HomeMy WebLinkAboutResolution - 2012-R0446 - Ratify Agreement - Platinum Bank - Purchase Real Property - 11_29_2012Resolution No. 2012—RO446
November 29, 2012
Item No. 6.10
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the City Manager's act in executing an agreement for the purchase of the
real property located at 3838 50t' Street, Lubbock, Texas 79413, between the City of
Lubbock and Platinum Bank is hereby ratified in full and the City Council herein affirms
and adopts her acts as its own in regard to the execution of the agreement and hereby
directs the City Manager to terminate the contract of sale pursuant to the provisions
thereof on behalf of the City.
Passed by the City Council on November 29, 2012
GLEW!'RoSAFNON, MAYOR
ATTEST:
Rebe a Garza, City Sec eta
APPROVED AS TO CONTENT:
,X_as,�
e Ann Dumbauld, City Manager
APPROVED AS TO FORM:
Sam Medina, City Attorney
vw:ccdocs/RES.Agrmt-Platinum Bank (v2)
December 4, 2012
REsolution No. 2012-RO446
*Iubtybck
f FFAf
November 30, 2012
Mr. Bobby McQueen
McQueen Company Realtors
2741 8 1 " Street
Lubbock, Texas 79423
Dear Mr. McQueen:
The City Council has decided to exercise their option under Section 7B of the Commercial
Contract for the acquisition of the property at 3838 50"' Street. The Council decided this property
does not meet the needs of the City's Library System at this time. A copy of the signed resolution
is enclosed.
Please call at me (806) 775-2016 if you have any questions. Thank you for your assistance in this
matter.
Sincerely,
fW CC44��
Lee Ann Dumbauld
City Manager
Enc.
P. O. Box 2000 ■ 1625 13th Street • Lubbock, TX 79457 ■ 806.775.2000 • Citizen Call Center: 3-1-1 ■ www rnylubbock.us
AN
TEXAS AssocIATION mF RE'AL ORS 9)
COMMERCIAL CONTRACT - IMPROVED PROPERTY
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF REAL TQRSA) IS NOT AU rHQR1ZLO
'OTetas Association of REALTORSID, Inc. 2010
Contract: 10973
1. PARTIES: Seller agrees to sell and convey to Buyer the Property described in Paragraph 2. Buyer agrees
to buy the Property from Seller for the sales price stated in Paragraph 3. The parties to this contract are:
Seller: Platinum Bank
Address: 6so2 Slide Road, Suite 110. jiubbock. Tx 79424
Phone: (8061792-5300 Fax: (806)798-2671
E-mail: aciarrettQplatinumbanktexas . com
Buyer: city of Lubbock
Address: r69r, I3th Strpat. T.uhhock. TX 29401
Phone: (8061 775-3 00 Fax, (806) 775-3924
E-mall: ldumbauld@mylubbock . us
2. PROPERTY:
A. "Property" means that real property situated in Lubbock County, Texas at
838 50th Street Lubbock, Texas 79413_
(address) and that is legally described on the attached Exhibit or as follows:
Lot 103, 104 and the west 711 of Lot 105, Indian Acres Addition, to the
City of Lubbock, Texas.
B. Seller will sell and convey the Property together with:
(1) all buildings, improvements, and fixtures;
(2) all rights, privileges, and appurtenances pertaining to the Property, including Seller's right, title, and
interest in any minerals, utilities, adjacent streets, alleys, strips, gores, and rights -of -way;
(3) Seller's interest in all leases, rents, and security deposits for all or part of the Property;
(4) Seller's interest in all licenses and permits related to the Property-
(6) Seller's interest in all third party warranties or guaranties, if transferable, relating to the Property or
any fixtures;
(6) Seller's interest in any trade names, if transferable, used in connection with the Property; and
(7) all Seller's tangible personal property located on the Property that is used in connection with the
Property's operations except:
Any personal property not included in the sale must be removed by Seller prior to closing.
(Describe any exceptions, reservations, or restrictions in Paragraph 12 or an addendum.)
(if mineral rights are to be reserved an appropriate addendum should be attached.)
(If the Property is a condominium, attach condominium addendum.)
3. SALES PRICE: At or before closing, Buyer will pay the following sales price for the Property:
A. Cash portion payable by Buyer at closing .............................. $ 850,000.00
B. Sum of all financing described in Paragraph 4 .......................... $
C. Sales price (sum of 3A and 3B) ............. ............ , ...... $ 850 000.00
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4. FINANCING: Buyer will finance the portion of the sales price under Paragraph 3B as follows:
❑ A. Third Party Financings: One or more third party loans in the total amount of $ This
contract:
❑ (1) is not contingent upon Buyer obtaining third party financing.
❑ (2) is contingent upon Buyer obtaining third party financing in accordance with the attached Commercial
Contract Financing Addendum.
❑ B. Assumption: 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. Seller Financing: The delivery of a promissory note and deed of trust from Buyer to Seller under the
terms of the attached Commercial Contract Financing Addendum in the amount of $
5. EARNEST MONEY:
A. Not later than 3 days after the effective date, Buyer must deposit $ 10, 000.00 as earnest money
with Service Title (escrow agent)
at 4101 84th Street Lubbock,_ Texas (address) Brent Noble (closer).
If Buyer fails to timely deposit the earnest money, Seller may terminate this contract or exercise any of
Seller's other remedies under Paragraph 15 by providing written notice to Buyer before Buyer deposits
the earnest money.
B. Buyer will deposit an additional amount of $ with the escrow agent to be made
part of the earnest money on or before. -
days after Buyer's right to terminate under Paragraph 7B expires; or
❑ fill
Buyer will be in default if Buyer fails to deposit the additional amount required by this Paragraph 513
within 3 days after Seller notifies 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
federally insured financial institution and to credit any interest to Buyer.
6. TITLE POLICY, SURVEY, AND UCC SEARCH:
A. Title Policy:
(1) Seller, at Seller's expense, will furnish Buyer an Owner's Policy of Title Insurance (the title policy)
issued by Sery i ce 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) those title exceptions permitted by this contract or as may be approved by Buyer in writing; and
(b) the standard printed exceptions contained in the promulgated form of title policy unless this
contract provides otherwise.
(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:
W (a) will not be amended or deleted from the title policy.
❑ (b) will be amended to read "shortages in areas" at the expense of ❑ Buyer ❑ Seller.
(3) Within 15 days after the effective date, Seller will furnish Buyer a commitment for title insurance
(the commitment) including legible copies of recorded documents evidencing title exceptions. Seller
authorizes the title company to deliver the commitment and related documents to Buyer at Buyer's
address.
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B. Su[ey: Within 30 days after the effective date:
❑ (1) Buyer will obtain a survey of the Property at Buyer's expense and deliver a copy of the survey to
Seller. The survey must be made in accordance with the: (i) ALTAIACSM Land Title Survey
standards, or (ii) Texas Society of Professional Surveyors' standards for a Category 1A survey
under the appropriate condition.
❑ (2) Seiler, at Seller's expense, will furnish Buyer a survey of the Property dated after the effective date.
The survey must be made in accordance with the: (i) ALTA/ACSM Land Title Survey standards, or
(it) Texas Society of Professional Surveyors' standards for a Category 1A survey under the
appropriate condition.
® (3) Seller will deliver to Buyer and the title company a true and correct copy of Seller's most recent
survey of the Property along with an affidavit required by the title company for approval of the
existing survey. If the existing survey is not acceptable to the title company, Seller, at Seller's
expense, will obtain a new or updated survey acceptable to the title company and deliver the
acceptable survey to Buyer and the title company within 20 days after Seller receives notice that
the existing survey is not acceptable to the title company. The closing date will be extended daily
up to 20 days if necessary for Seller to deliver an acceptable survey within the time required. Buyer
will reimburse Seller crone (insert amount) of the cost of the new or updated survey
at closing, if closing occurs.
C. UCC Search:
❑ (1) Within days after the effective date, Seller, at Seller's expense, will furnish Buyer a Uniform
Commercial Code (UCC) search prepared by a reporting service and dated after the effective date.
The search must identify documents that are on file with the Texas Secretary of State and the
county where the Property is located that relate to all personal property on the Property and show,
as debtor, Seiler and all other owners of the personal property in the last 5 years.
® (2) Buyer does not require Seller to furnish a UCC search.
D. Buyer's Objections to the Commitment. Survey. and UCC Search
(1) Within 15 days after Buyer receives the commitment, copies of the documents evidencing the
title exceptions, any required survey, and any required UCC search, Buyer may object to matters
disclosed in the items if: (a) the matters disclosed are a restriction upon the Property or constitute a
defect or encumbrance to title to the real or personal property described in Paragraph 2 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 W" zone as defined by FEMA). If Paragraph 66(1) applies, Buyer is deemed to receive the
survey on the earlier of: (i) the date Buyer actually receives the survey; or (ii) the deadline specified
in Paragraph 6B.
(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 fails 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 7B(1), will be refunded to Buyer.
(3) Buyer's failure to timely object or terminate under this Paragraph 6D is a waiver of Buyer's right to
object except that Buyer will not waive the requirements in Schedule C of the commitment.
7. PROPERTY CONDITION:
A. Present Condi ion: Buyer accepts the Property in its present condition except that Seller, at Seller's
expense, will complete the following before closing: clone
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B. Feasibility Period: Buyer may terminate this contract for any reason within 90 days after the
effective date (feasibility period) by providing Seller written notice of termination. (Check only one box.)
(1) If Buyer terminates under this Paragraph 7B, the earnest money will be refunded to Buyer less
$ 100.00 that Seller will retain as independent consideration for Buyer's unrestricted
right to terminate. Buyer has tendered the independent consideration 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 closing of the sale. If no dollar amount is stated in this
Paragraph 7130) or if Buyer fails to timely deposit the earnest money. Buyer will not have the right to
terminate under this Paragraph 7B.
❑ (2) Not later than 3 days after the effective date, Buyer must pay Seller $ 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. L no dollar amoun is stated iP Jhk
Paragraph 7_(B 2. or if Buyer fails tQ timely a the independent consideration Buyer will not have
the riohl; to terminate under this Paragraph 76
C. Inspections. Studies, or Assessments
(1) During the feasibility 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) Seller, at Seller's expense, will turn on ail utilities necessary for Buyer to make inspections, studies,
or assessments-
(3) 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 due to inspections, studies, or
assessments that Buyer completes or causes to be completed.
(4) 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
Buyer's inspections, studies, or assessments, including any property damage or personal injury.
Buyer will indemnify, hold harmless, and defend Seller and Seller's agents against any claim
involving a matter for which Buyer is responsible under this paragraph. This paragraph survives
termination of this contract.
D. Prosy Information:
(1) Delivery of Properly Information: Within 15 days after the effective date, Seller will deliver tc
Buyer:
® (a) a current rent roll of all leases affecting the Property certified by Seller as true and correct;
W (b) copies of all current leases pertaining to the Property, including any modifications, supplements,
or amendments to the leases;
® (c) a current inventory of all personal property to be conveyed under this contract and copies of any
leases for such personal property;
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❑ (d) 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;
® (e) copies of all current service, maintenance, and management agreements relating to the
ownership and operation of the Property;
❑ (f) copies of current utility capacity letters from the Property's water and sewer service provider;
® (g) copies of all current warranties and guaranties relating to all or part of the Property;
® (h) copies of fire, hazard, liability, and other insurance policies that currently relate to the Property;
❑ (i) copies of all leasing or commission agreements that currently relate to all or part of the Property;
® 0) a copy of the "as -built" plans and specifications and plat of the Property;
❑ (k) copies of all invoices for utilities and repairs incurred by Seller for the Property in the 24 months
immediately preceding the effective date;
❑ (1) a copy of Seller's income and expense statement for the Property from
to
® (m) copies of ail previous environmental assessments, geotechnical reports, studies, or analyses
made on or relating to the Property;
❑ (n) real & personal property tax statements for the Property for the previous 2 calendar years; and
❑ (o)
(2) Return of Property Information: If this contract terminates for any reason, Buyer will, not later than
10 days after the termination date: (a) return to Seller all those items described in Paragraph 70(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. Contracts Affecting Operations: Until closing, Seiler: (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 properly or other
items described in Paragraph 2113 or sold under this contract. After the feasibility period ends, Seller may
not enter into, amend, or terminate any other contract that affects the operations of the Property without
Buyer's written approval.
8. LEASES:
A. Each written lease Seller is to assign to Buyer under this contract must be in full force and effect
according to its terms. Seller may not enter into any new lease, fail to comply with any existing lease, or
make any amendment or modification to any existing tease without Buyer's written consent. Seller must
disclose, in writing, if any of the following exist at the time Seller provides the leases to the Buyer or
subsequently occur before closing:
(1) any failure by Seller to comply with Seller's obligations under the leases;
(2) any circumstances under any lease that entitle the tenant to terminate the lease or seek any offsets
or damages;
(3) any non -occupancy of the leased premises by a tenant;
(4) any advance sums paid by a tenant under any lease;
(5) any concessions, bonuses, free rents, rebates, brokerage commissions, or other matters that affect
any lease; and
(6) any amounts payable under the leases that have been assigned or encumbered, except as security
for loan(s) assumed or taken subject to under this contract.
B. Estoppel Certificates: Within N/A days after the effective date, Seller will deliver to Buyer estoppel
certificates signed not earlier than by each tenant that leases space
in the Property. The estoppel certificates must include the certifications contained in the current version
of TAR Form 1938 — Commercial Tenant Estoppel Certificate and any additional information requested
by a third party lender providing financing under Paragraph 4 if the third party tender requests such
additional information at least 10 days prior to the earliest date that Seller may deliver the signed
estoppel certificates.
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9. BROKERS:
A The brokers to this sale are:
McQueen Co. Realtors 87056
Principal Broker License No. Cooperating Broker License No.
Bobby McQueen
Agent
2741 81st Street
Address
T-vibhonk- Texas 79423
enl
re ss
(806)748-7100 JQ061„746-71Q2
Phone Fax Phone Fax
mcaco1@suddggn1ink,net
E-Mail E Mail
Principal Broker: (Check only one box.) Cooperating Broker represents Buyer.
® represents Seller only.
❑ represents Buyer only.
❑ is an intermediary between Seller and Buyer.
B. Fes: (Check only (1) or (2) below.)
® (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.
❑ (2) At the closing of this sale, Seller will pay:
Principal Broker a total cash fee of:
❑ % of the sales price.
Cooperating Broker a total cash fee of:
❑ % of the sales price.
The cash fees will be paid in Lub —Q--ck County, Texas. Seller authorizes
escrow agent to pay the brokers from the Seller's proceeds at closing.
NOTICE: Chapter 62, Texas Property Code, authorizes a broker to secure an earned commission
with a lien against 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 date of the closing of the sale (closing date) will be on or before the later of:
(1) ® 30 days after the expiration of the feasibility period.
❑ (specific date).
(2) 7 days after objections made under ParagraW 6D have been cured or waived.
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B. if either party fails to close by the closing date, the non -defaulting party may exercise the remedies in
Paragraph 15.
C. At closing, Seller will execute and deliver to Buyer, at Seller's expense, a ® general ❑ special warranty
deed. The deed must include a vendor's lien 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 6 or other provisions of this contract_ Seller must convey the Property:
(1) with no liens, assessments, or Uniform Commercial Code 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:
(1) tax statements showing no delinquent taxes on the Property,-
(2) a bill of sale with warranties to title conveying title, free and clear of all liens, to any personal
property defined as part of the Property in Paragraph 2 or sold under this contract;
(3) an assignment of all leases to or on the Property;
(4) to the extent that the following items are assignable, an assignment to Buyer of the following items
as they relate to the Property or its operations:
(a) licenses and permits;
(b) maintenance, management, and other contracts; and
(c) warranties and guaranties;
(5) a rent roll current on the day of the closing certified by Seller as true and correct;
(6) evidence that the person executing this contract is legally capable and authorized to bind Seller-
(7) an affidavit acceptable to the escrow agent stating that Seller is 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 (ii) deliver the amount to the Internal Revenue
Service together with appropriate tax forms; and
(8) any notices, statements, certificates, affidavits, releases, and other documents required by this
contract, the commitment, or law necessary for the closing of the sale and the issuance of the title
policy, all of which must be completed and executed by Seller as necessary.
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;
(3) sign and send to each tenant in the Property a written statement that:
(a) acknowledges Buyer has received and is responsible for the tenant's security deposit; and
(b) specifies the exact dollar amount of the security deposit;
(4) sign an assumption of all leases then in effect; and
(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 parties 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 under this contract, ordinary wear
and tear excepted. Any possession by Buyer before closing or by Seller after closing that is not authorized
by a separate written lease agreement is a landlord -tenant at sufferance relationship between the parties.
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12. SPECIAL PROVISIONS: (if special provisions are contained in an Addendum, identify the Addendum here
and reference the Addendum in Paragraph 22D. j
See Attachment A:
13. SALES EXPENSES:
A. Seller's 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;
(3) tax statements or certificates;
(4) preparation of the deed and any bill of sale;
(5) one-half of any escrow fee;
(6) costs to record any documents to cure title objections that Seller must cure; and
(7) other expenses that Seller will pay under other provisions of this contract.
B. Buyer's Expenses: Buyer will pay for the following at or before closing:
(1) all loan expenses and fees;
(2) preparation fees of any deed of trust;
(3) recording fees for the deed and any deed of trust;
(4) premiums for flood and hazard insurance as may be required by Buyer's lender;
(5) one-half of any escrow fee; and
(6) other expenses that Buyer will pay under other provisions of this contract.
14. PRORATIONS:
A. Prorations:
(1) Interest on any assumed loan, taxes, rents, and any expense reimbursements from tenants will be
prorated through the 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. 1f 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 th ayment of taxes, insurance premiums, and other
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charges to Buyer at closing and Buyer will reimburse such amounts to Seller by an appropriate
adjustment at closing.
B. Rollback Taxes: If Seller changes the use of the Property before closing or if a denial of a special
valuation on the Property claimed by Seller results in the assessment of additional taxes, penalties, or
interest (assessments) for periods before closing, the assessments will be the obligation of 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 Security Deposits: At closing, Seller will tender to Buyer all security deposits and the following
advance payments received by Seller for periods after closing: prepaid expenses, advance rental
payments, and other advance payments paid by tenants. Rents prorated to one party but received by
the other party will be remitted by the recipient to the party to whom it was prorated within 5 days after
the rent is received. This Paragraph 14C survives closing.
15. DEFAULT:
A. If Buyer fails to comply with this contract, Buyer is in default and Seller may:
(1) terminate this contract and receive the earnest money, as liquidated damages and as Seller's sole
remedy; or
(2) seek any other relief provided by law. Seller ❑ may El may not enforce specific performance.
B. If, without fault, Seller is unable within the time allowed to deliver the estoppel certificates, survey or the
commitment, Buyer may:
(1) terminate this contract and receive the earnest money, less any independent consideration under
Paragraph 7B(1), as liquidated damages and as Buyer's sole remedy; or
(2) extend the time for performance up to 15 days and the closing will be extended as necessary.
C. Except as provided in Paragraph 15B, if Seller fails to comply with this contract, Seller is in default and
Buyer may:
(1) terminate this contract and receive the earnest money, less any independent consideration under
Paragraph 713(1), as liquidated damages and as Buyer's sole remedy; or
(2) enforce specific performance, or seek such other relief as may be provided by law, or both.
16. CASUALTY LOSS AND CONDEMNATION:
A. If any part of the Property is damaged or destroyed by fire or other casualty after the effective date,
Seller must restore the Property to its previous condition as soon as reasonably possible and not later
than the closing date. If, without fault, Seller is unable to do so, Buyer may:
(1) terminate this contract and the earnest money, less any independent consideration under Paragraph
713(1), will be refunded to Buyer;
(2) extend the time for performance up to 15 days and closing will be extended as necessary; or
(3) accept at closing: (i) the Property in its damaged condition; (ii) an assignment of any insurance
proceeds Seller is entitled to receive along with the insurer's consent to the assignment; and (iii) a
credit to the sales price in the amount of any unpaid deductible under the policy for the loss.
B. If before closing, condemnation proceedings are commenced against any part of the Property, Buyer
may:
(1) terminate this contract by providing written notice to Seiler within 15 days after Buyer is advised of
the condemnation proceedings and the earnest money, less any independent consideration under
Paragraph 78(1), will be refunded to Buyer; or
(2) appear and defend the condemnation proceedings and any award will, at Buyer's election, belong
to: (a) Seller and the sales price will be reduced by the same amount; or (b) Buyer and the sales
price will not be reduced.
17. ATTORNEY'S FEES: If Buyer, Seller, any broker, or any escrow agent is a prevailing party in any legal
proceeding brought under or with relation to this contract or this transaction, such party is entitled to recover
from the non -prevailing parties all costs of such proceeding and reasonable attorney's fees. This Paragraph
17 survives termination of this contract. A e
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18. ESCROW:
A. At dosing, the earnest money will be applied first to any cash down payment, then to Buyer's closing
costs, and any excess will be refunded to Buyer. If no closing occurs, 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.
B. 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.
C. 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.
D. If escrow agent complies with this Paragraph 18, each party hereby releases escrow agent from all
claims related to the disbursal of the earnest money.
E. Notices under this Paragraph 18 must be sent by certified mail, return receipt requested. Notices to
escrow agent are effective upon receipt by escrow agent.
F. Any party who wrongfully fails or refuses to sign a release acceptable to escrow agent within 7 days
after receipt of the request will be liable to the other party for liquidated damages in an amount equal to
the sum of: (i) three times the amount of the earnest money; (ii) the earnest money; (iii) reasonable
attorney's fees; and (iv) all costs of suit.
G. ❑ Seller ❑ Buyer intend(s) to complete this transaction as a part of an exchange of likerkind properties
in accordance with Section 1031 of the Internal Revenue Code, as amended. All expenses in
connection with the contemplated exchange will be paid by the exchanging party. The other party will
not incur any expense or liability with respect to the exchange. The parties agree to cooperate fully and
in good faith to arrange and consummate the exchange so as to comply to the maximum extent feasible
with the provisions of Section 1031 of the Internal Revenue Code. The other provisions of this contract
will not be affected in the event the contemplated exchange fails to occur.
19. MATERIAL FACTS: To the best of Seller's knowledge and belief: (Check only one box.)
❑ A. Seller is not aware of any material defects to the Property except as stated in the attached Property
Condition Statement.
0 B. Except as otherwise provided in this contract, Seller is not aware of:
(1) any subsurface, structures, pits, waste, springs, or improvements;
(2) any pending or threatened litigation, condemnation, or assessment affecting the Property;
(3) any environmental hazards or conditions that materially affect the Property;
(4) whether the Property is or has been used for the storage or disposal of hazardous materials or toxic
waste, a dump site or landfill, or any underground tanks or containers;
(5) whether radon, asbestos containing materials, urea -formaldehyde foam insulation, lead -based
paint, toxic mold (to the extent that it adversely affects the health of ordinary occupants), or other
pollutants or contaminants of any nature now exist or ever existed on the Property;
(6) any wetlands, as defined by federal or state law or regulation, on the Property;
(7) any threatened or endangered species or their habitat on the Property;
(8) any present or past infestation of wood -destroying insects in the Property's improvements;
(9) any contemplated material changes to the Property or surrounding area that would materially and
detrimentally affect the ordinary use of the Property;
(10) any material physical defects in the improvements on the Property; or
(11) any condition on the Property that violates any law or ordinance.
(Describe any exceptions to (1)-(11) in Paragrap or an addendum.)
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20. NOTICES: All notices between the parties under this contract must be in writing and are effective when
hand -delivered, mailed by certified mail return receipt requested, or sent by facsimile transmission to the
parties addresses or facsimile numbers stated in Paragraph 1. The parties will send copies of any notices
to the broker representing the party to whom the notices are sent.
® A. Seller also consents to receive any notices by e-mail at Seller's e-mail address stated in Paragraph 1.
G) 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 negotiation, the parties will
submit the dispute to mediation before resorting to arbitration or litigation and will equally share the costs of
a mutually acceptable mediator. This paragraph survives termination of this 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. This contract is to be construed in accordance with the laws of the State of Texas. If
any term or condition of this contract shall be held to be invalid or unenforceable, the remainder of this
contract shall not be affected thereby.
B. This contract contains the entire agreement of the parties and may not be changed except in writing.
C. If this contract is executed in a number of identical counterparts, each counterpart is an original and all
counterparts, collectively, constitute one agreement.
■
■
Addenda which are part of this contract are: (Check all that apply.)
(1) Property Description Exhibit identified in Paragraph 2;
(2) Commercial Contract Condominium Addendum (TAR-1930);
(3) Commercial Contract Financing Addendum (TAR-1931);
(4) Commercial Property Condition Statement (TAR-1408);
(5) Commercial Contract Addendum for Special Provisions (TAR-1940);
(6) Addendum for Seller's Disclosure of Information on lead -Based Paint and Lead -Based Paint
Hazards (TAR-1906);
(7) Notice to Purchaser of Real Property in a Water District (MUD);
(8) Addendum for Coastal Area Property (TAR-1915);
(9) Addendum for Property Located Seaward of the Gulf Intracoastal Waterway (TAR-1916);
(10) Information About Brokerage Services; and
0 1)
(Note Counsel for the Texas Association of REAL TORSO (TAR) has determined that any of the foregoing addenda which are promulgated by
the Texas Real Estate Commission (TREC) or published by TAR are appropriate for use with this form.)
E. Buyer ❑may ®may not assign this contract. If Buyer assigns this contract, Buyer will be relieved
of any future liability under this contract only if the assignee assumes, in writing, all of Buyer's
obligations 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 end of the next day 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 II arties execute this contract.
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25. ADDITIONAL NOTICES:
A. Buyer should have an abstract covering the Property examined by an attorney of Buyer's selection, or
Buyer should be furnished 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 properly, described below, that you are about 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 facilities
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, 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 Gulf 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 extra -territorial jurisdiction (ETJ) of a municipality and may now or later be subject to annexation
by the municipality. Each municipality 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 information.
G. if apartments or other residential units are on the Property and the units were built before 1978, federal
law requires a lead -based paint and hazard disclosure statement to be made part of this contract.
H. Section 1958.154, Occupations Code requires Seller to provide Buyer a copy of any mold remediation
certificate issued for the Property during the 5 years preceding the date the Seller sells the Property.
I. Brokers are not qualified to perform property inspections, surveys, engineering studies, environmental
assessments, or inspections to determine compliance with zoning, governmental regulations, or laws.
Buyer should seek experts to perform such services. Buyer should review local building codes,
ordinances and other applicable laws to determine their effect on the Property. Selection of experts,
inspectors, and repairmen is the responsibility of Buyer and not the brokers.
26. CONTRACT AS OFFER: The execution of this contract by the first party constitutes an offer to buy or sell
the Property. Unless the other p y accepts the offer by 5:00 p.m., in the time zone in which the Property is
located, on er) ember Ze 20121 Ahe offer will lapse and become null and void.
7,1 k�
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READ THIS CONTRACT CAREFULLY. The brokers and agents make no representation or
recommendation as to the legal sufficiency, legal effect, or tax consequences of this document or
transaction. CONSULT your attorney BEFORE signing,
Seller:
By,
By (signature):W446117—
Printed Name. Greq raarrgtt
Title. president & CEO
By
By (signature):
Printed Name:
Buyer:
By:
By (signature):
Printed Name:
Title City Manager
By
By (signature):
Printed Name:
Title: Title:
AGREEMENT BETWEEN BROKERS
(use only if Paragraph 9B(l) is effective)
Principal Broker agrees to pay (Cooperating Broker) a
fee when the Principal Broker's fee is received. The fee to be paid to Cooperating Broker will be:
❑ $ , or
% of the sales price, or
❑ % of the Principal Broker's fee.
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.
Principal Broker Cooperating Broker
l By. By.
ATTORNEYS
Seller's attorney: Buyer's attorney.
Address: Address.
Phone & Fax: Phone & Fax.
E-mail: E-mail:
Seller's attorney requests copies of documents, Buyer's attorney requests copies of documents,
notices, and other information: notices, and other information:
❑ the title company sends to Buyer. ❑ the title company sends to Seller.
❑ Seller sends to Buyer. ❑ Buyer sends to Seller.
ESCROW RECEIPT
Escrow agent acknowledges receipt of
Co A. the contract on this day September 28, 2012 (effective date);
( B. earnest money in the amount of $ 10, 000. 00 in the form of r'X#0044RR17
on September 28, 2012
Escrow Agent: Service Title Company Address: 1408—B Buddy Holly Avs-nup
Lnhhnrk, TAxaa 79AM
By: < ✓ _ Phone & Fax: 806 763-8261
T m�Jon.es, Sr. V.P. 806 763-8527 (Fax)
Assigned file number (GF#).
E-mail:
(TAR-1801jh26-10 Page 13 of 13
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A I TALI 11VIENT A
TO 111E EXTENTTHAT I'l lF PROVISIONS [N TI [IS SECTION CONFLICT WITI I
ANY OT[IFR PROVISION IN THIS CONTRACT, "Tl IFSE PROVISIONS SI]ALL
PREVAIL.
The City reserves the right to exercise any right or remedy available to it by law,
contract, equity, Or otIMIMSe, including without limitation, the right to seek any
and all forms of relief in a court of competent jurisdiction. Further, the City shall
not he subject to any arbitration process prior to exercising its unrestricted right to
seek judicial remedy. The remedies set forth Herein are curtnilative and not
exclusi,,e, and may he exercised concurrently. To the extent of any conflict
between this provision and another provision in, or related to, this document,
this provision shall control.
?. This agreement is subject to all present and future valid laws, orders, rules,
and ordinances and/or regulations of the United States of America, the State of
Texas and The City of Lubbock. This agreement shall be construed and
governed according to the laws of the State of'Texas. The sole venue for any
action, controversy, dispute or claim arising under this agreement shall he in a
court of appropriate.) Urisdiction in Lubbock County, Texas exclusively.
3. Nothing in this agreement is construed as creating, any personal liability on the
part of any employee, officer or agent of any public body that may be a party to
this agreement.
4. THE PARTIES EXPRESSLY ACKNOWLEDGE AND ACRE E TIIAT NO
PROVISION OF THIS AGREEMENT 1S IN ANY WAY INTENDED TO
CONsi,rrUTE A WAIVER BY ANY PARTY OF ANY IMMUNITIES FROM
SUITOR LIA13ILI TY 'I'll AT A PARTY MAY HAVE. BY OPERATION OF LAW.
THE CITY RETAINS ALL GOVERNMENTAL IMMUNITIES.
Seller:
Greg Garre t 47�
Title: President & CEO
Buyer:
Lee AmVl5umbauld
Title: City Manager
359
ATTACHMENT B
I have read, and APPROVF AS TO 1:0101v, the attached contract between Platinum Bank,
Seller, and the Oty of Luhhock, Buyer, concerning the property located at 3838 50", Street,
I.ubbock, Texas. 79413 and more fully described as:
Lot 103. 104 and the west 71 ft of Lot 105, Indian Acres Addition, to the City of
Lubbock, Texas.
APPROVED AS TO FORM
Sam Medina
City Attorney
360