HomeMy WebLinkAboutResolution - 5629 - Contract Of Sale - 19Th Street Warehouse, Inc. - 09_11_1997Resolution No. 5629
Item #44
September 11, 1997
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to
execute for and on behalf of the City of Lubbock a Contract of Sale, by and between the City
of Lubbock and 19th Street Warehouse, Inc., Ronald Edward Thompson and Caroline S.
Thompson, attached herewith, in substantially the same form as Exhibit "A", and any
associated documents, which Contract shall be spread upon the minutes of the Council and as
spread upon the minutes of this Council shall constitute and be a part of this Resolution as if
fully copied herein in detail.
Passed by the City Council this 11th day of September , 1997.
ALEX "TY" COOKE
MAYOR PRO TEM
ATTEST:
-6'�M6L A et
Kaythieb arnell, City,Secretary
A
yn Almus-Somma, Managing Director
APPROVED AS T O
Richard K. Casner, atural Resources Attorney
da/ccdocs/19st7e.res
September 3, 1997
Resolution No. 5629
Item #44
September 11, 1997
CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This Contract of Sale (the "Contract") is made by and between 19th Street
Warehouse, Inc., (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, being Lots 1-24, inclusive,
Block 232, Original Town Addition to the City of Lubbock, Lubbock County, Texas, as
reflected in that certain Plat, recorded in Volume 5, Page 384, Real Property Records,
Lubbock County, Texas (the "Land"); and
WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the
Land, the rights appurtenant to the Land, the fixtures, unless excepted as set forth as
Exhibit "A", attached hereto, and certain improvements located on the Land, as set forth
on Exhibit "A", attached hereto (collectively, the "Property").
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 II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the
sum of Six Hundred Thousand and No/100 Dollars ($600,000.00) (the "Purchase Price")
2.02 Earnest Money. Buyer shall deposit the sum of Ten Thousand and No/100
Dollars ($10,000.00), as Earnest Money (herein so called) with Lubbock Abstract and
Title Company, at 1216 Texas Avenue, Lubbock, Texas, 79401 (the "Title Company"),
as escrow agent, upon execution of this Contract by Seller and Buyer. The Earnest
Money shall be invested in an interest bearing account with a financial institution in a
manner acceptable to Buyer, in its reasonable discretion. All interest earned thereon shall
become part of the Earnest Money and shall be applied or disposed of in the same manner
as the original Earnest Money deposit, as provided in this Contract. If the purchase
contemplated hereunder is consummated in accordance with the terms and the provisions
hereof, the Earnest Money, together with all interest earned thereon, shall be applied to
the Purchase Price at Closing. In all other events, the Earnest Money, and the interest
accrued thereon, shall be disposed of by the Title Company as provided in this Contract.
2.03 Independent Contract Consideration. Within three (3) calendar days after the
Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of
One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"),
which amount the parties hereby acknowledge and agree has been bargained for and
agreed to as consideration for Seller's execution and delivery of the Contract. The
Independent Contract Consideration is in addition to, and independent of any other
consideration or payment provided in this Contract, is non-refundable, and shall be
retained by Seller notwithstanding any other provision of this Contract.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within fifteen (15) calendar days after the execution of this Contract by Buyer
(the "Effective Date"), Seller, at Seller's sole cost and expense, shall cause to be
furnished to Buyer (and to the surveyor selected to perform the survey, as
contemplated below), a current Commitment for Title Insurance (the "Title
Commitment") for the Property, issued by Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of
liens, mortgages, security interests, encumbrances, pledges, assignments, claims,
charges, leases (surface, space, mineral, or otherwise), conditions, restrictions,
options, conditional sales contracts, rights of first refusal, restrictive covenants,
exceptions, easements (temporary or permanent), rights -of -way, encroachments,
or any other outstanding claims, interests, estates or equities of any nature (each
of which are referred to herein as an "Exception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
Buyer, at Seller's sole cost and expense,
(i) true and correct copies of all instruments that create or evidence
Exceptions, including those described in the Title Commitment as
exceptions to which the conveyance will be subject and which are required
to be released or cured at or prior to Closing; and
(ii) a currently dated Uniform Commercial Code Financing Statement search
from the Secretary of State of the State of Texas, and the appropriate
County official responsible for filing UCC financial statements for
fixtures, covering (1) the Seller; (2) the Property; and (3) any other
known owner of the Property during the past five (5) years, together with
any and all financing statements listed in this search.
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3.02 Survey. Within twenty (20) calendar days after the Effective Date, Seller, at
Seller's sole cost and expense, except as provided otherwise herein, shall cause two (2)
prints of a current on the ground survey for the Property (the "Survey") to be delivered to
Buyer. In addition, Seller shall furnish any affidavits, certificates, assurances, and/or
resolutions required by the Title Company in order to amend the survey exceptions as
required by Section 3.05 below. Unless otherwise agreed by Buyer, the description of the
Property as set forth in the Survey shall be used to describe the Property in the deed to
convey the Property to Buyer and shall be the description set forth in the Title Policy.
The Survey should include a certified map or plot showing:
(i) the plot to be covered by the deed conveying the Property to Buyer;
(ii) the relation of the point of the beginning of such plot to the monument from
which it is fixed;
(iii) all easements showing the recording information therefor by volume and page;
(iv) the established building line, if any;
(v) all easements appurtenant to such plot;
(vi) the boundary line of the street or streets abutting the plot and the width of such
streets;
(vii) any encroachments and the extent thereof in terms of distance upon said plot and
any easements appurtenant thereto;
(viii) the location of all structures and improvements on said plot with horizontal length
of all sides and the relation thereof by distances to (a) all boundary lines of the
plot; (b) all easements; (c) established building lines, and (d) street lines.
Further, the certification of the Survey for the description of the Property and the
map or plot, should be addressed to Buyer (and to the Title Company, if required by the
Title Company), signed by surveyor, bearing the current date, and registration number.
In the event the Seller shall terminate this Contract pursuant to Section 3.04 (ii) or
Section 4.01, the cost and expense of the survey shall be paid, one-half (1 /2) each, by
Seller and Buyer.
3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall
have a period of fifteen (15) calendar days (the "Title Review Period") commencing with
the day Buyer receives the last of the Title Commitment, the Survey, the UCC Search and
the Exception documents, in which to give written notice to Seller, specifying Buyer's
objections to one or more of the items ("Objections"), if any. All items set forth in the
Schedule C of the Title Commitment, and all other items set forth in the Title
Commitment which are required to be released at or prior to Closing, shall be deemed to
be Objections.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies
Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the
Seller shall, within seven (7) calendar days after Seller is provided notice, either satisfy
the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the
Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the
foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or
Exceptions that are liens or security interests or that have been voluntarily placed on or
against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy
any Objections that Seller is not obligated to cure within the allowed seven (7) calendar
day period, and if Buyer and Seller do not agree in writing to an extension of that period,
then Buyer has the option of either:
(i) waiving the unsatisfied Objections by notice in writing to Seller within thirty (30)
calendar days after the expiration of the Title Review Period, in which event those
Objections shall become Permitted Exceptions (herein so called), or
(ii) terminating this Contract by notice in writing and receiving back the Earnest
Money, in which latter event Seller and Buyer shall have no further obligations,
one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a
standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer.
The Title Policy shall be issued by the Title Company, on behalf of Lawyers Title
Insurance Corporation, in the amount of the Purchase Price and insuring that Buyer has
indefeasible fee simple title to the Property, subject only to the Permitted Exceptions.
The Title Policy may contain only the Permitted Exceptions and shall contain no other
exceptions to title, with the standard printed exceptions amended or deleted as follows:
(i) 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 Seller, of
any required additional premium);
(ii) the exception for taxes must be completed with only the current year filled in and
must be annotated "not yet due and payable" (unpaid taxes for prior years, if any,
may be shown on Schedule C of the Title Commitment);
(iii) no exception will be permitted for "visible and apparent easements" or words to
that effect (although reference may be made to any specific easement or use
shown on the Survey);
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(iv) no exception will be permitted for "rights of parties in possession";
(v) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or
deletions, Buyer may object to any Exceptions it deems material, in its sole discretion.
ARTICLE IV
FEASIBILITY REVIEW PERIOD AND IMPROVEMENTS
4.01 Review Period. Any term or provision of this Contract notwithstanding, the
obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having
determined, in Buyer's sole and absolute discretion, during the period commencing with
the Effective Date of this Contract and ending thirty (30) calendar days thereafter (the
"Absolute Review Period"), based on such tests, examinations, studies, investigations and
inspections of the Property the Buyer deems necessary and desirable, including but not
limited to studies or inspections to determine the existence of any environmental hazards
or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for
Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and
economic feasibility studies of the Property, and to conduct a physical inspection of the
Property. If Buyer determines, in its sole judgment , that the Property is not suitable, for
any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract
by written notice to the Seller, as soon as reasonably practicable, but in any event prior to
the expiration of the Absolute Review Period, in which case the Earnest Money will be
returned to Buyer, and neither Buyer nor Seller shall have any further duties or
obligations hereunder. Copies of final reports prepared by independent contractors of
Buyer pursuant to this provision, to the extent deemed by Buyer and/or its independent
contractors to be non -confidential, will be provided to Seller upon request.
ARTICLE V
REPRESENTATIONS WARRANTIES COVENANTS AND
AGREEMENTS
5.01 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) The descriptive information concerning the Property set forth in this
Contract is complete, accurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any
part thereof, and that no party has been granted any license, lease or other
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right related to the use or possession of any of the Property, or any part
thereof, except those described in the Leases, as defined in Section
5.02(a).
(c) The Seller has good and marketable fee simple title to the Property,
subject only to the Permitted Exceptions.
(d) 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, and that all requisite actions necessary to authorize Seller to
enter into this Contract and to carry out Seller's obligations hereunder
have been, or by the Closing, will have been taken.
(e) All utilities (including without limitation, water, gas, sanitary sewer,
electricity, trash removal, and telephone service) required by law or
necessary for operation of the Property as it is now being operated are
available to the Property in sufficient quantities to adequately service the
needs of the Property.
(f) 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 land owners or other
persons against or affecting the Property.
(g) The Seller has not received, and has no other knowledge or any other
information of, notice from any insurance company or board of fire
underwriters requesting the performance of any work or alteration with
respect to the Property, that has not been performed, or requiring an
increase in insurance rates applicable to the Property, or are aware of any
defects or inadequacies in the Property, which, if not corrected, would
result in the termination of insurance coverage or would increase the cost
thereof.
(h) The Seller has disclosed to Buyer in writing of any and all facts and
circumstances relating to the physical condition of the Property that may
materially and adversely affect the Property and operation or intended
operation thereof, or any portion thereof, of which Seller has knowledge.
(i) The Seller has paid all real estate and personal property taxes,
assessments, excises, and levies that are presently due which are against or
are related to the Property, or will be due as of the Closing, and the
Property will be subject to no liens, other than liens for ad valorem taxes
for years subsequent to Closing.
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(j) All items delivered to Buyer pursuant to Section 5.02(a), below, are true,
correct and complete in all respects and fairly present the information set
forth in a manner that is not misleading.
(k) 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
and has not taken any action which would result in any real estate broker
commissions or finders fee or other fees payable to any other parry with
respect to the transactions contemplated in this Contract.
(1) All Leases, as defined in Section 5.02(a), shall have expired or otherwise
terminated on or before the date of Closing.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer
as follows:
(a) Unless stated otherwise, prior to the Effective Date hereof, or within three
(3) days after the Effective Date, Seller, at Seller's sole cost and expense,
shall deliver to Buyer, with respect to the Property, true, correct, and
complete copies of the following:
(i) All lease agreements and/or occupancy agreements and/or licenses
of any kind or nature relating to the possession of the Property, or
any part thereof, including any and all modifications, supplements,
and amendments thereto (the "Leases").
(ii) Within ten (10) days after the Effective Date, all valid and
subsisting written warranties and guaranties relating to the
Property, or any part thereof, together with written statements
setting forth the unexpired term of any warranty or guaranty, and
stating that they are assignable to Buyer and that the assignment
will provide to Buyer full rights and benefits thereof.
(iii) All fire, hazard, liability, builder's risk and other insurance policies
held by Seller on the Property.
(iv) The plans and specifications with respect to the Property that Seller
possesses or has the right to receive, and copies of all other
engineering and architectural plans and specifications in Seller's
possession or control.
(b) From the Effective Date until the date of Closing or earlier termination of
this Contract, Seller shall:
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(i) Not enter into any written or oral service contract or other
agreement of any kind with respect to the Property that will not be
fully performed on or before the Closing or would be binding on
Buyer 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) Except as provided in Section 9.09, not 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.
(v) Not enter into, or alter or amend, or otherwise modify any Lease
without first obtaining the Buyer's written consent.
(c) 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 Property under any written or oral contracts
arising or entered into prior to Closing.
(d) Seller, along with Buyer, shall execute, at Closing, the Shared Parking
Agreement in the form as attached hereto as Exhibit "D".
5.03 Representations, Covenants and Agreements of Buyer. To induce Seller to
enter into this Contract and consummate the sale and purchase of the Property in
accordance with the terms and provisions herewith, Buyer represents and covenants to
Seller that:
(a) Buyer, along with Seller, shall execute, at Closing; the Shared Parking
Agreement in the form as attached hereto as Exhibit "D".
5.04 Survival Beyond Closing. The representations, warranties, covenants and
agreements of Seller and Buyer contained in this Contract shall survive the Closing.
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, at Seller's sole cost and expense
(except as herein expressly provided to the contrary), all of the following shall have
occurred:
(i) Seller has performed, furnished, or caused to be furnished to Buyer all
items required to be so performed or furnished under other sections of this
Contract; and
(ii) Seller cures or Buyer waives in writing, within the time periods specified
in Article III, all of Buyer's objections made in accordance with Article
III.
6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements.
Buyer is not obligated to perform under this Contract unless all representations,
warranties, covenants and agreements of Seller contained in this Contract are true and
correct, as of the Effective Date and Closing Date, except where specific reference is
made to another date.
6.03 Adverse Change. Buyer shall not be obligated to perform under this Contract, if
on the date of Closing, any portion of the Property has been condemned, or is the subject
of condemnation, eminent domain, or other material proceeding, or has been damaged by
fire or other casualty in any material manner, or the Property, or any part thereof, has
been materially or adversely impaired in any manner.
6.04 Review Period. Buyer shall not be obligated to perform under this Contract if
Buyer delivers written notice to Seller pursuant to Section 4.01, that Buyer has
determined that the Property is unsuitable to or for Buyer's purposes.
6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything
contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive
any of the conditions precedent to the performance of Buyer's obligations under this
Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying
the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any
of the conditions precedent to the performance of Buyer's obligations under this Contract
have not been satisfied or waived by the Buyer, the Buyer may, by giving written notice
to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be
immediately returned to Buyer by the Title Company. The Seller shall, on written
request from Buyer, promptly issue the instructions necessary to instruct the Title
Company to return to Buyer the Earnest Money and, thereafter, except as otherwise
provided in this Contract, Buyer and Seller shall have no further obligations under this
Contract, one to the other.
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ARTICLE VII
CLOSING
7.01 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 on the
earlier to occur of (i) five (5) days following the completion of all conditions precedent to
Buyer's performance of this Contract as set forth in Article VI hereof, or (ii) as mutually
agreed on by Seller and Buyer. Closing shall not be later than thirty (30) calendar days
after the expiration of the Absolute Review Period.
7.02 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 Seller's sole cost and expense (except as
herein expressly provided to the contrary), the following items:
(i) I The Title Policy, in the form specified in Section 3.05;
(ii) The General 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) A Bill of Sale, substantially in the form as attached hereto as
Exhibit "C", executed by Seller;
(iv) An updated UCC Search, dated not more than three (3) days prior
to the date of Closing, showing no filings against or with respect to
all or any portion of the Property;
(v) The Shared Parking Agreement, in the form as attached hereto as
Exhibit "D", executed by Seller;
(vi) 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,
the following items:
(i) The sum required by Section 2.01 in the form of certified or
cashier's check or other readily available funds;
(ii) The Shared Parking Agreement, in the form as attached hereto as
Exhibit "D", executed by Buyer; and
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(iii) Other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in
this Contract, the provisions of this Section 7.03 shall survive the Closing. The following
item shall be adjusted or prorated between Seller and Buyer with respect to the Property:
(i) Ad valorem taxes relating to the Property for the calendar year in which
the Closing shall occur shall be prorated between Seller and Buyer as of
the Closing Date. If the actual amount of taxes for the calendar year in
which the Closing shall occur is not known as of the Closing Date, the
proration shall be based on the amount of taxes due and payable with
respect to the Property for the preceding calendar year.
7.04 Possession at Closing. Notwithstanding anything to the contrary contained in
this Contract, the provisions of this Section 7.04 shall survive the Closing. Possession of
the Property shall be delivered to Buyer by Seller on or before thirty (30) calendar days
after the Closing Date (the "Date of Possession"), in its present condition, subject only to
ordinary wear and tear. Any property of the Seller which is not the subject of the
transaction contemplated by this Contract shall be removed from the Property by Seller,
at the direction and in the presence of a designated official of the Buyer, prior to Date of
Possession. Any such property not so removed shall, at the option of Buyer either;
(i) become the property of Buyer; or
(ii) be removed by Buyer at Seller's sole cost and expense. In the
event Buyer shall elect to remove such property, Buyer shall owe
no duty to protect such property, and shall, in no event be liable to
Seller for loss, damage, or destruction of same. Buyer may dispose
of any such property in any manner it desires in its sole discretion.
Any proceeds received by Seller for such property, if any, shall be
and remain the property of Seller; provided, however, such
proceeds shall be applied to any costs and expenses incurred by
Seller in connection with the removal of such property.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its
counsel, in negotiating, preparing, and closing the transaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses identified herein as
being the responsibility of Seller. Buyer is responsible for paying fees, costs, expenses
identified herein as being the responsibility of Buyer. 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 parties as same are
normally assessed by the Title Company in a transaction of this character.
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ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 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 may,
at Buyer's sole option, do any one or more of the following:
(i) Terminate this Contract by written notice delivered to Seller on or
before the Closing Date, in which event the Buyer shall be entitled
to a return of the Earnest Money;
(ii) Enforce specific performance of this Contract against Seller,
requiring Seller to convey the Property to Buyer subject to no
liens, encumbrances, exceptions, and conditions other than those
shown on the Title Commitment; and
(iii) Seek any other recourse or relief that may be available to Buyer at
law or in equity, including bringing a suit for damages. It is
expressly agreed and understood that the exercise of any right or
remedy by Buyer shall not preclude the concurrent or subsequent
exercise of any other right or remedy and all rights and remedies
shall be cumulative.
(c) Return of Earnest Money Deposit. On the occurrence of any event
deemed by Buyer to be a default by Seller under this Contract, in addition
to the exercise of rights and remedies set forth in Section 8.01, the Earnest
Money, together with the interest thereon, shall be immediately returned to
the Buyer by the Title Company. 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.
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8.02 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 7.02(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 remedy for the default, may terminate this
Contract and, following the expiration of five (5) calendar days after
Buyer is in receipt of written notice of the default, receive the Earnest
Money from the Title Company as liquidated damages.
ARTICLE IX
MISCELLANEOUS
9.01 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) the deposit of, in a regularly maintained receptacle for
the United States Mail, registered or certified, return receipt requested, postage prepaid,
addressed as follows:
SELLER:
Ronald Edward Thompson
P. O. Box 948
Lubbock, Texas 79408
Telecopy: (806) 747-8707
BUYER:
Carolyn Aliamus-Somma
City of Lubbock
1501 Sixth Street
Lubbock, Texas 79401
(806) 767-2235
Telecopy: (806) 762-5803
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Copies to:
For Seller:
Dulan D. Elder or Joseph F. Postnikoff
McWhorter, Cobb & Johnson, L.L.P.
P. O. Box 2547
Lubbock, TX 79408-2547
(806) 762-0214
Telecopy: (806) 762-8014
For Buyer:
Richard K. Casner
Assistant City Attorney
P. O. Box 2000
Lubbock, TX 79457
(806) 767-2221
Telecopy: (806) 762-1946
Edward W. Bucy
Right -of -Way Agent
P. O. Box 2000
Lubbock, TX 79457
(806) 767-2352
9.02 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.
9.03 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.
9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller
and Buyer, and their respective heirs, executors, administrators, successors and assigns.
9.05 Risk of Loss. If any damage or destruction to any of the Property prior to Closing
has not been restored to the satisfaction of Buyer, as determined in Buyer's sole
discretion, on or before the date of Closing, or if any condemnation or any eminent
domain proceedings are threatened or initiated that might result in the taking of any
portion of the Property, Buyer may, at Buyer's option, do any of the following:
(a) Terminate this Contract and withdraw from this transaction without cost,
obligation or liability, in which case the Earnest Money should be
immediately returned to Buyer; or
(b) Consummate this Contract, in which case Buyer, with respect to the
Property, shall be entitled to receive any insurance proceeds paid for
damage to the Property, together with the deductible amount under
Seller's insurance covering the Property. If Buyer makes this election, the
14
Closing shall be held on the tenth (10) calendar day after election is made
to close and receive the insurance proceeds and the deductible amount.
Buyer shall have a period of ten (10) days after receipt of written notification from
Seller on the final settlement of all insurance claims in which to make Buyer's election.
9.06 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 agree to perform, execute and/or 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.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
9.08 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.
9.09 Top Contract. Seller may enter into contracts or agreements during the
Feasibility Review Period, and only during such period, with other parties contemplating,
in the event that this Contract shall terminate, the sale and purchase of the Property, or
any part thereof. Any contract or agreement so entered shall expressly state (i) that it is
subject to this Contract; and (ii) that it shall take affect, if at all, upon the termination of
this Contract. A true and correct copy of any contract or agreement entered into pursuant
to this section shall be provided to Buyer on or before two (2) days after the execution
thereof. Buyer may, at any time from and after the Effective Date, file of record, in the
Real Property Records of Lubbock County, Texas, a Memorandum of Contract (the
"Memorandum") containing terms sufficient to provide notice to the public of the
existence of this Contract. Seller shall execute the Memorandum promptly upon request
of Buyer. If a Memorandum of Contract is placed of record in Lubbock County, Texas
pursuant to the terms hereof and this Contract shall be terminated by Buyer, Buyer shall
deliver to Seller a recordable Termination of Memorandum of Contract on or before three
(3) business days after notice of termination is provided to Seller.
9.10 Expiration of Offer. The execution of this Contract by Seller constitutes an offer
to sell the Property. Unless by 5:00 p.m., on September 26, 1997, this Contract is
15
accepted by Buyer, and a fully executed counterpart is delivered to Seller, the offer of this
Contract shall be automatically revoked and terminated.
SELLER:
19th Street Warehouse, Inc.
By:
Name: }X. --c-b
Title: era t 1� cw'5—
Executed by Seller on the (o day of i1-4-trt13 CLt 1997.
BUYE
r
WINDY SIT ON, MAYOR
Executed by Buyer on the day of 1997,
ATTEST:
e0-�ATXU-1y'Njt A a-b-
Kaythieb arnell, City Secretary
irolyn,
AS TO CONTENT:
Director of Culture/Leisure
APPROVED AS TO FORM:
m
Richard Casner, aural Resources Attorney
aa1RC2/199trt-2.doc
September 10, 1997
16
RESOLUTION NO. 5629
September 11, 1997
SHARED PARKING AGREEMENT
THIS AGREEMENT is made and entered into by and between 19th Street Warehouse,
Inc., Ronald Edward Thompson and Caroline S. Thompson (referred to collectively herein as
"User") and the City of Lubbock, Texas, a Home Rule Municipal Corporation of Lubbock
County, Texas (referred to herein as "Owner").
RECITALS
WHEREAS, Owner owns that certain tract of land, being Lots 1-24, inclusive, Block
232, Original Town Addition of the City of Lubbock, Lubbock County, Texas, as depicted in that
certain Plat, recorded in Volume 5, Page 384, Real Property Records, Lubbock County, Texas
(the "Lands");
WHEREAS, as presently occupied, a portion of the Lands contains spaces for the parking
of motor vehicles, said Lands being described on Exhibit "A", hereto (the "Affected Lands");
WHEREAS, the User owns an interest in, or otherwise controls the lands conveyed by (i)
Warranty Deed with the Vendor's Lien, dated October 21, 1992, from Lubbock Glass & Mirror
Company to Ronald E. Thompson, recorded in Volume 4017, Page 240, Real Property Records,
Lubbock County, Texas; (ii) Warranty Deed with the Vendor's Lien, dated January 22, 1991,
from Robert McKelvy and wife, Maxine B. McKelvy to Ronald E. Thompson, recorded in
Volume 3519, Page 208, Real Property Records, Lubbock County, Texas; and (iii) Warranty
Deed, dated June 19, 1992, from Horkey Oil Company, Inc. to Ronnie Thompson, recorded in
Volume 3934, Page 186, Real Property Records, Lubbock County, Texas (collectively referred to
herein as the "User's Premises");
WHEREAS, the User's Premises may not contain sufficient parking for motor vehicles to
maintain compliance with the respective zoning ordinances of the City of Lubbock;
WHEREAS, to maintain compliance with the zoning ordinances of the City of Lubbock,
the User desires, upon the conditions and covenants set forth below, to jointly utilize the
Affected Lands for the parking of motor vehicles for the benefit of the User's Premises.
NOW THEREFORE, the Owner and User agree as follows:
(1) Owner grants to the User, subject to the terms hereof, the right to jointly utilize,
along with the Owner, for the sole purpose of parking motor vehicles, the
Affected Lands. The use of the Affected Lands granted herein is limited to the
User and the patrons and customers of the User's Premises.
(2) User shall utilize the Affected Lands solely for the parking of motor vehicles, and
shall not utilize, or permit the utilization of, the Affected Lands for any other use
or purpose.
(3) It is expressly agreed and understood that the Owner shall have the right to utilize
the Affected Lands for the parking of motor vehicles, or any other use to which it
desires, during all times of the effective period of this Agreement. Further, by the
execution hereof, the User hereby subordinates all rights and interests which User
has been granted herein to the rights, needs and requirements of the Owner in
connection with its ownership and use of the Lands and/or Affected Lands. The
subordination by the User shall include, if deemed necessary by the Owner, the
complete exclusion of the User and the patrons and customers of the User's
Premises from the Affected Lands. In the event a motor vehicle is parked upon
the Affected Lands, and any occupant thereof makes any utilization of any kind of
the User's Premises, notwithstanding other activities of said occupant or
occupants, it shall be considered, for all purposes of this Agreement, that the
motor vehicle is parked pursuant to the rights granted by this Agreement.
(4) Notwithstanding anything to the contrary herein, Owner may make, or cause to be
made, any modifications or alterations to the Lands or Affected Lands it shall
desire, in its sole discretion. It is expressly agreed and understood that such
modifications or alterations may, if so desired by Owner, result in the complete
exclusion of the User and the patrons and customers of the User's Premises from
the Affected Lands. If a portion of the Affected Lands is modified or altered so
that same is no longer available for the parking of motor vehicles, the portion of
the Affected Lands remaining available for the parking of motor vehicles after
such modifications or alterations shall be deemed to be the "Affected Lands" for
all purposes under this Agreement during the remainder of the term hereof.
(5) User has made an independent inspection and evaluation of the Affected Lands
and acknowledges that Owner has made no statements or representations
concerning the condition thereof. OWNER MAKES NO REPRESENTATION
OR WARRANTY WHATSOEVER, EXPRESS, STATUTORY, OR IMPLIED,
INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION,
QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
AFFECTED LANDS, MERCHANTABILITY OR FITNESS FOR PURPOSE OF
THE AFFECTED LANDS. In no circumstance shall the Owner be under any
obligation to maintain and/or repair the Affected Lands.
(6) User certifies and warrants that it shall comply with all laws, statutes, rules and
regulations, both state and federal, and local ordinances, pertaining or relating to,
in any way, manner or form, the activities contemplated by this Agreement.
Further, User shall exercise due care in its use of the Affected Lands and shall
keep and maintain the Affected Lands free from debris, trash and refuse.
2
(7) Any and all motor vehicles, and all property of any kind or nature contained in or
appurtenant to said motor vehicles, which are parked and/or located on the
Affected Lands by virtue of this Agreement are the sole responsibility of User,
and in no event shall Owner be liable for any loss or damage to such motor
vehicles or property for any reason whatsoever.
(8) USER SHALL INDEMNIFY AND HOLD HARMLESS, TO THE FULLEST
EXTENT PERMITTED BY LAW, THE OWNER, AND OWNER'S
RESPECTIVE OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND
AGENTS, FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES,
CLAIMS OR LIABILITIES, OF ANY KIND OR NATURE, WHICH ARISE
DIRECTLY OR INDIRECTLY, OR ARE RELATED TO, IN ANY WAY,
MANNER OR FORM, THE ACTIVITIES CONTEMPLATED HEREUNDER,
OR THE OMISSION OF THE ACTIVITIES CONTEMPLATED HEREUNDER,
INCLUDING, BUT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR
LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY, MANNER
OR FORM, THE ACT OR OMISSION OF THIRD PARTIES AND/OR
CAUSED OR CONTRIBUTED TO, IN ANY WAY, MANNER OR FORM, BY
THE NEGLIGENCE OR FAULT OF OWNER, ITS RESPECTIVE OFFICERS,
EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS. THE USER
FURTHER COVENANTS AND AGREES TO DEFEND ANY SUITS OR
ADMINISTRATIVE PROCEEDINGS BROUGHT AGAINST THE OWNER
AND/OR THE OWNER'S RESPECTIVE OFFICERS, EMPLOYEES,
ELECTED OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH
CLAIM, AND TO PAY OR DISCHARGE THE FULL AMOUNT OR
OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING TO, OR
IMPOSED ON THE OWNER, OR THE OWNER'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 USER
SHALL PAY TO THE OWNER, THE OWNER'S RESPECTIVE OFFICERS,
EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS, AS APPLICABLE,
ALL ATTORNEYS' FEES INCURRED BY SUCH PARTIES IN ENFORCING
THE USER'S INDEMNITY IN THIS SECTION. THE INDEMNITY
PROVIDED HEREIN SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
(9) User shall procure and carry, at its sole cost and expense through the life of this
Agreement, insurance protection as hereinafter specified, in form and substance
satisfactory to Owner, carried with an insurance company authorized to transact
business in the State of Texas, covering all foreseeable aspects and operations in
connection with this Agreement, including, but not limited to, all aspects,
operations and/or occurrences to which User has indemnified Owner, as provided
3
in paragraph 8 hereof A Certificate of Insurance specifying each and all
coverages shall be submitted to Owner prior to the execution of this Agreement.
Further, User shall provide to Owner proof of the below -described insurance on or
before fourteen (14) days prior to the expiration date of each expiring policy, and
cause each such policy to require the insurer to (i) give notice to Owner, as
specified herein, of termination of any such policy sixty (60) days before such
termination is to be effective; and (ii) contain a waiver of any and all of the
insurer's rights to subrogation that any such insurer or insurers may acquire by
virtue of payment of any loss under such insurance.
A. Comprehensive General Liability Insurance. User shall have
comprehensive general liability insurance, with limits of $500,000.00
combined single limit in the aggregate and per occurrence. The Owner
shall be named as an additional insured in such policy.
B. Owner's Protective or Contingent Public Liability Insurance and Property
Damage Liability Insurance. User shall obtain an Owner's Protective or
Contingent Public Liability Insurance policy naming Owner as insured, in
the amount of, for bodily injuries, including accidental death and/or
property damage, $500,000.00 combined single limit.
(10) This Agreement shall terminate on the earlier to occur of (i) five (5) years from
the date of the execution hereof, or (ii) earlier termination as provided elsewhere
in this Agreement.
(11) In the event User breaches any term and/or provision of this Agreement, Owner
shall be entitled to exercise any right or remedy available to it by law, equity or
pursuant to the terms of this Agreement, including, without limitation, immediate
termination of this Agreement, and/or assertion of an action for damages or
injunctive relief. The exercise of any right or remedy shall not preclude the
concurrent or subsequent exercise of any other right or remedy and all rights and
remedies shall be cumulative.
(12) Notwithstanding anything to the contrary herein, in the event Owner shall convey
the Affected Lands during the effective period of this Agreement, the Owner may,
by providing ten (10) days written notice of such termination to User, terminate
this Agreement. Notice is to be provided as prescribed by Section 9.01 of that
certain Contract of Sale of even date herewith, by and between Owner and User,
contemplating the purchase and sale of the Lands.
(13) Any proposed assignment or sublease (collectively referred to herein as
"Assignment") of this Agreement and the rights granted herein by User, shall be
subject to the prior written consent of the Owner, which consent shall not be
unreasonably withheld. Any purported Assignment of this Agreement by User
without the prior written consent of the Owner shall be null and void and of no
0
effect. As a condition to the consent of the Assignment of this Agreement and the
rights granted herein, Owner may require, among other things, the express
assumption of all terms, provisions, covenants and agreements contained in this
Agreement by the assignee or sublessee. Notwithstanding any Assignment of this
Agreement by User or subsequent assignee of User, User and all subsequent
assignees of User shall be and remain responsible for the performance of all
terms, provisions, covenants and agreements contained in this Agreement.
(14) This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
s`' Executed and effective as of the Ifday of �, 1997.
USER:
19th Street Warehouse, Inc.
By
Name: aR�.DtuFk2�.SM�
Title:
Ronald Edward Thompson
.o J►
City of Lubbock, Texas
WINDY SIT ON, MAY
AT'iEST:
Darnell, City Secretary
APP�VED AS T CON
y
TENT:
'CJ
d
Caroline S. Thompson---.,, CarolAliamus-Somma
Mana ing Director of Managed Competition
J, APPROVED F
i��
Richard Casner, Natural Resources Attorney
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This instrument was acknowledged before me on NoY3�2 it�1911 , by WINDY
SITTON, as Mayor of the City of Lubbock, Texas.
BRENT NOBLE
' • • } Notary Public, State of Texas
•, ,+ My Commission Expires 4.11.98
ar
STATE OF TEXAS
COUNTY OF LUBBOCK
Notary Public in and for the State of Texas
My Commission Expires:
This instrument was acknowledged before me on NG/6.w3E.R- _4 PIN -I, by
�20.��.•� E— ZNoww'l of 19TH STREET WAREHOUSE, INC.,
[Name] [Title]
a Texas corporation, on behalf of said corporation.
BRENTEExpires
• •� Notary Public,exas
+, * My Commission.11.98
STATE OF TEXAS
COUNTY OF LUBBOCK §
Notary Public in and for the State of Texas
My Commission Expires:
This instrument was acknowledged before me on Nyy A 4, 911 , by
RONALD EDWARD THOMPSON.
BRENT NOBLE
•WO,
Notary Public, State of Texas
My Commission Expires 4
Notary Public in and for the State of Texas
My Commission Expires:
on
STATE OF TEXAS
COUNTY OF LUBBOCK
This instrument was acknowledged before me on N0V&*A-•-'- . W7 , by
CAROLINE S. THOMPSON.
BRENT NOBLE
• Rotary Public, State of Texas
My Commission Expires 4.11-98
da/rcVparkingldoc
November 3. 1997
Notary Public in and for the State of Texas
My Commission Expires:
7
EXHIBIT "A"
SHARED PARKING AGREEMENT
Lots One (1) through Twelve (12) and Lots Thirteen (13) through Twenty -
Four (24), Block Two Hundred Thirty -Two (232), ORIGINAL TOWN to
the City of Lubbock, Lubbock County, Texas, according to the Map, Plat,
and/or Dedication Deed thereof, recorded in Volume 5, Page 385, Deed
Records of Lubbock County, Texas; and the adjacent alley previously
closed and abandoned by City Ordinance No. 412 being further described
as follows:
BEGINNING at the original Northeast corner of Lot 1, Block 232,
Original Town of Lubbock;
THENCE East a distance of 20.00 feet to the Northwest corner of Lot 24,
Block 232;
THENCE South, along the West line of Lots 13 thru 24, Block 232, a
distance of 312.00 feet to the Southwest corner of Lot 13, Block 232;
THENCE West a distance of 20.00 feet to the Southeast corner of Lot 12,
Block 232.-
THENCE North, along the East line of Lots 1 thru 12, Block 232, a
distance of 312.00 feet to the POINT OF BEGINNING
insofar, and only insofar, as said lands do not contain any buildings, structures, signs
and/or lighting fixtures or equipment, as shown on the survey attached as Exhibit "A-1"
hereto.
da/rc2/spa-ex-a.doc
November 3, 1997
EXHIBIT "A"
The following items shall be deemed to comprise a portion of the Property, to wit:
1. Curtain and rods
2. Draperies and rods
3. Valances
4. Blinds
5. Window shades
6. Screens
7. Shutters
8. Awnings
9. Wall to wall carpeting
10. Mirrors fixed in place
11. Ceiling fans
12. Attic fans
13. Built in security and fire detection equipment
14. Lighting and plumbing fixtures
15. Shrubbery
16. Photos, drawings, and/or pictures referring to, or depicting, the Historic
Structure known as the "Fort Worth and Denver Depot"
17. Two (2) Fixed benches, located in the area known as the "Main Entrance".
18. Safe, located in the area known as the "Safe Room".
19. The baggage car, located in the area known as the "Main Dinning Room".
20. Three (3) Light poles, located in the area known as the "Courtyard".
21. Existing HVAC System
21. All restroom fixtures
22. Spanish tile bar located in the area known as the "Courtyard".
Notwithstanding, anything in this Contract to the contrary, the Seller shall retain, and
this Contact does not contemplate the sale of, the following items:
1. All consumable items within the Property.
2. Any and all furniture not attached and/or affixed to the Property, unless
described above as comprising a portion of the Property.
3. The bar, bar equipment and back bar located in the area known as the "Baggage
Room".
4. The bar, bar equipment and back bar located in the area known as the "Main
Dining Room".
5. Any and all items in the kitchen area, including walk-in freezers and walk-in
refrigeration units. Any and all items will be taken down to existing walls,
excluding stove vents.
6. All bar equipment in the area known as the "Courtyard", excluding the luggage
cart located therein.
8. The portable bar in the area known as the "Courtyard".
9. Stereo and sound system.
RKCV2e hibit.con
EXHIBIT "B"
GENERAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS
That , of (herein called "Grantor"), for
and in consideration of the sum of TEN AND N0/100 DOLLARS ($10.00), and other
good and valuable consideration to Grantor in hand paid by the CITY OF LUBBOCK, a
Home Rule Municipal Corporation (herein called "Grantee"), P. O. Box 2000, Lubbock,
TX 79457, the receipt and sufficiency of which are hereby acknowledged and confessed,
has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL
and CONVEY, unto Grantee all the real property in Lubbock County, Texas described as
Lots 1-24, inclusive, Block 232, Original Town Addition to the City of Lubbock,
Lubbock County, Texas, as depicted in that certain Plat, recorded in Volume 5, Page 384,
Real Property Records, Lubbock County Texas, together with all fixtures and
improvements attached thereto or located thereon, SAVE AND EXCEPT the
fixtures and/or improvements described on Exhibit "A" attached hereto (the "Property").
This conveyance is subject to the following:
[Insert Permitted Exceptions]
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors
and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee and Grantee's successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof.
EXECUTED the day of , 1997.
Grantor:
THE STATE OF TEXAS
COUNTY LUBBOCK §
BEFORE ME the undersigned authority, a Notary Public in and for said County
and State, on this day personally appeared the said , known to me
to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he executed the same for the purposes and consideration therein expressed.
GIVER UNDER MY HAND AND SEAL OF OFFICE this day of
1997.
RKC#2.waumty.dM
EXHIBIT "A"
To General Warranty Deed
The Grantor shall retain, and this Deed does not convey the following items:
1. All consumable items within the Property.
2. Any and all furniture not attached and/or affixed to the Property, unless
described above as comprising a portion of the Property.
3. The bar, bar equipment and back bar located in the area known as the
"Baggage Room".
4. The bar, bar equipment and back bar located in the area known as the
"Main Dining Room".
5. Any and all items in the kitchen area, including walk-in freezers and walk-
in refrigeration units. Any and all items will be taken down to existing
walls, excluding stove vents.
6. All bar equipment in the area known as the "Courtyard", excluding the
luggage cart located therein.
8. The portable bar in the area known as the "Courtyard".
9. Stereo and sound system.
RKCA2.Exhibit.ded
EXHIBIT "C"
BILL OF SALE
STATE OF TEXAS §
COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS
The undersigned, , a (the "Grantor"), for
and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable consideration to Grantor in hand paid by the City of Lubbock, a Home
Rule Municipal Corporation ("the Grantee"), the receipt and sufficiency of which are
hereby acknowledged, has BARGAINED, SOLD and CONVEYED and by these
presents, does BARGAIN, SELL and CONVEY unto Grantee, all of Grantors' right, title,
and interest to the personal property located in or on Lots 1-24, inclusive, Block 232,
Original Town Addition to the City of Lubbock, Lubbock County, Texas, as depicted in
that certain Plat, recorded in Volume 5, Page 384, Real Property Records, Lubbock
County, Texas, and described on Exhibit "A" attached hereto and incorporated herein (the
"Property").
THE ASSIGNMENT OF THE PROPERTY IS "WHERE IS", "AS IS" AND
"WITH ALL FAULTS" AND IS WITHOUT REPRESENTATION OR WARRANTY,
EXPRESSED, STATUTORY OR IMPLIED.
TO HAVE AND TO HOLD all of Grantor's right, title and interest in and to the
Property unto said Grantee and Grantee's successors and assigns forever, so that neither
Grantor nor Grantors successors and assigns shall have, claim or demand any right or title
to the Property.
Executed and effective this , day of
GRANTOR:
rk2/billsale.doc
1997.
EXHIBIT "A"
To Bill of Sale
1. Curtain and rods
2. Draperies and rods
3. Valances
4. Blinds
5. Window shades
6. Screens
7. Shutters
8. Awnings
9. Wall to wall carpeting
10. Mirrors fixed in place
11. Ceiling fans
12. Attic fans
13. Built in security and fire detection equipment
14. Lighting and plumbing fixtures
15. Shrubbery
16. Photos, drawings, and/or pictures referring to, or depicting, the Historic
Structure known as the "Fort Worth and Denver Depot"
17. Two (2) Fixed benches, located in the area known as the "Main Entrance".
18. Safe, located in the area known as the "Safe Room".
19. The baggage car, located in the area known as the "Main Dinning Room".
20. Three (3) Light poles, located in the area known as the "Courtyard".
21. Existing HVAC System
21. All restroom fixtures
22. Spanish tile bar located in the area kno«rn as the "Courtyard".
RCK#2.exhibit.bil
EXHIBIT "D"
SHARED PARKING AGREEMENT
THIS AGREEMENT is made and entered into by and between 19th Street
Warehouse, Inc., Ronald Edward Thompson and Caroline S. Thompson (referred to
collectively herein as "User") and the City of Lubbock, Texas, a Home Rule Municipal
Corporation of Lubbock County, Texas (referred to herein as "Owner").
RECITALS
WHEREAS, Owner owns that certain tract of land, being Lots 1-24, inclusive,
Block 232, Original Town Addition of the City of Lubbock, Lubbock County, Texas, as
depicted in that certain Plat, recorded in Volume 5, Page 384, Real Property Records,
Lubbock County, Texas (the "Lands");
WHEREAS, as presently occupied, a portion of the Lands contains spaces for the
parking of motor vehicles, said Lands being described on Exhibit "A", hereto (the
"Affected Lands");
WHEREAS, the User owns an interest in, or otherwise controls the lands
conveyed by (i) Warranty Deed with the Vendor's Lien, dated October 21, 1992, from
Lubbock Glass & Mirror Company to Ronald E. Thompson, recorded in Volume 4017,
Page 240, Real Property Records, Lubbock County, Texas; (ii) Warranty Deed with the
Vendor's Lien, dated January 22, 1991, from Robert McKelvy and wife, Maxine B.
McKelvy to Ronald E. Thompson, recorded in Volume 3519, Page 208, Real Property
Records, Lubbock County, Texas; and (iii) Warranty Deed, dated June 19, 1992, from
Horkey Oil Company, Inc. to Ronnie Thompson, recorded in Volume 3934, Page 186,
Real Property Records, Lubbock County, Texas (collectively referred to herein as the
"User's Premises");
WHEREAS, the User's Premises may not contain sufficient parking for motor
vehicles to maintain compliance with the respective zoning ordinances of the City of
Lubbock;
WHEREAS, to maintain compliance with the zoning ordinances of the City of
Lubbock, the User desires, upon the conditions and covenants set forth below, to jointly
utilize the Affected Lands for the parking of motor vehicles for the benefit of the User's
Premises.
NOW THEREFORE, the Owner and User agree as follows:
(1) Owner grants to the User, subject to the terms hereof, the right to jointly
utilize, along with the Owner, for the sole purpose of parking motor
vehicles, the Affected Lands. The use of the Affected Lands granted
herein is limited to the User and the patrons and customers of the User's
Premises.
(2) User shall utilize the Affected Lands solely for the parking of motor
vehicles, and shall not utilize, or permit the utilization of, the Affected
Lands for any other use or purpose.
(3) It is expressly agreed and understood that the Owner shall have the right to
utilize the Affected Lands for the parking of motor vehicles, or any other
use to which it desires, during all times of the effective period of this
Agreement. Further, by the execution hereof, the User hereby
subordinates all rights and interests which User has been granted herein to
the rights, needs and requirements of the Owner in connection with its
ownership and use of the Lands and/or Affected Lands. The subordination
by the User shall include, if deemed necessary by the Owner, the complete
exclusion of the User and the patrons and customers of the User's
Premises from the Affected Lands. In the event a motor vehicle is parked
upon the Affected Lands, and any occupant thereof makes any utilization
of any kind of the User's Premises, notwithstanding other activities of said
occupant or occupants, it shall be considered, for all purposes of this
Agreement, that the motor vehicle is parked pursuant to the rights granted
by this Agreement.
If the Owner deems that it is necessary to completely exclude the User and
patrons and customers of User's Premises from the Affected Lands under
the subordination of rights provided in this paragraph 3, such complete
exclusion shall be for a period of not longer than fourteen (14) consecutive
twenty-four (24) hour periods. There shall be no limitation on the number
of periods in which the Owner may completely exclude the User and the
customers and patrons of User's Premises during the effective term of this
Agreement. The limitations of Owner to completely exclude the User and
the patrons and, customers of User's Premises from the Affected Lands, as
provided in this paragraph 3, shall in no way affect any rights of Owner as
provided in other provisions of this Agreement.
(4) Notwithstanding anything to the contrary herein, Owner may make, or
cause to be made, any modifications or alterations to the Lands or
Affected Lands it shall desire, in its sole discretion. It is expressly agreed
and understood that such modifications or alterations may, if so desired by
Owner, result in the complete exclusion of the User and the patrons and
customers of the User's Premises from the Affected Lands. If a portion of
the Affected Lands is modified or altered so that same is no longer
available for the parking of motor vehicles, the portion of the Affected
Lands remaining available for the parking of motor vehicles after such
modifications or alterations shall be deemed to be the "Affected Lands"
for all purposes under this Agreement during the remainder of the term
hereof.
(5) User has made an independent inspection and evaluation of the Affected
Lands and acknowledges that Owner has made no statements or
representations concerning the condition thereof. OWNER MAKES NO
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS,
STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT
LIMITATION, AS TO THE DESCRIPTION, QUALITY, PHYSICAL
AND ENVIRONMENTAL CONDITION OF THE AFFECTED LANDS,
MERCHANTABILITY OR FITNESS FOR PURPOSE OF THE
AFFECTED LANDS. In no circumstance shall the Owner be under any
obligation to maintain and/or repair the Affected Lands.
(6) User certifies and warrants that it shall comply with all laws, statutes, rules
and regulations, both state and federal, and local ordinances, pertaining or
relating to, in any way, manner or form, the activities contemplated by this
Agreement. Further, User shall exercise due care in its use of the Affected
Lands and shall keep and maintain the Affected Lands free from debris,
trash and refuse.
(7) Any and all motor vehicles, and all property of any kind or nature
contained in or appurtenant to said motor vehicles, which are parked
and/or located on the Affected Lands by virtue of this Agreement are the
sole responsibility of User, and in no event shall Owner be liable for any
loss or damage to such motor vehicles or property for any reason
whatsoever.
(8) USER SHALL INDEMNIFY AND HOLD HARMLESS, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE OWNER, AND
OWNER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED
OFFICIALS AND AGENTS, FROM AND AGAINST ANY AND ALL
LOSSES, DAMAGES, CLAIMS OR LIABILITIES, OF ANY KIND OR
NATURE, WHICH ARISE DIRECTLY OR INDIRECTLY, OR ARE
RELATED TO, IN ANY WAY, MANNER OR FORM, THE
ACTIVITIES CON T EMPI,ATED HEREUNDER, OR THE OMISSION
OF THE ACTIVITIES CONTEMPLATED HEREUNDER,
INCLUDING, BUT LIMITED TO, LOSSES, DAMAGES, CLAIMS OR
LIABILITIES ARISING FROM OR RELATED TO, IN ANY WAY,
MANNER OR FORM, THE ACT OR OMISSION OF THIRD PARTIES
AND/OR CAUSED OR CONTRIBUTED TO, IN ANY WAY,
MANNER OR FORM, BY THE NEGLIGENCE OR FAULT OF
OWNER, ITS RESPECTIVE OFFICERS, EMPLOYEES, ELECTED
OFFICIALS AND/OR AGENTS. THE USER FURTHER COVENANTS
AND AGREES TO DEFEND ANY SUITS OR ADMINISTRATIVE
PROCEEDINGS BROUGHT AGAINST THE OWNER AND/OR THE
OWNER'S RESPECTIVE OFFICERS, EMPLOYEES, ELECTED
OFFICIALS AND/OR AGENTS ON ACCOUNT OF ANY SUCH
CLAIM, AND TO PAY OR DISCHARGE THE FULL AMOUNT OR
OBLIGATION OF ANY SUCH CLAIM INCURRED BY, ACCRUING
TO, OR IMPOSED ON THE OWNER, OR THE OWNER'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
USER SHALL PAY TO THE OWNER, THE OWNER'S RESPECTIVE
OFFICERS, EMPLOYEES, ELECTED OFFICIALS AND/OR AGENTS,
AS APPLICABLE, ALL ATTORNEYS' FEES INCURRED BY SUCH
PARTIES IN ENFORCING THE USER'S INDEMNITY IN THIS
SECTION. THE INDEMNITY PROVIDED HEREIN SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT.
(9) User shall procure and carry, at its sole cost and expense through the life
of this Agreement, insurance protection as hereinafter specified, in form
and substance satisfactory to Owner, carried with an insurance company
authorized to transact business in the State of Texas, covering all
foreseeable aspects and operations in connection with this Agreement,
including, but not limited to, all aspects, operations and/or occurrences to
which User has indemnified Owner, as provided in paragraph 8 hereof. A
Certificate of Insurance specifying each and all coverages shall be
submitted to Owner prior to the execution of this Agreement. Further,
User shall provide to Owner proof of the below -described insurance on or
before fourteen (14) days prior to the expiration date of each expiring
policy, and cause each such policy to require the insurer to (i) give notice
to Owner, as specified herein, of termination of any such policy sixty (60)
days before such termination is to be effective; and (ii) contain a waiver of
any and all of the insurer's rights to subrogation that any such insurer or
insurers may acquire by virtue of payment of any loss under such
insurance.
A. Comprehensive General Liability Insurance. User shall have
comprehensive general liability insurance, with limits of
$500,000.00 combined single limit in the aggregate and per
occurrence. The Owner shall be named as an additional insured in
such policy.
B. Owner's Protective or Contingent Public Liability Insurance and
Property Damage Liability Insurance. User shall obtain an
Owner's Protective or Contingent Public Liability Insurance policy
naming Owner as insured, in the amount of, for bodily injuries,
including accidental death and/or property damage, $500,000.00
combined single limit.
(10) This Agreement shall terminate on the earlier to occur of (i) five (5) years
from the date of the execution hereof, or (ii) earlier termination as
provided elsewhere in this Agreement.
(11) In the event User breaches any term and/or provision of this Agreement,
Owner shall be entitled to exercise any right or remedy available to it by
law, equity or pursuant to the terms of this Agreement, including, without
limitation, immediate termination of this Agreement, and/or assertion of
an action for damages or injunctive relief. The exercise of any right or
remedy shall not preclude the concurrent or subsequent exercise of any
other right or remedy and all rights and remedies shall be cumulative.
(12) Notwithstanding anything to the contrary herein, in the event Owner shall
convey the Affected Lands during the effective period of this Agreement,
the Owner may, by providing sixty (60) days written notice of such
termination to User, terminate this Agreement. Notice is to be provided as
prescribed by Section 9.01 of that certain Contract of Sale of even date
herewith, by and between Owner and User, contemplating the purchase
and sale of the Lands. In the event that Owner shall terminate this
Agreement as provided in this paragraph 12, and only in such event,
Owner shall utilize its best efforts to provide alternative parking facilities
to User. Nothing herein shall be construed to require the Owner to expend
funds to provide such alternative parking facilities and/or provide such
alternative parking facilities on City owned property during the normal
business hours of such property.
(13) Any proposed assignment or sublease (collectively referred to herein as
"Assignment") of this Agreement and the rights granted herein by User,
shall be subject to the prior written consent of the Owner, which consent
shall not be unreasonably withheld. Any purported Assignment of this
Agreement by User without the prior written consent of the Owner shall be
null and void and of no effect. As a condition to the consent of the
Assignment of this Agreement and the rights granted herein, Owner may
require, among other things, the express assumption of all terms,
provisions, covenants and agreements contained in this Agreement by the
assignee or sublessee. Notwithstanding any Assignment of this
Agreement by User or subsequent assignee of User, User and all
subsequent assignees of User shall be and remain responsible for the
performance of all terms, provisions, covenants and agreements contained
in this Agreement.
(14) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
Executed and effective as of the day of September, 1997.
USER:
19th Street Warehouse, Inc.
By: _
Name:
Title:
Ronald Edward Thompson
Caroline S. Thompson
da/rcMharpark.doc
September 10, 1997
Ava"J
City of Lubbock, Texas
WINDY SITTON, MAYOR
ATTEST:
Kaythie Darnell, City Secretary
APPROVED AS TO CONTENT:
Carolyn Aliamus-Somma
Managing Director of Culture/Leisure
APPROVED AS TO FORM:
Richard Casner, Natural Resources Attorney
PLAT'SHOWING SURVEY OF BLOCK
ORIGINAL TOWN OF LUBBOCK.
LUBBOCK COUNTY, TEXAS
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