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HomeMy WebLinkAboutResolution - 3946 - Agreement - Harry A Hamilton - Options & Purchase Real Property, TDCJC Facility - 08/13/1992Resolution No. 3946 August 13, 1992 Item #27 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 an Agreement Regarding Exercise of Options and Purchase of Real Property necessary for the Texas Department of Criminal Justice Corrections Facility, attached herewith, which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if fully copied herein in detail. Passed by the City Council this ATTEST: ie to Boy , City Secretary APPROVED AS,TO CONTENT: oQ 0 lis, business Liaison Officer APPROVED AS TO FORM: rZ l o n C. Ross, Jr., City Attorney JCR:d&/AGENDA-D2/A-CRM1US. res August 3, 1992 Resolution No. 3946 August 13, 1992 Item #27 8/03/92 AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY This AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY (this "Agreement") is made to be effective as of the 13 day of August , 1992, by and among HARRY A. HAMILTON, an individual ("Hamilton"), THE CITY OF LUBBOCK, a Texas municipal corporation ("the City'), and THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE, an agency of the State of Texas ("TDCJ"). RECITALS A. Hamilton has entered into four (4) option contracts with various individuals (collectively, the "Sellers"), wherein Hamilton is granted options (collectively, the "Options") to purchase real property located in the County of Lubbock, State of Texas, such contracts being more particularly described on Exhibit A attached hereto and made a part hereof (such option contracts being referred to collectively herein as the "Contracts"). B. Reference is made to the Contracts for a more particular description of the real properties covered thereby (such properties being herein referred to individually as a "Property" and collectively as the "Properties"), which descriptions are incorporated herein by reference. C. The parties hereto desire to enter into this Agreement in order to evidence their understandings regarding the exercise of the options and the purchase of the Properties. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Delivery of Funds to Title Company. Within three (3) business days after the execution of this Agreement, the City shall deliver to Western Title Company of Lubbock (the "Title Company') the sum of ($ 2,700,000-00 ) (the "Escrow Fund"), which represents the estimated sum total of the consideration that will be due and owing to the Sellers under the Contracts at the closing of the sales of the Properties. The Escrow Fund shall be held in an interest bearing account, with interest accruing thereon to be paid to the City. 2. Exercise of Options. Hamilton shall, upon receipt of the Escrow Fund by the Title Company, send to Sellers such notices as are required to exercise the Options. Hamilton shall then proceed to take title to the Properties pursuant to the terms of the Contracts. Upon receipt by the Title Company of (a) duly executed and acknowledged deeds (the "Seller Deeds") conveying all the Properties from Sellers to Hamilton, all in AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY • Page 1 0030491.01 accordance with the Contracts, and (b) duly executed and acknowledged deeds (in the same form as the Seller Deeds, with appropriate changes) conveying all the Properties from Hamilton to, at the election of the City, either the City or TDCJ, the City shall direct the Title Company to disburse such portion of the Escrow Fund as is necessary to pay the purchase price for each of the Properties and any closing costs required to be paid by the purchaser of the Properties under the terms of the Contracts. Amounts disbursed from the Escrow Fund pursuant to the preceding sentence shall be paid to such parties as are designated by Hamilton in accordance with the Contracts. Any amounts remaining in the Escrow Fund after such disbursement shall be promptly refunded by the Title Company to the City. In the event that Hamilton fails to convey all the Properties to, at the City's election, either the City or TDCJ on or before October 1, 1992, the Title Company shall promptly disburse all amounts in the Escrow Fund (including all interest accrued thereon) to the City. 3. Obligations Under Contracts. Pursuant to paragraph 2 above, the City has agreed to make monies in the Escrow Fund available for the purchase of the Properties, but such agreement shall be enforceable only by Hamilton and no other party. It is expressly understood and agreed that neither the City nor TDCJ is assuming any obligations under the Contracts or any other obligations which Hamilton may owe to Sellers under the Contracts or otherwise. Hamilton agrees that Hamilton shall remain liable to Seller for the performance of all obligations under the Contracts, including specifically, without limitation, any obligations pertaining to a like -kind exchange under Section 1031 of the Internal Revenue Code which is contemplated in some of the Contracts. 4. Brokerage Commissions. In the event the Properties are conveyed by Hamilton to either the City or TDCJ, whichever the City may elect, the City agrees to pay to Hamilton at closing a brokerage commission in an amount equal to six percent (6%) of the purchase price for the Properties, it being understood and agreed that, for the purpose of calculating the commission owed to Hamilton, the purchase price for the Properties shall be deemed to be the sum of (a) the consideration paid to Sellers for the Properties, plus (b) six percent (6%) of such consideration. It is understood and agreed that Hamilton shall be paid a commission only for the transactions contemplated by the Contracts which actually close, and that the City shall not be obligated to pay Hamilton a commission for any transaction which does not actually close. Hamilton represents to the City that Hamilton is a duly licensed real estate broker under the provisions of the Texas Real Estate License Act and that Hamilton has not entered into any arrangement with any other party whereby such other party is entitled to any commission or finder's fee in connection with this transaction, and Hamilton agrees that should any claim be made for brokerage commissions or finder's fees by any other party by, through or on account of any acts of Hamilton or his representatives, Hamilton shall hold the City and TDCJ free and harmless from and against any and all loss, cost, damage and expense in connection therewith. 5. Representations and Warranties. Hamilton hereby represents, warrants and covenants to the City as follows: (a) Hamilton is the owner of the Options and has not conveyed his interest in the Contracts to any other party. AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 2 0030491.01 (b) The execution and delivery of this Agreement will not violate any other agreement to which Hamilton is a party, including, without limitation, the Contracts. (c) Hamilton has paid to each seller under the Contracts all option consideration required by the Contracts, and Hamilton has extended all of the options pursuant to the terms of the Contracts and all Options are still available for exercise by the holder of such Options. (d) Hamilton has performed all obligations required by him under the Contracts prior to the date hereof and is not in breach of any provision of the Contracts. 6. Responsibilities of the TDCJ. TDCJ hereby agrees to accept title to the Properties for which the City is providing purchase money funds pursuant to this Agreement. 7. Assignment. Neither Hamilton nor TDCJ may assign its rights under this Agreement except with the prior written consent of the City, which consent may be given or withheld in the City's sole discretion. 8. Notices. Any notice pursuant to this Agreement shall be given in writing by (a) personal delivery, or (b) expedited delivery service with proof of delivery, or (c) United States Mail, postage prepaid, registered or certified mail, return receipt requested, or (d) prepaid telegram, telex or telecopy (provided that such telegram, telex or telecopy is confirmed by expedited delivery service or by mail in the manner previously described), sent to the intended addressee at the address set forth below, or to such other address or to the attention of such other person as the addressee shall have designated by written notice sent in accordance herewith, and shall be deemed to have been given either at the time of personal delivery, or, in the case of expedited delivery service or mail, as of the date of first attempted delivery at the address and in the manner provided herein, or, in the case of telegram, telex or telecopy upon receipt. Unless changed in accordance with the preceding sentence, the addresses for notices given pursuant to this Agreement shall be as follows: If to Hamilton: Mr. Harry A. Hamilton 8302 Avenue H Lubbock, Texas 79404 TELECOPY: (806) 745-2499 If to the City: Mr. Rod Ellis City of Lubbock 1625 13th Street Lubbock, Texas 79401 TELECOPY: (806) 762-3623 AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 3 0030491.01 with a copy to: Patrick M. Arnold, Esq. Fulbright & Jaworski 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201 TELECOPY: (214) 855-8200 If to TDCJ: Mr. Jim Balzaretti Texas Department of Criminal Justice Post Office Box 99 Huntsville, Texas 77342-0099 TELECOPY: (409) 294-6997 9. Modifications. This Agreement cannot be changed orally, and no executory agreement shall be effective to waive, change, modify or discharge it in whole or in part unless such executory agreement is in writing and is signed by the parties against whom enforcement of any waiver, change, modification or discharge is sought. 10. Time of Essence. The parties hereto agree that time is of the essence of this Agreement. 11. Successors and Assigns. The terms and provisions of this Agreement are to apply to and bind the permitted successors and assigns of the parties hereto. 12. Entire Agreement. This Agreement, including the Exhibits, contains the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior agreements and understandings between the parties pertaining to such subject matter. 13. Further Assurances. Each party agrees that it will without further consideration execute and deliver such other documents and take such other action, whether prior or subsequent to closing of the sales of the Properties, as may be reasonably requested by the other party to consummate more effectively the purposes or subject matter of this Agreement. 14. Attorneys' Fees. In the event of any controversy, claim or dispute between the parties affecting or relating to the subject matter or performance of this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party all of its reasonable expenses, including reasonable attorneys' and accountants' fees. 15. Counterparts. This Agreement may be executed in several counterparts, and all such executed counterparts shall constitute the same agreement. It shall be necessary to account for only one such counterpart in proving this Agreement. 16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall nonetheless remain in full force and effect. AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 4 0030491.01 17. Applicable Law. This Agreement shall in all respects be governed by, and construed in accordance with, the substantive laws of the State of Texas. 18. No Third Party Beneficiary. The provisions of this Agreement are and will be for the benefit of only the parties hereto and are not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the provisions of this Agreement. 19. Captions. The section headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or any subsection hereof. ON: RY A. HAMILTON Title: __ _Mayor APPROVED AS TO FORM: TDCJ: C n C. Ross, Jr. THE TEXAS DEPARTMENT OF CRIMINAL City Attorney JUSTICE, an agency of the State of Texas APRP D TENT: ) By. / C R d Elis, Business Name: William C. McCra Li son Officer Title: Deputy Director for Finance AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 5 0030491.01 ACKNOWLEDGEMENT BY TITLE COMPANY Western Title Company of Lubbock executes this Agreement for the limited purpose of evidencing its agreement to perform the duties of the Title Company as set forth in this Agreement. TITLE COMPANY: WESTERN TITLE COMPANY OF LUBBOCK, a Texas corporation By: - - n �' Name: Title: - AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 6 0030491.01 Exhibit A The Contracts 1. That certain Option Contract dated September 18, 1991, by and between Harry A. Hamilton, as buyer, and Xen Harris Oden, David Harris Oden, Barbara Xen Oden and Sarah Elizabeth Oden Montgomery, as seller. 2. That certain Option Agreement dated to be effective as of September 1, 1991, by and between Jerry Nislar, as seller, and Harry Hamilton, as buyer. 3. That certain Option Contract dated October 3, 1991, by and between Harry A. Hamilton, as buyer, and Mary Vandiver, Nell Billingsley, and Lynda Gant, as seller. 4. That certain Option Contract dated October 29, 1991, by and between Harry A. Hamilton, as buyer, and Phyllis Lemon, as seller. AGREEMENT REGARDING EXERCISE OF OPTIONS AND PURCHASE OF REAL PROPERTY - Page 7 0030491.01