HomeMy WebLinkAboutContract 35570Y . 70RETA RY
PURCHASE CONTRACT
(Evans Avenue)
THIS PURCHASE CONTRACT ("Contract") is made and entered into by and between
the CITY OF FORT WORTH, TEXAS, acting by and through its duly authorized City Manager
or Assistant City Manager ("Seller") and Cypress Equities I, LP, or its assigns, as herein
allowed, ("Purchaser") as of the date on which this Contract is executed by the last to sign of
Seller and Purchaser ("Effective Date").
RECITALS
1. Seller is the owner of the approximately 94,822 square foot tract of land described as
parcel 313, 413, 4D and 5 on the attached Exhibit A, together with any easements, rights -
of -way, licenses, interests, and rights appurtenant thereto (collectively, the "Property) as
shown and more particularly described on the attached Exhibit "A", incorporated herein
for all purposes.
2. Seller desires to sell the Property for development as a commercial/retail center in
accordance with the City's Comprehensive Plan and as stated herein in a manner that will
benefit the citizens of Fort Worth in general.
3. Purchaser desires to acquire the Property for development as a commercial or retail
center.
4. Seller will convey the Property through direct sale in accordance with Section 272.001(i)
of the Texas Local Government Code.
AGREEMENT
In consideration of the mutual covenants in this Contract, Seller and Purchaser agree as
follows:
Section 1. 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 free and clear of all liens, claims,
easements, rights -of --way, reservations, restrictions, encroachments, tenancies, and any other
encumbrances (collectively, the "Encumbrances") except the Encumbrances appearing in the
Title Commitment (as defined below in Section 3) and the survey that are not cured and that are
subsequently waived pursuant to Section 3 below ("Permitted Encumbrances").
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(c) Seller shall retain all mineral interests in the Property, if any. Seller waives and
conveys to Grantee the right of ingress and egress to and from the surface of the Property
relating to the portion of the mineral estate owned by Seller.
Section 2.
[9
(a) The purchase price ("Purchase Price") for the Property, payable by Purchaser to
Seller in cash at Closing (defined below), is Three Hundred Thirty -Three Thousand Four
Hundred and 00/Dollars ($333,400), based upon the assumption that the Net Square Feet within
the Property is approximately 94,822. For purposes of this Contract, the term "Net Square Feet"
means the total gross square feet within the surveyed boundaries of the Property. Seller has
determined that the Purchase Price reflects the current fair market value of the Property.
(b) Contemporaneously with the execution of this Contract, Purchaser delivers to
Seller a check in the amount of $50.00 ("Independent Contract Consideration"), as independent
consideration for Seller's execution, delivery, and performance of this Contract. This
Independent Contract Consideration is in addition to and independent of any other consideration
or payment provided for in this Contract, is nonrefundable, and shall be retained by Seller
notwithstanding any other provision of this Contract.
five days after the execution and delivery of this Contract by Seller to
(c) Within
Purchaser, Purchaser shall deliver to Title Company (as defined below in Section 3) a check
payable to the order of Title Company or other means of funding reasonably satisfactory to
Seller in the amount of $10,000 as earnest money ("Earnest Money"). Title Company shall hold
the Earnest Money in escrow and deliver it in accordance with the provisions of this Contract.
The Title Company shall invest the Earnest Money in an interest bearing account through a bank
or other financial institution selected by Purchaser (hereafter, all references in this Contract to
Earnest Money include the amount deposited by Purchaser with the Title Company pursuant to
this Section 2(c) together with all interest accrued thereon).
Section 3. Title Commitment and Survey.
(a) Within thirty (30) days after the Effective Date, Seller shall deliver to Purchaser, at
Seller's sole cost and expense (i) an Owner's Commitment for Title Insurance and Title Policy
( Title Commitment") from Republic Title of Texas, Att: Barbara Hutson, 420 Throckmorton
S uite 640, Fort Worth, TX 76102. Telephone number is 817-877-1481_("Title Company"),
setting forth the status of the title of the Property and showing all Encumbrances and other
matters, if any, relating to the Property; and (ii) a legible copy of all documents referred to in the
Title Commitment, including but not limited to, plats, reservations, restrictions, and easements.
(b) Within five (5) days after the Effective Date, Seller shall deliver to Purchaser all
surveys ("Existing Surveys ) of the Property in Seller's possession control. Within twenty -
or
five (25) days after the Effective Date, Purchaser shall 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
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dimensions of and the total number of gross and Net Square Feet within the Property, (iii)
identify any rights -of --way, easements, or other Encumbrances by reference to applicable
recording data, (iv) locate and show the dimensions of any structures in the Property, and (v)
include the Surveyor's registered number and seal, and the date of the Survey.
(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 fourteen (14) 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 shall use its best efforts to
cure the Objections, but shall be under no obligation to do so.
tions
(d) If Purchaser gives notice of Objections and Seller does not cure the Objec,
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 seven (7) day period following receipt of the
notice from Purchaser ("Cure Period"), Purchaser shall have the right either (1) 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 theOpt
termination, Purchaser shall be entitled n the return of dthe Earnetst Money, sand upon neither party
rig
or obligations, or (ii) to waive the Objections and
hereto shall have any further
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 chasecuting the same, as determined by ser Purchaser's sole discretion may extend the Purchaser Cu e
Purchaser's sole discretion, then Purcha
Period for an amount of time Purchaser deems necessary for Seller to cure the same.
Section 4. Review Reports. Within twenty (20) days after the Effective Date, Seller shall
deliver to Purchaser for Purchaser'ports and studies in Seller
s review all reports possession or
control concerning the Property including those environmental or engineerings and studies
report
that were obtained or conducted during or after the demolition of the former improvements on
the Property and all other reports, studies, site plans, technical, engineering and soil tests (all the
foregoing being herein called Reports ).
Section 5.
Warranties, "
(a) As an inducement to Purchaser to purchase the Property and with the
understanding and acknowledgment by Seller that Purchaser will materially rely thereon, Seller
makes the following representations and warranties to Purchaser to be effective on the Effective
Date and on the Closing Date, which representations and warranties shall survive the Closing:
(1) The Property is not subject to any agreements of sale, or any options or
other rights of third parties to acquire any interest therein (other than pursuant to this
Contract).
(2) There are no adverse or other parties in possession of the Property, or of
CA No party has been granted, and there does not currently exist, any
any part
license, lease or other right relating to the use or possession of the Property, or any part
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thereof.
(3) To the best knowledge of Seller, no condemnation proceedings, eminent
domain proceedings or similar actions or proceedings are now pending or threatened
against the Property.
(4) (i) Seller has not conducted or authorized the generation, transportation,
storage, treatment, release or disposal at or from the Property of any Hazardous
Substances (as defined below) in violation of any applicable Environmental Laws (as
hereinafter defined), (ii) to the best of Seller's knowledge, the Property does not contain
any Hazardous Substances in violation of any applicable Environmental Laws, in tot e
best of Seller's knowledge, there is no pending or threatened litigation or proceedings
before any administrative agency or other governmental authority in which any person or
entity alleges the presence at, release or threat of release from, or placement on or in, the
Property of any Hazardous Substances, (iv) Seller has not received any notice of, and has
no actual knowledge that, any administrative agency or other governmental authority or
any employee or agent thereof has determined that there has been (or is investigating
whether there is) a presence at, release or threat of release from, or placement on or in,
the Property of any Hazardous Substances, or any generation, transportation, storage,
treatment or disposal at or from the Property of any Hazardous Substance in violation of
any applicable Environmental Laws, and (v) no underground storage tanks are located on
the Property. "Hazardous Substances" as used herein means (A) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde, polychlorinated biphenyls and radon gas, and (B) any
chemicals, materials or substances defined as or included in the definitions of "hazardous
substances," "hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants,"
"bio-hazard " "biological waste, medical waste" or words of similar
import, under any applicable federal, state or local environmental, safety or health laws,
ordinances, rules of common law, regulations or directives (herein called "Environmental
Laws").
($) Neither the execution of this Contract nor the consummation of the
transaction contemplated hereby will (A) result in a breach of or default under, any
agreement to which Seller is a party or by which Seller is bound; or (B) violate any
restriction, court order, agreement or other legal obligation to which Seller is subject.
(() There are no attachments, executions, assignments for the benefit of
ther
creditors, or voluntary or involuntary proceedings in bankruptcy or under any o
debtor relief laws contemplated by or pending or threatened against Seller or any portion
of the Property.
(7) Seller has the full right, power and authority to sell and convey the
Property to Purchaser as provided in this Contract and to carry out Seller's obligations
hereunder. All requisite action necessary to authorize Seller to enter into this Contract
and perform its obligations hereunder has been taken. The joinder of no person or entity
other than Seller will be necessary to convey the Property fully and completely to
Purchaser at Closing. This Contract is a valid and binding obligation of the Seller and is
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enforceable against the Seller in accordance with its terms.
(8) All information relating to the Property which has been or will be
delivered to Purchaser including, without limitation, the Reports, is true, correct and
complete, and does not contain any material misstatements of fact or fail to state any
material fact relevant to such information.
(b) 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 OMPLIANCEUSES OF ORICBYPURCHASER MAY CONDUCT
HEREON, (D) THE C THE PROPERTY OR ITS
T
OPERATION WITH ANY L GOVERNMENTAL � AUTHORITY OR BODY, (E)INANCES OR N THE
ANY APPLICABLE GO`
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER
OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF 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 REPRESENTATIONS9 STATEMENTS,
ASSERTIONS
OND T ONN BUT IS RELYING
ASSERTIONS BY
THE SELLER WITH RESPECT TO THE PROPERTY
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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 IRO LDS HARMLESS
A L PROBLEMS
RELEASES SELLER FROM ANY LIABILITY FOR ENV
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 ARISING AS A ORULT OF UNDER NEW LAWS SOF OR CHANGES ES TO
DUCTS
LIABILITY AND STRICT LIABILITY,
EXISTING LAWS ENACTED AFTER CONVEYANCE D
ATE 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 NEGOTIATION TO REFLECT THAT SALL PRICE
BEEN ADJUSTED BY PRIOR 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
EXCLUDED HEREOF*NOTWITHSTANDING
THE FOREGOING, THERE SHALL
INDEMNIFICATION, HOLD HARMLESS AND RELEASE OF SELLER ANY
ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY
WHICH ARE DISCLOSED 'ITHIN ANY REPORT IN THE DELIVERED TO PURCHASER BUT OS
SESSION OF
SELLER WHICH WAS NOT WHICH WAS
REQUIRED TO BE DELIVERED HEREUNDER.
(c) The provisions of Section 5(b) shall be incorporated into the Deed.
(d) The provisions of 5(a) and (b) shall survive closing.
Section 6. Option Period.
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(a) Purchaser shall have a period of time commencing on the Effective Date and
continuing through the date that Seller delivers notice to Purchaser that it will completely vacate
the fire station ("Fire Station") located on the Property ("Notice") and ending at 5:00 p.m. Texas
time on the one hundred eightieth (180th) day after delivery of the Notice ("Option Period")
during which to enter and examine the Property and, at its expense, conduct the Tests (defined
below). Notwithstanding anything to the contrary contained in this Contract, the Option Period
shall be automatically extended to coincide with the end of the Option Period as provided in that
separate Purchase Contract between Seller and Purchaser regarding the West Retail property.
"West Retail Property" is herein defined as the City owned property bounded by Missouri Ave.
to the East, Rosedale to the South, Interstate Highway 35 to the West, and Terrell to the North.
(b) If Purchaser determines at any time prior to the expiration of the Option Period
that the Property is not satisfactory to Purchaser for any reason or no reason, in Purchaser's sole
discretion, then Purchaser may terminate this Contract by delivering written notice of
termination to Seller prior to the end of the Option Period, whereupon this Contract shall
terminate. If Purchaser timely delivers the notice of termination to Seller, this Contract shall
terminate, the Title Company shall return the Earnest Money to Purchaser, and neither party shall
have any further rights, duties or obligations hereunder except with respect to the provisions of
this Contract which expressly survive the termination of the Contract.
(c) If Purchaser does not terminate this Contract prior to the expiration of the Option
Period, then the Earnest Money shall become non-refundable to Purchaser except in the event of
Seller's default in the performancef Seller's obligations
any time thereafterhis upon� request by Sellerntract, and .
Company shall release the Earnest Money toSeller
(d) The provisions of this Section 6 control all other provisions of this Contract.
(e) The parties agree that the Option Period will not be extended upon expiration
without a written amendment signed by both parties.
Section 7. Tests. Purchaser, at Purchaser's sole cost and risk, shall have the right to go on to
the Property, including any improvements thereon, to make inspections, surveys, test borings,
soil analyses, and other tests, studies and surveys, including without limitation, environmental
and engineering tests, borings, analyses, 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. Purchaser shall be solely
ible for all costs of any environmental site assessments Purchaser deems necessary. The
respons
Property will be restored by Purchaser to its original condition at Purchaser' sole expense
following any site work. In the event this transaction does not close for any reason whatsoever,
the Purchaser shall release to Seller any and all independent test studies or tests results obtained
during this inspection period.
Section 8. Closing Contingencies.
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(a) The closing ("Closing") of the sale of the Property by Seller to Purchaser shall
occur through the office of the Title Company in no more thirty (30) days after the satisfaction of
the following contingencies to Closing ("Closing Contingencies ). The Closing Contingencies
are as follows:
(1) Purchaser having obtained all necessary municipal approvals for rezoning of
the Property to Planned Development Special Use - Mixed Use and
Purchaser having rezoned the property to MU-1 PDSU with site plan as per
the Zoning Code (Ordinance No. 13896) as amended by City Council;
(2) Purchaser and Seller having agreed upon the location of a any water, sewer
and drainage easement to be dedicated to Seller, at no cost to Seller, located
on or adjacent to the Property, however Purchaser and Seller agree that the
location(s) of any easement shall not materially impact the proposed
development;
(3) Seller has completely vacated and abandoned the Fire Station;
(4) Purchaser and Seller have executed an Economic Development Agreement
("Economic Development Agreement") for the Evans and Rosedale Project
Area —herein defined as City owned property located with the boundaries as
dale to the South and
follows: Terrell to the north, Evans to the east, Rose
Interstate 35 to the West. In addition, at the time of Closing, Purchaser is in
compliance with the Economic Development Agreement.
(5) The representations and warranties of Seller contained herein shall be true,
correct and accurate in all respects as of the Closing.
(6) Purchaser has received a certificate of closure, or other evidence acceptable
to Purchaser evidencing the final approval by the Texas Commission of
Environmental Quality of the environmental remediation efforts on the
Property.
(b) Purchaser agrees to pursue the approvals and agreements described in the Closing
Contingencies above with reasonable diligence. Seller agrees to cooperate fully with Purchaser
in connection with Purchaser's pursuit of the above approvals.
(c) If any Closing Contingencies are not satisfied to Purchaser's satisfaction so that
Purchaser is prepared to close on or before September 1, 2009, then either Seller or Purchaser
may terminate this Contract, and upon the termination, the Title Company shall deliver to
Purchaser the Earnest Money and any interest earned, and neither party will have any further
rights or obligations hereunder; however, the Closing may be extended if the Closing
Contingencies are not satisfied if agreed to in writing by both parties.
Section 9. Closin .
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(a) At the Closing, all of the following shall occur, all of which are deemed
concurrent conditions:
(1) Seller, at Seller's sole cost and expense, shall deliver or cause to be
delivered to Purchaser the following:
(i) A Special Warranty Deed ("Deed"), fully executed and
acknowledged by Seller, conveying to Purchaser good and indefeasible fee
simple title to the Property subject to existing easements, rights -of -way,
and prescriptive rights, whether of record or not, 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,
including a termination of a billboard lease affecting the West Retail
Property.
(2) Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to
be delivered to Seller through the Title Company federally wired funds or such
other means of funding acceptable to Seller, in an amount equal to the Purchase
Price, adjusted for closing costs and prorations.
(3) The Title Company shall issue to Purchaser, at Seller's sole cost and
expense, an Owner Policy of Title Insurance ("Owner Policy") issued by Title
Company in the amount of the Purchase Price insuring that, after the completion
of the Closing, Purchaser is the owner of indefeasible fee simple title to the
Property, subject only to the Permitted Encumbrances, and the standard printed
exceptions included in a Texas Standard Form Owner Policy of Title Insurance;
provided, however, the printed form survey exception shall be limited to
"shortages in area," the printed form exception for restrictive covenants shall be
deleted except for those restrictive covenants that are Permitted Encumbrances,
there shall be no exception for rights of parties in possession, and the standard
exception for taxes shall read: "Standby Fees and Taxes for [the year of Closing]
and subsequent years, and subsequent assessments for prior years due to change
in land usage or ownership".
(4) The Earnest Money (including any Additional Earnest Money) shall be
applied to the Purchase Price at Closing.
(5) An easement shall be reserved by or conveyed to Seller for any needed
water, sewer or drainage easements as described in Section 8.
(6) Purchaser and Seller shall each pay their normal and customary closing
costs.
(7) Seller and Purchaser shall each pay their respective attorneys' fees and
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(8) Purchaser shall be responsible for all of the escrow and recording fees.
(b) Ad valorem and similar taxes and assessments, if any, relating to the Property
shall be prorated between Seller and Purchaser as of the Closing Date, based on estimates of the
amount of taxes that will be due and payable on the Property during the calendar year in which
the Closing occurs. As soon as the amount of taxes and assessments on the Property for that year
is known, Seller and Purchaser shall readjust the amount of taxes to be paid by each party with
the result that Seller shall pay for any taxes and assessments applicable to the Property up to and
including the date of Closing, and Purchaser shall pay for those taxes and assessments applicable
to the Property after the Closing. The provisions of this Section 9(b) survive the Closing.
(c) Upon completion of the Closing, Seller shall deliver possession of the Property to
Purchaser, free and clear of all tenancies of every kind.
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.
Section 11. Closing Documents. No later than fifteen (15) days prior to the Closing Date,
Seller shall deliver to Purchaser a copy of the Special Warranty Deed, which is subject to
Purchaser's reasonable right of approval.
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 given, (ii) delivered in person at the Closing (if that party is present at the Closing), (iii)
placed in the United States mail, return receipt requested, addressed to such party at the address
specified below, (iv) deposited into the custody of Federal Express Corporation to be sent by
FedEx Overnight Delivery or other reputable overnight carrier for next day delivery, addressed
to the party at the address specified below, or (v) telecopied to the party at the telecopy number
listed below, provided that the transmission is confirmed by telephone on the date of the
transmission.
(b)
(c)
The address of Seller under this Contract is:
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: Economic Development
Telephone: 817-3 92-83 62
The address of Purchaser under this Contract is:
Cypress Equities I, LP
Attn: Russell Shelton
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With a copy to:
Vicki Ganske
City Attorney's Office
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
With a copy to:
Dee S. Finley, Jr.
Harris, Finley &Bogle
15601 Dallas Parkway, Suite 400
Addison, Texas 75001
Telephone: 972-361-5182
777 Main Street, Suite 3600
Fort Worth, Texas 76102
Telephone: 817470-8787
(d) From time to time either party may designate another address or telecopy number
under this Contract by giving the other party advance written notice of the change.
Section 13. Termination Default 111
and Remedies.
(a) If Purchaser fails or refuses to consummate the purchase of the Property pursuant
to this Contract at the Closing for any reason other than termination of this Contract by Purchaser
pursuant to a right so to terminate expressly set forth in this Contract or Seller's failure to
perform Seller's obligations under this Contract, then Seller, as Seller's sole and exclusive
remedy, shall have the right to terminate this Contract by giving written notice thereof to
Purchaser prior to or at the Closing, whereupon neither party hereto shall have any further rights
or obligations hereunder, and Title Company shall deliver the Earnest Money to Seller as
liquidated damages, free of any claims by Purchaser or any other person with respect thereto. It
is agreed that the Earnest Money to which the Seller is entitled hereunder is a reasonable forecast
of just compensation for the harm that would be caused by Purchaser's breach and that the harm
that would be caused by such breach is one that is incapable or very difficult of accurate
estimation, and that the payment of these sums upon such breach shall constitute full satisfaction
of Purchaser's obligations hereunder.
(b)
If Seller fails or refuses to consummate the sale of the Property pursuant to this
Contract at Closing or fails to perform any of Seller's other obligations hereunder either prior to
or at the Closing for any reason other than the termination of this Contract by Seller pursuant to a
right so to terminate expressly set forth in this Contract or Purchaser's failure to perform
Purchaser's obligations under this Contract, then Purchaser shall have the right to terminate this
Contract by giving written notice thereof Purchaser Seller
nad neither reupon the
Earnest Money shall be returned to party aheret shall havet the Closing any ay further
rights or obligations hereunder.
(c) If either Seller or Purchaser becomes entitled to the Earnest Money upon
ant d
cancellation of this Contract in accordance with its terms, Purchaser and Seller covenan
ion to the Title Company directing disbursement of the Earnest
agree to deliver a letter of instruct
Money to the party entitled thereto.
Section 14. Entire Contract. This Contract (including the attached exhibits) contains the
en matter not
entire contract between Seller ins Purchof any forcedno oral and effect.statementsNo modifications are binding on
specifically incorporated here y
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. Purchaser may at any time assign,
transfer or otherwise convey its rights or obligations under this Contract to an Affiliate so long as
the proposed Affiliate assignee first executes a written agreement with Seller under which such
Affiliate assignee agrees in writing to assume all covenants and obligations of Purchaser under
202861vl - 11 -
this Contract. For purposes of this Agreement, "Affiliate" shall mean: (a) all entities,
incorporated or otherwise, under common control with, controlled by or controlling Purchaser;
and (b) all entities, incorporated or otherwise, in which Purchaser and/or its affiliates and The
Carlyle Group and/or its affiliates both own an interest. For purposes of this definition,
"control" means fifty percent (50%) or more of the ownership, determined by either value or
vote. Otherwise, neither Seller nor Purchaser shall assign this Agreement or any of the rights or
responsibilities hereunder without prior written approval of the other and any attempted
assignment without the written consent shall be void. In the event of a permitted assignment,
Purchaser shall be released from all liability and obligations hereunder. This Contract shall be
binding on and inure to the benefit of Seller and Purchaser, and their permitted lawful successors
and assigns.
Section 16. Time for Execution. If Purchaser has not executed and returned a fully
executed copy of this Contract to Seller by 5:00 p.m., Fort Worth, Texas time on July N, 2007,
this Contract shall be null and void. Zo
Section 17. Time of the Essence. Time is of the essence under this Contract.
Section 18. 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 whereupon the Earnest Money shall be returned to
Purchaser, 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 19. Governing Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 20. 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 21. Venue. Venue of any action brought under this Contract shall be in Tarrant
County, Texas if venue is legally proper in that county.
Section 22. 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 23. Business Days. If the Closing date or the day for performance of any act required
under this Contract falls on a Saturday, Sunday, or legal holiday, then the Closing date or the day
for such performance, as the case may be, shall be the next following regular business day.
Section 24. Counterparts. This Contract may be executed in multiple counterparts, each of
which will be deemed an original, but which together will constitute one instrument.
zoas6ivi
-12-
This Contract is executed as of the Effective Date.
^ontractGAuthorizatiou
I
to
SELLER: CITY OF FORT WORTH
By:
P��
Assistant City Manager
Date: Z- 4 Z� va 77
1vlar�y ncuurix
City Secretary
Approved as to Legality and Form
�;e s
Assistant City Attorney
PURCHASER:
Cypress Equities I, LP, a Texas limited partnership
By' Cypress Equities, LLC, a Texas limited lia
company, its General Partn r
By:
Brian Parro
Chief Final � al Officer
Date: -
By its execution below, Title Company acknowledges receipt of the Earnest Money described in
this Contract and agrees to hold and deliver the same and perform its other duties pursuant to the
provisions of this Contract.
TITLE COMPANY:
By:
---
Title:
Date:
2o2s61v1
EXHIBIT "A"
Description of Property
202861v1
REAL PROPERTY DESCRIPTION
OF F V'ANS-ROSEDALE CITY PROPERTIES
Description of urouosed Parcel 3B
A parcel of land, being a portion of Block 1, Evans South Addition, an unrecorded
addition, and being more particularly described as follows;
staped"BB, nails
BEGINNING at a "PK" NAIL found, unless otherwiseh a aluminumasher noted at the �ntBersec't�on of the
found having a washer being so stamped
west right-of-way of Evans Avenue with the south right-of-way of Terrell Street;
South 00 degrees 38 minutes 19 seconds East,
THENCE: with said west right -of way,
400.0 feet, to a "PK" NA1L found for the southeast corner of said parcel;
nutes 33 seconds
THENCE: departing said west right-ofn ae e at its inSouth terseei on withdegrees 19 ithe east right of way
West, 150.84 feet, to a nail found in co
of Missouri Avenue;
THENCE: with said east right -of way, North 00 degrees 40 minutes 03 seconds West,
400.21 feet, to a 5/8" iron rod:found at its intersection with the south right-ofway of
Terrell Street;
'THENCE: departing said east right-of-way and with said south right-ofway, North 89
degrees 23 minutes 42 seconds East,
of land, more51.05 feet, to the or less.
of Beginning and
containing some 60,396 square
Surveyed on the ground from xuly through October of 20Q6.
BFort W�� rintegrated G,P*S6 ou d measurement stwork System, N.A.D. 832
asis of The City of
North Central Texas Zone. Distances g
52656CO3HKHBNM.DOC
ENGINE SKING DMp1p�TMENT
THE CITY OF FORT WORTH * 1000 THROCKMORTUEN STRE£T *FORT WoRTx, TEXAS 76102-6311
(817) 8714925 * FAx (817) 871$845 ^Printed on recycled paper
REAL PROPERTY DESCRIPTION
OF EVANS-ROSEDALE CITY PROPERTIES
_Description of propose(I Parcel 4B
A parcel of land, being a portion of W.J. Boaz 's Subdivision of Block 3 of Evans South
Addition, according to plat thereof recorded in Volume 106, Page 28, of the Plat Records
of Tarrant County, Texas, and being more particularly described as follows;
BEGINNING at a 5/8" iron rod found, at the intersection of the east right -of --way of
Missouri Avenue with the south right -of --way of Pulaski Street;
THENCE: with said east right -of --way, North 00 degrees 37 minutes 16 seconds West;
100.0 feet, to a 5/8" iron rod set for the northwest corner of said Parcel;
THENCE: darting said east right -of --way, North 89 degrees 20 minutes 59 seconds
ep
East, 50.0 feet, to a 5/8" iron rod set for the northeast corner of said Parcel, and being in
the west right-of-way of the included alley within said Block;
THENCE: with said west right -of --way, South 00 degrees 36 minutes 30 seconds East,
100.0 feet, to a 5/8" iron rod found at its intersection with the north right -of --way of
Pulaski Street;
THENCE: with said north right -of --way, South 89 degrees 21 minutes 42 seconds West,
50.0 feet, to the place of Beginning and containing some 5,000 square £eet of land, more
or less.
Surveyed on the ground from July through October of 2006.
Basis of Bearings: The City of Fort Worth Integrated G.P.S. Network System, N.A.D. 83,
North Central Texas Zone. Distances are ground measurements.
52656E(}3HKJ-I.BNM.DOC
ENGINEERING DEPARTMENT f/
SURVEY DIVISION
THE CITY OF FORT WORTH * 1000 I HROCKMORTON STREET *FORT WORTH, TEXAS 7s1O2-8311
(817) 871m7925 * FAx (817) 871-8845
Printed on recycled paper
REAL PROPERTY DESCRIPTION
OF EVANS-ROSEDALE CITY pROPEItTIES
Deseri tion M ro ed Pareel 4D
A arcel of land, being a portion of Block 5, Evans South Addition, an unrecorded
p
addition, and being more particularly described as follows;
BEGINNING. at a 5/8" iron rod found at the intersection of the east right -off way of
Missouri Avenue with the south right-of-way of Verbena Street;
of --way, North 89 degrees 20 minutes 41 seconds East,
THENCE: with said south right-
40.0 feet, to a 5/8" iron rod found;
THENCE: South 00.degrees 39 minutes 20 seconds East, I00.0 feet, to a 5/8" iron rod
sat;
enueds East, 120.0 feet, to a gear spike
THENCE: North 89 degrees 20 minutes 41
found, in the west rigWof-way of Evans Av
THENCE: with said west right -of --way, South 40 degr the north right -of --way of East
90.38 feet, to a "PIC' nail found, at its intersection w
Rosedale Street;
THENCE: with said north right -of --way, North 89 degrees 50 minutes 25 seconds West,
3.59 feet, to a "PK" nail found at the beginning of a curve to the right having a radius of
767.75 feet;
rthwesterlY with said curve to
THENCE: continuing with said north rightrees 4 yminutes 06 seconds, an arc distance of
the right, through a central angle of I degrees 45
I57.47 feet, to a "PK' nail found at its intersection with said east right -of way;
ri
THENCE: with said east ght-of--way, North 00 degrees 39 minutes I7 seconds West,
164.68 feet, to the Place of Beginning and containing some 16,052 square feet of land,
more or less..
_-
(81� 871-7925 * Fnx (817} 871$845
+�,j Printed on recycled paper
Surveyed on the ground from July through October o£2006.
$asis of Bearings: The City of Fort Worth Integrated G.P.S. Network System, N.A.D. 83,
North Central Texas Zone. Distances are ground measurements.
g2656Gp3HKHBNM.DOC
xrF
REAL PROPERTY DESCRIPTION
OF EVANS-ROSEDALE CITY PROPERTIES
Descriution of proposed Parcel 5
A parcel of land, being a portion of W. J. Boaz's Subdivision of Block 3, Evans South
Addition, according to plat thereof recorded in Volume 106, Page 28, of the Plat Records
of Tarrant County, Texas, and a portion of the included alley within said Block as
vacated by City of Fort Worth ordinance #8174 and being more particularly described as
follows;
BEGi]'��N1NG at a 5/8" iron rod set in the west right -of way of Evans Avenue and being
the southeast corner of said Parcel from which a "PK" NAIL, found at its intersection
with the north right -of way of Pulaski Street bears South 00 degrees 39 minutes 01
seconds East, 99.94 feet,
THENCE: departing said west right -of --way, South 89 degrees 20 minutes 59 seconds
West, 165.0 feet, to a 5/8" iron rod set at its intersection with the east right-of-way or
Missouri Avenue and being the southwest corner of said Parcel;
THENCE: with said east right-ofway, North 00 degrees 37 minutes 16 seconds Wesi,
50.94 feet, to a 5/8" iron rod set;
THENCE: North 89 degrees 22 minutes 44 seconds East,17.Ofeet, to a SI$" iron rod set;
THENCE: North 00 degrees 37 minutes 16 seconds West, 59.07 feet, to a 5/8" iron rod
set for the northwest corner of said Parcel;
THENCE: departing said east right-ofway, North.89 degrees 19 minutes 33 seconds
East, 147.97 feet, to a 5/8" iron rod set in west right -of way of Evans Avenue for the
northeast corner of said Parcel;
THENCE: with said west right -of --way. South 00 degrees 39 minutes 01 seconds East,
110.Q7 feet to the Place o£Beginning and containing some 17,151 square feet of land,
more or less;
Surveyed on the ground from July through October of 2006.
Basis of Bearings: The City of Fort Worth Integrated G.P.S. Network
North Central Texas done. Distances are ground measurements.
52656H03HIKHBNM.DOC
ENGINEERING DEPARTMENT
SURVEY DMSiON
THE CITY OF FORT WORTH * IOOO THROCICMORTON STREET' * FORT WORTH, Texas 76102-6311
(817) 871-7925 *Fax (817) 871-8845
Printed on recycled paper
Page I of 3
City of Fort worth, Texas
DATE: Tuesday, June 05, 2007
LOG NAME: 17EVANSROSEPUR
SUBJECT:
Authorize the Sale of City Owned Property Located in
Cypress Equities, L.P., in accordance with Chapter 272
Adopt Attached Appropriation Ordinances
RECOMMENDATION:
It is recommended that the City Council.
1. Authorize the City Manager to execute two option
and Rosedale Project Area to Cypress Equities, L.P
Government Code;
REFERENCE NO.: L-14331
the
Evans and Rosedale Project Area to
of the Texas Local Government Code and
agreements to sell City owned property in the Evans
in accordance with Chapter 272 of the Texas Local
2. Authorize the City Manager to execute appropriate deeds conveying the property to Cypress Equities,
L.P. if the terms of the option agreements are satisfied;
3. Authorize the use of $1,064,100.00 in Community Development Block Grant (CDBG) Program Income
from the proceeds of the land sale;
4. Adopt the attached appropriation ordinance increasing the estimated receipts and appropriation of the
Revolving Loan Fund by $1,064,100.00 from available funds;
5. Authorize the transfer of $1,064,100.00 from the Revolving Loan Fund to the Grants Fund; and
6. Adopt the attached appropriation ordinance increasing the estimated receipts and appropriations in the
Grants Fund for program income of $1,064,100.00.
DISCUSSION:
The City owns approximately 8 acres located in the Evans and Rosedale Project Area. The Evans and
Rosedale Project boundaries are as follows: Lueda Street to the North, Evans Avenue to the East,
Rosedale to the South and Interstate 35W to the West.
Earlier this year the City Council approved the selection of Cypress Equities L.P. ("Cypress") as the Master
Developer of the Project. As part of the development of the Evans and Rosedale Area, Cypress has
requested that the City relocate the fire station located on Evans Avenue. In order to begin the
development as soon as possible, staff is recommending that the City enter into two separate option
agreements for the property. The first option agreement would be for the City owned property south of
Terrell Street and West of Missouri. The second option agreement would be for the City owned property
south of Terrell and west of Evans Avenue. A map showing the two phases is attached. The purchase
price was determined by an independent appraisal.
The terms of the Option Agreements are as follows:
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 7/24/2007
Page 2 of 3
Option I- West Retail
Purchase Price $730,700
Approximate Size — 194,776 square feet
Option Period — 6 months
- City Retains Mineral Interest
- "As Is"
Closing Contingencies:
PDSU with site plan
- Necessary easements granted to City at no cost
Bill Board Relocated
Certificate of Closure from TCEQ on property
Executed Economic Development Agreement
Option II- Evans Avenue
Purchase Price - $333,400
Approximate Size- 94,822 square feet
Option Period- 6 months from notice the Fire Station is moving.
City Retains Mineral Interest
"As Is"
- Closing Contingencies:
PDSU with site plan
Easements granted to City at no cost
City relocation of fire station
Satisfactory performance of Economic Development Agreement
The City purchased the property with Community Development Block Grant (CDBG) funds
U.S. Department of Housing and Urban Department (HUD). The proceeds from the sale,
with federal regulations, must be returned to the City in the form of CDBG program income.
provided by the
in accordance
The City published notice of its intent to sell the properties in the official newspaper as required under the
City Charter on May 11th, May 18th, May 25th and June 1st.
The Evans and Rosedale Project Area is in COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director ceres that upon approval of the above recommendations, adoption of the attached
appropriation ordinance and receipt of proceeds, funds will be available in the current operating budget, as
appropriated, of the Grant Fund.
TO Fund/Account/Centers
FROM Fund/AccountlCenters
Submitted for City Manager's Office by: Dale Fisseler (6140)
Originating Department Head: Tom Higgins (6192)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 7/24/2007
Page 3 of 3
Additional Information Contact:
Jay Chapa (5804)
http://www.cfwnet.org/council�acket/Reports/mc�rint.asp 7/24/2007