HomeMy WebLinkAboutContract 32174 CITY SECRETARY
CONTRACT NO.
RATIFICATION AND AMENDMENT OF PURCHASE CONTRACT
THIS RATIFICATION AND AMENDMENT OF PURCHASE CONTRACT ("Ratification and
Amendment") is made and entered into by and between the CITY OF FORT WORTH, TEXAS, acting
by and through its duly authorized City Manager or Assistant City Manager ("Seller"), and FORT
WORTH SOUTHSIDE DEVELOPMENT DISTRICT, INC. dba FORT WORTH SOUTH, INC., a
Texas non-profit corporation ("Purchaser"), as of the date on which this Ratification and Amendment is
executed by the last to sign of Seller and Purchaser("Effective Date").
RECITALS
A. Seller and Purchaser entered into a Purchase Contract (City Secretary Contract No.
28494) dated as of March 27, 2003 and subsequently amended by a First Amendment to Purchase
Contract (collectively, the "Contract") for the sale and purchase of the approximately 406,166.80 square
foot tract of land described as Lot IA, Block 6R, Mistletoe Heights Addition to the City of Fort Worth,
Tarrant County, Texas, which is situated at the northeast corner of Forest Park Boulevard and Rosedale
Street in Fort Worth, Texas, together with any easements, rights-of-way, licenses, interests, and rights
appurtenant thereto(collectively, the"Property").
B. Purchaser is a non-profit corporation organized to promote the social welfare, within the
meaning of Internal Revenue Code Section 501(c)(4), of the people and businesses in the Southside
Medical District area of Fort Worth, Texas, by promoting and assisting in the improvement of the
economy, employment opportunities, and residential and business quality of life in that area.
C. In the course of Purchaser's due diligence on the Property pursuant to the Contract,
Purchaser discovered certain methane gas, surface contamination, subsurface contamination, and soil
stability issues on the Property ("Environmental Conditions") that will require substantial remediation
prior to the Property being suitable for development as a mixed use project.
D. Due to the Environmental Conditions, the Contract terminated as of June 30, 2004.
E. Despite such termination, the Title Company continues to hold the Earnest Money
(including any Additional Earnest Money)of$40,616.68.
F. Purchaser is now willing to reinstate the Contract and to proceed with the purchase of the
Property on an AS IS basis without representation once certain contract contingencies are satisfied.
G. Except as otherwise defined herein, all of the defined terms in this Ratification and
Amendment have the same meanings given to those terms in the Contract.
AGREEMENT
In consideration of the mutual covenants in this Ratification and Amendment, Seller and
Purchaser agree as follows:
1. Ratification of Contract. Seller and Purchaser ratify and reinstate the Contract, as amended
hereby, as of the Effective Date of this Ratification and Amendment and confirm that the foregoing
recitals are true and correct in all material respects.
2. Amendment of Contract. Seller and Purchaser amend the Contract as follows: '
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A. Property. The Property consists of (i) all of Lot 1, Block 6-R, Mistletoe Heights an
Addition to the City of Fort Worth, Tarrant County, Texas, according to the plat recorded in Volume 388-
160, Page 42, Plat Records, Tarrant County, Texas, SAVE AND EXCEPT that portion conveyed to the
State of Texas by deed recorded in Volume 14173, Page 409, Deed Records, Tarrant County, Texas ("Lot
1, Block 6-R"); (ii) that certain 0.04 acre tract conveyed to the City of Fort Worth by deed recorded in
Volume 8672, Page 1282 of the Real Property Records of Tarrant County, Texas ("0.04 acre FW Tract");
(iii) that certain 0.60 acre, more or less, Forest Park/Rosedale right-of-way tract (to be abandoned) located
adjacent to -- and southwest of-- Lot 1, Block 6-R ("Forest Park/Rosedale ROW Tract"); and (iv) that
certain 0.10 acre, more or less, right-of-way tract (to be abandoned) conveyed to the State of Texas by
deed recorded in Volume 14173, Page 409, Deed Records, Tarrant County, Texas ("TXDOT ROW
Tract").
B. Purchase Price. Section 2 of the Contract is amended to provide that the Purchase Price
for all of the Property as described in Paragraph 2.A of this Ratification and Amendment (other than the
TXDOT ROW Tract) is $2,314,966.00. In exchange for the promises, indemnifications and releases
contained in Section B.1 below, the Purchase Price shall be reduced by $1,000,000.00 (resulting in a final
Purchase Price of$1,314,966.00). The Purchase Price, as reduced, includes all interest accrued pursuant
to Section 7(c) of the Contract and is not subject to any further interest calculation. The Purchase Price
for the TXDOT ROW Tract will be the same purchase price paid by the Seller to the State of Texas for
the Seller's acquisition of the TXDOT ROW Tract, without any markup or multiplier.
B.I. ACCORDINGLY, EXCEPT AS EXPRESSLY STATED IN THE CONTRACT OR IN
THE DEED, PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS, TO, CONCERNING
OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY,
(B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY
CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY,
OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY,
THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL
PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR
REQUIREMENTS, INCLUDING SOLID WASTE, AS DEFINED BY THE U.S.
ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR
THE DISPOSAL OR EXISTENCE IN OR ON THE PROPERTY OF ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND REGULATIONS
PROMULGATED THEREUNDER. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE
PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATIO .. vt,.Jrp
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PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY
SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT,
SELLER AND PURCHASER AGREE THAT PURCHASER IS TAKING THE PROPERTY "AS
IS" WITH ANY AND ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO
WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE.
PURCHASER ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY
REPRESENTATIONS, STATEMENTS, ASSERTIONS OR NON-ASSERTIONS BY THE
SELLER WITH RESPECT TO THE PROPERTY CONDITION, BUT IS RELYING SOLELY
UPON ITS EXAMINATION OF THE PROPERTY. PURCHASER TAKES THE PROPERTY
UNDER THE EXPRESS UNDERSTANDING THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES (EXCEPT FOR LIMITED WARRANTIES OF TITLE SET FORTH IN THE
CLOSING DOCUMENTS). AFTER CLOSING, AS BETWEEN PURCHASER AND SELLER,
THE RISK OF LIABILITY OR EXPENSE FOR ENVIRONMENTAL PROBLEMS AFFECTING
THE PROPERTY, EVEN IF ARISING FROM EVENTS BEFORE CLOSING, WILL BE THE
SOLE RESPONSIBILITY OF PURCHASER, REGARDLESS OF WHETHER THE
ENVIRONMENTAL PROBLEMS WERE KNOWN OR UNKNOWN AT CLOSING. ONCE
CLOSING HAS OCCURRED, PURCHASER INDEMNIFIES, HOLDS HARMLESS AND
RELEASES SELLER FROM LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, UNDER THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA), THE
RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE
DISPOSAL ACT OR THE TEXAS WATER CODE; PROVIDED, HOWEVER, PURCHASER'S
OBLIGATIONS UNDER THIS PARAGRAPH B.I. SHALL NOT APPLY TO ANY CLAIM OR
EXPENSE BY OR WITH RESPECT TO ANY OWNER OR TENANT OF NEIGHBORING
PROPERTY THAT INVOLVES AN ENVIRONMENTAL PROBLEM OR CONDITION ON OR
AFFECTING THE NEIGHBORING PROPERTY PRIOR TO THE CLOSING SO LONG AS
PURCHASER USES ALL REASONABLE EFFORTS ON THE PROPERTY TO ALLEVIATE
THE POTENTIAL OFF-SITE MIGRATION OF CONTAMINANTS. PURCHASER
INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR
ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY ARISING
AS THE RESULT OF SELLER'S OWN NEGLIGENCE OR THE NEGLIGENCE OF SELLER'S
REPRESENTATIVES, BUT NOT ANY WILLFUL ACTS OR OMISSIONS OR GROSS
NEGLIGENCE OF SELLER OR SELLER'S REPRESENTATIVES. PURCHASER
INDEMNIFIES, HOLDS HARMLESS AND RELEASES SELLER FROM ANY LIABILITY FOR
ENVIRONMENTAL PROBLEMS OR CONDITIONS AFFECTING THE PROPERTY ARISING
AS A RESULT OF THEORIES OF PRODUCTS LIABILITY AND STRICT LIABILITY, OR
UNDER NEW LAWS OR CHANGES TO EXISTING LAWS ENACTED AFTER THE
EFFECTIVE DATE THAT WOULD OTHERWISE IMPOSE ON SELLER IN THIS TYPE OF
TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS OR CONDITIONS
AFFECTING THE PROPERTY. PROVISIONS OF THIS SECTION SHALL SURVIVE THE
CLOSING. IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE PROPERTY IS
SOLD BY SELLER AND PURCHASED BY PURCHASER SUBJECT TO THE FOREGOING.
PURCHASER ACKNOWLEDGES AND ACCEPTS ALL THE TERMS AND PROVISIONS BY
HIS ACCEPTANCE HEREOF.
13.2. The provisions of Section B.I of this Contract must be incorporated into the Deed.
C. Title Commitment and Survey. Within 15 days after the Effective Date of this
Ratification and Amendment, Purchaser shall obtain an updated Title Commitment and an updated
Survey for the Property. Provided the updated Title Commitment and Survey contain
F(1RT WORTI4 C(N IT TIKAINF77F l " '" - -- _ r
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encumbrances from those listed on the Title Commitment with an effective date of February 13, 2004,
issued by Title Company on February 27, 2004 (G.F. No. 02-1012022-Revised), then Purchaser has no
right to further objection to the Title Commitment except as follows("Title Objections"):
(i) standby fees, taxes, and assessments must not be delinquent;
(ii) there must be no exception for any parties in possession;
(iii) there must be no general exception for visible and apparent easements over the
Property;
(iv) the Property must also include the Forest Park/Rosedale ROW Tract and the
TXDOT ROW Tract identified on those certain title commitments dated March 26, 2004, and
issued by the Title Company on March 10, 2004 (G.F. Nos. 04-1017938) and dated February 13,
2004, and issued by the Title Company on February 27, 2004 (G.F. No. 04-1017789),
respectively, together with the 0.04 acre FW Tract; and
(v) all Schedule C items in the Title Commitment must be satisfied so that none of
these items will appear as exceptions of the Owner Policy.
A Closing Contingencies. Section 7 of the Contract is amended to provide that the only
remaining Closing Contingencies are the following:
(i) Purchaser and Seller having agreed upon the location of a sanitary sewer
easement to be dedicated to Seller, at no cost to Seller, located on or adjacent to the Property;
(ii) Purchaser and Seller having agreed upon either a slope easement along the
northwest boundary of the Property or a retaining wall system in lieu of a slope easement;
(iii) Seller having approved Purchaser's proposed replat of the Property in which the
portion of Jerome Street abutting the Property is abandoned and incorporated into the Property;
(iv) Purchaser having entered into an agreement with the City of Fort Worth Tax
Increment Financing District 44 ("TIF #4) regarding infrastructure improvements on or adjacent
to the Property as outlined in a briefing to TIF #4's Board of Directors on February 10, 2005; and
(v) The Title Objections having been satisfied;
(vi) Purchaser shall enroll the Property into the Texas Commission on Environmental
Quality (TCEQ) Voluntary Cleanup Program (VCP). "Enrollment" shall include but shall not be
limited to submitting the VCP application to TCEQ and paying all required fees; and
(vii) Purchaser will make a good faith effort to secure the needed right-of-way from
the adjacent property owner to establish Midtown Boulevard and dedicate it as a public right-of-
way. If after six (6) months following the Closing, Purchaser is not able to complete that
transaction, then Seller shall exercise its right of eminent domain and condemn the needed right-
of-way to establish the public street. The Seller must commence the required legal action no later
than six (6) months following the Closing.
If these Closing Contingencies are not satisfied to Purchaser's satisfaction so that Purchaser is repared to
close on or before September 1, 2005, then Purchaser must either (1) terminate the Cont
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such termination Seller shall retain the Earnest Money, and neither party will have any further rights or
obligations hereunder, or(2) extend the period for Closing for a reasonable period up to sixty (60) days to
complete any actions necessary to satisfy the remaining Closing Contingencies. If Purchaser elects the
option to extend the period for Closing as set forth in Option (2) above and if the remaining Closing
Contingencies are not satisfied by such extended date, then Purchaser may thereafter elect to terminate the
Contract as provided in Option (l) above.
E. Closing Date. Section 8 of the Contract is amended to provide that Closing shall occur
on or before September 1, 2005, subject to extension as set forth in Paragraph 2.D. of this Ratification and
Amendment. At the Closing, Purchaser shall deliver to Seller the Purchase Price as adjusted for closing
costs and prorations. The Earnest Money (including any Additional Earnest Money) shall be applied to
the Purchase Price at Closing.
F. Disclosure of Seller and Covenants of Purchaser and Seller. Regarding the
Environmental Condition of the Property, Purchaser acknowledges that Seller has advised it of the
presence of contaminants on the Property and the likelihood that additional investigative studies will be
required prior to the development of final remedial measures acceptable to the Texas Commission on
Environmental Quality (TCEQ). Purchaser and Seller agree that the Texas Voluntary Cleanup Program
(VCP) is an effective means of obtaining governmental review and approval as to the scope of further
investigation and the need for and scope of remedial measures. Purchaser agrees to diligently pursue
obtaining a VCP Certificate for the Property under terms and conditions acceptable to Purchaser in its
sole and absolute discretion. Seller agrees to reasonably cooperate with Purchaser in regard to the VCP
application and remedial measures and to not take any action that would preclude or restrict Purchaser
from obtaining a VCP Certificate acceptable to Purchaser.
G. Access to Property. Seller agrees to permit Purchaser and Purchaser's agent reasonable
access to the Property prior to Closing for the purpose of inspecting the Property and the improvements
located thereon. Any engineering and feasibility tests shall be conducted at Purchaser's sole risk and
expense, and Purchaser agrees to indemnify and defend Seller and the Property from any liens and claims
resulting from such tests. Purchaser shall be solely responsible for all costs of any environmental site
assessments Purchaser deems necessary. The Property will be restored by Purchaser to its original
condition at Purchaser's sole expense following any site work. In the event this transaction does not close
for any reason whatsoever, the Purchaser shall release to Seller any and all independent test studies or test
results obtained during this inspection period.
(signature blocks on following page)
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Except as amended by this Ratification and Amendment, all of the terms and conditions of the
Contract are ratified and remain in full force and effect. This Ratification and Amendment is executed as
of the Effective Date.
SELLER: CITY OF FORT WORTH
By:
APPROVED AS TO Name: L)4Z-c A ICSs�C�/1
FOR ND LEGALITY: Title: �1s5, -T-A C
Date: -7
ASST ANT CITY ATTORNEY
PURCHASER: FORT WORTH SOUTHSIDE
DEVELOPMENT DISTRICT, INC.
dba FORT WORTH SOUTH, INC.
A�te�rcd r,,- —�
By:
fN�\ UAI—xk—LL�L� —
Dona W. Scott, President
Alarty Hendri-x Date: 7
City Secretary
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 5/31/2005
DATE: Tuesday, May 31, 2005
LOG NAME: 17SOUTHAMEND3 REFERENCE NO.: C-20775
SUBJECT:
Authorization to Amend and Extend the Purchase Agreement to Sell City-Owned Property Located
at the Northeast Corner of Forest Park Boulevard and Rosedale Street to Fort Worth South, Inc. in
Accordance with Section 272 of the Texas Local Government Code (Mid-Town Development)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to amend the Purchase Agreement with Fort Worth South, Inc. (Contract
No. 28494) to extend the option period to August 1, 2005; and
2. Authorize the City Manager to execute an appropriate deed conveying the property to Fort Worth
South, Inc. and record the deed, if the terms of the option agreement as amended are satisfied.
DISCUSSION:
On March 18, 2003, (M&C L-13515) the City Council authorized the sale of 9.34 acres of property located at
the northeast corner of Forest Park Boulevard and Rosedale Street to Fort Worth South, Inc. for
$2,030,834.00. Fort Worth South, Inc. proposes to build a mixed-use development consisting of a hotel,
retail, office, structured parking, residential and a major anchor totaling 337,000 square feet — total project
costs of over $27 million. This project is known as the Mid-Town Development.
Since 2003, Fort Worth South, Inc. in a joint venture with Trademark Property Company, has worked to
fulfill the terms of the option agreement. On March 23, 2004, City Council passed M&C C-19999 amending
the Option agreement to modify the zoning change requirements and extending the option period to May
31, 2004. The agreement was extended on June 29, 2004 ( M & C C-20130) to August 20, 2004.
Since June of 2004, the Purchaser has been conducting a limited Phase II Environmental Assessment of
the Property. It has been determined that there are some environmental conditions that need to be
addressed. As a result, City staff proposes amending the Purchase Agreement as follows:
- Purchaser will pay an additional $138,355.00 for the adjacent right-of-way owned by City. Thereby
making the Purchase price plus interest $2,314,966.00.
The purchase price will be adjusted as follows:
In consideration of purchaser purchasing the property "As-Is" and purchaser indemnifying and holding the
City harmless from all liability as a result of the environmental condition of the property, City will reduce the
purchase price by $1,000,000.00. City staff believes that the $1,000,000.00 represents the cost to clean up
the property.
Logname: 17SOUTHAMEND3 Page 1 of 2
All other provisions contained in the option agreement and (M&C L-13515) remain the same.
This property is located in COUNCIL DISTRICT 9, Magnolia Village Neighborhood Empowerment Zone.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that Engineering Department, Real Property Management Division is
responsible for collection and deposit of funds from this sale.
TO Fund/Account/Centers FROM Fund/Account/Centers
GC01 444552 013010001000 $1,314,966.00
Submitted for City Manager's Office by: Dale Fisseler (6140)
Originating Department Head: Tom Higgins (6192)
Additional Information Contact: Cynthia Garcia (7611)
Logname: 17SOUTHAMEND3 Page 2 of 2