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HomeMy WebLinkAboutResolution - 2020-R0307 - Real Estate Purchase and Sale Agreement - X-FabResolution No. 2020-RO307 Item No. 7.26 September 8, 2020 RESOLUTION WHEREAS, Lubbock Power & Light is the municipally owned electric utility of the City of Lubbock ("LP&L"); WHEREAS, LP&L filed before the Public Utility Commission of Texas ("PUC") its Application of the City of Lubbock Through Lubbock Power and Light for Authority to Connect a Portion of its System with the Electric Reliability Council of Texas ("ERCOT"), Docket Number 47576 (the "Interconnection Application"), on or about September 1, 2017; WHEREAS, the portion of LP&L's load subject to the Application is more particularly defined therein and herein as the "Affected Load"; WHEREAS, the Application to integrate the Affected Load into ERCOT was granted by the PUC, as evidenced by its Order dated March 15, 2018, in PUC Docket No. 47576, styled Application of the City of Lubbock Through Lubbock Power and Light for Authority to Connect a Portion of its System with the Electric Reliability Council of Texas; WHEREAS, Oncor Electric Deliver Company LLC ("Oncor"), on behalf of both Oncor and LP&L, filed before the PUC its Application of Oncor Electric Delivery Company LLC and City of Lubbock, acting by and through Lubbock Power & Light, for a Certificate of Convenience and Necessity (CCN) for the Proposed Abernathy to North to North Loop 345,115-KV Transmission Line in Hale and Lubbock Counties, Texas in order to obtain respective CCNs for the construction of transmission infrastructure ("CCN Application"); WHEREAS, the CCN Application was granted by the PUC, as evidenced by its Order dated March 12, 2020, in PUC Docket No. 49151, and further ordered the construction of transmission facilities along route 34, ending at the Oncor-owned Folsom Point Substation and connecting to LP&L's loop through the LP&L-owned Yellow House Canyon Substation (the "Order"); WHEREAS, the approved site for the LP&L-awned Yellow House Canyon Substation (the "Substation") is on land currently owned by X-Fab Texas, Inc., a corporation organized under the laws of the State of Texas ("X-Fab"), which is approximately a 10.352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, more fully described in Exhibit A attached to the Real Estate Purchase and Sale Agreement between the City of Lubbock and X-Fab ("Agreement"); WHEREAS, under the Agreement, LP&L has agreed to pay for certain title and closing costs related to the acquisition of the property as more fully outlined in the Agreement; WHEREAS, X-Fab and LP&L desire to complete the acquisition of the property necessary for the Substation; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock approves and directs the Mayor to execute that certain Real Estate Purchase and Sale Agreement by and between the City of Lubbock and X-Fab Texas, Inc., as attached hereto and incorporated herein as though fully set forth herein in detail, and any documents related thereto, and approves payment of consideration in the amount of necessary title and closing costs associated with same. BE IT FUTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock approves and accepts that certain Warranty Deed from X-Fab Texas, Inc. to the City of Lubbock for an approximately 10.352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, more fully described in Exhibit A attached to the Real Estate Purchase and Sale Agreement and incorporated herein as though fully set forth in detail. Passed by the City Council this 8 h day of September, 2020. DANIEL M. POPE, MAYOR ATTEST: Rebecca Garza, Av APPROVED AS TO CONTENT: David McCalla, Director of Electric Utilities APPROVED AS TO FORM: .fenny mi , P&L General Counsel RESOLUTION WHEREAS, Lubbock Power & Light is the municipally owned electric utility of the City of Lubbock ("LP&L"); WHEREAS, LP&L filed before the Public Utility Commission of Texas ("PUC") its Application of the City of Lubbock Through Lubbock Power and Light for Authority to Connect a Portion of'its System with the Electric Reliability Council of Texas ("ERCOT"), Docket Number 47576 (the "Interconnection Application"), on or about September 1, 2017: WHEREAS, the portion of LP&L's load subject to the Application is more particularly defined therein and herein as the "Affected Load"; WHEREAS, the Application to integrate the Affected Load into ERCOT was granted by the PUC, as evidenced by its Order dated Marcie 15, 2018, in PUC Docket No. 47576, styled Application of the City of Lubbock Through Lubbock Power and Light_jor Authority to Connect a Portion of its System with the Electric Reliability Council of Texas; WHEREAS, Oncor Electric Deliver Company LLC ("Oncor"), on behalf of both Oncor and LP&L, filed before the PUC its Application of Oncor Electric Delivery Company LLC and City of Lubbock, acting by and through Lubbock Power & Light, .for a Certificate nfConvenience and Necessity (CCN) far the Proposed Abernathy to North to North Loop 345..:115-KV Transmission Line in FIale and Lubbock Counties, Texas in order to obtain respective CCNs for the construction of transmission infrastructure ("CCN Application"); WHEREAS, the CCN Application was granted by the PUC, as evidenced by its Order dated March 12, 2020, in PUC Docket No. 49151, and further ordered the construction of transmission facilities along route 34, ending at the Oncor-owned Folsom Point Substation and connecting to LP&L's loop through the LP&L-owned Yellow House Canyon Substation (the "Order"); WHEREAS, the approved site for the LP&L-owned Yellow House Canyon Substation (the "Substation") is on land currently owned by X-Fab Texas, Inc., a corporation organized under the laws of the State of Texas ("X-Fab"), which is approximately a 10352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas. more fully described in Exhibit A attached to the Real Estate Purchase and Sale Agreement between the City of Lubbock and X-Fab ("Agreement"); WHEREAS, under the Agreement, LP&L has agreed to pay for certain title and closing costs related to the acquisition of the property as more fully outlined in the Agreement; WHEREAS, X-Fab and LP&L desire to complete the acquisition of the property necessary for the Substation; NOW THEREFORE, BE IT RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Electric Utility Board hereby authorizes the Chairman of the Electric Utility Board to execute that certain Real Estate Purchase and Sale Agreement by and between X-Fab Texas, Inc., a Texas corporation, and the City of Lubbock, a Texas home -rule municipal corporation as attached hereto and incorporated herein as though fully set forth herein in detail, and any documents related thereto, and approves payment of consideration in the amount of necessary title and closing costs associated with same, and further recommends approval by the City Council to approve and authorize same. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT the Electric Utility Board approves that certain Warranty Deed from X-Fab Texas, Inc. to the City of Lubbock for an approximately 10.352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, more fully described in Exhibit A attached to the Real Estate Purchase and Sale Agreement, as attached hereto and incorporated herein as though fully set forth herein in detail. BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF LUBBOCK: THAT this Resolution shall be null and void if the City Council shall not likewise approve and authorize the attached Real Estate Purchase and Sale Agreement within sixty (60) days of the date hereof. Passed by the Electric Utility Board this 18th day of August, 2020. DAN ODOM, CHAIRMAN Greg T or, rd Secretary APPROVED AS TO CONTENT: Lz�:)",WA David McCalla, Director of Electric Utilities APPROVED AS TO FORM: Jen S it , General Comasel Resolution No. 2020-RO307 REAL ESTATE PURCHASE AND SALE AGREEMENT EFFECTIVE DATE: L4LLL_.. LL, 2020 SELLER: X-Fab Texas, Inc., a Texas corporation SELLER'S MAILING ADDRESS: 2301 N University, Lubbock, TX 79415 BUYER: City of Lubbock, a Texas home -rule municipal corporation BUYER'S MAILING ADDRESS: Citizens 'Power, 1314 Avenue K, Lubbock, Texas 79401 Subject to the terms, covenants, and conditions hereinafter stated, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller the herein described Property. Seller and Buyer are sometimes referred to herein separately as "Party" or collectively as the "Parties". 1. PROPERTY: As used in this Contract, the term "Property" means the following: A. That certain tract of land situated in Lubbock County, Texas, described as follows: An approximately 10.352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, said 10.352 acre tract being further described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "land"); together with (i) all improvements and fixtures situated thereon ("improvements"), (ii) all rights, privileges and appurtenances pertaining thereto, including but not limited to easements, rights -of -way, licenses, permits, and other similar interests ("appurtenances") existing in connection with the beneficial use and enjoyment of the Property, and (iii) ail minerals, oil, gas, and other hydrocarbon substances appurtenant to the Property that are not previously reserved. 2. CONSIDERATION/DONATION: X-Fab Texas, Inc. (herein "X-Fab") agrees to irrevocably donate and convey by donation all right. title, and interest, in and to the Property to the City of Lubbock (herein "City"), and City agrees to accept the Property from X-Fab on the terms and conditions set forth herein. X-Fab is donating the Property as a charitable gift. X-Fab and the City agree that X-Fab shall receive no payment, commitment, or remittance for the donation of the Property. X-Fab further agrees that once closed, the transaction described herein is irrevocable. Pursuant to TEx. Gov. Coot:. § 51.076(a) and the City of Lubbock Code of Ordinances, Chapter 1, Article II, Section 5, City agrees to accept the charitable contribution of the Property, and further declares that the City intends to use the Property for public purposes within the meaning of Internal Revenue Code § 170(c)(1). Following the Closing of this REAL ESTATE PURCHASE AND SALE AGREEMENT 681931VA 00672610075679 Page I transaction and Donation, City shall have full right and title to the Property to use it as it sees fit for public purposes. 3. APPROVAL/GOVERNMENTAL AUTHORITY: The City (Buyer) seeks to acquire the Property in order to comply with its obligations under the Texas Public Utility Commission (PUC) Order dated March 12, 2020, in PUC Docket No. 49151, where the PUC ordered the construction of certain electric transmission facilities, including, but not limited to a new electrical substation ("Substation"); the Property will be the site of the City's construction of the new Substation. Buyer is authorized to own real property pursuant to Texas Local Government Code Section 51.076 and City of Lubbock Charter, Article 2, Section 5. Buyer's obligation to close under this contract is subject to an affirmative vote in favor of the proposed transaction and all of the terms within this Agreement by the Electric Utility Board of the City of Lubbock and the City Council of Lubbock. 4. TITLE POLICY AND TITLE APPROVAL: A. Title Policy: Seller shall furnish to Buyer, at Seller's expense, an Owner's Policy of Title Insurance (the "Title Policy") issued by Service Title in Lubbock, Texas ("Title Company"), as agent for a title insurance company acceptable to Buyer, and dated at or after closing. The Title Policy shall guarantee Buyer's title to be good and marketable as of the date of closing. B. Commitment: Within a reasonable time after the Title Company receives a fully executed copy of this contract, Seller shall deliver to Buyer a commitment for a Title Policy (the "Commitment"), stating the condition of the title to the land, together with legible copies of all documents evidencing any exceptions in the Commitment (the "Exception Documents"). C. Title Approval: Buyer shall have thirty (30) days after receipt of the Commitment and the Exception Documents, while being aware of the Closing Date set out herein, to deliver written notification to Seller of Buyer's objections to any of the matters in the Commitment and the Exception Documents. The Closing Date will be extended, if necessary, to accommodate this review period. If no objections are received, then Buyer shall be deemed to have accepted all matters shown on the Commitment and the Exception Documents; provided, however. that in no event will liens, money encumbrances, or other items shown on Schedule C of the Commitment be deemed to be Permitted Exceptions, and Seller must, at or prior to closing, discharge or obtain releases of all liens and money encumbrances and cure all other items shown on Schedule C of the Commitment, whether or not Buyer objects to such items. The matters that Buyer either approves or is deemed to have approved are considered Permitted Exceptions. If objections are raised by Buyer, Seller shall have ten (10) days from the date such objections are disclosed to cure the same, and the parties will amend the Closing Date set out herein. If the objections are not timely cured, Buyer may, at Buyer's option (1) waive the REAL ESTATE PURCHASE AND SALE AGREEMENT Page 2 681931 v.1 00672610075679 unsatisfied objections and complete the purchase, subject to Seller's obligations to remove all liens and money encumbrances and cure all other items shown on Schedule C of the Commitment, or (2) terminate this contract, and neither Party shall have any further rights or obligations under this contract, except as otherwise expressly provided in this contract. 5. INSPECTION OF THE PROPERTY: A. Entry Onto The Property: The parties to this Agreement are also negotiating a Temporary License Agreement, intended to grant Buyer access to and use of the Property for a certain time period. Upon the earlier to occur of: (1) the execution of the Temporary License Agreement, or (2) the execution of this contract, Buyer shall have immediate access to the Property and may enter thereon to inspect it at Buyer's cost, subject to the following: (1) If the Property is materially damaged as a result of Buyer's inspections, Buyer must promptly return the Property to as near its pre -inspection condition as is reasonably practicable; (2) Buyer must deliver to Seller copies of all inspection reports that Buyer prepares or receives from third -party consultants or contractors; and (3) Buyer must abide by any other reasonable entry rules imposed by Seller. B. Indemnity: TO TILE FULLEST EXTENT POSSIBLE BY LAW, SELLER AGREES TO PROTECT, INDEMNIFY, DEFEND AND HOLD HARMLESS, BUYER, AND BUYER'S SUCCESSORS AND ASSIGNS, ("INDEMNITEES") FROM AND AGAINST ALL CLAIMS, DEMANDS, CAUSES OF ACTION, SUITS, LOSSES, DAMAGES, (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY'S FEES AND COSTS) INCURRED BY OR ASSERTED AGAINST BUYER IN ITS INVESTIGATION OF THE PROPERTY AND ARISING FROM OR IN CONNECTION WITH SELLER'S NEGLIGENCE OR INTENTIONAL NEGLECT WITH REGARD TO THE CONDITION OF THE PROPERTY. 6. SELLER'S REPRESENTATIONS TO BUYER: Seller represents to Buyer that the following are true and correct as of the Effective Date and will be true and correct on the Closing Date (the representations and wan -antics of Seller in this Section will survive closing). A. Authority: Seller is a Texas corporation duly formed under the laws of the state of Texas and is in good standing with the Texas Secretary of State and Texas Comptroller's office, and the individuals signing on behalf of Seller below have the requisite authority to perforin its obligations under this contract. This contract is binding on Seller. This contract is, and all documents required by this contract to be executed and delivered to Buyer at closing will be, duly authorized, executed, and delivered by Seller. REAL ESTATE PURCHASE AND SALE AGREEMENT Page 3 681931 v.1 006726/0075679 B. Litigation: Seller is not aware of any litigation pending or threatened against Seller that might affect the Property or Seller's ability to perform its obligations under this contract. C. Violation Of Laws: Seller has not received written notice and has no actual knowledge of any violation of any law, ordinance, regulation, or requirements affecting the Property, Seller's use, or Buyer's intended use of the Property. D. Easements and Appurtenances: Seller has not received any written notice and has no actual knowledge that any easement, license, permit. or appurtenances necessary to use the Property in the manner in which it is currently being used has expired or will not be renewed on expiration or that any material condition will be imposed to use or renew the same. E. No Other Obligation To Sell Or Restriction Against Sale: Seiler has not obligated itself to sell all or any portion of the Property to any person other than Buyer. Seller's performance of this contract will not cause a breach of any other agreement or obligation to which Seller is a party or to which it is bound. F. No Liens: On the Closing Date, the Property will be free and clear of all mechanic's and materialman's liens and other liens, assessments, security interests, and encumbrances of any nature not arising by, through, or under Buyer, and no work or materials will have been furnished to the Property by Seller that might give rise to mechanic's, materialman's, or other liens against the Property other than work or materials to which Buyer has given its consent in writing. G. Environmental: (1) Seller represents to Buyer that the Property is subject to the (i) Texas Risk Reduction Restrictive Covenant and Deed Notice, and the terms therein, as tiled in instrument number 2014032758 of the Deed Records of Lubbock County, Texas, together with (ii) City Council Ordinance No. 2013-0-0058, dated July 11, 2013, and pursuant to the terms of those two instruments, the Property is subject to certain restrictions regarding the use of groundwater from the Property. The Parties agree that Buyer may hire an engineer, at Buyer's expense, to undertake what is commonly known in the industry as a "Phase I" Environmental Site Assessment ("Phase I Report"). Upon Buyer's review of the Phase I Report, Buyer may (1) give Seller and Escrow Agent written notice of Buyer's acceptance of the Phase I Report, or (2) if additional work, testing, or sampling is recommended by the engineer in the Phase I Report, Buyer may determine to undertake a "Phase 11" environmental site assessment. Should the Phase 1 Report or Phase II Report identify any conditions that, in Buyer's sole discretion, render the Property unfeasible for commercial or REAL ESTATE PURCHASE AND SALE AGREEMENT Page 4 681931 v.l 00672610075679 industrial use, Buyer may (1) provide Seller with notice of the condition and request that Seller remedy or remove the condition precedent to Buyer's obligation to close, (2) elect either to complete the purchase subject to the condition, or (3) terminate this Contract and have no further obligation Under this Agreement. (2) Except as specifically provided herein, Seller hereby represents to Buyer that to Seller's knowledge: (i) no mandatory statutory disclosure document concerning the environmental condition of the Property needs to be provided; (ii) the Property is not in any way contaminated with any hazardous material or substance; (iii) the Property does not appear on any state or federal CERCLA (Comprehensive Environmental Responsibility, Compensation, and Liability Act) or Superfund lists; (iv) neither Seller nor any of Seller's employees, agents, licensees, invitees, contractors, or other persons directly or indirectly under the control of Seller have placed or permitted the placement of any unauthorized hazardous materials or substances in, on, or over the Property; (v) no other party has placed any unauthorized hazardous materials or substances in, on, or over the Property; and (vi) the Property is not subject to any federal, state or local "Superfund" lien, proceedings, claim, Iiability or action, or the threat or likelihood thereof, for the clean-up, removal or remediation of any hazardous substance from the Property. (3) Except as specifically provided herein, no hazardous materials are or have been placed, held, located, discharged, released, treated, allowed to escape, or disposed of on or under the Property by or under the direction of Seller, and to Seller's actual knowledge no part of any improvement on the Property contains any asbestos or asbestos -containing materials, any polychlorinated byphenyls in the form of electrical transformers, fluorescent light fixtures with ballasts, cooling oils or otherwise, nor any lead -based paint, nor any underground storage tanks. (4) Seller has never used any portion of the Property, and to the best of Seller's knowledge no portion of the Property has been used, for a sanitary landfill or as a dump site or storage site (whether temporary or permanent) for any hazardous materials. H. Right of Access: As of the Effective Date, the Property has a legal right and practicable means of access from a public road. 7. BUYER'S REPRESENTATIONS TO SELLER: Buyer represents to Seller that the following are true and correct as of the Effective Date and will be true and correct on the Closing Date. A. Authority: Buyer is a Texas home -rule municipal corporation operating under the laws of the state of Texas, with authority to perform its obligations under this contract, subject to the condition set forth herein that Buyer's obligations under this REAL ESTATE PURCHASE AND SALE AGREEMENT Page 5 661931 v.1 006726/0075674 contract is contingent upon an affirmative vote in favor of the proposed transaction and all of the terms within this Agreement by the Electric Utility Board of the City of Lubbock and the City Council of the City of Lubbock. Subject to the conditions set forth herein, this contract is binding on Buyer. This contract is, and all documents required by this contract to be executed and delivered to Seller at closing will be, duly authorized, executed, and delivered by Buyer. 8. CONDITION OF THE PROPERTY UNTIL CLOSING: A. Maintenance And Operation: Until closing, Seller will (i) maintain the Property in at least as good of a condition and state of repair as it existed as of the Effective Date, except for reasonable wear and tear and casualty damage; and (ii) compl3. with all contracts, laws, and governmental regulations affecting the Property and Seller's operations on and occupancy of the Property. B. Casualty Damage: If any part of the Property is damaged or destroyed by fire, windstorm, or other casualty prior to the Closing Date, Seller shall restore the same to its previous condition as soon as reasonably possible, but in any event by the Closing Date. If Seller is unable to do so without default, Buyer may terminate this contract if the casualty damage that occurs before closing would materially affect Buyer's intended use of the Property, by giving written notice to Seller. If Buyer does not terminate this contract, Seller will (a) convey the Property to Buyer in its damaged condition, (b) assign to Buyer all of Seller's rights under any property insurance policies covering the Property, and (c) pay to Buyer the amount of the deductibles and coinsurance provisions under any insurance policies covering the Property, but not in excess of the cost to repair the casualty damage. If Seller has not insured the Property and Buyer does not elect to terminate this contract in accordance with this section, the Sales Price will be reduced by the cost to repair the casualty damage. 9. CLOSING: A. Closing: The closing of this transaction shall be conducted at the Title Company on or before November 30, 2020, (the "Closing Date"), or such other time and place as may be agreed upon by the Parties, unless some valid objection to the title is made by Purchaser requiring additional time within which to meet and cure the same, in which event it shall be consummated within a reasonable time after meeting and curing such objections. At closing, the following will occur: (1) Seller will deliver to Buyer a general warranty deed and bill of sale conveying good and marketable title to the land and improvements; (2) The Parties will execute and deliver the Closing Documents and any documents required by Title Company; (3) Title Company will be instructed to record the deed and the other closing documents directed to be recorded, and distribute documents and copies in accordance with the Parties' written instructions; and REAL ESTATE PURCHASE AND SALE AGREEMENT 681931VA 006726/0075679 Page (4) Seller will deliver possession of the Property to Buyer, flee of any liens. leases, or other encumbrances, subject to the Permitted Exceptions existing at closing and any liens and security interests created by Buyer at closing to secure financing for the Sales Price. B. Transaction Costs: At Closing, the Parties will pay the costs associated with this transaction as follows: (1) Seller will pay the costs to obtain, deliver, and record releases of any liens required to be released in connection with the sale; the costs to record documents to cure any title objections agreed or required to be cured by Seller and to resolve matters shown in Schedule C of the Title Commitment; and certificates or reports of ad valorem taxes; any other costs expressly required to be paid by Seller in this contract; and Seller's attorney's fees and expenses, (2) Buyer will pay for the basic charge for the Title Policy; the costs to prepare the deed and bill of sale; Title Company's inspection fee to delete from the Title Policy the customary exception for rights of parties in possession; the additional premium for the survey/area and boundary deletion in the Title Policy; the costs of any UCC search; the costs to obtain. deliver, and record all documents other than those to be obtained or recorded at Seller's expense; any other costs expressly required to be paid by Buyer in this contract; and Buyer's attorney's fees and expenses. C. Ad Valorem Taxes: The Parties recognize and acknowledge that Buyer is a tax- exempt entity. Buyer agrees to submit all requisite documents and application(s) with the Lubbock Central Appraisal District to confirm that following Closing, the Property will be owned by a tax-exempt entity, and no further tax will be due. Seller agrees that ad valorem taxes due for the Property for the calendar year of closing will be calculated as of the Closing Date, and Seller shall pay those taxes in full at Closing to the Lubbock Central Appraisal District. If the assessment for the calendar year of closing is not known at the Closing Date, the calculation will be based on tax rates for the previous tax year applied to the most current assessed value. Seller will promptly notify Buyer of all notices of proposed or final tax valuations and assessments that Seller receives after the Effective Date and after closing. Any and all prior or past due taxes (including any penalties, interest, and attorney's fees) that are still due as of closing will be paid by Seller at closing. E. Issuance of Title Policy: Seller will cause Title Company to issue the Title Policy to Buyer as soon as practicable after closing. 10. DEFAULT AND REMEDIES: REAL ESTATE PURCHASE AND SALE AGRYEd1ENT 681931v.1 00672610075679 Page 7 A. Seller's Default; Buyer's Remedies before Closing: if Seller fails to perform any of its obligations under this contract or if any of Seller's representations are not true and correct as of the Effective Date or on the Closing Date (`Seller's Default"), Buyer may (i) terminate this contract by giving notice to Seller on or before the Closing Date, or (ii) enforce specific performance of this contract. If Seller's Default occurs after Buyer has incurred costs to investigate and inspect the Property and Buyer terminates this contract in accordance with the previous sentence, Seller will also pay to Buyer as liquidated damages the total of Buyer's actual out-of- pocket expenses incurred after the Effective Date to investigate and inspect the Property ("Buyer's Expenses"), the same to be paid to Buyer within ten (10) days after Seller's receipt of an invoice from Buyer stating the amount of Buyer's Expenses and accompanied by reasonable evidence of same. B. Seller's Default; Buyer's Remedies after Closing: If Seller's representations are not true and correct at closing for reasons reasonably within Seller's control or knowledge and Buyer does not becorne aware of the untruth or incorrectness until after closing, Buyer will have all the rights and remedies available at law or in equity. If Seller fails to perform any of its obligations under this contract that survive closing, Buyer will have all rights and remedies available at law or in equity. C. Buyer's Default; Seller's Remedies before Closing: If Buyer fails to perform any of its obligations under this contract ("Buyer's Default"), Seller may, as its sole and exclusive remedy, terminate this contract by giving notice to Buyer on or before the Closing Date, thereby releasing Buyer from any further obligations under this contract. D. Buyer's Default; Seller's Remedies after Closing: After closing, if Buyer fails to perform any of its obligations tinder this contract that survive closing, Seller will have all rights and remedies available at law or in equity unless otherwise provided by the Closing Documents. E. Attorney's Fees: If either party retains an attorney to enforce this contract, each party will be responsible for its own attorney's fees and court and other costs. 11. MISCELLANEOUS PROVISIONS: A. Notices: Any notice required by or permitted tinder this contract must be in writing. Any notice required by this contract will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service. postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this contract. Notice may also be given by personal delivery, facsimile transmission, electronic mail transmission, or other commercially reasonable means and will be effective when actually received, provided that (a) any notice received on a Saturday, Sunday, or national holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or national holiday and (b) any notice received after 5:00 P.m. local time at the place REAL ESTATE PURCHASE AND SALE ACREMENT 681931v.1 006726/0075679 Page 8 of delivery on a day that is not a Saturday, Sunday, or national holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or national holiday. Any address for notice may be changed by not less than ten (1 Q) days' prior written notice delivered as provided herein. B. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the Parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. C. Entire Agreement- This contract, its exhibits, and any closing documents delivered at closing constitute the entire agreement of the Parties concerning the sale of the Property by Seller to Buyer. There are no representations, warranties, agreements, or promises pertaining to the sale of the Property by Seller to Buyer that are not in those documents. D. Amendment: 'this contract may be amended only by an instrument in writing signed by the Parties, and duly authorized by governing bodies, as applicable. E. Assignment: Buyer may assign this contract and Buyer's rights under it, and any such Assignment must be in writing and a copy of any such Assignment shall be provided to Seller. F. Survival: The provisions of this contract that expressly survive termination or closing and other obligations of this contract that cannot be performed before termination of this contract or before closing survive termination of this contract or closing, and the legal doctrine of merger does not apply to these matters. G. Choice of Law; Venue: This contract is to be construed under the laws of the state of Texas, without regard to choice -of -law rules of any jurisdiction. Venue is in Lubbock County, Texas. H. Waiver of Default: Default is not waived if the nondefaulting party fails to declare a default immediately or delays taking any action with respect to the default. 1. No Third -Party Beneficiaries: There are no third -party beneficiaries of this contract. Severability: if any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. K. Ambiguities Not to Be Construed against Party Who Drafted Contract: The rule of construction that ambiguities in a document are construed against the party who drafted it does not apply in interpreting this contract. REAL ESTATE PURCHASE AND SALE AGREEMENT 681931v.1 00672610075679 Page 9 L. No Special Relationship: The Parties' relationship is an ordinary commercial relationship, and the parties do not intend to create the relationship of principal and agent, partners, joint venturers, or any other special relationship. M. Counterparts: If this contract is executed in multiple counterparts, all counterparts taken together constitute this contract. Copies of signatures to this contract are effective as original signatures. N. Confidentiality: This contract, this transaction, and all information learned in the course of this transaction shall be kept confidential, except to the extent disclosure is required by law or court order or to enable third parties to advise or assist Buyer to investigate and inspect the Property or to close this transaction. Remedies for violations of this provision are limited to injunctions and no damages or rescission may be sought or recovered as a result of any such violations. Notwithstanding anything herein, the Parties understand Buyer is subject to the Texas Public Information Act, Texas Government Code § 552.001, el seq., and will comply with this Act. The requirements of Subchapter J, Chapter 552, Government Code may apply to this contract and Seller agrees that the contract can be terminated if Seller knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Seller agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the goverrunental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. O. Binding Effect: This contract binds, benefits, and may be enforced by the Parties and their respective heirs, successors, and permitted assigns. P. Non -Boycott of Israel. To the extent it applies, Seller hereby warrants that it is in compliance with Chapter 2270, Subtitle F, Title 10 of the Texas Government Code by verifying that: (1) it does not boycott Israel and (2) it will not boycott Israel during the term of this contract, 12. TIME FOR PERFORMANCE: Time is of the essence of this contract and strict compliance with the times for performance is required. REAL ESTATE PURCHASE AND SALE AGREEMENT Page l0 681931%.1 006726/0075674 IN WITNESS WHEREOF, Buyer and Sellers have caused this Agreement to be signed and executed effective as of the Effective Date. T: Becky Garza, City Sec etary APPROVED AS TO CONTENT; David McCalla, Director of Electric Utilities APPROVED AS TO FORM: W i , LP&L General Counsel BUYER: The City of Lubbock, acting by and through the City Council DANIEL M. POPE, MAYOR The City of Lubbock, acting by and through the Electric Utility Board 9?7110� DAN ODOM, CHAIRMAN REAL ESTATE PURCHASE AND SALE AGREEMENT 68193tv,1 006726/0075679 Page II ATTEST: Greg Tay or, Bo Secretary APPROVED AS TO CONTENT: David McCalla, irector of Electric Utilities APPROVED AS TO FORM: ie S ro h—IL P&L Generai Counsel SELLE P. X-F XAS IN ��--rl Lloyd Whetzel, President/CEO STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on ��_9 , 2020. by Daniel M. Pope, Mayor of the City of Lubbock, a Texas h e rut iicipal c ration, on behalf of said Texas home rule municipal corporation. GJIMMY D. MAYNNotai lic, Nfty Puft Site of TLate of Texas Notary IN 1322947T MyCwvftwE*%12-j27-2023 REAL ESTATE PURCHASE AND SALE AGREEMENT Page IZ 681931 v.1006726/0075679 STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on , 2020, by Dan Odom, Chairman of the Electric Utility Board oft City Lubbock, Texas home rule municipal corporation, on behalf of said board. OLIVIA OENISE PIERCE Notary Public, State of Texas _ Notary 10 M 125055535 My Commission Expires amp September September 15, 2020 STATE OF TEXAS § COUNTY OF L 5 b n c.1c This instrument was acknowledged before me on 6w vs F 11 , 2020, by Lloyd Whetzel, acting in his capacity as President/CEO of X-Fab Texas, Inc., and executing same on behalf of said Texas corporation. RAFAEL AGUILERA Notary Io $1322d0016 ` µy Commis$10A Expires December 17. 2023 4 ', Notary Public, State of Texas EXHIBIT "A" METES AND BOUNDS DESCRIPTION of a 10.352 acre tract of land being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, said 10.352 acre tract being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "WSCII" found at the Southeast corner of that 6.00 acre tract described in County Clerk File Number (CCFN) 2011016215 which bears S. 88006'37" E. a distance of 1279.80 feet and S. 01" 44'57" W. a distance of 571.23 feet from an aluminum disc in concrete found at the original Northwest corner of said Tract "A"; REAL ESTATE PURCHASE AND SALE AGREEMENT Page l3 681931 v.1 006726/0075679 THENCE S. 01044'57" W. a distance of 694.98 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Southeast corner of this tract; THENCE N. 88016' 17" W. a distance of 651.14 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Southwest corner of this tract; THENCE N. 02016'02" E. a distance of 696.83 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Northeast corner of this tract; THENCE S. 88006'37" E., at 133.60 feet, pass a 1/2" iron rod with cap marked "WSCII" found at the Southwest corner of said 6.00 acre tract, continuing along the South line of said 6.00 acre tract for a total distance of 644.84 feet to the Point of Beginning. REAL ESTATE PURCHASE AND SALE AGREEMENT 681931v.100672610075679 Page 14 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER 1 WARRANTY DEED ADATE: lrl r,+ , 2020 GRANTOR: X-Fab Texas, Inc., a Texas corporation GRANTOR'S MAILING ADDRESS: 2301 N University, Lubbock, TX 79415 GRANTEE: City of Lubbock, a Texas home -rule municipal corporation GRANTEE'S MAILING ADDRESS: Citizens Tower, 1314 Avenue K, Lubbock, Texas 79401 CONSIDERATION: TEN AND N01100 DOLLARS ($10.00) and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by Grantor A. PROPERTY: That certain tract of land situated in Lubbock County, Texas, described as follows: An approximately 10.352 acre tract of land, more or less, being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, said 10.352 acre tract being further described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "land"); together with (i) all improvements and fixtures situated thereon ("improvements"), (ii) all rights, privileges and appurtenances pertaining thereto, including but not limited to easements, rights -of -way, licenses, permits, and other similar interests ('`appurtenances") existing in connection with the beneficial use and enjoyment of the Property, and (iii) all minerals, oil, gas, and other hydrocarbon substances appurtenant to the Property that are not previously reserved (the "Property" ). RESERVATIONS FROM AN43 EXCEPTIONS To CONVEYANCE: All presently recorded instruments affecting the Property, other than lines and conveyances; al visible and recorded easements, rights -of -way, and prescriptive rights; the rules and regulations of any taxing authority having jurisdiction; all mineral rights outstanding in third parties; any valid and subsisting oil, gas, and mineral leases; and any other applicable liens, encumbrances, regulations or orders of municipal and/or other governmental authorities, if any, or other matters of record, to the extent, but only to the extent, they are validly existing and affect the Property. This conveyance is made by Grantor and accepted by Grantee subject to the terms, conditions, and provisions hereof and further subject to the Real Estate and Purchase and Sale Agreement entered into between Grantor and Grantee, and subject to all applicable easements. conditions, restrictions, covenants, liens, encumbrances, regulations or orders of municipal and/or other governmental authorities, if any, or other matters of record. Grantor, for the consideration and subject to the Reservations from and Exceptions to Conveyance and Warranty herein stated, grants, sells, and conveys to Grantee the Property. together with all and singular the rights and appurtenances thereto in any wise belonging, to have and hold it to Grantee and Grantee's successors and assigns forever. Grantor hereby binds Grantor and Grantor's heirs, legal representatives, and successors to warrant and forever defend all and singular the title to the Property to Grantee and Grantee's heirs, legal representatives, successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the Reservations from and Exceptions to Conveyance and Warranty. When the context requires, singular nouns and pronouns include the plural. [1VOra1trre pages fo llou.] 2 GRANTOR: X-FAB TEXAS, INC. By: Lloyd Whetzel Its: President/CEO (Acknowledgement) STATE OF TEXAS COUNTY OF LUBBOCK BEFORE ME, the undersigned authority, on this day personally appeared Lloyd Whetzel, a person who is known to me and, acting in his capacity as President/CEO of X-Fab Texas, Inc., and executed this Warranty Deed on behalf of said Texas corporation. Notary's Seal, Printed Name, R4,Fqe 1 ijtl teeq and Expiration of Commission: 12 f 1-7 / Zo2,3 RAW L AGUILERA Nptery" 0112265016 y My COmmI{710a Expires Detem6er 17, 202) After recording, return to: Principle Services Attn: Dustin Ramaekers 402 Municipal Drive Lubbock, TX 79403 Notary Pub ieS to of Texas EXHIBIT "A" METES AND BOUNDS DESCRIPTION of a 10.352 acre tract of land being a portion of Tract "A", Texas Instruments Addition to the City of Lubbock according to the map, plat, and/or dedication deed thereof recorded in Volume 1363, Page 977, Deed Records of Lubbock County, Texas, said 10.352 acre tract being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "WSCII" found at the Southeast corner of that 6.00 acre tract described in County Clerk File Number (CCFN) 2011016215 which bears S. 88°06'37" E. a distance of 1279.80 feet and S. 01 °44'57" W. a distance of 571.23 feet from an aluminum disc in concrete found at the original Northwest corner of said Tract "A"; THENCE S. 0104457" W. a distance of 694.98 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Southeast corner of this tract; THENCE N. 88016' 17" W. a distance of 651.14 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Southwest corner of this tract; THENCE N, 02016'02" E. a distance of 696.83 feet to a 1/2" iron rod with cap marked "HUGO REED ASSOC" set for the Northeast corner of this tract; THENCE S. 88006'37" E.. at 133.60 feet, pass a 1/2" iron rod with cap marked `WSCII" found at the Southwest corner of said 6.00 acre tract, continuing along the South line of said 6.00 acre tract for a total distance of 644.84 feet to the Point of Beginning. 4