HomeMy WebLinkAboutResolution - 2011-R0117 - Contract Of Sale - Southwest Convenience Stores LLC - 03/22/2011Resolution No. 2011-80117
March 22, 2011
Item No. 5.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
SECTION 1. THAT the Mayor of the City of Lubbock is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Contract of Sale for the
purchase of certain real property, by and between the City of Lubbock and Southwest
Convenience Stares, LLC, a Texas limited liability company, and related documents.
Said Contract of Sale 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
ATTEST:
Rebe ca Garza, City Secretary
APPROVED AS TO CONTENT:
I
Rob Allisa ,ssl anager
Dave Booher, Right -of -Way Agent
APPROVED AS T -a FORM:
Im
March 22, 2011
TOM MARTIN, MAYOR
Attorney
vw:ccdocs/RES.Contract of Sale -Southwest Convenience Stores
March 3, 2011
CONTRACT OF SALE
STAT):,'. OF TEXAS
Resolution No. 2011-80117
COUNTY OF LUBBOCK
This Contract of Sale (the "Contract") is made this � day of�� � . 2E)11.
effective as of the date of execution hereof by Buyer, as defined herein, (the "Effective Date-).
by and between Southw-cst Convenience Stores, LLC, a Texas limited liability company (referred
to herein as "Seller") and the CITY OF LUBBOCK. TEXAS, a Home. Rule ?Municipal
Corporation of Lubbock County, 'Texas (referred to herein as "Buyer").
RECITALS
WHEREAS, Seller owns that certain tract of land described as Lot 1. Block 114, Overton
Addition, an Addition to the City of Lubbock, Lubbock County, Texas, according; to the Map,
Plat andr`or Dedication Deed thereof recorded in Volume 18, Page 610 of the Deed Records of
Lubbock County, Texas (the "Land"); and
ti"v HEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, a
certain portion of the Land together with all and singular the permanent improvements attached
thereto and all other property of Seller attached to the land (herein "Improvements")_ and all
other rights and appurtenances to the Land, except as may be provided herein (collectively, the
"Property"). and as further and more particularly described and depicted in Exhibits "A" and "A-
1" attached hereto.
ARTICLE I
SALE OF PROPERTY
For the consideration hereinafter set forth, and upon the terms, conditions and provisions
herein contained, Seller agrees to sell and convey to Buyer_ and Buyer agrees to purchase from
Seller, the Property.
ARTICLE 1I
PURCHASE PRICE AND EARNEST MONEY
2.01 Purehase Price. The Purchase Price to be paid to Seller for the Property is the sum of
THRI:I HUNDRED THIRTY -NONE SEVEN I U`NDRED FIFTY-SEVEN and N0.100 Dollars
($319,757.00) (Che "Purchase Price").
ARTICLE III
TITLE AND SURVEY
3,01 Title Commitment. The parties hereto acknowledge that a Title Commitment for the
Property has been obtained and has been reviewed by the parties.
3.02 Title Policy. At Closing. Seller, at Buyer's sole cost and expense, shall cause a standard
"Texas Owner Policy of 'ride Insurance ("Title Policy") to be furnished to Buyer. The: Title
Policy shall be issued by Lubbock Abstract & Title Company, 1216 Texas Avenue, Lubbock.
Texas 79401 ("the Title Company") in the amount and on the terms and conditions as set forth in
the Title Commitment, subject only to the Permitted Exceptions; provided, however. in the event
Buyer obtains the survey and elects to have the survey exception amended, the survey exception
must be amended to read "shortages in area" only (although Schedule C of the Title
Commitment may condition amendment on the presentation of an acceptable survey and
payment, to be borne solely by Buyer, of any required additional premium).
ARTICLE IV
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
4.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract
and consummate the sale and purchase of the Property in accordance with the terms and
provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of
the Closing Date, except where specific reference is made to another date, that;
(a) There are no adverse or other parties in possession of the Property or any part
thereof, and no party has been granted any license, lease or other right related to
the use or possession of any of the Property, or any part thereof.
(b) The Seller has the full right, power, and authority to sell and convey the Property
as provided in this Contract and to carry out Seller's obligations hereunder.
(c) The Seller has not received notice of, and has no other knowledge or information
of, any pending or threatened judicial or administrative action, or any action
pending or threatened by adjacent landowners or other persons against or
affecting the Property. This representation is limited to the Effective Date.
(d) To the Seller's knowledge, the Seller has paid all real estate and personal property
takes, assessments, excises, and levies that are presently due, if any, which are
against or are related to the Property, or will, except for the year of Closing, be
due as of the Closing, and the Property will be subject to no such liens.
(e) Seller has not contracted or entered into any agreement with any real estate
broker, agent, finder, or any other party in connection with this transaction or
taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated in this Contract.
4.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as
follows;
(a) After the Effective Date and before the date of Closing, or earlier termination of
this Contract, as the case may be, Seller shall:
(i) Not, except as permitted herein, enter into any written or oral
contract, lease, easement or right of way agreement, conveyance or any
other agreement of any kind with respect to, or affecting, the Property
Contract of sale _. Southwest Convenience Stores, LLC
Pa -6e 2 of i 2
(herein "Nonpermitted :agreements") that will not be fully performed on
or before the Closing. or would be binding on Buyer or the Property after
the date of Closing.
(ii) Advise the Buyer promptly of any litigation, arbitration, or
administrative hearing concerning, or affecting the Property.
(iii) Not take, or omit to take, any action that would result in a violation
of the representations, warranties, covenants, and agreements of Seller.
(iv) Not, except as may be approved by Buyer in writing, sell, assign,
lease or convey any right.. title or interest whatsoever in or to the Property,
or create, or permit to exist, any lien, encumbrance, or charge thereon,
except as will be satisfied at Closing, unless waived by Buyer. or for ad
valorem taxes for the year of Closing.
(v) Maintain a fire and extended coverage insurance policy in the
standard promulgated form and with standard terms, which will include
but is not limited to losses from storms and fires, in the minimum amount
of the appraised value of the permanent improvements on the Land as
determined by the Lubbock Central Appraisal District for calendar year
2010.
(vi) Except as provided herein, maintain the Property in its current
condition and state: of repair, ordinary wear and tear excepted.
(vii) Remove or cause to have removed any and all underground fuel
storage tanks located, wholly or in part, on or under the Property, along
with all structures affixed to the Property, including but not limited to
gasoline and diesel fuel pumps, and overhead fuel pump -area structures.
(viii) Remove or cause to have removed any and all soil, rock, or other
material on or under the Property discovered and deemed by Buyer, in its
reasonable discretion, to have been contaminated by fuel or other
petrochemical substance. Buyer shall be given a reasonable opportunity to
inspect the Property after the conditions of Section 4.02(a)(vii) above are
completed, and Seller may request before Closing that Buyer provide
written assurances that the requirement set firth in this :Section
4.02(a)(viii) is satisfied.
(ix) Fill any excavated portion of the Property in an amount and with
soil or other material acceptable to Buyer, and compact said portion to
specifications as set forth in Exhibit "B" attached hereto.
(b) To indemnify and hold Buyer harmless from all loss, liability, and expense.
including, without limitation, reasonable attorneys' fees. arising or incurred as a
result of any liens or claims resulting from labor or materials furnished to the
Contract of Sale -- Soinhwcst Convenience Stores, LLC.
Page 3 of 12
Property under any written or oral contracts arising or entered into prior to
Closing.
4.03 Representations of Buyer. Buyer represents and warrants to Seller as of the Effective
Bate and as of Closing:
(a) The Buyer has the full right, power, and authority to purchase the Property as
provided in this Contract and to carry out Buyer's obligations hereunder.
(b) Buyer has not contracted or entered into any agreement with any real estate
broker, agent, finder or any other party in Connection with this transaction or
taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated in this Contract.
4.04 Survival Beyond Closing. Except as otherwise expressly set forth herein, the
representations. warranties, covenants and agreements of Seller and Buyer contained in this
Contract shall survive the Closing for a period of two (2) years.
ARTICLE V
CLOSING
5.01 Date and Place of Closing. The Closing shall take place in the offices of the Title
Company and shall be accomplished through an escrow to be established with the Title
Company, as escrowee. The Closing Date (herein sometimes called), shall be scheduled upon a
date mutually agreeable to the parties hereto but no less than ninety days from the Effective
Date.
5.02 Items to be delivered at the Closing.
(a) Seller. At the Closing„ Seller shall deliver or cause to be delivered to Buyer or
the Title Company, at Buyer's sole cost and expense, the following items:
(i) The Title Policy; provided, however, the Title Policy may be
delivered after Closing consistent with normal practice;
(ii) The Special Warranty Deed. substantially in the form as attached
hereto as Exhibit "B", subject only to the Permitted Exceptions, if any,
duly executed by Seller and acknowledged;
(iii) Other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company (any
payment to the 'title Company to be placed in escrow for the benefit of and
payable to Seller as provided in the Contract) the following items:
Contract of Sale — Southwest Convenience Stores, I.LC.
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(i) The sum required by Section 2.01, less the Earnest Money and
interest earned thereon (which will also be paid to Seller), in the form of
personal, certified or cashier's check, or other immediately available
funds:
(ii) Other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing.
5.03 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing.
5.04 Adjustment at Closing. Ad valorem taxes relating to the Property for the calendar year
in which Closing shall occur shall be prorated between Seiler and Buyer as of the Closing Date.
If the actual amount of taxes for the calendar year in which Closing shall occur is not known as
of the Closing Date, the proration for purposes of settlement at Closing shall be based on the
amount of taxes due and payable with respect to the calendar year immediately preceding the
calendar year of Closing. As soon as the amount of taxes levied against the Property for the
calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the
amount of taxes payable by Seller as per the prorated responsibilities set forth herein. This
provision shall survive the Closing. Notwithstanding any provision to the contrary, Buyer, as a
home rule municipality, shall not pay for, or be responsible for, the payment of any taxes on
behalf of the Seller.
5.05 Costs of Closing. Buyer is responsible for paying fees, costs, expenses identified herein
as being the responsibility of Buyer or Seller. If the responsibility for such costs or expenses
associated with closing the transaction contemplated by this Contract are not identified herein,
such costs or expenses shall be borne by the Buyer and Buyer shall pay all fees, costs and
expenses of Seller, notwithstanding any provision to the contrary.
ARTICLE 'VI
DEFAULTS AND REMEDIES
6.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any
one or more of the following events:
(i) Any of Seller's warranties or representations contained in this
Contract are untrue on the Closing Date: or
(ii) Seller fails to meet, comply with or perform any covenant,
agreement, condition precedent or obligation on Seller's part required
within the time limits and in the manner required in this Contract.
(b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's
sole and exclusive remedies for the default, may, at Buyer's sole option, do either
one of the following:
Contract of Sale - Southwest Convenience Stores, 1-1-C
Page 5 of 12
(i) Terminate this Contract by written notice delivered to Seller in
which event the Buyer shall be entitled to a return of the Earnest Money.
and Seller shall, promptly on written request from Buyer, execute and
deliver any documents necessary to cause the "Title Company to return to
Buyer the Earnest Money; or
(ii) Enforce specific performance of this Contract against Seller,
requiring Seller to convey the Property to Buyer subject only to the
Permitted Exceptions. Notwithstanding the foregoing, if Seller is unable
to satisfy its obligations under Section 4.02(a)(vii) and Section
4.02(a)(viii) hereof by the latest Closing Date described in Section 5.01
hereof (the "Latest Closing Date-), Buyer may not enforce specific
performance of the Contract until it has allowed Seller such additional
time beyond the Latest Closing Date as is reasonably necessary for Seller
to comply with its obligations under Section 4.02(a)(vii) and Section
4.02(a)(viii) hereof.
6.02 Buyer's Default, Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this. Contract if Buyer fails to deliver
at Closing, the items specified in Section 5.02(b) of this Contract for any reason
other than a default by Seller under this Contract or termination of this Contract
pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole
and exclusive remedies for the default, may at Seller's sole option, do either one
of the following:
(i) 'terminate this Contract by written notice delivered to Buyer in
which event the Seller shall be entitled to the Earnest Money, and Buyer
shall, promptly on written request from Seller, execute and deliver any
documents necessary to cause the Title Company to pay to Seller the
Earnest Money; or
(ii) Enforce specific perlbrmance of this Contract against Buyer,
requiring Buyer to purchase the Property from Seller, subject to no liens,
encumbrances, exceptions, and conditions other than those shown on the
Title Commitment.
ARTICLE Vil
MISCELLANEOUS
7.01 Notice. All notices, demands, requests, and other communications required hereunder
shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual
receipt, and (b) two (2) calendar days following the deposit of, in a regularly maintained
receptacle for the United States "Mail, registered or certified, return receipt requested. postage
prepaid, addressed as follows:
Contract of Sale -. Southwest Convenience Stores, 1,1_C
Page 6 of -12
SELLER:
Southwest Convenience Stores, LLC
4001 Penbrook, Suite 400
Odessa, Texas 79762
(432) 438-6213
Telecopy: (432) 438-6296
Copies to:
For Seller:
Alon USA Energy, Inc.
Attn: Legal Department
7616 LB3 Freeway, Suite 300
Dallas, TX 75251
Telecopy: (972) 367-3724
BUYER:
City of Lubbock
Tom Martin, Mayor
P.O. Box 2000
Lubbock, Texas 79457
(806)775-2312
Telecopy: (806) 775-2051
For Buyer,.
Sam .Medina
City Attorney
P. O. Box 2000
Lubbock, TX 79457
(806) 775-2222
Telecopy: (806) 775-3307
7.02 Governing Law and 'Venue. This Contract is being executed and delivered and is
intended to be performed in the State of Texas, the laws of Texas governing the validity,
construction, enforcement and interpretation of this Contract. This Contract is performable in,
and the exclusive venue for any action brought with respect hereto, shall lie in Lubbock County,
Texas.
7.03 Entirety and Amendments. This Contract embodies the entire agreement between the
parties and supersedes all prior agreements and understandings, if any, related to the Property,
and may be amended or supplemented only in writing executed by the party against whom
enforcement is sought.
7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and
Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to
execute, acknowledge and record a memorandum of this Contract in the Real Property Records
of Lubbock County, Texas, imparting notice of this Contract to the public.
7.05 Indemnity, SELLER AGREES TO INDEMNIFY. PROTECT, DEFEND, AND HOLD
BUYER AND BUYER'S ELECTED OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND
INDEPENDENT CONTRACTORS HARMLESS. TO "TIE FULLEST EXTENT PERMTTTED
BY LAW, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES,
COSTS, LIABILITIES, AND EXPENSES, INCLUDING REASONABLE A'TTORNEY'S
FEES, AS A RESULT OF, RELATED TO, OR ARISING FROM THE SALE OF THE
PROPERTY AND/OR THE PERFORMANCE: OR OMISSIONS UNDER THIS CONTRACT.
THE INDEMNITY PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT, FOR A PERIOD OF TWO YEARS.
7.06 Risk of Loss. If any condemnation or any emincnt domain proceedings arc threatened or
initiated that might result in the taking of any portion of the Property, or if the Improvements to
Contract of Sale Southwest Convenience Stores, LL.0
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the Property have been darnaged by fire, storms or other acts covered by applicable fire and
extended coverage insurance, and all other conditions to Closing except as a result of such
condemnation or eminent domain proceeding (herein "Condemnation Proceeds") have been met,
Buyer shall consummate this Contract, in which case Buyer, with respect to the Property, shall
be entitled to receive any and all Condemnation Proceeds and insurance proceeds paid for or
with respect to damage to the Property, and Buyer shall have the right to compromise and settle
anv such insurance claims.
7.07 Further Assurances. In addition to the acts and deeds recited in this Contract and
contemplated to be performed, executed and/or delivered by Seller and Buyer. Seller and Buyer,
at no cost or expense, agree to perform, execute and1or deliver, or cause to be performed,
executed and/or delivered at the Closing or after the. Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated hereby.
7.08 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of
the essence with respect to this Contract.
7.09 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of; this Contract for all purposes.
7.10 Delegation of Authority. Authority to take any actions that are to be, or may be, taken
by Buyer under this Contract are hereby delegated by Buyer to City Manager, I..ee Ann
1 umbauld, or her designee.
Executed by Seller on the _ - day of 2011.
SELLER:
Name:
Title:
Southwest Convenience Stores. LLC
15th April
Executed by Buyer on the .-err day of--�-- 2011.
BUYER:
CITY OF LUBBOCK, TEXAS
A�, 'Z
TOM MARTIN, MAYOR
Contract of Sale -- Southwest Convenience Stores. t.t_C
Page 8 of 12
ATTEST:
ReRceGar�,�Cilcretary
APPROVED AS TO CONTENT:
Rob Alli n, Asses tty Manager
Dave Booher
Right -of -Way Agent
Contract of Sale - Southwest Convenience Stores, LI.0
["age 9 of 1
Resolution No. 2011-R0117
EXHIBIT "A"
To
Contract of Sale
The North 25.00 feet of Lot 1. Block 114 Overton ,Addition to the City of Lubbock. according to
the snap, plat, andior dedication deed thereof recorded in Volume 18, Page 610, Deed Records of
Lubbock County, Texas, and as depicted in Exhibit "A.-1" attached hereto.
Cot►tract of Sale - Southwest Cowvenielrce Stores, I.f.C'
Page 10 of 12
Resolution No. 2011-RO111
PLAT OF SURVEY OF THE NORTH 25.00 FEET OF LOT 1, BLOCK 114
OVERTON ADDITION
TO THE CITY OF LUBBOCK,
ACCORDING TO THE MAP, PLAT, AND/OR DEDICATION DEED THEREOF RECORDED 'N
VOLUME 18, PAGE 610, DEED RECORDS OF LUBBOCK COUNTY, TEXAS
5 TREE- T
( By Pct VLv 18 Ppr 610
Wi£W W Z.,
NOTES1
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Resolution No. 2011—A0117
EXHIBIT "B"
To
Contract of Nate
BACKFILL MATERIAL AND CONSTRUCTION
Backfill material shall consist of suitable native soil or off site soil, free from vegetation or other
objectionable matter. The material shall be suitable for forming a stable embankment and shall
meet the following requirements:
Liquid Limit 45 maximum
Plasticitv Index 5 minimum and 20 maximum
Linear Shrinkage 2 minimum and 10 maximum
Backfill material which does not meet the above requirements may be conditioned by blending
with lime, sand or caliche screenings. The conditioning shall produce a uniform material which
meets all of these specified requirements.
Backfill shall be compacted to 100 percent, plus or minus 2 percent of Standard Proctor Density
at optimum moisture content, plus or minus 2 percent. Backfill shall be placed in a maximum of
6 inch lifts, and each 6 inch lift tested for moisture and density.
The compaction method for backfill shall provide for each lift to be compacted to the specified
density using appropriate equipment. fitter each lift is completed, moistureidensity testing will
be performed by The Cit of Lubbock inspection staff for approval.
Contract or Sale - Southwest Convenience Stores, t,LC
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