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HomeMy WebLinkAboutResolution - 2007-R0338 - Waive Post Closing Obligations Under Contract Of Sale - LEDA - 07_26_2007Resolution No. 2007-RO338 July 26, 2007 Item No. 5.26 RESOLUTION WHEREAS, the City of Lubbock entered a Contract of Sale (herein so called) of contemplating the sale of certain real property with Lubbock Economic Development Alliance ("LEDA"), on December 7, 2006, Resolution Number 2006-R0578, which contained post closing obligations in Section 6.06, said Contract of Sale being attached hereto as Exhibit "A"; and WHEREAS, the City Council of the City of Lubbock desires to waive LEDA's post closing obligations set forth in paragraph 6.06(a) and 6.06(d) of the Contract of Sale related to the assignment of certain agreements between the City of Lubbock and Burlington Northern and Santa Fe Railway Company; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City of Lubbock hereby waives Post Closing Obligations 6.06(a) and 6.06(d) under the Contract of Sale. Passed by the City Council this 26th day of JulY 2007. DAVID A. WILLER, MAYOR ATTEST: Rebobca Garza, City Secretary APPROVED AS TO CONTENT: !RobA2LI'jenAssistCity�Managgerlopment Services APPROVED AS TO FORM: Linda L. ChamaIes, Senior Attorney Office Practice Section Ickcdocs/Waiver - LEDA July 13, 2007 iF�r L0 Resolution No. 2007—RO338 Exhibit "A" Resolution No. 2006-RO578 December 7, 2006 Iten No. 5.14 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 to convey 301 acres north of the Lubbock Preston Smith International Airport to Lubbock Economic Development Alliance and associated documents. Said Contract of Sale is attached hereto and incorporated in this Resolution as if fully set forth herein and sliall be included in the minutes of the Council. Passed by the City Council this 7th day of December , 2006. ATTEST: 06 Reb�larza CitySecretary rY APPR VED A TO CONTENT: Rob Al ' , ssistant City Manager Development Services APPROVED AS TO FORM: Linda L. Chamales, Senior Attorney/ Office Practice ScctlUn City Att/Linda RES North Port sale No%ember 27. 2006 Resolution No. 2006-RO578 December 7, 2006 Item No. 5.14 CONTRACT OF SALE STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made this 7th day of December 2006, effective as of the date of execution hereof by Seller (the "Effective Date"), by and between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation of Lubbock County, Texas, (referred to herein as "Seller"), and LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, a Texas not for profit development corporation formed pursuant to the Development Corporation Act of 1979 (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns the surface estate of 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 Buyer, and Buyer desires to buy from Seller, the Land and all the rights appurtenant to the Land (collectively, the "Property"). ARTICLE I SALE OF PROPERTY AND ASSIGNMENT OF LEASE AND AGREEMENT 1.01 Sale of the Property. For the consideration hereinafter set forth, and upon the terms, conditions, reservations and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. 1.02 Lease and Agreement. Seller is a party to that certain Lease and Agreement, as defined in Section 4.01(a)(2), below. For the consideration cited herein, and upon the terms, conditions, reservations and provisions herein contained, Seller agrees to assign the Lease and Agreement to Buyer. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Three Hundred Ninety Thousand and No/100 Dollars ($390,000.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of One Hundred and No/100 Dollars ($100.00), 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. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within thirty (30) 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 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'). 3.02 Survey. Seller has caused to be prepared an on the ground survey of the Property (the "Survey"), from a compilation of surveys dated May 22, 2002 and October 21, 2002, respectively. Buyer accepts said Survey as a current survey of the Property. 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 Title Commitment, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. Notwithstanding anything to the contrary herein, all exceptions to the conveyance and warranty being set forth in the General Warranty Deed, attached hereto as Exhibit "B", shall be deemed for all purposes as Permitted Exceptions and shall not be subject to Objection by Buyer. All items set forth in the Schedule C of the Title Commitment shall be deemed to be Objections without any action by Buyer. 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 Economic Development Alliance Page 2 of 35 satisfy the Objections at Seller's sole cost and expense or 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: (i) waiving the unsatisfied Objections 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 (ii) terminating this Contract by notice in writing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy') to be furnished to Buyer. The Title Policy shall be issued by the Title Company, on behalf of Lawyers Title Insurance Corporation, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. ARTICLE IV REPRESENTATIONS. WARRANTIES. COVENANTS, RESERVATIONS AND AGREEMENTS 4.01 Representations and Warranties of Seller and Buyer. (a) To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (1) To the knowledge of Seller, the descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (2) To the knowledge of Seller, excepting (i) that certain Farm Lease dated November 12, 2001, by and between Seller and Frank Soliz; (ii) Agreement, made as of June 13, 2001, Resolution No. 2001- R0210, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Contract of Sale — Lubbock Economic Development Alliance Page 3 of 35 Lubbock, a Texas municipal corporation (the "Agreement"); and (iii) Lease, dated as of May 1, 2001, Resolution No. 2001-110209, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation, covering the lands described therein (the "Lease"), to which the sale and conveyance of the Property shall be subject, there are no adverse or other parties in possession of the Property or any part thereof, and that no party has been granted any license, lease or other right related to the use or possession of any of the Property, or any part thereof. (3) 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. (4) To the knowledge of Seller, the Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (5) 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. (b) 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 and as of the Closing Date, except where specific reference is made to another date, that: (1) The Buyer has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Buyer's obligations hereunder, and that all requisite actions necessary to authorize Buyer to enter into this Contract and to carry out Buyer's obligations hereunder have been, or by the Closing, will have been taken. (2) Buyer has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection Contract of Sale — Lubbock Economic Development Alliance Page 4 of 35 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. 4.02 Covenants and Agreements of Seller and Buyer. (a) Seller covenants and agrees with Buyer as follows: (1) 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 or 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. (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. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Buyer shall: (1) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Buyer. 4.03 Reservations of Seller. Seller, for itself, its successors and assigns, and for the use and benefit of the public, reserves from the sale and conveyance of the Property the following: (a) The right of flight for the passage of aircraft in the airspace above the Property, together with the right to cause in said airspace such noise, airwaves and soundwaves as may be inherent in the operation of aircraft, now known or hereafter used, for navigation of or flight in said airspace, and for the use of said airspace for landing on, taking off from or operating on the Preston Smith Lubbock International Airport Contract of Sale — Lubbock Economic Development Alliance Page 5 of 35 (collectively, the "Activities"). Nothing herein shall be construed to restrict or prohibit the use of the Property by Buyer, its successors and assigns, that is in accordance with Title 14, Part 77 of the U.S. Code of Federal Regulations. Further Buyer, for itself, its successors and assigns, hereby waives and releases Seller, it successors, assigns, elected officials, officers and agents, from and against any and all claims, losses, damages, harms and injuries it may sustain, whether occurring now or in the future, and whether known or unknown, arising from or related to, the Activities. 4.04 Independent Evaluation of Buyer. Buyer has made an independent inspection and evaluation of the Property and acknowledges that Seller, except as expressly set forth in this Contract, has made no statements or representations concerning the present or future value of the Property, and/or, the Lease and Agreement (as used in, and only as used in, this Section 4.04, the Property, the Lease and the Agreement are collectively referred as the "Property"), the condition, including the environmental condition of the Property, or the anticipated income, costs, or profits, if any, to be derived from the Property. FURTHER, EXCEPT AS IS EXPRESSLY MADE IN THIS CONTRACT, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Buyer further acknowledges that, in entering into this Contract, it has relied solely upon its independent evaluation and examination of the Property and public records relating to the Property and the independent estimates, computations, evaluations and studies based thereon. Seller makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Buyer, if any, whether furnished by Seller or any other third party. Seller, its officers, employees, elected officials and agents assume no liability for the accuracy, completeness or usefulness of the material furnished by the Seller, or any of its officers, employees, elected officials and/or agents, if any, and/or any other third party. Reliance on any material so furnished shall not give rise to any cause, claim or action against Seller, its officers, employees, elected officials and/or agents, and any such reliance shall be at Buyer's sole risk. THE CONVEYANCE OF THE PROPERTY SHALL BE ON A "WHERE IS", "AS IS" AND "WITH ALL FAULTS" BASIS, EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE HEREIN, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY, EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE HEREIN, WHATSOEVER, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY, QUALITY, VALUE, FITNESS FOR PURPOSE, MERCHANTABILITY, OR OTHERWISE. Buyer shall satisfy itself, prior to the Closing, as to the type, condition, quality and extent of the Property and property interests which comprise the Property it is receiving pursuant to this Contract. Contract of Sale — Lubbock Economic Development Alliance Page 6 of 35 4.05 Survival Beyond Closing. The representations, warranties, covenants, reservations and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE V CONDITIONS PRECEDENT TO PERFORMANCE 5.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods all of the following shall have occurred: (i) 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. 5.02 Breach of Seller's or Buyer's Representations, Warranties, Covenants and Agreements. Buyer and/or Seller is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of the other party to this Contract contained in this Contract are true and correct, as of the Closing Date, except where specific reference is made to another date. 5.03 Adverse Change. Buyer shall not be obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned, or is the subject of condemnation, eminent domain, or other material proceeding, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 5.04 Economic Development Administration Grant. Seller shall not be obligated to perform under this Contract unless the Seller shall have been provided evidence, in form and substance satisfactory to Seller, of (i) approval of the conveyance of the Property, as contemplated herein, by the Economic Development Administration of the United States of America ("EDA'); and (ii) a release by the EDA of the Seller of and from all requirements and obligations under grants received by Seller related to the Property, including, without limitation, EDA Grant 08-49-03071 (collectively, the "Grants'). 5.05 Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer and/or Seller may, at their option, elect to waive any of the conditions precedent to the performance of its obligations under this Contract by giving to the non -waiving party, at any time prior to Closing, a written waiver specifying the waived condition precedent. 5.06 Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of a parry's obligations under this Contract have not been satisfied or waived by the non -waiving party, the non -waiving party may, by giving written notice to the other party, terminate this Contract. On non -waiving party's termination, the Earnest Money shall be immediately returned to the non -waiving party Contract of Sale — Lubbock Economic Development Alliance Page 7 of 35 by the Title Company. Except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other in the event of such termination. ARTICLE VI CLOSING AND POST CLOSING OBLIGATIONS 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 performance of this Contract as set forth in Article V hereof, 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) The Title Policy, in the form specified in Section 3.05; (ii) The General Warranty Deed, in the form as attached hereto as Exhibit "B", subject only to the Permitted Exceptions 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 and interest earned thereon, in the form of certified or cashier's check or other readily available funds; (ii) The General Warranty Deed, in the form as attached hereto as Exhibit "B", subject only to the Permitted Exceptions duly executed by Buyer and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. Contract of Sale — Lubbock Economic Development Alliance Page 8 of 35 6.03 Ad Valorem Taxes. (a) It is expressly agreed and understood by Seller and Buyer that the Property is presently exempt from ad valorem taxation by all taxing entities with taxing jurisdiction over the Property. Buyer is a 501c(4) tax exempt organization and will also be exempt from ad valorem taxation by all taxing entities with taxing jurisdiction over the Property. (b) Notwithstanding anything to the contrary contained in this Contract, the provisions of this Section 6.03 shall survive the Closing. 6.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 6.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs, expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be borne by the parties as same are normally assessed by the Title Company in a transaction of this character. 6.06 Post Closing Obligations of Buyer. From and after Closing, Buyer shall: (a) The Assignment and Assumption Agreement for Leases and Contracts, substantially in the form as attached hereto as Exhibit "C" shall be duly executed by Seller and Burlington Northern and Santa Fe Railway Company, and acknowledged within 60 days of Closing. The City Manager of the City of Lubbock is authorized to extend this time sixty (60) days if the assignment is delayed by Burlington Northern apd Santa Fe Railway Company. (b) Comply with all applicable state and/or local statutes, rules, regulations and ordinances relating to airspace restrictions, noise and/or any other aspect of airport and/or aircraft operations, including without limitation, Title 14, Part 77 of the U.S. Code of Federal Regulations. (c) Comply with all terms, provisions and requirements of the Grants. (d) Comply with all terms, provisions and requirements of (i) Lease, dated as of May 1, 2001, Resolution No. 2001-R0209, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation, covering the lands described therein; and (ii) of Agreement, made as of Contract of Sale — Lubbock Economic Development Alliance Page 9 of 35 June 13, 2001, Resolution No. 2001-110210, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation. (e) Buyer shall not, during the effective term of the Grants and any other period of time directed or advised by the EDA, and/or any other entity with jurisdiction over the Grants, sell or otherwise divest itself of (i) that certain called 7.359 acre tract of land, being described in that certain Warranty Deed, dated July 26, 2001, from Market Lubbock Economic Development Corporation to the City of Lubbock, recorded in Volume 7214, Page 114, Real Property Deeds, Lubbock County, Texas; and/or (ii) that certain called 7.721 acre tract of land, being described in that certain Warranty Deed, dated July 10, 2001, from Market Lubbock Economic Development Corporation to the City of Lubbock, recorded in Volume 7174, Page 151, Real Property Deeds, Lubbock County, Texas (the "Restricted Property"). Notwithstanding the foregoing, Buyer shall be permitted to lease the Restricted Property to third parties for purposes of economic development. This obligation shall be deemed a covenant or condition, and not a limitation, and shall not under any circumstance extend beyond the period of time allowed by law. (f) Notwithstanding anything to the contrary in this Contract, the provisions of this Section 6.06 shall survive the Closing. Buyer shall and hereby agrees to indemnify, defend and hold harmless Seller, its officers, elected officials, agents, successors and assigns from and against any and all losses, demands, damages, costs, harms, injuries, causes of action, fines, penalties, expenses, claims or suits arising from, in connection with, or related to failure to comply with the post closing obligations set forth herein and/or breach of the warranties and covenants of Article IV, including the payment of reasonable attorneys' fees and costs. 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: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract of Sale — Lubbock Economic Development Alliance Page 10 of 35 Contract. (b) Buyer's remedies. If Seller is in default under this Contract, Buyer, as Buyer's sole and exclusive remedy for the default, may terminate this Contract, and, following the expiration of five (5) calendar days after Seller is in receipt of written notice of the default, receive the Earnest Money from the Title Company as liquidated damages. 7.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Buyer's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Buyer fails to meet, comply with or perform any covenant, agreement, condition precedent 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 remedy for the default, may terminate this Contract and, following the expiration of five (5) calendar days after Buyer is in receipt of written notice of the default, receive the Earnest Money from the Title Company as liquidated damages. ARTICLE 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) three (3) days after the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: Contract of Sale — Lubbock Economic Development Alliance Page 11 of 35 BUYER: SELLER: LUBBOCK ECONOMIC Rob Allison DEVELOPMENT ALLIANCE Assistant City Manager/Development Services Wells Fargo Center City of Lubbock 1500 Broadway, 6`h Floor P. O. Box 2000 Lubbock, Texas 79401 Lubbock, Texas 79457 (806) 749-4500 (806) 775-2110 Telecopy: (806) 749-4501 Telecopy: (806) 775-2051 Copies to: For Buffer: For Seller: Pete Baker Dave Booher, Right -of -Way Agent McCleskey, Harriger, Brazill City of Lubbock & Graf, L.L.P. P. O. Box 2000 P. O. Box 6170 Lubbock, Texas 79457 Lubbock, Texas 79493 (806) 775-2352 (806) 796-7333 Telecopy: (806) 775-3074 Telecopy: (806) 796-7365 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 Contract of Sale — Lubbock Economic Development Alliance Page 12 of 35 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, in 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. 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 Seller under this Contract are hereby delegated by Seller to City Manager, Lee Ann Dumbauld, or her designee. Contract of Sale — Lubbock Economic Development Alliance Page 13 of 35 Executed by Seller on the 7th day of December 2006. SELLER: CITY OF LUBBOC& a Home Rule Municipal Corporation of Lubbock County, Texas BY:—I1Zn6 —�' DAVID A. 1LLER, MAYOR ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: Rob AlliWn. Assistant City. Manager/Development Services Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: ZZ— Richard Casner, First Assistant City Attorney Contract of Sale — Lubbock Economic Development Alliance Page 14 of 35 Executed by Buyer on the 7th day of December 2006. BUYER: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, a Tex not not for profit development Ifl Contract of Sale - Lubbock Economic Development Alliance Page 15 of 35 EXHIBIT "A" TO CONTRACT OF SALE TRACT I: Resolution No. 2006—RO578 A 170.53 acre tract of land located in Section 38, Block D, Lubbock County, Texas, being further described as follows: BEGINNING at a "PK" nail found at the Southwest comer of this tract which bears N. 88°33'49" W. a distance of 5287.13 feet from the Southeast comer of said Section 38; THENCE N. 1 °04'04" E., along the centerline of a paved county road, (old U.S. 87) a distance of 1825.72 feet to a point of intersection; THENCE Northeasterly, along said centerline, along a curve to the right, said curve having a radius of 2864.60 feet, a central angel of 10007'00", a chord bearing N. 6008'40" E., and a chord distance of 505.14 feet to a point of intersection; THENCE N. 11 ° 12'08" E., continuing along said centerline a distance of 309.80 feet to a point of intersection; THENCE Northeasterly, continuing along said centerline, along a curve to the left, said curve having a radius of 2864.99 feet, a central angle of 3°37'14", a chord bearing of N. 9°24'14" E., and a chord distance of 181.01 feet to a point of intersection; THENCE S. 88046'27" E., 50.31 feet pass a %2" iron rod with cap found in the East right- of-way line of said county road, continuing for a total distance of 2531.92 feet to a '/2" iron rod with cap set for the Northeast comer of this tract; THENCE S. 1013'33" W., at 2773.02 feet pass a %Z" iron rod with cap found in the North righ-of-way line of FM Highway No. 1294, continuing for a total distance of 2823.02 feet to a point in the South line of said Section 38; THENCE N. 88033'49" W., along the South line of said Section 38 a distance of 2649.62 feet to the POINT OF BEGINNING; TRACT II: A 131.12 acre tract of land located in Section 38, Block D, Lubbock County, Texas, being, the North portion of that 301.648 acre tract of land recorded in Volume 7108, Page 73, Real Property Records of Lubbock County, Texas, being further described by metes and bounds as follows: Contract of Sale — Lubbock Economic Development Alliance Page 16 of 35 BEGINNING at a cross chiseled on concrete found in the centerline of a paved county road, (old U.S. 87) at the Southwest corner of this tract which bears N. 88°33'49" W. a distance of 5179.77 feet and N. 01026'11" E. a distance of 2813.69 feet from the Southeast corner of said Section 38, Block D, Lubbock County, Texas; THENCE Northeasterly, along said centerline, along a curve to the left, said curve having a radius of 2864.99 feet, a central angle of 05054'38", a chord bearing of N. 04038'18" E., and a chord distance of 295.42 feet to a point of intersection; THENCE N. 1 °44'07" E., continuing along said centerline a distance of 343.52 feet to a point of curvature; THENCE Northeasterly, continuing along said centerline, along a curve to the right, said curve having a radius of 1432.39 feet, a central angle of 25°00'00", a chord bearing of N. 14005140" E., and a chord distance of 620.05 feet to a point of intersection; THENCE N. 26037'44" E., continuing along said centerline a distance of 574.36 feet to a point of curvature; THENCE Northeasterly, continuing along said centerline, along a curve having a radius of 1273.24 feet, a central angle of 32°52'21", a chord bearing of N. 10112'07" E., and a chord distance of 720.52 feet to a point of intersection in the North line of said Section 38; THENCE S. 88044'36" E., along the North line of said Section 38, at 50.41 feet pass a %" iron rod cap set in the East right-of-way line of said county road, continuing for a total distance of 2014.38 feet to a %' iron rod with cap set for the Northeast corner of this tract; THENCE S. 01013'33" W., a distance of 2472.32 feet to a V2" iron rod with cap found at the Southeast corner of this tract; THENCE N. 88046'27" W., a distance of 2531.92 feet to the POINT OF BEGINNING. Contract of Sale — Lubbock Economic Development Alliance Page 17 of 35 Resolution No. 2006-RO578 EXHIBIT "B" TO CONTRACT OF SALE GENERAL WARRANTY DEED STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS That CITY OF LUBBOCK, a Texas home rule municipal corporation (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 MARKET LUBBOCK ECONOMIC DEVELOPMENT CORPORATION, a Texas not - for -profit development corporation formed pursuant to the Development Corporation Act of 1979 (herein called "Grantee"), P. O. Box , Lubbock, TX , the receipt and sufficiency of which are hereby acknowledged and confessed, subject to the reservations, covenants and exceptions herein, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee the SURFACE ESTATE only of all the real property in Lubbock County, Texas described on Exhibit "A", attached hereto, together with all the rights appurtenant to said real property, and fixtures attached thereto or located thereon, including without limitation, the railroad tracks and rail facilities now located on said lands (the "Property"). Grantor reserves unto itself, its successors and assigns, and for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in said airspace such noise, airwaves and soundwaves as may be inherent in the operation of aircraft, now known or hereafter used, Contract of Sale - Lubbock Economic Development Alliance Page 18 of 35 for navigation of or flight in the said airspace, and for use of said airspace for landing on, taking off from, or operating on the Preston Smith Lubbock International Airport. Nothing herein shall be construed to restrict or prohibit the use of the Property by Buyer, its successors and assigns, that is in accordance with Title 14, Part 77 of the U.S. Code of Federal- Regulations. Grantee shall not, during the effective term of the Grants and any other period of time directed or advised by the EDA, and/or any other entity with jurisdiction over the Grants, sell or otherwise divest itself of (i) that certain called 7.359 acre tract of land, being described in that certain Warranty Deed, dated July 26, 2001, from Market Lubbock Economic Development Corporation to the City of Lubbock, recorded in Volume 7214, Page 114, Real Property Deeds, Lubbock County, Texas; and/or (ii) that certain called 7.721 acre tract of land, being described in that certain Warranty Deed, dated July 10, 2001, from Market Lubbock Economic Development Corporation to the City of Lubbock, recorded in Volume 7174, Page 151, Real Property Deeds, Lubbock County, Texas (the "Restricted Property"). Notwithstanding the foregoing, Grantee shall be permitted to lease the Restricted Property to third parties for purposes of economic development. This obligation shall be deemed a condition, and not a limitation, and shall not under any circumstance extend beyond the period of time allowed by law. Additionally, Grantee shall, and hereby covenants that it will, comply with all terms, conditions and provisions of (i) all grants received by the Grantor related to the Property, including, without limitation, that certain Economic Development Administration Grant 08-49-03071, the City of Lubbock original recipient; (ii) all applicable state and/or local statutes, rules, regulations and ordinances relating to airspace Contract of Sale — Lubbock Economic Development Alliance Page 19 of 35 restrictions, noise and/or any other aspect of airport and/or aircraft operations, including without limitation, Title 14, Part 77 of the U.S. Code of Federal Regulations; (iii) that certain Agreement, made as of June 13, 2001, Resolution No. 2001-110210, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation (the "Agreement'); and (iv) that certain Lease, dated as of May 1, 2001, Resolution No. 2001-R0209, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation, covering the lands described therein (the "Lease"). Additionally, this conveyance and warranty shall be subject to the following matters: (i) All applicable federal, state and/or local statutes, rules, regulations and ordinances relating to airspace restrictions, noise and/or any other aspect of airport and/or aircraft operations, including without limitation, Title 14, Part 77 of the U.S. Code of Federal Regulations. (ii) Validly existing easements, rights -of -way, and prescriptive rights, whether of record or not; all presently recorded and validly existing restrictions, reservations, covenants, conditions, oil and gas leases, mineral interests, and other instruments, that affect the Property; validly existing rights of adjoining owners in any walls and fences situated on a common boundary; any discrepancies, conflicts, or shortages in area or boundary lines; and any encroachments or overlapping of improvements. Contract of Sale — Lubbock Economic Development Alliance Page 20 of 35 (iii) Without limiting the general nature of the above, this conveyance and warranty is subject to the following additional specific exceptions: A. Easement granted to N.K. Moody, Trustee by instrument recorded in Volume 123, Page 343, Deed Records of Lubbock County, Texas; assigned to South Plains Pipe Line Company by instrument recorded in Volume 154, Page 37, Deed Records of Lubbock County, Texas. B. Easement granted to Texas Utilities Company by instrument recorded in Volume 142, Page 17, Deed Records of Lubbock County, Texas. C. Easement granted to South Plains Line Company by instrument recorded in Volume 162, Page 303, Deed Records of Lubbock County, Texas. D. Easement granted to Howard Medlock by instrument recorded in Volume 315, Page 36, Deed Records of Lubbock County, Texas. E. Easement granted to South Plains Electric Cooperative, Inc. by instrument recorded in Volume 1038, Page 312, Deed Records of Lubbock County, Texas. F. Easement granted to N.K. Moody, Trustee by instrument recorded in Volume 123, Page 346, Deed Records of Lubbock County, Texas; assigned to South Plains Pipe Line Company by instrument recorded in Volume 154, Page 37, Deed Records of Lubbock County, Texas. G. Easement granted to TEXAS UTILITIES COMPANY by instrument recorded in Volume 142, Page 19, Deed Records of Lubbock County, Texas. H. Right -of -Way Easement granted to LUBBOCK COUNTY, TEXAS by instrument recorded in Volume 160, Page 625, Deed Records of Lubbock County, Texas. I. Easement granted to SOUTH PLAINS ELECTRIC COOPERATIVE, INC. by instrument recorded in Volume 754, Page 432, Deed Records of Lubbock County, Texas. J. Easement granted to the STATE OF TEXAS by Judgment recorded in Volume 1087, Page 576, Deed Records of Lubbock County, Texas. Contract of Sale — Lubbock Economic Development Alliance Page 21 of 35 K. Subject to the rights of tenants holding under unrecorded farm lease, Frank Soliz, or assignee thereof, Tenant. L. Title to all oil, gas, and other minerals and other elements not constituting part of the surface estate in the above described land, together with all rights, privileges, and immunities relating thereto. M. Easements, or claims of easements and/or encroachments, not shown of public record. N. Twenty Foot (20') right-of-way easement granted to the County of Lubbock, as shown by instrument recorded in Volume 190, Page 302, Deed Records of Lubbock County, Texas. O. Easement granted to the CITY OF LUBBOCK by instrument recorded in Volume 468, Page 409, Deed Records of Lubbock County, Texas. P. Right -of -Way Easement granted to STANOLIND PIPE LINE COMPANY by instrument recorded in Volume 358, Page 83, Deed Records of Lubbock County, Texas. Q. Underground Petroleum Line, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Professional Land Surveyor. R. Unknown utility, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Professional Land Surveyor. S. Buried fiber optic cable, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Professional Land Surveyor. T. Overhead electric line, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Professional Land Surveyor. U. Rights or claims, if any, of adjoining property owner in and to that portion of the Property lying between the fence and the East boundary, as shown on Plat of Surveys dated October 21, 2002, Contract of Sale - Lubbock Economic Development Alliance Page 22 of 35 May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. V. Rights or claims, or damages arising from fence protrusion onto property along the East, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. W. Drainage Easement, as shown by instrument recorded in Volume 7174, Page 165, Real Property Records of Lubbock County, Texas, and shown as Proposed Drainage Easement on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. . X. Six Foot diameter by Twenty Foot High (6' dia X 20' high) Tank, Electric Lines, Power Poles, Guys, Guy Pole, Gas Vent, and Gas Meter, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. Y. Fiber Optic Line Signs, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. Z. Southwestern Bell Telephone Riser, as shown on Plat of surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. AA. Graded Road, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. BB. Right -of -Way Easement, as shown by instrument recorded in Volume 162, Page 45, Deed Records of Lubbock County, Texas, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. Contract of Sale - Lubbock Economic Development Alliance Page 23 of 35 CC. Railroad Right of Way, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. DD. Ten Inch (10") Buried Gas Line, as shown on Plat of Surveys dated October 21, 2002, May 22, 2002 and revised June 5, 2002, and compilation of surveys made August 20, 2003, by HUGO REED & ASSOCIATES, INC., Registered Public Surveyor. EE. Subject to the rights of parties in possession. FF. Visible and apparent easements on or across the Property herein described. GG. Any portion of the Property described herein within the limits or boundaries of any public or private roadway. HH. [Any other requirements or covenants required by the EDA] II. [Exceptions as agreed to by Grantee]. JJ. The terms and conditions of that certain Contract of Sale (the "Contract") dated 2006, by and between Grantor and Grantee. KK. That certain Agreement, made as of June 13, 2001, Resolution No. 2001-R0210, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation (the "Agreement"). LL. That certain Lease, dated as of May 1, 2001, Resolution No. 2001- R0209, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation, covering the lands described therein (the "Lease"). Grantee has made an independent inspection and evaluation of the Property and acknowledges that Grantor, except as expressly set forth in the Contract, has made no statements or representations concerning the present or future value of the Property, the condition, including the environmental condition of the Property, or the anticipated income, costs, or profits, if any, to be derived from the Property. FURTHER, EXCEPT Contract of Sale — Lubbock Economic Development Alliance Page 24 of 35 AS IS EXPRESSLY MADE IN THE CONTRACT, GRANTOR MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY, OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, VALUE, QUALITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY, MERCHANTABILITY, OR FITNESS FOR PURPOSE OF ANY OF THE PROPERTY. Grantee further acknowledges that, in entering into the Contract and accepting this conveyance, it has relied solely upon its independent evaluation and examination of the Property and public records relating to the Property and the independent estimates, computations, evaluations and studies based thereon. Grantor makes no warranty or representation as to the accuracy, completeness or usefulness of any information furnished to Grantee, if any, whether furnished by Grantor or any other third party. Grantor, its officers, employees, elected officials and agents assume no liability for the accuracy, completeness or usefulness of the material furnished by the Grantor, or any of its officers, employees, elected officials and/or agents, if any, and/or any other third party. Reliance on any material so furnished shall not give rise to, and Grantee hereby releases such parties from and against any cause, claim or action against Grantor, its officers, employees, elected officials and/or agents, and any such reliance shall be at Grantee's sole risk. THE CONVEYANCE OF THE PROPERTY IS ON A "WHERE IS", "AS IS" AND "WITH ALL FAULTS" BASIS, EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE HEREIN, AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY, EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE HEREIN, WHATSOEVER, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, Contract of Sale — Lubbock Economic Development Alliance Page 25 of 35 BUT WITHOUT LIMITATION, AS TO DESCRIPTION, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE PROPERTY, QUALITY, VALUE, FITNESS FOR PURPOSE, MERCHANTABILITY, OR OTHERWISE. Grantee has satisfied itself, as to the type, condition, quality and extent of the Property and property interests which comprise the Property it is receiving pursuant to this Deed. TO HAVE AND TO HOLD the Property, subject to the reservations, covenants and exceptions above, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. Contract of Sale — Lubbock Economic Development Alliance Page 26 of 35 EXECUTED the day of , 2006. GRANTOR: CITY OF LUBBOCK DAVID A. MILLER, MAYOR ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Rob Allison, Assistant City Manager/Development Services Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Richard Casner First Assistant City Attorney THE STATE OF TEXAS COUNTY LUBBOCK This instrument was acknowledged before me on the _ day of 2006, by David A. Miller, Mayor of the City of Lubbock, Texas, a home rule municipal corporation. Notary Public, State of Texas My commission expires: Contract of Sale — Lubbock Economic Development Alliance Page 27 of 35 GRANTEE: LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, a Texas not for profit development corporation Name: Title: THE STATE OF TEXAS § COUNTY LUBBOCK § This instrument was acknowledged before me on the — day of , 2006, by , of Lubbock Economic Development Alliance, a Texas not for profit development corporation formed pursuant to the Development Corporation Act of 1979. Notary Public, State of Texas My commission expires: Contract of Sale — Lubbock Economic Development Alliance Page 28 of 35 EXHIBIT "A" To General Warranty Deed TRACT I: Resolution No. 2006—R0578 A 170.53 acre tract of land located in Section 38, Block D, Lubbock County, Texas, being further described as follows: BEGINNING at a "PK" nail found at the Southwest comer of this tract which bears N. 88°33'49" W. a distance of 5287.13 feet from the Southeast corner of said Section 38; THENCE N. 1 °04'04" E., along the centerline of a paved county road, (old U.S. 87) a distance of 1825.72 feet to a point of intersection; THENCE Northeasterly, along said centerline, along a curve to the right, said curve having a radius of 2864.60 feet, a central angel of 10'07'00", a chord bearing N. 6008'40" E., and a chord distance of 505.14 feet to a point of intersection; THENCE N. 11 ° 12'08" E., continuing along said centerline a distance of 309.80 feet to a point of intersection; THENCE Northeasterly, continuing along said centerline, along a curve to the left, said curve having a radius of 2864.99 feet, a central angle of 3°37'14", a chord bearing of N. 9024'14" E., and a chord distance of 181.01 feet to a point of intersection; THENCE S. 88046'27" E., 50.31 feet pass a %z" iron rod with cap found in the East right- of-way line of said county road, continuing for a total distance of 2531.92 feet to a %" iron rod with cap set for the Northeast corner of this tract; THENCE S. 1013'33" W., at 2773.02 feet pass a %2" iron rod with cap found in the North righ-of-way line of FM Highway No. 1294, continuing for a total distance of 2823.02 feet to a point in the South line of said Section 38; THENCE N. 88033'49" W., along the South line of said Section 38 a distance of 2649.62 feet to the POINT OF BEGINNING; TRACT II: A 131.12 acre tract of land located in Section 38, Block D, Lubbock County, Texas, being, the North portion of that 301,648 acre tract of land recorded in Volume 7108, Page 73, Real Property Records of Lubbock County, Texas, being further described by metes and bounds as follows: Contract of Sale — Lubbock Economic Development Alliance Page 29 of 35 BEGINNING at a cross chiseled on concrete found in the centerline of a paved county road, (old U.S. 87) at the Southwest corner of this tract which bears N. 88°33'49" W. a distance of 5179.77 feet and N. 01 °26' 11" E. a distance of 2813.69 feet from the Southeast comer of said Section 38, Block D, Lubbock County, Texas; THENCE Northeasterly, along said centerline, along a curve to the left, said curve having a radius of 2864.99 feet, a central angle of 05"54'38", a chord bearing of N. 04"38'l 8" E., and a chord distance of 295.42 feet to a point of intersection; THENCE N. 1 °44'07" E., continuing along said centerline a distance of 343.52 feet to a point of curvature; THENCE Northeasterly, continuing along said centerline, along a curve to the right, said curve having a radius of 1432.39 feet, a central angle of 25°00'00", a chord bearing of N. 14°05'40" E., and a chord distance of 620.05 feet to a point of intersection; THENCE N. 26037'44" E., continuing along said centerline a distance of 574.36 feet to a point of curvature; THENCE Northeasterly, continuing along said centerline, along a curve having a radius of 1273.24 feet, a central angle of 32°52'21 ", a chord bearing of N. 10012'07" E., and a chord distance of 720.52 feet to a point of intersection in the North line of said Section 38; THENCE S. 88044'36" E., along the North line of said Section 38, at 50.41 feet pass a %2" iron rod cap set in the East right-of-way line of said county road, continuing for a total distance of 2014.38 feet to a %2" iron rod with cap set for the Northeast comer of this tract; THENCE S. 01 °13'33" W., a distance of 2472.32 feet to a %2" iron rod with cap found at the Southeast corner of this tract; THENCE N. 88046'27" W., a distance of 2531.92 feet to the POINT OF BEGINNING. Contract of Sale — Lubbock Economic Development Alliance Page 30 of 35 Resolution Po. 2006—RO578 EXHIBIT "C" TO CONTRACT OF SALE ASSIGNMENT AND ASSUMPTION AGREEMENT FOR LEASES AND CONTRACTS This Assignment and Assumption Agreement for Leases and Contracts (the "Agreement"), is made as of the day of , 2006 [insert closing date], by and between the CITY OF LUBBOCK, TEXAS, a Home Rule Municipal Corporation of Lubbock County, Texas (referred to herein as "Seller"), and LUBBOCK ECONOMIC DEVELOMENT ALLIANCE, a Texas not for profit development corporation formed pursuant to the Development Corporation Act of 1979 (referred to herein as "Buyer"). WITNESSETH For valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as follows: 1. Assignment and Assumption: (a) Seller hereby assigns and transfers to Buyer all of its right, title and interest in, to and under the leases and contracts (collectively the "Agreements") described in EXHIBIT "A", ATTACHED HERETO and made a part hereof. THE ASSIGNMENT HEREIN IS "AS IS", "WHERE IS" AND "WITH ALL FAULTS", AND SHALL BE WITHOUT REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESSED, STATUTORY OR IMPLIED, INCLUDING BUT WITHOUT LIMITATION, AS TO THE DESCRIPTION, TITLE, PHYSICAL, ENVIRONMENTAL CONDITION OF ANY PROPERTY SUBJECT TO THE AGREEMENTS, QUALITY, VALUE, FITNESS OR PURPOSE MERCHANTABILITY OR OTHERWISE. Buyer hereby accepts the foregoing Assignment, and assumes and agrees to perform all of the covenants, terms and agreements in the Agreements to be performed by Seller thereunder that arise or accrue from and after the date of this Assignment. Buyer shall indemnify, save and hold Seller, its officers, agents, elected officials, successors and assigns, harmless from and against any and all claims, demands, causes of action, suits, damages, losses, injuries, costs, fines, harms, penalties and expenses, of any kind or manner (the "Claims"), including reasonable attorneys' fees and costs, arising from, in connection with or related to any activity, or the omission of any activity, contemplated by the Agreements, arising or accruing from and after the date of this Assignment. The indemnity obligation provided for herein shall survive the closing of the Assignments contemplated herein. Contract of Sale — Lubbock Economic Development Alliance Page 31 of 35 (b) The Burlington Northern and Santa Fe Railway Company, a Delaware corporation (referred to herein as the "Railroad'), by its execution below, hereby consents to the assignment of the Agreements from Seller to Buyer and forever releases Seller from and against any Claim arising from, in connection with, or related to any activity, or the omission of any activity, contemplated by the Agreements, and occurring, accruing or arising from and after the date of this Assignment. (c) The Railroad further hereby expresses and stipulates that its consent to the assignment of the Agreements constitutes a novation, and that Buyer shall be substituted, for all purposes and intents, as Seller, in the Agreements. 2. Further Assurances. Seller and Buyer agree to execute such other documents and perform such other acts as may be reasonably necessary or proper and usual to affect this Assignment. 3. Compliance with Laws. This Assignment is governed and shall be construed in accordance with the laws of the State of Texas. This Assignment is performable, at least in part, in Lubbock County, Texas. Sole and exclusive venue for any action arising from or related to this Assignment shall lie solely in the courts of competent jurisdiction in Lubbock County, Texas. 4. Successors and Assigns. This Assignment shall be binding upon and shall inure the benefit of Seller and Buyer and their respective successors and assigns. IN WITNESS WHEREOF, Seller and Buyer have executed this Assignment as to the date first above written. SELLER: CITY OF LUBBOCK, a Home Rule Municipal Corporation of Lubbock County, Texas DAVID A. MILLER, MAYOR ATTEST: Rebecca Garza, City Secretary Contract of Sale — Lubbock Economic Development Alliance Page 32 of 35 APPROVED AS TO CONTENT: Rob Allison, Assistant City Manager/Development Services Dave Booher, Right -of -Way Agent APPROVED AS TO FORM: Richard Casner, First Assistant City Attorney THE STATE OF TEXAS COUNTY LUBBOCK § This instrument was acknowledged before me on the _ day of 2006, by David A. Miller, Mayor of the City of Lubbock, Texas, a home rule municipal corporation. Notary Public, State of Texas My commission expires: Contract of Sale — Lubbock Economic Development Alliance Page 33 of 35 1.11#"�� LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, a Texas not for profit development corporation Un Name: Title: THE STATE OF TEXAS § COUNTY LUBBOCK § This instrument was acknowledged before me on the — day of , 2006, by of Lubbock Economic Development Alliance, a Texas not for profit development corporation formed pursuant to the Development Corporation Act of 1979. Notary Public, State of Texas My commission expires: CONSENT TO ASSIGNMENT: THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware Corporation L-In Name: Title: Contract of Sale — Lubbock Economic Development Alliance Page 34 of 35 Resolution Now 2006—RO578 Exhibit "_4" TO ASSIGNMENT AND ASSUMPTION AGREEMENT FOR LEASES AND CONTRACTS i. Lease, dated as of May 1, 2001, Resolution No. 2001-110209, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation, covering the lands described therein. 2. Agreement, made as of June 13, 2001, Resolution No. 2001-R0210, by and between the Burlington Northern and Santa Fe Railway Company, a Delaware corporation, and the City of Lubbock, a Texas municipal corporation. as/ci tyatt/Richard/ContractoiSale-LubbockEconomicDevelopmentA Iliance December 6, 2006 Contract of Sale — Lubbock Economic Development Alliance Page 35 of 35