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HomeMy WebLinkAboutResolution - 2011-R0160 - Contract - Mcdowell House & Structural Movers - Sale And Removal, Residential - 04_14_2011^r - - i �i Resolution No. 2011-RO160 April 14, 2011 Item No. 5.8 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 10133 for sale and removal of residential improvements on 98t' Street, by and between the City of Lubbock and McDowell House & Structural Movers of Amarillo, Texas, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on April 14, 2011 �� la;�' - TOM RTIN, MAYOR ATTEST: Rebe a Garza, City Secretary APPROVED AS TO CONTENT: fiq�f� 40-14/ Marsha Reed, P.E., Chief Operations Officer APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs/RES.Contract-McDowell House & Structural Movers March 30, 2011 Resolution No. 2011—RO160 CITY OF LUBBOCK CONTRACT FOR SALE For Sale and Removal of Residential Improvements on 98th Street ITB 11-10032-FO Contract No. 10133 THIS CONTRACT, effective as of the date of execution hereof by Seller (the "Effective Date"), is made by and between McDowell House & Structural Movers (the `Buyer"), and the City of Lubbock, a Texas Home Rule Municipal Corporation (the "Seller"). WITNESSETH: WHEREAS, Seller owns certain real property located at 9801 Belmont Avenue, 9802 Belmont Avenue, 9801 Homestead Avenue, and 9801 Grover Avenue, Lubbock, Lubbock County, Texas (the "Real Property"); and WHEREAS, certain improvements and/or other structures are located upon the Real Property, and as depicted on Exhibit "A", attached hereto (collectively, the `Improvements"); and WHEREAS, Seller desires to sell and convey the Improvements to Buyer, but retain all right, title and interest to the Real Property. ARTICLE I SALE AND PURCHASE Section 1.1. Subject to the terms and conditions of this Contract, Seller shall sell and Buyer shall pay for, at closing, without warranty, either expressed or implied, the Improvements. It is expressly agreed and understood that this Contract does not contemplate the sale or purchase of any right, title or interest to the Real Property. ARTICLE II PURCHASE PRICE Section 2.1. Purchase Price. The Purchase Price (herein so called) to be paid by Buyer to Seller for the Improvements shall be S 10,000. Section 2.2. Earnest Money. Buyer shall deposit ten percent (10%) of the Purchase Price on March 29,' 2011, as Earnest Money (herein so called), in cash or cashier's check, with Davy Booher, P. O. Box 2000, Lubbock, Texas 79457, (806) 775-2352, upon execution of this Contract by Buyer. In the event Buyer shall not be awarded the bid for the purchase of the Property, the Earnest Money shall be returned to the Buyer, upon Buyer's execution of a release satisfactory in form and substance to Seller, on or before ten (10) business days after the awarding of the successful bid. Seller shall be deemed to have offered to return the Earnest Money deposit upon contacting Buyer at the address and/or phone number set forth in the Bid Form described in Section 10.01, below. Section 2.3. Payment of Purchase Price. The Purchase Price shall be payable to Seller, in cash or other immediately available funds, at the Closing. ARTICLE III INDEPENDENT INVESTIGATION AND DISCLAIMER Section 3.1. Independent Evaluation. Buyer has made an independent inspection and evaluation of the Improvements and acknowledges that Seller has made no statements or representations concerning the present or future value of the Improvements, the condition, including the environmental condition of the Improvements, or the anticipated income, costs, or profits, if any, to be derived from the Improvements. FURTHER, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE IMPROVEMENTS, MERCHANT ABILITY, OR FITNESS FOR PURPOSE OF ANY OF THE IMPROVEMENTS. Buyer further acknowledges that, in entering into this Contract, he/she has relied solely upon his/her independent evaluation and examination of the Improvements and public records relating to the Improvements and the independent estimates, computations, evaluations and studies based thereon. Seller makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Buyer, whether furnished by Seller or any other third party and acknowledges that he/she is not relying upon any such information. Reliance on any material so furnished shall not give rise to any cause, claim or action against Seller, its officers, employees, elected officials and/or agents, and any such reliance shall be at Buyer's sole risk. Section 3.2. Disclaimer -No Warranty, Expressed or Implied. THE CONVEYANCE. OF THE IMPROVEMENTS IS ON A "WHERE IS", "AS IS" AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO TITLE, DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE IMPROVEMENTS, QUALITY, VALUE, FITNESS FOR PURPOSE, MERCHANTABILITY, OR OTHERWISE. Buyer shall satisfy his or herself, prior to Closing, as to the type, condition, quality and extent of the Improvements and property interests which comprise the improvements he/she is receiving pursuant to this Contract. ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER Section 4.1. Representations and Warranties of Buyer. To induce Seller to enter into this Contract and to consummate the sale and purchase of the Improvements in accordance herewith, Buyer represents and warrants to Seller, as of the date hereof and the Closing Date: (a) Buyer has the full right, power and authority to purchase the Improvements from Seller as provided in this Contract and to carry out all of Buyer's obligations under this Contract, and all requisite action necessary to authorize Buyer to enter into this Contract and to carry out Buyer's obligations hereunder have been, or on or before Closing, will have been taken. (b) Buyer hereby acknowledges that Buyer has been advised by Seller that it should conduct, and Buyer acknowledges that it has conducted prior to the date hereof, all investigation activities described herein. (c) Buyer has not contracted or entered into any agreement with any broker, agent, finder, or any other party in connection with this transaction and has not taken any action which would result in any broker commissions or finders' fee or other fees payable to any other party with respect to the transaction contemplated by this Contract. Section 4.2. Covenants of Buyer. Buyer covenants and agrees with Seller as follows: (a) Any and all costs and fees related to authorizations, permit applications, applications for special exceptions and any other matter related to the movement and/or relocation of buildings within the City of Lubbock shall be the responsibility of, and shall be paid by, the Buyer. (b) Buyer or Buyer's sub contractor shall procure and carry, at its sole cost and expense through the completion of structure removal and final relocation of the Improvements, insurance protection as specified in the Bid Documents. (c) Buyer shall comply with all state and Federal statutes, regulations, rules and orders, and all City of Lubbock ordinances, related, in any way, manner or form, to the moving, relocation and demolition of buildings. (d) Buyer expressly agrees and understands that this Contract contemplates the sale of Improvements only, notwithstanding any attachment and/or other affixation of the Improvements to the Real Property, and this Contract does not contemplate the transfer or conveyance of any interest and/or title, in any way, manner or form, of the Real Property. Further, Buyer expressly agrees to remove the Improvements from the Real Property and transport same from the Real Property, in a good and workmanlike manner, and in compliance with the terms hereof and the Applicable Law, within 120 days after award of contract. In the event Buyer shall fail to completely remove the Improvements and transport the Improvements from the Real Property within said time, the Improvements, or any portion thereof remaining on the Real Property (the "Remaining improvements"), shall, at the election of Seller, either ( i) become the property of Seller, and Buyer expressly agrees that it forfeits any interest to the Remaining Improvements; or ( ii ) remove and/or demolish the remaining Improvements from the Real Property and the Buyer shall promptly pay to Seller, and be liable to Seller for, after credit for the deposit provided in Section 2.2, all costs incurred by the Seller in such activities. (e) Buyer shall conduct all such removal and relocation efforts in a good and workmanlike manner, and leave the condition of the Real Property in a clean and orderly condition, free of all debris, trash, building materials, and/or any other materials. On or before three (3) days after execution of this Contract by Seller, Buyer shall provide to Seller, an additional cash deposit, in an amount deemed by the Seller, by and through the Purchasing Manager, in its sole discretion, but not to exceed the sum of One Thousand and No/100 dollars ($1,000), sufficient to conduct all necessary cleanup activities upon the Real Property and to protect the existing condition of the Real Property. In the event the Buyer shall breach any material condition, covenant, representation, or warranty of this Contract, in addition to the exercise of other rights and remedies, said monetary deposit shall be forfeited to Seller. (f) Buyer shall not grant or convey, or allow to be created, any lien of any kind that attaches or may attach to the Improvements prior to the Improvements being completely removed and transported from the Real Property. Without limiting the general nature of the indemnity provided in Article VI, Buyer shall indemnify and hold Seller, Seller's elected officials, agents, employees and independent contractors harmless from and against any and all loss, liability and expense arising from, accruing due to, related to or as a result of any liens or any claims of any kind asserted by third parties for claims for labor or materials or any other matter related to the Improvements, including without limitation any claims related to the removal and/or relocation of the Improvements from the Real Property. Section 4.3. Survival Beyond Closing. The representations, warranties and covenants of Buyer contained in this Contract, as set forth in Section 4.2 shall survive the Closing. ARTICLE V CONDITIONS PRECEDENT TO PERFORMANCE Section 5.1. Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, notwithstanding the exercise of diligence and through no fault of Buyer, the necessary permits, all as provided by Section 4.2(a), shall have not been granted to Buyer within 60 days after award of contract. In the event Buyer shall not be able to acquire the necessary authorization, special exceptions, consents and permits required in Section 4.2(a), notwithstanding the exercise of diligence and through no fault of Buyer, within 60 days after award of contract (this Contract shall terminate at the option of Seller and Buyer shall be entitled to a return of the deposit provided in Sections 2.2 and 4.2(e). Section 5.2. Breach of Buyer's Representations. Warranties and Covenants. Seller is not obligated to perform under this Contract unless all of the representations, warranties, covenants and agreements of Buyer set forth in this Contract are true and correct in all material respects and have performed as of the Closing Date. ARTICLE VI INDEMNITY Section 6.1. Indemnity. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, AND SELLER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, HARMS AND LIABILITIES WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY, MANNER OR FORM, THE OCCUPATION OF CITY OWNED LAND, BY BUYER, OR HIS/HER EMPLOYEES, AGENTS AND/OR INDEPENDENT CONTRACTORS„ THE TRANSACTIONS AND ACTIVITIES CONTEMPLATED HEREUNDER, AND/OR THE OMISSION OF THE ACTIVITIES HEREUNDER, INCLUDING CLAIMS, DAMAGES, HARMS, AND LIABILITIES WHICH ARE CAUSED, OR CONTRIBUTED TO, BY THE NEGLIGENCE OR FAULT, OF ANY KIND, TYPE OR DEGREE, OF SELLER, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS. THE BUYER FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE SELLER, AND/OR THE SELLER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH CLAIM, DAMAGE, HARM AND LIABILITY AND TO PAY OR DISCHARGE THE FULL AMOUNT OR OBLIGATION OF ANY SUCH CLAIM, DAMAGE, HARM AND LIABILITY INCURRED BY, ACCRUING TO, OR IMPOSED ON THE SELLER, OR THE SELLER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, RESULTING FROM ANY SUCH SUITS, CLAIMS AND/OR ADMINISTRATIVE PROCEEDINGS OR ANY MATTERS RESULTING FROM THE SETTLEMENT OR RESOLUTION OF SAID SUITS, CLAIMS, AND/OR ADMINISTRATIVE PROCEEDINGS. IN ADDITION, THE BUYER SHALL PAY TO THE SELLER, THE SELLER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE, ALL REASONABLE ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING BUYER'S INDEMNITY IN THIS SECTION 6.1. Section 6.2. Survival Beyond Closing. The indemnity provisions contained in this Contract, as set forth in Section 6.1, shall survive the Closing. ARTICLE VIi CLOSING Section 7.1. Place and Time of Closing. The Closing (herein so called) shall take place on or before five (5) days after the completion of the activities required in Section 4.2(a) (the "Closing Date"), or a date otherwise mutually agreed upon by Buyer and Seller, in the offices of the City of Lubbock, Right of Way Agent, Davy Booher, 1625 13th Street, Lubbock, Texas. Section 7.2. (a) Items to be Delivered at Closing - Seller. At Closing, Seller shall deliver to Buyer, at its sole cost and expense, the following item: (i) A Bill of Sale, attached hereto as Exhibit "B", duly executed by Seller. items: (b) Items to be Delivered at Closing - Boyer. At Closing, Buyer shall deliver to the Seller the following (i) the cash sum required by Section 2.1, less the deposit previously made by Buyer as per Section 2.2; and (ii) any other items reasonably requested by the Seller as administrative requirements for consummating the Closing. ARTICLE Vill DEFAULTS AND REMEDIES Section 8.1. Seller's Default; Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract if Seller fails to meet, comply with, or perform in any material respect any obligation on Seller's part required within the time limits and in the manner required by this Contract. (b) Buyer's Remedies. If Seller is in default hereunder, Buyer may, as Buyer's sole and exclusive remedy, terminate this Contract by written notice delivered to Seller, at the below -described address, on or before the Closing Date, in which event, the monetary deposits made by Buyer, pursuant to Sections 2.2 and 4.2(e), shall be returned to Buyer. Section 8.2 Buyer's Default: Seller's Remedies. (a) Buyer's Defaults. Buyer is in default under this Contract if Buyer fails to: (i) meet, comply with, or perform in any material respect, any obligation on Buyer's part required herein; or (ii) deliver, within the time specified herein, or if no time is specified, on or before Closing Date, the items specified in this Contract, for any reason other than a default by Seller under this Contract. (b) Seller's Remedies. If Buyer is in default under this Contract, Seller may terminate this Contract and retain the monetary deposits required in Sections 2.2 and 4.2(e) and pursue any other remedy available to Seller by Contract, law or in equity. ARTICLE IX NOTICE Section 9.01. Notice. Whenever notice from Buyer to Seller or from Seller to Buyer is required or permitted by this Contract and no other method of notice is provided, such notice shall be given by (i) actual delivery of the written notice to the other party by hand or fax (in which case such notice shall be effective upon delivery); or (ii) by depositing the written notice in the United States mail, postage prepaid, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. Section 9.02. Seller's Address. The Seller's address and numbers for the purpose of notice are: SELLER: CITY OF LUBBOCK Davy Booher Right of Way Agent P. O. Box 2000 Lubbock, Texas 79457 Telephone: (806) 775-2352 Fax: (806) 775-3074 Section 9.03_ Buyer's Address. The Buyer's address and numbers for the purpose of notice are: BUYER: McDowell House & Structural Movers P.O. Box 9769 Amarillo, TX 79114 Telephone: 18 0613 5 8 -0 0 5 3 ARTICLE X MISCELLANEOUS Section 10.01. Entire Agreement. This Contract, including Exhibit "A", and Exhibit `B" hereto, and all documents made a part of the Bid (the "Bid Documents"), such Exhibits and Bid Documents being expressly made a part of this Contract, contain the entire agreement between the Seller and Buyer, and there are no other written or oral promises, conditions, warranties, or representations relating to or effecting the matters contemplated herein. Section 10.01 Amendment. No amendment, modification, or alteration of the terms of this Contract shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to the date of this Contract, and duly executed by the Seller and Buyer. Section 10.03. Construction and Venue. THIS CONTRACT AND THE TRANSACTIONS CONTEMPLATED HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS CONTRACT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS AND ACTIVITIES CONTEMPLATED HEREBY. Section 10.04. Severabilitv. If any provision, or part thereof, of this Contract is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstances, the remainder of this Contract and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. Section 10.05. Successors and Assigns. This Contract binds and inures to the benefit of the Seller and Buyer, and their respective successors, legal representatives, and assigns. Section 10.06. Cautions. The captions of articles and sections in this Contract are inserted in this Contract strictly for the parties' convenience in identifying the provisions to this Contract and shall not be given any affect in construing this Contract. Section 10.07 Delegation. Any action that is to be or may be taken by the Seller hereunder, is hereby delegated by the City Council of Seller to the City Manager or her designee. IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date. City of Lubbock, Texas Tom Martin, Mayor ATTEST: 5� RebeAa Garza, City Secretary APPROVED AS TO CONTENT: Davy Booher, Right of Way Agent APPROVED AS TO FORM: Chad Weaver, Assistant City Attorney Buyer: By: Name: Title: Resolution No. 2011-RO160 Exhibit A 199 19T 1" �(IaaI1°49p tl2l1e1{f°p�179�17 77I779j1JI74l?3� 72117110' 17p1 19Ais7I"19 161r1&7�9I{T°i116p�7'A41 Sel p Ip97169{1 °9p 1,6%',647 i69S ieS9 7pp 7p1 �fpI�TS3I7pS I 70S 7pe 7J7 7G° l ` I I I 1 l I ` I96TH STI+96T"H ST I If 1 230 231 = 14 2Y lee 231IS2 2S31S/ 176 ]eb U eT ISe ?59'299 191� e2 �Iq I94 w Ie3 le/ 299 790 799 7S9 77S T74 773 7e9 a M 747 229 232 _ tu e 247 SY 7]2 ]]1 77T > 319 7S1 3oe 2SSA = TM Q 73i < 24} 4 299 O 2p Sow 791 797 f.. 779 7Ti 791 742 < 934 331 319 X 79S S91 rMA }yy Q 739 2YA 339 320 319 W 314 3SpA 19M 1 J I9?A a} 79? 799 TIr 77} 762 7<t G 23e a 379 ; 7]9 J19 Jt3 SOfA 79/A 2 U I91A 2 79S 7:e®e JA rn 7Tp 763 1" 237 37T d 379 321 317 Q O ! 22A p� ?� 339 33r 322 311 70°A 299A 119IA 1°04' 1 9802 Belmont Ave 714 T39 12S 13! �' 339 3M 313 310 397A ~ 79M 2ytA 71A 27 7e9 7392722tl 741A 3Y O 325 I I ]74 7tN . 220A 297A 27IA279A 799 'a 791 11 mT19 73T 98TH ST 98TH ST 4n 40 497 49N ee 97 79 77 s1 L7 Se 1 14 11 20 11 T 31 4M 6 40 19! 4M e9 wy M 79 Te 8! j M S! 2 S 4 12 10 6 12 < 32 4a9 ~ 499 40 30 90 � 99 SS Z TS 70 Z SS W J S r 13 1e a,-:,2s � 33 464 w 3.4 UN 493 w 4!1 4W !9] IM D' 601 eS2 91 91 µ 9] 92 91 U 74 77 T2 71 Z M 913 A a1 4 S a 7 11 19 is >+ ?S ?• 27 % 42 99TH ST 99TH ST 99TH S7 % Oat w 'x Saoew 303 9J W 99 % 97 f9 4! 708 1p1102 4 ST >• Se S4 3] S2 U St ee Y 4a 49 44 u 1] Y 31 >t 37 t90 Z 47! 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Grantee has made an independent inspection and evaluation of the Improvements and acknowledges that Grantor has made no statements or representations concerning the present or future value of the Improvements, the condition, including the environmental condition of the Improvements, or the anticipated income, costs, or profits, if any, to be derived from the Improvements. FURTHER, GRANTOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE IMPROVEMENTS, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF ANY OF THE IMPROVEMENTS. Grantee further acknowledges that he/she has relied solely upon his/her independent evaluation and examination of the Improvements and public records relating to the Improvements and the independent estimates, computations, evaluations and studies based thereon. Grantor makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Grantee, whether furnished by Grantor or any other third party and acknowledges that he/she is not relying upon any such information. Grantor, its officers, employees, elected officials and agents assume no liability for the accuracy, completeness or usefulness of the material furnished by the Grantor, or any of its officers, employees, elected officials and/or agents, and/or any other third party. Reliance on any material so furnished shall not give rise to any cause, claim or action against Grantor, its officers, employees, elected officials and/or agents, and any such reliance shall be at Grantee's sole risk. THE CONVEYANCE OF THE IMPROVEMENTS IS ON A "WHERE IS", "AS IS" AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO TITLE, DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE IMPROVEMENTS, QUALITY, VALUE, FITNESS FOR PURPOSE, MERCHANTABILITY, OR OTHERWISE. Grantee has satisfied his or herself, as to the type, condition, quality and extent of the Improvements and property interests which comprise the Improvements he/she is receiving pursuant to this Bill of Sale. TO HAVE AND TO HOLD all of Grantor's right, title and interest in and to the Improvements unto said Grantee and Grantee's successors and assigns forever, so that neither Grantor nor Grantor's successors and assigns shall have, claim or demand any right or title to the Improvements. Effective this day of 2011. GRANTOR: CITY OF LUBBOCK GRANTEE: