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West Beach Addition, Bob Jones Park, 2009 - Contract of Sale i CONTRACT OF SALE STATE OF TEXAS § COUNTY OF TARRANT § This contract of sale is made by and between Carl and Vertice Fretwell of Fort Worth, Texas, (referred to collectively in this Contract as "Seller") and the City of Southlake, a home rule municipal corporation in Tarrant County, Texas, (referred to in this Contract as "Purchaser"). This contract replaces a previous contract between the parties, as amended, which was terminated due to the results of an environmental site assessment indicating the presence of certain materials on the property. ARTICLE I PURCHASE AND SALE By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to pay for, certain property situated in Denton County, Texas, being more particularly described as part of the H.O. Throop Survey Abstract No. 1273, Tract 4, and Tracts 7 and 8, R.D. Price Survey Abstract No. 1003-D, City of Southlake, Texas 76092 and being approximately 6.5 acres shown on Exhibit "A" attached hereto, together with all and singular the rights and appurtenances pertaining to the Property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights- of-way (all of such real property, rights, and appurtenances being referred to in this Contact as the "Property"), together with any improvements and fixtures, situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions set forth below. ARTICLE II PURCHASE PRICE The purchase price for the Property shall be One Million, One Hundred and Fifty Thousand Dollars ($1,150,000), to be paid by Buyer at closing, provided, however, that this amount may be reduced by the amount of the City's expenses in remediating certain environmental contamination as disclosed in environmental site assessments obtained by Purchaser as provided in Article X below. ARTICLE III EARNEST MONEY $5,000 has been tendered by Purchaser to the Seller with this Contract. Purchaser shall deliver this amount (the Escrow Deposit) to Hexter Fair Title Company, 601 East Southlake Blvd., Suite 500, Southlake, Texas 76092. The Escrow Deposit shall be credited towards the cash portion of the sales price at Closing; provided, however, that in the event the Purchaser shall have given written notice to the title company that one or more of the conditions to its obligations set forth in Article VI have not been met, Page 1 or, in the opinion of Purchaser, cannot be satisfied, in the manner and as provided for in Article IV, then the escrow agent shall return the Escrow Deposit to Purchaser. ARTICLE IV PURCHASER'S RIGHTS AND OBLIGATIONS 4.01 Preliminary Title Report. Purchaser, at Purchaser's sole cost and expense, shall no later than September 20, 2009, have a title company issue an updated preliminary title report (the "Title Report") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property which were not reflected on the original preliminary title report provided to Purchaser. Purchaser shall give Seller written notice on or before the expiration of ten (10) days after Purchaser receives the Title Report that the condition of title as set forth in the title binder is or is not satisfactory, and in the event Purchaser states that any conditions are not satisfactory, Seller shall promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser, provided, however, that Seller shall not be required to incur any expense in undertaking to eliminate or modify any matters which are unacceptable to Purchaser. In the event Seller chooses not to eliminate all the unacceptable matters to the reasonable satisfaction of Purchaser, or Seller is unable to do so, within fifteen (15) days after receipt of written notice of such objections, this Contract shall thereupon be null and void for all purposes. If written notice is not received by Seiler by the date referenced above, all conditions shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. This provision shall survive the closing. 4.02 Survey. Purchaser, at Purchaser's sole cost and expense, may no later than September 20, 2009, cause to be prepared a current plat or survey of the Property, prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and the plat shall show the location of all improvements, streets, roads, rivers, creeks, or other water courses, fences, easements, and rights-of- way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. Purchaser will have ten (10) days after receipt of the survey to review and inform Seller of any objections. In the event any portion of the survey is unacceptable to Purchaser, then Purchaser shall, within the ten (10) day period referenced above, give Seller written notice of such objections. Seller shall, at Seller's option, promptly undertake to eliminate or modify all the unacceptable portions of the survey to the reasonable satisfaction of Purchaser, provided, however, that Seller shall not be required to incur any expense in undertaking to eliminate or modify any matters which are unacceptable to Purchaser. In the event Seller chooses not to eliminate all the unacceptable matters to the reasonable satisfaction of Purchaser, or Seller is unable to do so, within twenty (20) days after receipt of written notice, Purchaser may terminate this Contract, and the Contract shall thereupon be null and void for all purposes. Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey. Page 2 4.03 New Surveys and Tests. Seller represents that Seller has removed most of the barrels, crates, pallets and other personal property and movable material from the Property. Purchaser is granted the right to conduct an additional environmental and engineering survey and feasibility study of the Property at Purchaser's sole cost and expense, and in this connection Purchaser or Purchaser's designated agents may enter upon the Property for purposes of soil analysis, core drilling, or other tests which may be deemed necessary to Purchaser or Purchaser's engineer. Seller agrees that, as part of such testing, if Purchaser or Purchaser's agents determine that any remaining personal property must be moved, Purchaser may move such personal property as determined necessary, and Purchaser will not be liable to Seller for any damage resulting to such personal property, provided (i) none of such personal property shall be removed from the Property and (ii) ordinary care shall be exercised in moving any such personal property. Purchaser shall complete such testing no later than October 1, 2009, and provide to Seller a copy of the testing report and, if Purchaser determines that remediation is required, a remediation proposal. If Purchaser determines, in Purchaser's sole judgment, that the Property is not suitable for the intended purposes, then and in this event, Purchaser may, no later than October 1, 2009, provide Seller with written notice of Purchaser's election to terminate this Agreement, and this Agreement shall then be null and void for all purposes. If the written notice is not received by Seller by October 1, 2009, the condition of the Property shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER AND AGREEMENT OF PURCHASER 5.01 Seller Warranties. Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the Closing Date: (1) Seller is the sole owner of the Property and has the right and ability to convey good and marketable title in fee simple to the Property to Purchaser without the approval or participation of any other person and free and clear of any and all liens, encumbrances, conditions, assessments and restrictions. (2) No excavation of the Property has occurred, no landfill was deposited on or taken from the Property, no construction debris or other debris (including, without limitation, rocks, stumps, and concrete) was buried upon the Property, and no toxic waste or "hazardous substances" as that term is defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1988, or petroleum products and derivatives thereof, have been deposited on the Property, except as disclosed' in the previous environmental site assessment performed on Purchaser's behalf. (3) That there are no estate brokers', agents' or finders' fees or commissions due arising in connection with the execution of this Contract or from the consummation of the sale contemplated herein. Page 3 i (4) Seller represents now and at Closing that no person, firm, or corporation has any title, interest or right to possession in the Property or any portion thereof as a lessee, tenant, or concessionaire of Seller. 5.02 Removal of Seller's Personal Property. Purchaser agrees that Seller shall be provided a period not to exceed twelve (12) months after the date of closing to remove the building and items of personal property presently on the land, provided that Seller first provides to Purchaser a written release and indemnity agreement in form acceptable to Purchaser releasing Purchaser from any damages and/or injuries which Purchaser and/or Purchaser's agents and/or contractors may sustain during such removal after closing. Any property which Seller has not removed within twelve (12) months after the date of closing shall be deemed abandoned, and Purchaser may dispose of such property without further inquiry or obligation to Seller In no event shall Purchaser be liable for any loss or damage to any personal property left by Seller on the Property after closing, provided Purchaser shall keep the gate to the Property locked, except when agents, employees or representatives of Buyer are on the Property. Purchaser will not be required to post any security or take precautions other than locking the gate to the Property. ARTICLE VI CLOSING 6.01 Closing Date. The closing shall be held on, or around November 2, 2009, unless extended as provided in Article X, at such time and place as Seller and Purchaser may agree upon (which date is herein referred to as the "Closing Date"). 6.02 Conditions at Closing. The closing and Purchaser's obligations under this Agreement to purchase the Property are expressly conditioned on: (1) Seller's delivery to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, assessments, and restrictions other than as provided in this Contract. (2) Delivery to Purchaser, at Purchaser's sole expense, a Texas Owner's Title Policy, issued by Hexter Fair Title Company, Southlake, Tarrant County, Texas in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property, subject only to those title exceptions listed in this Article VI, if any, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy, provided, however: (a) The boundary and survey exceptions shall be deleted; (b) The exception as to restrictive covenants shall be endorsed "None of Record"; and Page 4 I i (c) The exception as to the lien for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable." (3) Seller's execution of such documents and instruments reasonably requested by the title company to consummate the transactions contemplated herein. (4) Seller's payment of all commissions due and arising in connection with the execution of this Contract or from the consummation of the sale of the Property. (5) Seller shall convey surface rights only and shall include the following language in the deed- Grantor hereby reserves and excepts from this conveyance, and retains for Grantor and Grantor's heir, successors, and assigns forever, all oil, gas, and other minerals in and under and that may be produced from the property (the "Mineral Interests"). If the Mineral Interest is subject to existing production or an existing lease, this reservation includes the production, lease, and all benefits from it. Grantor hereby waives and releases any and all rights, title, interests, easements, rights-of-way and privileges, of every kind and character, which Grantor has or may have to use or utilize, or to permit others to use or utilize, in any manner the surface of the Property, or any part thereof, including, without limitation, the right to use the surface of the Property or any part thereof for investigating, exploring by geological, geophysical and other methods, prospecting, drilling, mining, operating, producing, saving, transporting, storing or treating oil, gas and all other minerals, of every kind and character, whether similar or dissimilar, known or unknown, in, on, under and which may be discovered, mined, produced or recovered from the Property or any portion thereof. Grantor waives and releases its right of ingress and egress to the Property, its right to conduct any type of investigation on the surface, including, without limitation, any type of seismic operations, its right to use any portion of the surface of the Property for the drilling of any well, or for the storage or transportation of oil, gas or other minerals of any kind, and its right to lay pipeline across the Property or any portion thereof. Nothing herein, however, restricts or prohibits the pooling or unitization of the Mineral Interest with land other than the Property; or the exploration or production of the oil, gas, and other minerals by means of wells that are drilled or mines that are opened on land other than the Property that enter or bottom under the Property, provided that these operations in no manner interfere with the surface or subsurface support of any improvements constructed or to be constructed on the Property. 6.03 Failure of Conditions. Should any of the conditions specified in Paragraph 6.02 of this Contract fail to occur within 10 days after the establishment of Closing as provided in Paragraph 6.01 of this Contract, Purchaser shall have the power, exercisable by written notice to Seller, to cancel the closing, terminate this Contract, and Page 5 i recover any amounts paid by Purchaser to Seller on account of the purchase price of the Property. The exercise of this power by Purchaser shall not, however, constitute a waiver of any other rights Purchaser may have against Seller for breach of this Agreement. Hexter Fair Title Company (Escrow Agent) shall be and is hereby irrevocably instructed by Seiler on any such failure of condition and receipt of such notice from Purchaser by it to immediately refund to Purchaser all monies and instruments deposited by Purchaser pursuant to this Contract. 6.04 Prorations. Any assessments against the Property as of the Closing Date shall be paid by Seller on or before the closing. General real estate taxes for the then current year relating to the Property, interest on any existing indebtedness, and rents if any, shall be prorated as of the closing date and shall be adjusted in cash at the closing. In the event there exists any roll back or other deferred taxes which are retroactive to the period of Seller's ownership of the Property or any time prior thereto pursuant to a change in zoning, use, ownership or otherwise, such retroactive taxes shall remain the obligation of Purchaser. 6.05 Closing Costs. All costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows: Owner's Title Policy paid by Purchaser Survey paid by Purchaser Environmental and Engineering Survey paid by Purchaser Inspection Reports paid by Purchaser Filing fees paid by Purchaser Attorney's fees for the services of the City Attorney paid by the City ARTICLE VII REAL ESTATE COMMISSIONS Seller shall pay, at Seller's sole cost and expense, any commissions or brokerage fees associated with this Contract, for which Seller has contracted and agreed to pay. Seller agrees to indemnify and hold the City harmless from claims made by any person for any such fees, commission or like compensation claiming to have dealt with the Seller. ARTICLE VIII BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property for any reason, except because of Purchaser's termination of this Contract or because of Purchaser's default, Purchaser may either terminate the Contract, enforce specific performance of this Contract, or seek other remedies available at law, in equity, or by statute. Page 6 ARTICLE IX BREACH BY PURCHASER If Purchaser shall fail to consummate this Contract for any reason, except Seller's default or the termination of this Contract pursuant to a right to terminate given herein, Purchaser shall be in default and Seller may at its sole and exclusive remedy have the Escrow Deposit paid to Seller as liquidated damages for the breach of Contract thereby releasing Purchaser from this Contract. ARTICLE X ENVIRONMENTAL REMEDIATION 10.01 Remediation Proposal Acceptable to Seller. If the remediation proposal provided by Purchaser to Seller as provided in Section 4.03 above is acceptable to Seller, Seller shall so inform Purchaser by October 15, 2009, and the closing of the sale will proceed as provided in Section 6.01 above, and Purchaser shall remediate any environmental contamination after closing. If such written notice is not received by Purchaser by October 15, 2009, the remediation proposal shall be deemed to be acceptable to Seller and any objection thereto shall be deemed to have been waived for all purposes, and the closing of the sale will proceed as provided in Section 6.01 above, and the costs of remediation as provided in such proposal shall be deducted from the purchase price at closing, and such remediation completed by Purchaser after closing. 10.02 'Remediation Proposal Unacceptable to Seller. If the remediation proposal provided by Purchaser to Seiler as provided in Section 4.03 above is not acceptable to Seller, Seller shall so inform Purchaser by October 15, 2009, and Seiler shall obtain at Seller's expense an alternative proposal from a qualified, licensed contractor of Seller's choosing to remediate any and all environmental contamination as shown on the testing report, pay for and arrange and obtain a certification from the Texas Commission on Environmental Quality that such environmental contamination has been eliminated, and the closing of the sale will be postponed until ten (10) days after Seller provides to Purchaser a certified copy of the certification from the Texas Commission on Environmental Quality described above, but no later than December 29, 2009. If Seller has not completed the remediation and obtained the certification from the Texas Commission on Environmental Quality described above by December 29, 2009, Purchaser shall have to option but not the obligation to grant Seller additional time to complete such work and obtain a certification from the Texas Commission on Environmental Quality that such environmental contamination has been eliminated, and if Purchaser elects to grant Seller such additional time, then the closing date will be extended accordingly. ARTICLE XI MISCELLANEOUS 11.01 Effective Date. The effective date of this Contract will be the date the last party executes the contract. Page 7 11.02 Survival of Covenants. Any of the representations, warranties, covenants, and contracts of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing date of the transactions contemplated hereby shall survive the closing. 11.03 Notices. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by certified United States mail, postage prepaid, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth below the signature of the party hereunder. 11.04 Texas Law to Apply. This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Tarrant County, Texas. 11.05 Parties Bound. This. Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. 11.06 Legal Construction. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 11.07 Prior Contracts Superseded. This Contract constitutes the sole and only contract of the parties and supersedes any prior understandings or written or oral contracts between the parties respecting the Property or the subject matter of this Contract. This Contract is valid only when approved by the Southlake Parks Development Corporation (SPDC) and the City Council of the City of Southlake. 11.08 Gender. Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 11.09 Time. In this Contract, time is of the essence and compliance with the times for performance is required. 11.10 Attorney's Fees. The prevailing party in any legal proceeding brought under or with respect to the transaction described in this Contract is entitled to recover from the non-prevailing party all costs of such proceeding and reasonable attorney's fees, as permitted by Texas Local Government Code Section 271.159. REMAINER OF PAGE INTENTIONALLY LEFT BLANK Page 8 EXECUTED this _Leday of Ausu 4- , 2009. SELLER: Carl Fretwel!l ADDRESS: 3400 N.E. 28th Street Fort Worth, Texas 76111 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for said County, Texas, on this day personally appeared Carl Fretwell, known to me (or proved to me on the oath of or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. IVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of 2009. My Commission Expires: Notary Public in and w the State of Texas ~e~;sy s . DAVE HORGER JR. Typed or Printed Name of Notary Public Notary Public, State of Texas r My Commissio6 Expires January 23, 2013 ; Page 9 i EXECUTED this __LOdday of 1&f , 2009. SELLER: ertice Fretwe I ADDRESS: 3400 N.E. 28th Street Fort Worth, Texas 78111 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for said County, Texas, on this day personally appeared Vertice Fretwell, known to me (or proved to me on the oath of or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. GIVEN rDER MY HAND AND SEAL OF OFFICE, this the day of u , 2009. My Commission Expires: Notary Public in an f State of Texas S►*Y►oo., DAVE HORGER JR `1 Notary Public, State of Texas Typed or Printed Name of"Notary Public "s~yr My Commission Expires January 23, 2013 Page 10 I EXECUTED this day of '2009. PURCHASER: CITY OF SOUTHLAKE, TEXAS Bjr: Shang Y Iverton, City Manager ADDRESS: 1400 Main Street Southlake, Texas 76092 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § Before me, the undersigned authority in and for said County, Texas, on this day personally appeared Shana Yelverton, known to me (or proved to me on the oath of or through (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. I GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of 2009. My Commission Expires: Notary Public in and f the State of Texas €LSI€ RICE5ie l G µ Wn NOTARY PUBLIC Typed or Printed Name of Notary Public ti.~••......•~e; State of Texas !{~rcomm. EXP. 10-16-2012 Page 11 ATTACHMENT A Subject Properties Approximately 6.546 acres, Tract 4, H.O. Throop Survey, Abstract No. 1273D and Tract 7 and 8, R.D. Price Survey Abstract No. 1003D, City of Southlake, Tarrant County ("the Property") Page 12