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Resolution - 2009-R0559 - Contract Of Sale - Suntrust Bank, Donald E. Handleman - 12_16_2009
Resolution No. 2009—RO559 December 16, 2009 Item No. 5.7 RESOLUTION BE 1T 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 SUNTRUS'I` BANK of Alexandria Virginia, and DONALD E. HANDELMAN, Testamentary Trustees under Paragraph Eight of the Last Will and Testament of Marjorie M. Post, Deceased; HGM PROPERTIES-. L.P., HENRIETTA M. HEYDON, THE MOSAIC FOUNDATION, KENNETH H. MONTGOMERY TRUST, KENNETH H. MONTGOMERY FOUNDATION, and THE G. HAROLD AND LEILA Y. MATHERS CHARITABLE FOUNDATION, and the City of Lubbock, regarding property described as 9.31 acres out of Section 1224, W. C. Young Survey, Garza County, Texas, and all related documents. Said Contract of Sale is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 16th day of AT'I'LST: Rebe&a Garza, City Secretary APPROVED AS TO CONTENT: -Ci o-c sazr� Dave Booher, Right -of -Way Agent M �Va dA 6 �- 7 MarsFa Reed, P.E. Chief Operations Officer APPROVED AS Attorney Contract of Sale -WC Young Survey res 6 5.0 December 2009. 77 TOM MARTIN, MAYOR Resolution No. 2009—RO559 �aS�rp' TEXAS ASSOCIATION OF R-ALTORSO COMMERCIAL CONTRACT - UNIMPROVED PROPERTY USE OF ThIS FORM 9Y PERSONS WHO ARE NOT MF-MMRS OF THE- TflWSASSOCIRTION OF REALTORSO IS N0Y ASfMORYZEO, ®TOxaa aawelaBon sr REALTOREM, Me, 2006 1, PARTIES: Seller agrees to sell and convey to Bayer the Property described In Paragraph 2. Buyer agrees to buy the Property from Seiler for the sales price Stated In Paragraph 3, The parties to this contract are-, Seller: Suntrust Bank of Alexandria Virginia and Donald E. Handelman, Testamentary Trustees under Paragraph Eight of the Last Will and Testament of Marjorie M. Post, Deceased; HGM Properties, L.P„ Henrietta M. Heydon, The Mosaic Foundation, Kenneth H. Montgomery Trust, Kenneth H, Montgomery Foundation and The G. Haroid and t.eila Y. Mathers Charitable Foundation collectively by and through their attorney -in -fact, Dan Hook Address; Phone: _ Fax: E-mail: Buyer; Ciiy of Lubbock Address: Phone; Fax: E-mail: 2. PROPERTY: A. "Property" means that real property situated in Garza County, Texas at sea T,ega3. (address) and that Is legally described on the attached Exhibit A or as follows: S. Seller wlli sell and convey the Property together with; (1) all rights, privileges., and appurtenances pertaining to the Properly, Ir��d{r� Salle>ra g"�:!a � + (3) _ _ ,��, a„�i�Qt�setrtfte rula'ced tea-Frepe4 (Describe any exceptions, reservations, orrestrlctlons In Paragraph 12 or an addendum) 3. • SALES PRICE: A. At or before closing, Buyer will pay the following sales price for the Property: *54) 000.0C Net (1) Gash portion payable by Buyer at closing .. . . ... . . . . . . ........... $ to Seller a iosiilg (2) Sum of all flnancing described In Paragraph 4 .. . ... . . . ........ . . . . 1� (3) Sales price (sum of 3A(1) and 3A(2)) .... . . . . . .. . ........ . . . . . . . $ same as above ri ty �*�R-18021 10-18-05 InNieled for ldentiffcaticn by BuyerM" _,-_and Wler�_�"�1 Flsgo ', of 12 4" .ugal RBALTORS 4601 S Loop 209, STB 29 Lubback,'ix 79424 9,yrio:006-793.0707 Fax: 606.796.7874 Dorm, Combs blank n Produced v+hh ZIPFormV byzlpLoghc 18070 Mori Wo Road, Fraser, Mfthl4wi 45OZ8 pLpglxJ;aaa 0 rrt Commornlal Contract - Unimproved Property Concerning See Legal B, ,A,djustment.ttz Sale�s price: (Check (1} or (2) only.) 9 (1) The sales price will not be adjusted based on a survey. W {2) The sales price will be adjusted based on the latest survey obtained under Paragraph 6B. (a) The sales price is calculated on the basis of $ _ coo. a0 per: 0 (l) square foot of U total area 0 net area. 0 (li) acre of t7 total area D net area, (b) 'Total area" means all land area within the perimeter boundaries of the Property, "Net area" means total area less any area of the Property within: ❑ (1) public roadways; 0 (il) rights -of -way and easements other than those that directly provide utility services to the Property; and ❑ (ill) (c) If the sales price is adjusted by more than % of the stated sales price, either parry may terminate this contract by providing written notice to the other party within days after the terminating party receives the survey. If neither party terminates this contract or if the varlance Is less than the stated percentage, the adjustment to the sales price will be made to the cash portion of the sales price payable by Buyer. 4. FINANCING; Buyer will finance the portion of the saies price under Paragraph 3A(2) as follows: © A. Third Parts Plnancina: One or more third party loans In the total amount of $ This contract: © (1) Isn43 contingent upon Buyer obtaining third parry financing, CJ (2) Is contingent upon Buyer obtaining third party financing In accordance with the attached Commercial Contract fInancing Addendum. p B. Aggium tp ion: In accordance with the attached Commercial Contract Financing Addendum, Buyer will assume the existing promissory note secured by the Property, which balance at closing will be ❑ C, Seiler Flna Gina; The delivery of a promissory note and deed of trust from Buyer to Sutler under the terms of the attached Commercial Contract Financing Addendum In the amount of $. 5. EARNEST MONM A. Not later than 3 days after the effective date, Buyer must deposit $ 1. 000.0o as eamest money with West Texas Title (escrow agent) at Boo' Quaker. Lubbock, TX 72424 (address), if Buyer falls to timely deposit the earnest money, Seiler may terminate this contract by providing written notice to Buyer before Buyer deposits the earnest money and may exercise Seller's remedies under Paragraph 15. 6, Buyer will deposit an additional amount of $ _ _ with the escrow agent to be made part of the earnest money on or before: 0 (t) days after Buyer's right to terminate under Paragraph 7B expires; or p (It.) Buyer will be In default If Buyer falls to deposit the additional amount required by this Paragraph 513 r within 3 days after Seller notlfles Buyer that Buyer has not timely deposited the additional amount. C. Buyer may instruct the escrow agent to deposit the earnest money In an Interest -bearing account at a CD federally insured flnanclat Institution and to credit any Interest to Buyer, 1Q ; rl el J CJ (TAH802) 10-18-05 Initiated for Identitloatlon by Buyer�4&4 and Sutler Pago 2 of 12 C—.) ° Produced with ZlpFormO by zlpLaAIK 1807U FIRasn tAlle Roul, Fracer, MrNh an-4e020 wtNLzlz°e octY rim blank r� O , CC) Commarcfal Contract - Unimproved Property Concerning See Legal 6. TITLE POLICY AND SURVEY: A. Me Pn41W Buyer Buye17's (1) Sellei�,at Se4Ws expense, will furnish Buyer an Owner's Polley of Title insurance (the title policy) Issued by West Texas Title (title company) In the amount of the sales price, dated at or after closing, Insuring Buyer against loss under the title policy, subject -only to'. a' I exceptions, easements, and encumbrances of record or that wosild be shown on a (a) those title exceptions permitted by this contract or as may be approved by Buyer in writing; and properly (b) the standard printed exceptions contained in the promulgated form of title policy unless this proposed contract provides otherwise, tine commitment, and (2) The standard printed exception as to discrepancies, conflicts, or shortages In area and boundary lines, or any encroachments or protrusions, or any overlapping Improvements: ❑ (a) will not be amended or deleted from the title policy. ® (b) will be amended to read "shortages in areas" at the expense of M Buyer ❑ Seller, (3) Buyer may object to any restrictive covenants on the Property within the time required under Paragraph 60. Buyer and Seiler (4) Within L0 days after the effective date, Seilef will furnish Buyerj✓a commitment for title insurance (the commitment) including legible copies of recorded documents evidencing title excepticns, Seller authorizes the title company to deliver the commitment and related documents to Buyer at Buyer's addresswith a copy to Seller's attorney. 8.'ldrvey: Within 10 days after the effective date: M (1) Buyer wlil obtain a survey of the Property at Buyer's expense and deliver a copy of the survey to Seiler. The survey must be made in accordance with the Texas Society of Professional Surveyors' standards for a Category 1 A survey under the appropriate condition. ❑ (2) Seller, at Saliar's expense, will furnish Buyer a survey of the Property dated after the effective date. The survey must be made In accordance with the Texas Society of Professional Surveyors' standards for a Category 1 A survey under the appropriate condMon. © (3) Seller will deliver to Buyer and the title company a true and correct copy of Sellar's existing survey of the Property dated along with an affidavit required by the title company for approval of the survey, If the sunray is not acceptable to the title company, Seller, .at Seller's expense, will c0taln a survey acceptable to the title company and deliver the acceptable survey to the Buyer and the title company Within 15 days after Seller receives notice that the existing survey 1s not acceptable to the title company. The closing date will be extended deify up to 15 days If necessary For Seiler to deliver an acceptable survey within the tlme reeulred. (1) Within 10 days after Buyer receives The commitment, copies of the documents e 0dencing the tltie exceptions, and any required survey, Buyer may object In writing to matters disclosed In the items if: (a) the matters disclosed constitute a defect or encumbrance to title other than those permitted by this contract or liens that Seller will satisfy at closing or Buyer will assume at closing; or (b) the items show that any part of the Property lies in a special flood hazard area (an "A" or "V" zone as defined by FEMA), if Paragraph 613(1) applies, Buyer Is deemed to receive the survey on the earlier of: (1) the date of Buyer's actual receipt of the survey; or (11) of the deadline specified in Paragraph 68. (TAR-1t302)10-1M5 Initiated for Identification by Buyerazm and Seller— � Page 3 of 12 C` Produced wllh ZipForMV oyzlpLopiz 18070 FMCen Mlla Road, FranDr, FArNgen 43026 WAM! zlee mrY cam h1Rnk rT3 C.a f0.1 O GO Commercial Contract - Unimproved Property Concerning see Legal_ (2) Seller may, but Is not obligated to, cure Buyer's timely objections within 15 days after Seller receives the objections. The closing date will be extended as necessary to provide such time to cure the objections. If 'Seller falls to cure the objections by the time required, Buyer may terminate this contract by providing written notice to Seller within 5 days after the time by which Seller must cure the objections. If Buyer terminates, the earnest money, less any Independent consideration} under Paragraph 713(l), will be refunded to Buyer, (3) Buyer's failure to timely object or terminate under this Paragraph o"C Is a walver•of Buyers right to object except that Buyer will not waive the requirements In Schedule C of the commllment. 7. PROPERTY CONDITION: A. pr�-sen con tlon: Buyer accepts the Property In Its present condition except that Seller, at Seller's expense, will complete the following before closing: B, Feasi v P . oci: Buyer may terminate this contract for any reason within n/a days after the effective date (feaslblilty period) by providing Seller written notice of terminatlon. (Check only one box.) M (1) If Buyer tennlnates under this Paragraph 76, the earnest money will be refunded to Buyer less $ n/a that Seller will retaln as Independent consideration for Buyer's unrestrlcted right to terminate. Buyer has tendered the independent consideratlon to Seller upon payment of the amount specified in Paragraph 5A to the escrow agent. The Independent consideration is to be credited to the sales price only upon dosing of the sale, Jf -lst -dW ac amouni -La Mated .Ju Jbia O (2) Not later than 3 days after the effective date, Buyer must pay Setter $ as Independent consideration for Buyer's right to terminate by tendering such amount to Seller or Seller's agent. if Buyer terminates under this Paragraph 7B, the earnest money will be refunded to Buyer and Seller will retain the Independent consideration, The independent consideration will be credited to the sales price only upon closing of the sale, Am doilar mo ent.Ja stated I ibla MIN -I KzMvH&9111-2144 (1) During the feaslbllity period, Buyer, at Buyer's expense, may complete or cause to be completed any and all Inspections, studies, or assessments of the Property (Including all improvements and fixtures) desired by Buyer, (2) Buyer must: (a) employ only trained and qualified Inspectors and assessors; (b) notify Seller, In advance, of when the inspectors or assessors will be on the Property; (c) abide by any reasonable entry rules or requirements of Seller; (d) not Interfere with existing operations or occupants of the Property; and (e) restore the Property to Its original condition If altered duo to Inspections, studies, or assessments that Buyer completes or causes to be completed. (3) Except for those matters that arise from the negligence of Seiler or Seller's agents, Buyer Is responsible for any claim, liability, encumbrance, cause of action, and expense resulting from , rt (TAR-1802) Q-t -05 Initialed for Identification by Boyer and Salter _ � Page a of 12 :., Produced wAh 2lpFomm by zlpLogiX 18070 Flftean Nillu Road, Fwar, MI MWn 48028 vnwr ZInl nnrx MM blank t� Commercial Contreol - Unlmproved Property Concerning See Legal Buyeeu inspections, studies, or assessments, Including any property damage or personal injury. To the extent Buyer will Indemnify, hold harmless, and defend Seller and Seller's agents against any claim permitted by involving a matter for whloh Buyer Is responsible under this paragraph. This paragraph survives applicable Saw to of this contract. Now ..:M f • la•. •l (1) Dative r off PmpeM Inforrp on; Within s days after the effective date, Seller will deliver to Buyer; . ❑ (a) copies of -all current leases pertaining to the Property, including -any modifications, supplements, or amendments to the leases; ❑ (b) copies of all notes and deeds of trust against the Property that Buyer will assume or that Seller will not pay in full on or before closing; ❑ (c) coples of all previous environmental assessments, geotechntcal reports, studies, or analyses made on or relating to the Property; El (d) coples property tax statements for the Property for the previous 2 calendar years; ip (e) plats of the Property; ❑ (f) copies of current utIlIty capacity letters from the Property's water and sewer service provider; and (g) (2) Ret+,jrn of Pro erty 1 matton; If this contract terminates for any reason, Buyer will, not later than qO days after the termination date; (a) return to Seiler all those Items described In Paragraph 7Q(1) that Seller delivered to Buyer and all copies that Buyer made of those items; and (b) deliver copies of all Inspection and assessment reports related to the Property that Buyer completed or caused to be completed. This Paragraph 7D(2) survives. termination of this contract. E. Qontracts Affecting O er ton ; Until closing, Seller (1) will operate the Property in the same manner as on the effective date under reasonably prudent business standards; and (2) will not transfer or dispose of any part of the Property, any Interest or right In the Property, or any of the personal property or other Items described In Paragraph 28 or sold under this contract, After the feasibility period ends, Seiler may not enter Into, amend, or terminate any other contract that affects the operations of the Property without Buyer's written approval. a. LEASES: , es-ttte-4e; �s-tom.-Buyer-eF s uett�a 3Sflsf- a �e ##e tease -es -Melt say e#s®ts er-dales; #eat any lease; ert4-- ai rrr, eases-spsee- rn (VAR-1802) 110-18-05 Initraled for Idontiftcatton by Buyer and Seiler_ Page 5 of 12 Produoed w(Ih ZlpForm®byalpLaptK teVO Fifteen Mlle Rood, Fraser, Ml®rlflan 4BO20 M&tU zlr oalx rom blank t7� 4- d f-►'1 n dll� C+J ram; CD LCI Commercial Contract • Unimproved Property Concerning See Legal •r • " _• • .. . - - - 9. BROKERS: A. The brokers to this sale are: VcDou al Rea3tors Cooperating Broker Lcense No, Pdncp'1 Bro ar License No. Address 4901 S. Lang 289, 429 Address Lubbock, TX 79424 {�Q6} 79Z-0703 fRQFF1 796-7s74 Phone Fax Phone Fax E-mail: Cooperating Broker represents buyer B. Eaao., (Chock only one box.) E-malt: Principal Broker, {Check only one box,) ❑ represents Seller only. ® represents Buyer only, ❑ Is an Intermedlary between Seller and Buyer. ❑ (1) Seller will pay Principal Broker the fee specified by separate written commission agreement between Principal Broker and Seller. Principal Broker will pay Cooperating Broker the fee specified in the Agreement Between Brokers found below the parties' signatures to this contract. M (2) At the closing of thls sale, Seller will pay: Cooperating Broker a total cash fee of: 9 % of the sales price. Principal Broker a total cash fee of: 9 % of the sales price, $4,500,00 The cash fees will be paid In Lubbock County, Texas. Seller authorizes escrow agent to pay the brokers from the Seller'e proceeds at closing. NOTICE: Chepter 62, Texas Property Code, authorizes a broker to secure an earned commission wfth a lien agafost the Property. C. The parties may not amend this Paragraph 9 without the written consent of the brokers affected by the amendment. 10. CLOSING: A. The olosing of the sale will be on or before January 31, a010 or within 7 days after objections made under Paragraph 6C have been cured or waived, whichever date Is later (the closing date). B. If either party fails to close by the closing date, the non -defaulting party may exercise the remedles In Paragraph 15. ,J� (TAR-1802) 10-18-06 Initiated for Identification by Buyery'G.iCLt and Seller Page B of 12 ri Produced with ZIPFDan® by zlpLcglx 100T0 Fifteen Mile Bond, fr�svr, FAIch4gAn M18026 _y;.,v i�nl+,alx rort 6!ak fT'r FO n Commercial Contract - Unimproved Property Concernln0 see Legal Buyer's C. At closing, Seller will execute and deliver, at -Seller's- expense, a Q general ® special warranty deed. The deed must Include a vendor's Ilan If any part of the sales price Is financed, The deed must convey good and indefeasible title to the Property and show no exceptions other than those permitted under Paragraph 5 or other provisions of this contract, Seller must convey the Property. (1) with no (lens, assessments, or other security Interests against the Property which will not be satisfied out of the sales price, unless securing loans Buyer assumes; (2 without any assumed loans In default; and (3� with no persons In possession of any part of the Property as lessees, tenants at sufferance, or trespassers except tenants under the written leases assigned to Buyer under this contract, D. At closing, Seller, at Seller's expense, will also deliver to Buyer: (4) evidence that the person executing this contract Is legally capable and ,authorized to bind Seller; (5) an affidavit acceptable to the escrow agent stating that Seller )s not a foreign person or, If Seller Is a foreign person, a written authorization for the escrow agent to; (I) withhold from Seller's proceeds an amount sufficient to comply applicable tax law; and (11) deliver the amount to the Internal Revenue Service (IRS) together with apprapdate tax forms; and (0) any notices, statements, certificates, affidavits, releases, and other documents required by this contract, thle-eom for the closing of the sale -and -is�i�-t#t48 pofloy. ail of which rnu�t d �y Seller as �eeesa E. At closing, Buyer will; (1) pay the sales price In good funds acceptable to the escrow agent; (2) deliver evidence that the person executing this contract Is legally capable and authorized to bind Buyer; (5) execute and deliver any notices, statements, certificates, or other documents required by this contract or law necessary to close the sale. F, Unless the partles agree otherwise, the closing documents will be as found In the basic forms in the current edition of the State Bar of Texas Real Estate Forms Manual without any additional clauses, 11, POSSESSION: Seller will deliver possession of the Property to Buyer upon closing and funding of this sale In Its present condition with any repairs Seller Is obligated to complete, ordinary wear and tear excspted. Any possession by Buyer before closing or by Seiler after closing that Is not authorized by a separate written lease agreement Is a landlord -tenant at sufferance relationship between the parties. 12, SPECIAL PROVISIONS: (ldenffry exhibit lrspeclef provisions are confalrred in an attachmont) Refer to Exhibit 8 !1� ,.� (TAR-1802)10.18-05 Initialed for Identification by BUye / and Se11vr :Y] Produced with zlpFvM* by zlpLoglx W7g F€!teen Mlle Road, Rarer, Wchlgai 4BO26 mm 7ici Qgk. c= C7 Page 7 of 12 blank Commercial Cowract- Unlmproved'Pmperly Concerning See Legal 13, SALES EXPENSES: A. Sellgrs Expenses; Seller will pay for the following at or before closing: (1) releases of existing liens, other than those liens assumed by Buyer, Including prepayment penalties and recording fees; (2) release of Seller's loan liability., If applicable; B. Buyer's Expenses: Buyer will pay for the following at or before closing: (1) all loan expenses and fees; (2)) preparation of any deed of trust; (3) recording fees for the deed and any deed of trust; (4) premlums for flood Insurance as may be required by Buyer's lender; (5 ane-he#-d any escrow fee; (6) other expenses that Buyer will pay under other provisions of this eoniract. 14. PRORATIONS: A. Prorations: (1) Interest on any assumed loan, taxes, rents, and any expense reimbursements from tenants will be prorated through ttte closing date. (2) If the amount of ad valorem taxes for the year In which the sale closes is not available on the closing date, taxes will be prorated on the basis of taxes assessed In the previous year, If the taxes for the year In which the sale closes vary from the amount prorated at closing, the parties will adjust the prorations when the tax statements for the year In which the sale closes become available, This Paragraph 14A(2) survives closing. (3) If Buyer assumes a loan or Is taking the Property subject to an existing lien, Seller will transfer all reserve deposits held by the lender for the payment of taxes, Insurance premlums, and other charges to Buyer at closing and Buyer will reimburse such amounts to Seller by an appropriate adjustment at closing, B. 8sllbaciS TM If Seller changes the use of the Property before closing or If a denial of a special valuation on the Property claimed by SMIer results In the assessment of additlonal taxes, penalties, or Interest (assessments) for periods before closing, the assessments will be'the obligation of the Seller. If this sale or Buyer's use of the Property after closing results In additional assessments for periods before closing, the assessments will be the obligation of Buyer. This Paragraph 14B survives closing. C. Rent and SeQ r�ity Deposits: At closing, Seller will tender to Buyer ail security deposits and the following advance payments received by Seller for periods after closing: prepaid' expenses, advance rental payments, and other advance payment's paid by tenants. Rents prorated to one party but received by the other party will be remitted by the recipient to the party to whore it was prorated within 5 days aftQr the rent Is received. This Paragraph 14C survives closing. 15. DEFAULT: t—A A. If Buyer falls to comply with this contract, Buyer Is In default and Seller may: ON (1) terminate this contract and receive the earnest money as liquidated damages, thereby releasing the p parties from this contract; or ,n (2) enforce specific performance, or seek other relief as may be provided by law, or both. � o f'•"1 JAI`5"II02)10-18-N Initialed for Idenmratlon by Buyer'lq_� and Seller, N Page A of 12 Pmduood with ZWomQD by OpLoglx 16070 Fifteen Hls Raed, Pmwr, Vchlg¢n 0026 a^nWWOLDak rom blank CJ� ry O O Commercial Contract- Unimproved Property Concerning See Liacr31 B, If, without fault, Seller Is unable within th� time allowed to deliver the estoppel certificates, survey, or commitment, Buyer may: (1) terminate this contract and receive tills earnest money, less any Independent consideration under Paragraph 713(1), as the sole remedy, pr (2) extend the time for performance up to r15 days and the closing will be extended as necessary. C. Except as provided in Paragraph 155, If Seller falls to comply with this contract, Seller Is In default and Buyer may: (1) terminate this contract and recdlve Me earnest money, less any Independent consideration under Paragraph 713(1), as liquidated dome s, thereby releasing the parties from this contract; or (2) enforce specific performance, 'eh etherMayded--by 4avr-or-bothr--- 16. CONDEMNATION: If before closing, condemnation proceedings are commenced against any part of the Property, Buyer may: A. terminate this contract by providing written notice to Seller within 15 days after Buyer Is advised of the condemnation proceedings and the earnest money, less any independent consideration paid under Paragraph 713(1)., will be refunded to Buyer; or B. appear and defend in the condemnatlon p) oceedings and any -award will, at Buyer's election, belong to, (1) Seller and the sales price will be reddded by the same amount; or (2) Buyer and the sales price will not be reduced. 17. ATTORNEY'S PEES: If Buyer, Seller, any broker, or any escrow agent is a prevailing party In any legal proceeding brought und©r or with relation to thls contract or this transaction, such party Is entitled to recover from the non -prevailing parties all costs of such proceeding and reasonable attomey's fees. This Paragraph 17 survives termination of this contract. 18. ESCROW: A. At closing, the earnest money Wil be applied first to any cash down payment, then to Buyer's closing costs, and any excess will be refunded to Buyer. B. If both parties make written demand for the earnest money, escrow agent may require payment of unpaid expenses Incurred on behalf of the parties and a written release of liability of escrow agent from all parties. C. If one party makes written demand for the earnest money, escrow agent will give notice of the demand by providing to the other party a copy of the demand. If escrow agent does not receive written .objection to the demand from the other party within 15 days after the date escrow agent sent the demand to the other party, escrow agent may disburse the earnest money to the party making demand, reduced by the amount of unpaid expenses Incurred on behalf of the party receiving the earnest money and escrow agent may pay the same to the creditors, D. Escrow agent will deduct any Independent consideration under Paragraph 7B(1) before disbursing any earnest money to Buyer and will pay the independent consideration to Seller. E. if escrow agent compiles with this Paragraph 18, each party hereby releases escrow agent from all claims related to the disbursal of the earnest money. ~' F. Notices under this Paragraph 18 must be sent by certified mall, return receipt requested. Notices to o escrow agent are effective upon receipt by escrow agent. rccin�r7w"te'�@9t.-e �1 P- '7 7ny-SRtlltie�€�teteFenelT�- M (70-1Ba2)10-18-06 Initialed for Identiflcatlan by Buyer and Seller —Let— Fags 9 of 12 �7 Produaed wS;h ZlpFarme by xiptc0ix 16om rHleen we !toad, Frbser, Mlchtgan 48026 wr ",4pUglx.� blank a Cr' P_ 4 Q i'r'S Commerdal Contract - Unimproved Property Concerning See Legal laM7rO:F!,U.;-1•14L11Y► m•ll l' .M 1.1!1M.Sll nlTlYlf IRM-I IM111 >•i. V,..a-1N7 _7,' � •IiJI[Y �T1!!!!w!T'�*S�RRT�T.!_�3ZR71^7Z _ _ _ _ Y +IYIS�i� i JY[4�1[[I Yi�.1•[[�1f1��[YY --.V rC •C - - !if • 1- 20, NOTICES: All notices between the parties under thls contract must be in writing and are effective when attorney hand -delivered, malled by certified mail return receipt requested, or sent by facsimile transmisslon to the artles addresses or facsimile numbers stated in Paragraph 1. The parties will sand copies of any notices o rrepresenting the party to whom the natJces are sent. * A. Seller also consents to receive any notices by a -mall at seller's e-mail address stated In Paragraph 1, q B. Buyer also consents to receive any notices by e-mail at Buyer's e-mail address stated In Paragraph 1. 21. DISPUTE RESOLUTION: The parties agree to negotiate In good faith in an effort to resolve any dispute related to this -contract that may arise. If the dispute cannot be resolved by negotlatlon, the parties will submit the dispute to mediation before resorting to arbitratlon or litigation and will equally share the costs of mutually acceptable mediator. This paragraph survives termination of thts contract. This paragraph does not preclude a party from seeking equitable relief from a court of competent Jurisdiction, 22. AGREEMENT OF THE PARTIES: A, This contract is binding on the parties, their heirs, executors, representatives, successors, and permitted assigns. B, This contract Is to be construed in accordance with the laws of the State of Texas. C, This contract contalns the entire agreement of the parties and may not be changed except In writing, D, If this contract Is executed In a number of Identical counterparts, each counterpart Is an original and all covnterparts, collectively, constitute one agreement. E. Addenda whlch are part of this contract are; (Check aff that apply.) t.� 9 (1) Property Description Exhibit Identified In Paragraph 2; 0 (2) Commercial Contract Financing Addendum; rl 3) Com-merclal Property Condition Statement; O 13 �4) Notice to Purchaser of Real property In a Water District (MUD); 'a (5} Addendum for Coastal Area Property; �1 ! 17❑(a Addendum for Property located Seaward of the Gulf Intracoastal Waterway; and m.. 1� V Ex_hrilalt _aSt111"Lgy cq1{ Exhibit A Rnpcial Provigynng (Note.- Counsel-rorlho %xas Association of REALTONSiS (TAR) has dotemtrned tha3t eny.of the lwegoing addanda which ere promulgated by the rexas Real Estate Commfssron (TREC) or pubbW by TAR era oppropdefe for use with this form,) G (TAR-1802) 10.18-05 In€tWed for identfflcatlon by Buyer and Seller LJJ; L_._ Page 10 of 12 a (.C^ Produced with alpFo" by rlpLoglx 18070 Fllleen Mile Road. Fraser, Mlchlpen 4802p mv�cnm bi nk Commercial Contraot - Unimproved Property Concerning _ see Legal F. Buyer 0 may ® may not assign this contract. If Buyer assigns this contract, Buyer will be relieved of any future 1labillty under this contract only if the assignee assumes, In writing, all obligations and liability of Buyer under this contract, 23. TIME; Time Is of the essence in this contract. The parties require strict compliance with the times for performance, if ,the last day to perform under a provision of this contract falls on a Saturday, Sunday, or legal holiday, the time for performance is extended until the and of the next clay which is not a Saturday, Sunday, or legal holiday. 24, EFFECTIVE DATE; The effective date of this contract for the purpose of performance of all obligations Is the date the escrow agent receipts this contract after ali parties execute this contract. 25. ADDITIONAL NOTICES: A. Buyer should have an abstract covering the Property examined by an attorney of Buyer's selectlon, or Buyer should be fumished with or obtain a title policy. B, If the Property Is situated In a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Texas Water Code, requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fees of the district before final execution of this contract. C. Notice Required by §13,257, Water Code; "The real property, described below, that you are abeut to purchase may be located In a certificated water or sewer service area, which Is authorized by law to provide water or sewer service to the properties In the certificated area. if your property Is located in a certificated area there may be special costs or charges that you will be required to pay before you can receive water or sewer service. There may be a period required to construct lines or other facilitles necessary to provide water or sewer service to your property. You are advised to determine If the property is In a certificated area and contact the utility service provider to determine the cost that you will be required to pay and the period, If any, that Is required to provide water or sewer service to your property. The undersigned purchaser hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the real property described In the notice or at closing of purchase of the real property." The real property is described in Paragraph 2 of this contract. D. If the Property adjoins or shares a common boundary with the tidally influenced submerged lands of the state, §33,135 of the Texas Natural Resources Code requires a notice regarding coastal area property to be Included as part of this contract. E. If the Property Is located seaward of the Guif Intracoastal Waterway, §61.025, Texas Natural Resources Code, requires a notice regarding the seaward location of the Property to be. Included as part of this contract. F. if the Property Is located outside the limits of a municipality, the Property may now or later be Included In the -extra4errltorlai jurlsdlctlon (ETJ of a municipality and may now or later be subject to annexation by the municipality. Each municipal ty maintains a map that depicts its boundaries and ETJ, To determine If the Property is located within a municipality's ETJ, Buyer should contact all municipalities located in the general proximity of the Property for further Wormation. C}' C. Brokers are not qualified to perform property Inspections, surveys, engineering studles, environmental O assessments, or Inspections to determine compliance with zoning, governmental regulations, or taws. Buyer should seek experts to perform such services. Selection of Inspectors and repairmen Is the ri Z responsibility of Buyer and not the brokers. C7, CONTRACT A5 OFFER; The execution of this contract by the first party constitutes ar. offer to buy or sell tT1 rr� the Property. Unless the other party accepts the offer by 5:00 p.m., in the time zone In which the Property is o located, on Decembe a- anog the offer will lapse and become null and void. (TAR-1802) 10-18-fly Initialed for Identification by Buyer l_.0it and SeJer__? Page 11 of 12 ry C Produced with MpFarinG by zipZcak INTO Figeen Mile Road, Fraser, Michlgan 4OD26 wuw rani_,_.,, nix rnm G bYeok LC' Commercial Contract - Unimproved Property Concerning see Legal READ THIS CONTRACT CAREFULLY. The brokers and agents make no representation or recommendation as to the legal sufficleney, legal effect, or .tax consequences of this document or transaction. CONSULT your attorney BEFORE signing, Buyer: Ci tv of. Lubbock Seller: Suntrust Bank of Alexandria Virginia and Donald E. Handelman, Testamentary Trustees under Paragraph Eight of By: the Last Will and Testament of Marjorie M. Post, Deceased; HGM Properties, L.P., Henrietta M. Heydon, The Mosaic Printed Name: - Foundation, Kenneth H, Montgomery Trust, Kenneth H. Title: Montgomery Foundation and The G. Harold and Leila Y. Mathers Charitable Foundation collectively by and through their attorney -in -tact, Dan Hook Buyer: 8y.Printed By: a/w_ Name: - _ Dan Hook, Attorney -in -Fact Title; _ AGREEMENT BETWEEN BROKERS Principal Broker agrees to pay (Cooperating Broker) a fee of $ or % of the safes price when the Principal Broker's fee Is received, Escrow agent is authorized and directed to pay Cooperating Broker from Principal Broker's fee at closing. This Agreement Between Brokers supersedes any prior offers and agreements for compensation between brokers. Cooperating Grokel PrMcIpM Sroor A Buyer's attorney Is: Name: Address: Phone & Fax: Soller's attorney Is: Name: John C, Cox Address: 1717 Main__Street, suite 2ggo ,Qdllas Tx 7K20] Phone 8,Pax: (214) 939-5599 (214) 939-58--4_ E-malt E-mali: Sohn. COxr}KLGates , com Buyer's attorney requests copies of documents, Seller's attorney requests copies of documents, notices, and other Information: notices, and other information: D the title company sends to Buyer. 9) the title company sends to Seller, 0 Seller sends to Buyer. ® Buyer sends to Seller. ESCROW RECEIPT Escrow agent acknowledges receipt of: 0 A, the contract on this day (effective date); 2 B. earnest money In the amount of $ 1, coo, oo In the form of check on Escrow Agent: Kast Texas Title Address; _soot oua%— Lubbock, TX 79424 Phone & 1'aX: OW 793-9555 1SM 793 -9575 By, E-mall, (TAR•1802)10-18-05 Page 12 of 12 Prmducea with ZlpFarmv byzipLglx Inuro Flfleen Mlle Road, Frmo% N&hlGa1480Ze w =�a� n,t,� x.mm blunk TM MMARTIN, MAYOR AT'1'1-,"ST': Rebecca rza, City Secretary APPROVED AS TO CONTENT: MAA2d - a- wl-ad Marsha Reed, P.E., Chief Operatirig Officer Resolution No. 2009—RO559 PLAT OF SURVEY ON A 9.00 ACRE TRACT OF -AND OUT OF SECTION 1224, W-C. YOUNG SURVEY AND SCRAP FILE " 8373, GARZA COUNTY, TEXAS r1 03 1224 W W.C. YOUNG Ln OWNER- KFNNFT1i F. MONTGOMERY ti VOL 177 PC 13 N ri L EXHIBIT 'A' i PAGE 1 OF 2 00 i �8" 32'01" E 497.94' S 1. 21'57^ W — 72.11` R - 2341.81' L - 475,25' -- CH - 474,46' S 7` 16'50' W 9.00 Ac — 1 ' P.O.B. FROM THIc, PT. THE S.E CUR t •83/3 0RS. S 88, S2'aI E. A legal dcscrip tion of even si;rvey dote 49 3, a � 1" ': I ", W, herewith accompanies this survey plat 94810 Surveyed on the ground November 21, 2009 Rev,Sed Southwest corner on the ground Nov ernbe,,,2`r;2f�9y_' ;! Revised South line on the roun ecernber 17, 2 �( Registered r fes"onolLand Surveyor �tl GAF 1.4 •' All thingZond Eastings shown ore project coord'rn45 and oy bloconverted to Texas State Plane Coord n❑ Nor CentF0lZone, NAD83 by dividing by a surfoce odjuq!,nentqJbctcr of 1000?39G Ail di s ances shown are sur for:c dislonces Bearygs shown ore grid bearings based on ;he exur; Slat Plane Coordinate System, North t:enlro(lnne NAD Datum. This survey and olhnformal,on hereon Is rot the exclusive use r.l CITY OF LUBBOCK and snollnol he copied or used except ra 1he purpose for which it is expressly furnished this drawing and dll copes tpn, liol or complete) shallbe reldTned to the owner upon demand i a I I f I 1241 n, H.E. & W.T. I OWNER EI. VIRA SANCHEZ VOL 117 PG 100 C"!z i 01 IJ � OI Oi n N U It;,' I/1 � � f I � � I I A, i 420' R.0 W ESM' VOl 61, PG 151 a 17 w RESERVED rOq Pu9liC aGnD h 70R n w Fsu' vnl til, Pr, 129 N ri W E Set 112'' Rod W/Cop Revised South property line S (Moved 30' North) SCALE: I' - 20Q' I REVISION 12- 15-09 1 PLAT DATE 11. 24 08 CLIENT CITY (]F I Uf35OCK 011 BY: R RURRUW I SURVEY DATE: 11-21 08 SURVEYED BY:.I tv' VAIN I N JR1 CHECKED BY G WII.50N FILE: dgn I FILE NO. 35,760 1 SHEET 1 OF 2 ar 3330 701h ST.SUTE 202 � LLMaCx,TX 1940 t8061 788-0020 - FALx ,81MI 792-1646 / 36 067 01 Resolution No. 2009—RO559 EXHIBIT "A" Page 2 of 2 FIELD NOTES on a 9.00 acre tract of land out of Section 1224, W.C. Young Surrey and Scrap File No. 8373, Garza County, Texas and being more particularly described by metes and bounds as follows: BEGINNING at a 1/2" iron rod with cap, set on the existing West right of way line of F.M. 651, for the Southeast and beginning corner of this 9.00 acre tract, whence the Southeast corner of Scrap File No. 8373 bears South 88032'01" East, 49.37 feet and South 01021'57" West, 948,10 feet; THENCE South 84042'36" West, a distance of 453.15 feet to a 1/2" iron rod with cap, set for the Southwest corner of this 9.00 acre tract; THENCE North 01'27'59" East, a distance of 873.10 feet to a t/z" iron rod with cap, set for the Northwest corner of this 9.00 acre tract; THENCE South 88032'01" East, a distance of 497.94 feet to a 1/2" iron rod with cap, set on the East line of Scrap File No. 8373, for the Northeast corner of this 9.00 acre tract; THENCE South 01021'57" West, a distance of 72,11 feet to a 1/2" iron rod with cap, set on the existing West right of way line of F.M. 651, for a corner of this 9.00 acre tract; THENCE Southwesterly, along the arc of a curve to the left and being along the existing West right of way line of F.M. 651, an arc distance of 475.28 feet to a '/z" iron rod with cap, set for a corner of this 9.00 acre tract, said curve having a radius of 2341.81 feet and a chord that bears South 7016'50" West, a distance of 474.46 feet; THENCE South 01027'59" West, along the existing West right of way line of F.M. 651, a distance of 275.66 feet to the point of beginning. CONTAINING 9.00 acres of land. NOTES: 1. A survey plat of even survey date herewith accompanies this legal description. 2. Surveyed on the ground 11-21-08, revised 11-24-09, revised 12-17-09, revised 12-17-09 3. II distances are surface distances. 4. arings are grid bearings 'based on the Texas State Plane Coordinate System, North Central Z095NAD83 Datum, U.S. Survey Feet. 5. Q$ld nyc#es revised 6-02-09, revised 11-20-09, revised 12-15-09 OF RE STE PROFESSIONAL RVEYOR ©% + G........................ DAt: 1 Z -% GARY 0.1IVIL aONfie N - 4..... .................i", •.. go�239 � � HIGH-TECH LAND & GPS SURVEYORS, INC. 3330 70th St., Suite 202 • Lubbock, Texas 79413 (806)788-0020 , Fax (806) 792-1646 Resolution No. 2009—RO559 TEXAS ASSOCIATION OF REALTORS@ COMMERCIAL CONTRACT EXHIBIT USE OF THIS FORM BY PERSONS WHO ARE NOT MEMSERS OF THE TEXAS A360,CIATION OF REALTOR SO IS NOT ALIT HORlZEO. eTom-ASCOCIM10n of REALTORBb, Inc. 2001 EXHIBIT B TO COMMERCIAL CONTRACT BETWEEN THE UNDERSIGNED CONCERNING THE PROPERTY AT 1. Not withstanding any other Paragraph in this contract, Seller is to net $ at closing after payment of brokerage fees. Buyer to pay all closing costs, except Broker fee address in Paragraph 9B. 2. Seller represents and warrants that any surface lease concerning the property will have been terminated and of no Ru-ther effect on the date of closing. 3. To the extent pennitted by law, Buyer will indemnify, hold harmless, and defend Seller against all claim matters involving Seller, arising from construction and operation of this facility This paragraph will survive closing. 4. Seller reserves, and there shall be excepted in any conveyance pursuant to this Contract, all oil, gas and other minerals of every kind and description. 5. Agreement in Lieu of Conderrmation. This Contract is entered into by Buyer and Seller as a settlement and compromise in lieu of condemnation and the consideration set forth herein and the covenants and agreements of the Buyer set forth herein are given to Seller in compensation for the acquisition of the Property. This paragraph shall survive Closing and the execution and delivery of the Deed to Buyer. 6, The Seller and holder of the mineral rights hereby agrees not to interfere with the structures/facilities on the buyer's property while engaging in the extraction, conveying, and production of minerals. In addition, the seller agrees that any mineral leases or transfers entered into will extend the same protection to the buyer's property. r 6- Buyer: Seller:_ , -4-- •f e41 CD �Buy� Seller: -- - 0 M 0 0 CM(CAR-1937) 2-&02 Pago 1 of 1 Q NkDougal Reeltors 4601 S Loop 299 429, Lubbock TX 79424 p Phone: 806-793.0103 Fw Dents Combs Post fldongtarnnr S.0 Produced vAth Zlpf elmfa by zlpL0glk 18070 Fltteen Mlle Road, Ffasar, Michigan 48028 wt nt�ip roar