HomeMy WebLinkAboutContract 43531 (2)CITY sECRkTARY CONTRACT NO. L-{ �C�
OPTION AGREEMENT
1701 & 1707 Bryan Ave, Fort Worth, TX 76110
THIS OPTION AGREEMENT (this "Agreement") is entered into as of the Effective
Date (defined in Section 15 below) by and between the City of Fort Worth ("Seller"), and BNSF
RAILWAY COMPANY, a Delaware corporation ("Purchaser").
In consideration of the mutual covenants set forth in this Agreement and for other
valuable consideration, which the parties acknowledge receiving, Seller and Purchaser agree as
follows:
Section 1. Option.
(a) In exchange for the sum of $500.00 (the "Option Fee"), to be paid to Seller
contemporaneously with the mutual execution and delivery of this Agreement as consideration
by Purchaser for such option, Seller hereby grants to Purchaser the option (the "Option") to
purchase the Property (defined below). The Option Fee will be non-refundable to Purchaser
immediately upon delivery thereof to Seller, but will be applicable to the Purchase Price (defined
below) if the Option is exercised pursuant to this Agreement.
(b) As used in this Agreement, "Option Period" means the period beginning on the
Effective Date and ending at 6:00 p.m. Central Time, on December 31, 2012. Purchaser may, at
Purchaser's sole discretion, extend the Option Period up to 2 time(s) for 30 days each by
providing Seller written notification on or before the expiration date of the Option Period, as it
may be extended, provided, however, that if the Option Period is extended and a New Appraisal
(as defined below) shows a change in value of the Property, the Purchase Price (defined below)
may be adjusted accordingly to reflect the fair market value of the Property as set forth in the
New Appraisal, but the Purchase Price payable under this Agreement shall in no event be less
than the amount set forth in Section 5(a) below. As used in this Agreement, "New Appraisal"
mean an appraisal ordered by Purchaser, at Purchaser's sole expense, prepared by the same
appraiser, and using the same methodology, as the appraisal obtained by Purchaser prior to the
Effective Date that served as the basis for determining the Purchase Price set forth in Section
5(a).
(c) In order to exercise the Option, Purchaser must send to Seller written notice of
such exercise (the "Option Exercise Notice"). The Option Exercise Notice will be effective only
if received (or deemed received) by Seller during the Option Period in accordance with the
notice provisions set forth below. The Option will lapse if not exercised during the Option
Period, as it may be extended, in accordance with the terms of this Agreement. If the Option
lapses, neither party will have any further rights or obligations under this Agreement except for
rights or obligations, if any, that expressly survive termination of this Agreement.
Section 2. Option Period Due Diligence.
(a) At the commencement of the Option Period, Seller will deliver to Purchaser
copies of all Plans and Studies (defined below).
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(b) During the Option Period, Seller will permit Purchaser and its contractors and
agents to enter the Property to inspect and test the Property (including systems and structural
inspections, soil borings, and environmental tests) as Purchaser deems necessary or desirable.
Seller will cooperate with Purchaser in arranging the inspections and tests. Purchaser must repair
any damages to the Property resulting from any inspection or testing conducted by it or at its
direction, and will hold Seller harmless from any and all activities of Purchaser, its agents or
contractors for such inspections or testing.
Section 3. Title Commitment and Survey.
(a) During the Option Period, Purchaser will obtain, at its own expense, the
following*
(1) A TLTA Owner's Commitment for Title Insurance (the "Title
Commitment") from North American Title Company (` Title Company") The Title
Commitment will set forth the status of title to the Property and will show all
Encumbrances (defined below) and other matters, if any, relating to the Property.
(2) Legible copies of all documents referred to in the Title Commitment,
including but not limited to lien instruments, plats, reservations restrictions, and
easements.
(3) Copies of the tax statements covering the Property.
(b) Purchaser has obtained, or during the Option Period will obtain, at its own
expense, a survey (the "Survey") consisting of a plat and to the extent available, field notes
describing the Property. The Survey must be a current on -the -ground, staked survey performed
by a registered public surveyor or engineer satisfactory to Purchaser and Title Company. The
Survey must comply with the standards of an ALTA survey and must (i) reflect the actual
dimensions of the Land (defined below) and the number of gross square feet and net square feet
contained in it; (ii) identify any rights -of -way easements, or other Encumbrances by applicable
recording reference and (iii) include the surveyor's registered number and seal, the date of the
Survey, and a narrative certificate acceptable to Purchaser in favor of Purchaser, Title Company
and, if applicable, Purchaser's lender. Subject to the provisions of Sections 3(c) and 3(d) below,
the description of the Land shown on the Survey shall be used in all transaction documents
requiring a legal description of the Land, and Purchaser, provided that such description of the
Land is in substantial conformity with Seller's vesting deed, in Seller's sole but reasonable
discretion.
(c) Purchaser must give Seller written notice of any objections (the "Objections") to
the Title Commitment or the Survey (including, but not limited, to the legal description) within
15 business days after the later to occur of (1) the Effective Date and (2) the date on which
Purchaser receives the last of (i) the Title Commitment, (ii) the Survey and (iii) all legible copies
of documents referred to in the Title Commitment and the Survey. If the Option is exercised by
Purchaser, at the Closing (defined below) Seller will provide releases for any liens that
encumber the Property in favor of, or with the permission of, Seller; provided, however, that if
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any such liens also encumber other property owned by Seller, Seller will not be required to
obtain releases as to such other property so long as Seller appropriately subdivides such other
property from the Property.
(d) If Purchaser gives notice of the Objections, then Seller may (i) cure the
Objections; (ii) cause the Title Commitment and the Survey to be amended to reflect cured
matteis and (iii) give Purchaser a written response concerning the Objections within 5 business
days after receiving the notice from Purchaser. If Seller does not respond as described, and if
Purchaser has exercised the Option, then Purchaser is entitled either:
(1) To terminate this Agreement by written notice to Seller and Title Company
(i) at any time within 10 business days after receipt of written notice from Seller stating
that Seller will not or cannot cure the Objections or (ii) at any time within 10 business
days after the time in which Seller was obligated to respond to Purchaser's Objections,
but did not respond. Upon termination, Purchaser will be entitled to the return of the
Earnest Money (defined below), and neither party will have any further rights or
obligations under this Agreement except for rights or obligations, if any, that expressly
survive termination of this Agreement; or
(2) To waive the Objections that Seller will not or cannot cure and consummate
the purchase of the Property subject to those Objections, which will be deemed to be
Permitted Encumbrances (defined below).
Notwithstanding the foregoing Sections, 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 its sole discretion may extend the Closing Date for an amount of time Purchaser
deems necessary for Seller to cure the Objections.
In the event the Title Commitment and/or Survey are revised after Purchaser's initial receipt of
the same so as to include any additional exemptions or Encumbrances not shown on the initial
Title Commitment and Survey ("New Encumbrances"), the provisions above shall be applicable
to any such New Encumbrance, and Purchaser shall have the right to deliver Objections with
respect thereto in the same manner as Objections to the initial Title Commitment and Survey
except that (i) the period for Objections with respect to any such New Encumbrance shall
terminate 10 days after Purchaser s receipt of the revised Title Commitment or Survey which
first refers to or discloses such New Encumbrance and (ii) the Seller's cure period with respect to
such New Encumbrance shall terminate 5 days after Seller's receipt of Purchaser's Objections
with respect thereto.
Notwithstanding anything contained in this Section 3(d), if Purchaser gives notice of any
Objections during the Option Period (that is, prior to exercising the Option), Seller will not be
required to incur any expense to cure such Objections unless, and until after, Purchaser exercises
the Option, so long as Seller (i) notifies Purchaser in writing, within 5 business days after receipt
of Purchaser's notice of Objections, that Seller is willing to cure such Objections before the
Closing Date and (ii) actually cures such Objections before the Closing Date.
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Section 4. Sale and Purchase After Option is Exercised.
(a) Subject to the terms and conditions set forth in this Agreement, if (and only if)
Purchaser exercises the Option by delivery of the Option Exercise Notice, Seller agrees to sell
and convey to Purchaser (or its designee), and Purchaser (or its designee) agrees to purchase and
accept from Seller, for the Purchase Price (defined below):
(1) That certain tract of land (the "Land ') in Tarrant County, Texas commonly
known as 1701 & 1707 Bryan Ave, Fort Worth, TX 76110 consisting of approximately
(0.110) acres in Tarrant County, Texas, more particularly described in the attached
Exhibit A, and to be more particularly described as provided in Section 3 above, together
with all strips and gores, easements, rights -of -way, licenses, interests, rights, and
appurtenances appertaining to the Land, if any.
(2) All rights, titles, and interests of Seller in and to any easements, rights -of -
way, or other interests in, on, or to any alley, highway, or street in, on, across or adjoining
the Land.
(3) All site plans, surveys, soil and substrata studies, environmental
assessments, plans and specifications, engineering plans and studies, landscape plans, and
other plans, studies or reports of any kind in Seller's or its contractors' or agents'
possession that relate to the Property (the "Plans and Studies").
(4) Any and all other rights, titles, interests, privileges, and appurtenances
owned by Seller and in any way related to, or used in connection with, the ownership of
the Land; provided that Purchaser desires to receive assignment of the same.
(b) The above listed items are collectively called the "Property." If Purchaser
exercises its Option pursuant to the terms set forth in this Agreement, the Property will be
conveyed, assigned, and transferred to Purchaser (or its designee) at the Closing (defined below)
free and clear of all liens, claims, easements, covenants, conditions, tights -of -way, reservations,
restrictions, encroachments, tenancies, mineral interests, royalty interests, oil, gas or mineral
leases, and any other type of encumbrance (collectively, the "Encumbrances"), except the
Encumbrances appearing in the Title Commitment that either are not objected to, or, if objected
to, are not cured and that are subsequently waived in accordance with Section 3 above (the
`Permitted Encumbrances").
Section 5. Purchase Price and Earnest Money.
(a) The purchase price (the "Purchase Price") for the Property is Twenty Three
Thousand Ninety Eight Dollars ($23,098.00).
(b) The Purchase Price is payable in cash at the Closing (defined below).
(c) Within 3 business days after Purchaser delivers the Option Exercise Notice,
Purchaser shall deliver to Title Company (defined below) ($500.00) (the "Earnest Money"),
either by wire transfer or by a certified or cashier's check payable to the order of Title Company.
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The Earnest Money will be held in escrow in an interest -bearing account in a financial institution
acceptable to Purchaser accruing to the benefit of the party entitled to the Earnest Money under
this Agreement. If the contemplated transaction is consummated in accordance with this
Agreement, the Earnest Money (and all accrued interest) and the Option Fee will be applied to
the Purchase Price at the Closing. If the transaction is not so consummated, the Earnest Money
(and all accrued interest) will be held and delivered by the Title Company as provided below.
Section 6. Governmental Approvals. Variances and Permits. If Purchaser
exercises the Option, Purchaser may thereafter apply with the appropriate governmental
authorities to obtain necessary governmental approvals, variances, or permits for Purchaser's
contemplated use. Seller will cooperate with Purchaser's efforts to obtain these approvals.
Section 7. Termination, Default and Remedies.
(a) Purchaser will be in default under this Agreement if (i) after delivering the Option
Exercise Notice pursuant to Section 1 above, Purchaser fails or refuses to purchase the Property
at the Closing, or (ii) Purchaser fails to perform any of its other obligations either before or at the
Closing and such failure is not cured within 5 business days after written notice of default from
Seller. Notwithstanding anything contained in this Agreement, Purchaser will not be in default if
it elects to not exercise the Option, if it terminates this Agreement when it has an express right to
terminate, or when Seller fails to perform its obligations under this Agreement. If Purchaser is in
default, then Seller, as its sole and exclusive remedy, is entitled to terminate this Agreement by
giving written notice to Purchaser ("Seller's Termination Notice') before or at the Closing.
Following delivery of Seller's Termination Notice, neither party will have any further rights or
obligations under this Agreement except for rights or obligations, if any, that expressly survive
termination of this Agreement. If Purchaser's default (and Seller's rightful delivery of Seller's
Termination Notice) occurs after Purchaser has deposited the Earnest Money in escrow pursuant
to Section 5(c) above, Title Company will then deliver the Earnest Money to Seller as liquidated
damages, free of any claims by any person, including Purchaser. The Earnest Money to which
Seller may be entitled is the parties' reasonable forecast of just compensation for the harm that
Purchaser's breach would cause, which is otherwise impossible or very difficult to estimate
accurately.
(b) Seller will be in default under this Agreement if (i) after Purchaser has exercised
the Option, Seller fails or refuses to sell the Property at the Closing, 01 (ii) it fails to perform any
of its other obligations either before or at the Closing and such failure is not cured within 5
business days after written notice from Buyer. Seller will not be in default, however if it
terminates this Agreement when it has an express right to terminate or when Purchaser fails to
perform its obligations under this Agreement, and such failure is not cured within the cure period
described above. If Seller is in default, then Purchaser is entitled to terminate this Agreement by
giving written notice to Seller before or at the Closing, whereupon neither party will have any
further rights or obligations under this Agreement (except for rights or obligations, if any, that
expressly survive termination of this Agreement), and Title Company will then return the Earnest
Money to Purchaser, free of any claims of any person including Seller Nothing herein shall
limit any remedy at law, in equity or otherwise that Purchaser may have against Seller in the
event of a breach by Seller of (i) any warranty of Seller set forth herein that is first discovered by
Purchaser after the Closing, or (ii) an obligation to be performed by Seller after Closing.
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(c) If either Seller or Purchaser becomes entitled to the Earnest Money upon
termination of this Agreement, Purchaser and Seller shall deliver an instruction letter to Title
Company directing disbursement of the Earnest Money to the entitled party. If either party fails
or refuses to sign or deliver such an instruction letter, the refusing party shall pay all reasonable
attorneys' fees and court costs incurred by the party so entitled to the Earnest Money.
Section 8. Closing.
(a) If Purchaser exercises the Option, the closing (the "Closing") of the sale of the
Property by Seller to Purchaser will occur in the Title Company's office on or before March 31,
2013 (the "Closing Date' ). Purchaser may, at Purchaser's sole discretion, extend the Closing
Date up to 2 time(s) for 30 days each by providing Seller written notification on or before the
then -scheduled Closing Date.
(b) At the Closing, all of the following must occur, all of which are concurrent
conditions:
(1) Seller, at its expense, shall deliver or cause to be delivered to Purchaser the
following*
(i) A Special Warranty Deed in the form attached hereto as Exhibit B
and incorporated herein by reference.
(iii) Evidence satisfactory to Purchaser and Title Company that the
person executing the Closing documents on behalf of Seller has full right power,
and authority to do so.
(iv) Seller's affidavit setting forth its U.S. Taxpayer Identification
Number, its office address, and its statement that it is not a "foreign person" as
defined in Internal Revenue Code § 1445, as amended.
(v) The original of each statement for current real estate and personal
property taxes that Seller possesses, if any, together with proof of payment of
taxes, if applicable
(vi) Any other document or instrument that may be necessary or
reasonably required by Purchaser or Title Company to consummate the
transaction.
(2) Purchaser, at its expense, shall deliver or cause to be delivered to Seller
the following:
(i) Immediately available funds via wire transfer in an amount equal
to the Purchase Price less the Earnest Money and all accrued interest thereon.
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(ii) Evidence reasonably satisfactory to Seller and Title Company that
the person executing the Closing documents on behalf of Purchaser has full right,
power, and authority to do so.
(3) Seller and Purchaser shall each pay their respective attorneys' fees, and
Purchaser shall pay all escrow and recording fees.
(4) Purchaser shall pay the premium for a TLTA Owner's Policy of Title
Insurance with all endorsements required by Purchaser ("Owner Policy") issued by Title
Company to Purchaser for the Purchase Price insuring that, upon Closing, Purchaser is
the owner of good and indefeasible fee simple title to the Property subject only to the
Peimitted Encumbrances, and to the lien of current, non -delinquent real property taxes
and assessments for the year in which the Closing occurs.
(c) Seller is a tax exempt municipality and, as such, is not be liable for payment of
any ad valorem and similar taxes and assessments relating to the Property. There are no such
taxes and assessments due or payable with respect to the Property for the period prior to the
Closing Date. Purchasei will be responsible for those taxes and assessments applicable to the
Property on and after the Closing Date.
(d) Any taxes levied as a result of a change in land usage or ownership by virtue of
the Property having received any agricultural, open -space or other special use valuation (such
taxes being referred to herein as "Roll -Back Taxes") shall be Purchaser's responsibility.
(e) All utility charges, if any, and the charges under any service contracts or
insurance premiums that Purchaser elects to assume, if any, will be prorated between the parties
as of the Closing Date.
(f) Upon completion of the Closing, Seller shall deliver to Purchaser possession of
the Property free and clear of all tenancies and parties in possession.
(g) The provisions of Sections 8(c) and (d) above shall survive the Closing.
Section 9. Seller's Covenants, Representations and Warranties.
(a) Seller covenants and agrees with Purchaser that:
(1) At all times before the Closing, Seller shall maintain in force property and
liability insurance with respect to damage or injury to person or property occurring on the
Property if and to the extent consistent with Seller's regular practice with respect to real
property owned by Seller (which may be provided by Seller's self-insurance program).
(2) At all times before the Closing, Seller shall maintain the Property in as
good a condition and repair as exists on the Effective Date, except for normal wear and
tear. Seller shall advise Purchaser of any significant repair or improvement it makes to
keep the Property in such condition.
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(3) Before the Closing, Seller may not create -- or voluntarily permit to be
created -- any liens, easements or other conditions affecting all or part of the Property
without Purchaser's prior written consent, which Purchaser may withhold in its sole
discretion.
(b) Seller represents and warrants to Purchaser that:
(1) Seller is a duly organized municipal corporation of the State of Texas.
(2) Seller has all requisite power and authority to own the Property, enter into
this Agreement, and consummate the transaction contemplated in this Agreement Seller
has duly authorized the execution and delivery of this Agreement such that all documents
to be executed by Seller are its valid legally binding obligations and are enforceable
against it in accordance with their terms.
(3) The persons executing this Agreement and any and all documents on
behalf of Seller have the legal power, right, and actual authority to bind Seller.
(4) Seller has the full right to sell the Property in accordance with this
Agreement.
(5) Seller has no notice, and, to the best of Seller's knowledge, there are no
actions, suits, or proceedings pending, threatened or asserted against Seller or the
Property, before or by any federal, state, municipal, or other governmental department,
court, commission, board, bureau, agency, or instrumentality, that would impair Seller's
ability to perform its obligations under this Agreement.
(6) Seller has no notice, and, to the best of Seller's knowledge, there are no
pending or threatened condemnation actions, special assessments or increases in assessed
valuation with respect to the Property.
(7) Seller has not received any notice that, and, to the best of its knowledge,
there are no, ordinances, regulations, laws, or statutes of any governmental agency
pertaining to the Property which the Property violates
(8) At the Closing, there will be no unpaid bills or claims in connection with
any work performed or material purchased in connection with the Property.
(9) No person, firm, corporation or other entity has or, at the Closing, shall
have (i) any right or option to acquire the Property, or any part thereof, from Seller, or
(ii) have any leasehold tenancy, or other possessory rights or interests in the Property, or
any part thereof.
(10) Seller has not, and at the Closing will not have, entered into any
agreement affecting the Property, other than this Agreement.
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(11) Seller's execution of this Agreement and its consummation of the
transaction do not and at the Closing Date will not, breach any agreement or constitute a
default or a condition that would ripen into a default under any agreement to which Seller
is a party or by which all or part of the Property is bound. Furthermore, Seller's execution
of this Agreement and its consummation of the transaction do not, and at the Closing will
not violate any order rule, or regulation applicable to Seller or the Property of any court
or any federal, state, or municipal regulatory body or administrative agency or other
governmental body.
(12) No permission, approval, or consent by third parties or governmental
authorities is required for Seller to consummate this transaction other than the approval
of the City Council of the City of Fort Worth (the "City Council") which approval will
be sought by Seller promptly after the Effective Date of this Agreement.
(13) Intentionally deleted.
(14) Seller has no notice or actual knowledge that any material amount of
Hazardous Substances has been disposed of, released, or identified on, under, in the
vicinity of, or at the Property. As used in this Agreement "Hazardous Substances"
means any substance that is -- or is deemed under state or local environmental laws or
regulations to be, alone or in any combination -- hazardous, hazardous waste toxic,
radioactive, a pollutant, a deleterious substance, a contaminant, a dangerous good or a
source of pollution or contamination, or which, when released into the environment, is
likely to cause, at some immediate or future time material harm or degradation to the
environment or material risk to human health, whether or not such substance is defined as
"hazardous' under state or federal environmental laws or regulations.
(c) Seller's representations, warranties, and covenants in this Agreement are subject
to the following terms and conditions:
(1) Seller's representations, warranties, and covenants are (i) material and
being relied upon, and (ii) continuing, made both as of the Effective Date and as of the
Closing Date, except to the extent that Seller otherwise notifies Purchaser in writing at or
before the Closing. If Seller so notifies Purchaser in writing at or prior to the Closing -- or
if Purchaser independently discovers on or prior to the Closing -- that any material
representation, warranty, or covenant is no longer true, Purchaser may either (i) terminate
this Agreement by written notice to Seller, and neither party will have any further rights
or obligations under it except for rights or obligations, if any that expressly survive
termination of this Agreement, and Title Company will return the Earnest Money to
Purchaser; or (ii) waive the representation, warranty, or covenant and close the purchase
of the Property. If Purchaser discovers after the Closing that any representation or
warranty was not true when made, then Purchaser shall be entitled to any remedy
available at law or in equity.
(2) Seller's representations, warranties, and covenants will survive the
Closing for a period of six months.
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Section 10. Conditions to Closing.
(a) Notwithstanding anything to the contrary in this Agreement, until the Closing the
following matteis are conditions precedent to Purchaser's obligations under this Agreement.
(1) All of Seller s representations and warranties must be true and correct as
of the Closing in all material respects.
(2) The City Council must approve the sale of the Property pursuant to and in
accordance with the terms of this Agieement.
(3) Seller must deliver perform, observe, and comply with all of the items,
instruments, documents, covenants agreements, and conditions required of it by this
Agreement.
(4) Seller must not be in receivership or dissolution, nor have made any
assignment for the benefit of creditors nor admitted in writing its inability to pay its
debts as they mature, nor have been adjudicated a bankrupt, nor have filed a petition in
voluntary bankruptcy, or a petition or answer seeking reorganization or an arrangement
with creditors under state or federal bankruptcy law or any other similar law or statute
nor may any such petition have been filed against it.
(b) Purchaser may waive any of the conditions set forth in Section 10(a) (except
Section 10(a)(2)) in its sole discretion, at or before the Closing If any of the conditions
(including but not limited to, Section 10(a)(2)) are not satisfied or waived, Purchaser may
terminate this Agreement by giving written notice to Seller at or before the Closing, and neither
party will have any further rights or obligations under this Agreement except for rights or
obligations, if any, that expressly survive termination of this Agreement, and Title Company will
return the Earnest Money to Purchaser.
Section 11. Brokers. Each party represents and warrants to the other that it has not
engaged, or become liable to, any agent, broker, or other similar party in connection with this
transaction. EACH PARTY AGREES TO BE SOLELY RESPONSIBLE FOR ANY
CLAIMS, DEMANDS, CAUSES OF ACTION, OR OTHER LIABILITY OF ANY
AGENT, BROKER, OR OTHER SIMILAR PARTY ARISING FROM OR RELATED TO
ANY BREACH OF SUCH PARTY S REPRESENTATIONS IN THIS SECTION 11. The
provisions of this Section 11 shall survive the Closing and any termination of this Agreement.
Section 12. Notices.
(a) Any notice under this Agreement must be written. Notices must be either (i) hand -
delivered to the address set forth below for the recipient; or (ii) placed in the United States
certified mail, return receipt requested, addressed to the recipient as specified below
(iii) deposited with an overnight delivery service addressed to the recipient as specified below*
or (iv) telecopied by facsimile transmission to the party at the telecopy number listed below,
provided that the transmission is followed with a copy sent by overnight delivery or regular mail
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to the address specified below. Any notice is effective upon deposit with the U.S. Postal Service
or with the overnight delivery service, as applicable; all other notices are effective when
received.
(b) Seller's address for all purposes under this Agreement is:
City of Fort Worth
1000 Throckmorton St, Fort Worth, TX 76102
Attention: Leann D. Guzman, City Attorney's Office
Telephone (817) 392-8973
Telecopy: (817) 392-8359
(c) Purchaser's address for all purposes under this Agreement is:
BNSF Railway Company
2500 Lou Menk Drive AOB-3
Fort Worth, Texas 76131-2830
Attention: Ms. Luddy Maria Arias
Telephone (817) 352-6424
Telecopy: (817) 352-7797
with a copy to:
BNSF Railway Company
2500 Lou Menk Drive
Fort Worth, Texas 76131-2828
Attention: Mr Richard P. Chamberlain
Telephone (817) 352-2308
Telecopy: (817) 352-2398
(d) Either party may designate another address for this Agreement by giving the other
party at least 5 business days advance notice of its address change. A party's attorney may send
notices on behalf of that party, but a notice is not effective against a party if sent only to that
party's attorney.
Section 13. Entire Agreement. This Agreement (including its exhibits) contains the
entire agreement between Seller and Purchaser. Oral statements or prior written matter not
specifically incorporated into this Agreement has no force or effect. No variation, modification,
or change to this Agreement binds either party unless set forth in a document signed by the
parties or their duly authorized agents, officers, or representatives.
Section 14. Assigns. This Agreement inures to the benefit of and binds the parties and
their respective legal representatives, successors, and permitted assigns. Purchaser may assign its
rights or obligations under this Agreement without Seller s consent, but with notice to Seller,
including (but not limited to) assignment to another entity for purposes of a 1031 tax exchange.
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Section 15. Effective Date. The date on which the last of Seller and Purchaser signs
this Agreement is the "Effective Date" of this Agreement.
Section 16. Time of the Essence. Time is of the essence in this Agreement. Whenever
a date specified in this Agreement falls on a Saturday, Sunday, or federal holiday, the date will
be extended to the next business day.
Section 17. Destruction, Damage, or Taking Before the Closing. If, before the
Closing, the Property or any substantial portion of it is damaged or destroyed or becomes subject
to a taking by eminent domain, Purchaser may either (i) terminate this Agreement and receive
back the Earnest Money, and neither party will have any further rights or obligations under this
Agreement except for rights or obligations, if any, that expressly survive termination of this
Agreement; or (ii) proceed with the Closing of the Property, and Seller will assign to Purchaser
all condemnation or insurance proceeds available as a result of such damage, destruction, or
taking.
Section 18. Tax -Deferred Exchange Under I.R.C. 4 1031. Purchaser may restructure
its purchase of the Property as part of a "deferred" like -kind exchange under Internal Revenue
Code § 1031, as amended. Seller agrees to cooperate with Purchaser to permit Purchaser to
accomplish the tax -deferred exchange, but at no additional expense or liability to Seller for the
tax -deferred exchange, and with no delay in the Closing. Seller's cooperation will include,
without limitation, executing such supplemental documents as Purchaser may reasonably
request, which may include, without limitation an assignment of Purchaser's rights and
obligations under this Agreement to a tax -deferred exchange intermediary.
Section 19. Terminology. The captions beside the section numbers of this Agreement
are for reference only and do not modify or affect this Agreement. Whenever required by the
context, any gender includes any other gender, the singular includes the plural, and the plural
includes the singular.
Section 20. Governing Law. This Agreement is governed by and must be construed
in accordance with Texas law.
Section 21. Severability. If any provision in this Agreement is found to be invalid,
illegal, or unenforceable, its invalidity, illegality, or unenforceability will not affect any other
provision, and this Agreement must be construed as if the invalid, illegal, or unenforceable
provision had never been contained in it.
Section 22. Rule of Construction. Each party and its counsel have reviewed and
revised this Agreement. The parties agree that the rule of construction that any ambiguities are to
be resolved against the drafting party must not be employed to interpret this Agreement or its
amendments or exhibits.
Section 23. Attorneys' Fees. If any action at law or in equity is necessary to enforce
or interpret this Agreement, the prevailing party will be entitled to reasonable attorneys' fees,
costs and necessary disbursements in addition to any other relief to which that party may be
entitled.
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031432 000407 DALLAS 2805933.5
Section 24. Counterparts. To facilitate execution, this Agreement may be executed in
as may counterparts as may be convenient or required. It shall not be necessary that the signature
or acknowledgement of, or on behalf of, each part, or that the signature of all persons required to
bind any party or the acknowledgment of such party appear on each counterpart. All
counterparts shall collectively constitute a single instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than a single counterpart containing the
respective signatures of, or on behalf of, and the respective acknowledgments of, each of the
parties hereto. Any signature or acknowledgment page to any counterpart may be detached from
such counterpart without impairing the legal effect of the signatures or acknowledgments thereon
and thereafter attached to another counterpart identical thereto except having attached to it
additional signature or acknowledgment pages.
EXECUTED as of the Effective Date.
[Remainder of page intentionally left blank; signatures follow]
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031432 000407 DALLAS 2805933.5
Signature Page for Option Agreement
1701 & 1707 Bryan Ave, Fort Worth, TX 76110
NO AMC REQUIRED
RED
031432 000407 DALLAS 2805933.5
SELLER
THE CITY OF FORT WORTH,
a Texas municipal corporation
By: asosien44
Fernando Costa, Assistant City Manager
Date: 8AG hi
PURCHASER
BNSF RAILWAY COMPANY,
a Delaware corporation
By:
Name: �t11 0� IN C /7,,tte-"
Title: �e eel Estate
Date: ff���s '� 2,
OFFICIAL RECOk
CITY SECRETARY
f'�11 r1 � k7aT ti \+I( 1I I r� ii ia
Title Company's Acknowledgment of Receipt of Option Agreement
1701 & 1707 Bryan Ave, Fort Worth, TX 76110
North American Title Company (Title Company) acknowledges receipt of this
Agreement on (a 27 , 20IZ. Upon receipt of the Earnest Money provided for in
this Agreement, Title Company agrees to notify Seller and Purchaser, to hold the Earnest Money
in accordance with this Agreement, and to abide by and perform in accordance with the escrow
provisions contained in this Agreement.
at CeCa.�l c �- _ use
L-]
i
/1 By:
Name: 11/1,0,focara‘ 2tckcrcUTitle: fi scrS 1>, s -e.te_
-g1z7
1 Z
Date:
•
031432 000407 DALLAS 2805933.5
EXHIBIT A
Legal Description of Property
PARCEL 2B
BEING a tract of land situated in the J. N. Ellis Survey, Abstract No. 463, City of Fort Worth,
Tarrant County, Texas and being all of that same tract of land conveyed to CITY OF FORT
WORTH by deed recorded in Volume 5736, Page 960, Deed Records, Tarrant County, Texas
(D.R.T.C.T.), said tract being the remainder of Lots 1 & 2, Block 4, Saint Helena Addition,
being an addition to the City of Fort Worth, Tarrant County, Texas according to the plat thereof
recorded in Volume 63, Page 56, D R.T.C.T. said strip of land being herein more particularly
described by metes and bounds as follows:
BEGINNING at a %" iron rod with cap stamped ' SPOONER AND ASSOCIATES" set (1/2"
CIRS) at the southeast property corner of the said Lot 2, same being the northeast property
corner of the remainder of Lot 3 of the said Saint Helena Addition, same also being the
northwest line of a 100' wide railway right-of-way conveyed to the G.C.&S.F. Railroad
Company by deed recorded in Volume 30 Page 476, D.R.T.C.T. now owned and operated by
the Burlington Northern Santa Fe Railroad Company (B N.S.F.);
THENCE South 89°10'28" West, along the south property line of the said Lot 2, same being the
north property line of the said Lot 3, 46.66 feet to a %" CIRS at the southwest property corner of
the said Lot 2, same being a north property corner of the said Lot 3, said %" CIRS being on the
easterly right -of way line of Bryan Avenue said 1/2" CIRS also being at the beginning of a non -
tangent curve to the left having a radius of 46.00 feet;
THENCE along the west property property line of the said Lot 2, along the said easterly right-
of-way line of Bryan Avenue and in a northerly direction along the said curve an arc length of
110.36 feet, across a chord bearing North 10°27'33" West 85.73 feet to a 1/2" CIRS at the
northwest property corner of the said Lot 1 same being the intersection of the said easterly right-
of-way line of Bryan Avenue with the south right-of-way line of East Allen Avenue;
THENCE North 88°52' 11" East, along the north property line of the said Lot 1 and along the
said southerly right-of-way line of East Allen Avenue, 109.44 feet to a % ' CIRS at the northeast
property corner of the said Lot 1, same being on the said railway right-of-way line said 1/2' CIRS
being at the beginning of a non -tangent curve to the right having a radius of 3,989.65 feet;
THENCE along the southeast property line of the said Lot 1 and said Lot 2, along the said
railway right-of-way line and in a southwesterly direction along the said curve an arc length of
97 92 feet, across a chord bearing South 28°48'59" West 97.92 feet to the POINT OF
BEGINNING.
The tract being herein described contains 0.110 acres (4,812 Sq. Ft,) of land.
Exhibit A
Page A-1
031432 000407 DALLAS 2805933.5
EXHIBIT B
Form of General Warranty Deed
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM
ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE
IT IS FILED FOR RECORD IN THE PUBLIC RECORDS• YOUR SOCIAL SECURITY
NUMBER OR YOUR DRIVER S LICENSE NUMBER.
After Recording Return To:
Thompson & Knight LLP
One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Attention: Michelle Vincent Parker
SPECIAL WARRANTY DEED
THE STATE OF TEXAS §
§
COUNTY OF TARRANT §
KNOW ALL MEN BY THESE PRESENTS THAT:
("Grantor"), for and in consideration of the
sum of Ten Dollars ($10.00) and other valuable consideration paid to Grantor by BNSF
RAILWAY COMPANY, a Delaware corporation ( `Grantee ), the receipt and sufficiency of
which are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and
DELIVER to Grantee the following:
(a) the real property (the "Land ') described in Exhibit A attached hereto and made a
part hereof, together with all strips and gores, easements, rights -of way, licenses,
interests, rights, and appurtenances appertaining to the Land if any;
(b) all rights, titles, and interests of' Grantor in and to any easements, rights -of -way,
or other interests in, on, or to any alley, highway, or street in, on, across or
adjoining the Land;
(c) all site plans, surveys, soil and substrata studies, environmental assessments, plans
and specifications, engineering plans and studies, landscape plans, and other
plans, studies or reports of any kind in Grantor's or its contractors' or agents'
possession that relate to the Property (defined below); and
Exhibit B
Page B-1
031432 000407 DALLAS 2805933.5
(d) any and all other rights, titles, interests, privileges, and appurtenances owned by
Grantor and in any way related to, or used in connection with, the ownership of
the Land, provided that Grantee desires to receive assignment of the same
(all of the foregoing collectively, the "Property"), subject to the encumbrances described in
Exhibit B attached hereto and made a part hereof (the "Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular the rights and
appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns
forever, and Grantor does hereby bind itself, its successors and assigns to warrant and forever
defend all and singular the Property unto Grantee and Grantee's successors and assigns against
every person whomsoever lawfully claiming, or to claim the same, or any part thereof, by
through, or under Grantor, but not otherwise; subject, however, to the Permitted Encumbrances.
Current ad valorem taxes on the Land having been prorated, Grantee hereby assumes the
payment thereof, subject to readjustment once the amount of ad valorem taxes for the current
year are known, if the ad valorem taxes that were prorated were estimates for the current year.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor on this
day of 20 .
The address of
Grantee is:
BNSF Railway Company
2500 Lou Menk Drive AOB-3
Fort Worth Texas 76131-2830
Attention: Ms Luddy Maria Arias
* * [insert appropriate signature and acknowledgment blocks and exhibits] * *
Exhibit B
Page B-2
031432 000407 DALLAS 2805933.5