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HomeMy WebLinkAboutContract 30864 CITY SECRETARY/�(f� CONTRACT NO. Southwest Parkway Parcel No. 104 CONTRACT OF SALE THE STATE OF TEXAS § COUNTY OF TARRANT § This Contract of Sale is made by and between Hubend 54, Ltd., a Texas limited partnership (hereinafter referred to as "Seller"), and the City of Fort Worth, Texas, a municipal corporation(hereinafter referred to as "Purchaser"),upon the terms and conditions set forth herein. WHEREAS,pursuant to that certain letter dated September 1,2004 from Purchaser to Seller,Purchaser intends to seize the Property(hereinafter defined)under eminent domain if Seller does not sell the Property to Purchaser at the price set forth in said letter; and WHEREAS, Seller has agreed to sell the Property in lieu of eminent domain proceedings pursuant to the terms hereof. NOW, THEREFORE, in consideration of the foregoing premises and the respective undertakings of the parties hereinafter set forth, the receipt and sufficiency of which consideration are hereby acknowledged, it is hereby agreed as follows: 1. Purchase and Sale. Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for, the tract of land containing approximately 4.637 acres (hereinafter referred to as the "Property") situated in Tarrant County, Texas, together with any improvements and fixtures situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth. The Property is a portion of two tracts deeded to Seller by deed recorded at Volume 117464,Page 1130,Real Property Records of Tarrant County,Texas. The Property is more particularly described in Exhibit "A" attached hereto and made part hereof. 2. Consideration. Seller agrees to accept and Purchaser agrees to pay as consideration for the sale of the Property a portion of the total sales price of three million eight hundred thousand and no/100 dollars ($3,800,000.00) to be paid for the Pro f ana----�_, Page 1 of 16 ti the tract of land described in the Contract of Sale between Purchaser and VLMC Joint Venture dated the same date and to be closed at the same time as this transaction (the "Purchase Price") in cash, and shall be payable by Purchaser to Seller at Closing by wire transfer to the Title Company for immediate disbursement at Closing, subject to the prorations, credits, and other adjustments provided for in this Contract. 3. Title. Seller represents and warrants to Purchaser that at the Closing Seller will have and will convey to Purchaser good title to the Property free and clear of any and all encumbrances except such exceptions which Purchaser waives in accordance with this Contract. 4. Closing. The Closing shall be held at the office of Alamo Title Company (Attention: Lori Walker)("the Title Company"and"Escrow Agent"), 3500 Hulen Street,Fort Worth, Texas, 76107, (817) 731-8715, on or before November 5, 2004 ("Closing Date" or "Closing"), unless the time for Closing is changed pursuant to agreement of Seller and Purchaser. (a) At the Closing Seller shall deliver to Purchaser a duly executed and acknowledged Special Warranty Deed conveying good title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: General real estate taxes for the year of Closing; Any exceptions approved by Purchaser in writing; All easements of record; All oil, gas, and other minerals on, in and under the Property,but Seller shall not have the right to produce,drill for or mine such minerals on or from the surface of the Property; (b) Seller, at Closing, shall also deliver to Purchaser the following: (1) State Law Disclosures. Such disclosures and reports,required by applicable state and local law in connection with the conveyance of real property. Page 2 of 16 (2) FIRPTA. A Foreign Investment in Real Property Tax Act affidavit executed by Seller. If Seller fails to provide the necessary affidavit and/or documentation of exemption on the Closing Date, Purchaser may proceed with withholding provisions as provided by law. (3) Authori . Evidence of existence,organization,and authority of Seller and the authority of the person executing documents on behalf of Seller reasonably satisfactory to Purchaser and the Title Company. (4) Additional Documents. Any additional documents that Purchaser or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Contract. (c) At the Closing Purchaser will pay in cash the total consideration, less only Seller's share of the prorated taxes as of the date of Closing, as provided in(d) below. (d) All taxes, general and special and all assessments, including state, county, school, municipal, and all other taxes whatsoever (exclusive of rebates, penalties or interest)in connection with the Property will be prorated at Closing with an effective proration date being as of the date of Closing. Taxes for previous years will be paid by Seller. (e) Purchaser shall pay all costs which are normally assessed against a seller and purchaser in a transaction of this character in Tarrant County,Texas. Seller shall be responsible for paying its attorney's fees and appraisal costs,and for the costs of all premiums for any policies of title insurance covering the Property. (f) Conditions to the Parties' Obligations to Close. In addition to all other conditions set forth herein, the obligation of Seller, on the one hand, and Purchaser, on the other hand, to consummate the transactions contemplated hereunder shall be contingent upon the following: (1) The other party's representations and warranties contained herein shall be true and correct as of the date of this Contract and the Closing Date. For purposes of this clause (1), if a representation is made to knowled �— Page 3 of 16 the factual matter that is the subject of the representation is false notwithstanding any lack of knowledge or notice to the party making the representation, such event shall constitute a failure of this condition only, and not a default by Seller; (2) As of the Closing Date,the other party shall have performed its obligations hereunder and all deliveries to be made at Closing have been tendered; (3) There shall exist no actions, suits, arbitrations, claims, attachments,proceedings,assignments for the benefit of creditors,insolvency, bankruptcy,reorganization or other proceedings,pending or threatened against the other party or the Property that would materially and adversely affect the operation or value of the Property or the other party's ability to perform its obligations under this Contract; and (4) There shall exist no pending or threatened action, suit or proceeding with respect to the other party before or by any court or administrative agency which seeks to restrain or prohibit,or to obtain damages or a discovery order with respect to,this Contract or the consummation of the transactions contemplated hereby. 5. Seller's Obligations. Other than the obligations of Seller expressly assumed by Purchaser, and in addition to its other obligations as described elsewhere in this Contract, Seller, subject to the terms and conditions of this Contract, covenants that it shall pay and discharge any and all liabilities of each and every kind arising out of or by virtue of the conduct of its business before and as of the Closing Date on or related to the Property. 6. Survey. Contemporaneously with the delivery of this Contract,Purchaser shall deliver a survey of the Property to Seller("the Survey") prepared by a surveyor selected by Purchaser. The Survey shall contain a legal description of the boundaries of the Property. Purchaser is responsible for all costs of the Survey. 7. Title Commitment. Within three(3) days after the Effective Date, Purchaser will at its expense obtain from the Title Company a commitment for owner's policy of title Page 4of16 insurance covering the Property(the "Title Commitment")dated no earlier than the Effective Date, issued by the Title Company, containing a legal metes and bounds description of the Property, specifying Purchaser as the prospective named insured,showing the Purchase Price as the amount to be insured, and showing the status of the title to the Property and all exceptions (including, but not limited to, easements, restrictions, right-of-way, covenants, reservations, encumbrances, liens, and other conditions, if any, affecting the Property)that would appear in a Texas standard form owner policy of title insurance, if issued. Concurrently with its delivery of the Title Commitment,the Title Company shall also deliver to Purchaser at Purchaser's cost and expense, legible copies of all items and documents referred to in Schedules B and C of the Title Commitment, together with copies of current tax certificates covering all real property taxes and assessments affecting the Property. 8. Objections to Title Commitment and Survey. Within five (5) days of the Effective Date, Purchaser will notify Seller in writing of any objections by Purchaser to matters contained in the Title Commitment or the Survey. If Purchaser does not give Seller written notice of Purchaser's objections before the end of this period, Purchaser shall be deemed to have accepted all matters contained in the Title Commitment and the Survey, all such matters shall thereupon be Permitted Exceptions. If Purchaser gives Seller written notice of Purchaser's objections before the end of this period, Seller shall have five(5) days from receipt of such written notice (the "Cure Period") within which to cure Purchaser's objections to Purchaser's reasonable satisfaction. Seller will use commercially reasonable efforts to attempt to cure Purchaser's objections before the Cure Period ends. If Seller does not cure Purchaser's objections to Purchaser's reasonable satisfaction before the Cure Period ends, Purchaser shall, on or before the Closing Date, either (i) waive such objections and accept title to the Property subject to such uncured objections (which shall thereupon be included as Permitted Exceptions, or(ii)terminate this Contract by written notice to Seller, whereupon this Contract shall automatically terminate and be null and void,and neither party shall have any further obligation to the other. 9. Performance Under Contracts. During the pendency of this Contract, Seller will perform its obligations under agreements that affect the Property. L Page 5 of 16 j 10. Seller's Representations and Warranties. As a material inducement to Purchaser to execute this Contract and consummate this transaction, Seller represents and warrants to Purchaser that: (a) Authority. Seller is the sole owner of the Property. Seller has been duly organized and is validly existing as a limited partnership in the State of Texas. Seller has the full right and authority and has obtained any and all consents required therefor to enter into this Contract, consummate or cause to be consummated the sale and make or cause to be made transfers and assignments contemplated herein. The persons signing this Contract on behalf of Seller are authorized to do so. This Contract has been, and the documents to be executed by Seller pursuant to this Contract will be, authorized and properly executed and does and will constitute the valid and binding obligations of Seller,enforceable against Seller in accordance with their terms. (b) Conflicts and Pending Actions or Proceedings. There is no agreement to which Seller is a party or. to Seller's knowledge, binding on Seller which is in conflict with this Contract. There is no action or proceeding pending or, to Seller's knowledge,threatened against or relating to the Property,«thich challenges or impairs Seller's ability to execute or perform its obligations under this Contract. (c) Condemnation and Property Rights. To Seller's knowledge, no condemnation, eminent domain or similar proceedings are pending or threatened with regard to the Property other than by Purchaser. Seller has received no payment from any party for any easements or any other rights to use the Property. (d) DISCLAIMERS AND RELEASES. (i) PURCHASER ACKNOWLEDGES AND AGREES THAT IT IS EXPERIENCED IN ACQUIRING, OWNING, DEVELOPING, MARKETING, LEASING, OPERATING, MANAGING AND SELLING OF PROPERTIES SIMILAR TO THE PROPERTY, AND THAT PURCHASER SHALL HAVE, DURING THE DUE DILIGENCE PERIOD, THOROUGHLY INSPECTED, TESTED, STUDIED,REVIEWED AND INVESTIGATED ALL ASPECTS10 T1 --------� Page 6 of 16 J ' PROPERTY TO ITS FULL SATISFACTION, AND THAT PURCHASER IS RELYING SOLELY THEREON IN MAKING ITS DECISION TO ACQUIRE THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS CONTRACT, SELLER IS NOT MAKING, AND HEREBY SPECIFICALLY DISCLAIMS MAKING ANY WARRANTY, GUARANTY OR REPRESENTATION, OF ANY KIND OR CHARACTER, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING BY OPERATION OF LAW, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, (I) THE PHYSICAL AND ENVIRONMENTAL NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY,AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON,AND THE EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS THEREON (INCLUDING THE PRESENCE OF ASBESTOS OR OTHER HAZARDOUS SUBSTANCES) OR THE COMPLIANCE OF THE PROPERTY WITH ANY AND ALL APPLICABLE ENVIRONMENTAL LAWS (AS HEREINAFTER DEFINED), RULES OR REGULATIONS; (II) EXCEPT FOR ANY WARRANTIES CONTAINED IN THE DOCUMENTS TO BE DELIVERED BY SELLER AT CLOSING, THE NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER AFFECTING TITLE; (III) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, STATUTES, ORDINANCES, RULES, REQUIREMENTS OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY; (IV) THE ECONOMIC VIABILITY OR MARKETABILITY OF THE PROPERTY;(V)TAX MATTERS PERTAINING TO THE TRANSACTION CONTEMPLATED HEREBY;(VI)THE ACCURACY OR COMPLETENESS OF ANY REPORTS OR Page 7 of 16 OTHER INFORMATION FURNISHED BY SELLER TO PURCHASER WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ENGINEERING, ENVIRONMENTAL OR OTHER REPORTS, STUDIES OR INVESTIGATIONS, IF ANY; (VII) ZONING; (VIII) VALUATION; (IX) HABITABILITY; (X) MERCHANTABILITY; OR (XI) SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER,PURCHASER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PURCHASE OF THE PROPERTY,AS PROVIDED FOR HEREIN, IS BEING MADE ON AN"AS IS" BASIS, "WITH ALL FAULTS," AND UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, WITHOUT LIMITATION, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,MAY EXIST WITH RESPECT TO THE PROPERTY AND WITH FULL KNOWLEDGE AND ACCEPTANCE BY PURCHASER OF ALL INFORMATION AND MATTERS DISCLOSED IN ANY AND ALL REPORTS, STUDIES, ASSESSMENTS, INVESTIGATIONS, PROPOSALS AND DOCUMENTS FURNISHED TO, OR OBTAINED BY, PURCHASER WITH RESPECT TO THE PROPERTY. FURTHER,PURCHASER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE TRANSACTION CONTEMPLATED HEREBY WHICH HAVE BEEN MADE BY SELLER OR ANY THIRD PARTY. (ii) ANY FACTUAL INFORMATION SUCH AS PROPERTY TAXES, UTILITY INFORMATION,PROPERTY DIMENSIONS, SQUARE FOOTAGE,OR SKETCHES SHOWN TO PURCHASER OR SET FORTH HEREIN ARE OR MAY BE APPROXIMATE. PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS INSPECTED AND VERIFIED THE FACTS AND INFORMATION TO PURCHASER'S SATISFACTION. NO LIABILITY FOR ANY INACCURACIES, ERRORS OR OMISSIONS SHALL BE ASSUMED BY SELLER OR OTHER AGENTS OR REPRESENTATIVES OF SELLER. Page 8 of 16 PURCHASER UNDERSTANDS AND ACKNOWLEDGES THAT SALES BROCHURES AND OTHER DOCUMENTS, IF ANY, DELIVERED TO PURCHASER PRIOR TO THE EXECUTION OF THIS CONTRACT MAY HAVE BEEN PREPARED BY PARTIES OTHER THAN SELLER AND THAT SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER,EXPRESS OR IMPLIED, AS TO THE COMPLETENESS, CONTENT OR ACCURACY OF THE SAID SALES BROCHURES AND OTHER DOCUMENTS. PURCHASER SPECIFICALLY RELEASES SELLER AND SELLER'S BROKERS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, AND AFFILIATES, FROM ALL CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING,WITHOUT LIMITATION,ATTORNEYS'FEES,WHETHER SUIT IS INSTITUTED OR NOT, AND ENVIRONMENTAL CONSULTANTS' FEES) WHETHER KNOWN OR UNKNOWN, LIQUIDATED OR CONTINGENT (COLLECTIVELY "CLAIMS") ASSERTED AGAINST OR INCURRED BY PURCHASER BY REASON OF THE INFORMATION CONTAINED IN, OR THAT SHOULD HAVE BEEN CONTAINED IN, THE SAID SALES BROCHURES AND OTHER DOCUMENTS. (iii) IN THE EVENT THAT FROM AND AFTER CLOSING ANY INVESTIGATION, REMOVAL, ABATEMENT, REMEDIATION, OR OTHER CORRECTIVE ACTION IS AT ANY TIME REQUIRED IN CONNECTION WITH THE PROPERTY OR ANY ADJACENT OR NEARBY PROPERTY AS A RESULT OF THE PRESENCE OF ANY ENVIRONMENTAL PROBLEMS, HAZARDOUS SUBSTANCES, HAZARDOUS MATERIALS, OR ENVIRONMENTAL CONTAMINATION AT OR ON THE PROPERTY OR ANY ADJACENT OR NEARBY PROPERTY,INCLUDING,WITHOUT LIMITATION, ASBESTOS AND PETROLEUM PRODUCTS AND BYPRODUCTS AND ANY CONSTITUENTS THEREOF, REGARDLESS OF WHEN SAME OCCURRED, PURCHASER ACKNOWLEDGES AND AGREES THAT THE SELLEi6 _ Page 9 of 16 - fJ ^lU DUTY OR OBLIGATION TO PERFORM FOR PURCHASER OR CAUSE TO BE PERFORMED FOR PURCHASER ANY SUCH INVESTIGATION, REMOVAL, REMEDIATION, OR CORRECTIVE ACTION. THE PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT,EFFECTIVE UPON CLOSING, THE PURCHASER,FOR ITSELF,AND ITS SUCCESSORS AND ASSIGNS,HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, RELEASES, AND DISCHARGES SELLER FROM ANY AND ALL CLAIMS OR RIGHTS OF CONTRIBUTION(INCLUDING ANY RIGHT TO CONTRIBUTION UNDER 42 U.S.C. §9613(F)) WHICH THE PURCHASER OR ITS SUCCESSORS, LEGAL REPRESENTATIVES OR ASSIGNS NOW HAS OR MAY HAVE AGAINST SELLER, ITS PARTNERS, PRINCIPALS, AFFILIATES, AGENTS OR ANY OF ITS EMPLOYEES OR AGENTS BY REASON OF THE PRESENCE OF ANY HAZARDOUS SUBSTANCE (INCLUDING, BUT NOT LIMITED TO, ASBESTOS AND PETROLEUM PRODUCTS AND BYPRODUCTS AND THE CONSTITUENTS THEREOF)OR ANY OTHER ADVERSE ENVIRONMENTAL CONDITION, DEFECT, OR PROBLEM WITH RESPECT TO THE PROPERTY. (iv) WITHOUT LIMITING THE PROVISIONS OF THE FOREGOING PROVISIONS, EFFECTIVE UPON CLOSING, PURCHASER HEREBY UNCONDITIONALLY, IRREVOCABLY AND FOREVER RELEASES AND DISCHARGES SELLER FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,REASONABLE ATTORNEYS'FEES)ARISING FROM OR RELATED TO THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY. THE RELEASE SET FORTH IN THIS SECTION SPECIFICALLY INCLUDES ANY CLAIMS UNDER ANY ENVIRONMENTAL LAWS. `ENVIRONMENTAL LAWS" INCLUDES, BUT IS NOT LIMITED TO, THE RESOURCE CONSERVATION AND RECOVERY ACT(42 U.S.C. 6901,ET SEQ.), THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED BY THE Page 10 of 16 SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT(42 U.S.C.9601, ET SEQ.);THE CLEAN AIR ACT(42 U.S.C.4701,ET SEQ.);THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT(42 U.S.C. §1101,ET SEQ.); THE HAZARDOUS MATERIALS TRANSPORTATION ACT OF 1974(49 U.S.C. §1801,ET SEQ.);THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. §1251, ET SEQ.); THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT(7 U.S.C. §137,ET SEQ.);THE SAFE DRINKING WATER ACT (42 U.S.C. §3001, ET SEQ.); AND THE TOXIC SUBSTANCE CONTROL ACT(15 U.S.C. §2601,ET SEQ.),AS ANY OF THE SAME MAY BE AMENDED FROM TIME TO TIME, AND ANY COMPARABLE OR SUCCESSOR PROVISIONS OF FEDERAL, STATE OR LOCAL LAW, AND ANY REGULATIONS, ORDERS, RULES, PROCEDURES, GUIDELINES AND THE LIKE PROMULGATED IN CONNECTION THEREWITH. (v) THE DISCLAIMERS AND RELEASES SET FORTH IN THIS SECTION SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE THEREIN OR INTO ANY DOCUMENTS EXECUTED IN CONNECTION THEREWITH, AND SHALL BE SET FORTH IN THE DEED. (e) Survival of Representations and Warranties. The representations and warranties set forth in Section 10 and Section 11 are made as of the Effective Date of this Contract and are remade as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing,but shall survive the Closing for a period of 2 years. Seller and Purchaser shall have the right to bring an action thereon only if Seller or Purchaser, as the case may be, has given the other party written notice of the circumstances giving rise to the alleged breach within such 2- year period. Each party agrees to defend and indemnify the other against any claim, liability, damage or expense asserted against or suffered by such other party arising out of the breach or inaccuracy of any such representation or warranty. Page 11 of 16 11. Purchaser's Representations and Warranties. As a material inducement to Seller to execute this Contract and consummate this transaction, Purchaser represents and warrants to Seller that: (a) Organization and Authority. Purchaser is validly existing as a Texas municipal corporation. Purchaser has the full right and authority and has obtained any and all consents required therefor to enter into this Contract, consummate or cause to be consummated the sale. This Contract and all of the documents to be delivered by Purchaser at the Closing have been and will be authorized and properly executed and will constitute the valid and binding obligations of Purchaser, enforceable in accordance with their terms. (b) Conflicts and Pending Action. There is no agreement to which Purchaser is a party or to Purchaser's knowledge binding on Purchaser which is in conflict with this Contract. There is no action or proceeding pending or to Purchaser's knowledge, threatened, against Purchaser which challenges or impairs Purchaser's ability to execute or perform its obligations under this Contract. 12. Real Estate Commission. Both parties hereto warrant and represent to the other that no real estate brokers, agents, or finder's fees, commissions or other compensation are due arising in conjunction with the sale of the Property, from the execution of this Contract, and the consummation of the transactions contemplated herein. Each party hereto agrees to indemnify and hold the other party harmless from claims made by any person for any such fees or like compensation claiming to have dealt with the party so indemnifying the other. 13. Remedies. If Seller shall fail to consummate this Contract for any reason, except Purchaser's default,Purchaser,as its sole and exclusive remedy,shall have the right to enforce specific performance of this Contract(but not to cure title or any other defect other than defects Seller has agreed in writing to cure). If Purchaser shall fail to consummate this Contract for any reason except for Seller's default, Seller shall have as its sole remedy the right to bring suit for damages against Purchaser. Seller shall not have the right to enforce specific performance of this Contract. If this Contract is terminated due to the default of a --� party, the defaulting Parhshall pay any fees due to the Title Company. Page 12 of 16 p. 14. Assignment of Contract. This Contract may not be assigned by either party without the prior written consent of the other. 15. Modification of this Contract. This Contract may not be modified or amended except by a subsequent contract in writing signed by the Seller and the Purchaser. The Purchaser and Seller may waive any of the conditions contained herein or any of the obligations of the other party hereunder, but any such waiver will be effective only if in writing and signed by the party waiving such condition or obligation. 16. Bindin Effect. This Contract will be binding upon and inure to the benefit of the parties hereto and their respective heirs,successors,legal representatives and assigns,and any covenants, restrictions, and conditions shall run with the Property and be binding on all parties having any right, title, or interest in the Property in whole or in part, and their heirs, successors, and assigns. 17. During the pendency of this Contract,Seller will not enter into any contract that will be an obligation affecting the Property after the Closing without Purchaser's written consent, and Seller will not list the Property with any broken or otherwise solicit or make or accept any offers to sell the Property, engage in any discussions or negotiations with any third party with respect to the sale or other disposition of the Property, or enter into any contracts or agreements (whether binding or not) regarding any disposition of the Property. 18. Entire Agreement. This Contract constitutes the entire agreement and understanding between the parties and supersedes all prior and contemporaneous agreements and understandings of the parties in connection therewith. No statements, agreements, understandings,representations,warranties or conditions not expressed in this Contract will be binding upon the parties hereto, or will be effective to interpret, change or restrict the provisions of this Contract unless such is in writing signed by both parties hereto and by reference made a part hereof. 19. Governing Law. This Contract will be construed and interpreted in accordance with the laws of the State of Texas. Page 13 of 16 20. Captions. The captions in this Contract are inserted for convenience of reference only and in no way define,describe or limit the scope or intent of this Contract or any provisions hereof. 21. Time Of The Essence. Time is of the essence of the performance of Seller's and Purchaser's obligations hereunder. 22. Gender and Number. Words of any gender used in this Contract will be construed to include any other gender and words in the singular number will be construed to include the plural, and vice versa, as the context may require herein. 23. Independent Contract Consideration. Contemporaneously with the execution of this Contract, Purchaser hereby delivers to Seller and Seller hereby acknowledges the delivery of, a check in the amount of ONE HUNDRED AND NO/100 DOLLARS($100.00) ("Independent Contract Consideration"),which amount the parties bargained for and agreed to as consideration for Seller's grant to Purchaser of the exclusive right to purchase the Property pursuant to the terms hereof and for Seller's execution,delivery and performance of this Contract. This Independent Contract Consideration or payment provided in this Contract, is nonreturnable, and shall be retained by Seller notwithstanding any other provision of this Contract. 24. Notice. (a) Notice to Seller under this Contract shall be given to Timothy H.Fleet, Seller's representative, at 3000 Montgomery Street, Fort Worth, Texas 76107, Facsimile Number (817) 732-2291, and to James W. Schell, Pope, Hardwicke, Christie, Harrell, Schell & Kelly, L.L.P., 901 Fort Worth Club Building, 306 West Seventh Street, Fort Worth, Texas 76102,Facsimile Number(817) 877-4781, and to Leonard A. Stern, ll, Smith, Stern&Friedman,P.C.,6688 North Central Expressway, Suite 550, Dallas, Texas 75206, Facsimile Number (214) 739-0608. (b) Notice to Purchaser under this Contract shall be given to Bryan Beck, P.E., The City of Fort Worth, 1000 Throckmorton Street, Fort Worth, Texas 76102, Facsimile Number 817-871-7854,and to S.G. Johndroe 111,Cantey&Hangs--,.I., Page 14 of 16 Burnett Plaza, Suite 2100, 801 Cherry Street,Unit#2,Fort Worth,Texas 76102-6881, Facsimile Number(817) 877-2807. (c) Effective Notice may be given by facsimile or by express mail or by certified mail through the U.S.Postal Service. Notice is effective upon receipt by the recipient or addressee. 25. Survival. The provisions of this Contract that contemplate performance after the Closing and the obligations of the parties not fully performed at the Closing shall survive the Closing and shall not be deemed to be merged into or waived by the instruments of Closing. 26. No Third Party Beneficiary. This Contract is not intended to give or confer any benefits,rights,privileges, claims, actions or remedies to any person or entity as a third party beneficiary, decree, or otherwise. 27. Involuntary Conversion. Purchaser has determined that acquisition of the Property is necessary for Purchaser's Southwest Parkway Project,and Purchaser has notified Seller that, in the event the parties could not agree on a purchase price for the Property, Purchaser would acquire the Property through Purchaser's right of eminent domain under Texas law. Accordingly, this sale constitutes an involuntary conversion under 26 U.S.C. § 1033. ,,� 28. Effective Date. The Effective Date of this Contract is Novembero ;2004. This instrument has been executed by Seller on this day of November, 2004. _ l Page 15 of 16 �,tf SELLER: Hubend 54, Ltd. By: Windfall Investments, Inc. Its Gener By: �4 Y• Printed Name: r Title: This instrument has been executed by Purchaser on this the Z, day of November, 2004. PURCHASER: THE CITY OF FORT WORTH AS Tf -0/13y: zi Assistant ity Manager Acknowledgement of Contract Received by Title Company ATTESTED BY ALAMO E COM ANY Y Print d � Name: Com-► ��� Contract= Auth rizatiox Title: Date: Date -- C-m f F.1,Hub-dA FINAL.., Page 16 of 16 Parcel No. 104 Date: September 18,2003 Exhibit A, Page 1 of 5 Pages Being a 4.637 acre tract of land situated in the J. B. McDermett Survey, Abstract No. 1063 and the J. F. Heath Survey,Abstract No. 641, City of Fort Worth,Tarrant County,Texas, said 4.637 acre tract of land being a portion of two tracts of land deeded to Hubend 54, Ltd. as recorded in Volume 117464, Page 1 130 of the Deed Records of Tarrant County, Texas, said 4.637 acre tract of land being more particularly described by metes and bounds as follows: COMMENCING at an axle found for the northwest corner of a tract of land deeded to the City of Fort Worth as recorded in Volume 6772, Page 476 of said Deed Records of Tarrant County, Texas, said axle being the southwest corner of a tract of land deeded to VLMC, Inc. as recorded in Volume 11656, Page 1815 of said Deed Records of Tarrant County,Texas;THENCE North 89 degrees 58 minutes 37 seconds East, with the north line of said tract of land deeded to the City of Fort Worth and with the south line of said tract of land deeded to VLMC, Inc., passing at a distance of 34.00 feet a 3/4 inch iron rod found for the northeast corner of said tract of land deeded to the City of Fort Worth and for the northwest comer of a tract of land deeded to the City of Fort Worth as recorded in Volume 6772, Page 521 of said Deed Records of Tarrant County, Texas, in all, a distance of 120.00 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the POINT OF BEGINNING, said 5/8 inch iron rod with cap stamped "GORRONDONA" being the northeast corner of said tract of land deeded to the City of Fort Worth as recorded in Volume 6772, Page 521 of said Deed Records of Tarrant County, Texas, said 5/8 inch iron rod with cap stamped "GORRONDONA" also being in the north line of said tract of land deeded to Hubend 54, Ltd., said 5/8 inch iron rod with cap stamped "GORRONDONA" having grid coordinates of N=6,922,933.84 and E=2,301,925.33; (1) THENCE North 89 degrees 58 minutes 37 seconds East, with the north line of said tract of land deeded to Hubend 54, Ltd. and with the south line of said tract of land deeded to VLMC, Inc., a distance of 154.31 feet to a 1/2 inch iron rod found for the southeast corner of said tract of land deeded to VLMC, Inc. and for the southwest comer of Block 3 of Hulen Bend Estates, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 5613 of the Plat Records of Tarrant County, Texas, said 1/2 inch iron rod being in the proposed east right-of-way line of Southwest Parkway, said 1/2 inch iron rod also being the beginning of a Control of Access Line, said 1/2 inch iron rod being 204.00 feet left of and at right angles to centerline station 755+47.15 of the proposed centerline of Southwest Parkway; (2) THENCE South 89 degrees 59 minutes 01 seconds East, with the north line of said tract of land deeded to Hubend 54, Ltd., with the south line of said Block 3 of Hulen Bend Estates, with the proposed east right-of-way line of Southwest Parkway and with the said Control of Access Line, a distance of 56.02 feet to R.O.W. Marker set for corner, from which a 5/8 inch iron rod found for the southeast corner of said Block 3 of Hulen Bend Estates bears South 89 degrees 59 minutes 01 seconds East, a distance of 240.11 feet, said R.O.W. Marker being 258.71 feet left of and at right angles to centerline station 755+59.19 if the proposed centerline of Southwest Parkway; (3) THENCE South 12 degrees 31 minutes 56 seconds East, with the east line of said tract of land deeded to Hubend 54, Ltd. and with the said Control of Access Line, passing at a distance of 1.29 feet a 1/2 inch iron rod found for the northwest comer of Block 17 of Hulen Bend Estates, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 4668 of said Plat Records of Tarrant County, Texas, in all, a distance of 196.94 feet to a R.O.W. Marker set for corner in the west lime of said Block 17 of Huien Bend Estates, said R.O.W. GORRONDONA R ASSOCIATES,INC. 6707 BRENTWLR)D S"IAIR RD. SUITE 50 FORT WORTH. I LXAS 76112 817496-1424 FAX 817-496.1768 Parcel No. 104 Date: September 18,2003 Exhibit A, Page 2 of 5 Pages Marker being 259.19 feet left of and at right angles to centerline station 757+56.13 of the proposed centerline of Southwest Parkway; (4) THENCE South 09 degrees 32 minutes 10 seconds East, with the east line of said tract of land deeded to Hubend 54, Ltd., with the west line of said Block 17 of Hulen Bend Estates and with the said Control of Access Line, a distance of 478.29 feet to a R.O.W. Marker set for comer, said R.O.W. Marker being 235.35 feet left of and at right angles to centerline station 762+33.83 of the proposed centerline of Southwest Parkway; (5) THENCE South 45 degrees 40 minutes 31 seconds East, with the east line of said tract of land deeded to Hubend 54, Ltd., with the west line of said Block 17 of Hulen Bend Estates and with the said Control of Access Line, a distance of 117.21 feet to a R.O.W. Marker set for comer in the south line of said tract of land deeded to Hubend 54, Ltd., said R.O.W. Marker being the southwest corner of said Block 17 of Hulen Bend Estates, said R.O.W. Marker also being in the north right-of-way line of Dutch Branch Road (a variable width right-of-way), said R.O.W. Marker also being the beginning of a non-tangent curve to left having a radius of 1245.99 feet, a central angle of 04 degrees 58 minutes 46 seconds and whose center bears South 13 degrees 22 minutes 11 seconds West, said R.O.W. Marker being 299.68 feet left of and at right angles to centerline station 763+31.81 of the proposed centerline of Southwest Parkway; (6) THENCE with said non-tangent curve to the left, with the south line of said tract of land deeded to Hubend 54, Ltd. and with the north right-of-way line of said Dutch Branch Road,passing at an arc length of 67.38 feet a 5/8 inch iron rod with cap stamped "Carter & Burgess" found for the northeast comer of a tract of land deeded to the City of Fort Worth as recorded in Volume 11847, Page 907 of said Deed Records of Tarrant County, Texas, in all, an arc length of 108.29 feet to a 5/8 inch iron rod with cap stamped"GORRONDONA"set for comer; (7) THENCE South 11 degrees 59 minutes 14 seconds East, with the south line of said tract of land deeded to Hubend 54, Ltd., a distance of 12.81 feet to an"X"cut in concrete set for corner, said "X" cut in concrete being the beginning of a non-tangent curve to the left having a radius of 1234.00 feet, a central angle of 12 degrees 42 minutes 30 seconds and whose center bears South 08 degrees 35 minutes 55 seconds West; (8) THENCE with said non-tangent curve to the left and with the south line of said tract of land deeded to Hubend 54, Ltd., an arc length of 273.70 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for corner in the east line of said tract of land deeded to the City of Fort Worth as recorded in Volume 6772,Page 521 of said Deed Records of Tarrant County,Texas; (9) THENCE North 16 degrees 32 minutes 22 seconds West, with the east line of said tract of land deeded to the City of Fort Worth, a distance of 1.55 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the beginning of a curve to the right having a radius of 880.00 feet, a central angle of 16 degrees 12 minutes 48 seconds and whose center bears North 73 degrees 27 minutes 38 seconds East; L NDONA R ASSOCIATES.INC 6707 BRENTWOOD STAIR RD. SUFFE 50 FORT WORTH.TEXAS 76112 517-496-1424 FAX 817-496-1768 Parcel No. 104 Date: September 18,2003 Exhibit A,Page 3 of 5 Pages (10) THENCE with said curve to the right and with the east line of said tract of land deeded to the City of Fort Worth, passing at an arc length of 10.72 feet the 5/8 inch iron rod with cap stamped "GORRONDONA" set in the north right-of-way line of said Dutch Branch Road, in all, an arc length of 249.02 feet to a 5/8 inch iron rod with cap stamped"GORRONDONA"set for corner; (11) THENCE North 00 degrees 19 minutes 34 seconds West, with the east line of said tract of land deeded to the City of Fort Worth, a distance of 480.20 feet to the POINT OF BEGINNING and containing 201,977 square feet or 4.637 acres of land,more or less. Notes: (1) A plat of even survey date herewith accompanies this legal description. (2) All bearings are referenced to the project control for Southwest Parkway. All bearings and distances are surface. (3) All coordinates are grid coordinates, based on the Texas Coordinate System, NAD-83 (1993), North Central Zone, with a Combined Scale Factor for this Project of 0.99987971. (4) Right-of-Way Markers are 5/8 inch iron rods with blue caps stamped "Gorrondona & Assoc Inc Fort Worth Texas",unless otherwise noted. I HEREBY CERTIFY TO THE NORTH TEXAS TOLLWAY AUTHORITY THAT THIS SURVEY PREPARED BY ME WAS ACTUALLY MADE UPON THE GROUND AND THAT IT AND THE INFORMATION, COURSES, AND DISTANCES SHOWN THEREON ARE CORRECT AND THAT THE TITLE LINES AND LINES OF ACTUAL POSSESSION ARE THE SAME. SURVEYED ON THE GROUND JUNE 26,2002 or Richard Kennedy 1 81+•IiKRD!C-�t�y Registered Professional Land Surveyor o r No. 5527 �. X0 5527 GORRONDONA R ASSOCIATES.INC. 6707 BRENTWOOD STAIR RD. SUITF.w FORT WORTH,TEXAS 76112 517-496-1424 FAX 517496-1765 C. r VOLUME 11656,IN AGE 1815 // /HULEIV BEND ESTATES D.R,T.C.T. I / / CABINET A. SLIDE 5613 SET 5/8"IR W/CAP P.R.T.C.T. �GORRONDONA' N-6,922,933.84 FND. t/2'IR LOT 46 LOT 47 LOT 48 E-2,301,925.33 204.00' LT. STA. 755+47.15 240.11' - - - m� -_ L-Lm_``.iW W m=_:L-3; -SET R.O.W.- - - FND 5/8"IR N . ::__a MARKER w- = _ 258.71' LT. P.D.C. z : _ _J. B. McDERMETT : STA 755+59.,9 BLOCK 17 FND AXLE >p -:.=v-.-=-:__::_::::_.:...--.........._....-_.._ _::.-:.-.:-::___-=_ __. == SURVEY>- _-- PASSING AT 1.29' LOT 19 A FND 1/2-IR =z ABSTRACyT -N0. 106 NW COR. BLOCK 17 + HULEN BEND ESTATES m-70 o o =_ _ _= _ - =� ==' LOT 18 0 ca D u1 == W (/) R.O.W."'i PROPOSED MARKER.. �_ = P / D_RAINACE_ ``-`'259.19' RIGHT—OF—WAY►r� nm n^� / �_ .'4:UTILITI' EAStMENT '_.... .S•A.V••_57+_T6.1 LOT 1 7 D �n� / VOLUME 12366, PAGE 2288_= ='== <<_ _:'•.= I --I —I 0 --_=__:D.R.T,C .T.' :i;" _s:?.•;=:=s-; '. ERE itii!'C• = . HUBEN : W; .",_ ^2 _=. �.<:...v ........= D LTD. ON orp VOUME 11764, PAGE C 1130:; C �'_.._�_ ;m- :r.=<;a r I LOT 16 m A� ::< .-- . -�:T >.: Zb� m -•I N Q :-•{ may_: .:^Via-::=::•:.:..?�_2.•:...'. y......�::-T_-.V• GLo= _-__ _= __ =_- _ -= N - 0 �•=_- _ OD = o m n 2 — —- -- - _ LOT 5 :- -:TT► N -- - - —_- - -$`_R�- - —_ Ln J.J. F. HEATH SURVEY._--___-'= . � I y r \ -.............__._........_._...._..._.._.._..._.._._._.. _. -,:::- =-N: LOT 14 ==:ABSTRACT N0. 641 = -�_ I LINE TABLE MATCH LINE "A" LINE BEARING DISTANCE L-i N 89'S8'37.E 120.00 L-2 N 89'58'37"E 154.31 L-3 S 89'59'01"E 56.02 L-4 S 12'31'56'E 196.94 NOTES: (1) A LEGAL DESCRIPTION OF EVEN SURVEY DATE HEREWITH ACCOMPANIES THIS PLAT. (2) BEARINGS ARE REFERENCED TO THE PROJECT CONTROL FOR SOUTHWEST PARKWAY. BEARINGS AND DISTANCES SHOWN ARE SURFACE. 100 50 0 ion (3) THE COORDINATES SHOWN ARE GRID COORDINATES. BASED ON THE TEXAS COORDINATE SYSTEM, NAD-83 (1993), NORTH CENTRAL ZONE. WITH A COMBINED SCALE FACTOR FOR THIS PROJECT SCALE IN FEET OF 0.99987971. LEGEND (4) RIGHT-OF-WAY MARKERS ARE 5/8" IRON RODS PROPOSED R.O.W. UNEo J � WITH BLUE CAPS STAMPED "GORRONDONA & PROPERTY LINE / .a ASSOC INC FORT WORTH TEXAS', UNLESS SURVEY LINE —�- -�-- ��/ ' `�- NOTED OTHERWISE. EXIST. EASEMENT LINE CNTL OF ACCESS LINE PARCEL NUMBER D NORTH TEXAS TOLLWAY AUTHORITY V. . . RECONSTRUCTED SURVEYEDUCORNER ON THE5GROUND SEPTEMBER 12, 2003 SOUTHWEST PARKWAY (SH 121 T) 552i r t �y� RIGHT—OF—wAY PLAT �br, PARCEL NO. 104 ROW TAKING: 4.637 Ac. OWNER: HUBEND 54 RICHARD KENNEDY, 'RPLS No. 5527 PAA 4 OF 5 PAGES SEPTEMBER 18, 2003 SCALE: 1* - 100' GORRONOONA & ASSOCIATES, INC. • 6707 BRENTWOOD STAIR ROAD, SUITE SO FORT WORTH, TX. • PH. 817/496-1424 FAX 817/496-1768 MATCH LINE "A" S 8 1R - ET 5 - -- -...... - - - - -= "GORRONDONA" = i N A �� mo =���_�^�-,�fl•..YVOUME 11764, PAGE 1130 :.0 co 0 r^o - --�° = _D.R.T.C.T.:: - _ - _:r� - - - o - - _ - LOT 12 o - - - J -,N� �•ro -�-'sfn�-s_�;•.�-:�;=-=�:_;:�_;��s�-_.:_PROPOS�D���� I o f coo LOT I -- _ - - - -- -- - --. CA - i Y - SET R.O.W. 0 rn xs;:z.:;:�::-:;_:=:•=.«= =�x=:::::_�-:--:i:;>. sa_-_-:_:..:,.:-:.-.•::::::::-- �_;_ _ MARKER _ -flASSINC AT 67.38' z35.35' LT. „� FND 5/8"IR W/CAP_`•- i STA +33.83 762 •� ; s__BETWEEN_DEEDS;:�_:��` ,.a� euRcgss_ LOT 10 ___ -_- - =' jt\N _ --SEC 5/8'IR= __-=.=:s ... SET R.O.W. SEE DETAIL "A" _- ___-- -- � e _._ _:••-___-.. MARKER 299.68 LT. _ - - _ _ .._ STA 763+31.81 _.._ _ ;� _..�_: DUTCH BRANCH ROAD C-3G�2 ' SET 'x' cur1 (A VARIABLE WIDTH RIGHT -OF-WAY) N CONCRETE , L_6 =� mN 1 R RIGHT H RIGHT-OF-WAY LINE y CITY OFF FORT WORTH`o VOLUME 11847. PAGE 907 ' o o o D.R.T.C.T. PASSING SET 5/8"IR W/CAP \ "GORRONDONA"\\ CURVE TABLE �= AS N CURVE RADIUS DELTA ARC ° �� ;-0 1 SET 5/8-IR A L-7 C-1 1245.99 04'58'46` 108.29 rn A �C) 1 W/CAP C-2 1245.99 03`05'53" 67.38 Ns r m \;GORRONDONA"�- / C-3 1234.00 12'42'30" 273.70 Z O i \ C-3 7 C-4 880.00 16'12'48" 249.02 m + \\ SEW STIR C-5 880.00 00 41'52" 10.72 a ��GORRONDONA" LINE TABLE DETAIL "A" UNE BEARING DISTANCE NOTES: L-5 S 45'40'31"E 117.21 (1) L-6 S 11'59'14"E 12.81 A LEGAL DESCRIPTION OF EVEN SURVEY DATE L=7 N 16`32'22"W 1.55 HEREWITH ACCOMPANIES THIS PLAT. (2) BEARINGS ARE REFERENCED TO THE PROJECT CONTROL FOR SOUTHWEST PARKWAY. BEARINGS 100 50 0 100 AND DISTANCES SHOWN ARE SURFACE. (3) THE COORDINATES SHOWN ARE GRID COORDINATES. BASED ON THE TEXAS COORDINATE SYSTEM, NAD-83 (1993), NORTH CENTRAL ZONE, WITH A COMBINED SCALE FACTOR FOR THIS PROJECT SCALE IN FEET OF 0.99987971. LEGEND (4) RIGHT-OF-WAY MARKERS ARE 5/8" IRON RODS PROPOSED R.O.W. UNEP //�� ;�� WITH BLUE CAPS STAMPED 'GORRONDONA & PROPERTY LINE _g �f'�+ �\=�_ ASSOCIN SURVEY C FORT WORTH TEXAS'. UNLESS UNE - ` £— ��= -C� 0� %` i NOTED OTHERWISE. EXIST. EASEMENT UNE - - - - - Le �C1ST,Q�'f��1 CNTL OF ACCESS UNE--fF--*— Q ` p PARCEL NUMBER �. r; NORTH TEXAS TOLLWAY AUTHORITY RECONSTRUCTED CORNER RCC _ R.. . .. ENNEDy r> SOUTHWEST PARKWAY �S y 12 f T� SURVEYED ON THE GROUND SEPTEMBER 12, 2003 •'On ?$527 !f fOF'SS�`w RIGHT-OF-WAY PLAT-' /� \ �d,.`•': •. -..PCZ`;?/ J ��;/".,��/ PARCEL NO. 104 ROW TAKING: 4.637 AC. �e•�j%�� OWNER: HUBEND 54, LTD. RICHARD KENNEDY, RPLS No. 5527 PAGE 5 OF 5 PAGES SEPTEMBER 18, 2003 SCALE: 1" - 100' GORRONDONA .4 ASSOCIATES, INC. • 6707 BRENTWOOD STAIR ROAD, SUIIC 50 FORT WORTH, TX. • PH. 817/496-1424 FAX 817/496-1768'- City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 11/2/2004 DATE: Tuesday, November 02, 2004 LOG NAME: 30HUBEND 121T REFERENCE NO.: G-14572 SUBJECT: Authorization for Settlement of All Claims with HUBEND 54, Ltd., a Texas Limited Partnership, and VLMC, Inc. for the Taking of Property for State Highway 121T Right-of-Way RECOMMENDATION: It is recommended that the City Council: 1. Approve the proposed settlement of the claims with HUBEND 54, Ltd., a Texas Limited Partnership and VLMC, Inc. for the taking of property for right-of-way for State Highway 121T (SH 121 T); 2. Authorize the payment of $3,800,000 to HUBEND 54, Ltd., a Texas Limited Partnership and VLMC, Inc. and its successors or assigns or both in settlement of their claims for the taking of their property; and 3. Authorize the appropriate City representatives to execute the documents necessary to complete the settlement. DISCUSSION: On December 16, 2003 (M&C L-13726), the City Council declared the necessity of taking an interest in two parcels needed for the right-of-way for SH 121T; and authorized the City Attorney to institute condemnation proceedings to acquire fee simple interest in them. In preparation for the condemnation proceedings, the City's outside independent appraiser, Ben Dyess and Associates, placed the fee simple value at $2,714,000 and the landowners' appraiser placed the fee simple value at $5,743,215. After extended negotiations, the parties reached a compromise in lieu of litigation in which the landowners agreed to accept $3,800,000 for the fee simple interest of their property. In return for the payment, the City will receive the title to the property necessary for the construction of the SH 121T. The Engineering Department and the Department of Law recommend settlement of the cases on those terms. Although City staff believes the value determined by the City's appraiser is fair and reasonable, City staff recommends that the City enter into this settlement to avoid further time-consuming, costly and uncertain litigation. These parcels are located in COUNCIL DISTRICT 3. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the SH 121T Southwest Parkway Fund. Logname: 30HUBEND 121T Paste 1 nf� TO Fund/Account/Centers FROM Fund/Account/Centers C221 541100 303210000541 $3.800.000.00 Submitted for City Manager's Office by: Marc Ott (8476) Originating Department Head: A. Douglas Rademaker (6157) Additional Information Contact: A. Douglas Rademaker (6157) Logname: 30HUBEND 121T Page 2 of?