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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 Location Ma W y HIGHLAND 5T. a ECErC 1 � �O PP.3LSfL I►SD L ND NEEDED FOR V'���� CO•CRETE 1 0 a � � z w, KIRK OOD EXTENSION '}= -` y, B OO � B4 r r "e 4 LU R a A VY r s 'j i • %� r t`. `� ,� fit' !' � E No , IL 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 N:\00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 1 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 N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 2 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 N:\00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW \Contract of Sale Form. Kimball Widening. doe Page 3 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 N:\00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 4 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 N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 5 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 N:\00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 6 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 N:\00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 7 EXHIBIT "A" PROPERTY DESCRIPTION N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 8 EXHIBIT "B" SURVEY N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 9 EXHIBIT "C" GRANT OF PERMANENT RIGHT OF WAY N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 10 EXHIBIT "D" TEMPORARY CONSTRUCTION EASEMENT N: \00 -New N Drive \Meetings \City Council \2011 Agendas\2011 -01 -04 \Item 4U - Kirkwood ROW\Contract of Sale Form. Kimball Widening.doc Page 11