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HomeMy WebLinkAboutResolution - 2017-R0261 - Director Of Electric Utilities To Buy Property - 07/27/2017Resolution No.2017-R0261 Item No.6.22 July27,2017 RESOLUTION WHEREAS,the Electric Utility Board of the City of Lubbock has approved and recommended adoption to the City Council of the City of Lubbock certain Capital Improvement Projects providing for the construction of Lubbock Power &Light electric transmission and distribution facilities,including the construction of related electric substations (the "Electric Project"); The City Council of the City of Lubbock has approved,through adoption of the budget for Lubbock Power &Light,the Electric Project; WHEREAS,as adopted by the City Council,the Electric Project serves the public interests of the citizens of the City of Lubbock in providing needed electric utility infrastructure reliability related improvements ("Electric Facilities"); WHEREAS,the Electric Project requires the acquisition of certain real property interests; WHEREAS,the City Council has the power and authority to acquire real property interests for use by Lubbock Power &Light;NOW,THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK THAT the Director of Electric Utilities,or his designee,is hereby authorized to make,execute and deliver,for and on behalf of the City of Lubbock,offers to purchase that certain 4.634 acre tract of real property,located in Section 5,Block E,G.C. & S.F.Railroad Company Survey,Lubbock County,Texas,being more particularly described in the Contract of Sale ("Contract")attached hereto as Exhibit "A",in the form of the Contract or other form as approved by the Director and General Counsel of Lubbock Power &Light. Passed bytheCity Council this 27th dayof July,2017. DANIEL M.POPE,MAYOR ATTEST: tit^ Rebecca Garza,City Secaetar APPROVED AS TO CONTENT: 4 r yma David McCalla, Director of Electric Utilities APPROVED AS TO FORM: Richard Casner, LP&L General Counsel EXHIBIT "A" City Council Resolution Resolution No. 2017-RO261 STATE OF TEXAS § COUNTY OF LUBBOCK § CONTRACT OF SALE NOTICE YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT REGARDING THE CITY OF LUBBOCKS ACQUISITION OF THE PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE. This Contract of Sale (the "Contract") is made this 27th day of July , 2017, effective as of the date of execution hereof by Seller, as defined herein (the "Effective Date"), by and between Kelsey Partners, LLC, a Texas limited liability company (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 more particularly described on Exhibit "A", attached hereto and made a part hereof for all purposes, being located in Lubbock County, Texas (the "Land"); and WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, the Land, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land, including without limitation, the assignment of any and all causes of action relating to damage or injury to the Land (collectively, the "Property"). ARTICLE I SALE OF PROPERTY For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The purchase price to be paid to Seller for the Property, and for damages to the Seller's remaining property, as set forth in that certain Appraisal Report prepared by Tommy Cantrell Appraisal Company ("Appraisal"), said Appraisal being previously provided to Seller, is the sum of Six Hundred Twelve Thousand Two Hundred and No/100 Dollars ($612,200.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100 Dollars ($1,000.00), as Earnest Money (herein so called) with Service Title Company, 1408 Buddy Holly Avenue, Suite B, Lubbock, Texas, 79401 (the "Title Company"), as escrow agent, within fourteen (14) calendar days of the Effective Date hereof. 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 fourteen (14) calendar days after the Effective Date, Buyer shall deliver to the Title Company, payable to and for the benefit of Seller, a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non-refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception") (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions (the "Exception Documents"), 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. Buyer is in possession of a current on the ground survey of the Property (the "Survey"). The Survey has been prepared by a surveyor selected by Buyer and includes the matters prescribed by Buyer. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions as required by the Title Company in order to amend the survey exception as required by Section 3.05, below. The description of the Property as set forth in the Survey shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment and the Exception Documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items related to the Title Commitment, Exception Documents and/or Survey ("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 or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, 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 have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing 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. 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, in the amount of the Purchase Price or amount of the Purchase Price and value of improvements to be constructed, as determined by Buyer in its discretion, and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer, to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the payment, to be borne solely by Buyer, of any required additional premium); (b) 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, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession"; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception 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 discretion, during the period commencing with the Effective Date of this Contract and ending seventy five (75) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface 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. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non -confidential and non -privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. 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 no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder, and that the party executing this Contract for and on behalf of Seller has been duly authorized by Seller in all respects. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) 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 such liens. (h) 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 or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (i) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance to, on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, chemicals, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos - containing material, petroleum products and raw materials, that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state superlien and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under or related to said statutes, as amended. (j) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise terminated and any and all tenants or parties occupying the Property pursuant to the Leases shall have permanently abandoned and vacated the Property on or before the date of Closing. (k) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, within ten (10) calendar 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 and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, grant or permit to be attached or perfected, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from labor or materials furnished to the Property or Seller's adjacent property under any written or oral contracts arising or entered into prior to Closing. (d) Seller consents to Buyer applying for any zoning amendments, permit applications, including without limitation, specific use permits, and/or pursuing any other activity deemed necessary by Buyer to obtain all local regulatory approvals and consents to operate the Property as an electric substation and electric transmission facility (the "Permitting Activities"). Seller covenants and agrees to timely execute and deliver any applications and/or other documents, as owner of the Property, deemed necessary by the Buyer related to the Permitting Activities. (e) Seller consents to Buyer, at Buyer's expense, applying for and obtaining approval of a plat of the Property in conformity with the Code of Ordinances of the City of Lubbock (the "Platting Activities"). Seller covenants and agrees to timely execute and deliver any applications and/or other documents, as owner of the Property, as deemed necessary by the Buyer relating to the Platting Activities. (f) Seller stipulates and agrees that the payment of the Purchase Price at Closing constitutes and includes all compensation due Seller by Buyer related to the transaction contemplated by this Contract, including without limitation, any damage to or diminution in the value of the remainder of Seller's property caused by, incident to, or related to the Buyer's use of the Property after Closing and/or interference with Seller's activities on other property interests of Seller, caused by or related to lawful activities on the Property by Buyer after Closing, whether accruing now or hereafter, and Seller hereby releases for itself, its successors and assigns, the City of Lubbock, it's officers, employees, elected officials, agents and contractors from and against any and all claims they may have now or in the future, related to the herein described matters, events and/or damages. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a). 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, all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) 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 or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned by an entity other than Buyer, or is the subject of condemnation, eminent domain, or other material proceeding initiated by an entity other than Buyer, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller 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, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) 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 ninety (90) calendar days after the Effective Date, unless otherwise mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, 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 Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of a check or cashier's check or other immediately 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 and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration at Closing shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. As soon as the amount of taxes levied against the Property for the calendar year in which Closing shall occur is known, Seller and Buyer shall readjust in cash the amount of taxes to be paid by each party with the result that Seller shall pay for those taxes attributable to the period of time prior to the Closing Date (including, but not limited to, subsequent assessments for prior years due to change of land usage or ownership occurring prior to the date of Closing) and Buyer shall pay for those taxes attributable to the period of time commencing with the Closing Date. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs and expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Lubbock County, Texas. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do any 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, and 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; (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment, whereupon Buyer shall waive title objections, if any, and accept such title without reduction in Purchase Price on account of title defects and shall be entitled to assert any rights for damages based on Seller's representations, warranties and obligations that are not waived by Buyer by its acceptance of Seller's title; and (iii) Seek other recourse or relief as may be available to Buyer at or by law, equity, contract or otherwise. 8.02 Buyer's Default and 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 Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (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 by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, delivered, unless expressly provided otherwise in this Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Kelsey Partners, LLC Attn.. Telecopy Copies to: For Seller: Telecopy: BUYER: City of Lubbock Dave Booher Right of Way Agent 1625 13th Street Lubbock, Texas 79401 Telecopy: (806) For Buyer: Richard Casner, General Counsel Lubbock Power & Light 1301 Broadway Lubbock, Texas 79401 Telecopy: (806) 775-3112 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 embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Lubbock County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to the Property shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated by an entity or party other than Buyer 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 shall 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 (i) in the case of damage or destruction, all insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. Buyer shall have a period of up to ten (10) calendar days after receipt of written notification from Seller on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction to the Property, in which to make Buyer's election. In the event Buyer elects to close prior to such final settlement, then the Closing shall take place as provided in Article VII, above, and there shall be assigned by Seller to Buyer at Closing all interests of Seller in and to any and all insurance proceeds or condemnation awards which may be payable to Seller on account of such event. In the event Buyer elects to close upon this Contract after final settlement, as described above, Closing shall be held five (5) business days after such final settlement. 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. Notwithstanding anything to the contrary contained in this Contract and without limiting the general application of the provisions of Section 5.03, above, the provisions of this Article IX, Section 9.06 shall survive Closing. 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 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract, including without limitation, adjustment of the Closing Date and execution of any and all documents necessary to close the transactions contemplated by this Contract, are hereby delegated by Buyer, pursuant to action by the City Council of Lubbock, Texas, to David McCalla, Director of Electric Utilities, Lubbock Power & Light, or his designee. 9.10 Contract Execution. This Contract of Sale may be executed in any number of counterparts, all of which taken together shall constitute one and the same agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. 9.11 Business Days. If the Closing Date or the day of performance required or permitted under this Contract falls on a Saturday, Sunday or Lubbock County holiday, then the Closing Date or the date of such performance, as the case may be, shall be the next following regular business day. SELLER: Kelsey Partners LLC By: _ Name: Title: Executed by Seller on the day of BUYER: City of Lubbock, Texas In 2017. David McCalla, Director of Electric Utilities Executed by Buyer on the day of 2017. RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of an executed copy of this Contract. Title Company agrees to comply with, and be bound by, the terms and provisions of this Contract and to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: By: Printed Name: Title: Contract receipt date: , 2017 EXHIBIT "A" to Contract of Sale Legal Description METES AND BOUNDS DESCRIPTION of a 4.634 acre tract out of a 70.0 acre tract of land described under County Clerk File No. 2017006406 of the Official Public Records of Lubbock County, Texas, located in the Northeast Quarter of Section 5, Block E, G.C. & S.F. Railroad Company Survey, Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "HRA" set for the Northeast corner of said 70.0 acre tract and this tract, same being the Northeast corner of Section 5, Block E, Lubbock County, Texas; THENCE South, along the East line of said Section 5 and the Eastern boundary of said 70.0 acre tract, a distance of 533.61 feet to a 1/2" iron rod with cap marked "HRA" set for the Southeast corner of this tract, from whence a found 1/2" iron rod with cap marked "HRA" bears South a distance of 786.27 feet; THENCE S. 89055'20" W., at 30.00 feet pass a 1/2" iron rod with cap marked "HRA" set in the West line of a 30 feet right-of-way easement, continuing for a total distance of 377.92 feet to a 1/2" iron rod with cap marked "HRA" set for the Southwest corner of this tract; THENCE N. 00004'40" W., at 501.61 feet pass a 1/2" iron rod with cap marked "HRA" set in reference, continuing for a total distance of 533.61 feet to a "MAG" nail with washer set in the North line of said Section 5 and the Northern boundary of said 70.0 acre tract for the Northwest corner of this tract, from whence a 1/2" iron rod with cap marked "HRA" found at the Northwest corner of said 70.0 acre tract bears, S. 89°55'20" W. a distance of 1671.50 feet; THENCE N. 89055'20" E., along the North line of said Section 5 and the Northern boundary of said 70.0 acre tract, a distance of 378.64 feet to the Point of Beginning. Contains: 201,853 square feet. Bearings are relative to the North line of Section 5, Block E, previously surveyed and recognized as being N89°55'20"E. EXHIBIT "B" To Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM 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. SPECIAL WARRANTY DEED STATE OF TEXAS § COUNTY OF LUBBOCK KNOW ALL MEN BY THESE PRESENTS That Kelsey Partners LLC, a Texas limited liability company (herein called "Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the City of Lubbock, Texas, a Texas Home Rule Municipal Corporation (herein called "Grantee"), 1625 131h St., Lubbock, Texas 79401, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY, unto Grantee all the real property in Lubbock County, Texas being particularly described on Exhibit "A", attached hereto and made a part hereof for all purposes (the "Land"), and being located in Lubbock County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto, including without limitation, the assignment of any and all causes of action relating to damage or injury to the Land (collectively, the "Property"). This conveyance and warranty is subject to the following: [Insert Permitted Exceptions, if any] 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 when the claim is by, through, or under Grantor but not otherwise. EXECUTED the day of , 2017. Kelsey Partners LLC Name Title ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF § This instrument was acknowledged before me on , 2017, by of Kelsey Partners LLC, a Texas limited liability company, on behalf of said limited liability company. Notary Public, State of Texas My commission expires: Upon Filing Return To: Dave Booher Right of Agent City of Lubbock Lubbock, TX 79401 EXHIBIT "A" To Special Warranty Deed Legal Description METES AND BOUNDS DESCRIPTION of a 4.634 acre tract out of a 70.0 acre tract of land described under County Clerk File No. 2017006406 of the Official Public Records of Lubbock County, Texas, located in the Northeast Quarter of Section 5, Block E, G.C. & S.F. Railroad Company Survey, Lubbock County, Texas, being further described as follows: BEGINNING at a 1/2" iron rod with cap marked "HRA" set for the Northeast corner of said 70.0 acre tract and this tract, same being the Northeast corner of Section 5, Block E, Lubbock County, Texas; THENCE South, along the East line of said Section 5 and the Eastern boundary of said 70.0 acre tract, a distance of 533.61 feet to a 1/2" iron rod with cap marked "HRA" set for the Southeast corner of this tract, from whence a found 1/2" iron rod with cap marked "HRA" bears South a distance of 786.27 feet; THENCE S. 89055'20" W., at 30.00 feet pass a 1/2" iron rod with cap marked "HRA" set in the West line of a 30 feet right-of-way easement, continuing for a total distance of 377.92 feet to a 1/2" iron rod with cap marked "HRA" set for the Southwest corner of this tract; THENCE N. 00004'40" W., at 501.61 feet pass a 1/2" iron rod with cap marked "HRA" set in reference, continuing for a total distance of 533.61 feet to a "MAG" nail with washer set in the North line of said Section 5 and the Northern boundary of said 70.0 acre tract for the Northwest corner of this tract, from whence a 1/2" iron rod with cap marked "HRA" found at the Northwest corner of said 70.0 acre tract bears, S. 89055'20" W. a distance of 1671.50 feet; THENCE N. 89055'20" E., along the North line of said Section 5 and the Northern boundary of said 70.0 acre tract, a distance of 378.64 feet to the Point of Beginning. Contains: 201,853 square feet. Bearings are relative to the North line of Section 5, Block E, previously surveyed and recognized as being N89°55'20"E.