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HomeMy WebLinkAboutResolution - 2009-R0022 - Contract Of Sale - Orchard Park Investments LTD - 01/22/2009Resolution No. 2009-ROO22 January 22, 2009 ,Item No. 5.7 RESOLUTION 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 Erected to execute for and on behalf of the City of Lubbock a Contract of Sale, by and )etween the City of Lubbock and Orchard Park Investments, LTD, and all related iocurnents. Said Contract is attached hereto and incorporated in this Resolution as if Fully set forth herein and shall be included in the minutes of the Council. ted by the City Council this 22nd day of January 2009. TOM MARTIN, MAYOR ATTEST: Garza, City Secretary VED AS TO CONTENT: , Bight-ot-Way Agent OVED AS TO FORM: K, asner, First Assistant City Attorney chard/Contract of Sale -orchard Park ;cernber 11, 2008 Resolution No. 2009-ROO22 CONTRACT OF SALE STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made by and between Orchard Park Investments, LTD., a Texas limited partnership (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 2.38 acre tract of land, more or less, located in Section 17, Block E-2, Lubbock County, Texas, being more particularly described as Exhibit "A", attached hereto and made a part hereof for all purposes; and WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the Land, and any and all the rights appurtenant to the Land, the fixtures, and improvements attached to or located upon 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 Two Hundred Eighty -Five Thousand, Five Hundred Eighty 00/100 Dollars ($285,580.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100 Dollars ($1000.00), as Earnest Money (herein so called) with Service Title Company, at 1408-B Buddy Holly Avenue, Lubbock, Texas, 79401 (the "Title Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. The Earnest Money shall be invested in an interest bearing account with a financial institution in a manner acceptable to Buyer, in its reasonable discretion. 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 ten (10) calendar days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (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 twenty (20) calendar days after the execution of this Contract by Buyer (the "Effective Date"), Seller, at Seller's sole cost and expense, shall cause to be furnished to Buyer (and to the surveyor selected to perform the survey, as contemplated below), 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), mineral reservations, conditions, restrictions, options, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, casements (temporary or permanent), rights-of- way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception"). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Seller's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions, 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 thirty (30) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall cause two (2) original prints of a current on the ground survey for the Property (the "Survey") to be delivered to Buyer. In addition, Seller shall furnish any affidavits, certificates, assurances, resolutions and any other documents or materials required by the Title Company 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. The Survey shall include a certified map or plot showing: (i) the plot to be covered by the deed conveying the Property to Buyer, Contract of Sale Page 2 of 17 (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, if any, 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. Further, the certification of the Survey for the description of the Property and the map or plot, shall be addressed to Buyer (and to the Title Company, if required by the Title Company), certifying as to the above matters, signed by surveyor, bearing the current date, and registration number. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of twenty (20) 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 this Article III, the Seller shall, within twenty (20) 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. 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 twenty (20) calendar day period, 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 notice in writing to Seller within forty (40) calendar days after the expiration of the Title Review Period, in which event those Objections shall become Permitted Exceptions (herein so called), or Contract of Sale Page 3 of 17 (ii) terminating this Contract either by (i) providing notice in writing of termination; or (ii) not providing notice of waiver, as set forth in Section 3.04 (i), and upon such termination Buyer shall receive 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 Chicago 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 or common printed exceptions amended or deleted as follows: (i) survey exception shall 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 Seller, of any required additional premium); (ii) the exception for taxes must be completed with only the current year filled in (unpaid taxes for prior years, if any, may be shown on Schedule C of the Title Commitment); (iii) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any permitted specific easement or use shown on the Survey); (iv) no exception will be permitted for "rights of parties in possession"; (v) 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 sixty (60) 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 Contract of sale Page 4 of 17 Property, including without limitation, soil borings and other reasonable intrusive or invasive investigations. if Buyer determines, in its sole judgment , that the Property is not suitable, for any reason, 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. 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 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 Contract of Sale Page 5 of 17 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, if any, pursuant to Section 5.02(a), below, are true, correct and complete in all respects and fairly present the information set forth in a manner that is not misleading. (j) 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 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. (k) All Leases, as defined in Section 5.02(a), shall have expired or otherwise terminated on or before the date of Closing. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless provided otherwise, prior to the Effective Date hereof, or 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 (including a full and accurate description of any valid oral lease, agreement or license) and/or occupancy agreements and/or licenses of any kind or nature relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"). (ii) 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. (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 contract or other agreement of any kind with respect to the Property that will not be fully performed on or before Contract of Sale Page 6 of 17 the Closing or would be binding on Buyer of 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. (v) Not enter into, or alter or amend, or otherwise modify any Lease without first obtaining the Buyer's written consent. (c) To 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. 5.03 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 has been damaged by casualty Contract of Sale Page 7 of 17 in any material manner, 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 to Seller pursuant to Section 4.01, that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 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 in writing 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; or (ii) as mutually agreed on by Seller and Buyer. Closing shall not be later than forty-five (45) calendar days after the expiration of the Absolute Review Period unless extended by mutual agreement of Buyer and Seller. 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, at Seller's sole cost and expense (except as herein expressly provided to the contrary), 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) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. Contract of Sale Page 8 of 17 (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, in the form of certified or cashier's 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. In the event it is determined that the amount of taxes utilized in the described proration calculation is incorrect for the calendar year in which Closing shall occur, the party owing additional amounts under such proration shall, on or before twenty (20) days after notice, submit to the other party funds necessary to correct the proration of taxes for the calendar year in which Closing shall occur. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer on the Closing Date, in its present condition, subject only to ordinary wear and tear. Any property of the Seller which is not the subject of the transaction contemplated by this Contract shall be removed from the Property by Seller, prior to the Closing Date. Any such property not so removed shall, at the option of Buyer either; (i) become the property of Buyer; or (ii) be removed by Buyer at Seller's sole cost and expense. In the event Buyer shall elect to remove such property, Buyer shall owe no duty to protect such property, and shall in no event be liable to Seller for loss, damage, or destruction of same. Buyer may dispose of any such property in any manner it desires in its sole discretion, and retain any proceeds received by Buyer for such property. 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 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 Contract of Sale Page 9 of 17 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 date of the representation or warranty provided in this Contract; 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 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. 8.02 Buyer's Default, Seller's Remedies, Contract of Sale Page 10 of 17 (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. (b) Seller's Remedies. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may either (i) 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; or (ii) enforce specific performance of this Contract against Buyer requiring Buyer to purchase the Property subject to no liens, encumbrances, exceptions and conditions other than those shown on the Title Commitment. 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: Orchard Park Investments, LTD A a—() {0 4 Facsimile: LLL) � 44- ?-y 8 Y Copies to: X For Seller: Facsimile: BUYER: Lee Ann Dumbauld City Manager, City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 (806) 775-2228 Facsimile: (806) 775-2051 Dave Booher Right -of -Way Agent P. Q. Box 2000 Lubbock, TX 79457 (806) 775-2352 Facsimile: (806) 775-3074 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, Contract of Sale Page 11 of 17 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 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. This Section 9.05 shall survive the Closing. 9.06 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.07 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. 9.08 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. 9.09 Expiration of Offer. The execution of this Contract by Seller constitutes an irrevocable offer to sell the Property. Unless by 5:00 p.m., on January 30, 2009, this Contract is accepted by Buyer, the offer of this Contract shall be automatically revoked and terminated. Contract of sale Page 12 of 17 Executed by Seller on the X5 -014 day of 161ee-m. ale, 200 i9 . SELLER: ORCHARD PARK INVESTMENTS, LTD, a Texas limited partnership Or-eaily- 0 �',fi�2k 1iv i Frrw By: J,0 6-, rr� Name: Title: f' Executed by Buyer on the 22nd day of January 20 og . BUYER: TOM MARTIN, MAYOR ATTEST: Beco Garza, City Secretary APPROVED AS TO CONTENT: L umbauld, City Manager aime r-� Dave Booher, Right -of -Way Agent APPROVED AS T ORM: Richard Casner, First Assistant City Attorney maichar&Orchard Park -Contract of Sale November 25, 2008 Contract of Sale Page 13 of 17 Exhibit "A" To Contract of Sale Description of Property ABACU6ENGINEERING SURVEYING 2737 81ST STREET LUB80CK, TEXAS 79423 (806)745-7670 Resolution No. 2009-R0022 FIELD NOTES on a Total of 2.38 Acre tract (Net: 1.49 Acres) out of Section 17, Block E-2, Lubbock County, Texas being further described by metes and bounds as follows: BEGINNING at a found rod with orange cap (Davis) for the Southwest corner of this tract whence a found railroad spike for the Southwest corner of Section 17, Block E-2 bears S 89'51'15" W (Texas North Central Zone Bearing Basis), 84.96 feet; THENCE N 0111" W, 55.04 feet to a found rod with yellow cap; THENCE N 89051'15" E. 269.66 feet to a found rod with orange cap (Davis); THENCE N 00°11'44" W, at 6.42 feel pass a set 112" rod with orange cap marked RPLS 4460, in all 272.96 feet to a set 112" rod with orange cap marked RPLS 4460 for the most Northerly Northwest corner of this tract; THENCE N 8951'15" E, at 241.08 feet pass a set 112" rod with orange cap marked RPLS 4461 in all 270.93 feet to a set 112" rod with orange cap marked RPLS 4460 for the Northeast corner of this tract; THENCE South, 328.0 feet to a set 1/2" rod with orange cap marked RPLS 4460 in the South line of Section 17 for the Southeast corner of this tract; THENCE S 8951'15" W, with the South line of Section 17, 539.62 feet to the Place of Beginning and containing 2.38 Acres including any Right of Way. November 26, 2008 These Notes are based on a Survey Made on the Ground on September 18, 2008. J. M. Cieszinski, RPLS # 4460 Contract of Sale Page 14 of 17 EXHIBIT "B" GENERAL WARRANTY DEED STATE OF TEXAS Resolution No. 2004-80022 COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS That ORCHARD PARK INVESTMENTS, LTD, a Texas limited partnership (herein called "Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF LUBBOCK, a Home Rule Municipal Corporation (herein called "Grantee"), P. O. Box 2000, Lubbock, TX 79457, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Lubbock County, Texas being described as 2.38 acres, more or less, located in Section 17, Block E-2, Lubbock County, Texas and being more particularly described on Exhibit "A" attached hereto, together with all appurtenances, fixtures and improvements attached thereto or located thereon (the "Property"). This conveyance is subject to the following: [Insert Permitted Exceptions] TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; 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 Pale 15 of 17 EXECUTED the day of , 20 Grantor: ORCHARD PARK INVESTMENTS, LTD, a Texas limited partnership By:_ Name:. Title: THE: STATE OF TEXAS § COUNTY LUBBOCK § This instrument was acknowledged before me on the day of , 20 , by , of Orchard Park Investments, LTD., a Texas limited partnership. Notary Public, State of Texas My commission expires: Contract of Sale Page 16 of 17