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HomeMy WebLinkAboutResolution - 2009-R0321 - Contract Of Sale - Weingarten Realty Investors- Sell Surplus Property From TXDOT - 08/13/2009Resolution No. 2009-RO321 August 13, 2009 Item No. 5.24 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock a Contract of Sale between the City of Lubbock and Weingarten Realty Investors to sell surplus property obtained by from the Texas Department of Transportation. 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. Passed by the City Council this 13th day of August , 2009. TOM MARTIN, MAYOR ATTEST: -Pa."- --� Rebec a Garza, City Secretary APPR VE7 ASfQ CONTENT:. Rob All son, ant City Manager Development Services APPROVED AS TO FORM: z�. Linda L. Chamales, Economic Development Attorney City att / Linda / Res — Contract of Sale - Weingarten July 30, 2009 RESOLUTION NO. 2009-RO321 CONTRACT OF SALE STATE OF TEXAS § COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made effective as of the date of execution hereof by Seller (the "Effective Date"), by and between Weingarten Realty Investors ("Buyer") and the City of Lubbock, Texas, a Home Rule Municipal Corporation of Lubbock County, Texas ("Seller"). RECITALS WHEREAS, the Texas Department of Transportation ("TxDOT") owns 28,332 square feet of surplus right of way land, located in Section 200, Block A, City of Lubbock, Lubbock County, Texas, being further described in Exhibit "A", attached hereto and made a part hereof (the "Property") which it desires to sell; and WHEREAS, Seller has been notified that Seller may purchase the Property from TxDOT at the appraised value subject to approval by the Attorney General's Office; and WHEREAS, Buyer desires to purchase the Property from Seller at the appraised value plus all costs incurred by Seller in purchasing the Property from TxDOT; NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: 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 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Three Hundred Fifty -Four Thousand One Hundred Fifty and no/100 dollars ($354,150.00), the appraised value of the Property, plus any costs incurred by the City in purchasing the Property from TxDOT including, but not limited to Closing Costs, Title Policy costs, Survey costs, and recording fees (the "Purchase Price"). L:%Lcga1\Dispashions,Loc- Town & Co=n, - 126�.Co=N PSA1Conmv Contract-wri 67.doc 2.02 Escrow Account. Buyer shall deposit the sum of Three Hundred Fifty -Four Thousand One Hundred Fifty and No/100 Dollars ($354,150.00), (the "Escrow Deposit") in an Escrow Account (herein so called) with Lubbock Abstract and Title Company, 1216 Texas Avenue, Lubbock, Texas, 79401 (the "Title Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. All interest earned thereon shall become part of the Escrow Deposit and shall be applied or disposed of in the same manner as the original Escrow Account deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the remaining Escrow Deposit, together with all interest earned thereon, shall be applied to the remaining Purchase Price owed and to Closing Costs. In all other events, the Escrow Deposit, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. Within seven (7) calendar days after the Effective Date, Seller, at Buyer's cost and expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights-of- way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception"). 3.02 Survey. Buyer is causing to be prepared a current on the ground survey of the Property (the "Survey"). 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 descriptions set forth in the Title Policy. 3.03 Feasibility Period. Buyer may terminate this contract for any reason within ten (10) days after the effective date by providing Seller written notice of termination. If Buyer terminates under this Paragraph 3.03, the Escrow Deposit will be refunded to Buyer less $100.00 that Seller will retain as independent contract consideration (the "Independent Contract Consideration") for Buyer's unrestricted right to terminate. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract. Buyer has tendered the Independent Contract Consideration to Seller upon payment of the Escrow Deposit as specified in Paragraph 2.02 to the escrow agent. The Independent Contract Consideration will be credited to the Purchase Price only upon closing of the sale. Contract of Sale Page 2 of 16 3.04 Title Policy. At Closing, Seller, at Buyer's cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, on behalf of Lawyers Title Insurance Corporation, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property. If title cannot be insured by Title Company, Buyer shall have the option within the first ten days after the Effective Date of either a. Agreeing to accept title to the Property exactly as granted by TxDOT to Seller; or b. Terminating this Contract by notice in writing and receiving back the Escrow Deposit, 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. ARTICLE IV REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 4.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date (as defined in Article VI below), 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. To the best of Seller's knowledge, 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. C. The Seller will have as of the Closing Date good and marketable fee simple title to the Property, subject only to the Exceptions noted on the Title Policy. d. Seller will have as of the Closing Date 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. The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. Contract of sale Page 3 of 16 f. 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. g. To the best of Seller's knowledge, 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, have been paid and the Property will be subject to no such liens, other than liens for ad valorem taxes for years subsequent to Closing. 4.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: a. Seller shall, upon the deposit by Buyer of the sum of Three Hundred Fifty - Four Thousand, One Hundred Fifty and nol100 dollars into the Escrow Account, sign and return to TxDOT the acceptance letter for the Proposed Sale of Surplus bight of Way attached as Exhibit "B" for the purchase of the Property subject to approval of the Texas Attorney General's Office. b. When Seller is instructed by TxDOT that the purchase has been approved by the Texas Attorney General, Seller shall complete purchase of the Property from TxDOT and deposit the Deed in escrow. C. From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract or other agreement of any kind with respect to, or affecting, the Property or the Lands that will not be fully performed on or before the Closing or would be binding on Buyer after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, or permit to exist, any lien, encumbrance, or charge thereon. Contract of Sale Page 4 of 16 4.03 Covenants and Agreements of Buyer. Buyer covenants and agrees with Seller as follows: (a) Upon notification that the City has deposited the Deed from TxD©T in escrow, Buyer will immediately notify the Escrow Agent to release the sum of Three Hundred Fifty -Four Thousand, One Hundred Fifty Dollars from the Escrow Account to the City in the form of a Cashier's Check made payable to the City of Lubbock, Texas. 4.04 Survival Beyond Closing. The representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing. ARTICLE V CONDITIONS PRECEDENT TO PERFORMANCE 5.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, all of the following shall have occurred: (i) The Attorney General's office has approved the sale of the Property to the Seller as Surplus Right of Way; and (ii) 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. 5.02 Performance of Buyer's Obligations. Seller is not obligated to perform under this contract unless, within the designated time periods, all of the following shall have occurred: (i) Buyer has deposited the sum of three hundred fifty-four thousand one hundred fifty and no/100 dollars ($354,150.00) into the Escrow Account as described in 4.02(a); and (ii) The Attorney General's office has approved the sale of the Property to the Seller as Surplus Right of Way; and (ill) Buyer has performed, furnished or caused to be furnished to Seller all items required to be so performed or furnished under other sections of this Contract.. 5.03 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 Closing Date, except where specific reference is made to another date; provided, however, the Closing by Buyer shall not be deemed to be a waiver of any of Contract of Sale Page 5 of 16 Buyer's remedies if such breach of a representation or warranty is not known, or was not discovered at the time of Closing.. 5.04 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. 5.05 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. ARTICLE VI CLOSING 6.01 Date and Place of Closing. The Closing shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established with the Title Company, as Escrow Agent. The Closing Date (herein sometimes called), shall be as mutually agreed on by Seller and Buyer. 6.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller, shall deliver or cause to be delivered to Buyer or the Title Company, at Buyer's cost and expense, the following items:. (i) Seller shall deliver the Title Policy, in the form specified in Section 3.04; (ii) Seller shall deliver a Special Warranty Deed for the Property, duly executed and acknowledged in the form attached hereto as Exhibit "C", or if the title to the Property is not insurable, a Quitclaim Deed for the Property in substantially the form of the Deed obtained by Seller from TxDOT, duly executed and acknowledged; (iv) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to the Title Company, the following items: (i) The sum required by Section 2.01 (which includes any costs incurred by the City in purchasing the Property from TxDOT), less the sum released from the Escrow Account to the City for Contract of Sale Page 6 of 16 reimbursement of payment to TxDOT. All accrued interest in the Escrow Account shall be credited to the total Purchase Price and any excess shall be returned to Buyer. Payment shall be in the form of personal, 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. 6.03 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 6.04 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. Buyer is responsible for paying all other reasonable fees, costs, and expenses associated with closing the transaction contemplated by this Contract. ARTICLE VII DEFAULTS AND REMEDIES 7.01 Seller's Defaults and Buyer's Remedies. a. Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date or such later date as set forth in the Contract for those representations and warranties that expressly survive 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 option, do any one or more of the following: (i) Terminate this Contract by written notice delivered to Seller and Title Company and receive the Earnest Money, together will all interest accrued thereon; (ii) Seek any other recourse or relief that may be available to Buyer by contract, law or equity, including bringing a suit for damages or a suit for specific performance. It is expressly agreed and understood that the exercise of any right or remedy by Buyer shall Contract of Sale Page 7 of 16 not preclude the concurrent or subsequent exercise of any other right or remedy and all rights and remedies shall be cumulative. 7.02 Buyer's Default, Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails deposit the Total Purchase Price at Closing if all conditions precedent have been satisfied or waived. (b) Seller's Remedies. 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 Seller; ii. Seek any other recourse or relief that may be available to Seller by contract, law or 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 VIII MISCELLANE©US 8.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) actual receipt, and (b) the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: BUYER: Weingarten Realty Investors 2600 Citadel Plaza Dr., Suite 125 Houston, Texas 77008 Attn: Burdette HurfFman (713) 886-6973 Telecopy: ( 713) 866-6049 Contract of Sale Page 8 of 16 SELLER: Dave Booher, Right -of -Way Agent City of Lubbock P. 4. Box 2000 Lubbock, Texas 79457 (806) 775-2352 Telecopy: (806) 775-3074 Copies to: For Buyer: Weingarten Realty Investors 2600 Citadel Plaza Dr., Suite 125 Houston, TX 77008 Attn: William M. Crook (713)866-6089 Telecopy: (713) 866 6950 For Seller: Linda L. Chamales Economic Development Attorney P. d. Box 2000 Lubbock, TX 79457 (806) 775-2215 Telecopy: (806) 775-3307 8.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be perfarmed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. This Contract is performable in, and the exclusive venue for any action brought with respect hereto, shall lie in Lubbock County, Texas. 8.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 8.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. 8.05 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 finiher deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. 8.06 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 8.07 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. 8.08 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Seller under this Contract are hereby delegated by Seller to City Manager, Lee Ann Dumbauld, or her designee. 8.09 Assignment by Buyer. Buyer and Seller agree that Buyer may assign this Contract at any time without the prior written consent of Seller to (a) any entity that it controls, is controlled by, is under common control with it, is owned in whole or part by Contract of Sale Page 9 of 16 either of them, or has common ownership with either of them, or (b) Reckoning Investments, Inc., or any entity that it controls, is controlled by, is under common control with it, is owned in whole or part by either of them, or has conrnnon ownership with either of them. 8.10 Execution. This Contract may be executed in multiple counterparts, each of which shall be deemed to be an original. 8.11 REIT. Buyer is an unincorporated trust organized under the Texas Real Estate Investment Trust Act. Neither the shareholdrs of Buyer nor its Trust Managers, officers, employees, or other agents shall be personally, corporately or individually liable, in any manner whatsoever, for any debt, act, omission or obligation of Buyer, and all persons having claims of any kind whatsoever against Buyer shall look solely to the property of Buyer for the enforcement of their rights (whether monetary or nonmonetary) against Buyer. 8.12 Holidays. If any day for performance of a party's obligations hereunder falls on a Saturday, Sunday, or legal holiday, the day for performance of such obligation shall be extended to the next business day. For purposes of this Contract, the term "business day" shall mean any day that is not a Saturday, Sunday, or other legal holiday (a legal holiday being any day on which the United States Postal Service does not deliver first class mail). Signatures on jnllojvirt pages: re ttrtittclet of pa„e intentionally! liji blank Contract of sale Page 10 of 16 Signature page of Seller to Contract of Sale Executed by Seller on the 13th ATTEST: Rebeccl Garza, City Secretary APPROVED AS TO CONTENT: .�'2r- Dave Booher, Right -of -Way Agent SELLER: CITY OF LUBBOCK, TEXAS Ey: A�pe TOM MARTIN, MAYOR day of August 2009. Rob Ali , sst ity Manager/Business Development APPROVED AS TO FORM: Linda L. Chamales, Economic Development Attorney Contract of Sale Page 11 of 16 Signature page of Buyer to Contract of Sale BUYER: wMC WEINGARTEN REALTY INVESTORS, a Legal Texas real estate investment trust 11 +11 -'( By:aLj Name: M. Candace CuFcur Title: Sr. Vico Presiders Executed by Buyer this day of 14`': 2009, Contract of Sale Page 12 of 16 Resolution No. 2009-RO321 EXHIBIT "A" To Contract of Sale Legal Description of Land EXHIBIT "A" Field notes on a 0.6504 acre tract of land out of a tract of land quit claim to the State of Texas as described in Volume 6729, Page 1, Real Property Records of Lubbock County, Texas, located in Section 20, Block A, said 0.6504 acre tract of land being more particularly described by metes and bounds as follows; BEGINNING at a 1/2" iron rod with cap set in the South right-of-way line of Santa Fe Drive, for the Southwest corner of this tract which bears South 90° East a distance of 1392.87 feet and North 00° East a distance of 516,51 feet from the Southwest corner of the Southeast Quarter of Section 20, Block A, Lubbock County, Texas; (I) THENCE North 53°54' East, along the South right -of way line of said Santa Fe Drive, a distance of 192.46 feetto a 112" iron, rod with cap set in the South right-of-way line of 3rd Street for the Northwest corner of this tract; (2) THENCE South 90'° East, along the South right-of-way line of said 3rd Street, a distance of 169.63 feet to a 1/2" iron rod found at the Northwest corner of A.W. Blankenship Addition to the City of Lubbock, Lubbock County, Texas, according to the map, plat and/or dedication deed thereof recorded in Volume 477, Page 216, Deed Records of -Lubbock County, Texas and the Northeast corner of this tract; (3) THENCE South 53°54' West, along the North line of said A.W. Blankenship Addition, a distance of 374.45 feet to a 1/211 iron rod found in the East right-of-way line of Boston Avenue, at a corner of said A.W. Blankenship Addition and the Southwest corner of this tract; (4) THENCE North 11'54'36" West, along the East right-of-way line of said Boston Avenue, a distance of 109.64 feet to the Point of Beginning. CONTAINING an ares of 0.6504 acres or land. U\Lega],Pispositionstii c. Town & CO=Uy - M Cowity PSA%County Contrast-wri 07.dor Resolution No. 2009—RO321 EXHIBIT "B" To Contract of Sale Acceptance Letter to Texas Department of Transportation ACCEPTANCE OF OFFER & APPROVED VALUE Proposed Sale of Surplus Right of Way Lubbock County U.S. Highway 62182 CSJ 0380-01-053 Approximately 28,332 sq. ft. of land Mr. Douglas Eichorst, II, P.E. District Engineer Texas Department of Transportation 135 Slaton Road Lubbock, Texas 79404-5201 Re: Purchase of 28,332 square feet of land, located in Section 20, Block A, City of Lubbock , Lubbock County, Texas. Dear Sir: We have been advised that the State's approved value for the subject surplus property is $354.150.00 (Three -Hundred Fifty -Four Thousand One -Hundred Fifty and No/100 Dollars). We accept this value for the subject property. Unless this acceptance of offer and approved value has been withdrawn within the next ten (10) days, upon request by the State's Right of Way Division at a later date, we will pay said value with a Cashier's Check, in exchange for a State Quitclaim Deed and/or Release of Easement instrument(s). We also acknowledge receipt of the Appraisal Report dated May 29, 2009, prepared by Mr. Tommy Cantrell, MAI, appraising said tract of land to be conveyed to us as surplus right of way. Furthermore, I understand and agree that if there are utilities located on this surplus land, this sale and disposal will automatically be subject to the continued rights of existing utilities as provided by law. If I ever desire that these utilities be moved or adjusted, these would be made at no expense to the State. CITY OF LUBBOCK By: Dater L: Legal Dxipositiow d -or, Town &, Commy- 126%Ceunty P5.4,.Co=ty Contract-ari 07.doc Resolution No. 2009-RO321 EXHIBIT "C" To Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILEDFOR RECORD IN THE PUBLIC RECORDS:YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF LUBBOCK § KNOW ALL MEN BY THESE PRESENTS That the City of Lubbock, P. O. Box 2000, Lubbock, TX 79457 (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 (herein called "Grantee"), whose mailing address is , 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 described on Exhibit "A", attached hereto together with all the rights appurtenant to said real property (the "Property"). This conveyance and the warranty of Grantor herein contained is subject to the following: (a) the matters herein stated; and (b) all: (i) covenants, conditions, restrictions and other matters of record in the County Clerk's Office of Lubbock County, Texas, (ii) applicable zoning and building ordinances and land use regulations, (iii) matters that would be disclosed by an accurate ALTA/ACSM survey or inspection of the Property, and (iv) all unpaid taxes and assessments known or unknown (Collectively, the "Permitted Exceptions") to the full extent same are valid and pertain to the Property. GRANTEE ACKNOWLEDGES THAT GRANTEE HAS INDEPENDENTLY AND PERSONALLY INSPECTED THE PROPERTY AND THAT GRANTEE HAS ACQUIRED TITLE TO THE PROPERTY BASED UPON ITS ABILITY TO MAKE SUCH EXAMINATION AND INSPECTION. NOTWITHSTANDING ANYTHING IN THIS DEED TO THE CONTRARY, THE PROPERTY IS HEREBY CONVEYED AS IS, WHERE IS, AND WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL,(OTHER THAN THE WARRANTY OF TITLE CONTAINED IN THIS DEED), INCLUDING, BUT NOT LIMITED TO, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES AS TO (i) THE CONDITION OF THE PROPERTY OR ANY ASPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES RELATED TO SUITABILITY FOR HABITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE; (ii) THE SOIL CONDITIONS, DRAINAGE, TOPOGRAPHICAL L:'%.Lega1%DiWsitioos'dc. Town & Country - 126County PSA1Co=y Contract-wti 07.doe FEATURES OR OTHER CONDITIONS OF THE PROPERTY OR WHICH AFFECT THE PROPERTY; (iii) ANY CONDITIONS WHICH AFFECT THE PROPERTY WITH RESPECT TO ANY PARTICULAR PURPOSE, USE, DEVELOPMENTAL POTENTIAL, OR OTHERWISE, (iv) THE AREA, SIZE, SHAPE, CONFIGURATION, LOCATION, CAPACITY, QUANTITY, QUALITY, CASH FLOW, EXPENSES, VALUE, CONDITION, COMPOSITION OR AMOUNT OF THE PROPERTY; (v) ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY; AND (vi) ANY GEOLOGICAL, METEOROLOGICAL, STRUCTURAL OR OTHER CONDITION OR HAZARD OR THE ABSENCE THEREOF HERETOFORE, NOW OR HEREAFTER AFFECTING IN ANY MANNER ANY OF THE PROPERTY. 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, by, through, or under Grantor but not otherwise. EXECUTED the day of , 200, Name: Title: THE STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on 2008 by , of , a Notary Public, State of Texas My commission expires: Contract of Sale Page 16 of 16