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HomeMy WebLinkAboutResolution - 2011-R0290 - Amendment To Contract - Cen-Tex Cemetery Investment Corp. - 07/14/2011Resolution No. 2011-RO290 July 14, 2011 Item No. 5,30 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, an Amendment to Contract by and between the City of Lubbock and Cen-Tex Cemetery Investment Corp, assignee of Community State Bank, in connection with that certain Compromise Settlement Agreement and Release of All Claims dated February 24, 2006 and related documents. Said Amendment 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 July 14, 2011 ATTEST: V'4 --d '�- ,a " 9-1'r Reber a Garza, City Secretark APPROVED AS TO CONTENT: City Manager APPROVED AS TQ FORM: TOM MARTIN, MAYOR City Attorney vw:ccdocs/RES.Amend Contract-CTCIC July 5, 2011 Resolution No. 2011-RO290 AMENDMENT TO CONTRACT This Amendment to Contract (the "Amendment") is entered into by and between the City of Lubbock, Texas, a Texas municipal corporation ("City" or "Cemetery") and Gen -Tex Cemetery Investment Corp ("CTCIC"), assignee of Community State Bank ("Bank"), as parties to that certain Compromise Settlement Agreement and Release of All Claims dated February 24, 2006 (the "Agreement"). WHEREAS, the City and Bank entered into an Agreement to resolve a dispute between them in connection with the finance and construction of a mausoleum to be located at the City of Lubbock cemetery; and WHEREAS, the City and the Bank constructed the mausoleum and the City undertook efforts to market and sell crypt and niche space therein; and WHEREAS, Bank assigned all of its rights, title, and interests in and under the Agreement to CTCIC; and WHEREAS, City and CTCIC (the "Parties") desire to make certain changes to the Agreement in order to increase and accelerate sales of crypt and niche space; and WHEREAS, the Agreement provided that the Agreement could be amended by properly executed writing. THEREFORE the Parties hereto agree to amend, and do amend, the Agreement as follows: 1. Section 2.3.1 of the Agreement is amended to read as follows: 2.3.1 Exclusive Right to Sell. In order to facilitate the orderly sale of crypts and niches and to accommodate the needs of the public, Bank hereby appoints Cemetery as its exclusive agent, with the sole and exclusive right to sell crypts and niches, and the exclusive rights of sepulture therein. Cemetery shall be solely responsible for all costs and expenses of sale, if any, and shall determine, in its sole discretion, the nature and extent of advertising and/or marketing of property from Phase I. To the extent permitted by law, Cemetery agrees to indemnify Bank and hold it harmless from and against all claims and liability of every type arising from Cemetery's sale of crypts and niches. In the event Cemetery engages non -city employees to perform sales services, Cemetery agrees that such non -city employees shall be covered by a sufficient fidelity bond. Upon notice from Cemetery to Bank that Cemetery has executed a contract for sale of a crypt or niche, or right of sepulture therein, from the Bank's Allotment and receipt by Bank of payment of the amount set forth below, Bank shall promptly convey to Cemetery in fee simple that crypt and/or niche sold pursuant to said contract for sale, as well as all rights of sepulture therein, and Cemetery agrees to convey said crypt or niche, and right of sepulture therein, to the consumer pursuant to the executed contract for sale. Without Bank's prior written consent, Cemetery shall not sell any crypts or niches from Bank's Allotment for less than the prices reflected on Exhibit "E." Cemetery shall remit to Bank, in a form acceptable to the Bank, an amount equal to fifty percent (50%) of all payments, inclusive of interest, that are tendered to Cemetery toward the sales price of any crypt or niche space sold subsequent to the date of this Amendment whether from the Cemetery's Allotment or the Bank's Allotment; provided, however, that the Cemetery shall be entitled to collect from the purchaser a common area maintenance and administration fee. Such common area and maintenance fees shall not exceed 10 percent of the sales price in the aggregate. Sales taxes, the price for any opening and closing fees, Amendment to Contract — City of Lubbock/Cen-Tex Cemetery Investment Corp Page 1 of 3 memorialization fees of crypt or niche space sales, and any common area maintenance and administration fee shall not be included in the sales price for the purpose of calculating amounts due to Bank under this Section. Bank agrees that Cemetery shall be entitled to the remainder of any and all amounts received in excess of said remittance, and Bank further agrees that any remittance due to Bank shall be made only after payment is made in full by purchaser to Cemetery, including applicable interest, provided, however, that upon final, uncured default by purchaser on any purchases made by installment payment plan, Bank shall be entitled to, and Cemetery shall promptly remit to Bank, an amount equal to fifty percent (50%) of all payments, inclusive of interest paid, made toward the purchase price prior to said default. 2. Section 2.8 of the Agreement is amended to read as follows: 2.8 Purchased Contracts in Default. In the event Bank terminates a Purchased Contract for nonpayment ("Terminated Purchased Contract"), the crypt or niche purchased under such Terminated Purchased Contract shall continue to be owned by Bank, and all proceeds from, including interest in connection therewith, any subsequent sale of said crypt or niche shall be remitted to Bank. 3. Section 2.9 of the Agreement is amended to read as follows: 2.9 Other Contracts in Default. Except as provided in Section 2.8 hereof, and so long as Cemetery has remitted to Bank any amount due to Bank under Section 2.3.1 hereof, as applicable, Cemetery or Cemetery's assignees shall have exclusive rights of foreclosure and resale of any crypt or niche space in Phase 1, the payment for which the purchaser has defaulted upon. Bank and Cemetery agree that proceeds from, including interest in connection therewith, any subsequent sale of said crypt or niche space shall be apportioned equally as set forth in Section 2.3.1. 4. Exhibit "E" to the Agreement is amended to read as follows Exhibit "E" Retail Pricing* Single crypts: Levels A, B, and C $1595 Level D, E, F, and G $1495 True Companions: Level A, B and C $2995 Level D, E, F, and G $2795 Niches: All levels $500 * Price includes crypt/niche space only, and does not include memorialization, opening/closing costs, or common area maintenance and administration fees. Amendment to Contract — City of Lubbock/Cen-Tex Cemetery Investment Corp Page 2 of 3 The Parties hereto agree that, except as otherwise expressly modified hereby, the Agreement shall remain in full force and effect for all purposes, and to the extent of any conflict between the Agreement and this Amendment, the terms and conditions of the Amendment shall control. Executed on this, the 14th day of July , 2011. CITY OF LUBBOCK CEN-TEX CEMETERY INVESTMENT CORP TOM MARTIN, Mayor ATTEST: Beck Garza, City Secretary APPROVED AS TO CONTENT: uincy Wh ssistant City Manager Shannon Durst, Vice -President Amendment to Contract — City of Lubbock/Cen-Tex Cemetery Investment Corp Page 3 of 3