Item 4UCITY OF
SOUTH LADE
MEMORANDUM
(January 4, 2011)
To: Shana Yelverton, City Manager
From: Robert H. Price, P.E., Director of Public Works
Subject: Authorize the City Manager to enter into a contract with Carroll
Independent School District for the acquisition of right -of -way
for the extension of East Kirkwood Boulevard
Action
Requested: Authorize the City Manager to enter into a contract with Carroll
Independent School District for the acquisition of right -of -way for
the extension of East Kirkwood Boulevard.
Background
Information: Discussions and negotiations with the Carroll ISD (CISD) have
been ongoing for several months regarding CISD owned land
adjacent to E. Highland Avenue that is needed to extend E.
Kirkwood Blvd. and connect it to the existing E. Highland Avenue,
located east of N. Carroll Avenue.
A land swap between the City and CISD has been discussed.
While no agreement has been reached at the time that this memo
was prepared, discussions are ongoing. Regardless of the final
provisions of the agreement for acquisition finally agreed upon, it
will be necessary for the City to enter into a contract for purchase,
similar to the one attached.
A construction contract for the extension of Kirkwood Blvd. was
awarded by the City Council on November 2, 2010. Rough grading
is well underway. It is anticipated that this right -of -way will need to
be in the city's possession by mid January in order for the project to
remain on schedule. Therefore, time is of the essence in
completing a contract for acquisition of the above mentioned CISD
property.
Financial
Considerations: The anticipated fair market value of the CISD land which is required
for the Kirkwood Blvd right -of -way is estimated at approximately
$80,000, based upon a recent city land acquisition in the area.
Strategic Link: The Kirkwood Blvd. extension project links to the City's strategy
map relative to the focus areas of Mobility, Infrastructure, and
Quality Development. The specific corporate objectives that are
met by this construction project include: providing travel
convenience throughout the city and region; collaborating with
select partners to implement service solutions, and investing to
provide and maintain high quality public assets.
Citizen Input/
Board Review: N/A
Legal Review: This attached Contract for Purchase is a standard agreement
prepared by the City Attorney's office.
Alternatives: The City Council may approve or deny the authorization.
Supporting
Documents: Location Map
Contract for Purchase
Staff
Recommendation: Authorize the City Manager to enter into a contract with Carroll
Independent School District for the acquisition of right -of -way for
the extension of East Kirkwood Boulevard
Staff Contact: Robert H. Price, P.E., Public Works Director
Gordon J. Mayer, Jr., P.E., City Engineer
Michelle McCullough, P.E., Civil Engineer
Kirkwood Boulevard Extension
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CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS CONTRACT OF SALE is made by and between
of Tarrant County Texas, (referred to 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 ").
ARTICLE I. PURCHASE AND SALE
By this Contract, Seller sells and agrees to convey, and Purchaser purchases and agrees to
pay for, a tract of land situated in Tarrant County, Texas, which is more particularly described as
follows:
a acre parcel of land located in the
SURVEY,
Abstract No. , in the City of Southlake, Tarrant County,
Texas, and being more particularly described by metes and bounds in
Exhibit "A ", attached hereto and incorporated herein for all purposes,
and being more particularly shown on a survey drawing marked
Exhibit "B ", attached hereto and incorporated herein for all purposes
together with all and singular the rights and appurtenances pertaining thereto, 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 no additional consideration,
Seller further agrees to grant to Purchaser a Temporary Construction Easement which shall be
fifteen feet wide, adjacent and parallel to and of the Right -of -Way Line of the Property as
shown on Exhibit "B" attached hereto, which Temporary Construction Easement shall be in the form
shown on Exhibit "C" which is attached hereto. This Contract is made for the consideration and
upon and subject to the terms, provisions, and conditions set forth below.
ARTICLE IL PURCHASE PRICE
The purchase price for the Property shall be
($ ) cash.
ARTICLE III. EARNEST MONEY
Dollars
$1,000 has been tendered by Purchaser to the Seller with this Contract. Purchaser shall
deliver this amount (the "Escrow Deposit ") to Rattikin Title Company, 112 State Street, Suite 200,
Southlake, Texas (the "Title Company" or "Escrow Agent "). 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
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its obligations set forth in Article VI have not been met, 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. Within twenty (20) days after the date hereof, Seller, at
Purchaser's sole cost and expense, shall have the Title Company issue a preliminary title report (the
"Title Report") accompanied by copies of all recorded documents relating to easements, rights -of-
way, etc., affecting the Property. 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. In the event Seller chooses not to do so or is unable to
do so within twenty (20) days after receipt of written notice, this Contract shall thereupon be null
and void for all purposes. If written notice is not received by Seller within the 20 day period, all
conditions shall be deemed to be acceptable and any objection thereto shall be deemed to have been
waived for all purposes.
4.02 Survey. Attached as Exhibit "B" is a copy of the survey that Purchaser caused to be
prepared for Property.
4.03 New Surveys and Tests. Within ten (10) days after the date of execution, Seller
shall provide to Purchaser a copy of any environmental site assessment that Seller has caused to be
prepared for the Property, or that Seller has received. Within 20 (twenty) days after the date of
execution, Purchaser is granted the right to conduct an 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. 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, on written notice to Seller within
twenty (20) days after receipt of survey, terminate this Contract and it shall be null and void for all
purposes. If the written notice is not received within this twenty (20) day period, the condition shall
be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all
purposes.
4.04 Property Condition. Within twenty (20) days after the date of execution, Purchaser
may have the property and facilities inspected by an inspector permitted by law to make such
inspections. Seller shall permit access to the property at reasonable times for inspection, repairs, and
treatment and for reinspection after repairs and treatment have been completed.
Purchaser will have twenty (20) days after receipt of the inspection report to review and
approve same. In the event any portion of the inspection report is unacceptable to Purchaser, then
Purchaser shall, within the twenty (20) day period, give Seller written notice of this fact. Unless
otherwise agreed by Seller and Purchaser, Seller shall, complete all agreed repairs and treatment
prior to the Closing Date. If Seller fails to complete any agreed repairs and treatment prior to
Closing Date, Purchaser may terminate this Contract and the Contract shall thereupon be null and
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void for all purposes. Purchaser's failure to give Seller this written notice shall be deemed to be
Purchaser's acceptance of the property in its current condition.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER
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) During Seller's ownership of the Property (1) no excavation of the Property
occurred, (2) no landfill was deposited on or taken from the Property, (3) no
construction debris or other debris (including, without limitation, rocks, stumps, and
concrete) was buried upon the Property, and (4) 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, were deposited on the Property. Seller further represents and warrants that,
to the best of his knowledge, none of the foregoing occurred on the Property prior to
Seller's ownership of the Property.
(3) That there are no real 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.
ARTICLE VI. CLOSING
6.01 Closing Date. The closing shall be held on , 2010, at the
Title Company (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 Grant of Permanent
Right of Way in the form attached hereto as Exhibit "C" conveying to Purchaser a
permanent right -of- way on the Property, free and clear of any and all liens,
encumbrances, conditions, assessments, and restrictions other than as provided in
this Contract.
(2) Seller's delivery to Purchaser of a duly executed and acknowledged Temporary
Construction Easement in the form attached hereto as Exhibit "D ".
(3) Delivery to Purchaser, at Purchaser's sole expense, of a Texas Owner's Title Policy,
issued by the Title Company in the full amount of the purchase price, insuring
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Purchaser's permanent right -of -way on 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
(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) Delivery to Purchaser of possession of the Property.
6.03 Failure of Conditions. Should any of the conditions specified in Paragraph 6.02 of
this Contract fail to occur within twenty (20) 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 recover any amounts paid by Purchaser to
Seller or to the Title Company 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. The Title Company (Escrow Agent) shall be and is
hereby irrevocably instructed by Seller 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 any roll back or other deferred
taxes exist 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 Seller. This provision shall survive the closing.
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, if any, paid by Purchaser
Inspection Reports, if any, paid by Purchaser
Filing fees paid by Purchaser
Attorney's fees paid by the party incurring same
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ARTICLE VII. REAL ESTATE COMMISSIONS
Seller shall pay, at Seller's sole cost and expense, any commissions or brokerage fees
associated with this Contract which are owed by Seller. 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 the Contract, or seek other remedies available at law, in
equity, or by statute. Seller's failure to satisfy Purchaser's objections under Article VI shall
constitute a default by Seller.
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. MISCELLANEOUS
10.01 Effective Date. The effective date of this Contract will be the date the last parry
executes the contract.
10.02 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.
10.03 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.
10.04 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.
10.05 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.
10.06 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
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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.
10.07 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.
10.08 Time. In this Contract, time is of the essence and compliance with the times for
performance is required.
10.09 Attorneys Fees. The prevailing parry in the adjudication of any proceeding relating
to this Agreement shall be authorized to recover its reasonable and necessary attorney's fees
pursuant to Sec. 271.159 of the Texas Local Government Code.
EXECUTED this day of
SELLER:
(Name of Seller)
By:
(Title)
(Street Address)
(City and State)
2010.
PURCHASER:
CITY OF SOUTHLAKE, TEXAS
John Terrell, Mayor
1400 Main Street
Southlake, Texas 76092
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ACKNOWLEDGMENTS
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority in and for the State of Texas, on this day personally
appeared , 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 UNDER MY HAND AND SEAL OF OFFICE, this the day of
2010.
Notary Public in and for
The State of Texas
My Commission Expires:
Typed or Printed Name of Notary
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority in and for said County, Texas, on this day personally
appeared John Terrell, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he is the Mayor of the City of Southlake, Texas and is duly
authorized to execute this Contract for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
, 2010.
Notary Public in and for
The State of Texas
My Commission Expires:
Typed or Printed Name of Notary
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EXHIBIT "A"
PROPERTY DESCRIPTION
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EXHIBIT "B"
SURVEY
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EXHIBIT "C"
GRANT OF PERMANENT RIGHT OF WAY
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EXHIBIT "D"
TEMPORARY CONSTRUCTION EASEMENT
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