HomeMy WebLinkAboutC2008-028 - 2/12/2008 - ApprovedAGREEMENT OF SALE
This is an Agreement with an Effective Date as provided below between THE TRUST
FOR PUBLIC LAND, a nonprofit California public benefit corporation authorized to do
business in Texas as TPL-Texas, Inc., which shall be referred to as "SeIler," and the CITY OF
CORPUS CHRISTI, a Texas municipal corporation, which shall be referred to as "Buyer."
RECITALS
A. The addresses and telephone numbers of the parties to this Agreement are as
follows. Telephone numbers are included for information only.
SELLER:
The Trust for Public Land
1113 Vine St., Suite 115
Houston, TX, 77002
Attn: Laura Sykes
Tel: {713) 226-7200
Fax: {713) 226-7229
Email: laura. Sykes@tpl. org
BUYER:
City of Corpus Christi
Attn: Sally Gavlik
1201 Leopard Street
Corpus Christi, TX 78401-2$25
Tel: {361) 826-3464
Fax: {361) 826-3864
Email: sallyg@cctexas.com
With copies to:
The Trust for Public Land
2610 University Avenue, Suite 300
St. Paul, MN 55114
Attn: Margaret .l. Madden
Tel: {651) 999-5301
Fax: (651) 917-224$
Email: maggie.madden@tpl.org
With copies to:
City of Corpus Christi
1201 Leopard Street
Corpus Christi, Texas
Tel: (361} 826-3360
Fax: {361) $26-3239
Attn: City Attorney
78401
B. The George B. Gaines, 7r. Family Limited Partnership, LTD. {"Current Owner")
is the owner of certain real property located in Nueces County, Texas consisting of
approximately 49.53 acres and depicted on E~chibit A attached hereto and made a part hereof.
Said real property, together with any and all improvements, fixtures, timber, water and/or
minerals located thereon and any and all rights appurtenant thereto including but not limited to
timber rights, water rights, access rights and mineral rights shall be referred to in this Agreement
as the "Property". The exact legal description of the Property shall be determined in accordance
with Section 31 of this Agreement.
l -30-08
2008-028
02/12/08
M2008-036
The Trust for Public Land
C. Current Owner has agreed to sell the Property and certain additional property to
Hogan Development Co., L.P. {"Hogan") and Hogan has assigned its right to purchase the
Property to Seller.
D. Upon Seller's acquisition of the Property, Buyer wishes to purchase the Property
from Seller and Seller wishes to sell the Property to Buyer in accordance with the terms and
conditions set forth in this Agreement.
NOW THEREFORE, FOR $10.00 AND OTHER GOOD AND VALUABLE
CONSIDERATION, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale. Seller agrees to sell to Buyer and Buyer agrees to buy from
Seller the Properly on the terms and conditions set forth herein.
2. Purchase Terms.
a. Price. The purchase price (the "Purchase Price") for the Property shall be
Five hundred twenty-eight thousand, nine hundred dollars ($528,900.00}.
b. Method of Pam. The Purchase Price shall be payable in cash, at
Closing (as defined below), subject to any credits, pro-rations and adjustments provided
elsewhere in this Agreement.
Buyer's Deposit. [This Section is intentionally deleted.]
4. Condition of the Property.
a. Seller shall contract with TSI Laboratories, Inc. environmental consultant
("Consultant"} to complete a Phase I Environmental Site Assessment of the Property (the
"Phase I"}. Seller will provide Buyer with a copy of the Consultant's finalized Phase I
within 5 days of Seller's receipt of the same. Buyer agrees that from the Effective Date
to, through and including the later of (a) February 15, 2008 or (b) five (5) business days
from the date of Buyer's receipt of the Phase I (the "Inspection Period"), Buyer shall
notify Seller of Buyer's intent to do the following at its sale cost and expense:
(i) make an independent investigation of the physical condition of the
Property including but not limited to the condition of the soil, the presence of
hazardous materials or contaminants, other physical characteristics, and
compliance with any statutes, ordinances or regulations; and
(ii) study all aspects or circumstances of the Property and make all
inspections and verifications which Buyer deems material, relevant or necessary
for the completion of Buyer's due diligence review for the transaction covered by
this Agreement.
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Notwithstanding any applicable law or custom to contrary, Buyer shall be solely responsible for
conducting any inspections or tests required by law at its sole cost and expense. Should Buyer
determine in its sale discretion based on its investigation of the Property or review of the Phase I
that the condition of the Property is unacceptable to Buyer, prior to the expiration of the
Inspection Period Buyer shall so notify Seller in writing of its objections ("Objections"}. In the
event Seller is unable to cause Hogan to cause the Current Owner to agree to remove any of
Buyer's Objections prior to Closing, Buyer may elect to: {i} terminate this Agreement in which
case Buyer shall have no obligation to purchase the Property and the parties' obligations
hereunder shall terminate or (ii) proceed to Closing and accept the Property subject to the
Objections without diminution of the Purchase Price. Buyer's failure to make timely Objections
will constitute a waiver of its rights to raise any Objections hereunder and Buyer will accept title
to the Property subject to such Objections.
b. Buyer agrees that:
(i) Seller has made no representations or warranties with respect to the
Property except as set forth in this Agreement;
(ii) Seller shall not be responsible for any statements, representations or
warranties of any kind furnished to Buyer by any real estate broker or any other
person, unless the same are specifically set forth in this Agreement;
(iii} no materials, brochures, or documents delivered by Seller to Buyer or
any other person {including without limitation the Phase 1 and the survey to be
provided pursuant to Section 31) shall be, or be deemed, a representation,
warranty, or agreement of Seller under, or with respect ta, this Agreement; and
Buyer has, and shall have, the exclusive responsibility for verifying any facts or
conditions set forth or described in any such materials, brochures, or documents;
and
(iv} Buyer has not undertaken any activity and will not undertake any
activity which could reasonably be construed to jeopardize Seller's efforts to
acquire the Property. The parties agree that any activity undertaken by Buyer as
required by law is not an activity that could reasonably be construed to jeopardize
Seller's acquisition effort.
c. Buyer acknowledges that Buyer will have a full and fair opportunity to
inspect the Property and any structures or improvements on the Property and to perform
any tests or analyses desired by Buyer to satisfy Buyer as to the condition of the Property.
Buyer agrees to accept the Property including any structures or improvements, "as is,
where is," subject to all faults of every kind and nature whatsoever, whether latent or
patent and whether now or hereafter existing and subject to any violations of any law or
ordinance existing on the date of closing, including without limitation those relating to
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the environmental condition of the Property. Buyer waives any and all objections to or
claims or causes of action against Seller including, but not limited to federal, state or
common law actions and any private right of action under state and federal law to which
the Property is or may be subject (including, but not limited to CERCLA and RCRA}
regarding the physical characteristics and existing structural, geologic, subsurface, soil,
water and environmental conditions on, under, adjacent to or otherwise affecting the
Property.
5. Closing. Final settlement of the obligations of the parties hereto shall occur on or
before January 31, 2009, at such date, place and time as the parties shall agree (the "Closing").
This transaction shall be closed in escrow with San Jacinto Title Services of Carpus Christi, 5926
S. Staples, Corpus Christi, TX 78413 (the "Escrow Holder"}. The transaction contemplated
hereunder shall be closed by Escrow Holder in accordance with the general provisions of the
usual form of deed and money escrow agreement then in use by Escrow Holder, with such
additional special provisions inserted in said escrow agreement as may be required to conform
with the terms and conditions of this Agreement. Buyer has submitted a request to the Texas
Parks and Wildlife Department for a grant to be used towards Buyer's Purchase Price obligation
hereunder. Buyer understands and agrees that its obligations hereunder are not contingent upon
Buyer obtaining said grant.
6. Title. Seller shall by special warranty deed convey to Buyer its interest in the
Property, subject only to the following:
(i} any federal, state or local laws, ordinances, regulations andlor orders
whatsoever;
(ii) liens for real estate taxes not yet due and payable and other taxes and
assessments of any kind or nature assessed {not yet due and payable) with respect to the
Property;
(iii) The following restriction to be placed on the Property when it is conveyed to
Seller: No roadway or other entrance to the Property, whether such roadway or entrance
is public or private, may be constructed or maintained within one hundred feet (100') of
the southern boundary of the Property. This restrictive covenant shall be enforceable by
(i) any owner of the property adjacent to the southern boundary of the Property, (ii) any
homeowners' association which includes such adjacent property, or (iii) the developer
who files a plat including such adjacent property.
(iv) such other title objections and exceptions as may be waived by Buyer;
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(v) the standard printed exceptions on the form of title insurance issued pursuant
to Section 7; and
(vi} any use restrictions required by Buyer's funding source.
The foregoing shall be referred to collectively as "Permitted Exceptions". Seller has delivered to
Buyer a copy of a commitment for title insurance covering the Property and some additional
property, issued by Escrow Holder committing the title company to issue a TLTA Owner's Policy
insuring title to the Property in Seller {the "Seller's Title Commitment"). Buyer shall at its sole
cost and expense obtain a title commitment for title insurance from Escrow Holder committing
the title company to issue a TLTA Owner's Policy insuring title to the Property in Buyer. On or
before February 15, 2008, Buyer shall advise Seller in writing of any exceptions in the Seller's
Title Commitment, other than the Permitted Exceptions, which Buyer will require to be removed
on or before Closing (such exceptions which are not Permitted Exceptions being hereafter
referred to as "Impermissible Exceptions"}. In the event Seller is unable to cause Hagan to cause
the Current Owner to agree to remove any such Impermissible Exceptions by Closing, Buyer may
elect to: (i) terminate this Agreement in which case Buyer shall have no obligation to purchase
the Property and the parties' obligations hereunder shall terminate, or {ii} proceed to Closing and
accept title to the Property with the Impermissible Exceptions without diminution of the
Purchase Price. If Buyer fails to notify Seller of any objection to exceptions in the time period
provided herein, Buyer shall be deemed to have accepted all matters set forth in Seller's Title
Commitment and the same shall be deemed Permitted Exceptions.
7. Title Insurance. Buyer shall at its option and its sole cost and expense procure a
TLTA owner's policy of title insurance from the title company that issued the commitment for
title insurance described in Section 6 insuring that title to the Property is vested in Buyer upon
Closing, subject only to the Permitted Exceptions pursuant to Section b.
8. Seller's Promise not to Further Encumber. Seller shall not, without the prior
written consent of Buyer, make any leases, contracts, options or agreements whatsoever affecting
the Property which would in any manner impede Seller's ability to perform hereunder and deliver
title as agreed herein.
9. Seller's Representations. Seller makes the following representations:
a. At Closing, Seller will have the power to sell, transfer and convey all right,
title and interest in and to the Property.
b. Seller represents and warrants that it is not a "foreign person" as defined in
Section 1445 of the Internal Revenue Code. Seller's United States Taxpayer
Identification Number is 23-7222333.
10. Taxes, Closing Expenses, Seller's Carrying Costs and Fees. At Closing, Buyer
will reimburse Seller for all costs, expenses or fees it has incurred or will incur in connection
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with or related to the acquisition, operation, or transfer of an interest in the Property, including,
but not limited to environmental assessments, appraisals, surveys, title insurance, real estate
taxes, special assessments, rollback taxes, utilities,-maintenance costs and insurance premiums;
provided, however, Seller's interest and financing expenses and attorneys' fees, other than those
that may be incurred in enforcing this Agreement, are specifically excluded under this Section.
All real property taxes on the Property, including any special assessments, levied, pending or
constituting a lien against the Property, if any, shall be assumed by Buyer. Buyer shall be
responsible for paying any additional taxes, penalties and interest, including but not limited to
compensatory or roll back taxes, on the Property arising from the termination of a preferential tax
classification of the Property payable as a result of the conveyance to Seller or Buyer. The
escrow fee for Closing shall be shared equally by Seller and Buyer. Any documentary tax or real
property transfer tax arising out of the conveyance of the Property shall be paid by Buyer or
Buyer shall at Closing reimburse Seller for said tax. Other fees and charges not otherwise
allocated in this Agreement, shall be allocated in accordance with the customary practice of
Nueces County, Texas; provided, however, ifthere is no customary practice then equally between
Seller and Buyer.
Seller will seek any real estate tax exemption available to it during its ownership of the Property;
provided, however, Seller will not be obligated to assume any costs and expenses in connection
therewith other than customary application fees, if any. Buyer agrees that it will provide
assistance to any effort by Seller to seek such exemption. Buyer, however, shall not be relieved
of its obligation to pay such taxes and assessments as required by this Agreement, unless the
Property is allowed a tax exemption during Seller's ownership. In addition, Seller will seek to
lease the Property for grazing or agricultural purposes during its ownership pursuant to terms of
an agreement reasonably acceptable to Seller. Buyer understands that Seller will not be obligated
to assume any costs, expenses or liability in connection with such a lease.
11. Notices. All notices pertaining to this Agreement shall be in writing delivered to
the parties hereto personally by hand, telecopier, courier service or Express Mail, or by first class
mail, postage prepaid, at the addresses set forth in Recital A. All notices shall be deemed given
when deposited in the mail, f rst class postage prepaid, addressed to the party to be notif ed; or if
delivered by hand, telecopier, courier service or Express Mail, shall be deemed given when
delivered. The parties may, by notice as provided above, designate a different address to which
notice shall be given.
12. [This Section is intentionally deleted.]
13. Remedies Upon Default. In the event either party defaults in the performance of
any of its obligations under this Agreement, the non-defaulting party shall have the right of
specific performance against the defaulting party, in addition to any and all other remedies
provided in this Agreement, or by law ar equity.
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14. No Broker's Commission. Each party represents to the other that it has not used
a real estate broker in connection with this Agreement or the transaction contemplated by this
Agreement. In the event any person asserts a claim for a broker's commission or finder's fee
against one of the parties to this Agreement, the party on account of whose conduct the claim is
asserted will hold the other party harmless from said claim, to the extent allowed by law without
waiving any limitations or exemptions from liability.
15. Time of the Essence. Time is of the essence of this Agreement.
16. Binding on Successors. This Agreement shall be binding not only upon the
parties but also upon their heirs, personal representatives, assigns, and other successors in
interest.
17. Additional Documents. Seller and Buyer agree to execute such additional
documents, including escrow instructions, as may be reasonable and necessary to carry out the
provisions of this Agreement.
18. Assisnment. Buyer may not assign its interests under this Agreement without the
written consent of Seller.
19. Entire A reement• Modification• Waiver. This Agreement constitutes the
entire agreement between Buyer and Seller pertaining to the subject matter contained in it and
supersedes all prior and contemporaneous agreements, representations, and understandings. No
supplement, rnadification or amendment of this Agreement shall be binding unless executed in
writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision, whether ar not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
20. Counterparts. This Agreement maybe executed in counterparts, each of which
shall be deemed an original and which together shall constitute one and the same agreement.
21. Severability. Each provision of this Agreement is severable from any and ail
other provisions of this Agreement. Should any provision(s) of this Agreement be for any reason
unenforceable, the balance shall nonetheless be of full force and effect.
22. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
23. Acceptance of Deed. The acceptance by Buyer of the deed shall be deemed to be
full performance by Seller of, and shall discharge Seller from, all obligations hereunder and
Seller shall have no further liability hereunder.
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24. Risk of Loss. Notwithstanding any applicable law or custom to the contrary, all
risk or loss with respect to the Property (other than a loss resulting from the willful acts of Seller)
shall be borne by Buyer.
25. Condemnation. In the event of the taking of all or any part of the Property by
eminent domain proceedings, or the commencement of such proceedings prior to Closing, Buyer
may, at its option, either (a} proceed to Closing with the Purchase Price reduced by the total of
any awards or other proceeds received or to be received by Seller as a result of such proceedings,
ar (b) proceed to Closing with an assignment by Seller of all Seller's right, title and interest in
and to any and all such awards and proceeds.
26. Possession. Possession of the Property shall be delivered an the date of Closing
in the same condition as it is on the date hereof andlor as required pursuant to the terms of this
Agreement, ordinary wear and tear excepted, free and clear of the rights ar claims of any other
party except as otherwise permitted in Section 6.
27. Bu er's Re resentation. Buyer represents that it has full power and authority to
enter into this Agreement and the person signing this Agreement for Buyer has full power and
authority to sign for Buyer and to bind it to this Agreement.
28. Miscellaneous. In the event that any of the deadlines set forth herein end on a
Saturday, Sunday or legal holiday, such deadline shall automatically be extended to the next
business day which is not a Saturday, Sunday or legal holiday. The term "business days" as may
be used herein shall mean all days which are not on a Saturday, Sunday or legal holiday.
29. Representation. Buyer hereby acknowledges that neither The Trust for Public
Land nor its attorney represented Buyer as an attorney in this transaction and neither actually
provided any legal advice, counsel or service to ar on behalf of Buyer. Buyer further
acknowledges that its attorney represented the interests of The Trust for Public Land solely in
this transaction.
30. Contingency. The parties agree that this Agreement is contingent upon the
following: Buyer acknowledges that Seller does not presently own the Property and that SelIer's
duties hereunder and Buyer's rights hereunder are both expressly contingent upon the acquisition
by Seller of the Property. In the event Seller does not acquire the Property by January 31, 2009,
this Agreement shall terminate and neither party shall have any further obligations hereunder.
31. Survey. Seller will cause a TBLS Category 1 A Survey of the Property to be
performed and will provide Buyer with a copy within 5 business days of Seller's receipt of the
finalized survey. The legal description of the Property will be determined in accordance with said
survey and with any requirements of the Escrow Holder.
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Buyer shall advise Seller of matters reflected in the survey(s) which are unacceptable to Buyer
(the "Survey Objections") on or before the later of (a) February 15, 2008, or {b} 10 business days
after the date Buyer receives the survey. In the event Seller is unable to cause Hogan to cause the
Current Owner to agree to remove any Survey Objections to which Buyer has objected prior to
Closing, Buyer may elect to either: {a) terminate this Agreement in which case Buyer shall have
no obligation to purchase the Property or {b) proceed with the purchase of the Property subject to
the Survey Objections without diminution of the Purchase Price. If Buyer fails to notify Seller of
any Survey Objections in the time provided herein, Buyer shall be deemed to have accepted the
survey with all matters reflected therein.
32. Conditions to Access to Property. Before entering upon the Property to conduct
the investigations provided for in Section 4, Buyer shall notify Seller and Seller shall have
obtained the Current Owner's permission for Buyer to enter upon the Property to conduct said
investigations.
Buyer does hereby indemnify and hold the Current Owner, Seller and Hogan, their officers,
directors, principals, and employees, as the case may be, harmless from and against any and all
liability, loss, cost, claim, action, suit and/or expense (including but not limited to attorneys' fees
and litigation expenses) which they may suffer or incur by reason of Buyer's or its agents
presence on the Property for the purpose of making the investigations provided for in Section 4,
to the extent allowed by law without waiving any limitations or exemptions from liability.
33. Signase. The parties agree that permanent signage on the Property shall provide
for recognition of the role of Seller in this acquisition, said signage being subject to applicable
governmental regulations and the approval of Seller. This section shall survive the delivery of
the deed.
34. Land Conservation Services Fee. Concurrent with the execution of this
Agreement, Buyer agrees to pay to Seller a $70,000.00 land conservation services fee. This fee is
for the provision of project acquisition, planning and community relations services provided by
Seller in an effort to preserve the Property for public conservation and recreation purposes.
However, Seller does not warrant or represent that its services will be successful. The parties
acknowledge that the payment to Seller described in this paragraph constitutes payment for
professional land conservation project services and is not payment for brokerage, lobbying, legal
representation or legal services provided to or for Buyer.
IN WITNESS of the foregoing provisions the parties have executed and delivered this
Agreement as of the date set forth below. The effective date (the "Effective Date") of this
Agreement shall be the last date of execution by either of the parties to this Agreement. If a party
i-3o-os
returns this Agreement by facsimile machine, the signing party intends the copy of its authorized
signature printed by the receiving facsimile machine to be its original signature.
SELLER: BUYER:
THE T ST FOR PUBLIC LAND CITY OF ORPUS CHRISTI
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