Loading...
HomeMy WebLinkAboutResolution - 2013-R0197 - Contract Of Sale - Daniel Construction Corporation - 06/27/2013Resolution No. 2013-110=197 June 27, 2013 Item No. 5. g RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: 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 Daniel Construction Corporation, 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. Passed by the City Council on ,June 27, 2013 4LCSON, MAYOR ATTEST: Re ca Garza, City q ecretary APPROVED AS TO CONTENT: IC . Le��- - R. Keith Smith, P.E., Chief Operating Officer f Dave Booher, Right -of -Way Agent APP 'VED S TO FORM: Chad Weaver, Assistant City Attorney vw:ccdocs RES.Contract of Sale -Daniel Construction June 7, 2013 Resolution No. 2013-RO197 [fill �Y It TWO [i i7 9Mm STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made on this 27th day of June , 2013, by and between Daniel Construction Corporation (referred to herein as "Seller") and the City of Lubbock, Texas, a Texas home rule municipal corporation (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns that certain tract of land being described on Exhibit "A", attached hereto, (the "Land"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, the rights appurtenant to the Land, and the fixtures located on 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. The parties hereto acknowledge that Property is subject to a §1031 Like -Kind Exchange. 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 Seven Hundred Two Thousand Nine Hundred Twelve 04/100 Dollars ($702,912.04) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of Five Thousand and No/100 Dollars ($5,000.00), as Earnest Money (herein so called) with Stewart Title Company, 6901 Quaker Avenue, Suite 200 Lubbock, TX 79413 (the "Title Company"), as escrow agent, within three (3) business days of the Effective Date, as defined below, of this Contract. 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. 2.03 Independent Contract Consideration. Within five (5) business days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Thousand and No/100 Dollars ($1,000.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of, any other consideration or payment provided in this Contract, is non-refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within fifteen (15) calendar days after the Effective Date, Seller, at Buyer'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, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights-of- way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception"). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions, including those described in the Title Commitment as exceptions to which the conveyance will be subject and which are required to be released or cured at or prior to Closing. 3.02 Survey. Within twenty (20) calendar days after the Effective Date, Buyer, at Buyer's sole cost and expense, may cause a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. Seller shall furnish any affidavits, certificates, assurances, and/or resolutions required by the Title Company, if any, in order to amend the survey exceptions as required by Section 3.05 below. Unless otherwise agreed by Buyer, 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. Contract of Sale -Daniel Construction Corporation Page 2 of 15 The Survey may include a certified map or plot showing; (i) the plot to be covered by the deed conveying the Property to Buyer; (ii) the relation of the point of the beginning of such plot to the monument from which it is fixed; (iii) all easements showing the recording information therefor by volume and page; (iv) the established building line, if any; (v) all easements appurtenant to such plot; (vi) the boundary line of the street or streets abutting the plot and the width of such streets; (vii) any encroachments and the extent thereof in terms of distance upon said plot and any easements appurtenant thereto; (viii) the location of all structures and improvements on said plot with horizontal length of all sides and the relation thereof by distances to (a) all boundary lines of the plot; (b) all easements; (c) established building lines; and (d) street lines. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released at or prior to Closing, shall be deemed to be Objections. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer notifies Seller of Objections to any of the matters furnished to Buyer pursuant to Section 3.03, the Seller shall, within fifteen (15) calendar days after Seller is provided notice, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that are liens or security interests or 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 fifteen (15) calendar day period, such cure period shall be automatically extended an additional fifteen (15) days. If the obligation remains unsatisfied, 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 by, and only by, notice in writing to Seller within forty-five (45) calendar days after the expiration of the Title Review Contract of Sale -Daniel Construction Corporation Page 3 of 15 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 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 the Title Company, on behalf of Ticor Title Insurance Company, 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. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or commonly inserted exceptions amended or deleted, at the option of Buyer, as follows: (i) survey exception may be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Buyer, of any required additional premium); (ii) no exception will be permitted for "visible and apparent easements" or words to that effect; (iii) no exception will be permitted for "rights of parties in possession"; (iv) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exceptions it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending ninety (90) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and economic feasibility studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, Contract of Sale -Daniel Construction Corporation Page 4 of 15 for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. 4.02 Buyer to the extent allowed by law shall indemnify, defend and hold harmless Seller against any claims, costs, losses, expenses or damage to the Property suffered or incurred by Seller or that may be threatened against Seller or the Property as a result of Buyer's (or its agent's, contractor's or consultant's) inspections and review of the Property, including without limitation (i) any and all attorneys' fees or court costs incurred by Seller in connecton with any such claims or activities and (ii) any mechanic's liens or claims which may be filed on or asserted against the Property by contractors, subcontractors or materialmen performing work for Buyer and which are not fully released within five days after Seller provides Buyer written notice of their existence, but excluding any such claims, costs, losses, expenses or damage resulting merely from the disclosure of the results of any such investigations or studies by Buyer. Notwithstanding anything to the contrary herein, the covenants and indemnities by Buyer provided in this Section shall survive Closing and any termination of this Agreement by either party hereto. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 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) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct; (b) 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, except those described in the Leases, as defined in Section 5.02(a); (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions; (d) 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 Contract of Sale -Daniel Construction Corporation Page 5 of 15 enter into this Contract and to carry out Seller's obligations hereunder have been, or by the Closing, will have been taken; (e) All utilities (including without limitation, water, gas, sanitary sewer, electricity, trash removal, and telephone service) required by law or necessary for operation of the Property as it is now being operated are available to the Property in sufficient quantities to adequately service the needs of the Property; (f) 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 land owners or other persons against or affecting the Property; (g) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge; (h) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no liens, other than liens for ad valorem taxes for years subsequent to Closing; (i) All items delivered to Buyer pursuant to Section 5.02(a) and Section 5.03, below, are true, correct and complete in all respects and fairly present the information set forth in a manner that is not misleading; (j) Other than Bill Young, Weststar Commercial Realty, LLC, neither Seller nor Buyer has contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction, and has not taken any action which would result in any real estate broker commissions or finders fee or other fees payable to any other party with respect to the transactions contemplated in this Contract. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within three (3) days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease agreements and/or occupancy agreements and/or licenses of any kind or nature relating to the possession of the Property, or Contract of Sale -Daniel Construction Corporation Page 6 of 15 any part thereof, including any and all modifications, supplements, and amendments thereto; (ii) All fire, hazard, liability, builder's risk and other insurance policies held by Seller on the Property, if any; (iii) The plans and specifications with respect to the Property that Seller possesses or has the right to receive, and copies of all other engineering and architectural plans and specifications in Seller's possession or control, if any; and (iv) Within ten (10) days after the Effective Date, all valid and subsisting written warranties and guaranties relating to the Property, or any part thereof, together with written statements setting forth the unexpired term of any warranty or guaranty, and stating that they are assignable to Buyer and that the assignment will provide to Buyer full rights and benefits thereof, if any. (b) 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 service 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 or otherwise affect 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 fail to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, or permit to exist, any lien, encumbrance, or charge thereon. (v) Not enter into, or alter or amend, or otherwise modify any Lease without first obtaining the Buyer's written consent. (c) To defend, indemnify and hold Buyer harmless 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. Contract of Sale -Daniel Construction Corporation Page 7 of 15 5.03 Governmental Programs. The Property is subject to the following government programs, to wit: None. On or before five (5) days after the Effective Date, Seller shall provide to Buyer true and correct copies of all governmental program agreements. All payments due under said agreements accruing prior to Closing, shall be allocated to Seller, and all of said payments accruing after Closing shall, to the extent permitted by law, be allocated to Buyer. Seller shall execute any and all documents, agreements, contracts or other items necessary to effectuate the allocation of payments as set forth herein. 5.04 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, at Seller's sole cost and expense (except as herein expressly provided to the contrary), all of the following shall have occurred: (i) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (ii) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct, as of the Effective Date and Closing Date, except where specific reference is made to another date. 6.03 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. 6.04 Review Period. Buyer shall not be obligated to perform under this Contract if Buyer delivers written notice within the Absolute Review Period to Seller pursuant to Section 4.01, that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. Contract of Sale -Daniel Construction Corporation Page 8 of 15 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 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) five (5) days following the completion of all conditions precedent to Buyer's performance of this Contract as set forth in Article VI hereof, so long as said date is after the expiration of the Absolute Review Period, unless Buyer elects, in its sole discretion, to close prior to the expiration of the Absolute Review Period; or (ii) as mutually agreed on by Seller and Buyer. Unless provided otherwise herein or agreed upon by Buyer and Seller, Closing shall not be later than thirty (30) calendar days after the expiration of the Absolute Review Period. 7.02 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 the following items: (i) The Title Policy, in the form specified in Section 3.05; (ii) The General Warranty Deed, substantially in the form as attached hereto as Exhibit "B", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) The items described in Section 5.03; and (iv) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. Contract of Sale -Daniel Construction Corporation Page 9 of 15 (b) Bum At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Section 2.01 in the form of certified or cashier's check, check or other readily available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract, the provisions of this Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (i) Ad valorem taxes relating to the Property for the calendar year in which the 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 the Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which the Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change in land usage or ownership) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. (ii) Rollback of Taxes. Buyer shall be responsible for and shall pay for any taxes assessed against the Property if this transaction or Buyer's change in use of the Property after the Closing results in the assessment of additional taxes for periods of Seller's ownership. This obligation shall survive Closing. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 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 related to the release of any liens encumbering the Property and any such 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 and all fees and expenses related to the reasonable escrow fees of the Title Company, fees for recordation of the General Warranty Deed, survey fees and title policy fees. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract Contract of Sale -Daniel Construction Corporation Page 10 of 15 are not identified herein, such costs or expenses shall be borne by the parties as same are normally assessed by the Title Company in a transaction of this character. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 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 may, at Buyer's sole option, do any one or more of the following: (i) Terminate this Contract by written notice delivered to Seller on or before the Closing Date, in which event the Buyer shall be entitled to a return of the Earnest Money; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment; and (iii) Seek any other recourse or relief that may be available to Buyer at law or in equity, including bringing a suit for damages. It is expressly agreed and understood that the exercise of any right or remedy by Buyer shall not preclude the concurrent or subsequent exercise of any other right or remedy and all rights and remedies shall be cumulative. (c) Return of Earnest Money Deposit. On the occurrence of any event deemed by Buyer to be a default by Seller under this Contract, in addition to the exercise of rights and remedies set forth in Section 8.01, the Earnest Money, together with the interest thereon, shall be immediately returned to the Buyer by the Title Company. 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. Contract of Sale -Daniel Construction Corporation Page I 1 of 15 8.02 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 7.02(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. Seller's Remedy. If Buyer is in default under this Contract, Seller may, at Seller's sole option, do any one or more of the following: (i) Terminate this Contract by written notice delivered to Buyer on or before the Closing Date, in which event the Buyer shall be entitled to a return of the Earnest Money; (ii) Enforce specific performance of this Contract against Buyer, requiring Buyer to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment; and (iii) Seek any other recourse or relief that may be available to Seller at law or in equity, including bringing a suit for damages. It is expressly agreed and understood that the exercise of any right or remedy by Seller shall not preclude the concurrent or subsequent exercise of any other right or remedy and all rights and remedies shall be cumulative. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Vanessa Heinold Daniel Construction Corp. P O Box 1114 Victoria, Texas 77904 (361) 484-5447 Telecopy: (361) 576-2994 BUYER: Davy Booher Right -of -Way Agent 1625 13`h Street Lubbock, Texas 79401 (806)775-2352 Telecopy: (806)775-3074 Contract of Sale -Daniel Construction Corporation Page 12 of 15 Copies to: For Seller: Erich Heinold P O Box 7230 Victoria, Texas 77904 (361) 484-5371 Telecopy: (361) 576-2994 For Buyer: City Manager 1625 13th Street Lubbock, Texas 79401 (806) 775-2015 Telecopy: (806)775-2051 The parties may change their address effective in the same manner as other notices provided hereunder. 9.02 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. 9.03 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. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, successors and assigns. 9.05 Risk of Loss. If any damage to any of the Property prior to Closing has not been restored to the satisfaction of Buyer, as determined in Buyer's sole discretion, on or before the date of Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any insurance or other settlement proceeds paid for, and/or assignment of any cause of action related to, damage to the Property, together with the deductible amount under Seller's insurance covering the Property, if the settlement is through insurance proceeds. 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 claim settlement proceeds, as provided herein. Contract of Sale -Daniel Construction Corporation Page 13 of 15 Buyer shall have a period of ten (10) days after receipt of written notification from Seller on the final settlement of all claims in which to make Buyer's election. Closing shall be extended such time as reasonably necessary to allow the determination of the claim settlement proceeds by Seller. 9.06 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. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 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. 9.09 Authority. Any action that is provided to be, or may be taken by Buyer hereunder is hereby delegated by the City Council of the City of Lubbock to the Deputy City Manager of the Buyer, or his designee. 9.10 Offer. The execution of this Contract by Seller constitutes an irrevocable offer to sell and convey the Property to Buyer upon the terms provided herein. In the event that the offer made herein is not accepted by Buyer, as evidenced by execution of this Contract by Buyer, on or before twenty (20) calendar days after execution hereof by Seller, the offer made herein shall expire, unless extended by agreement of Seller. 9.11 Non -Arbitration. Both parties reserve the right to exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the parties shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. Contract of Sale -Daniel Construction Corporation Page 14 of 15 9.12 Effective Date. The Effective Date of this Contract shall be the date of execution hereof by Buyer. SELLER: DANIEL CONSTRUCTION CORPORATION Executed by Seller on the day of 2013. CITY OF LUBBOCK GLEN OBERTSON, MAYOR Executed by Buyer on the 27th day of June 2013. ATTEST: Reb cca Garza, City Secre APPROVE2�U.V TO CONTENT: �2 _ R. Keith Smith, P.E., Chief Operating Officer Dave Booher, Right -of -Way Agent APP"D AS TO FORM: Chad Weaver, Assistant City Attorney Contract of Sale -Daniel Construction Corporation Page 15 of 15 HUGO REED AND ASSOCIATES, INC. 1601 AVENUE N / LUBBOCK, TEXAS 79401 / 806-763-5642 / FAX 806-763-3891 TEXAS REGISTERED ENGINEERING FIRM F-760 TEXAS LICENSED SURVEYING FIRM 100676-00 LAND SURVEYORS EXHIBIT CIVIL ENGINEERS METES AND BOUNDS DESCRIPTION of a 3.448 acre tract of land located in Section 17, Block B, Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" square tube found in the South right-of-way line of 29th Drive as described in Volume 724, Page 453 of the Deed Records of Lubbock County, Texas, at the Northwest corner of this tract which bears S. 89'56'17" E. a distance of 20.00 feet from the original Northeast corner of Lot 300, Midway Park Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded in Volume 949, Page 587 of the Deed Records of Lubbock County, Texas; THENCE S. 89"56'17" E., along said South right-of-way line, a distance of 70.00 feet to a 3/8" iron rod found at a point of intersection; THENCE Southeasterly, continuing along said South right-of-way line, around a curve to the right, said curve having a radius of 320.78 feet, a central angle of 53°52'32" (Deed calls: 53°52'35"), a chord bearing of S. 63°04'13" E. and a chord distance of 290.64 feet to a 3/8" iron rod found at a point of intersection; THENCE S. 36006'E., continuing along said South right-of-way line, a distance of 228.13 feet to a 1/2" iron rod with cap set for the Northeast corner of Lot 301, Midway Park an Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded in Volume 1212, Page 229 of the Deed Records of Lubbock County, Texas and the Southeast corner of this tract; THENCE S. 53054'W., along the Northern boundary of said Lot 301, a distance of 105.00 feet to a 3/8" iron rod found in the East line of a 20 foot alley granted by plat recorded in Volume 1580, Page 403 of the Deed Records of Lubbock County, Texas, at the Northwest corner of said Lot 301 and a corner of this tract; THENCE N. 36006W., along said East alley line, a distance of 30.00 feet to a 1/2" square tube found at a corner of said alley and a corner of this tract; THENCE S. 53054'W., along the North line of said alley, a distance of 50.00 feet to a 1/2" iron rod with cap set for a corner of said alley and a corner of this tract; THENCE S. 08054'W., continuing along said North alley line, a distance of 14.14 feet to a 1/2" iron rod with cap set for a corner of said alley and a corner of this tract; THENCE S. 53054'W., continuing along said North alley line, a distance of 223.82 feet to a point for the most Southerly Southwest corner of this tract from whence a 1/2" iron rod with cap set for a corner of said alley bears S. 53°54" W. a distance of 100.00 feet; THENCE N. 63001'39" W. a distance of 115.53 feet to a point in the East line of said 20 feet alley for the most Westerly Southwest corner of this tract from whence a 1/2" iron rod with cap set for a corner of said alley bears S. 00°02'43" W. a distance of 100.00 feet; THENCE N. 0000243" E., along the East line of said alley, a distance of 359.82 feet to a 1/2" square tube found at a corner of said alley and a corner of this tract; Page 1 of 2 THENCE N. 44°56'50" W., continuing along said East alley line, a distance of 49.51 feet to a 1/2" square tube found at a corner of said alley and a corner of this tract; THENCE N. 00`'02'43" E., continuing along said East alley line, a distance of 81.70 feet to the Point of Beginning. CONTAINS: 150,176 square feet. CERTIFICATION TO: The City of Lubbock I, Brent Carroll, Texas Registered Professional Land Surveyor No. 5410, do hereby certify that this survey was made on the ground. A determination as to whether this property lies within a special flood hazard area was not made for this survey. October 16, 2012 (F Brent Carroll"3' Registered Professional Land Surveyor No. 5410 State of Texas s,:;J w=4:=...��,z,,,.,<y_� y,•5;r �J; ' ;, '1 If) �r 1 k' Page 2 of 2 PERIMETER AND IMPROVEMENT SURVEY OFA 3 448 ACRE TRACT LOCATED IN SECTION 17, BLOCK B LUBBOCK COUNTY, TEXAS METE1 A[f0 BWR4)I0P][Mlge HSJM1 Snvw HblVW Y ISM Il,hYdG IellaYbeal. TralgbYveehH 16MRUSa vf'a4...rr het YtrfaY 4WHf+af Wa HJq Omar4Hhaf hvaYw Tl4hp HlHtrnd4�alH laMwY Caf.Taxa, e b msl.e w HOh eaS.4N f o. i MH'1 T G a.rm arID➢t14a Im b mIAI (bOr. s f IW,WAYYher4r4J HIalYY,lY1m46af•Tarmmfblmtrrp lr e4vrYdlaedh.dd�Y Vabafm,lyafJlefhaMeval -C­Ter: TI4)'fty S )lHIT I+atrl W LYaljae+af ba,aYsaHAID Y r alTMd trde alrlHhma.Yoc TIGN®LaOssHl. �rhaY/Jm1 W YYrl�al+af W.mlel.wnmlr4lht W awlny adbef1N.11 r4a®I ellaatf)Yl1SIDadr1\fl•fl]f')aJdlvYlHi111f1I•G dadd YVH)HID V sa)n'Mdhe/SalalrH 1Wft41){m1'G,saYaYl Yet Gall I.dalWH+elya.wrHlH.II Ye a ITodaNgrtrtr WJres .r1.Hl.fmnM.4rm..maM.rl,w.a.lme.a caear.Tmaammml.mamv.or.sr.wrmerrd n•W Y Valva 111; Taryf3f HtrPdI�YHItl1Y6wT, trrdtr)wOrew�HW am M,adJbrfehe.�e.lHW V H1.aYer Hllfmhera N'Mdr�Ihtrrr h.HanY abnalbWardal hvkiftq lyUl Hl.DrIrYHYbhYC�p.iam,mhaKN.ssstHWlw Mld T@Ciro Jfp'm,Ye1 W Paaabll4 a 4iorHmID dra ITpearb bdm aerHW alfldf vH4Yex TICN[41 f)'3a'M,Ysl bfaaamirHW ab.allesHHID Meta VY Yad.N gwbav HWabf dar rfhY eaa[ t1IDfC840M31' V, mm`bY1fYq W Ifalmabl tlr.a4Ym Hr.1. V ra Vl'odHYgwtrf®HWaealda rarHWaeq T10H81lI•H r,oly 4s1 W faehaor4 a41anHJbl]rrrafHr trbarlSJHf f.m.w vHhhae br.Imma In'Ym d.tlgrtramrHW a1af�lflYm alerHlIDW M Tl�Ci Kl1Y1TY W •Yams Hll)9 Yb f faa YtrlYeim H W ID lratlal trb®virlf YY.evHhlar Yrwlra In•M d.tlgrtrarsrHW iff�lr4.l•M a4mrHlIDIDac TYIIC! N IPpV)•4fYgha irirH W a1ala4brbJfl Q frb • In•a4va Yalelea®eHW abf day TIRCe M. H'Sf]P m, aWeh1 Me W Ps aeaf M aYsars]I trer a 1/1`yaW d✓ea®eH Wlaid• vm HdaeG TNCaRm.�RJI• L.ardle ales W Lvalaf ra.aYerafll A Yertr IVYHihiehe ifIliVCYIf[ilR TYOnHWIW lYYwfbitar4adel hatelmlla49vnfr W.NI441Sdf avflherla wq rsaYsbpeel4Yaaraesr r.le.rihsgaf le.dY aaySW flrl)a4wawc46YY ay..f.