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HomeMy WebLinkAboutContract 52408 CITY SECRETARY oFF°cQ�� ; CONTRACT OF SALE AND PURCHASE (Sale by City of Fort Worth of Lake Worth Leased Lot) THIS CONTRACT OF SALE AND PURCHASE ("Contract") is made and entered into by and between the CITY OF FORT WORTH,TEXAS,a Texas home rule municipal corporation, acting by and through its duly authorized City Manager or Assistant City Manager ("Seller") and Wayne Abernathy and Lori Martin ("Purchaser") as of MA-1 /7 � , 2019("Effective Date"). RECITALS 1. Seller is the owner of the real property only (exclusive of improvements) located at 9500 Watercress Drive(the Property"),as shown and more particularly described on the attached Exhibit"A", incorporated herein for all purposes. 2. Seller and Purchaser (as successor-in-interest to original lessee) are parties to a ground lease for the Property dated February 1, 1982, as amended by a lease amendment dated 2019 (collectively, the "Lease Agreement"). 3. The Lease Agreement provides Purchaser with an option to purchase ("Option"),pursuant to Section 272.001(h) of the Local Government Code, and by execution of this Contract, Purchaser hereby exercises the Option. AGREEMENT In consideration of the mutual covenants, representations, warranties and agreements contained herein,and for other good and valuable consideration,the receipt and adequacy of which are hereby acknowledged, Seller and Purchaser agree as follows: Section 1. Agreement of Sale and Purchase. (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. (b) Seller shall convey the Property to Purchaser AS-IS, as set forth in Section 5. (c) In Seller's conveyance of the Property to Purchaser, the following rights and interests shall be reserved to Seller (or have previously been reserved by Seller's predecessor in title), and such reservation is hereby approved for all purposes: all right, title, and interest in and to all oil, gas, and other minerals in and under the Property, if any. (d) An avigation easement is reserved on behalf of the public for free and unobstructed passage of aircraft over the subject property in the navigable airspace above the minimum altitudes of flight prescribed by federal regulations, including airspace needed to ensure sa` t in the takeoff Purchase Contract 9500 Watercress Drive OFFICIAL RECORD CITY SECR�TA-1RY FT WORTH,TX any and all claim and liability resulting from the noise,vibration,fumes, dust fuel, electromagnetic interference and lubricant particles and all other effects,whether such claims are for injury or death to person or persons or damages to or taking of.property, arising out of or in connection with the use of this easement, when such use is in compliance with the regulations and guidelines of the Federal Aviation Administration, successor agency, or other governmental authority with jurisdiction over the matter. (e) Seller shall retain the following easements and any easements retained by Seller will be at no cost to Seller: all existing easements, whether of record or not, known or unknown. (f) Pursuant to City of Fort Worth Code of Ordinances Section 35-3, Purchaser agrees to connect to water and sanitary sewer lines if available prior to Closing, or, if not available prior to Closing, as soon as practicable after such lines are made available. This requirements shall survive Closing. Section 2. Purchase Price. The purchase price ("Purchase Price") for the Property, payable by Purchaser to Seller in cash at Closing(defined below), is Twenty thousand and 00/100 dollars ($ 20,000.00 ). Section 272.001(h) of the Local Government Code requires the Property to be sold for fair market value of the land as determined by a certified appraiser, and pursuant to an appraisal obtained by Wayne Abernathy and Lori Martin dated September 12, 2018, Seller has determined that the Purchase Price reflects the current fair market value of the Property. Section 3. Title Commitment and Survey. (a) Within fifteen (15) days after the Effective Date, Purchaser shall obtain at Purchaser's sole cost and expense (i) a Commitment for Title Insurance and Title Policy ("Title Commitment")from the Title Company of Purchaser's choice("Title Company"), setting forth the status of the title of the Property and showing all liens, claims, easements, rights-of-way, reservations,restrictions, encroachments;tenancies, and any other encumbrances (collectively,the "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) Within twenty-five (25) days after the Effective Date, Purchaser may obtain, at Purchaser's sole cost and expense, an updated survey ("Survey") consisting of a plat and field notes describing the Property, prepared pursuant to a current on-the-ground staked survey performed by a registered public surveyor or engineer satisfactory to Purchaser and Title Company. The Survey shall (i) be certified to Purchaser, its successors and assigns, and Title Company, (ii) reflect the actual dimensions of and the total number of square feet within the Property,net of any portion thereof lying within a publicly dedicated roadway or a utility easement, (iii) identify any rights-of-way, easements, or other Encumbrances by reference to applicable recording data, and (iv) include the Surveyor's registered number and seal, and the date of the Survey. The description of the Property prepared as a part of the Survey will be used in all of the documents set forth in this Contract that requires a legal description of the Property. Purchase Contract 9500 Watercress Drive Pg. 2 (c) If the Title Commitment or Survey discloses any Encumbrances or other matters that are not acceptable to Purchaser in Purchaser's sole discretion, then Purchaser shall give Seller written notice thereof within five (5) days after receipt of the Title Commitment, 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 cure the Objections, but shall be under no obligation to do so. (d) If Purchaser gives notice of Objections and Seller does not cure the Objections, cause the Title Commitment and Survey to be amended to give effect to matters that are cured, and give Purchaser written notice thereof within the five (5) day period following receipt of the notice from Purchaser ("Cure Period"), Purchaser shall have the right either (i) to terminate this Contract by giving written notice thereof to Seller at any time after the expiration of such Cure Period but prior to the expiration of the option period (as defined below), 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 Cure Period for an amount of time Purchaser deems necessary for Seller to cure the same. PURCHASER ACKNOWLEDGES THAT A TERMINATION OF THIS CONTRACT PURSUANT TO THE TERMINATION RIGHT IN THIS SECTION 3(d) OR ANY OTHER TERMINATION RIGHT HEREIN WILL BE A DEFAULT BY LESSEE UNDER THE LEASE AGREEMENT, AND PURCHASER/LESSEE WILL THEN BE SUBJECT TO THE TERMINATION RIGHT OF THE SELLERILESSOR IN THE LEASE AGREEMENT. Section 4. Review Reports. DELETED BY AGREEMENT OF THE PARTIES. Section 5. Representations, Warranties, "AS IS" (a) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS, TO CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF Purchase Contract 9500 Watercress Drive pg. 3 ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR(H)ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT SELLER HAS NOT MADE,DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OF REQUIREMENTS, INCLUDING SOLID WASTE, AS DEFINED BY THE U. S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980,AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, SELLER AND PURCHASER AGREE THAT PURCHASER IS TAKING THE PROPERTY "AS IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE. PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY REPRESENTATIONS, STATEMENTS, ASSERTIONS OR NON-ASSERTIONS BY THE SELLER WITH RESPECT TO THE PROPERTY CONDITION, BUT IS RELYING SOLELY UPON ITS EXAMINATION OF THE PROPERTY. PURCHASER TAKES THE PROPERTY UNDER THE EXPRESS UNDERSTANDING THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR LIMITED WARRANTIES OF TITLE SET FORTH IN THE CLOSING DOCUMENTS). UPON CONVEYANCE, AS BETWEEN SELLER AND PURCHASER, THE RISK OF LIABILITY OR EXPENSE FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, EVEN IF ARISING FROM EVENTS BEFORE CLOSING, WILL BE THE SOLE RESPONSIBILITY OF PURCHASER, REGARDLESS OF WHETHER THE ENVIRONMENTAL PROBLEMS WERE KNOWN OR UNKNOWN AT CLOSING. ONCE CLOSING HAS OCCURRED, PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT ("CERCLA"), THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT OR THE TEXAS WATER CODE. PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY ARISING AS THE RESULT OF SELLER'S OWN NEGLIGENCE OR THE NEGLIGENCE OF SELLER'S REPRESENTATIVES, BUT NOT ANY WILLFUL ACTS OR OMISSIONS OR GROSS NEGLIGENCE OF SELLER OR SELLER'S REPRESENTATIVES. PURCHASER INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY Purchase Contract 9500 Watercress Drive pg.4 ARISING AS A RESULT OF THEORIES OF PRODUCTS LIABILITY AND STRICT LIABILITY, OR UNDER NEW LAWS OR CHANGES TO EXISTING LAWS ENACTED AFTER CONVEYANCE DATE THAT WOULD OTHERWISE IMPOSE ON SELLER IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY. PROVISIONS OF THIS SECTION SHALL SURVIVE THE CLOSING. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING. PURCHASER ACKNOWLEDGES AND ACCEPTS ALL THE TERMS AND PROVISIONS BY HIS ACCEPTANCE HEREOF. b. The provisions of Section 5(a) shall be incorporated into the Deed. C. The provisions of Section 5(a) shall survive the Closing. Section 6. Option Period. DELETED BY AGREEMENT OF THE PARTIES Section 7. Tests. Purchaser, at Purchaser's sole cost and risk, shall have the right to make inspections, surveys, test borings, soil analyses, and other tests, studies and surveys, including without limitation, environmental and engineering tests, borings, analyses, site assessments, and studies ("Tests). Any Tests shall be conducted at Purchaser's sole risk and expense,and PURCHASER AGREES TO INDEMNIFY AND DEFEND SELLER AND THE PROPERTY FROM ANY LIENS AND CLAIMS RESULTING FROM SUCH TESTS. The Property will be restored by Purchaser to its original condition at Purchaser's sole expense following any site work. Purchaser shall release to Seller any and all independent studies or results of Tests obtained during the Option Period. Section 8. Closing Contingencies. DELETED BY AGREEMENT OF THE PARTIES. Section 9. Closing. (a) The closing of the sale of the Property by Seller to Purchaser ("Closing") shall occur through the office of the Title Company no later than eighteen(18)months after the Effective Date. At the Closing, all of the following shall occur, all of which are deemed concurrent conditions: (1) Seller, at Purchaser'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 to existing known or unknown easements, rights-of-way, and prescriptive rights, whether of record or not; containing (A) reservations pursuant to Section 1(c), (d) and (e); (B) the Purchase Contract 9500 Watercress Drive pg. 5 following statement as required by Local Government Code 272.001(h), "To protect the public health, safety, or welfare and to ensure an adequate municipal water supply, the Property sold by the City of Fort Worth under Local Government Code 272.001(h) is not eligible for and the owner is not entitled to the exemption provided by Section 11.142(a), Water Code;" and (C)the language required in Section 5, with the precise form of the Deed to be determined pursuant to Section 11 below; (ii) Any other instrument or document necessary for Title Company to issue the Owner Policy in accordance with Section 9(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 a certified check or such other means of funding acceptable to Seller, in an amount equal to the Purchase Price, plus any rent due and owing under the Lease Agreement. (3) The Title Company shall issue to Purchaser, at Purchaser's sole cost and expense, a Texas 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. (4) Seller and Purchaser shall each pay their respective attorneys' fees. (5) Except as otherwise provided herein, all costs and expenses in connection with Closing shall be paid or borne by Purchaser including without limitation, Title Company attorney and escrow or settlement fees, costs of tax certificates, survey costs, and title insurance policy costs. (6) Purchaser shall be responsible for all ad valorem and similar taxes and assessments, if any, relating to the Property. (c) Upon completion of the Closing, Seller shall deliver possession of the Property to Purchaser. Section 10. 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 except the following: NA. PURCHASER SHALL BE SOLELY RESPONSIBLE FOR AND SHALL INDEMNIFY SELLER FROM PAYMENT OF ANY BROKERAGE FEES OR COMMISSIONS. Section 11. Closing Documents. DELETED BY AGREEMENT OF THE PARTIES. Section 12. 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 Purchase Contract 9500 Watercress Drive pg. 6 given, (ii) delivered in person at the Closing (if that party is present at the Closing), (iii)placed in the United States mail, return receipt requested, addressed to such party at the address specified below, or (iv) deposited into the custody of Federal Express Corporation to be sent by FedEx Overnight Delivery or other reputable overnight carrier for next day delivery, addressed to the party at the address specified below. (b) The address of Seller under this Contract is: City of Fort Worth With a copy to: Property Management Department City of Fort Worth Attn: Ricky Salazar City Attorney's Office 900 Monroe Street, Suite 400 Attn: Leann Guzman Fort Worth, Texas 76102 200 Texas Street Fort Worth, Texas 76102 (c) The address of Purchaser under this Contract is: Wayne Abernathy and Lori Martin 4929 Camp Bowie Blvd. Fort Worth, TX 76107 (d) From time to time either party may designate another address under this Contract by giving the other party advance written notice of the change. Section 13. 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. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, PURCHASER ACKNOWLEDGES THAT A TERMINATION OF THIS CONTRACT PURSUANT TO THE TERMINATION RIGHT IN THIS SECTION 13(a) OR ANY OTHER TERMINATION RIGHT HEREIN WILL BE A DEFAULT BY LESSEE UNDER THE LEASE AGREEMENT, AND PURCHASER/LESSEE WILL THEN BE SUBJECT TO THE TERMINATION RIGHT OF THE SELLERILESSOR IN THE LEASE AGREEMENT. (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 Purchase Contract 9500 Watercress Drive pg. 7 Contract by giving written notice thereof to Seller prior to or at the Closing. A termination by Purchaser of this Contract due to Seller's default will not result in a default under the Lease Agreement. Section 14. 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 15. Assigns. This Contract inures to the benefit of and is binding on the parties and their respective legal representatives, successors, and assigns. Any assignment must be approved by City of Fort Worth and this Contract cannot be assigned less than 60 days prior to the scheduled Closing. Section 16. Time of the Essence. It is expressly agreed that time is of the essence with respect to this Contract. Section 17. 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 18. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Section 19. 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 20. Venue. Venue of any action brought under this Contract shall be in Tarrant County, Texas if venue is legally proper in that county. Section 21. 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 22. 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 for the City of Fort Worth or federal holiday, then the Closing or the day for such performance, as the case may be, shall be the next following regular business day. Section 23. Multiple Counterparts. This Contract may be executed in any number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one agreement, but, in making Purchase Contract 9500 Watercress Drive pg. 8 proof of this Contract, it shall not be necessary to produce or account for more than one such counterpart. This Contract is executed as of the Effective Date. SELLER: RCHASER CITY OF F�2T WORTH, TEXAS By: !_� B Assistant City Manager Wayne rnathy Date: By: Lori Martin ATTEST: ;;; M ayser t) City Secretary '' M&C: L-15964 ff 1295: N/A _ FX APPROVED AS TO LEGALITY AND FORM 4 /11M Alf 1/1"' v A.s stant City Attorney CONTRACT MANAGER By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, inc uding ensuring all performance and reporting requirements. Name: Ricky Salazar Title: Sr. Land Agent Purchase Contract 9500 Watercress Drive OFFICIAL RECORD CITY SACRETARY FT. WORTH,TX By its execution below, Title Company acknowledges receipt of this Contract and agrees to hold and deliver the same and perform its duties pursuant to the provisions of this Contract. TITLE COMPANY: By: Name• Title: Date: Phone Fax Purchase Contract 9500 Watercress Drive pg. 10 Exhibit "A" Property Description Lot 1, Block 21, Lake Worth Leases Addition, Tarrant County, Texas and otherwise known as 9500 Watercress Drive