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HomeMy WebLinkAboutResolution - 2010-R0508 - Contract Of Sale/Purchase: Kim Craig Construction - 10/14/2010Resolution No. 2010-R0508 October 14, 2010 Item No. 5.22 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Contract of Sale for the purchase of real property, by and between the City of Lubbock and Kim R. Craig d/b/a Kim Craig Construction, and 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 City Council. SECTION 2. THAT subsequent to the City's acquisition of the tract of land, the City shall pay to the owner the reasonable expenses of moving the property owner's personal property from the tract upon proper documentation and closing cost. Passed by the City Council on _ October 14, 2010 TOM MARTIN, MAYOR ATTEST: APPROVED AS TO CONTENT: W a -A JAQL— � "-d Marsha Reed, P.E., Chief Operations Officer Dave Booher, Right -of -Way Agent APPKOVYD . AS TO FORM: ad Weaver, Assistant City Attorney vw: ccdocs/RES. Contract of sale -Kim R. Craig September 14, 2010 Resolution No. 2010-RO508 Contract: 9767 CONTRACT OF SALE STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made this 14th day of October , 20 10 , effective as of the date of execution hereof by Buyer, as defined herein, (the "Effective Date"), by and between KIM R. CRAIG D/B/A KIM CRAIG CONSTRUCTION (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 as LOT FIFTY (50), LAKEWOOD ESTATES, an Addition to the city of Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 8629, Page 57 of the Official Public Records of Lubbock County, Texas (the "Land"); and WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the Land together with all and singular the permanent improvements attached thereto, and all other property of Seller attached to the Land (herein "Improvements"), and all other rights and appurtenances 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 sum of Ninety One Thousand and No/100 Dollars ($91,000.00) (the "Purchase Price"). ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. The parties hereto acknowledge that a Title Commitment for the Property has been obtained and has been reviewed by the parties. 3.02 Title Policy. At Closing, Seller, at Buyer'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 Service Title, 1408-B Buddy Holly, Lubbock, Texas 79401 ("the Title Contract of Sale —Kim R. Craig d/b/a Kim Craig Construction Page 1 of 9 Company") in the amount and on the terms and conditions as set forth in the Title Commitment, subject only to the Permitted Exceptions; provided, however, in the event Buyer obtains the survey and elects to have the survey exception amended, the 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). 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 terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) There are no adverse or other parties in possession of the Property or any part thereof, and 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. (b) 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. (c) 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. This representation limited to the Effective Date. (d) To the best of Seller's knowledge, the Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will, except for the year of Closing, be due as of the Closing, and the Property will be subject to no such liens. (e) 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. 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, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property (herein "Nonpermitted Agreements") that will not be fully performed on or before the Closing or would be binding on Buyer or the Property 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, except as will be satisfied at Closing, unless waived by Buyer, or for ad valorem taxes for the year of Closing. (v) Maintain a fire and extended coverage insurance policy in the standard promulgated form and with standard terms, which will include but is not limited to losses from storms and fires, in the minimum amount of the appraised value of the permanent improvements on the Land as determined by the Lubbock Central Appraisal District for calendar year 2009. (vi) Maintain the Property in its current condition and state of repair, ordinary wear and tear excepted. (b) To indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 4.03 Representations of Buyer. Buyer represents and warrants to Seller as of the Effective Date and as of Closing: (a) The 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 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. Contract of Sale —Kim R. Craig d/b/a Kim Craig Construction Page 3 of 9 ARTICLE V CLOSING 5.01 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 scheduled upon a date mutually agreeable to the parties hereto but no less than one hundred twenty days from the Effective Date. 5.02 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 Buyer's sole cost and expense, the following items: (i) The Title Policy provided, however, the Title Policy may be delivered after Closing consistent with normal practice; (ii) The General Warranty Deed, substantially in the form as attached hereto as Exhibit "A", 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 (any payment to the Title Company to be placed in escrow for the benefit of and payable to Seller as provided in the Contract) the following items: (i) The sum required by Section 2.01, less the Earnest Money and interest earned thereon (which will also be paid to Seller), in the form of personal, 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. 5.03 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 5.04 Adjustment at Closing. Ad valorem taxes relating to the Property for the calendar year in which Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which Closing shall occur is not known as of the Closing Date, the proration for purposes of settlement at Closing shall be based on the amount of taxes due and payable with respect to the calendar year immediately preceding the calendar year of Closing. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes payable by Seller as per the prorated responsibilities set forth herein. This provision shall survive the Closing. Notwithstanding any provision to the contrary, Buyer, as a home rule municipality, shall not pay for, or be responsible for, the payment of any taxes on behalf of the Seller. 5.05 Costs of Closing. Buyer is responsible for paying fees, costs, expenses identified herein as being the responsibility of Buyer or Seller. 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 Buyer and Buyer shall pay all fees, costs and expenses of Seller, notwithstanding any provision to the contrary. ARTICLE VI DEFAULTS AND REMEDIES 6.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract. (b) Buyer's remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to payment 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 subject only to the Permitted Exceptions. 6.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Section 5.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedies for the default, may at Seller's sole option, do either one of the following: Contract of Sale —Kim R. Craig d/b/a Kim Craig Construction Page 5 of 9 (i) 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 to return to Seller the Earnest Money; or a. Enforce specific performance of this Contract against Buyer, requiring Buyer to purchase the Property from Seller subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment. ARTICLE VII MISCELLANEOUS 7.01 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) two (2) calendar days following the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Kim R. Craig d/b/a Kim Craig Construction 11509 Topeka Ave. Lubbock, Texas 79424 Copies to: For Bum Sam Medina City Attorney P. O. Box 2000 Lubbock, TX 79457 (806) 775-2221 Telecopy: (806) 775-3307 BUYER: City of Lubbock Tom Martin, Mayor P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2312 Telecopy: (806) 775-2051 7.02 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. 7.03 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. 7.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Lubbock County, Texas, imparting notice of this Contract to the public. 7.05 BUYER ACKNOWLEDGES THAT SELLER HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION AS TO THE PHYSICAL CONDITION, OR ANY OTHER MATTER AFFECTING OR RELATED TO THE PROPERTY (OTHER THAN WARRANTIES OF TITLE AS PROVIDED AND LIMITED HEREIN). BUYER EXPRESSLY AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROPERTY IS CONVEYED "AS IS" AND "WITH ALL FAULTS", AND SELLER EXPRESSLY DISCLAIMS, AND BUYER ACKNOWLEDGES AND ACCEPTS THAT SELLER HAS DISCLAIMED, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED (EXCEPT AS TO TITLE AS HEREIN PROVIDED AND LIMITED) CONCERNING THE PROPERTY, INCLUDING WITHOUT LIMITATION (i) THE VALUE, CONDITION, MERCHANTABILITY, HABITABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OF THE PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO ANY SUCH IMPROVEMENTS, AND (iii) THE MANNER OR REPAIR, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF ANY SUCH IMPROVEMENTS. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. SELLER HAS NOT MADE ANY REPRESENTATION OR WARRANTY WITH REGARD TO COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO THE HANDLING, GENERATING, TREATING, STORING OR DISPOSING OF ANY HAZARDOUS WASTE OR SUBSTANCE, OR THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, OR THE PRESENCE OR ABSENCE OF ANY UNDERGROUND STORAGE TANK, POLLUTANT, HAZARDOUS WASTE, GAS OR SUBSTANCE OR SOLID WASTE ON OR ABOUT THE PROPERTY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 4.02(a)(vi), SELLER HAS NO CONTINUING OBLIGATION WHATSOEVER TO UNDERTAKE ANY REPAIRS, ALTERATIONS OR OTHER WORK OF ANY KIND WITH RESPECT TO ANY PORTION OF THE PROPERTY. BUYER ACKNOWLEDGES THAT BUYER, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, IS RELYING SOLELY ON BUYER'S OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF SELLER. BUYER FURTHER ACKNOWLEDGES THAT NO INDEPENDENT INVESTIGATION OR VERIFICATION HAS BEEN MADE BY SELLER WITH RESPECT TO ANY INFORMATION SUPPLIED BY SELLER CONCERNING THE PROPERTY, AND SELLER HAS MADE NO REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF ANY SUCH Contract of Sale —Kim R. Craig d/b/a Kim Craig Construction Page 7 of 9 INFORMATION, IT BEING INTENDED BY THE PARTIES THAT BUYER SHALL HAVE VERIFIED THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION. 7.06 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, or if the Improvements to the Property have been damaged by fire, storms or other acts covered by applicable fire and extended coverage insurance, and all other conditions to Closing except as a result of such condemnation or eminent domain proceeding (herein "Condemnation Proceeds") have been met, Buyer shall consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any and all Condemnation Proceeds and insurance proceeds paid for or with respect to damage to the Property, and Buyer shall have the right to compromise and settle any such insurance claims. 7.07 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, at no cost or expense, 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. 7.08 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 7.09 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. 7.10 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. Executed by Seller on the (') day of !* r-- 2010 SELLER: Ll -,A� - KIM R CRAIG DB/A KIM CRAIG CONSTRUCTN Executed by Buyer on the 14th day of October 2010. BUYER: CITY OF LUBBOCK, TEXAS TONf MARTIN, MAYOR r ";;it 1 -4; �ezvolzrw. APPROVED AS TO CONTENT: thazAidot= &J - Marsha Reed, P.E. Chief Operations Officer .� Dave Booher Right -of -Way Agent APP "D TO FORM: Chad Weaver Assistant City Attorney Contract of Sale -Kim R. Craig d/b/a Kim Craig Construction Page 9 of 9 Resolution No. 2010-RO508 RxhihiY "A" NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. GENERAL WARRANTY DEED DATE: GRANTOR: Kim R. Craig d/b/a Kim Craig Construction 11509 Topeka Avenue Lubbock, Texas 79424 GRANTOR'S MAILING ADDRESS: Kim R. Craig d/b/a Kim Craig Construction 11509 Topeka Avenue Lubbock, Texas 79424 GRANTEE: City of Lubbock, Texas, a municipal corporation GRANTEE'S MAILING ADDRESS: P.O. Box 2000 Lubbock, Lubbock County, Texas 79457 CONSIDERATION: TEN AND NO/] 00 DOLLARS ($10.00) and other good and valuable consideration. PROPERTY (including any improvements): LOT FIFTY (50), LAKEWOOD ESTATES, an Addition to the City of Lubbock, Lubbock County, Texas, according to the Map, Plat and/or Dedication Deed thereof recorded in Volume 8629, Page 57 of the Official Public Records of Lubbock County, Texas RESERVATIONS FROM CONVEYANCE: Any and all mineral interests in connection with the Property EXCEPTIONS TO CONVEYANCE AND WARRANTY: None Grantor, for the Consideration and subject to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty, grants, sells, and conveys to Grantee the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's heirs, successors, and assigns forever. Grantor binds Grantor and Grantor's heirs and successors to warrant and forever defend all and singular the Property to Grantee and Grantee's heirs, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any General Warranty Deed -Kim R. Craig d/b/a Kim Craig Construction Pg 1 part thereof, except as to the Reservations from Conveyance and the Exceptions to Conveyance and Warranty. When the context requires, singular nouns and pronouns include the plural. Kim R. Craig d/b/a Kim Craig Construction ACKNOWLEDGMENTS STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on this day of , 20_, by Kim R. Craig d/b/a Kim Craig Construction. Notary Public, State of Texas My commission expires: _ General Warranty Deed -Kim R. Craig d/b/a Kim Craig Construction Pg 2