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HomeMy WebLinkAboutResolution - 3586 - Right Of Way Offer-Bobby Mcqueen, Furr's Inc Trustee- Neal & Alexander Addition - 04_11_1991Resolution No. 3586 April 11, 1991 Item #16 JWF:da RESOLUTION WHEREAS, the City Council of the City of Lubbock finds that the land hereinafter described is needed for public purposes, to -wit: the develop- ment of a gateway park/plaza for the Central Business District Revitaliza- tion by Centercorp, Inc. through tax increment funds; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: SECTION 1. THAT the Right -of -Way Department of the City of Lubbock is hereby authorized and directed to make an offer on behalf of the City in the amount of $125,000 to Bobby McQueen, Trustee for Furrs, Inc., for the purchase by the City of a tract of land to be used as set forth in the preamble hereof, and being further described as follows: Lots Eleven (11), Twelve (12) and the West one-half of Ten (10), Block Two (2), Neal and Alexander Addition to the City of Lubbock, Lubbock County, Texas. SECTION 2. THAT said purchase is to be accomplished by the Right -of - Way Department. Passed by the City Council this 11th F.10*116 day of April , 1991. for B. C.44cMINN, MAYOR T. J. Patterson, Mayor Pro-Tem Kane�te uoya, uity vecretary APPROVED AS TO CONTENT: Ed Bucy, Right -of -Way Agent APPROVED AS TO FORM: � arold Willard, Assistant City Attorney TEXAS ASSOCIATION OF REALTORS® COMMERCIAL EARNEST MONEY CONTRACT THIS CONTRACT OF SALE is made by and between Bobby McQueen, Trustee for Furr's Inc. hereafter referred to as "Seller" and City of Lubbock hereafter referred to as "Buyer" upon the terms, provisions and conditions set forth herein. 1. PURCHASE AND SALE. Seller agrees to sell and convey to Buyer and Buyer agrees to buy from Seller the following prop- erty situated in Lubbock County, Texas, known as NE corner of Broadway & Ave. , Lubbock, Texas (address). 2. PROPERTY. Lots 11, 12, & W/2 of 1 Q31ock 2 Neal & Alexander Addition, City of Lubbock or as described on attached Exhibit "A", together with all and singular the rights and appurtenances pertaining to the property, including any right, title, and interest of Seller in and to adjacent streets, alleys or rights of way. All of such real property, rights, and appurtenances being hereinafter referred to as the "Property", together with any improvements, fixtures, and personal property situated on and attached to the Property, including but not limited to the following: 3. CONTRACT SALES PRICE. A. Cash down payment payable at closing (including earnest money) .................... $ 1251,000.00 B. Sum of all notes described in Paragraph 4 below ........................................ $ N/A C. Other........................................................................................... $ MA D. Sales Price (Sum of A, B, and C)........................................................... $ 125, 000.00 4, FINANCING CONDITIONS. A. ASSUMPTION: Buyer shall assume the unpaid balance of that promissory note payable to N/A dated , 19 _ . Buyer shall pay the installment payment due after the date of closing. The assumed principal balance at closing will be $ allowing for an agreed $ variance. The cash payable at closing shall be adjusted for the amount of such variance. Buyer shall apply for assumption approval, if necessary or required, within days from the effective date of this contract and shall make every reasonable effort to obtain the same. If the variance exceeds $ or the existing interest rate is increased above % or Buyer.is required to pay an assumption fee in excess of $ , or assumption approval cannot be obtained within days from the effective date hereof, this contract may be terminated at Buyer's option and the Earnest. Money shall be refunded to Buyer without delay. B. THIRD PARTY FINANCING: This contract is subject to approval of a loan for Buyer by a third party in the amount of $ N/A payable at intervals for not less than years within the initial interest rate not to exceed % per annum, and with each principal and interest installment not to exceed $ [ ] including interest [ ] plus interest, for the first years of the loan. Buyer shall apply for the loan within days from the effective date of this contract and shall make every reasonable effort to obtain approval. If the loan has not been approved within days from the effective date hereof, this contract shall terminate and the Earnest Money shall be refunded to Buyer without delay. C. SELLER FINANCING: Buyer shall execute a promissory note or notes to Seller in the principal sum of $ N/A , bearing % interest per annum, and payable: (Check 1, 2 or 3 below) [ ] 1. In one payment due after the date of the note with interest payable [ ] 2. Installments of $ [ J including interest [ ] plus interest beginning after the date of the note and continuing at intervals thereafter for years when the entire balance of the note shall be due and payable. [ ] 3. Interest only in installments for the first years and thereafter in installments of $ [ J including interest [ ] plus interest beginning intervals thereafter for years when the entire balance of the note is due and payable. D.-OTHER FINANCING: None. This is an all cash transaction with the entire consideration due at time of closing, Any Seller financed note may be prepaid in whole or in part at any time without penalty. The lien securing payment of such note will be inferior to any lien securing any loan assumed pursuant to paragraph 4A above. 5. EARNEST MONEY. A $1 , 000.00 is herewith tendered and is to be deposited as Earnest Money with McQueen Company, Realtors as Escrow Agent. Additional Earnest Money, if any, shall be depos- ited with the Escrow Agent on or before N/A 19—, in the amount of N A Earnest Money is deposited with the Escrow Agent with the understanding that Escrow Agent (i) does not assume or have any liability for performance or nonperformance of any party (ii) has the right to require the receipt, release and authorization in writing of all parties before paying the deposit to any party and (iii) is not liable for interest or other charge on the funds held. If any party unreasonably fails to agree in writing to an appropriate release of Earnest Money, then such party shall be liable to the other parties to the extent provided in paragraph 14. At closing, Earnest Money shall be applied to any cash down payment required, next to Buyer's closing costs and any excess refunded to Buyer. Before Buyer shall be entitled to refund of Earnest Money, any actual expenses incurred or paid on Buyer's behalf shall be deducted therefrom and paid to the creditors entitled thereto. NYA [ ] Yes [ ] No. The parties herein agree that the Earnest Money shall be deposited in an account at bearing interest at the highest obtainable rate and the interest shall be credited to (TAR-029) 2/85 Page I of 4 Pages 6. PROPERTY CONDITION/INVESTIGATION. [g ] A. Buyer accepts the Property in "as is" condition. [ ] B. Buyer accepts the Property subject to the [ ] Property Condition and/or [ ] Investigation Addendums attached hereto. 7. SURVEY AND TITLE BINDER. A. Survey [ ] 1. No survey is required. [g ] 2. Seller shall furnish to Buyer within ten (10) days from the effective date of this contract, Seller's existing survey of the Property dated March 11 1988 Within days after the date of this contract, Seller shall, [ J at Seller's expense [ ) at Buyer's expense, deliver or cause to be delivered to Buyer and Title Company a copy of a current -on -the -ground survey ("Survey") of the Property made by a duly licensed surveyer reasonably acceptable to Buyer and in a form acceptable to Buyer and the Title Company issuing the title commitment and Owner's Policy of Title Insurance required herein. If the survey exception (except as to shortages in area) is to be deleted herein, the additional expense for such deletion shall be paid by . The Survey shall show acreage or square feet, access to the property, the location of all improvements, rights of way, easements, encroachments, streets, roads, water courses, or fences on or adjacent to the Property, if any. If this contract does not close through no fault of Seller, in addition to the other rights of Seller hereunder, Buyer shall pay for the Survey. [ ) i.) If the price of the Property, pursuant to Paragraph 3, is based upon price per acre, then the Survey shall reflect the total acreage. [ ] ii.) If the price of the Property, pursuant to Paragraph 3, is based upon price per square foot, then the Survey shall reflect the total square footage. B. Within 7 days after the date of this contract, Seller shall, at Seller's expense, deliver or cause to be delivered to Buyer: (1) A title commitment ("Title Binder") covering the Property binding the Title Company to issue a Texas Owner's Policy of Title Insurance on the standard form of policy prescribed by the Texas State Board of Insurance at the closing in the full amount of the purchase price; and (2) True, correct, and legible copies of any and all instruments referred to in the Title Binder as constituting exception's or restrictions upon the title of Seller, if requested by Buyer in writing within 3 days of receipt of the title commitment. (3) A U.C.C. lien search, if applicable. 8. APPROVAL PERIOD AND TITLE. A. Buyer shall have 4 1days after the receipt of.both the Survey and Title Binder to review same and to deliver in writing to Seller such objections as Buyer may have to anything contained therein. Any such item to which Buyer shall not object shall be deemed to be accepted by Buyer. If there are objections by Buyer, Seller shall in good faith attempt to satisfy same prior to closing, but Seller shall not be required to incur any cost to do so. If title objections are disclosed, Seller shall have days to cure same. if Seller delivers written notice to Buyer on or before closing date that Seller is unable to satisfy such objections, or if, for any reason, Seller is unable to convey title in accordance with Section 8(B) below, Buyer may either waive such objections and accept such title as Seller is able to convey or terminate this contract by written notice to Seller and Earnest Money shall be refunded with no Broker's fee due. Zoning ordinances and a lien for current taxes shall not be valid objections to title. B. Seller represents and warrants to Buyer that at the closing Seller will have and will convey to Buyer good and marketable title by General Warranty Deed subject only to liens securing debt created, assumed or taken subject to as part of the consideration, taxes for the current year, and any other reservations, easements, discrepancies in boundries, encroachments, restrictions or exceptions previously approved by Buyer in accordance with Paragraph 8.A. Delivery of the. Title Policy pursuant to Section 10 below shall be deemed to fulfill all duties of Seller as to the sufficiency of title required hereunder; provided however, Seller shall not thereby be released from the warranties of Seller's Deed. 9, NOTICE TO BUYER. At the time of the execution of this contract, Broker has advised and hereby advises Buyer, by this ' writing, that Buyer should be furnished with or obtain a policy of title insurance or if an abstract covering the Property is provided in lieu thereof, Buyer should have said abstract examined by an attorney of Buyer's own selection. 10. CLOSING. A. The closing of the sale (the Closing Date) shall be on or before May 31 19 91 . B. At the closing, Seller shall deliver to Buyer: (i) a General Warranty Deed (with Vendor's Lien retained if not a cash purchase) conveying the Property, subject only to liens securing debt created, assumed or existing as part of the consideration, taxes for the current year, and any other reservations or exceptions previously approved by Buyer in accordance with Paragraph 8.A.; (ii) An Owner's Policy of Title Insurance (the "Title Policy") issued by Western Title Company in full amount of the Sales Price, dated as of closing, insuring Buyer's fee simple title to the Property to be good and indefeasible subject only to those title exceptions permitted herein, or as may be approved by Buyer in writing, and the standard printed exceptions contained in the usual form of the Title Policy, provided, however: (a) the exception as to area and boundaries shall be in accordance with Paragraph 7.A.3.; (b) the exception as to restrictive covenants shall be endorsed "None of Record", or, if of record, restrictive covenants shall be referenced by appropriate recording information; (c) the exception as to taxes shall be limited to taxes for the current year and subsequent years, and subsequent assessments for prior years due to changes in land usage or ownership; and (iii) possession of the property. C. At the closing, Buyer shall deliver to Seller (i) the cash portion of the sales price (the Earnest Money being applied thereto) and (ii) each note provided herein, if any, secured by Vendor's and Deed of Trust Liens. D. Unless otherwise provided herein, costs for the Survey, the Title Policy, preparing Deed, all inspections, tax certificates, reports and repairs required of Seller herein and'h of escrow fee shall be Seller's expense. All other costs and expenses incurred in connection with this contract which are not recited herein to be the obligation of Seller, shall be the obligation of Buyer. Unless otherwise paid, before Buyer shall be entitled to refund of Earnest Money, any such costs and expenses shall be deducted therefrom and paid to the creditors entitled thereto. . E. Rents and lease commissions, interest, insurance, utility charges, personal property taxes and ad valorem taxes for the then current year shall be prorated at the closing effective as of the date of closing. If for any reason utility charges cannot be accurately determined at date of closing for proration purposes, Buyer may postpone proration of utility charges until after closing and at such time as a statement for utility charge is received. Charges appearing on such statement shall then be prorated as of the date of closing, and Seller shall tender in cash the cost of all utility charges to the date of closing to Buyer upon demand. Any security deposits held by Seller shall be delivered to Buyer. If the closing shall occur before the tax rate is fixed for the then current year, the apportionment of the taxes shall be upon the basis of the tax rate for the preceding year applied to the latest assessed valuation but (TAR-029) 2/85 Page 2 of 4 Pages written eviaence of the paymeni inereof. if Seiler has claimed the benefit of laws permitting a special use valuation for the purposes of payment of ad valorem taxes on the property, the Seller represents that he was legally entitled to claim such benefits. If this sale or Buyer's use of the property after closing results in the assessment of additional taxes for prior years, such additional taxes shall be the obligation of the Buyer and such obligation shall survive closing. F. If Buyer is to assume an existing loan, Buyer shall pay any transfer fee as provided in Paragraph 4. Buyer shall execute, at the option and expense of Seller, a Deed of Trust to Secure Assumption with a Trustee named by Seller. G. If the Property is situated within a utility district subject to the provisions of Section 50.301, Texas Water Code, then at or prior to the closing, Seller agrees to give Buyer the written notice required by said Section and Buyer agrees to sign and acknowledge the notice to evidence receipt thereof. 11. ESTOPPEL CERTIFICATE BY TENANTS. Seller shall deliver to Buyer an "estoppel certificate" signed by each tenant leasing space in the property as of the date of closing stating (1) that no default exists under the terms of the lease agreement by either Lessor or Lessee; (2) the amount of any rental payments made in advance, if any; (3) the amount of any security deposits made, if any; (4) the amount of any offsets against rent, if any; and (5) that the tenant has no defenses against the payment of rent accruing under the terms of his lease agreement. Seller shall, at closing, tender to Buyer the amount of any security deposits and advance rental payments received. If any tenants present claims for offsets against rent or defenses against the payment of rent which are unacceptable to Buyer, Buyer shall so notify Seller in writing. Seller shall promptly undertake to eliminate or modify such unacceptable offsets or defenses. In the event Seller is unable to do so within days after receipt of written notice. Buyer may terminate this agreement and Earnest Money shall be refunded with no Broker's fee due. Seller shall deliver to Buyer all existing leases and, service and/or warranty contracts applicable to the premises within of this contract. Buyer shall have days from receipt of those contracts to disapprove of same in writing to Seller, and Buyer may terminate this agreement and Earnest Money shall be refunded with no Broker's fee due. At closing the cost of any service and/or warranty contracts shall be prorated. 12. BROKER'S FEES: [ ] A. McQueen Company, Realtors Listing Broker ( 96) and Co -Broker ( 96) as Real Estate Broker (the Broker) has negotiated this sale and Seller agrees to pay Broker in County, Texas, on consummation of this sale a total cash fee of $ or % of the total Sales Price or as per separate written agreement, which Escrow Agent shall pay from the sale proceeds. [ X] B. Seller agrees to pay Listing Broker the fee specified by separate agreement between Listing Broker and Seller. Escrow Agent is authorized and directed to pay Listing Broker said fee from the sale proceeds. 13. CASUALTY LOSS. If, prior to Closing, any part of Property is damaged or destroyed by fire or other casualty loss. Seller shall restore the same to its previous condition as soon as reasonably possible, but in any event by Closing Date; and if Seller is unable to do so without fault, this contract shall terminate and Earnest Money shall be refunded with no Broker's fee due. 14. DEFAULT. If Buyer fails to comply herewith, Seller may either enforce specific performance or terminate this contract and receive the Earnest Money as liquidated damages, one-half of which (but not exceeding the Broker's fee recited in Section 12) shall be paid by Seller to Broker in full payment for Brokers services. If Seller is unable without fault to deliver Title Policy or to make any non -casualty repairs required herein within the time herein specified, Buyer may either terminate this contract and receive the Earnest Money as the sole remedy, and no Broker's fee shall be earned, or extend the time up to 14 days. If Seller fails to comply herewith for any other reason, Buyer may (i) terminate this contract and receive the Earnest Money, thereby releasing Seller from this contract (ii) enforce specific performance hereof and/or (iii) seek such other relief as may be provided by law. If completion of sale is prevented by Buyer's default, and Seller elects to enforce specific performance, the Broker's fee is payable only if and when Seller collects damages for such default by suit, compromise, settlement or otherwise, 'and after first deducting the expenses of collection, and then only in amount equal to one-half of that portion collected, but not exceeding the amount of Broker's fee. 15. CONDEMNATION. If any part of the Property is condemned prior to Closing Date, Seller shall promptly give Buyer written notice of such condemnation and Buyer shall have the option of either applying the proceeds on a pro rata basis of any condemnation award to reduce the Sales Price provided herein or declare this Contract terminated by delivering written notice of termination to Seller and Earnest Money shall be refunded to Buyer with no Broker's fee due. 16. ATTORNEY'S FEES. Any signatory to this contract who is the prevailing party in any legal proceeding against any other signatory brought under or with relation to this contract or transaction shall be additionally entitled to recover court costs and reasonable attorney fees, and all other litigation expenses, including deposition costs, travel, and expert witness fees, from the non - prevailing party. 17. REPRESENTATIONS. In addition to other representations made herein, Seller represents that unless securing payment of the Note, there will be no Title 1 liens, unrecorded lien's or Uniform Commercial Code liens except those specified in paragraph 26 against any of the Property on Closing Date. that loan(s) will be without default, and reserve deposits will not be deficient. If any representation above is untrue this contract may be terminated by Buyer and the Earnest Money shall be refunded without delay. Representations shall survive closing. 18. NOTICES. Any notice or communication required or permitted hereunder shall be deemed to be delivered, whether actually received or not, when deposited in the United States mail, postage fully prepaid, registered or certified mail, and addressed to the intended recipient at the address on the signature page of this contract. Any address for notice may be changed by written notice delivered as provided herein. 19. INTEGRATION. This contract contains the complete agreement between the parties and cannot be varied except by the written agreement of the parties. The parties agree that there are no oral agreements, understanding, representations or warranties which are not expressly set forth herein. 20. BINDING EFFECT. This contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, representatives, successors and assigns where permitted by this contract. The effective date of this contract shall be the date upon which the last party signs. 21. TERMINATION OF OFFER. Unless accepted by Seller, as evidenced by Seller's signature hereto and delivered to Buyer by 5:00 p.m., the 13th day of April 19 91 , this offer to purchase shall be null and void and all parties hereto shall stand relieved and released of any and all liability or obligations hereunder and all Earnest Money shall be returned to Buyer. 22. ASSIGNMENT. [ ] A. Buyer may not assign this contract. [X ] B. Buyer may assign this Contract and all rights hereunder and shall be relieved of any future liability under this Contract provided the assignee shall assume in writing all the obligations of Buyer hereunder. (TAR-029) 2/85 Page 3 of 4 Pages 23. TEXAS LAW TO APPLY. This agreement shall be construed under and in accordance with the laws of me state of lexas, and all obligations of the parties created hereunder are performable in Lubbock County, Texas. 24. LEGAL CONSTRUCTION. In case any one or more of the provisions contained in this contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof and this contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 25. TIME. Time is of the essence. 26. SPECIAL PROVISIONS. (This section to include additional factual data relevant to the sale which may include addendums.) 27. THE PROPERTY HEREIN IS BEING PURCHASED "AS -IS." subject to the conditions set forth in Exhibit "A" attached hereto and made a part hereof for all purposes: 27. CONSULT YOUR ATTORNEY. This is intended to be a legally binding contract. This contract constitutes the entire agreement between the parties and their real estate agents, there being no oral agreements, representations, conditions, or warranties, express or implied, in addition to this contract. 28. PRINCIPAL DISCLOSURE. [ ] The Buyer of this property is a licensed real estate agent and is acting as a principal in this transaction. [ ] The Seller of this property is a licensed real estate agent and is acting as a principal in this transaction. EXECUTED by Seller on this the �� day of ✓�n / 119 . JackK een 87056• SELLR FuErrr's Inc. LISTING BROKER LICENSE NO. M By: Tres Ja Title 4505 Ave. Q, Lubbock, TX 79412 (806) 747-3431 Address Telephone EXECUTED by Buyer on this the 11th By; N/A day of April 91 19 BUYERCity of Tai�b=k j By: .1— d CO -BROKER LICENSE NO. Mayor Pro—Tem Title P.O. Box 2000, Lubbock, TX 79457 Address Telephone Receipt of S 1, 000. 00 Earnest Money is acknowledged in the form of check Escrow Agent By [Note: This form has been prepared by Babb & Hanna, P.C., attorneys for the Texas Association of REALTORS (TAR). Babb & Hanna, P.C. has approved this form for use by TAR member brokers and salespersons for the purpose of selling improved or unimproved commercial real property. This form has not been drafted for a specific transaction, therefore, the parties are advised to consult an attorney of their choice before signing.] (TAR-029) 2/85 Page 4 of 4 Pig" EXHIBIT nAn However, this contract is contingent on Exxon Company of U.S.A. entering into an agreement with the City of Lubbock, to complete a remediation program undertaken by Exxon for corrective action in response to releases of petroleum products from underground petroleum storage tanks previously located in, on, and under this property, which is the subject matter of this Contract of Sale, said corrective action to be completed in compliance with the rules, regulations and directives of the Texas Water Commission and any other regulatory agency having jurisdiction. This Contract is further conditioned as follows: a. Exxon will agree to hold the City of Lubbock harmless from all claims of any nature arising as a result of the prior release of petroleum products from the tanks previously located in and under the property; and b. Such agreement between the City of Lubbock and Exxon shall be executed on or before even date of the closing of this Contract of Sale.