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EARLY ACCESS AGREEMENT
This Early Access Agreement (this "Agreement") is entered into as of February 24, 2010,
by and between the CITY OF FORT WORTH, TEXAS, acting by and through its duly authorized
City Manager or Assistant City Manager ("Licensee"), and BLUE VALLEY APARTMENTS, INC., a
Florida corporation ("Licensor "),with reference to the following facts:
RECITALS:
A. Licensee is a prospective purchaser of improved real property owned by Licensor
located in the City of Fort Worth, Tarrant County, Texas, and being more particularly described
in Exhibit "A" attached hereto and incorporated herein for all purposes, locally known as
Granbury Hills Apartments (A/K/A Cherry Hills Apartments), with a street address of 5250
Wonder Drive, Fort Worth, Texas 76133 (the "Pro e "), pursuant to the terms of a contract of
sale, to be negotiated between the parties (the "Contract"),
B. Pending execution and delivery of the Contract, Licensor has agreed to permit
Licensee access (the "License") to the Property upon reasonable prior notice to Licensor, in order
to conduct a due diligence investigation of the Property and to perform inspections and tests of
the Property, including without limitation, surveys, environmental tests, borings, soil analysis,
and other studies within the Property (the "License Purpose").
C. Licensee and Licensor wish to confirm the terms and conditions upon which
Licensee may have access to the Property prior to execution and delivery of the Contract.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Licensor and Licensee hereby agree as follows:
1. GRANT OF ACCESS RIGHTS. Commencing from the date of this Agreement
and continuing through and including date this Agreement terminates in accordance with the
provisions of Paragraph 3 below, Licensee and its agents, contractors, engineers, surveyors and
representatives (collectively, "Consultants") shall have the right to enter the Property for the
License Purpose, provided Licensee has given Licensor reasonable prior notice in each instance.
Licensor and its agents and representatives shall reasonably cooperate with Licensee and its
Consultants in connection with any test or inspection. Notwithstanding the foregoing, if
Licensee wishes to engage in a Phase II environmental study or other testing or sampling of any
kind with respect to soils or groundwater or other studies which would require test boring of or
other intrusions into the Property or which testing would otherwise damage or disturb any
portion of the Property, Licensee shall obtain Licensors prior written consent thereto, which
consent may be withheld in Licensor's sole discretion. If Licensor approves any such testing,
Licensee shall be responsible for, and shall dispose of, all such test samples in accordance with
applicable law at no cost or liability to Licensor.
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In using the License, Licensee shall not interfere unreasonably with Licensor or
Licensor's agents or tenants. Licensee shall bear the cost of all inspections or tests related to
Licensee's use of the Property. Licensee shall promptly dispose of and/or decontaminate all
rubbish and debris caused by or otherwise associated with such work. Licensee shall not have
any liability for the remediation of any hazardous or toxic material, substance, chemical or
waste, contaminant, emission or pollutant as defined by applicable laws, nor petroleum or
petroleum products or waste which existed on, in or above such property immediately prior to
the Licensee's use. Notwithstanding the above, Licensee acknowledges the findings of the Draft
Phase I Environmental Site Assessment prepared by Enercon Services, Inc. for Ross Heath of
Fannie Mae dated 12/28/2009, Enercon Project No. FANMAE062, and in the event Licensee
becomes the owner of the Property, Licensee shall waive and release any claims against Licensor
for remediation of said findings. The Property shall be restored by Licensee to its condition
immediately prior to Licensee's use at Licensee's sole expense following any site work.
Licensee shall keep the Property free and clear of any liens arising from its access to the
Property, which obligation shall survive the termination of this Agreement.
2. TERMINATION. This Agreement and the License shall terminate upon written
notice of termination given by Licensor for any reason whatsoever, at which time Licensee's
rights of access granted hereunder shall immediately cease and Licensee shall vacate the
Property. This Agreement may also be terminated by Licensee at any time upon written notice
to Licensor surrendering the License.
This Agreement and the License shall terminate automatically if negotiations regarding
the Contract between Licensor and Licensee are terminated or upon the execution of the
Contract, which shall supercede this Agreement.
3. INSURANCE. Prior to the initial entry upon the Property by Licensee or its
Consultants, Licensee or its Consultants (as applicable) shall maintain, and shall have provided
to Licensor evidence of commercial general liability insurance against any loss, liability or
damage on, about or relating to the Property, by a company, and in form, coverages and
amounts, reasonably satisfactory to Licensor, naming Licensor, and any other person or entity
designated by Licensor, as an additional insured. All insurance shall provide that it shall not be
canceled or changed without prior written notice to Licensor. Notwithstanding the foregoing
provisions of this Section 3, Licensee may enter upon and visually inspect the Property without
such insurance, provided that such entry and visual inspection shall be subject to all other
applicable provisions of this Agreement other than such insurance requirements. Further,
Licensor acknowledges that (i) Licensee is basically a self4unded entity subject to statutory tort
laws; (ii) Licensee does not maintain a commercial policy of general liability insurance and/or
auto liability insurance; and (iii) damage for which Licensee would ultimately be found liable
would be paid directly by Lessee and not by a commercial insurance company.
4. NOTICE. Any notice required to be given under this Agreement may be
personally delivered to a party, or may be sent by overnight courier service (e.g., Federal
Express), or by facsimile transmission with a confirming copy sent by overnight courier service,
to either party addressed as follows, and shall be deemed received when delivered or when
delivery is refused:
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To Licensee: City of Fort Worth
1000 Throckrnorton Street
Fort Worth, Texas 76102
Attention: Stephanie Givens
Telephone: 817-39M873
Facsimile No.: 817-392-8361
To Licensor: Blue Valley Apartments, Inc.
c/o Ocwen Loan Servicing, LLC
1661 Worthington Road, Suite 100
West Palm Beach, Florida 33409
Telephone No.: (561) 682-8275
Facsimile No.: (561) 6824161
Email Address: William.Stolberg@ocwen.com
With a copy to: Jackson Walker, LLP
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Attention: Todd Reed
Telephone No.: (512) 236-2386
Facsimile No.: (512) 3 91-213 8
Email Address: treed@jw.com
5. EFFECT OF AGREEMENT. This Agreement does not constitute a commitment
or promise by Licensor to sell the Property to Licensee, and no legal obligation of any kind
whatsoever shall be deemed to exist, except as to the matters specifically agreed to herein.
6. GOVERNING JURISDICTION
accordance with the laws of the State of Texas.
This Agreement shall be construed under and in
7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts which together shall constitute the agreement of the parties. Each counterpart may
be delivered by electronic transmission.
8. WAIVERS. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any
other covenant or provision herein contained. No extension of time for performance of any
obligation or act shall be deemed an extension of the time for performance of any other
obligation or act.
9. CONFIDENTIALITY. Licensee represents and warrants that it shall, to the
fullest extent permitted by applicable law, keep all information and/or reports obtained from
Licensor, or related to or connected with the Property, the Licensor, or this transaction,
confidential and, except as otherwise required by applicable law, will not disclose any such
information to any person or entity without obtaining the prior written consent of Licensor,
which consent shall not be unreasonably withheld, conditioned or delayed; provided, however,
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5735427v.1
that in the event Licensee shall be obligated by applicable law or order (including by oral
questions, interrogatories, requests for information or documents, subpoena, civil investigative
demand or similar process) to disclose any information supplied to them pursuant to this
Agreement, Licensee shall provide Licensor with prompt notice of such request(s) so that
Licensor may seek an appropriate protective order and/or waive compliance with the provisions
A this Agreement. Licensee agrees to cooperate with Licensor, at Licensor's expense in
obtaining such a protective order.
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5735427v.1
IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement as of
the date first written above.
LICENSEE:
CITY OF FORT WORTH,
a Home -Rule Municipality duly organized and
operating under the Constitution and laws of the
State of Texas
Name:
Title:
ATTEST:
By:
Narlx,
Title: City Secretary
APPROVED AS TO LEGALITYAND FORM:
Name: �c�e✓' 1/a ky �_
Title: Assistant City Attorney
LICENSOR:
BLUE VALLEY APARTMENTS, INC.,
a Florida corporation
Name
Title:
�F�"�rn,i RECORD
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5735427v.1
IN WIINGSS WFIEREUF, LICenNee and Licensor have executed this Agreemcnl as of
the date first written above
LfCENSEr:
C111 orlbttt ti�'outlt,
n home -Rule Municipality duly organized and
operating roofer the Constitution and laws of the
Slate of Texas
Name:
Title:
I 'l'I"1rST:
By:
Name:
Title: City Secretary
:1 PPR01'LD ,-15 TC> LLiG:II. 11�':lrV/J FORi1•/;
n,-•
Name:
Title: Assistant City Attomey
I_ICLiN5Ult:
]I31. ttt: N',U [. lit' : V'�Vil 111t?N I ti, INC..
a Flrn-icfa corporation
3733.12T� 1
OFFlClAL RECORD
CITY SECRETARY
FT. WORTH, TX