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HomeMy WebLinkAboutResolution - 2015-R0025 - Shelter Park, LP - 01/08/2015Resolution No. 2015-R0025 Item No. 5.19 January 8, 2015 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, a Real Estate Sales Contract for property located at 4410 MLK Boulevard, Lubbock, Texas, by and between the City of Lubbock and Shelter Park, LP, 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 January 8 2015 GL VRTSON, MAYOR ATTEST: Garza, City APPROVED AS TO CONTENT: APPROVED AS TO City Attorney RES -Real Estate Sales Contract -Shelter Park,LP 12.16.14 Resolution No. 2015-R0025 Real Estate Sales Contract This contract to buy and sell real and personal property is between Seller and Buyer, as identified below, and is effective on the date ("Effective Date") of the last of the signatures by Seller and Buyer as parties to this contract and by Title Company to acknowledge receipt of the Earnest Money. Buyer must deliver the Earnest Money to Title Company and obtain Title Company's signature before the Earnest Money Deadline provided in paragraph A.1. for this contract to be effective. If the Earnest Money is paid by check and payment on presentation is refused, Buyer is in default. Seller. Shelter Park, LP Address: 4401 N. MLK Boulevard, Lubbock, Texas 79404 Phone: Fax: Buyer: City of Lubbock, Texas Address: P.O. Box 2000, Lubbock, Texas 79457 Phone: 806.775.2003 Fax: Property: The land commonly known as that certain 5.0 acre tract of land located in Section 1, Block D-3, Lubbock County, Texas located at 4410 N. MLK Boulevard, Lubbock, Texas 79404, and more fully described in Exhibit A ("Land"), together with improvements to the Land ("Improvements"), and the personal property described in Exhibit A ("Personal Property"). Title Company: Lubbock Abstract and Title Company Escrow Agent: Gail Wilcoxon Address: 1216 Texas Avenue, Lubbock, Texas 79401 Phone: Fax: Purchase Price: SEVEN HUNDRED EIGHTY THOUSAND AND N01100 DOLLARS ($780,000.00) Earnest Money: SEVEN THOUSAND EIGHT HUNDRED AND N0/100 DOLLARS ($7,800.00) County for Performance: Lubbock County, Texas Allocation of Purchase Price: The Parties agree that for all purposes the Purchase Price will be allocated as follows and that neither of them will take a position on any income tax return or in any administrative or judicial proceeding that is in any way inconsistent with this allocation: Land, Building and Long -Term Improvements $741,750.00 Parking Lot, Personal Property and Equipment $ 20,000.00 Vehicles $ 18,250.00 Real Estate Sales Contract - Shelter Park, LP to Clty of Lubbock Page 7 of 20 A. Deadlines and Other Dates All deadlines in this contract expire at 5:00 P.M. local time where the Property is located. If a deadline falls on a Saturday, Sunday, or holiday, the deadline will be extended to the next day that is not a Saturday, Sunday, or holiday. A holiday is a day, other than a Saturday or Sunday, on which state or local governmental agencies and financial institutions are not generally open for business. Time is of the essence. If deadlines cannot be met, after a party's best efforts, due to nonperformance by a third party, the deadline will be extended as necessary to extract performance by the third party. A.1. Earnest Money Deadline: Fourteen (14) days after the latter of Buyer or Seller to sign this contract. A.2. Delivery of Title Commitment: Thirty (30) days after the Effective Date A.3. Delivery of Survey: Forty-five (45) days after the Effective Date A.4. Delivery of UCC Search: Thirty (30) days after the Effective Date A.S. Delivery of legible copies of instruments referenced in the Title Commitment, Survey, and UCC Search: Thirty (30) days after the Effective Date A.6. Delivery of Title Objections: Fifteen (15) days after delivery of the latest delivered of the Title Commitment, Survey, and legible copies of the instruments referenced in them A.7. Delivery of Seller's records as specified in Exhibit C: Thirty (30) days after the Effective Date] A. 8. End of Inspection Period: Forty-five (45) days after the Effective Date, subject to paragraph G.6. A.9 Closing Date: Fifteen (15) days after the end of the Inspection Period B. Closing Documents B.1. At Closing, Seller will deliver the following items: General Warranty Deed Bill of Sale and Assignment IRS Nonforeign Person Affidavit Evidence of Seller's authority to close this transaction Notices, statements, and certificates as specified in Exhibit D Assignment and Assumption of Leases and other contracts, if applicable Tenant Estoppel Certificate, if applicable Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 2 of 20 B.2. At Closing, Buyer will deliver the following items: Balance of Purchase Price The documents listed in this section B are collectively known as the "Closing Documents." Unless otherwise provided herein, or agreed by the parties before Closing, the Closing Documents for which forms exist in the current edition of the Texas Real Estate Forms Manual (State Bar of Texas) will be prepared using those forms. C. Exhibits The following are attached to and are a part of this contract: Exhibit A—Description of the Land and Personal Property Exhibit B—Representations; Environmental Matters Exhibit C—Seller's Records Exhibit D—Notices, Statements, and Certificates D. Purchase and Sale of Property D.9. Purchase and Sale Agreement. Seller agrees to sell and convey the Property to Buyer, and Buyer agrees to buy and pay Seller for the Property. The promises by Buyer and Seller stated in this contract are the consideration for the formation of this contract. E. Interest on Earnest Money Any interest earned on the Earnest Money will become part of the Earnest Money. F. Title and Survey F.1. Title Commitment; Title Policy. "Title Commitment" means a Commitment for Issuance of an Owner Policy of Title Insurance by Title Company, as agent for Underwriter, or directly by Underwriter, stating the condition of title to the Land. The "effective date" stated in the Title Commitment must be after the Effective Date of this contract. "Title Policy" means an Owner Policy of Title Insurance issued by Title Company, as agent for Underwriter, or directly by Underwriter, in conformity with the last Title Commitment delivered to and approved by Buyer. F.2. Survey. "Survey" means an on -the -ground, staked plat of survey and metes -and - bounds description of the Land, prepared by Surveyor or another surveyor satisfactory to Title Company, dated after the Effective Date, and certified to Buyer and Title Company, and any other person specified by Buyer, to comply with the current standards and specifications as published by the Texas Society of Professional Surveyors for the Survey Category. F.3. UCC Search. "UCC Search" means written reports stating the instruments that are on file in the Texas secretary of state's UCC records, the UCC records of any other appropriate state, and the UCC records in the jurisdiction in which Seller is organized, showing as debtor Seller and all other owners of the Personal Property during the five years before the Effective Date of this contract. F.4. Delivery of Title Commitment, Survey, UCC Search, and Legible Copies. Seller must deliver the Title Commitment to Buyer and Buyer's attorney by the deadline stated in paragraph A.2.; the Survey by the deadline stated in paragraph A.3.; the UCC Search by the deadline stated in paragraph AA.; and legible copies of the instruments referenced in the Title Commitment, Survey, and UCC Search by the deadline stated in paragraph A.S. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 3 of 20 F.5. Title Objections. Buyer has until the deadline stated in paragraph A.6. ("Title Objection Deadline") to review the Survey, Title Commitment, UCC Search, and legible copies of the title instruments referenced in them and notify Seller of Buyer's objections to any of them ("Title Objections"). Buyer will be deemed to have approved all matters reflected by the Survey, Title Commitment, and UCC Search to which Buyer has made no Title Objection by the Title Objection Deadline. The matters that Buyer either approves or is deemed to have approved are "Permitted Exceptions." If Buyer notifies Seller of any Title Objections, Seller has five days from receipt of Buyer's notice to notify Buyer whether Seller agrees to cure the Title Objections before Closing ("Cure Notice"). If Seller does not timely give its Cure Notice or timely gives its Cure Notice but does not agree to cure all the Title Objections before Closing, Buyer may, within five days after the deadline for the giving of Seller's Cure Notice, notify Seller that either this contract is terminated or Buyer will proceed to close, subject to Seller's obligations to remove all liquidated liens, remove all exceptions that arise by, through, or under Seller after the Effective Date, and cure only the Title Objections that Seller has agreed to cure in the Cure Notice. At or before Closing, Seller must remove all liquidated liens, remove all exceptions that arise by, through, or under Seller after the Effective Date of this contract, and cure the Title Objections that Seller has agreed to cure. G. Inspection Period G.1. Review of Sellers Records. Seller will deliver to Buyer copies of Seller's records specified in Exhibit C, or otherwise make those records available for Buyer's review, by the deadline stated in paragraph A.7. G.2. Entry onto the Property. Buyer may enter the Property before Closing to inspect it at Buyer's cost, subject to the following: G.2.a. Buyer must deliver evidence to Seller that Buyer has liability insurance for its proposed inspection activities, or those of its agents and representatives, with coverages and in amounts that are substantially the same as those maintained by Seller or with such lesser coverages and in such lesser amounts as are reasonably satisfactory to Seller. G.2.b. Buyer may not interfere in any material manner with existing operations or occupants of the Property. G.2.c. Buyer must notify Seller in advance of Buyer's plans to conduct tests so that Seller may be present during the tests. G.2.d. If the Property is physically altered because of Buyer's inspections, Buyer must return the Property to its preinspection condition promptly after the alteration occurs. G.2.e. Buyer must deliver to Seller copies of all inspection reports that Buyer prepares or receives from third -party consultants or contractors upon request. G.21 Buyer must abide by any other reasonable entry rules imposed by Seller. G.3. Environmental Assessment. Buyer has the right to conduct environmental assessments of the Property. Seller will provide, or will designate a person with knowledge of the use and condition of the Property to provide, information requested by Buyer or Buyer's agent or representative regarding the use and condition of the Property during the period of Seller's ownership of the Property. Seller will cooperate with Buyer in obtaining and providing to Buyer or its agent or representative information regarding the use and condition of the Property before Seller's period of ownership to the extent that the information is within Seller's possession or control. In no event is Seller obligated to cure or remediate any environmental damage that might be revealed by Buyer's assessments in order to close under this contract. Should Buyer's assessments reveal a condition that Seller chooses not to remediate at this time, Seller may terminate this contract and return Buyer's Earnest Money. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 4 of 20 G.4. Buyer's Right to Terminate. Buyer may terminate this contract for any reason by notifying Seller of the termination before the end of the Inspection Period. If Buyer does not notify Seller of Buyer's termination of the contract before the end of the Inspection Period, Buyer waives the right to terminate this contract pursuant to this provision. G. 5. Buyer's Indemnity and Release of Seller G.S.a. Indemnity. To the extent permitted by law, Buyer will indemnify, defend, and hold Seller harmless from any loss, attorney's fees, expenses, or claims arising out of Buyer's investigation of the Property, except those arising out of the acts or omissions of Seller and those for repair or remediation of existing conditions discovered by Buyer's inspection. The obligations of Buyer under this provision will survive termination of this contract and Closing, any other provision of this contract to the contrary notwithstanding. G.S.b. Release. Buyer releases Seller and those persons acting on Seller's behalf from all claims and causes of action (including claims for attorney's fees and court and other costs) resulting from Buyer's investigation of the Property, unless said claim or cause of action arises from the negligence or gross negligence of Seller, Seller's agents, or Seller's representatives. G.6. Partial Release. If, as of the Effective Date, the Property is subject to any liens that secure indebtedness in excess of the estimated net proceeds of the Purchase Price after the satisfaction of brokers' commissions and other transaction costs for which Seller is responsible, then Seller promptly must obtain a written agreement or agreements (collectively, the "Partial Release Agreement") binding and enforceable against the holders of such liens ("Holders"). The Partial Release Agreement must release all of such liens with respect to the Property on the payment to the Holders of an amount that does not exceed the net proceeds of the Purchase Price after the satisfaction of brokers' commissions and other transaction costs for which Seller is responsible. Notwithstanding any other provision of this contract, if Seller is required to provide a Partial Release Agreement, the Inspection Period will not commence until and unless the executed Partial Release Agreement, in a form reasonably satisfactory to Buyer, is delivered to Buyer. H. Representations The parties' representations stated in Exhibit B are true and correct as of the Effective Date and must be true and correct on the Closing Date. Seller will promptly notify Buyer if Seller becomes aware that any of the representations are not true and correct. Unless Seller notifies Buyer to the contrary on or before the Closing Date, or Buyer has actual knowledge to the contrary as of the Closing Date, Buyer is entitled to presume that the representations of Seller in Exhibit B are true and correct as of the Closing Date. Condition of the Property until Closing; Cooperation; No Recording of Contract 1.1. Maintenance and Operation. Until Closing, Seller will (a) maintain the Property as it existed on the Effective Date, except for reasonable wear and tear and casualty damage; (b) use the Property in the same manner as it was used on the Effective Date; (c) comply with all contracts of Seller pertaining to the Property in effect on the Effective Date and all laws and all governmental regulations affecting the Property; and (d) not encumber, transfer, or dispose of any of the Property, except to sell inventory, replace equipment, and use supplies in the normal course of operating the Property. Until the end of the Inspection Period, Seller will not enter into, amend, or terminate any contract that affects the Property other than in the ordinary course of operating the Property and will promptly give notice to Buyer of each new, amended, or terminated contract, including a copy of the contract, in sufficient time so that Buyer may consider the new information before the end of the Inspection Period. If Seller's notice is given within three days before the end of the Inspection Period, the Inspection Period will be extended for three Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 5 of 20 days. After the end of the Inspection Period, Seller may not enter into, amend, or terminate any contract that affects the Property without first obtaining Buyer's written consent, which Buyer will have no obligation to grant and, if granted, may be conditioned in any manner Buyer in its sole discretion deems appropriate. 1.2. Casualty Damage. Seller will notify Buyer promptly after discovery of any casualty damage to the Property. Seller will have no obligation to repair or replace the Property if it is damaged by casualty before Closing. Buyer may terminate this contract if the casualty damage that occurs before Closing would materially affect Buyer's intended use of the Property, by giving notice to Seller within fifteen days after receipt of Seller's notice of the casualty (or before Closing if Seller's notice of the casualty is received less than fifteen days before Closing). If Buyer does not terminate this contract, Seller will (a) convey the Property to Buyer in its damaged condition, (b) assign to Buyer all of Seller's rights under any property insurance policies covering the Property, and (c) credit to Buyer the amount of the deductibles and coinsurance provisions under any insurance policies covering the Property, but not in excess of the cost to repair the casualty damage and less any amounts previously paid or incurred by Seller to repair the Property. If Seller has not insured the Property and Buyer does not elect to terminate this contract in accordance with this section, the Purchase Price will be reduced by the cost to repair the casualty damage less any amounts previously paid or incurred by Seller to repair the Property. 1.3. Condemnation. Seller will notify Buyer promptly after Seller receives notice that any part of the Property has been or is threatened to be condemned or otherwise taken by a governmental or quasi -governmental authority. Buyer may terminate this contract if the condemnation would materially affect Buyer's intended use of the Property by giving notice to Seller within fifteen days after receipt of Seller's notice to Buyer (or before Closing if Seller's notice is received less than fifteen days before Closing). The condemnation will be deemed to materially affect Buyer's intended use in Buyer's sole discretion. If Buyer does not terminate this contract, (a) Buyer and Seller will each have the right to appear and defend their respective interests in the Property in the condemnation proceedings, (b) any award in condemnation will be assigned to Buyer, (c) if the taking occurs before Closing, the description of the Property will be revised to delete the portion taken, and (d) no change in the Purchase Price will be made. 1.4. Claims; Hearings. Seller will notify Buyer promptly after Seller receives notice of any claim or administrative hearing that is threatened, filed, or initiated before Closing that involves or directly affects the Property. 1.5. Cooperation. Seller will cooperate with Buyer (a) before and after Closing, to transfer the applications, permits, and licenses held by Seller and used in the operation of the Property and to obtain any consents necessary for Buyer to operate the Property after Closing and (b) before Closing, with any reasonable evaluation, inspection, audit, or study of the Property prepared by, for, or at the request of Buyer. J. Termination J.1. Disposition of Earnest Money after Termination J. 1. a. To Buyer. If Buyer terminates this contract in accordance with any of Buyer's rights to terminate, then unless Seller delivers notice of Seller's objection to Title Company's release of the Earnest Money to Buyer within five days after Buyer delivers Buyer's termination notice to Seller and Title Company, Title Company is authorized, without any further authorization from Seller, to deliver the Earnest Money to Buyer, less $100, which will be paid to Seller as independent consideration for the right granted by Seller to Buyer to terminate this contract. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 6 of 20 J. 1. b. To Seller. If Seller terminates this contract in accordance with any of Seller's rights to terminate, then unless Buyer delivers notice of Buyer's objection to Title Company's release of the Earnest Money to Seller within five days after Seller delivers Seller's termination notice to Buyer and Title Company, Title Company is authorized, without any further authorization from Buyer, to pay and deliver the Earnest Money to Seller. J.2. Duties after Termination. If this contract is terminated, Buyer will promptly return to Seller all of Seller's records in Buyer's possession or control. After return of the records, neither party will have further duties or obligations to the other under this contract, except for those obligations that cannot be or were not performed before termination of this contract or that expressly survive termination of this contract. K. Closing K.1. Conditions of Closing. Neither party will be obligated to close the sale and purchase of the Property unless the other party has satisfied the following conditions, any of which may be waived by the first party, by writing, in its discretion: K.1.a. Representations and Warranties. The representations and warranties of the other party must be true and correct at Closing. K.1.b. Performance of Covenants and Agreements. The other party must have performed all covenants and agreements required to be performed at or before Closing by that party. K.1.c. No Bankruptcy. No voluntary or involuntary proceeding in bankruptcy shall be pending with respect to that party. K.2. Closing. This transaction will close ("Closing") at Title Company's offices at the Closing Date and Closing Time. At Closing, the following will occur: K.2.a. Closing Documents; Title Company Documents. The parties will execute and deliver the Closing Documents and any documents required by Title Company. K.2.b. Payment of Purchase Price. Buyer will deliver the Purchase Price and other amounts that Buyer is obligated to pay under this contract to Title Company in funds acceptable to Title Company. The Earnest Money will be applied to the Purchase Price. K.2.c. Disbursement of Funds, Recording; Copies. Title Company will be instructed to disburse the Purchase Price and other funds in accordance with this contract, record the deed and the other Closing Documents directed to be recorded, and distribute documents and copies in accordance with the parties' written instructions. K.2.d. Delivery of Originals. Seller will deliver to Buyer the originals of Seller's Records. K.2.e. Possession. Seller will deliver possession of the Property to Buyer, subject to the Permitted Exceptions existing at Closing and any liens and security interests created at Closing to secure financing for the Purchase Price. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 7 of 20 K.3. Transaction Costs K3.a. Seller's Costs. Seller will pay the basic charge for the Title Policy; one-half of the escrow fee charged by Title Company; the costs to prepare the deed; the costs to obtain, deliver, and record releases of any liens required to be released in connection with the sale; the costs to record documents to cure Title Objections agreed or required to be cured by Seller and to resolve matters shown in Schedule C of the Title Commitment; the costs to obtain the UCC Search and certificates or reports of ad valorem taxes; the costs to deliver copies of the instruments described in paragraph A.S. and Seller's records; any other costs expressly required to be paid by Seller in this contract; and Seller's attorney's fees and expenses. K.3.b. Buyer's Costs. Buyer will pay one-half of the escrow fee charged by Title Company; the costs to obtain, deliver, and record all documents other than those to be obtained or recorded at Seller's expense; costs to obtain the Survey; the additional premium for the "survey/area and boundary deletion" in the Title Policy, if the deletion is requested by Buyer, as well as the cost of any other endorsements or modifications of the standard form of Title Policy requested by Buyer, the costs of work required by Buyer to have the Survey reflect matters other than those required under this contract except changes required for curative purposes; the costs to obtain financing of the Purchase Price, including the incremental premium costs of the loan title policies and endorsements and deletions required by Buyer's lender; any other costs expressly required to be paid by Buyer in this contract; and Buyer's attorney's fees and expenses. K3.c. Ad Valorem Taxes. Except for subsequent assessments for prior years due to changes in use or ownership discussed below, ad valorem taxes on the Property for all periods before the period in which Closing occurs must be paid by Seller at or before Closing. Ad valorem taxes for the Property for the calendar year of Closing will be prorated between Buyer and Seller as of the Closing Date. Seller's portion of the prorated taxes will be paid to Buyer at Closing as a credit to the Purchase Price. Buyer assumes the obligation to pay, and shall pay in full, such taxes for the year of Closing before delinquency. If the assessment for the calendar year of Closing is not known at the Closing Date, the proration will be based on tax rates for the previous tax year applied to the most current assessed value, and Buyer and Seller will adjust the prorations in cash within thirty days after the actual assessment and taxes are known. Seller will promptly notify Buyer of all notices of proposed or final tax valuations and assessments that Seller receives after the Effective Date and after Closing. All taxes (including any penalties, interest, and attorney's fees) due as of Closing will be paid at Closing. If the Property has been the subject of special valuation and reduced tax assessments pursuant to the provisions of chapter 23, subchapter D, of the Texas Tax Code or under any other provision of law with respect to any period before the Closing, and if additional taxes, penalties, or interest are assessed pursuant to Code section 23.55 or under the other provision of law, the following will apply: If Seller changes the use of the Property before Closing, resulting in the assessment of additional taxes for periods before Closing, Seller will pay the additional taxes. ii. If this sale or Buyer's use of the Property results in the assessment of additional taxes for periods before Closing, Buyer will pay the additional taxes. ii. At Closing, the parties will determine the amount of deferred taxes payable if the sale of the Property as herein contemplated were deemed as of the Closing Date to constitute a change in the use of the Property that would result in the "roll -back" or recapture of deferred taxes for the current year and all preceding tax years for which the "roll -back" or recapture could be imposed ("Potential Roll -Back Amount"). Seller will pay at Closing an amount equal to the Potential Roll -Back Amount to all applicable taxing jurisdictions. On such payment, Seller will have no Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 8 of 20 further liability for any further roll -back amounts and Buyer will assume any and all obligations for, and indemnify, defend, and hold Seller harmless from and against, any liability for any further roll -back amounts. ii. At Closing, the parties will determine the amount of deferred taxes payable if the sale of the Property as herein contemplated were deemed as of the Closing Date to constitute a change in the use of the Property that would result in the "roll -back" or recapture of deferred taxes for the current year and all preceding tax years for which the "roll -back" or recapture could be imposed ("Potential Roll -Back Amount"). Seller will deposit at Closing an amount equal to the Potential Roll -Back Amount with Title Company, to be held in an interest-bearing escrow account in accordance with the terms and conditions hereinafter set forth ("Roll - Back Escrow Account"). If a subsequent change in the use of the Property results in a roll -back of deferred taxes, the portion of recaptured deferred taxes attributable to the period before the Closing, if any, will be paid from the Roll -Back Escrow Account and the portion of deferred taxes attributable to the period from and after the closing, if any, will be paid by Buyer (or its successors or assigns). On the earlier of (a) the date on which there is no longer any statutory basis for recapturing any deferred taxes attributable to the period before the Closing or (b) the date on which all taxes that may then potentially be recaptured for any period before the Closing have been recaptured, the remaining balance in the Roll -Back Escrow Account, if any, will be distributed to Seller. K 3.d. Income and Expenses. Except as provided in paragraph K.3.c. above, income and expenses pertaining to operation of the Property will be prorated as of the Closing Date on an accrual basis and paid at Closing as a credit or debit adjustment to the Purchase Price. Invoices that are received after Closing for operating expenses incurred on or before the Closing Date and not adjusted at Closing will be prorated between the parties as of the Closing Date, and Seller will pay its share within ten days after receipt of Buyer's notice of the deficiency. K 3.e. Posfclosing Adjustments. If errors in the prorations made at Closing are identified within ninety days after Closing, Seller and Buyer will make postclosing adjustments to correct the errors within fifteen days after receipt of notice of the errors. K3.f. Brokers' Commissions. Buyer and Seller each indemnify and agree to defend and hold the other party harmless from any loss, attorney's fees, and court and other costs arising out of a claim by any person or entity claiming by, through, or under the indemnitor for a broker's or finder's fee or commission because of this transaction or this contract, whether the claimant is disclosed to the indemnitee or not. At Closing, each party will provide the other party with a release of broker's or appraiser's liens from all brokers or appraisers for which each party was responsible. K4. Issuance of Title Policy. Seller will cause Title Company to issue the Title Policy to Buyer as soon as practicable after Closing. L. Default and Remedies L.1. Seller's Default, Remedies before Closing. If Seller fails to perform any of its obligations under this contract or if any of Seller's representations is not true and correct as of the Effective Date or on the Closing Date ("Seller's Default"), Buyer may elect any of the following as its sole and exclusive remedy before Closing: Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 9 of 20 L.1.a. Termination. Buyer may terminate this contract by giving notice to Seller on or before the Closing Date and Closing Time and have the Earnest Money, less $100 as described above, returned to Buyer. L. 1.b. Specific Performance. Unless Seller's Default relates to the untruth or incorrectness of Seller's representations for reasons not reasonably within Seller's control, Buyer may enforce specific performance of Seller's obligations under this contract. L.9.c. Actual Damages. If Seller conveys or encumbers any portion of the Property before Closing so that Buyer's ability to enforce specific performance of Seller's obligations under this contract is precluded or impaired, Buyer will be entitled to seek recovery from Seller for the actual damages sustained by Buyer by reason of Seller's Default, including attorney's fees and expenses and court costs. L.2. Seller's Default, Remedies after Closing. If Seller's representations are not true and correct at Closing due to circumstances reasonably within Seller's control and Buyer does not become aware of the untruth or incorrectness of such representations until after Closing, Buyer will have all the rights and remedies available at law or in equity. If Seller fails to perform any of its obligations under this contract that survive Closing, Buyer will have all rights and remedies available at law or in equity unless otherwise provided by the Closing Documents. L.3. Buyer's Default; Remedies before Closing. If Buyer fails to perform any of its obligations under this contract ("Buyer's Default"), Seller may terminate this contract by giving notice to Buyer on or before Closing and have the Earnest Money paid to Seller. The foregoing constitutes Seller's sole and exclusive remedy for a default by Buyer before Closing. L.4. Buyer's Default; Remedies after Closing. If Buyer fails to perform any of its obligations under this contract that survive Closing, Seller will have all rights and remedies available at law or in equity unless otherwise provided by the Closing Documents. L.5. Non -Arbitration. The City reserves the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, the former shall control. L.6. Attorney's Fees. If either party retains an attorney to enforce this contract, the party prevailing in litigation is entitled to recover reasonable attorney's fees and court and other costs. M. Miscellaneous Provisions M.1. Notices. Any notice required by or permitted under this contract must be in writing. Any notice required by this contract will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this contract. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile transmission, or other commercially reasonable means (except e-mail) and will be effective when actually received, provided that (a) any notice received on a Saturday, Sunday, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday and (b) any notice received after 5:00 P.M. local time at the place of delivery on a day that is not a Saturday, Sunday, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday. Notice may not be given by e-mail. Any address for notice may be changed by not less than ten days' prior written notice delivered as provided herein. Copies of each notice must be given by one of these methods to the attorney of the party to whom notice is given. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 10 of 20 M.2. Entire Agreement. This contract, its exhibits, and any Closing Documents delivered at Closing are the entire agreement of the parties concerning the sale of the Property by Seller to Buyer. There are no representations, warranties, agreements, or promises pertaining to the Property or the sale of the Property by Seller to Buyer, and Buyer is not relying on any statements or representations of Seller or any agent of Seller, that are not in those documents. M.3. Amendment. This contract may be amended only by an instrument in writing signed by the parties. M.4. Prohibition of Assignment. Neither party may assign this contract or any rights under it without the prior written consent of the other party. M. 5. Survival. The provisions of this contract that expressly survive termination or Closing and other obligations of this contract that cannot be performed before termination of this contract or before Closing survive termination of this contract or Closing, and the legal doctrine of merger does not apply to these matters. If there is any conflict between the Closing Documents and this contract, the Closing Documents control. The representations made by the parties as of Closing survive Closing. M.6. Choice of Law; Venue. THIS CONTRACT IS TO BE CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CHOICE -OF -LAW RULES OF ANY JURISDICTION. VENUE IS IN LUBBOCK COUNTY. M.7. Waiver of Default. Default is not waived if the nondefaulting party fails to declare a default immediately or delays taking any action with respect to the default. M. 8. No Third -Party Beneficiaries. There are no third -party beneficiaries of this contract. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 11 of 20 M.9. Severability. If a provision in this contract is unenforceable for any reason, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability does not affect any other provision of this contract, and this Contract is to be construed as if the unenforceable provision is not a part of the contract. M.10. Ambiguities Not to Be Construed against Party Who Drafted Contract. The rule of construction that ambiguities in a document are construed against the party who drafted it does not apply in interpreting this contract M.11. No Special Relationship. The parties' relationship is an ordinary commercial relationship, and the parties do not intend to Create the relationship of principal and agent, partners, joint venturers, or any other special relationship. M.12. Counterparts. If this contract is executed in multiple Counterparts, all Counterparts taken together constitute this contract. Copies of signatures to this contract are effective as original signatures. M-13. Delegation of Authority. Authority, to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, agreeing with Seller to adjust the Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of Lubbock, Texas, to James Loomis, City Manager of Buyer, or his designee. M.14. Binding Effect. This Contract binds, benefits, and may be enforced by the parties and their respective heirs, successors, and permitted assigns. SMELTER PARK, LP 44wwm Art Rousseau, Pres entJ/ Date: / / CITY OF LUBBOCK G BE SON, Mayor D e: January 8, 2015 ATTEST: Rebe ca Garza, City Secreta APPROVED AS TO CONTENT: Real Estate Sales Contract -Shelter Park, LP to City of Lubbock Peg. 12 of 20 vr' . ....... ..... .......... . Kelly Ca bell, Exec five Director of Aviation I ou gm Ono RECEIPT OF AGREEMENT AND EARNEST MONEY BY TITLE COMPANY Title Company acknowledges receipt of Earnest Money in the amount of $ and a copy of this contract executed by both Buyer and Seller. LUBBOCK ABSTRACT AND TITLE COMPANY 1216 Texas Avenue Lubbock,Texas 79401 By Name: Gail Wilcoxon Title: Escrow Officer Date: Real Estate Sales Contract -Shelter Park, LP to City of Lubbock Page 13 of 20 Exhibit A Description of the Land and Personal Property Real property described as follows: METES AND BOUNDS DESCRIPTION of a 5,000 acre tract located in Section 1, Block D-3, Lubbock County, Texas, being further described as follows: BEGINNING at a 518" iron rod set in the East right-of-way line of North Quirt Avenue for the Southwest corner of this tract which bears N. 00°13'33" W. a distance of 1980.49 feet and East a distance of 65.94 feet from the Southwest corner of Section 1, Block D-3, Lubbock County, Texas; THENCE N. 01059'34"., along said right-of-way, a distance of 192.04 feet to a 518" iron rod with cap found at a point of curvature; THENCE Northwesterly, continuing along said right-of-way and around a curve to the right, said curve having a radius of 5674.59 feet, a central angle of 01043', tangent lengths of 85.02 feet, and a chord distance of 170.01 feet to a 518" iron rod with cap found at a point of tangency; THENCE N. 00°1634" W., continuing along said right-of-way, a distance of 137.94 feet to a 518" iron rod with cap found at a corner of this tract; THENCE N. 4604342" E., a distance of 68.20 feet to a 518 " iron rod found in the South right-of- way line of F.M. Road No. 2641 for a corner of this tract; THENCE S. 86016'19" E., along said right-of-way, a distance of 359.41 feet to a 518 " iron rod set for the Northeast comer of this tract; THENCE S. 01 059'34" E., a distance of 509.08 feet to a 518 " iron rod set for the Southeast corner of this tract; THENCE S. 88000'26" W., a distance of 415.56 feet to the Point of Beginning. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 14 of 20 All personal property associated with the Land and Improvements, including without limitation, the following described personal property: 1. 2004 Ford Econoline Custom 13 Passenger Shuttle Van 2. 2006 Ford Econoline Custom 13 Passenger Shuttle Van 3. 2008 Ford Econoline Custom 13 Passenger Shuttle Van 4. Magnetic Parking Revenue System 5. Gilbarco Gasoline POS equipment 6. Veeder Root underground storage tank monitoring system 7. Costas surveillance system with cameras 8. E -machine desk top printer with HP printer 9. Honda "Little Wonder" walk behind blower for lot maintenance 10. 3 desks, 3 metal file cabinets 11. Miscellaneous chairs, water cooler, refrigerator, lawn equipment, and hand tools Real Estate Sales Contract - Shelter Park, LP to Clty of Lubbock Page 15 of 20 Exhibit B Representations; Environmental Matters A. Seller's Representations to Buyer Seller represents to Buyer that the following are true and correct as of the Effective Date and will be true and correct on the Closing Date. A.1. Authority. Seller is a limited partnership, duly organized, validly existing, and in good standing under the laws of the state of Texas with authority to perform its obligations under this contract. This contract is binding on Seller. This contract is, and all documents required by this contract to be executed and delivered to Buyer at Closing will be, duly authorized, executed, and delivered by Seller. A.2. Litigation. Seller has not received written notice and has no actual knowledge of any litigation pending or threatened against Seller that might adversely affect the Property or Seller's ability to perform its obligations under this contract. A.3. Violation of Laws. Seller has not received written notice and has no actual knowledge of violation of any law, ordinance, regulation, or requirements affecting the Property or Seller's use of the Property. A.4. Licenses, Permits, and Approvals. Seller has not received written notice and has no actual knowledge that any license, permit, or approval necessary to use the Property in the manner in which it is currently being used has expired or will not be renewed on expiration or that any material condition will be imposed to use or renew the same. A.5. Condemnation; Zoning; Land Use; Hazardous Materials. Seller has not received written notice and has no actual knowledge of any condemnation, zoning, or land -use proceedings affecting the Property or any written inquiries or notices by any governmental authority or third party with respect to condemnation or the presence of hazardous materials affecting the Property. A.6. No Other Obligation to Sell the Property or Restriction against Sale. Except for granting a security interest in the Property, Seller has not obligated itself to sell all or any portion of the Property to any person other than Buyer. Seller's performance of this contract will not cause a breach of any other agreement or obligation to which Seller is a party or by which Seller or the Property is bound. A.7. No Liens. On the Closing Date, the Property will be free and clear of all mechanic's and materialman's liens and other liens and encumbrances of any nature not arising by, through, or under Buyer except the Permitted Exceptions or liens to which Buyer has given its consent in writing, and no work or materials will have been furnished to the Property by Seller that might give rise to mechanic's, materialman's, or other liens against the Property other than work or materials to which Buyer has given its consent in writing. A. 8. Seller's Documents. The copies of Seller's documents provided by Seller to Buyer for Buyer's inspections will be true, correct, and complete copies of the originals, or the copies of such documents in Seller's possession or control. The Seller's documents provided by Seller to Buyer for Buyer's inspections that were prepared by or under Seller's supervision and control will be true, correct, and complete in all material respects. Unless Seller notifies Buyer at the time of delivery of any documents provided by Seller to Buyer that were not prepared by or under Seller's supervision and control, Seller has no actual knowledge of any material respect in which such Seller's documents are not true, correct, and complete. A.9. No Other Representation. Except as stated above or in the notices, statements, and certificates set forth in Exhibit D, Seller makes no representation with respect to the Property. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 16 of 20 A. 10. No Warranty. Except as set forth in this contract and in the Closing Documents, Seller has made no warranty in connection with this transaction. B. "As Is, Where Is" THIS CONTRACT IS AN ARM'S-LENGTH AGREEMENT BETWEEN THE PARTIES. THE PURCHASE PRICE WAS BARGAINED ON THE BASIS OF AN "AS IS, WHERE IS" TRANSACTION AND REFLECTS THE AGREEMENT OF THE PARTIES THAT THERE ARE NO REPRESENTATIONS, DISCLOSURES, OR EXPRESS OR IMPLIED WARRANTIES AS TO REAL OR PERSONAL PROPERTY, EXCEPT THOSE IN THIS CONTRACT AND THE CLOSING DOCUMENTS. BUYER IS NOT RELYING ON ANY REPRESENTATIONS, DISCLOSURES, OR EXPRESS OR IMPLIED WARRANTIES OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS CONTRACT AND THE CLOSING DOCUMENTS. BUYER IS NOT RELYING ON ANY INFORMATION REGARDING THE PROPERTY PROVIDED BY ANY PERSON, OTHER THAN BUYER'S OWN INSPECTION AND THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS CONTRACT AND THE CLOSING DOCUMENTS. The provisions of this section B regarding the Property will not be included in the deed but they are not merged into the deed and survive closing. (These provisions may be included in the unrecorded Bill of Sale); C. Environmental Matters AFTER CLOSING, BUYER RELEASES SELLER FROM LIABILITY FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY, INCLUDING WITHOUT LIMITATION LIABILITY (1) 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; OR (2) ARISING AS THE 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 SELLERS IN THIS TYPE OF TRANSACTION NEW LIABILITIES FOR ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY. THIS RELEASE APPUES EVEN WHEN THE ENVIRONMENTAL PROBLEMS AFFECTING THE PROPERTY RESULT FROM SELLER'S OWN NEGLIGENCE OR THE NEGUGENCE OF SELLER'S REPRESENTATIVE. The provisions of this section C regarding the Property will not be included in the deed but are not merged into the deed and will survive Closing. D. Buyer's Representations to Seller Buyer represents to Seller that the following are true and correct as of the Effective Date and will be true and correct on the Closing Date. D.9. Authority. Buyer is a municipal corporation duly organized, validly existing, and in good standing under the laws of the state of Texas with authority to perform its obligations under this contract. This contract is binding on Buyer. This contract is, and all documents required by this contract to be executed and delivered to Seller at Closing will be, duly authorized, executed, and delivered by Buyer. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 17 of 20 Exhibit C Seller's Records To the extent that Seller has possession or control of the following items pertaining to the Property, Seller will deliver or make the items or copies of them available to Buyer by the deadline stated in paragraph A.7.: Governmental Land governmental licenses, certificates, permits, and approvals ad valorem tax statements for the current year and the last five (5) years notices of appraised value for the current year and the last five (5) years records of any tax exemption, special use, or other valuation or exemption applicable to the Property records of regulatory proceedings or violations (for example, condemnation, environmental) soil reports environmental reports and other information regarding the environmental condition of the Property water rights engineering reports prior surveys site plans Facilities as -built plans, specifications, and mechanical drawings for improvements warranty agreements management, employment, labor, service, equipment, supply, and maintenance agreements insurance policies ADA and other building inspection reports engineering reports environmental reports operating and maintenance plans (for example, asbestos maintenance plans) life -safety plans Leases Leases commission and leasing agent agreements rent roll setting forth for each Lease: tenant's name square footage leased date of expiration of current and renewal terms renewal options basic rent and formula for any additional rents amount of additional rent paid during the last two (2) years prepaid rent delinquent rent security deposit current tenant or landlord defaults options to purchase any portion of the Property rights of first refusal to lease other space rights to rent concessions, tenant improvements, or other allowances unpaid or contingent brokerage commissions (including commission on renewals) estoppel letters and/or subordination agreements Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 18 of 20 Licenses, Agreements, and Encumbrances all licenses, agreements, and encumbrances (including all amendments and exhibits) affecting title to or use of the Property that have not been recorded in the real property records of the county or counties in which the Property is located Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 19 of 20 Exhibit D Notices, Statements, and Certificates The notices, statements, and certificates (arranged by their application to particular transactions) that are listed below are included in the sales contract, and Buyer acknowledges receipt of the notices, statements, and certificates by executing this contract: A. All Real Property Transaction Notices D.1. Storage Tanks Disclosure Provider. Notice concerning underground storage tanks, described in section 334.9 of title 30 of the Texas Administrative Code. D.2. Notice to Purchaser Regarding Restrictive Covenants. Notice of deed restrictions, described in section 212.155 of the Texas Local Government Code. D.3. Certificates of Mold Remediation. Notice pursuant to section 1958.154 of the Texas Occupations Code, titled "Certificate of Mold Remediation; Duty of Property Owner," requiring a property owner who sells property that has been issued a certificate of mold remediation pursuant to this section to deliver copies to the purchaser of each certificate of mold remediation issued for the property within the preceding five years. Real Estate Sales Contract - Shelter Park, LP to City of Lubbock Page 20 of 20