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HomeMy WebLinkAboutContract 60408CONTRACT OF SALE AND PURCHASE THIS CONTRACT OF SALE AND PURCHASE ("Contract") is made and entered into by and between the CITY OF FORT WORTH, TEXAS, a home rule Municipal Corporation of the State of Texas (“Seller”), acting by and through its duly authorized City Manager or Assistant City Manager and VICKERY VILLAGE DEVELOPMENT LLC, a Texas limited liability company, (“Purchaser”) as of the date on which this Contract is executed by the last to sign of Seller and Purchaser (“Effective Date”). RECITALS WHEREAS Seller is the owner of one parcel of property consisting of approximately 0.435 acres located at 700 West Vickery, Fort Worth, Texas 76104 (Tarrant Appraisal District Account No. 42167653) and within Tax Increment Reinvestment Zone Number 4 (“TIF 4”), together with all easements, rights-of- way, licenses, interests, and rights appurtenant thereto, said property being more particularly described in Exhibit “A,” attached hereto and incorporated herein by reference for all purposes; and WHEREAS on August 3, 2022 the TIF 4 Board authorized $4.900,000.00 to support the development of a mixed-use development consisting of a minimum 235-unit rental residential complex and a 3,500 square foot restaurant (the “Project”) through the reimbursement of certain costs relating to street, streetscape, and other public improvements; and WHEREAS on October 25, 2022 the Fort Worth City Council approved the sale of the Property to Purchaser in accordance with the terms and conditions of an Economic Development Program Agreement (the “380 Agreement”) (M&Cs: 22-0868 & 23-0602); and WHEREAS in order to complete the Project, Seller has agreed to sell the property to Purchaser for $225,000.00, the Property’s fair market value as determined by an appraisal obtained by the Seller, in accordance with Local Government Code section 272.001(b)(6); and WHEREAS to ensure the timely completion of the Project, the Property will be sold to Purchaser subject to a right-of-first refusal providing that, until the first issuance of a Temporary Certificate of Occupancy for the Project, if Purchaser receives a bona fide offer from a third-party to purchase the Property and accepts the offer, Seller will have the option to purchase the Property from Purchaser for $1.00; and WHEREAS Purchaser has agreed to escrow $225,000.00 (the “Escrow Funds”) with the Title Company and, in the event that Purchaser fails to complete its obligations under the 380 Agreement, the Escrow Funds will be released to Seller. AGREEMENT In consideration of the mutual covenants in this Contract, Seller and Purchaser agree as follows: Section 1. Sale and Purchase. (a) Subject to the terms and conditions of this Contract, Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase and accept from Seller, the following right and property: Sale of 700 West Vickery to Vickery Village Development LLC Page 1 of 24 Sale of 700 West Vickery to Vickery Village Development LLC Page 2 of 24 (i) The Property. Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase and accept from Seller, on and subject to the terms and conditions set forth in this Contract, the land more particularly described on the attached Exhibit “A,” which is attached hereto and incorporated herein by reference for all purposes (the “Land”), together with (i) all buildings, fixtures, structures and improvements thereon; (ii) any strips or gores between the Land and all abutting properties; (iii) all roads, alleys, rights-of-way, easements, streets and ways adjacent to or serving the Land and rights of ingress and egress thereto, whether surface, subsurface or otherwise (expressly excluding however, any and all public rights-of-way held by the Seller on behalf of the public); (iv) any land lying in the bed of any street, road or access way, opened or proposed, in front of, at a side of or adjoining the Land, to the centerline of such street, road or access way; and (v) all licenses, interests, and rights appurtenant to the Land; save and except, however, any and all oil, gas and other minerals owned by Seller and lying under, in, on or about or constituting a part of such Land and all other subsurface rights, which shall be reserved to Seller subject to a waiver of surface rights as set forth in the Deed. The Land and Items (i)-(v) are collectively referred to as the “Property.” (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 and the Survey (hereinafter defined) that are not cured and that are subsequently waived pursuant to Section 3 (“Permitted Encumbrances”). Section 2. Independent Contract Consideration and Purchase Price. (a) Contemporaneously with the execution of this Contract, Purchaser delivers to Seller a check in the amount of $100.00 (“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 non-refundable, and shall be retained by Seller notwithstanding any other provision of this Contract; however, upon Closing (as hereinafter defined), the Independent Contract Consideration shall be applied as a credit toward the Purchase Price (as hereinafter defined). (b) The purchase price ("Purchase Price") for the Property, payable by Purchaser to Seller at Closing (as defined below), is TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS AND 00/100 ($225,000.00). Purchaser and Seller acknowledge and agree that the Purchase Price reflects the Property’s fair market value as determined by an appraisal obtained by the Seller. Section 3. Title Commitment and Survey. (a) Within twenty (20) days after the Effective Date, Purchaser shall obtain at Purchaser’s sole cost and expense, a Commitment for Title Insurance (“Title Commitment”) from Rattikin Title Company, 201 Main Street, Suite 800, Fort Worth, TX 76102 (the “Title Company”). The Title Commitment shall be effective as of a date which is on or after the Effective Date, showing Seller as the record title owner of the Land, and shall show all Encumbrances and other matters, if any, relating to the Property. The Title Company shall also deliver contemporaneously with the Title Commitment legible copies of all documents referred to in the Title Commitment, including but not limited to, plats, reservations, restrictions, and Sale of 700 West Vickery to Vickery Village Development LLC Page 3 of 24 easements. Upon receipt, Purchaser shall deliver a copy of the Title Commitment and all documents referred to in the Title Commitment to Seller. (b) Within forty-five (45) days after the Effective Date, Purchaser shall, at Purchaser’s sole cost and expense, obtain a survey of the Land (the “Survey”), as necessary in order for the Title Company to delete the standard promulgated print survey exception from the Title Policy, amend the general survey exceptions to "shortages in area", and otherwise satisfy Purchaser's objectives. Upon receipt, Purchaser shall deliver a copy of the Survey to Seller and cause Seller to be named in the surveyor's certificate. The legal description used in the Survey will be legal description used in the Closing documents contemplated herein. (c) Purchaser shall have a period of time (“Title Review Period”) commencing on the Effective Date and expiring ten (10) days after the first date on which Purchaser has received both the Title Commitment (and exception instruments) and the Survey in which to notify Seller in writing of any objections (“Objections”) Purchaser has to any matters shown on the Title Commitment or the Survey. (d) Seller shall have the option, but not the obligation, to remedy or remove all Objections (or agree irrevocably in writing to remedy or remove all such Objections at or prior to Closing) during the period of time (the “Cure Period”) ending on the third (3rd) day after Seller's receipt of Purchaser's notice of such Objections. Except to the extent that Seller cures, or agrees in writing to cure, such Objections during the Cure Period, Seller shall be deemed to have elected not to cure such matters. If Seller is, or is deemed to be, unable or unwilling to remedy or cause the removal of any Objections (or agree irrevocably to do so at or prior to Closing) within the Cure Period, then either (i) this Agreement may be terminated in its entirety by Purchaser by giving Seller written notice to such effect during the period of time (the “Termination Period”) ending on the third day following the end of the Cure Period and the parties shall be released of further obligations under this Agreement; or (ii) any such Objections may be waived by or on behalf of Purchaser, with Purchaser to be deemed to have waived such Objections if notice of termination is not given within the Termination Period. Any title encumbrances or exceptions which are set forth in the Title Commitment or the Survey and to which Purchaser does not object within Title Review Period (or which are thereafter waived or deemed to be waived by Purchaser) shall be deemed to be permitted exceptions (the "Permitted Exceptions") to the status of Seller's title to the Property. (d) Any other provision herein to the contrary notwithstanding, (i) all exceptions disclosed in the Title Commitment (or any subsequent commitment) which arise on or after the Effective Date of this Agreement and are not attributable to actions by Purchaser and (ii) all Objections that Seller agrees in writing to cure at or prior to Closing (collectively, the “Mandatory Cure Items”) shall be satisfied, cured or removed by Seller at or prior to Closing. Section 4. Due Diligence Documents. Within ten (10) days after the Effective Date, Seller shall deliver to Purchaser for Purchaser's review (i) any and all tests, construction plans, studies and investigations relating to the Property and the operation and maintenance thereof, including, without limitation, any soil tests, engineering reports or studies, and any Phase I or other environmental audits, reports or studies of the Property; (ii) any and all information regarding condemnation notice(s), proceedings and awards affecting the Property; and (iii) all proposed or existing private covenants, conditions and restrictions, of which the Property will be a part and any other private agreements affecting the use or development of the Property. Sale of 700 West Vickery to Vickery Village Development LLC Page 4 of 24 Section 5. Tests and Plans. Within twenty (20) days of the Effective Date, Seller shall provide to Purchaser copies of the final versions of all third-party construction plans, studies and investigations prepared for Seller and relating to the Property and the operation and maintenance thereof, including such final soil tests, engineering reports or studies, and any Phase I or other environmental audits, reports or studies of the Property. Purchaser, at Purchaser's sole cost and risk, shall have the right to go on to the Property to make inspections, surveys, test borings, soil analysis, and other tests, studies and surveys, including without limitation, environmental and engineering tests, borings, analysis, and studies (“Tests”). Any Tests shall be conducted at Purchaser’s sole expense. At the conclusion of the Tests, the Property will be restored by Purchaser, at Purchaser's sole expense, to at least a similar condition as before the Tests were conducted. In the event this transaction does not close for any reason whatsoever, the Purchaser shall release to Seller any and all independent studies or results of Tests obtained before the Closing Deadline. Section 6. Closing Deadline. The closing (“Closing”) of the sale of the Property by Seller to Purchaser shall occur through the office of the Title Company on or before December 29, 2023, although the parties expect the day of Closing to be on approximately November 16, 2023. Section 7. Closing. (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 in the form attached hereto as Exhibit “B” (“Deed”), fully executed and acknowledged by Seller, subject only to the Permitted Exceptions, but containing a reservation of the mineral rights; (ii) A Right of First Refusal Agreement in the form attached hereto as Exhibit “C” (“Right of First Refusal Agreement”), fully executed and acknowledged by Purchaser and Seller; (iii) An Escrow Agreement in a form reasonably approved by Seller and Purchaser (“Escrow Agreement”) requiring Purchaser to deposit Two Hundred Twenty-Five Thousand Dollars and 00/100 ($225,000.00) (the “(Escrow Funds”) with the Title Company and providing that the Escrow Funds shall be released to Seller in the event that Purchaser fails to complete its obligations under the 380 Agreement; (iv) A Non-Foreign Person Affidavit, in form and substance reasonably satisfactory to Purchaser, fully executed and acknowledged by Seller, confirming that Seller is not a foreign person or entity within the meaning of Section 1445 of the Internal Revenue Code of 1986, as amended; (v) Evidence of authority to consummate the sale of the Property as is contemplated in this Contract or as Title Company may reasonably request; (vi) Any other instrument or document necessary for Title Company to issue the Owner Policy in accordance with Section 7(a)(3) below. Sale of 700 West Vickery to Vickery Village Development LLC Page 5 of 24 (2) Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to be delivered the following: (i) To Seller, through the Title Company, federally wired funds or a certified or cashier's check or such other means of funding acceptable to Seller, in an amount equal to the Purchase Price, adjusted for closing costs and prorations; (ii) Evidence satisfactory to Seller, in its sole discretion, that Purchaser has obtained a letter of intent or term sheet from a lender which indicates that Purchaser will have sufficient financing for the completion of the Project; (iii) Evidence of authority to consummate the sale of the Property as is contemplated in this Contract or as Title Company may reasonably request. (3) Title Company shall issue to Purchaser, at Purchaser’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 reservation of minerals, and the standard printed exceptions included in a Texas Standard Form Owner Policy of Title Insurance. (4) Purchaser shall pay the escrow fees. (5) Purchaser shall pay all recording fees and any other closing costs as set forth by the Title Company. (6) Purchaser and Seller shall each pay their respective attorneys’ fees. (7) Purchaser shall pay the costs of the appraisal obtained by the Seller, up to $1,500.00. (b) Seller will qualify for exemption from ad valorem taxation for the Property, and no ad valorem taxation shall accrue before the date of Closing. Therefore, any ad valorem taxes assessed against the property for the current year shall be for the period of time the Property is owned by Purchaser. Purchaser shall be responsible for all ad valorem taxes and fees accruing after the date of Closing. The provisions of this Section 7(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 except those disclosed in the Permitted Encumbrances. Section 8. Seller's Representations. Seller hereby represents and warrants to Purchaser, as of the Effective Date and as of the Closing Date, except as otherwise disclosed in written notice from Seller to Purchaser at or prior to Closing, that: (a) Seller's Authority. This Contract has been duly authorized by requisite action and is enforceable against Seller in accordance with its terms; neither the execution and delivery of this Agreement nor the consummation of the sale provided for herein will constitute a Sale of 700 West Vickery to Vickery Village Development LLC Page 6 of 24 violation or breach by Seller of any provision of any agreement or other instrument to which Seller is a party or two which Seller may be subject although not a party, or will result in or constitute a violation or breach of any judgment, order, writ, junction or decree issued against or binding upon Seller or the Property; (b)No Pending Proceedings. There is no action, suit, proceeding or claim affecting the Property or any portion thereof, or affecting Seller and relating to the ownership, operation, use or occupancy of the Property, pending or being prosecuted in any court or by or before any federal, state, county or municipal department, commission, board, bureau o agency or other governmental entity and no such action, suit, proceeding or claim is threatened or asserted; (c)Seller is Not a Foreign Person. Seller is not a foreign person or entity as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and Purchaser is not obligated to withhold any portion of the Sales Price for the benefit of the Internal Revenue Service; (d)No Insolvency Proceedings. No attachment, execution, assignment for the benefit of creditors, receivership, conservatorship or voluntary or involuntary proceedings in bankruptcy or pursuant to any other debtor relief laws is contemplated or has been filed by or against Seller or the Property, nor is any such action pending by or against Seller or the Property; (e)Contract Obligations. Except as otherwise disclosed in the Title Commitment or by Seller to Purchaser, no lease, contract or agreement exists relating to the Property or any portion thereof which is not terminable at will or upon not more than 30 days' prior notice except tenant leases; (f)No Competing Rights. No person, firm or entity, other than Purchaser, has any right to purchase, lease or otherwise acquire or possess the Property or any part thereof; (g)No Regulatory Violations. The Property is not in breach of any law, ordinance or regulation, or any order of any court or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality wherever located, including, without limitation, those relating to environmental matters and hazardous waste, and no claim, action, suit or proceeding is pending or, to the best of Seller's knowledge and belief and after due inquiry, threatened against or affecting Seller or affecting the Property, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or entity wherever located, with respect to the Property or the Seller's present use and operation of the Property; and (h)No Hazardous Materials. To the best of Seller’s knowledge, (i) all required federal, state and local permits concerning or related to environmental protection and regulation for the Property have been secured and are current; (ii) Seller is and has been in full compliance with such environmental permits and other requirements regarding environmental protection under applicable federal, state or local laws, regulations or ordinances; (iii) there is no pending action against Seller under any environmental law, Sale of 700 West Vickery to Vickery Village Development LLC Page 7 of 24 regulation or ordinance and Seller has not received written notice of any such action or possible action; (iv) there is not now, nor has there been in the past, any release of hazardous substances on, over, at, from, into or onto any facility at the Property, as such terms are understood under the Comprehensive Environmental Response, Compensation and Liability Act; and (v) Seller does not have actual knowledge of any environmental condition, situation or incident on, at or concerning the Property that could reasonably be expected to give rise to an action or to liability under any law, rule, ordinance or common law theory governing environmental protection. Seller acknowledges that Purchaser has relied and will rely on the representations and warranties of Seller in executing this Agreement and in closing the purchase and sale of the Property pursuant to this Agreement, and Seller, during the term of this Agreement, agrees to notify Purchaser promptly in the event that Seller obtains knowledge of any change affecting any of such representations and warranties, in which event Purchaser shall be entitled to exercise the remedies set forth in Section 13 hereof. Until and unless Seller’s warranties and representations shall have been qualified and modified as appropriate by any such additional information provided by Seller to Purchaser, Purchaser shall continue to be entitled to rely on Seller’s representations and warranties set forth in this Agreement, notwithstanding any contrary information resulting from any inspection or investigation made by or on behalf of Purchaser. All of Seller’s representations and warranties, as so qualified and modified, shall survive Closing. Section 9. Seller’s Covenants. During the term of this Agreement, Seller shall not, without the prior written consent of Purchaser: (i) grant any licenses, leases, easements or other uses or encumbrances affecting any portions of the Property; (ii) permit any mechanic’s or materialman’s lien to attach to any portion of the Property; (iii) place or permit to be placed on, or remove or permit to be removed from, the Property any trees, buildings, structures or other improvements of any kind; or (iv) excavate or permit the excavation of the Property or any portion thereof. 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 five (5) days prior to the Closing, Seller shall deliver to Purchaser copies of the closing documents (including but not limited to the Deed) for 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, or (v) sent by electronic mail (return receipt requested), addressed to the party at the address specified below. Sale of 700 West Vickery to Vickery Village Development LLC Page 8 of 24 (b) The address of Purchaser under this Contract is: Vickery Village Development LLC Attn: Chad A. Colley 1701 River Run, Ste 500 Fort Worth, TX 76107 With a copy to: Rowlett Hill Collins LLP Attn: Lynn Collins 3010 LBJ Freeway, Ste 1030 Dallas, TX 75234 lcollins@rowletthill.com (c) The address of Seller under this Contract is: City of Fort Worth 1150 S. Freeway Suite 106 Fort Worth, 76104 Economic Development Department Attention: Kelly N. Baggett, Innovation Coordinator Telephone: 817-392-2617 Email: Kelly.Baggett@fortworthtexas.gov With a copy to: City Attorney’s Office Attn: Matthew A. Murray 200 Texas Street Fort Worth, Texas 76102 Email: matthew.murray@fortworthtexas.gov (d) From time to time either party may designate another address or fax number under this Contract by giving the other party advance written notice of the change. Section 13. Termination, Default, and Remedies. (a) If Purchaser fails or refuses to consummate the purchase of the Property pursuant to this Contract at the Closing for any reason other than termination of this Contract by Purchaser pursuant to a right so to terminate expressly set forth in this Contract or Seller's failure to perform Seller's obligations under this Contract, then Seller, as Seller's sole and exclusive remedy, shall have the right to terminate this Contract and the 380 Agreement 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. (b) If (1) Seller fails or refuses to timely consummate the sale of the Property pursuant to this Contract at Closing, (2) at the Closing any of Seller’s representations, warranties or covenants contained herein is not true or has been breached or modified, or (3) Seller 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 Sale of 700 West Vickery to Vickery Village Development LLC Page 9 of 24 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: (i) terminate this Contract by giving written notice thereof to Seller prior to or at the Closing and neither party hereto shall have any further rights or obligations hereunder; or (ii) waive, prior to or at the Closing, the applicable objection or condition and proceed to close the transaction contemplated hereby in accordance with the remaining terms hereof. Section 14. Survival of Obligations. To the extent necessary to carry out the terms and provisions hereof, the terms, conditions, warranties, representations, obligations and rights set forth herein shall not be deemed terminated at the time of the Closing, nor shall they merge into the various documents executed and delivered at the time of the Closing. Section 15. Entire Contract. This Contract (including the attached Exhibits) contains the entire contract between Seller and Purchaser, and no oral statements or prior written matter not specifically incorporated herein is of any force and effect. No modifications are binding on either party unless set forth in a document executed by that party. Section 16. Assigns. This Contract inures to the benefit of and is binding on the parties and their respective legal representatives, successors, and assigns. Seller may not assign its interest under this Contract without the prior written consent of Purchaser. Purchaser may assign its interest under this Contract to any entity, incorporated or otherwise, controlled by or under common control with Purchaser or Purchaser’s principals and as necessary to accomplish the Project. Section 17. Taking Prior to Closing. If, prior to Closing, the Property or any portion thereof becomes subject to a taking by virtue of eminent domain, Purchaser may, in Purchaser's sole discretion, either (i) terminate this Contract and neither party shall have any further rights or obligations hereunder, or (ii) proceed with the Closing of the transaction with an adjustment in the Purchase Price to reflect the net square footage of the Property after the taking. Section 18. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Texas. Section 19. Performance of Contract. The obligations under the terms of the Contract are performable in Tarrant County, Texas, and any and all payments under the terms of the Contract are to be made in Tarrant County, Texas. Section 20. Venue. Venue of any action brought under this Contract shall be in Tarrant County, Texas if venue is legally proper in that County. Section 21. Severability. If any provision of this Contract is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and this Contract will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Sale of 700 West Vickery to Vickery Village Development LLC Page 10 of 24 Section 22. Business Days. If the Closing or the day for performance of any act required under this Contract falls on a Saturday, Sunday, or legal holiday, then the Closing or the day for such performance, as the case may be, shall be the next following regular business day. Section 23. Counterparts. This Contract may be executed in multiple counterparts, each of which will be deemed an original, but which together will constitute one instrument. Section 24. Terminology. The captions beside the section numbers of this Contract are for reference only and do not modify or affect this Contract in any manner. Wherever required by the context, any gender includes any other gender, the singular includes the plural, and the plural includes the singular. Section 25. Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Contract and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party is not to be employed in the interpretation of this Contract or any amendments or exhibits to it. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] This Contract is EXECUTED as of the Effective Date. PURCHASER: VICKERY VILLAGE DEVELOPMENT LLC By: _______________________ Name: Chad A. Colley Title: Manager SELLER: CITY By: _______________________________ Name: Dana Burg doff Title: Assistant City Manager Attest: __________________________________ Jannette S. Goodall City Secretary M&Cs: 22-0868 & 23-0602 Dates: October 25, 2022 & June 27, 2023 APPROVED AS TO LEGALITY AND FORM ___________________________________ Matthew A. Murray Assistant City Attorney City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Sale of 700 West Vickery to Vickery Village Development LLC Page 11 of 24 Sale of 700 West Vickery to Vickery Village Development LLC Page 12 of 24 By its execution below, Title Company agrees to perform its other duties pursuant to the provisions of this Contract. RATTIKIN TITLE COMPANY: By: Name: Title: Date: EXHIBIT “A” DESCRIPTION OF PROPERTY Lot 1, Block 2, Hemphill Lamar Addition, an addition to the City of Fort Worth, Tarrant County, Texas according to plat filed for record under Clerk’s File No. D216055664, Deed Records of Tarrant County. EXHIBIT “B” SPECIAL 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. STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF TARRANT § THAT the CITY OF FORT WORTH, a Texas home-rule municipal corporation, (the "Grantor"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) cash and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, paid by VICKERY VILLAGE DEVELOPMENT LLC, a Texas limited liability company (the "Grantee"), subject to the provisions set forth herein, HAS GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents DOES GRANT, BARGAIN, SELL and CONVEY unto Grantee certain land located in Tarrant County, Texas, described on Exhibit A which is attached hereto and incorporated herein by reference for all purposes, together with all buildings, fixtures, structures and improvements thereon and all of Grantor's right, title and interest in and to (i) any strips or gores between the land and all abutting properties; (ii) all roads, alleys, rights-of-way, easements, streets and ways adjacent to or serving the land and rights of ingress and egress thereto, whether surface, subsurface or otherwise (expressly excluding however, any and all public rights-of-way held by the Seller on behalf of the public); (iii) any land lying in the bed of any street, road or access way, opened or proposed, in front of, at a side of or adjoining the land, to the centerline of such street, road or access way; and (iv) all licenses, interests, and rights appurtenant to the land (collectively, the "Property"). Grantor hereby excepts from this deed and reserves to Grantor, its successors and assigns, all oil, gas or other minerals in, on and under and that may be taken, saved, extracted or produced from the Property and all other subsurface rights of the Property; provided, however, that Grantor does hereby expressly release and waive, on behalf of itself, and its successors or assigns, all rights of ingress and egress and all other rights of every kind and character whatsoever to enter upon, use or in any way disturb the surface of the Property or any part thereof, including, without limitation, the right to enter upon the surface of the Property for purposes of exploring for, developing, drilling, producing, transporting product, mining, treating, storing or any other purpose incident to the development or production of the oil, gas and other minerals in, on and under the Property. Nothing herein contained shall ever be construed to prevent the Grantor, or its successors or assigns, from developing or producing the oil, gas and other minerals in and under the Property by pooling or by directional drilling under the Property from well sites not located within the boundaries of such Property and only at a depth of no less than 500 feet below the surface of the Property. This Special Warranty Deed and the conveyance hereinabove set forth is executed by Grantor and accepted by Grantee subject only to the easements, restrictions, reservations and covenants described in this deed and in Exhibit B attached hereto and incorporated herein by this reference, to the extent the same are validly existing and applicable to the Property (hereinafter referred to collectively as the "Permitted Exceptions"). Grantee acknowledges that Grantee has independently and personally inspected the Property. The Property is hereby conveyed to and accepted by Grantee in its present condition, "AS IS,” WITH ALL FAULTS, AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED. Notwithstanding anything contained herein to the contrary, and except with respect to the warranties and/or covenants of title created by this Special Warranty Deed and the representations and warranties expressly made by Grantor in that certain Contract of Sale and Purchase dated _____________, executed by and between Grantor and Grantee (collectively, “Surviving Reps”), it is understood and agreed that Grantor and Grantor's agents or employees have never made and are not now making, and they specifically disclaim, any warranties, representations or guaranties of any kind or character, express or implied, oral or written, with respect to the Property, including, but not limited to, warranties, representations or guaranties as to (a) matters of title (other than Grantor's warranty of title set forth herein), (b) environmental matters relating to the Property or any portion thereof, including, without limitation, the presence of hazardous materials in, on, under or in the vicinity of the Property, (c) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and to the extent to which the Property or any portion thereof is affected by any stream (surface or underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (g) the presence of endangered species or any environmentally sensitive or protected areas, (h) zoning or building entitlements to which the Property or any portion thereof may be subject, (i) the availability of any utilities to the Property or any portion thereof including, without limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the Property or any portion thereof, (l) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Property or any portion thereof, or any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Property or any part thereof, (m) the condition or use of the Property or compliance of the Property with any or all federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws, (n) the existence or non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other matter affecting the stability and integrity of the Property, (p) the potential for further development of the Property, (q) the merchantability of the Property or fitness of the Property for any particular purpose, (r) the truth, accuracy or completeness of any diligence items provided by Grantor, (s) tax consequences, or (t) any other matter or thing with respect to the Property. OTHER THAN THE SURVIVING REPS, GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO GRANTEE, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL CONDITION OF THE PROPERTY, OR THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE OR OF MERCHANTABILITY, AND GRANTEE IS RELYING ON ITS INVESTIGATIONS OF THE PROPERTY IN DETERMINING WHETHER TO ACQUIRE IT. THE PROVISIONS OF THIS PARAGRAPH ARE A MATERIAL PART OF THE CONSIDERATION FOR GRANTOR EXECUTING THIS SPECIAL WARRANTY DEED AND SHALL SURVIVE CLOSING. TO HAVE AND TO HOLD the Property unto Grantee, and Grantee's successors and assigns forever, and Grantor does hereby bind Grantor, and Grantor's 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 only to the reservations contained herein and the Permitted Exceptions. EXECUTED to be effective as of this _____ day of _______________, 2023. GRANTOR: THE CITY OF FORT WORTH By: _______________________________ Name: Dana Burghdoff Title: Assistant City Manager Attest: By: __________________________________ Jannette S. Goodall City Secretary APPROVED AS TO LEGALITY AND FORM By: __________________________________ Matthew A. Murray Assistant City Attorney M&Cs: 22-0868 & 23-0602 Date: October 25, 2022 & June 27, 2023 STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was ACKNOWLEDGED before me on _______________, 2023 by ____________________________________________________, ______________________ of ________________________________________________, a ________________________, on behalf of said _____________________________. Notary Public – State of Texas After Recording Return To: __________________________________ __________________________________ __________________________________ __________________________________ Exhibit A – Description of the Property Exhibit B – Permitted Exceptions EXHIBIT “A” PROPERTY Lot 1, Block 2, Hemphill Lamar Addition, an addition to the City of Fort Worth, Tarrant County, Texas according to plat filed for record under Clerk’s File No. D216055664, Deed Records of Tarrant County. EXHIBIT “B” PERMITTED EXCEPTIONS This conveyance is made and accepted subject to the following Permitted Encumbrances: EXHIBIT “C” RIGHT OF FIRST REFUSAL AGREEMENT Date: _______________________ Grantor: VICKERY VILLAGE DEVELOPMENT LLC Grantor’s Address: 1701 River Run, Ste 500, Fort Worth, TX 76107 Grantee: CITY OF FORT WORTH, TEXAS Grantee’s Address: 200 Texas Street, Fort Worth, Texas 76102 Property: Lot 1, Block 2, Hemphill Lamar Addition, an addition to the City of Fort Worth, Tarrant County, Texas according to plat filed for record under Clerk’s File No. D216055664, Deed Records of Tarrant County. Term: Beginning on that date that this Right of First Refusal is executed and expiring on the earlier to occur of (i) the first issuance of a Temporary Certificate of Occupancy for the Property or (ii) December 31, 2026. A. Grant A.1. Grantor grants to Grantee a right of first refusal to acquire the Property. A.2. During the Term, if Grantor receives an offer for the sale or other transfer of the Property or any portion thereof or interest therein for any form of consideration that Grantor wishes to accept, Grantor agrees to notify Grantee in writing before accepting the offer. The notice will state the identity of the proposed transferee and the complete terms of the proposed transfer. If the proposed consideration for the transfer is other than cash, the notice will also state the cash equivalent reasonably determined by the Grantor for the noncash consideration. A.3. Grantee will have the right to purchase the Property for One Dollar and 00/100 ($1.00) by giving written notice to Grantor within thirty (30) days following the receipt of Grantor’s notice. If Grantee affirmatively exercises such right, the Property will be transferred to Grantee, and Grantee will pay to Grantor the consideration on the terms set forth herein. A.4. If Grantee does not affirmatively exercise its right within the thirty (30) day period, Grantor may transfer the Property to the party and on the terms described in Grantor’s notice to Grantee within the one hundred and twenty (120) day period following the expiration of the thirty (30) day period. If a transfer is not consummated within the one hundred and twenty (120) period, Grantor may not transfer the Property without again complying with the provisions of this Agreement. If Grantor wishes to effect a transfer on terms that are less favorable to Grantor than those described in Grantor’s notice, Grantor must repeat the process set forth in this Agreement by giving a new notice to Grantee setting forth the new terms. If Grantor timely consummates a transfer, this Agreement will automatically terminate when the Property is conveyed to the party named in Grantor’s notice to Grantee. A.5. The rights granted in this Agreement expire at the end of the Term without the requirement that this Agreement be formally released in the public record. B. Transfers by Gift, Devise, Descent, or Otherwise without Consideration If the Property is transferred (i) by gift, devise, descent, or another transaction that does not involve the payment of consideration in any form or (ii) to an affiliated entity, the right to purchase shall not be applicable but the provisions of this Agreement will be fully binding on the person acquiring title to the Property in that transaction. C. Recordation Grantee may record this Agreement or a memorandum of this Agreement in the real property records of Tarrant County, Texas. Grantee will, on request, execute and record a release of this Agreement following its expiration or termination. D. Assignment Grantee may assign its rights under this Agreement. E. Notices Any notice under this Agreement 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) placed in the United States mail, return receipt requested, addressed to such party at the address specified below, (iii) deposited into the custody of Federal Express Corporation to be sent by FedEx Overnight Delivery or other reputable overnight carrier for next day delivery, or (iv) sent by electronic mail (return receipt requested), addressed to the party at the address specified below. The address of Grantor under this Agreement is: Vickery Village Development LLC Attn: Chad A. Colley 1701 River Run, Ste 500 Fort Worth, TX 76107 With a copy to: Rowlett Hill Collins LLP Attn: Lynn Collins 3010 LBJ Freeway, Ste 1030 Dallas, TX 75234 lcollins@rowletthill.com The address of Grantee under this Agreement is: City of Fort Worth 1150 S. Freeway Suite 106 Fort Worth, 76104 Economic Development Department Attention: Kelly N. Baggett, Innovation Coordinator Telephone: 817-392-2617 Email: Kelly.Baggett@fortworthtexas.gov With a copy to: City Attorney’s Office Attn: Matthew A. Murray 200 Texas Street Fort Worth, Texas 76102 Email: matthew.murray@fortworthtexas.gov [SIGNATURES APPEAR ON THE FOLLOWING PAGE] GRANTOR: VICKERY VILLAGE DEVELOPMENT LLC By: ________________ Name: Chad A. Colley Title: Manager GRANTEE: CITY OF FORT WORTH By: _______________________________ Name: Dana Burghdoff Title: Assistant City Manager Attest: __________________________________ Jannette S. Goodall City Secretary M&Cs: 22-0868 & 23-0602 Date: October 25, 2022 & June 27, 2023 APPROVED AS TO LEGALITY AND FORM ___________________________________ Matthew A. Murray Assistant City Attorney City of Fort Worth Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. Name of Employee Title : STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was ACKNOWLEDGED before me on _______________, 2023 by ____________________________________________________, ______________________ of ________________________________________________, a ________________________, on behalf of said _____________________________. Notary Public - State of Texas STATE OF TEXAS § § COUNTY OF TARRANT § This instrument was ACKNOWLEDGED before me on _______________, 2023 by ____________________________________________________, ______________________ of ________________________________________________, a ________________________, on behalf of said _____________________________. Notary Public - State of Texas 10/27/23, 1:04 PM CITY COUNCIL AGENDA Create New From This M8�C DATE: 10/25/2022 REFERENCE **M&C 22- NO.: 0868 LOG NAME: 17VICKERYVILLAGEEDPA CODE: C TYPE: CONSENT PUBLIC NO HEARING: �� RT�11 I SUBJECT: (CD 9) Authorize the Direct Sale of City Fee-Owned Property Located at 700 West Vickery Boulevard, Fort Worth, Texas for a Total Cost of $225,000.00 to Vickery Village Development, LLC, or an Affiliate, in Accordance with Section 272.001(b)(6) of the Texas Local Government Code and Authorize Execution of a Economic Development Program Agreement with Vickery Village Development, LLC, or an Affiliate, in an Amount not to Exceed $225,000 for a Mixed-Use Property Located on, orAdjacent to, 700 and 800 West Vickery Boulevard RECOMMENDATION: It is recommended that City Council: 1. Authorize the direct sale of City fee-owned property located at 700 West Vickery Boulevard, Fort Worth, Texas for a Total Cost of $225,000.00 to Vickery Village Development, LLC, or an affiliate, in accordance with Section 272.001(b)(6) of the Texas Local Government Code; and 2. Authorize the execution of a Economic Development Program Agreement with Vickery Village Development, LLC, or an affiliate, to provide a grant in an amount not to exceed $225,000.00 for a mixed-use development located on, or adjacent to, 700 and 800 West Vickery Boulevard. DISCUSSION: Vickery Village Development, LLC, or an affiliate, ("Developer") is proposing to develop a mixed-use development ("Project") on approximately 5 acres of property located at Vickery Boulevard near Hemphill Street adjacent to Interstate 30 at 700 and 800 W. Vickery ("Site"). The porprtion of the Site located at 700 W. Vickery (approximately .44 acres) is currently owned by the City of Fort Worth ("City"). The Project consists of a minimum 235-unit rental residential complex and a 3,500 square foot restaurant on a location that is currently challenged by several constraints, including the location of stormwater infrastructure, the impact of the adjacent I-30 overpass, and concrete remaining from a previous demolition. The Site is located within Tax Increment Reinvestment Zone 4(TIF 4). On August 3, 2022, the TIF 4 Board authorized $3,300,000.00 to support the Project through the reimbursement of certain costs relating to street, streetscape, and other public improvements. To facilitate the Project, the City intends to convey to the Developer, the City-owned property located at 700 West Vickery at a fair market value of $225,000.00, as determined by an appraisal obtained by the City. The proceeds of the sale will be used as a grant to the Developer through an Economic Development Program Agreement ("380 Agreement"). To qualify for the grant under the 380 Agreement ("Grant"), the Developer must spend, or cause to be spent, a minimum of $40 million on the development of the Project, with certain additional requirements relating to minimum hard costs and business equity spending for the Project. Completion of the Project must occur on or before December 31, 2026 ("Completion Deadline"). In addition to the requirements necessary to earn the Grant, perFormance by the Developer will be secured by a right of first refusal held by the City and an escrowed amount of $225,000.00 payable to the City in the event of a Developer default. Developer Commitments: a. Developer must invest at least $40 million in total development costs (hard and soft construction costs) on the Site by the Completion Deadline, with delivery of at least 235 multifamily units and at M&C Review apps.cfwnet.org/council_packeUmc_review.asp?ID=30420&councildate=10/25/2022 1 /2 10/27/23, 1:04 PM M&C Review least 3,500 square feet of retail or restaurant. Failure to deliver the required multifamily units by the Completion Deadline will be an event of default. Failure to deliver the required retail will result in a proportional reduction of the Grant based on the square footage shortfall of the Project. b. On or before the Completion Deadline, Developer must expend or cause to be expended at least $6,000,000 (hard and soft construction costs) for the Project with business equity frms ("BEF"). Failure to meet the BEF construction spending requirement, will result in a 10\% reduction of the maximum Grant amount for the Project. c. On or before the date of conveyance of the City-owned property, Developer will place $225,000 in escrow to secure perFormance of the Project under the 380 Agreement. City Commitments: a. City will facilitate the sale and conveyance to Developer of 700 West Vickery for the property's fair market value of $225,000.00, as has been determined by an appraisal obtained by the City, subject to a right of first refusal to be held by the City until the Developer obtains a building permit for the Project. b. City will provide to Developer a single, one-time Grant payment equal to the purchase price of the City-owned portion of the Site within 120 days after the successful completion and verification of all obligations described above. This project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that approval of this agreement will have no material effect on the Fiscal Year 2022 Budget. While no current year impact is anticipated from this action, any effect on expenditures and revenues will be budgeted in future Fiscal Years and will be included in the long- term financial forecast. TO Fund Department Account Project Program A ity Budget Reference # Amount ID ID� Year (Chartfield 2) Fund Department Account Project Program Activity Budget Reference # Amount ID ID Year (Chartfield 2) I Submitted for City Manager's Office by_ Originating Department Head: Additional Information Contact: ATTACHMENTS William Johnson (5806) Robert Sturns (2663) Kelly Baggett (2617) 220509 VickeryVillage FID Table.xlsx (CFW Internal) Form 1295 Certificate 600+700 Vickery_.pdf (CFW Internal) Vickery.JPG (Public) apps.cfwnet.org/council_packeUmc_review.asp?ID=30420&councildate=10/25/2022 2/2 10/27/23, 1:03 PM CITY COUNCIL AGENDA Create New From This M8�C DATE: 6/27/2023 REFERENCE **M&C 23- NO.: 0602 �� RT�11 I LOG NAME: 1717VICKERYVILLAGEEDPAA1 CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: (CD 9) Amend Mayor and Council Communication (M&C) 22-0868 Relating to an Economic Development Program Agreement with Vickery Village Development, LLC, or an Affiliate, to Waive the Affordable Housing Requirement Set Forth in Section 15.2 of the Economic Development Program Policy (Resolution No. 5338-01-2021) RECOMMENDATION: It is recommended that City Council amend Mayor & Council Communication (M&C) 22-0868 relating to an Economic Development Program Agreement with Vickery Village Development, LLC, or an Affiliate, to waive the affordable housing requirement set forth in Section 15.2 of the Economic Development Program Policy (Resolution No. 5338-01-2021) DISCUSSION: On October 25, 2022, City Council approved Mayor and Council (M&C) Communication 22-0860, authorizing the direct sale of City-owned property located at 700 West Vickery Boulevard, Fort Worth, Texas for a total cost of $225,000.00 to Vickery Village Development, LLC, or an affiliate (Developer), and execution of an Economic Development Program Agreement with the Developer in an amount not to exceed $225,000.00 to facilitate the development of a mixed-use property located on, or adjacent to, 700 and 800 West Vickery Boulevard (EDPA). The original M&C approved the EDPA pursuant to the Economic Development Program Policy then in effect (Resolution No. 5338-01-2021) (Policy), which required the Developer to meet certain affordable housing commitments for this type of project under Section 15.2. City staff is requesting a waiver to Section 15.2 of the Policy so that the Developer may proceed with the project as originally intended. This project is located in COUNCIL DISTRICT 9. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that approval of this agreement will have no material effect on the Fiscal Year 2023 Budget. While no current year impact is anticipated from this action, any effect on expenditures and revenues will be budgeted in future Fiscal Years and will be included in the long- term financial forecast. Fund Department Account Project Program Activity Budget Reference # Amount ID I I ID � I Year �(Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference # Amount ID ID Year �(Chartfield 2) Submitted for City Manager's Office by_ William Johnson (5806) Originating Department Head: Robert Sturns (2663) M&C Review apps.cfwnet.org/council_packeUmc_review.asp?ID=31232&councildate=6/27/2023 1 /2 10/27/23, 1:03 PM M&C Review Additional Information Contact: Kelly Baggett (2617) ATTACHMENTS 220509 VickeryVillage FID Table.xlsx (CFW Internal) Form 1295 Certificate 600+700 Vickerv_pdf (CFW Internal) Vickery Phase1.pdf (Public) apps.cfwnet.org/council_packeUmc_review.asp?ID=31232&councildate=6/27/2023 2/2