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HomeMy WebLinkAboutResolution - 2007-R0229 - Contract Of Sale - LISD - 06_01_2007Resolution No. 2007-RO229 June 1, 2007 Item No. 2.1 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 Lubbock Independent School District, 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 1st day of ATTEST: a ary APPROVED AS TO CONTENT: JA� Scott Snider Assistant City Manager/Community Services APPROVED AS TO FO Richard K. sner First Assistant City Attorney ml/ccdocs/L[SD Contract-res May 29, 2007 June 2007. DAVID A. MILLER, MAYOR Resolution No. 2007-RO229 CONTRACT OF SALE STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made this 6th day of June 2007, effective as of the date of execution hereof by Buyer, as defined herein, (the "Effective Date"), by and between LUBBOCK INDEPENDENT SCHOOL DISTRICT, an independent school district of the State of Texas, (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 described on Exhibit "A", attached hereto, and located in Lubbock County, Texas (the "Land"); and WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the Land and all the rights appurtenant to the Land (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 sure of Three Hundred Sixty Nine Thousand Sixty Eight and No/100 Dollars ($369,068.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100 Dollars ($1,000.00), as Earnest Money (herein so called) with Lubbock Abstract & Title Company, 1216 Texas Avenue, Lubbock, Texas, 79401 (the "Title Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. if the purchase contemplated hereunder is consummated in accordance with the terns and the provisions hereof, the Earnest Money shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money shall be disposed of by the Title Company as provided in this Contract. ARTICLE Ili TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall cause to be furnished to Buyer 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, severed mineral or royalty interests, 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, true and correct copies of all instruments that create or evidence Exceptions (collectively, the "Exception Documents"), including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, shall obtain a current on the ground survey of the Property (the "Survey") and furnish copies of the Survey to Seller and Title Company. If Buyer does not timely obtain the Survey and furnish copies thereof to Seller and Title Company, Buyer shall have no right to object pursuant to Section 3.03 of this Contract to any matters which would be shown by the Survey and the requirements of Section 3.05 (i) and (ii) of this Contract shall be waived. 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. 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 (if timely obtained by Buyer), and the Exception Documents, in which to give written notice to Seller specifying, in Buyer's sole and absolute discretion, 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 shall be deemed to be Objections without any action by Buyer. If Buyer does not timely deliver written notice of its Objections, then, except for Exceptions which Seller is obligated to cure pursuant to Section 3.04 of this Contract, Buyer shall be deemed to have approved all of the Exceptions. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either Contract of Sale — Lubbock Independent School District Page 2 of 20 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 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 twenty (20) 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: (1) waiving the unsatisfied Objections by, and only by, notice in writing to Seller within sixty (60) calendar days after the expiration of the Title Review Period, in which event those Objections shall become Permitted Exceptions (herein so called), or (i1) 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, or as soon thereafter as is reasonably practicable, Seller, at Seller's sole cost and expense, except as provided otherwise herein, 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 Pemlitted Exceptions. The Title Policy may contain only the Permitted Exceptions and the pre-printed exclusions and exceptions contained in the promulgated form of the Title Policy, except that the standard printed exceptions shall be amended or deleted as follows: (1) 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 Buyer, of any required additional premium); (ii) 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, if a Permitted Exception); (iii) no exception will be permitted for "rights of parties in possession"; (iv) except for the standard pre-printed exception for standby fees, taxes and assessments (Schedule B, Itern 5 of the Title Policy), to the extent the Title Company lawfully may not delete such exception, no liens will be shown on Schedule B. Contract of Sale — Lubbock Independent School District Page 3 of 20 ARTICLE IV REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 4.01 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 tennis and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date, that: (a) Seller has not granted any party, any license, lease or other right related to the use or possession of any of the Property, or any part thereof. (b) Subject to receipt of the approval of the Texas Education Agency (the "TEA") as set forth in Section 5.01 (i), below, 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. (c) The Seller has not received written notice of, and without further inquiry, has no actual other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (d) 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 or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated in this Contract. (e) EXCEPT AS PROVIDED BY ANY EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS CONTRACT, BUYER IS ACQUIRING THE PROPERTY "AS IS", WITH ALL FAULTS AND DEFECTS, AND NEITHER SELLER NOR ANY PERSON ACTING ON SELLER'S BEHALF HAS MADE, AND SELLER DOES NOT MAKE AND SPECIFICALLY DISCLAIMS, ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (i) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, OR THE PRESENCE OR ABSENCE OF ANY UNDERGROUND Contract of Sale - Lubbock Independent School District Page 4 of 20 STORAGE TANK, POLLUTANT, HAZARDOUS SUBSTANCE, GAS OR SUBSTANCE OR SOLID WASTE ON OR ABOUT THE PROPERTY, (ii) THE INCOME TO BE DERIVED FROM THE PROPERTY, (iii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY INTEND TO CONDUCT THEREON, (iv) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL AUTHORITY OR BODY HAVING JURISDICTION, INCLUDING, WITHOUT LIMITATION, ITS COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAWS, (v) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (vi) ANY OTHER MATTER RELATED TO OR CONCERNING THE PROPERTY. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw materials that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including with limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901, et seq.), as amended by the Hazardous and Solid Waste Amendments of 1984, and state superhen and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under said statutes as amended. 4.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer after the date of Closing. Contract of Sale — Lubbock Independent School District Page 5 of 20 (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) 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 place, dispose or release from or upon the Property any Hazardous Waste, debris, solid waste or refuse of any kind. 4.03 Representations and Warranties 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 warrants to Seller as of the Effective Date that: (a) Buyer has the full right, power, and authority to purchase the Property as provided in this Contract and to carry out Buyer's obligations hereunder. (b) Buyer has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated in this Contract. 4.04 Covenants and Agreements of Buyer. Buyer covenants and agrees with Seller that from the Effective Date until the date of Closing or earlier temiination of this Contract, Buyer shall not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Buyer. 4.05 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE V CONDITIONS PRECEDENT TO PERFORMANCE 5.01 Performance of Buyer's and Seller's Obligations. Neither Seller nor Buyer is obligated to perform under this Contract unless, on or before Closing, the following shall have occurred: (1) The TEA shall have approved the conveyance of the Property and the Deed Without Warranty conveying the Property, as set forth in this Contract of Sale — Lubbock Independent School District Page 6 of 20 Contract. Seller shall, as soon as reasonably practicable, after the Effective Date, deliver all documents required by the TEA for approval to the TEA. (ii) Seller shall timely respond to Buyer's requests for information concerning the status of the TEA approval process and shall promptly, but not later than two (2) business days (being any day other than a Saturday, Sunday or legal holiday on which Seller's central offices are closed) after receipt of same, notify Buyer of the TEA's approval or rejection at the transaction contemplated by this Contract, along with written evidence of same. (iii) The condition precedent of this Section 5.01 shall not be subject to waiver by Buyer and Seller. 5.02 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. 5.03 Breach of Representations, Warranties, Covenants and Agreements. Neither Seller nor Buyer is obligated to perform under this Contract unless all representations, warranties, covenants and agreements of the other party contained in this Contract are true and correct in all material respects as of the Closing Date, except where specific reference is made to another date. 5.04 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 the Property, or any part thereof, has been materially or adversely impaired in any manner. 5.05 Deed Without Warranty/Title Policy. Buyer shall not be obligated to perform under this Contract unless the Title Company has confirmed in writing to Buyer that it is obligated to issue the Title Policy to Buyer upon conveyance of the Property by Deed Without Warranty in the form as attached hereto as Exhibit `B". 5.06 Right to Waive Conditions Precedent. Either party may, at its option, elect to waive any of the conditions precedent to its performance under this Contract, other than the condition precedent set forth in Section 5.01 of this Contract, by giving to the other Contract of Sale — Lubbock Independent School District Page 7 of 20 party, at any time prior to Closing, a written waiver specifying the waived condition precedent. 5.07 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. 5.08 Seller's Termination of Conditions Precedent Not Satisfied. If the conditions precedent to the performance of Seller's obligations under this Contract have not been satisfied, Seller may, by giving written notice to Buyer, terminate this Contract. On Seller's termination, the Earnest Money shall be immediately paid to Seller by the Title Company. The Buyer shall, on written request from Seller, promptly issue the instructions necessary to instruct the Title Company to pay to Seller the Earnest Money and, thereafter, except as otherwise provided in this Contract, Seller and Buyer shall have no further obligations under this Contract, one to the other. 5.09 Satisfaction of Conditions Precedent. Closing of this transaction conclusively shall evidence that all conditions precedent to the parties' respective obligations under this contract have been satisfied or waived. ARTICLE VI CLOSING 6.01 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) ten (10) days following the completion of all conditions precedent to Buyer's and Seller's performance of this Contract as set forth in Article V hereof, but in no event later than one hundred and twenty (120) days after the expiration of the Title Review Period; or (ii) as mutually agreed on by Seller and Buyer. 6.02 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, the following items: (i) Evidence from the Title Company of the commitment to issue to Buyer the Title Policy, in the form specified in Section 3.05 (it is stipulated that the Title Policy shall be provided to Buyer as soon Contract of Sale Lubbock Independent School District Page 8 of 20 as reasonably practicable after the Closing); (ii) The Deed Without Warranty, 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) 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, less the Earnest Money, in the form of certified or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 6.03 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 6.04 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. Seller and Buyer each shall pay one-half (%2) of the Title Company's escrow fec. 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. ARTICLE VII DEFAULTS AND REMEDIES 7.01 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: (1) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date, unless such untruthfulness is the result of the action or inaction of third parties beyond Seller's reasonable control, in which latter case Buyer's sole remedy will be to either terminate this Contract and receive a refund of the Earnest Money or to waive the untruthfulness of the Contract of Sale — Lubbock Independent School District Page 9 of 20 warranty or representation in question; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, or other 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 as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do either one of the following: (1) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and 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; or (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer. 7.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to meet, comply with or perforin any covenant, agreement, or obligation on Buyer's part required within the time limits and in the manner required in this Contract. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedies for the default, may at Seller's sole option, do either one of the following: (1) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company pay to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer, requiring Buyer to purchase the Property. ARTICLE VIII MISCELLANEOUS 8.01 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, Contract of Sale — Lubbock Independent School District Page 10 of 20 addressed as follows: SELLER: LUBBOCK INDEPENDENT SCHOOL DISTRICT ATTN: Rudi B. Rushing 1628 191" Street Lubbock, Texas 79401 (806)766-1056 (806) 775-2312 Telecopy: (806) 766-1457 Copies to: For Seller: Wm. Mark Thompson Baker, Brown & Thompson, P.C. 5010 University Avenue, Suite 433 Lubbock, Texas 79413 (806) 792-1014 Telecopy: 792-0894 BUYER: Scott Snider, Assistant City Manager Community Services City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 Telecopy: (806) 775-2051 For Buyer: Richard K. Casner First Assistant City Attorney P.O. Box 2000 Lubbock, TX 79457 (806) 775-2221 Telecopy: (806) 775-3307 8.02 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. 8.03 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. 8.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. 8.05 Risk of Loss. 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 shall be immediately returned to Buyer; or (b) Consummate this Contract, without reduction in the Purchase Price, in Contract of Sale — Lubbock Independent School District Page l i of 20 which case Buyer, with respect to the Property, shall be entitled to receive any proceeds paid for the Property. If Buyer makes this election, the Closing shall be held on the tenth (10) calendar day after election is made to close and receive the proceeds. Buyer shall have a period of ten (10) days after receipt of written notification from Seller on the final settlement of all condemnation proceedings in which to make Buyer's election. If Buyer fails to notify Seller within said ten (10) days of receipt of written notification from Seller of Buyer's election to terminate this Contract, Buyer shall be deemed to have elected to consummate this Contract. 8.06 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. 8.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 8.08 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. 8.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract are hereby delegated by Buyer to City Manager, Lee Ann Dumbauld, or her designee. 8.10 Offer to Purchase. The execution of this Contract by Buyer constitutes an offer to purchase the Property upon the terms described herein. In the event Seller shall not accept such offer on or before sixty (60) days after the execution hereof by Buyer, the offer of Buyer shall be null and void and considered withdrawn for all intents and purposes. SELLER: LUBBOM INDEPENUENT SCHOOL DISTRICT NAME: 'JVUri ll n?, l4,4 ve TITLE:Lcpe�►�-enc�en Contract of Sale — Lubbock Independent School District Page 12 of 20 Executed by Seller on the Executed by Buyer on the ATTEST: 5th day of June 2007. BUYER: CITY OF LUBBOCK By: -- / DAVID A. ll.LER, MAYOR 6th day of June 2007. ebecca Vjarza, City Secretary APPROVED AS TO CONTENT: 'S c van Scott Snider, Assistant City Manager/Community Services APPROVED AS TO FORM: i Richard Cdsner, First Assist t City Attorney Contract of Sale — Lubbock Independent School District Page 13 of 20 Resolution No. 2007—RO229 EXHIBIT "A" To Contract of Sale METES AND BOUNDS description of a 12.941 acre tract of land in Section 17, Block A, T.T. Railroad Company Survey, Lubbock. County, Texas being a portion of that 22.939 acre tract described in Volume 5052, Page 199 of the Real Property Records of Lubbock County, Texas and further described as follows. BEGINNING at a %z" iron pipe found in the northeast right-of-way line of the B.N. & S.F..Railroad at the most westerly corner of Lot 1, Ann Addition to the City of Lubbock as shown on the plat thereof recorded in Volume 905, Page 159 of the Deed Records of Lubbock County, Texas for a southerly corner of this tract from whence the southeast corner of said Section 17 is called by said plat to bear S 56°55'47" E, a distance of 883.74 feet and east a distance of 639.9 feet; THENCE N 56°59' 13" W, along said right-of-way line, a distance of 298.17 feet to a %" iron rod with cap found at the southeast corner of that 5 acre tract described in Volume 8806, Page 95 of the Official Public Records of Lubbock County, Texas for the most westerly corner of this tract; THENCE N 32058'04" E, along the southeast line of said 5 acre tract, a distance of 545.09 feet to a %z" square metal tube found at the northwest corner of said 22.939 acre tract for the northwest corner of this tract; THENCE N 89°53'38" E, along the north line of said 22.939 acre tract, a distance of 335.86 feet to a '/z" iron rod found at the southwest corner of a 21,22 acre tract for a corner of this tract; THENCE N 89°59'41" E, along the south line of said 21.22 acre tract, a distance of 265.30 feet to a %z" iron rod with cap set for the northeast corner of this tract from whence a ''/z" iron rod found at the southeast corner of said 21.22 acre tract bears N 89°59'41" E a distance of 657.13 feet; THENCE S 0°00' 19" E, a distance of 204.1.2 feet to a %z" iron rod with cap set for a corner of this tract; THENCE S 29°52'44" E, a distance of 211.43 feet to a ``/z" iron rod with cap set for a corner of this tract; THENCE S 0°00'36" W, at a distance of 330.00 feet pass a set %z" iron rod with cap, in all a distance of 386.88 feet to a point in a north line of said Lot 1, Ann Addition for the southeast corner of this tract from whence a %z" iron pipe found at the most northerly northeast corner of said Lot 1 bears S 89°20'39" E a distance of 109.40 feet; Contract of Sale - Lubbock Independent School District Page 14 of 20 THENCE N 89020'39" W, along said north line of said Lot 1, a distance of 338.58 feet to a /z" iron pipe found at an ell corner of said Lot 1 for a corner of this tract; THENCE N 56°58'00" W, along a north line of said Lot 1, a distance of 429.35 feet to a %" iron pipe found at the most northerly corner of said Lot 1 for a corner of this tract; THENCE S 32059'00" W a distance of 100.16 feet to the PLACE OF BEGINNING. Contract of Sale — Lubbock Independent School District Page 15 of 20 Resolution No. 2007—RO229 EXHIBIT "B" DEED WITHOUT WARRANTY STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS That LUBBOCK INDEPENDENT SCHOOL DISTRICT, an independent school district of the State of Texas, (herein called "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 Texas 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 on Exhibit "A", attached hereto together with all the rights appurtenant to said real property (the "Property"). This conveyance is subject to the following: [Permitted Exceptions, if any] The further covenant, consideration and condition is that the following restrictions shall in all things be observed, followed, and complied with: (a) The above -described realty, or any part thereof, shall not be used in the operation of, or in conjunction with, any school or other institution of learning, study or instruction which discriminates against any person because of his race, color or national origin, regardless of whether such discrimination be effected by design or otherwise. (b) The above -described realty, or any part thereof, shall not be used in the operation of, or in conjunction with, any school or other institution of learning, study or instruction which creates, maintains, reinforces, renews, or encourages, or which tends to create, maintain, reinforce, renew or encourage a dual school system. These restrictions and conditions shall be binding upon Grantee, its successors and assigns, for a period of fifty (50) years from the date thereof. The foregoing restrictions and the other covenants hereafter set out are covenants running with the land, and each and every parcel thereof, and shall be fully binding upon any person, firm, partnership, corporation, trust, church, club, governmental body, or Contract of Sale — Lubbock Independent School District Page 16 of 20 other organization or entity whatever (whether private or governmental in nature), without limitation, hereafter acquiring any estate, title, interest or property in said land, whether by descent, devise, purchase or otherwise; and no act or omission upon the part of Grantor herein, its successors and assigns, shall be a waiver of the operation or enforcement of such restrictions; but neither restriction shall be construed to be a condition subsequent or special limitation on the estate thereby conveyed. It is further covenanted, that third party beneficiaries of the restrictions set forth above shall be as follows: (1) As to the restrictions set out in (a) above, any person prejudiced by its violation; (2) As to the restriction set out in (b) above, any public school district or any person prejudiced by its violation; and (3) As to either or both of the restrictions set out in (a) and (b) above, the United States of America, as plaintiff, and the American G.I. Forum, the League of United Latin American Citizens (LULAC), and the National Association for the Advancement of Colored People (NAACP), as intervenors, in U.S. v. Texas, Civil Action No. 5281, Tyler Division, U.S. District Court, Eastern District of Texas; reported in U.S. v. Texas , 321 F. Supp. 1043 (E.D. Tex. 1970); U.S. v Texas, 330 F. Supp. 235 (E.D. Tex. 1971); aft d with modifications sub nom, U.S. v. State of Texas and. J.W. Edgar, et al., 447 F.2d 441 (5`h Cir. 1971); stay den. sub nom. Edgar v. U.S., 404 U.S. 1206 (1971); cert den. 404 U.S. 1016 (1972). It is further covenanted, that in case of a violation of either or both of the above restrictions, any of the third party beneficiaries above alluded to is authorized and empowered to prosecute proceedings at law or in equity against any person, firm, partnership, corporation, trust, church, club, governmental body or other organization or entity whatever (whether private or governmental in nature), without limitation: (A) To enforce either or both of such restrictions relating to the use of the above -described realty; (B) To abate or prevent violations of either or both of such restrictions; and (C) To recover damages for a breach of either or both of such restrictions. It is further covenanted, that if any third party beneficiary referred to above shall prosecute proceedings at law or in equity for the aforesaid purposes, such third party beneficiary may recover reasonable attomey's fees from the violator or violators of either or both of such restrictions, if the Court finds that the proceedings were necessary to bring about compliance therewith. Contract of Sale — Lubbock Independent School District Page 17 of 20 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, without express or implied warranty. All warranties that might arise by common law as well as the warranties in Section 5.023 of the Texas Property Code (or its successor) are excluded. EXECUTED the day of , 2007_ LUBBOCK INDEPENDENT SCHOOL DISTRICT NAME: TITLE: THE STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2007 by , of LUBBOCK INDEPENDENT SCHOOL DISTRICT, an independent school district of the State of Texas. Notary Public, State of Texas My commission expires: Contract of Sale — Lubbock Independent School District Page 18 of 20 Resolution No. 2007—RO229 EXHIBIT "A" To Deed Witbout Warranty METES AND BOUNDS description of a 12.941 acre tract of land in Section 17, Block A, T.T. Railroad Company Survey, Lubbock County, Texas being a portion of that 22.939 acre tract described in Volume 5052, Page 199 of the Real Property Records of Lubbock County, Texas and further described as follows: BEGINNING at a '/z" iron pipe found in the northeast right-of-way line of the B.N. & S.F. Railroad at the most westerly corner of Lot 1, Ann Addition to the City of Lubbock as shown on the plat thereof recorded in Volume 905, Page 159 of the Deed Records of Lubbock County, Texas for a southerly corner of this tract from whence the southeast corner of said Section 17 is called by said plat to bear S 56055'47" E, a distance of 883.74 feet and east a distance of 639.9 feet; THENCE N 56"59' 13" W, along said right-of-way line, a distance of 298.17 feet to a '/2" iron rod with cap found at the southeast corner of that 5 acre tract described in Volume 8806, Page 95 of the Official Public Records of Lubbock County, Texas for the most westerly corner of this tract; THENCE N 32058'04" E, along the southeast line of said 5 acre tract, a distance of 545.09 feet to a ''/2" square metal tube found at the northwest corner of said 22.939 acre tract for the northwest corner of this tract; THENCE N 89053'38" E, along the north line of said 22.939 acre tract, a distance of 335.86 feet to a %" iron rod found at the southwest corner of a 21.22 acre tract for a corner of this tract; THENCE N 89°59'41" E, along the south line of said 21.22 acre tract, a distance of 265.30 feet to a V" iron rod with cap set for the northeast corner of this tract from whence a ``/z" iron rod found at the southeast corner of said 21.22 acre tract bears N 89°59'41" E a distance of 657.13 feet; THENCE S 0000' 19" E, a distance of 204.12 feet to a ''/z" iron rod with cap set for a corner of this tract; THENCE S 29052'44" E, a distance of 211.43 feet to a %z" iron rod with cap set for a corner of this tract; THENCE S 0000'36" W, at a distance of 330.00 feet pass a set ''/z" iron rod with cap, in all a distance of 386.88 feet to a point in a north line of said Lot 1, Ann Addition for the southeast corner of this tract from whence a ''/2" iron pipe found at the most northerly northeast corner of said Lot 1 bears S 89°20'39" E a distance of 109.40 feet; Contract of Sale — Lubbock Independent School District Page 19 of 20 THENCE N 89020'39" W, along said north line of said Lot 1, a distance of 338.58 feet to a '/z" iron pipe found at an ell corner of said Lot 1 for a corner of this tract; THENCE N 56058'00" W, along a north line of said Lot 1, a distance of 429.35 feet to a t/2" iron pipe found at the most northerly corner of said Lot 1 for a corner of this tract; THENCE S 32°59'00" W a distance of 100.16 feet to the PLACE OF BEGINNING. mllcityatt/Richard/ContractotSale-LlSD-rdln acccpt052907 May 29, 2007 Contract of Sale — Lubbock Independent School District Page 20 of 20