HomeMy WebLinkAboutContract 30147 CITY SECRETARY
CONTRACT NO ,
TRUSTEE AGREEMENT
THIS TRUSTEE AGREEMENT ("Agreement") is entered into to be effective as of June
15, 2004, between THE CITY OF FORT WORTH, TEXAS ("Purchaser") and MICHAEL
BALL, TRUSTEE ("Trustee"), and relates to Purchaser's proposed purchase of the tracts of land
in the City of Forest Hill, Texas, currently owned by three private entities as described on
Exhibit "A" (collectively or individually, the "Property"), which is attached to this Agreement
and incorporated in it by reference.
RECITAL
Purchaser proposes to engage Trustee to endeavor to purchase and hold record title to the
Property entirely for and on behalf of Purchaser, and Trustee desires to furnish these services
subject to the terms and conditions of this Agreement.
For and in consideration of the sum of Ten Dollars ($10.00) cash and good and valuable
consideration, including the mutual agreements set forth in this Agreement, which the parties
acknowledge receiving, Purchaser and Trustee agree as follows:
1. Representations and Covenants of Trustee. Trustee represents and covenants to
Purchaser as follows:
(a) Trustee does not directly or indirectly own or claim any right, title or
interest in and to the Property.
(b) Except as permitted under this Agreement, Trustee may not convey or
encumber all or part of the Property without Purchaser's prior written consent.
(c) At any time, upon Purchaser's request, Trustee shall execute and deliver to
Purchaser and/or Purchaser's designee, successors, or assigns, assignments of Contracts
(defined below), deeds, affidavits, and any other documents requested by Purchaser to
convey the Property to Purchaser.
(d) Trustee may not disclose to any person (including the sellers of the
Property), the existence of this Agreement, Purchaser's interest in the Contracts (defined
below), Purchaser's beneficial ownership of the Property, or the identity of Purchaser
unless Purchaser consents in writing, which consent Purchaser may withhold in its sole
discretion.
2. Services of Trustee. Trustee shall furnish the services set forth below:
(a) Trustee shall enter into letters of intent and purchase contracts for the
Property with its respective owners (individually, a "Contract" and collectively, the
"Contracts") and shall diligently proceed to purchase the Property to the extent
reasonably possible and consistent with the terms of each Contract. Nevertheless,
Purchaser retains ultimate approval rights over each Contract, an
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discretion and at any time before Closing (defined below), instruct Trustee to proceed
with, abandon, or modify the plan (including the Contract) for acquiring the Property.
(b) If requested by Purchaser, at each closing of the purchase of the Property
("Closing"), Trustee shall accept, as grantee, a warranty deed from the seller of the
Property, as grantor.
(c) If requested by Purchaser, at each Closing, Trustee shall deliver the sales
price to the seller of the Property.
(d) If requested by Purchaser, at each Closing, Trustee shall execute any other
documents that are necessary to consummate Trustee's acquisition of the Property.
(e) If requested by Purchaser, Trustee shall, upon receipt of the Commission
(defined below), execute a written acknowledgement that he has received his
Commission and is not entitled to any lien on the Property under Chapter 62 of the
Texas Property Code. Trustee may only file a lien under Texas Property Code Chapter
62 if complete consummation and funding of the sale of the Property has occurred at
Closing and all conditions of this Agreement have been fulfilled so that the Commission
has become earned and payable under this Agreement, but Trustee has not been paid his
Commission.
3. Term of Agreement. The term ("Term") of this Agreement is effective until the
earlier of: (a) the date upon which Trustee has transferred record ownership of all of the Property
to Purchaser or to Purchaser's designee, successors, or assigns; or (b) the date upon which
Purchaser terminates this Agreement pursuant to Section 7 of this Agreement.
4. Independent Contractor. Purchaser and Trustee agree that, in performing its
obligations under this Agreement, Trustee is an independent contractor. Nothing contained in
this Agreement or in the relationship of Purchaser and Trustee may be deemed to constitute a
partnership,joint venture, or employer/employee relationship between Purchaser and Trustee.
5. Trustee Compensation. Purchaser and Trustee agree as follows:
(a) Purchaser shall pay Trustee a commission ("Commission") equal to five
percent (5%) of the purchase price of the Property (as defined in each Contract).
Nevertheless, if Trustee or his affiliated entity, Michael Ball Realty Corporation,
receives a commission from a seller of the Property in connection with a purchase
transaction (a"Seller Commission"),then the amount of the Commission payable under
this Section 5(a) will be offset by an amount equal to the Seller Commission received
by Trustee or his affiliate. Notwithstanding anything to the contrary contained herein,
the Commission will be earned and become payable only after the following conditions
precedent have all been satisfied:
(i) Trustee executes a Contract for the Property acceptable to
Purchaser, in Purchaser's sole discretion, in form and substant;7-M
Term of this Agreement expires;644261_2
(ii) The purchase transaction under the Contract is completely
consummated and funded; and
(iii) Trustee has timely performed all material covenants and
obligations and complied with all conditions required by this Agreement.
(b) Trustee's Commission will be paid in full at Closing by Purchaser.
(c) Purchaser shall reimburse Trustee for reasonable out-of-pocket expenses
incurred by Trustee in performing his duties under this Agreement, including the delivery
of earnest money under each Contract. Purchaser is responsible for any and all costs
associated with Trustee's acquisition of the Property in accordance with each Contract
(including the costs of any due diligence investigations, consultants' fees, surveys, the
sales price, real property taxes, and insurance premiums), whether allocated to Trustee as
buyer under the Contract or desired by Purchaser in its sole discretion.
(d) Trustee represents and warrants to Purchaser that Trustee is a licensed
Texas Real Estate Broker.
(e) This Section 5 controls all other provisions of this Agreement.
6. INDEMNITY. TO THE EXTENT PERMITTED BY LAW, PURCHASER
SHALL INDEMNIFY AND HOLD HARMLESS TRUSTEE FROM AND AGAINST ANY
AND ALL LABILITIES, CLAIMS, DAMAGES, AND COSTS (INCLUDING COURT
COSTS AND REASONABLE ATTORNEYS' FEES) INCURRED BY TRUSTEE AS A
RESULT OF TRUSTEE'S HOLDING RECORD TITLE TO THE PROPERTY ON
BEHALF OF PURCHASER, BUT NOT INCLUDING ANY LIABILITIES, CLAIMS,
DAMAGES, OR COSTS RESULTING FROM TRUSTEE'S NEGLIGENCE OR
WILLFUL MISCONDUCT.
7. Termination. Purchaser and Trustee agree as follows:
(a) Purchaser shall have the right to terminate this Agreement at any time for
any of the following reasons:
(i) For cause, which for purposes of this Agreement includes, without
limitation:
(1) Trustee's negligence or misconduct that would make his
continued association with Purchaser prejudicial to the best interests or
reputation of Purchaser;
(2) the filing of a petition in bankruptcy by, against, or on behalf
of Trustee;
(3) an adverse change in the financial condition of Trust e which
affects the ability of Trustee to perform the rvices required here der; or
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(4) Trustee's breach of any term or condition of this Agreement.
(ii) Without cause, for Purchaser's convenience.
(b) Termination for Purchaser's Convenience. In the event of termination for
Purchaser's convenience, Purchaser will incur no liability to Trustee by reason of such
termination, except that Trustee will be compensated for all services performed before
the termination date, together with reimbursable expenses then due or incurred, all as
described in Section 5.
8. Miscellaneous. Purchaser and Trustee agree as follows:
(a) Trustee may not assign this Agreement or the Contracts or any of his right,
title, or interest under this Agreement or under the Contracts without Purchaser's prior
written consent, which Purchaser may withhold for any reason, in its sole and absolute
discretion.
(b) Purchaser may enforce Trustee's obligations under this Agreement by
specific performance.
(c) This Agreement constitutes the entire Agreement by and between
Purchaser and Trustee regarding this subject. There are no written or oral representations
or agreements that are not fully expressed in this Agreement.
(d) This Agreement inures to the benefit of and binds the parties and their
respective personal and legal representatives, executors, administrators, devisees, heirs,
successors, and assigns. But this statement may not be deemed a waiver of the
prohibitions against assignment expressed in Section 8(a) above.
EXECUTED as of the date first set forth above.
PURCHASER:
/ 2U THE CITY OF FORT WORTH, TEXAS
Olt! iGS- AAV"-7 � By: Pjlu�
Name:
' Title:
TRUSTEE:
ATTESTED BY
MICHAEL BALL, TRUSTEE
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