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HomeMy WebLinkAboutResolution - 2000-R0369 - Contract Of Sale - Tommyesue Lindsey Slaughter & American State Bank - 10/12/2000Resolution No. 2000-RO369 October 12, 2000 Item No. 50 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, Buyer, and Tommyesue Lindsey Slaughter, as her sole and separate property and American State Bank, as Trustee of the Ralph Lindsey, Jr. Testamentary Trust, Sellers, and any other related documents. 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 12th y of October , 2000. 9& 1-4-d d� INDY SIT N, A OR ATTEST K this Varnell, City Secretary 6 /� 61 APPROVED AS TO CONTENT: Ed Bucy Right -of -Way Agent APPROVED AS TO F Richard K. Ca Natural Resources Attorney RKC:cp Ccdocs/COL-Slaughter-ASS. Res October 4, 2000 Resolution No. 2000-RO369 October 12, 2000 Item No. 50 CONTRACT OF SALE STATE OF TEXAS COUNTY OF LUBBOCK § This Contract of Sale (the "Contract") is made by and between Tommyesue Lindsey Slaughter, as her sole and separate property and American State Bank, as Trustee of the Ralph Lindsey, Jr. Testamentary Trust (collectively referred to herein as "Seller"), and the City of Lubbock, Texas, a Home Rule Municipal Corporation of Lubbock County, Texas (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns that certain tract of land, being located in Lubbock County, Texas, being more particularly described on Exhibit "A" 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, the fixtures, irrigation wells, piping, underground tile and any and all other improvements located on the Land (the Land, fixtures, and other improvements are collectively referred to as `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 by special warranty and reserving the oil, gas and other minerals, as set forth in Exhibit "A" attached hereto, 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 Sixty Two Thousand Five Hundred and No/100 Dollars ($262,500.00), as same may be adjusted, as set forth in Section 3.02, below (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of Two Thousand and No/100 Dollars ($2,000.00), as Earnest Money (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. 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 three (3) calendar days after the Effective Date, as defined below, Buyer shall deliver to Seller, care of American State of Bank, attn: Marion Bryant, 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 Buyer's sole cost and expense, shall cause to be furnished to Buyer (and to the surveyor, if applicable, selected to perform the survey, as contemplated below), a current Commitment for Title Insurance (the "Title Commitment") for the Land issued by Title Company. The Title Commitment shall set forth the state of title to the Land, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, mineral reservations, options, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights-of- way, ights- f -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, Buyer shall also be delivered by the Title Company, at Buyer's sole cost and expense, (i) 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/or 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, Buyer, at Buyer's sole cost and expense, may cause a current on the ground survey for the Ladd (the "Survey") to be delivered to Buyer. Seller shall furnish any affidavits, certificates, assurances, resolutions and/or any other curative materials required by the Title Company in order to amend the survey exceptions and other exceptions as required by Section 3.05 below. Unless otherwise agreed by Buyer, the description of the Land as set forth in the Survey shall be used to describe the Land in the deed to convey the Land to Buyer and shall be the description set forth in the Title Policy. The Purchase Price set forth 'in Section 2.01 shall be adjusted upon receipt of the Survey, and the number of acres over or under 350 acres shall be multiplied by Seven Hundred Fifty Dollars and NO/100 ($750.00) per acre. The result thereof shall be added to, in the case of the Survey depicting more than 350 acres, or subtracted from, in the case of the Survey depicting less than 350 acres, as applicable, the Purchase Price, as set forth in Section 2.01. 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, if obtained by Buyer, 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 ten (10) 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 ten (10) calendar day period, 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 notice in writing to Seller within forty-five (45) calendar days after the expiration of the Title Review 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. Notwithstanding anything to the contrary herein, in the event Buyer shall not provide notice of waiver of Objections within the time period prescribed above, it shall be deemed that Buyer has elected to terminate this Contract. 3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner's 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 Land, 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 exceptions amended, or deleted as follows: (i) survey exception regarding the Land must be amended to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Seller, of any required additional premium); (ii) the exception for taxes must be completed with only the year in which Closing shall occur filled in and must be annotated "not yet due and payable" (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 specific easement or use shown on the Survey); (iv) no exception will be permitted for "rights of parties in possession"; (v) no liens shall be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception(s) 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 thirty (30) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary and 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 to the extent deemed necessary by the Buyer, including without limitation, testing and/or inspection which disturbs the surface of the Property. 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, grant or any other right related to the use or possession 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 authority to sell and convey the Property to Buyer as contemplated by this Contract. Further, no party shall have any right of reversion or any other right of any kind which may or could terminate or reduce any interest or monetary value in any of the Property conveyed to Buyer, nor shall any party, other than Seller as per Section 2.01 of this Contract, be entitled to payment of any kind or nature due or related to the conveyance of any of the Property to Buyer. (e) The transactions contemplated herein, nor the compliance with any terms or provisions hereof, contravene or conflict with any provision of law, statute, regulation, license, order, or any other agreement, contract or other instrument to which Seller is a party, or to which Seller, and/or the Property, or any part thereof, may be bound or subject. (f) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and Seller has the full right, power and authority to carry out their 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 taken. (g) All utilities (including without limitation, potable 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. (h) 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 or relating to the Property or the operation thereof. (i) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property, or any part thereof, that may adversely affect the Property and/or operation or intended operation thereof, or any portion thereof, of which Seller has actual knowledge. (�) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no liens, other than liens for ad valorem taxes for the 2000 tax year. (k) All items delivered to Buyer 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. (1) The 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. (m) All Leases, as defined in Section 5.02(a), except as specifically set forth below, shall have expired or otherwise terminated on or before Closing. It is understood and agreed that the Lands are now subject to an agricultural lease for the crop years 2000 and 2001 (the "Farm Lease"). All of Seller's interest in any crop grown pursuant to such Lease harvested prior to December 31, 2000 and/or the proceeds of such crops harvested prior to December 31, 2000 and/or United States Department of Agriculture payment attributable thereto shall belong to Seller. All proceeds and/or United States Department of Agriculture payment attributable or related to any crop harvested or grazed after December 31, 2000 shall belong to Buyer. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) On or before ten (10) 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, 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"). (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 the Property 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, administrative hearing, notice of violation, or inquiry of any kind, from any authority having jurisdiction of the Property or the operation thereof, concerning, affecting or relating to the Property or the operation thereof. (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. (c) Seller shall indemnify and hold Buyer harmless from all loss, damage, liability and expense, including, without limitation, reasonable attorneys' fees, arising or incurred (i) as a result of or related to a breach of the representations, warranties, covenants and/or agreements of Seller; and (ii) as a result of or related to any liens or claims resulting from labor or materials furnished to the Property, or any part thereof, 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 as set forth in this Article V of this Contract shall survive the Closing. 5.04 Covenant of Buyer. (a) If this sale or Buyer's use of the Property after Closing results in the assessment of rollback taxes for periods prior to Closing, the assessments shall be the responsibility of Buyer, to the extent Buyer is required by law to pay such assessment. This provision 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 in this Agreement), 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, including, without limitation, items to be delivered at Closing; 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 is not obligated to perforin 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 fire or other casualty in any material manner, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Periods. Buyer is not 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 Agreement of Farm Lessee. Buyer is not obligated to perform under this Contract unless Buyer has obtained from the Lessee under the Farm Lease described in Section 5.01(m), in form and substance satisfactory to Buyer, (i) a partial release of the Farm Lease covering no more than thirty five (35) acres, effective at Closing; and (ii) an agreement by the Lessee to not occupy the Property during certain periods of time. 6.06 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. 6.07 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, including without limitation, the provisions of Article IX, below, Buyer and Seller shall have no further obligations under this Contract, one to the other. Nothing contained herein shall be construed to limit, in any way, manner or form, the remedies available to Buyer upon Seller's default. 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 later to occur of (i) October 31, 2000; (ii) the date upon which Seller cures, or Buyer waives, Buyer's Objections, as set forth in Article 111, above; or (iii) as mutually agreed on by Seller and Buyer. 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 expressly provided in this Contract to the contrary), the following items: (i) The Title Policy, in the form specified in Section 3.05; (ii) The Special 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. (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, if any, 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 the actual amount of taxes for the calendar year in which Closing shall occur shall be greater or lesser than the taxes for the preceding year, Seller and Buyer shall readjust in cash with the result behig that Seller shall pay for those taxes attributable to the period of time of such year prior to the Closing Date. 7.04. Possession at Closing. Possession of the Property shall be delivered to Buyer by Seller on the Closing Date (the "Date of Possession"), in its present condition, subject only to ordinary wear and tear. 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. Except as provided otherwise in this Agreement, Buyer and Seller are responsible for paying fees, costs and expenses associated with closing the transaction contemplated by this Contract as same are normally assessed by the Title Company in a transaction of this character. 10 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 or incorrect; or (ii) Seller shall fail 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 as Buyer's sole and exclusive remedies, do any one or more of the following: (i) Terminate this Contract by written notice delivered to Seller, 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 permissible under the terms of this Contract; (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 this 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. (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(c) 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. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may terminate this Contract and, receive the Earnest Money from the Title Company as liquidated damages. 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, including notice provided by telecopy, and (b) three (3) calendar days following the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: 0-40441j, Tommyesue Lindsey Slaughter A -f3 �r LJA "R 0 R Bastrop, Texas 78602 Telecopy: American State Bank Attn: Marion Bryant P.O. Box 1401 Lubbock, Texas 79408-1401 Telecopy:80le 71J.9 BUYER: Edward W. Bucy Right -of -Way Agent City of Lubbock P.O. Box 2000 Lubbock, Texas 79457 and Richard K. Casner Natural Resources Attorney City Attorney's Office P. O. Box 2000 Lubbock, Texas 79457 (806) 775-2221 Telecopy: (806) 775-3307 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, including the Exhibits hereto, 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. 12 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. 9.05 Risk of Loss. If damage or destruction 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 should 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 condemnation proceeds or insurance proceeds paid for damage to the Property, together with the deductible amount under Seller's insurance covering the Property. 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 condemnation proceeds or insurance proceeds and the deductible amount. Buyer shall have a period of twenty (20) days after receipt of written notification from Seller on the final settlement of all condemnation or insurance claims in which to make Buyer's election. 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 Expiration of Offer. The execution of this Contract by Seller constitutes an offer to sell the Property upon the terms hereof. Unless by 5:00 p.m., on October 12, 2000, this Contract is accepted by Buyer, the offer of this Contract shall be automatically revoked and terminated. 13 SELLER: OMMYE INDSEY SL GH ER Executed by Tommyesue Lindsey Slaughter on the day of ()p� , 2000. AMERICAN STATE BANK, AS TRUSTEE OF THE RALPH LINDSEY, JR. TESTAMENTARY TRUST, ACTING IN ITS FIDUCIARY CAPACITY AS TRUSTEE OF THE RALPH LINDSEY, JR. TESTAMENTARY TRUST AND NOT IN ITS INDIVIDUAL OR CORPORATE CAPACITY: By:,r Name: M BION CRYANT T7 n'd e_s and TrUst Of`er Title: Executed by American State Bank, as Trustee of the Ralph Lindsey, Jr. Testamentary Trust acting in its fiduciary capacity as Trustee of the Ralph Lindsey, Jr. Testamental Trust and not in its individual or corporate capacity on the day of , 2000. BUYER: Y" 4z4x--� By: WINDY SITTQ , MAYOR Executed by Buyer on the 12th day of ATTEST: ythi arneil, City Secretary /6 14 October .2000. APPROVED AS TO CONTENT: Ed Bucy, Right-of-way Agent APPROVED AS TO FORM: Richard Casner, atural Resources Attorney cp/LindseySlaughter-Contract-Redline-2-A.doc October 4, 2000 15 Resolution No. 2000-R October 12, 2000 Item No. 50 EXHIBIT "A" To Contract of Sale The following described tracts or parcels of land lying and being situated in Lubbock County, Texas, to -wit: 349.67 acres of land out of Section 47, Block P, and Section 13, Block D-6, situated in Lubbock, Lubbock County, Texas, and more fully described as follows: BEGINNING at a point in the North line of Section 47, Block P, same being 1750.35 feet east of the Northwest comer of Section 47, Block P; THENCE East along the North line of Section 47, Block P, 1746.5 feet to a point in the North line of Section 47, Block P; THENCE South 8722.8 feet to a point in the North right-of-way line of State Highway No. 114; THENCE North 89 degrees 04' West along the North right-of-way line of State Highway No. 114, 810.6 feet to a point; THENCE South 0 degrees 56' West along the North right-of-way line of State Highway No. 114, 20.0 feet to a point; THENCE North 89 degrees 04' West along the North right-of-way line of State Highway No. 114, 935.8 feet to a point; THENCE North 8717.2 feet to the PLACE OF BEGINNING. SAVE AND EXCEPT, all oil, gas and other minerals in, on and under and that may be produced from the above-described lands are hereby reserved by Seller. As used herein, the term "minerals" shall exclude (i) all substances that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the Land; and (ii) all substances which are at or near the surface of the Land. The intent of the parties hereto is that the meaning of the term "minerals" as used in this General Warranty Deed be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). 16 Resolution No. 2000-R October 12, 2000 Item No. 50 EXHIBIT "B" To Contract of Sale SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF LYNN § KNOW ALL MEN BY THESE PRESENTS That TOMMYESUE LINDSEY SLAUGHTER, as her sole and separate property and AMERICAN STATE BAND, AS TRUSTEE OF THE RALPH LINDSEY, JR. TESTAMENTARY TRUST, (herein collectively called "Grantor"), for and in consideration of the sum of TEN AND NO1100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF LUBBOCK, a Texas 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, subject to the reservations set forth below, 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 fixtures, irrigation wells, piping, underground tile and any and all other improvements located thereon (the "Property"). [Insert Permitted Exceptions] Grantor expressly reserves all oil, gas and other minerals in, on and under and that may be produced from the Lands. As used herein, the term "minerals" shall exclude (i) all substances that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the land; and (ii) all substances which are at or near the surface of the land. The intent of the parties hereto is that the meaning of the term "minerals" as used in this General Warranty Deed be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). 17 In no event shall American State Bank, in its individual capacity, as distinguished from its fiduciary capacity, ever be held liable on any agreement or indemnity or warranty of title, either expressed or implied, by virtue of the terms and provisions of this Special Warranty Deed. 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. EXECUTED the day of , 2000. THE STATE OF TEXAS § COUNTY Z Cff:ya101103 i TOMMYESUE LINDSEY SLAUGHTER AMERICAN STATE BANK, as Trustee of the Ralph Lindsey, Jr. Testamentary Trust This instrument was acknowledged before me on 2000, by Tommyesue Lindsey Slaughter. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2000. Notary Public in and for the State of Texas My Commission Expires: 18 THE STATE OF TEXAS § COUNTY 2 This instrument was acknowledged before me on 2000, by Trustee of the Ralph Lindsey, Jr. Testamentary Trust. of American State Bank, as GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of N Notary Public in and for the State of Texas My Commission Expires: 19 Resolution No. 2000-R October 12, 2000 Item No. 50 EXHIBIT "A" To Special Warranty Deed The following described tracts or parcels of land lying and being situated in Lubbock County, Texas, to -wit: 349.67 acres of land out of Section 47, Block P, and Section 13, Block D-6, situated in Lubbock, Lubbock County, Texas, and more fully described as follows: BEGINNING at a point in the North line of Section 47, Block P, same being 1750.35 feet east of the Northwest corner of Section 47, Block P; THENCE East along the North line of Section 47, Block P, 1746.5 feet to a point in the North line of Section 47, Block P; THENCE South 8722.8 feet to a point in the North right-of-way line of State Highway No. 114; THENCE North 89 degrees 04' West along the North right-of-way line of State Highway No. 114, 810.6 feet to a point; THENCE South 0 degrees 56' West along the North right-of-way line of State Highway No. 114, 2 0. 0 feet to a point; THENCE North 89 degrees 04' West along the North right-of-way line of State Highway No. 114, 935.8 feet to a point; THENCE North 8717.2 feet to the PLACE OF BEGINNING. 20 Larry Hertel, City Engineer Agenda Items and Comments — City Council Meeting for October 12, 2000 Mage 10 CITY OF LUBBOCK AGENDA ITEM SUMMARY ITEM #/SUBJECT # Consider a resolution authorizing the Mayor to execute a Contract of Safe between the City of Lubbock and the American State Bank, as Trustee of the Ralph Lindsey, Jr. Testamentary Trust and Tommy Sue Lindsey Slaughter for a parcel of land needed in Section 47, Block P and Section 13, Block D-6, Lubbock County, Texas for a Lubbock Police Department Firing Range (West of Reese Center on State Highway 114 (19t' Street)). BACKGROUND/DISCUSSION: At the July 27, 2000 City Council meeting, the Council approved a resolution authorizing the Right -of -Way Department to make an offer to the American State Bank as Trustee and to Mrs. Slaughter for 349.67 acres of land for this firing range, Instead of having to institute condemnation proceedings, the landowners have agreed to sell this property to the City. Therefore, our legal department has drafted a Contract of Sale between the City and the Sellers. Once the contract is signed, we will close as soon as possible on the property. This property is being purchased with an existing farm lease that the City will have to adjust for the gun range building site and for the year 2001. The original resolution stated 349.67 acres and an acquisition price of $262,500. A survey of the property has been completed and the actual acreage amount to be purchased is 345.85. The amount per acre remains the same at $750 per acre for a revised total consideration of $259,387.50. SUMMARYIRECOMMENDATION: The Right -of -Way Department recommends the approval of this Contract of Sale with the property owners. 2 DIY