HomeMy WebLinkAboutContract 30865 CITY SECRETARY�T? 2,�g
^ONTRACT NO.
Southwest Parkway
Parcel No. 99
CONTRACT OF SALE
THE STATE OF TEXAS §
COUNTY OF TARRANT §
This Contract of Sale is made by and between VLMC Joint Venture, a Texas joint
venture(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 16.874
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 11656,Page 1815,Real Property Records of Tarrant County,Texas,and contains all
of a 1.042 acre tract deeded to Seller by deed recorded at Volume 14202, Page 240, Real
Property Records of Tarrant County, Texas. The Property is more particularly described in
Exhibit "A" attached hereto and made part hereof.
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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 Property and
the tract of land described in the Contract of Sale between Purchaser and Hubend 54, Ltd.
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. Closin . 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:
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(1) State Law Disclosures. Such disclosures and reports,required by
applicable state and local law in connection with the conveyance of real
property.
(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:
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(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 knowledge,but
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
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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
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 Pennitted Exceptions, or(ii)terminate this Contract by written notice to Seller,
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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.
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) Authori . Seller is thesole er of the Property. Seller has been duly
organized and is validly existing as a ' 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,which 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, MARKET , ------ -
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111, U S...
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 ASPECTS OF THE
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
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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
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
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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.
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 ORS -
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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 SELLER HAS NO
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 ENVIRONMT! -
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��^r
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
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 part-,-
written
artywritten notice of the circumstances giving rise to the alleged�ch within,such 2-
ear period. Each a agrees to defend and indemnify the other
y p party g fy against any claim,
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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.
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
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specific performance of this Contract. If this Contract is tenninated due to the default of a
party, then the defaulting party shall pay any fees due to the Title Company.
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. Binding 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.
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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, II, 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 III,Cantey&Hanger,L.L.P.,
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Burnett Plaza, Suite 2100, 801 Cherry Street,Unit#2,Fort Worth,Texas 76102-6881,
Facsimile Number(8 17) 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 November , 2004.
I.,a-
This instrument has been executed by Seller on this 2 day of November, 2004.
SELLER:
VLMC JOINT VENTURE
By: 774k�—
Timothy H. 4Jointrer
Page 15 of 16
1 YY
This instrument has been executed by Purchaser on this the �day of November,
2004.
PURCHASER:
THE CITY OF FORT WORTH
GtyatWq►..
Ass tant ity Manager
Acknowledgement of Contract Received by Title Company
ALAMOTjqjL E COMPANY
ATTESTED BY
• By. �4 ,
r v t�j Printed
Name: l
Title: ✓ p
:or.tract Autho izatiou Date: 3 O�
I _n4
w
-)ate
C:\WPDOCS\6201\0IOE\Contract of Sale-VLMC.v3 FINAL.doc
Page 16 of 16
I
Parcel No.99
Date: September 18,2003
Exhibit A,Page 1 of 5 Pages
Being a 16.874 acre tract of land situated in the J. B. McDermett Survey, Abstract No. 1063, City of Fort
Worth, Tarrant County, Texas, said 16.874 acre tract of land being a portion of a 28.76 acre tract of land
and a portion of a 2.43 acre tract of land deeded to VLMC, Inc. as recorded in Volume 11656, Page 1815
of the Deed Records of Tarrant County, Texas, said 16.874 acre tract of land also being all of a 1.042
acre tract of land deeded to VLMC, Inc. as recorded in Volume 14202,Page 240 of said Deed Records of
Tarrant County, Texas, said 16.874 acre tract of land being more particularly described by metes and
bounds as follows:
BEGINNING at a 5/8 inch iron rod found for the northwest comer of said 28.76 acre tract of land and
for the northeast comer of a tract of land deeded to Fort Worth Osteopathic Hospital, Inc. as recorded in
Volume 14667, Page 157 of said Deed Records of Tarrant County, Texas, said 5/8 inch iron rod being in
the south right-of-way line of Oakmont Boulevard (a 120.0' right-of-way), said 5/8 inch iron rod having
grid coordinates of N=6,925,780.94 and E=2,301,788.95, said 5/8 inch iron rod also being the beginning
of a non-tangent curve to the right having a radius of 1340.00 feet, a central angle of 04 degrees 16
minutes 41 seconds and whose center bears South 04 degrees 32 minutes 41 seconds East;
(1) THENCE with said non-tangent curve to the right, with the north line of said 28.76 acre tract of
land and with the south right-of-way line of said Oakmont Boulevard, an are length of 100.05
feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for corner;
(2) THENCE North 89 degrees 42 minutes 58 seconds East, with the north line of said 28.76 acre
tract of land and with the south right-of-way line of said Oakmont Boulevard, a distance of
499.60 feet to a 5/8 inch iron rod with cap stamped"GORRONDONA" set for the most northerly
northeast comer of said 1.042 acre tract of land, said 5/8 inch iron rod with cap stamped
"GORRONDONA" being the northwest comer of a tract of land deeded to Oakmont XXIII as
recorded in Volume 10135, Page 1721 of said Deed Records of Tarrant County, Texas, said 5/8
inch iron rod with cap stamped "GORRONDONA" also being the beginning of a Control of
Access Line, said 5/8 inch iron rod with cap stamped "GORRONDONA" being 278.78 feet left
of and at right angles to centerline station 724+29.97 of the proposed centerline of Southwest
Parkway;
(3) THENCE South 00 degrees 17 minutes 02 seconds East, with the east line of said 1.042 acre
tract of land, with the east line of said 2.43 acre tract of land, with the west line of said tract of
land deeded to Oakmont XXIII and with said Control of Access Line, a distance of 500.31 feet to
a 5/8 inch iron rod found for the most northerly southeast comer of said 2.43 acre tract of land
and for the southwest corner of said tract of land deeded to Oakmont XXIII, said 5/8 inch iron
rod being in the north line of Block 1 of Oakmont Meadows, an addition to the City of Fort
Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 5532 of the Plat Records of
Tarrant County, Texas, said 5/8 inch iron rod being 485.63 feet left of and at right angles to
centerline station 729+36.77 of the proposed centerline of Southwest Parkway;
L
N[)ONA&ASSOC'IAT'ES.IN('. 6707 BRENTWOOD STAIR RD. SUITE 50 FORT WORTH.TEXAS 76112 317-414h-1424 FAX 317-496-1763 .
Parcel No. 99
Date: September 18 2003
Exhibit A,Page 2 of 5 Pages
(4) THENCE South 89 degrees 40 minutes 49 seconds West, with the north line of said Block 1 of
Oakmont Meadows, with the north line of Block 3 of Hulen Bend Addition, an addition to the
City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 5613 of said Plat
Records of Tarrant County,Texas and with said Control of Access Line, passing at a distance of
70.00 feet a 1/2 inch iron rod found for the northwest corner of said Block 1 of Oakmont
Meadows and for the northeast corner of said Block 3 of Hulen Bend Addition, in all, a distance
of 262.73 feet to a 5/8 inch iron rod with cap stamped "GORRONDONA" set for the northwest
comer of said Block 3 of Hulen Bend Addition, said 5/8 inch iron rod with cap stamped
"GORRONDONA"being in the east line of said 1.042 acre tract of land and in the west line of
said 2.43 acre tract of land, said 5/8 inch iron rod with cap stamped "GORRONDONA" also
being the beginning of a non-tangent curve to the left having a radius of 3609.72 feet, a central
angle of 31 degrees 11 minutes 35 seconds and whose center bears South 70 degrees 26 minutes
21 seconds East, said 5/8 inch iron rod with cap stamped "GORRONDONA" being 238.51 feet
left of and at right angles to centerline station 730+35.37 of the proposed centerline of Southwest
Parkway;
(5) THENCE with said non-tangent curve to the left, with the east line of said 1.042 acre tract of
land, with the west line of said 2.43 acre tract of land, with the east line of said 27.76 acre tract
of land, with the west line of said Block 3 of Hulen Bend Addition and with said Control of
Access Line, an arc length of 1965.21 feet to a 5/8 inch iron rod with cap stamped
"GORRONDONA" set for corner, said 5/8 inch iron rod with cap stamped "GORRONDONA"
being 209.63 feet left of and at right angles to centerline station 751+22.59 of the proposed
centerline of Southwest Parkway;
(6) THENCE South 11 degrees 37 minutes 59 seconds East, with the east line of said 28.76 acre
tract of land, with the west line of Block 3 of said Hulen Bend Addition and with said Control of
Access Line, a distance of 424.60 feet to a 1/2 inch iron rod found for the southeast corner of
said 28.76 acre tract of land, said 1/2 inch iron rod being the southwest corner of said Block 3 of
Hulen Bend Addition, said 1/2 inch iron rod also being in the north line of a tract of land deeded
to Hubend 54, Ltd. as recorded in Volume 11764, Page 1130 of said Deed Records of Tarrant
County, Texas, said 1/2 inch iron rod also being 204.00 feet left of and at right angles to
centerline station 755+47.15 of the proposed centerline of Southwest Parkway;
(7) THENCE South 89 degrees 58 minutes 37 seconds West, with the south line of said 28.76 acre
tract of land and with the north line of said tract of land deeded to Hubend 54, Ltd., passing at a
distance of 240.16 feet a 3/4 inch iron rod found for reference, in all, a distance of 274.30 feet to
an axle found for the southwest corner of said 28.76 acre tract of land, said axle being the
northwest comer of a tract of land deeded to the City of Fort Worth as recorded in Volume 6772,
Page 476 and Volume 6772, Page 521 of said Deed Records of Tarrant County, Texas, said axle
also being in the east line of a tract of land deeded to Rall Properties, L.P. as recorded in Volume
11405, Page 528 of said Deed Records of Tarrant County,Texas;
L
DONA C ASSOCIA"1'175.INC 6707 I3REN"I'1VOOD S"rAIR RD. SUITE±O FORT WORTH.TEXAS 7611? 317-496-1419 PAX 817-796-1765
Parcel No.99
Date: September 18,2003
Exhibit A,Page 3 of 5 Pages
(8) THENCE North 00 degrees 20 minutes 57 seconds West, with the west line of said 28.76 acre
tract of land and with the east line of said tract of land deeded to Rall Properties, L.P., a distance
of 1247.01 feet to 5/8 inch iron rod found for the northeast comer of said tract of land deeded to
Rall Properties, L.P., said 5/8 inch iron rod being southeast comer of a tract of land deeded to
Texas Health System as recorded in Volume 13039, Page 104 of said Deed Records of Tarrant
County, Texas;
(9) THENCE North 00 degrees 18 minutes 56 seconds West, with the west line of said 28.76 acre
tract of land and with the east line of said tract of land deeded to Texas Health System,passing at
a distance of 289.43 feet the southeast corner of Lot 1, Block 1 of Oakmont-Harris Addition, an
addition to the City of Fort Worth, Tarrant County, Texas as recorded in Cabinet A, Slide 7402
of said Plat Records of Tarrant County, Texas, and passing at a distance of 1350.38 feet the
northeast corner of said Lot 1 and the southeast comer of said tract of land deeded to the Fort
Worth Osteopathic Hospital, Inc., in all, a distance of 1600.50 feet to the POINT OF
BEGINNING and containing 735,021 square feet or 16.874 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
Richard KennedyP,!GHMID Kcrdl�Fn�
. . /
Registered Professional Land Surveyor r�` 9 5=27 ,j-"
NoLGORRO
5527 15
CL �Li
N
DONA RR ASSOCIATES.INC. 6707 BRENTWOOD STAIR RD. SUITE 50 FORT WORT[1.TEXAS 76112 817-496.1424 FAX 817-496-1768
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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 121 T; 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 INFORMATIONXERTIFICATION:
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 Page 1 of 2
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 2