CONTRACT FOR THE SALE AND PURCHASE OF REAL PROPERTY

Transcription

1 CONTRACT FOR THE SALE AND PURCHASE OF REAL PROPERTY This Contract For the Sale and Purchase of Real Property (the Contract ) is entered into as of the Effective Date as hereinafter defined by and between THE CITY OF CARROLLTON, TEXAS, a Home-Rule Municipal Corporation (the Seller ) and E.S. FRANKFURT MANAGEMENT, INC., a Texas corporation (the Purchaser ) and or its assigns. WHEREAS, the Seller is willing to sell to the Purchaser and the Purchaser is willing to purchase from the Seller that certain tract of land which is more fully described in Exhibit A attached hereto and made a part hereof by reference (the Property ); and WHEREAS, the Purchaser is willing to purchase the Property from the Seller only if the Purchaser completes the purchase of approximately 3.92 acres of land adjacent to the Property (the Adjacent Property ), as described on Exhibit B attached hereto and made a part hereof by reference, pursuant to its contract of sale (the Adjacent Property Contract ) with Indian Creek, LLC (the Adjacent Property Seller ). NOW, THEREFORE, in consideration of the premises and for the further consideration of the terms, provisions and conditions hereinafter set forth, the Seller and the Purchaser have agreed as follows: 1. Agreement to Convey For the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth, the Seller has agreed and does hereby agree to sell and convey to the Purchaser the Property, and the Purchaser has agreed and does hereby agree to purchase the Property from the Seller, such real property including, but not limited to any right, title and interest of the Seller in and to all improvements, fixtures and buildings located, constructed or placed thereon. All reference in this Contract to the Property shall include all right, title and interest of the Seller to improvements, fixtures and buildings as set forth above. The Property shall be more particularly described by a Survey to be obtained by the Purchaser at its expense. The General Warranty Deed (the Deed ) to be delivered at Closing shall contain the description of the Property contained in said Survey. Purchaser will not take title to the Property until it has closed on the purchase of the Adjacent Property. Closing on this purchase shall be contingent to receiving a copy of the recorded deed for the Adjacent Property. Purchaser will grant an Access Easement (the Easement ) to the Seller on the Property at Closing. The parties shall have until the expiration of the Inspection Period (hereinafter defined) to agree on the form of the Easement. If the parties are unable to agree on the form of the Easement on or prior to the expiration of the Inspection Period, the Purchaser may elect to terminate this Contract, in which event the Earnest Contract for Sale and Purchase of Real Property - Page

2 Money (hereinafter defined) shall be refunded to the Purchaser and the parties shall have no further duties or obligations hereunder. 2. Purchase Price The purchase price ( Purchase Price ) to be paid for the Property shall be TWENTY-SEVEN THOUSAND THREE HUNDRED EIGHTY-SEVEN and no/100 Dollars ($27,387.00). The Purchase Price shall be paid in good funds as that term is defined in Procedural Rule P-27 of the Basic Manual of Title Insurance for the State of Texas at Closing (as hereinafter defined). 3. Title Commitment As soon as possible and, in any event, with ten (10) days of the Effective Date of this Contract, the Purchaser, at its sole cost and expense, shall obtain: (i) a current commitment for title insurance (the Title Commitment ) covering the Property and issued by Lawyer s Title Company, 5496 La Sierra, Dallas, Texas 75231, Attention: Ms. Hailey West (the Title Company ), and binding the Title Company to issue a Texas Owner s Policy of Title Insurance (the Title Policy ) on the standard form prescribed by the Texas Department of Insurance, in the full amount of the Purchase Price, insuring the Purchaser s fee simple title to the Property to be good and indefeasible, subject only to the Permitted Exceptions (as defined herein); and (ii) a true, correct and legible copy of all recorded instruments or documents affecting the Property (the Exception Documents ); a current tax certificate; and (iii) if the Property includes any personal property, UCC search reports pertaining to the Seller as it relates to the Property (with the Commitment, the Exception Documents, the tax certificates and, if applicable, the UCC search reports being sometimes referred to collectively herein as the Title Documents ). The Purchaser shall have thirty (30) days after receipt of the Title Documents (the Title Review Period ) to examine the condition of title to the Property and either approve or disapprove of the same. Any items to which the Purchaser does not object will be deemed permitted exceptions (the Permitted Exceptions ); provided, however, that all liens, easements, assessments, security interests and other encumbrances shown on the Title Commitment and all items shown on the Title Commitment identified by the Title Company as to be released upon closing (the Deemed Objected Matters ) shall be deemed to have been objected to by the Purchaser whether or not the Purchaser shall provide any written or other objection to such matters and no such Deemed Objected Matter shall be deemed a Permitted Exception. All Permitted Exceptions shall be noted as exceptions in the Deed. In the event that, during such Title Review Period, the Purchaser shall notify the Seller in writing of any item(s) affecting title to the Property which is unacceptable to Contract for Sale and Purchase of Real Property - Page

3 the Purchaser, the Seller shall have a period (the Title Cure Period ) of twenty (20) days following receipt of such written notice in which to correct any such item. The Seller shall have no obligation or duty to correct any such item other than any liens shown as exceptions under the Title Documents. The Seller shall, at or prior to Closing, at its sole cost and expense, pay or otherwise have discharged, all liens noted as exceptions to the Property in the Title Commitment, unless otherwise permitted or approved hereunder. In the event that the Seller shall either fail to cure or correct all title objections timely made (or deemed to have been made) by the Purchaser, or if the Seller shall notify the Purchaser that it is unable or unwilling to cure or correct any objection that it is not obligated to cure or correct (in accordance with the provision of this Paragraph), the Purchaser may elect, by written notice to the Seller, to terminate this Contract, in which event the Title Company shall deliver to the Purchaser the Earnest Money that has been deposited by the Purchaser with the Title Company under or in connection with this Contract, whereupon this Contract shall terminate, and the parties hereto shall be released from all obligations hereunder, except the indemnity obligations of Purchaser set forth herein. 4. Representations and Warranties of the Seller The Seller represents and warrants to the Purchaser as follows: (a) At Closing, the Seller will have and will convey good and indefeasible fee simple title to the Property, free and clear of all mortgages, liens, encumbrances, leases, tenancies, licenses, security interests, covenants, conditions, restrictions, judgments or other matters affecting title except: (i) the Permitted Exceptions; and (ii) taxes for the year of closing, such taxes not yet due and payable. (b) To the best knowledge and belief of the Seller, at Closing there will be no parties in possession of any portion of the Property as lessees, tenants, at sufferance or trespassers or otherwise and no prescriptive rights will have been acquired in, or have commenced to run against the Property or any portion thereof. (c) To the best knowledge and belief of the Seller, there is no litigation or similar proceeding pending against the property and no litigation or similar proceeding is threatened or contemplated that would affect the Property or any portion thereof. (d) At Closing, the consummation of the transaction contemplated herein will not violate or constitute a default under any provision of any contract, agreement, regulation, court order, judgment, decree, law or other document or instrument to which the Seller is subject or bound and will not violate any other restrictions or prohibition of any kind or character to which the Seller is subject. Contract for Sale and Purchase of Real Property - Page

4 (e) The Seller is duly authorized and empowered to enter into this Contract and to consummate the transactions contemplated hereunder, and any person executing this contract on behalf of the Seller is duly authorized and empowered to do so. The representations and warranties set forth above shall be continuing and shall be true and correct at Closing with the same force and effect as if made at that time and all such representations and warranties shall survive Closing. 5. Acknowledgments, Covenants and Agreements of the Seller The Seller acknowledges, covenants and agrees with the Purchaser as follows: (a) The Seller will vacate the Property thirty (30) days after the Effective Date of this Contract. All personal property of the Seller will be removed from the Property in this same time frame. (b) After the Purchaser has received written notice that the Seller has vacated the Property, the Inspection Period (herein so called) shall begin. During the Inspection Period the Purchaser and its agents and representatives shall have access to the Property at times as agreed to between the Purchaser and the Seller; such access shall not be unreasonably withheld. The Purchaser and its agents and representatives will hold harmless the Seller and all agents and representatives from any incidents resulting on the Property during any inspections. (c) The Purchaser shall have until January 24, 2013 (the date of the expiration of its entitlement approval period under its Adjacent Property Contract) to complete any and all studies, inspections of the Property. During this Inspection Period the Purchaser, without explanation required, may cancel this transaction. In the event the Purchaser elects to cancel this transaction, the Purchaser shall be entitled to the return of the Earnest Money. (e) No new or additional improvements will be constructed, located or placed on the Property. (f) To the best of the Seller s knowledge and belief, the Property does not include any personal property. (g) During the pendency of this Contract, the Seller shall not (without the prior written consent of the Purchaser) create, impose or agree to any mortgages, liens, encumbrances, leases, tenancies, licenses, security interest, covenants, conditions, restrictions, rights-of-way, easements, judgments or other matter affecting title to the Property. (h) This Contract constitutes a full and final settlement for all compensation due the Seller for the Property. The Seller waives any and all other right for additional compensation for the Property, including without limitation, the right of claim to severance damages or any damages to, or diminution in value of, other lands belonging Contract for Sale and Purchase of Real Property - Page

5 to the Seller, that may be claimed or asserted by virtue of the acquisition of the Property by the Purchaser. (j) The covenants in this Section 5 shall survive Closing. 6. The Closing The closing of this Contract pertaining to the Property shall be consummated at a closing (the Closing ) to be held at the office of the Title Company on or before February 25, 2013 (or, if earlier, one (1) business day after Purchase has completed the purchase of the Adjacent Property), or at such other time, date and place that the parties may agree upon. At Closing, the Seller agrees to deliver to the Purchaser: (a) The Deed, duly executed by the Seller and properly acknowledged, granting and conveying unto the Purchaser good and indefeasible fee simple title to the Property (according to the legal description prepared by the surveyor, if any), subject only to the Permitted Exceptions; and (b) An updated Title Commitment (at the Purchaser s sole cost and expense) committing the Title Company to issue promptly after Closing, the Title Policy pursuant to the Title Commitment, subject only to the Permitted Exceptions, in the full amount of the Purchase Price, dated as of the date of Closing; and (c) All documents reasonably required by the Title Company to close this transaction. At Closing, the Purchaser shall deliver to the Seller: (a) The Purchase Price, in good funds as that term is defined in Procedural Rule P-27 of the Basic Manual of Title Insurance for the State of Texas; and (b) Such other documents or instruments as may be necessary to evidence the authority of the Purchaser to consummate this Contract; and (c) All documents reasonably required by the Title Company to close this transaction. 7. Closing Costs and Proration Costs of title insurance for the Property, escrow fees of the Title Company, costs of recording any document in connection with the closing of the Property shall be paid by the Purchaser. All other expenses incurred by the Seller and the Purchaser with respect to the Closing shall be borne and paid exclusively by the party incurring same. Contract for Sale and Purchase of Real Property - Page

6 8. Default (a) The Purchaser s Remedies: In the event the Seller shall fail to close this Contract for any reason except the Purchaser s default, the Seller shall be in default and the Purchaser may either: (i) terminate this Contract and immediately receive the refundable portion of the Earnest Money and, in such an event, the parties will have no further obligations to one another under this Contract except for the Seller s obligation to cause the refundable portion of the Earnest Money to be returned to the Purchaser, or (ii) seek to enforce specific performance of this Contract. If the Seller is unable to deliver title as required by this Contract, the Purchaser shall have the right to take the Property with whatever title the Seller can deliver OR terminate the Contract and receive the refundable portion of the Earnest Money. (b) The Seller s Remedies: In the event the Purchaser shall fail to consummate this Contract for any reason except the Seller s default, the Purchaser shall be in default and the Seller may, as the Seller s sole and only remedy, terminate this Contract by giving written notice thereof to the Purchaser and immediately receive the Earnest Money as liquidated damages for the Purchaser s breach, thereby releasing the parties to this Contract. If the Seller terminated this Contract due to the Purchaser s default, the parties will have no further obligation to one another under this Contract. 9. Right to Possession The Purchaser shall be entitled to possession of the Property at Closing. 10. Nonwaiver No waiver by either party of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the party against which enforcement is sought. No delay or omission in the exercise of any right or remedy accruing to either party upon any breach of this Contract by the other party shall impair such right or remedy or be construed as a waiver of any such breach theretofore or thereafter occurring. The waiver by either party of any breach of any term, covenant or condition herein stated shall not be deemed to be a waiver of any other or subsequent breach of the same or any other term, covenant or condition herein contained. 11. Miscellaneous Provisions (a) Entire Agreement: This Contract (including the exhibits attached hereto) embodies the complete and entire agreement between the parties hereto relative to the Property and supersedes all prior negotiations, agreements and understandings relating thereto and may not be varied except by written agreement of such parties. (b) Bind on Assigns: This Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, heirs and assigns. Contract for Sale and Purchase of Real Property - Page

7 (c) Earnest Money: The Purchaser shall deposit as Earnest Money $3,600.00, in good funds as that term is defined in Procedural Rule P-27 of the Basic Manual of Title Insurance for the State of Texas with the Title Company, to be held in escrow pursuant to the terms of this Contract. The Title Company shall deposit the Earnest Money into one or more fully insured accounts in one or more federally insured banking or savings institutions. After receipt of any necessary tax forms from the Purchaser, the Title Company shall deposit the Earnest Money in an interest bearing account. Any interest earned will become a part of the Earnest Money. At the Closing, the Earnest Money and any interest will be applied to the Purchase Price. (d) Law and Venue: This Contract shall be construed under and in accordance with the laws of the State of Texas and is fully performable in Dallas County, Texas. (e) Partial Invalidity: In case any one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Contract shall be construed as of such invalid, illegal or unenforceable provision had never been contained herein. (f) Notices: Any notice to be given or to be served upon any party hereto in connection with this Contract must be in writing and may be given by Certified or Registered Mail and shall be deemed to have been given and received when a Certified or Registered letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States Mail, and if given otherwise than by Certified or Registered Mail, it shall be deemed to have been given when delivered to and received by the party (or such party s agents or representatives) to whom it is addressed. Such notice shall be given to the parties hereto at the address set forth under their respective signatures below. Any party hereto may, at any time by giving two (2) days written notice to the other parties hereto, designate any other address in substitution of the foregoing address. (g) Multiple Counterparts: This Contract may be executed simultaneously in two (2) or more counterparts, each of which shall be deemed an original all of which together shall constitute one and the same instrument. (h) Headings: The headings used throughout this contract have been used for administrative convenience only and do not constitute matter to be considered in interpreting this Contract. (i) Purchaser s Representation and Warranty of Authority: The Purchaser represents and warrants unto the Seller that the Purchaser has full power and authority to enter into and consummate this Contract. Contract for Sale and Purchase of Real Property - Page

8 (j) Effective Date: The effective date of this Contract shall be the last date of signature of any party set forth below. SELLER: CITY OF CARROLLTON, TEXAS a Home-Rule Municipal Corporation PURCHASER: E. S. FRANKFURT MANAGEMENT, INC., a Texas corporation By: Date: By: Leonard A. Martin Eric Frankfurt, President City Manager 5950 Sherry Lane, Suite Jackson Road Dallas, Texas Carrollton, TX Date: Contract for Sale and Purchase of Real Property - Page

9 EXHIBIT A Contract for Sale and Purchase of Real Property - Page

10 EXHIBIT B Contract for Sale and Purchase of Real Property - Page