. After any disturbance of the surface of the
Seller's property caused by conducting the Tests, Purchaser shall require any of Purchaser's
contractors (including subcontractors of any tier) to restore the surface to the same or similar
condition as existed before any such disturbance.
Section 6. Option Period.
(a) Notwithstanding anything to the contrary contained in this Contract, until July 19,
2011 ("Option Period"), the following is a condition precedent to Purchaser's obligations under
this Contract:
Purchaser being satisfied in Purchaser's sole and absolute discretion that the
Property is suitable for Purchaser's intended uses, including, without limitation,
Purchaser being satisfied with the results of the Tests (defined in Section 5
above).
(b) If Purchaser is not satisfied in Purchaser's sole and absolute discretion as to the
condition precedent described in Section 6 (a) above, Purchaser may give written notice thereof
to Seller on or before the end of the Option Period, whereupon this Contract shall terminate.
Upon such termination, neither party shall have any further rights or obligations under this
Contract.
(c) If Purchaser gives notice of Contract termination to Seller under this Section, any
earnest money shall be returned to Purchaser.
(d) The provisions of this Section 6 control all other provisions of this Contract.
(e) The parties agree that the Option Period will not be extended upon expiration
without a written amendment signed by both parties.
Section 7. Closing Contingencies,. The closing ("Closing") of the sale of the Property by
Seller to Purchaser shall occur through the office of the Title Company no later than July 22,
2011.
Section 8. Closing
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(a) At the Closing, all of the following shall occur, all of which are deemed
concurrent conditions:
(1) Seller, at Seller's sole cost and expense, shall deliver or cause to be
delivered to Purchaser the following:
(i) A Special Warranty Deed ("Deed"), fully executed and
acknowledged by Seller, conveying to Purchaser good and indefeasible fee simple title to the
Property subject only to the Permitted Encumbrances, with the precise form of the Deed to be
determined pursuant to Section 10 below;
(ii) Any other instrument or document necessary for Title Company to
issue the Owner Policy in accordance with Section 8(a)(3)below.
(2) Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to
be delivered to Seller through the Title Company federally wired funds or a certified or cashier's
check or such other means of funding acceptable to Seller, in an amount equal to the Purchase
Price,adjusted for closing costs and prorations.
(3) Title Company shall issue to Purchaser, at Purchaser's sole cost and
expense, an Owner Policy of Title Insurance ("Owner Policy") issued by Title Company in the
amount of the Purchase Price insuring that, after the completion of the Closing, Purchaser is the
owner of indefeasible fee simple title to the Property, subject only to the Permitted
Encumbrances, and the standard printed exceptions included in a Texas Standard Form Owner
Policy of Title insurance; provided, however, the printed form survey exception shall be limited
to "shortages in area," the printed form exception for restrictive covenants shall be deleted except
for those restrictive covenants that are Permitted Encumbrances, there shall be no exception for
rights of parties in possession, and the standard exception for taxes shall read: "Standby Fees
and Taxes for the year of Closing and subsequent years, and subsequent assessments for prior
years due to change in land usage or ownership";
(4) Seller and Purchaser shall each pay their respective attorneys'fees.
(S) Purchaser shall pay all recording fees and any other closing costs as set
forth by the Title Company.
(b) Purchaser will qualify for exemption from ad valorem taxation for the Property,
and no ad valorem taxation shall accrue after the date of Closing. Therefore, any ad valorem
taxes assessed against the property for 2011 shall be for the period of time the Property was
owned by Seller, and based on estimates of the amount of taxes that will be due and payable on
the Property during 2011, Seller shall pay for any taxes and assessments applicable to the
Property up to and including the date of Closing. As soon as the amount of taxes and
assessments on the Property for 2011 is known, Seller shall pay any additional amount of taxes
to be paid for any taxes and assessments applicable to the Property up to and including the date
of Closing,and Purchaser shall pay taxes and assessments,if any, applicable to the Property after
Closing. The provisions of this Section 8(b)survive the Closing.
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(c) Upon completion of the Closing, Seller shall deliver possession of the Property to
Purchaser, free and clear of all tenancies of every kind, excluding oil and gas leases of record.
Section 9. Agents. Seller and Purchaser each represent and warrant to the other that it has
not engaged the services of any agent, broker, or other similar party in connection with this
transaction.
Section 10. Closing Documents. No later than two days prior to the Closing, Seller shall
deliver to Purchaser a copy of the Special Warranty Deed, which is subject to Purchaser's
reasonable right of approval. The deed shall provide that, by accepting the deed, Purchaser
covenants that the lake located within the Property shall continue to be known as Loughridge
Lake.
Section 11. Notices.
(a) Any notice under this Contract shall be in writing and shall be deemed to have
been served if(i) delivered in person to the address set forth below for the party to whom the
notice is given, (ii) delivered in person at the Closing(if that party is present at the Closing), (iii)
placed in the United States mail, return receipt requested, addressed to such party at the address
specified below, (iv) deposited into the custody of Federal Express Corporation to be sent by
FedEx Overnight Delivery or other reputable overnight carrier for next day delivery, addressed
to the party at the address specified below, or (v) telecopied to the party at the telecopy number
listed below, provided that the transmission is confirmed by telephone on the date of the
transmission.
(b) The address of Buyer under this Contract is:
CITY OF FORT WORTH WITH A COPY TO:
1000 Throckmorton Street Leann D. Guzman
Fort Worth,Texas 76102 City Attorney's Office
Attention: Susan Alanis City of Fort Worth
Assistant City Manager 1000 Throckmorton
Telephone: 817-392-8180 Fort Worth,Texas 76102
Fax(817) 392-6134 Telephone: (817) 392-7600
Fax (817) 392-8359
(c) The address of Seller under this Contract is:
C-8575BMR,LLC and M-8575BMR,LLC
C/O Chris Loughridge
3565 Riviera Drive
San Diego, CA 92109
Telephone: (858)272-4400
Fax: (858)272-4600
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(d) From time to time either party may designate another address or telecopy number
under this Contract by giving the other party advance written notice of the change.
Section 12. Termination,Default,and Remedies.
(a) If Purchaser fails or refuses to consummate the purchase of the Property pursuant
to this Contract at the Closing for any reason other than termination of this Contract by Purchaser
pursuant to a right so to terminate expressly set forth in this Contract or Seller's failure to
perform Seller's obligations under this Contract, then Seller, as Seller's sole and exclusive
remedy, shall have the right to terminate this Contract by giving written notice thereof to
Purchaser prior to or at the Closing, whereupon neither party hereto shall have any further rights
or obligations hereunder.
(b) If Seller fails or refuses to consummate the sale of the Property pursuant to this
Contract at Closing or fails to perform any of Seller's other obligations hereunder either prior to
or at the Closing for any reason other than the termination of this Contract by Seller pursuant to a
right so to terminate expressly set forth in this Contract or Purchaser's failure to perform
Purchaser's obligations under this Contract, then Purchaser shall have the right to terminate this
Contract by giving written notice thereof to Seller prior to or at the Closing and neither party
hereto shall have any further rights or obligations hereunder.
Section 13. Entire Contract. This Contract (including the attached Exhibits) contains the
entire contract between Seller and Purchaser, and no oral statements or prior written matter not
specifically incorporated herein is of any force and effect. No modifications are binding on
either party unless set forth in a document executed by that party.
Section 14. Assigns. This Contract inures to the benefit of and is binding on the parties and
their respective legal representatives, successors, and assigns. Neither party may assign its
interest under this Contract without the prior written consent of the other party.
Section 15. Taking Prior to Closing. If, prior to Closing,the Property or any portion thereof
becomes subject to a taking by virtue of eminent domain, Purchaser may, in Purchaser's sole
discretion, either (i) terminate this Contract and neither party shall have any further rights or
obligations hereunder, or (ii) proceed with the Closing of the transaction with an adjustment in
the Purchase Price to reflect the net square footage of the Property after the taking.
Section 16. Governing Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 17. Performance of Contract. The obligations under the terms of the Contract are
performable in Tarrant County, Texas, and any and all payments under the terms of the Contract
are to be made in Tarrant County, Texas.
Section 18. Venue. Venue of any action brought under this Contract shall be in Tarrant
County, Texas if venue is legally proper in that County.
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Section 19. Severability. If any provision of this Contract is held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any
other provision, and this Contract will be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein.
Section 20. Business Days. If the Closing or the day for performance of any act required
under this Contract falls on a Saturday, Sunday, or legal holiday, then the Closing or the day for
such performance, as the case may be,shall be the next following regular business day.
Section 21. Counterparts. This Contract may be executed in multiple counterparts, each of
which will be deemed an original, but which together will constitute one instrument.
This Contract is EXECUTED as of the Effective Date.
SELLER: BUYER:
C-8575BMR, LLC, and CITY OF FORT WORTH,TEXAS
M-8575BMR, LLC
Susan Alanis,Assistant City Manager
Christopher V,.Loughridge, M ger
ATTEST:
Date: Ju 1'12011 ,
$ e S F
Marty Hen ,City Secretary,
Date: June %L/, 2011 r`
APPROVED AS TO LEGALITY ANTS 6jM--
ssistant City Attorn
By its execution below, Title Company agrees to perform its other duties pursuant to the
provisions of this Contract.
TITLE COMPANY: --
OC:AL RECORD
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LoughridgelTexas Property SaleTurchase Contract V2 8
Date:
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