CITY OF SAN ANTONIO DEPARTMENT OF ASSET MANAGMENT CITY COUNCIL AGENDA MEMORANDUM TO: Mayor and City Council FROM: Rebecca Waldman, Director, Department of Asset Management SUBJECT: Sales Contract for approximately 11 acres at Southwest Business & Technology Park DATE: July 14,2005 SUMMARY AND RECOMMENDATIONS This Ordinance authorizes the execution of a sales contract with Dahyalal A. Gajera and Mehul Pate1 (hereafter Buyer) for the sale of approximately 11 acres of City owned property at the Southwest Business & Technology Park (former Van de Walle property) in Council District 6, for the purchase price of the greater of $19,602.00 per acre or the appraised value, and authorizes payment of 1) 5% of the final sales price for the payment of real estate broker’s fees, 2) an amount not to exceed $2,964.00 for the purchase of a title insurance policy, and 3) an amount not to exceed $500.00 for costs associated with closing. Staff recommends approval of this Ordinance. BACKGROUND INFORMATION In 1997, the City purchased 555.947 acres of property in Southwest San Antonio, known at that time as the Van de Walle Farm. In 1999, the Planning Commission and City Council approved the parcelization plan for the property that recommended the lease or sale of the property. The City has engaged Providence Commercial Real Estate Services to work as the City’s real estate brokerage team. Working with the brokers, a comprehensive marketing plan, which included changing the property name to the “Southwest Business and Technology Park” (SWBTP) was developed and implemented. The real estate brokers have been actively pursuing numerous potential businesses to locate at the SWBTP, including manufacturing, distribution, technology and other businesses. The Buyer began discussions with staff and the real estate brokers to acquire property as a location for a hotel and its associated parking needs. As such, the Buyer has negotiated with the City to purchase approximately 11 acres of property bordered by Old Highway 90 West to the south, State Highway 15 1 to the west and S. Acme Rd. to the east, as shown on Exhibit “A”. Use of the approximately 1.5 acres located in the Military Airport Overlay Zone (MAOZ) will be subject to all zoning and other associated regulations. Additionally, the property is located in a
Transcript
CITY OF SAN ANTONIO
DEPARTMENT OF ASSET MANAGMENT CITY COUNCIL AGENDA MEMORANDUM
TO: Mayor and City Council
FROM: Rebecca Waldman, Director, Department of Asset Management
SUBJECT: Sales Contract for approximately 11 acres at Southwest Business & Technology Park
DATE: July 14,2005
SUMMARY AND RECOMMENDATIONS
This Ordinance authorizes the execution of a sales contract with Dahyalal A. Gajera and Mehul Pate1 (hereafter Buyer) for the sale of approximately 11 acres of City owned property at the Southwest Business & Technology Park (former Van de Walle property) in Council District 6, for the purchase price of the greater of $19,602.00 per acre or the appraised value, and authorizes payment of 1) 5% of the final sales price for the payment of real estate broker’s fees, 2) an amount not to exceed $2,964.00 for the purchase of a title insurance policy, and 3) an amount not to exceed $500.00 for costs associated with closing.
Staff recommends approval of this Ordinance.
BACKGROUND INFORMATION
In 1997, the City purchased 555.947 acres of property in Southwest San Antonio, known at that time as the Van de Walle Farm. In 1999, the Planning Commission and City Council approved the parcelization plan for the property that recommended the lease or sale of the property. The City has engaged Providence Commercial Real Estate Services to work as the City’s real estate brokerage team. Working with the brokers, a comprehensive marketing plan, which included changing the property name to the “Southwest Business and Technology Park” (SWBTP) was developed and implemented. The real estate brokers have been actively pursuing numerous potential businesses to locate at the S WBTP, including manufacturing, distribution, technology and other businesses.
The Buyer began discussions with staff and the real estate brokers to acquire property as a location for a hotel and its associated parking needs. As such, the Buyer has negotiated with the City to purchase approximately 11 acres of property bordered by Old Highway 90 West to the south, State Highway 15 1 to the west and S. Acme Rd. to the east, as shown on Exhibit “A”. Use of the approximately 1.5 acres located in the Military Airport Overlay Zone (MAOZ) will be subject to all zoning and other associated regulations. Additionally, the property is located in a
Reinvestment Zone, therefore, the City can negotiate a land sale, based on the property’s fair market value (hereafter FMV), that does not require a public bid process. The proposed sales price of the property reflects the lack of infrastructure currently available to the property. However, if the City’s appraisal reveals a FMV that is higher than the proposed sales price, Buyer will have the option to proceed with the purchase the property for FMV, or terminate the contract with a full refund of the earnest money. The deed will retain any and all existing utility easements.
Under the terms of the contract the Buyer has a 180-day period in which to conduct its due diligence during which the sales contract may be cancelled with a full refund of the earnest money deposit to Buyer.
The advantages of the sale include placing the property back on the property tax rolls for the benefit of all taxing entities, including Edgewood Independent School District, as well as providing funds to assist in the future development of SWBTP.
The Planning Commission recommended the sale of this property at its regular meeting of June 8, 2005.
POLICY ANALYSIS
The sale of this property will facilitate the development plans of the Buyer as well as fulfill the vision for the development of the Southwest business and Technology Park. This action is consistent with prior City Council direction to sell/lease property in the SWBTP.
FISCAL IMPACT
The purchase price of the approximately 11 acres will be the greater of $19,602.00 per acre or the appraised value as determined by City’s appraisal. Additionally, the City will pay 1) a brokerage fee equal to 5% of the final sales price to Providence Commercial Real Estate Services, as provided in the City Council approved real estate brokerage agreement, 2) an amount not to exceed $2,964.00 for the purchase of a title insurance policy to Alamo Title Company, 3) a 6% real estate fee to the General Fund, to recover expenses incurred by the General Fund for staff work related to the sale of this property, and 4) an amount not to exceed $500.00 for costs associated with closing. The balance of the sales proceeds will be placed in a fund designated for use associated with the development of the Southwest Business and Technology Park.
COORDINATION
It has been determined that this property is not necessary for City purposes and is being declared surplus to our needs. The development of the parcelization plan included coordination with City departments, Southwestern Bell, City Public Service, and the San Antonio Water System.
SUPPLEMENTARY COMMENTS
The required Discretionary Contracts Disclosure Form is attached.
Rebecca Waldman, Director Department of Asset Management
Exhibit A
. Description of the Property
EXHIBIT”A
,d’ Ingress/Egress
EXTENDED
. .
City of San Antonio Discretionary Contracts Disclosure
For use of this form. see Section 2-59 through 2-61 of the City Code (Ethics Code) Attach add&ona/ sheets rf space provided is not sufficient.
(1) Identify any individual or business entity’ that is a party to the discretionary contract:
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(2) Identify any individual or business entity which is a partner, parent or subsidiary business entity, of any individual or business entity identified above in Box (I):
l- No partner, parent or subsidiary; or
List partner, parent or subsidiary of each party to the contract and identify the corresponding party:
(3) Identify any individual or business entity that would be a subcontractor on the discretionary
F No subcontractor(s); or
List subcontractors:
(4) Identify any lobbyist or public relations firm employed by any party to the discretionary contract for purposes related to seeking the discretionary contract.
P No lobbyist or public relations firm employed; or
List lobbyists or public relations firms:
’ A business entity means a sole proprietorship, partnership, firm, corporation, holding company, joint-stock company, receivership, trust, unincorporated association, or any other entity recognized by law. A sole proprretor should list the name of the Individual and the d/b/a. If any
COSA Form 1050.332 09/12/02. rewsed 04 02105
-I
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(5) Political Contributions List all political contributions totaling one hundred dollars ($100) or more within the past twenty- four (24) months made to any current or former member of City Council, any candidate for City Council, or to any political action committee that contributes to City Council elections, by any individual or business entity whose identity must be disclosed under Box (I), (2), (3) or (4) above, or by the officers, owners of any business entity listed in Box (l), (2) or (3):
w No contributions made; If contributions made, list below:
By Whom Made: To Whom Made:
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Amount:
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Date of Contribution:
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(6) Disclosures in Proposals Any individual or business entity seeking a discretionary contract with the city must disclose any known facts which, reasonably understood, raise a question2 as to whether any city official or employee would violate Section 2-43 of the Citv Code (Ethics Code), (“conflicts of interest”) by participating in official action relating to the discretionary contract.
E Party not aware of facts which would raise a “conflicts-of-interest” issue under Section 2-43 of the City Code; or
Party aware of the following facts:
This form is required to be supplemented in the event there is any change in the information before the discretionary contract is the subject of council action, and no later than five (5) business days after any change about which information is required to be filed, whichever occurs first.
Signature: Title: Date:
!hfL+-t.& +---- \ Company or D/B/A:
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’ For purposes of this rule, facts are “reasonably understood” lo “raise a questlon” about the appropnateness of offmal actlon 11 a dlsmterested person would conclude that the facts, If true, require recusal or require careful conslderabon of whether or not recusal IS required.
Real Estate Sales Contract (Gajera/Patel)
This contract to buy and sell real property is between Seller and Buyer as identified below and is effective on the date (“Effective Date”) Title Company acknowledges receipt of this contract. If the Earnest Money is paid by check and payment on presentation is refused, Buyer is in default.
Deadlines and Other Dates ................................................................................... 4 Closing Documents .............................................................................................. 4 Exhibits ................................................................................................................ 5 Purchase and Sale of Property.. ........................................................................... .5 Interest on Earnest Money .................................................................................. .5 Title and Survey.. ................................................................................................ .5 Inspection Period .................................................................................................. 7 Representations ................................................................................................... .8 Condition until Closing; No Recording of Contract ........................................... .8
10 acres, more or less, out of Parcel 8 and one acre, more or less out of Parcel 7, in Bexar County, Texas and more particularly described on
Property: Exhibit A, which is incorporated herein by reference for all purposes as if it were fully set forth. The Exhibit A initially attached to this contract is temporary and will be replaced as provided in paragraph 6.03.
Title Company: Alamo Title Company, Attention Chris Varley
Address: 112 E. Pecan, Suite 125, San Antonio, Texas 78205
The greater of (1) 456 a square foot or (2) appraised value according to an MAI appraisal selected and paid for by Seller. If the appraised value exceeds 45$ a square foot, Seller will deliver to Buyer a copy of the appraisal, and Buyer will have 20 days to provide Seller with written notice of its intention to 1) pay the appraised value and continue with the purchase, or 2) terminate this contract effective as of the date of Seller’s receipt of such written notice from Buyer. If the contract is terminated, the Earnest Money will be returned to Buyer, with any accrued interest thereon, and both Seller and Buyer will be released from any and all obligations and liabilities under this Contract. Seller will retain the Independent Consideration and the Inspection Fee.
$10,000
$100
$1,000
Buyer’s Liquidated Damages: $1,000
Seller’s Liquidated Damages: Retention of Earnest Money
County for Performance Bexar County, Texas
Buyer’s Intended Use: Commercial
1. Deadlines and Other Dates
All deadlines in this contract expire at 5:00 P.M. local time where the Property is located. If a deadline falls on a Saturday, Sunday, or federal or local holiday, the deadline will be extended to the next day that is not a Saturday, Sunday, or holiday. Time is of the essence.
1.01
1.02
1.03
1.04
1.05
1.06
1.07
Earnest Money Deadline
Delivery of Title Commitment
Delivery of Survey
Two working days after Effective Date
30 Days after the Effective Date
40 Days after Effective Date
Delivery of Title and Survey 2. Days after the receipt of Objections Survey
End of Inspection Period 180 Days after the Effective Date
Closing Date
Closing Time
30 days after the Inspection Period
10:00 A.M.
2. Closing Documents
2.0 1. At closing, Seller will deliver the following items:
2.02
2.03
Deed without Warranty (The deed will contain a covenant requiring the grantee and those claiming through it to maintain the 1” Driveway as required in the “Post-Closing Obligations.“)
IRS Nonforeign Person Affidavit
Evidence of Seller’s authority to close this transaction
At closing, Buyer will deliver the following items:
Evidence of Buyer’s authority to consummate this transaction
Deceptive Trade Practices Act waiver
Purchase Price
The documents listed above are collectively known as the “Closing Documents.”
3. Exhibits
The following are attached to and are a part of this contract:
Exhibit A-Description of the Property
Exhibit B--Representations; Environmental Matters
Exhibit C-Description of Retained Easement
4. Purchase and Sale of Property
4.01 Seller will sell and convey the Property to Buyer, and Buyer will buy and pay Seller for the Property. The promises by Buyer and Seller stated in this contract are the consideration for the formation of this contract.
4.02 Seller will retain a non-exclusive ingress and egress easement over the portion of the Property identified in Exhibit C, which must be the full width of the panhandle extending from the northern side of the Property to SH 15 1. The easement is appurtenant to all adjacent land of Seller, both north and south of the servient estate, and any portion thereof. The easement will run with the title to the dominant estates. Seller assumes no duty, however, to contribute to the maintenance of the servient estate. But see the paragraph relating to Post-Closing Obligations.
5. Interest on Earnest Money
Buyer may direct Title Company to invest the Earnest Money in an interest-bearing account in a federally insured financial institution by giving notice to Title Company and satisfying Title Company’s requirements for investing the Earnest Money in an interest-bearing account. Any interest earned on the Earnest Money will be paid to the party that becomes entitled to the Earnest Money.
6. Title and Survey
6.01, Review of Title. The following statutory notice is provided to Buyer on behalf of the real estate licensees, if any, involved in this transaction: Buyer is advised that it should either have the abstract covering the Property examined by an attorney of Buyer’s own selection or be furnished with or obtain a policy of title insurance.
6.02. Title Commitment; Title Policy. “Title Commitment” means a Commitment for Issuance of an Owner Policy of Title Insurance by Title Company,
as agent for Underwriter, stating the condition of title to the Property. The “effective date” stated in the Title Commitment must be after the Effective Date of this contract. “Title Policy” means an Owner Policy of Title Insurance issued by Title Company, as agent for Underwriter, in conformity with the last Title Commitment delivered to and approved by Buyer,
6.03. Survey.
6.03.01 “Survey” means an on-the-ground, staked plat of survey and metes-and-bounds description of the Property, prepared by Surveyor or another surveyor satisfactory to Title Company, dated after the Effective Date, and certified to comply with the current standards and specifications as published by the Texas Society of Professional Surveyors for the Category 1A Survey.
6.03.02 Promptly after the Effective Date, Buyer must procure Surveys of both the Property and the servient estate referred to in paragraph 4.02. The Surveys must be made according to the instructions of Seller and submitted to Seller for approval no later than Survey Delivery Deadline specified above.
6.03.02.01 At the comer of the Property formed by the Old Highway 90 right-of-way and the Acme Road right-of-way, the Survey must exclude the triangle formed by a line cutting across the Property from the Old Highway 90 right-of-way to the Acme Road right-of-way that is perpendicular to and tangent with the end of a line 15 feet long and bisecting into equal parts the angle made by the Old Highway 90 right-of- way and the Acme Road right-of-way.
6.03.02.02 At the comer of the Property formed by the Old Highway 90 right-of-way and the SH 15 1 right-of-way, the Survey must exclude the enclosed area formed by an arc and chord, where the arc is that formed by the Old Highway 90 right-of-way and the SH 15 1 right-of-way and the chord cuts across the Property from the Old Highway 90 right-of-way to the SH 15 1 right-of-way and is perpendicular to and tangent with the end of a line 30 feet long and bisecting the above referenced arc into two equal parts.
6.03.02.03 If the above arc is not symmetrical or if either of the above descriptions yields a geometric figure that is not reasonably symmetrical, the surveyor should seek further guidance from the parties on the nature of the exclusions from the Property.
6.03.03 Upon Seller’s approval of the Survey of the Property, the metes and bounds from the Survey automatically becomes a substituted Exhibit A to this agreement and incorporated herein by reference for all purposes, whether or not physically attached. Upon Seller’s approval of the Survey of the servient estate, the metes and bounds from the Survey automatically become Exhibit C to this agreement and incorporated herein by reference for all purposes, whether or not physically attached.
6.03.04 If Seller does not approve Buyer’s Surveys or if Buyer does not timely deliver Surveys to Seller, Seller may procure Surveys and Buyer must reimburse Seller for the reasonable cost thereof
6.04. Delivery of Title Commitment, Sumey. Seller must deliver the Title Commitment to Buyer by the deadline stated in section 1.02.
6.06. Title Objections. Buyer has until the deadline stated in section 1.04. (“Title Objection Deadline”) to review the Survey, Title Commitment, and notify Seller of Buyer’s objections to any of them (“Title Objections”). Buyer will be deemed to have approved all matters reflected by the Survey and Title Commitment to which Buyer has made no Title Objection by the Title Objection Deadline. The matters that Buyer either approves or is deemed to have approved are “Permitted Exceptions.” If Buyer notifies Seller of any Title Objections, Seller has 10 days from receipt of Buyer’s notice to notify Buyer whether Seller agrees to cure the Title Objections before closing (“Cure Notice”). If Seller does not timely give its Cure Notice or timely gives its Cure Notice but does not agree to cure all the Title Objections before closing, Buyer may, within five days after the deadline for the giving of Seller’s Cure Notice, noti@ Seller that either this contract is terminated or Buyer will proceed to close, waiving its objections. At or before closing, Seller must cure the Title Objections that Seller has agreed to cure.
7. Inspection Period
7.0 1. Entry onto the Proper-q. Buyer may enter the Property before closing to inspect it, subject to the following:
a. Buyer must deliver evidence to Seller that Buyer has insurance for its proposed inspection activities, in amounts and with coverages that are substantially the same as those maintained by Seller or in such lesser amounts or with such lesser coverages as are reasonably satisfactory to Seller;
b. Buyer may not unreasonably interfere with existing operations or occupants of the Property;
C. Buyer must notify Seller in advance of Buyer’s plans to conduct tests so that Seller may be present during the tests;
d. If the Property is altered because of Buyer’s inspections, Buyer must return the Property to its preinspection condition promptly after the alteration occurs;
e. Buyer must deliver to Seller copies of all inspection reports that Buyer prepares or receives from third-party consultants or contractors within three days of their preparation or receipt; and
f. Buyer must abide by any other reasonable entry rules imposed by Seller.
7.02. Buyer’s Right to Terminate. In consideration of Buyer’s paying Seller the Independent Consideration upon execution and delivery of this agreement, Buyer may terminate this contract for any reason by notifying Seller before the end of the Inspection Period.
7.03. Buyer ‘s Indemnity and Release of Seller
a. Indemnity. Buyer will indemnify, defend, and hold Seller harmless from any loss, attorney’s fees, expenses, or claims arising out of Buyer’s investigation of the Property, except for repair or remediation of existing conditions discovered by Buyer’s inspection.
b. Release. Buyer releases Seller and those persons acting on Seller’s behalf from all claims and causes of action (including claims for attorney’s fees and court and other costs) resulting from Buyer’s investigation of the Property.
7.04. Inspection Fee. The Inspection Fee compensates Seller for the disruption associated with Buyer’s inspection process. Buyer must pay the Inspection Fee in cash at the execution and delivery of this agreement.
8. Representations
The parties’ representations stated in Exhibit B are true and correct as of the Effective Date and must be true and correct on the Closing Date.
9. Condition until Closing; No Recording of Contract
9.01. Maintenance and Operation. Until closing, Seller will (a) maintain the Property as it existed on the Effective Date, except for reasonable wear and tear
and casualty damage; (b) operate the Property in the same manner as it was operated on the Effective Date; and (c) comply with all contracts and governmental regulations affecting the Property.
9.02. Casualty Damage. Seller will notify Buyer promptly after discovery of any casualty damage to the Property. Seller will have no obligation to repair or replace the Property if it is damaged by casualty before closing. Buyer may terminate this contract if the casualty damage that occurs before closing would materially affect Buyer’s intended use of the Property, by giving notice to Seller within 15 days after receipt of Seller’s notice of the casualty (or before closing if Seller’s notice of the casualty is received less than 15 days before closing). If Buyer does not terminate this contract, Seller will convey the Property to Buyer in its damaged condition.
9.03. Condemnation. Seller will notify Buyer promptly after Seller receives notice that any part of the Property has been or is threatened to be condemned or otherwise taken by a governmental or quasi-governmental authority. Buyer may terminate this contract if the condemnation would materially affect Buyer’s intended use of the Property by giving notice to Seller within 15 days after receipt of Seller’s notice to Buyer (or before closing if Seller’s notice is received less than 15 days before closing). If Buyer does not terminate this contract, (a) Buyer and Seller will each have the right to appear and defend their respective interests in the Property in the condemnation proceedings, (b) any award in condemnation will be assigned to Buyer, and (c) if the taking occurs before closing, the description of the Property will be revised to delete the portion taken.
9.04. No Recording. Buyer may not file this contract or any memorandum or notice of this contract in the real property records of any county. If, however, Buyer records this contract or a memorandum or notice, Seller may terminate this contract and record a notice of termination.
9.05. Replatting/Zoning. Buyer may not file a new plat for the Property before Closing. Buyer must not seek to change zoning before closing.
10. Termination
10.0 1. Disposition of Earnest Money after Termination
a To Buyer. If Buyer terminates this contract in accordance with any of Buyer’s rights to terminate, Seller will, within five days of receipt of Buyer’s termination notice, authorize Title Company to deliver the Earnest Money to Buyer. Seller will retain the Inspection Fee and the Independent Consideration.
b. To Seller. If Seller terminates this contract in accordance with any of Seller’s rights to terminate, Buyer will, within five days of receipt of
Seller’s termination notice, authorize Title Company to pay and deliver the Earnest Money to Seller. Seller will further retain the Inspection Fee and the Independent Consideration.
10.02. Duties after Termination. If this contract is terminated, Buyer will promptly return to Seller all documents relating to the Property that Seller has delivered to Buyer and all copies that Buyer has made of the documents. After return of the documents and copies, neither party will have further duties or obligations to the other under this contract, except for those obligations that cannot be or were not performed before termination of this contract.
11. Closing
11.01. Closing. This transaction will close at Title Company’s offices at the Closing Date and Closing Time. At closing, the following will occur:
a. Closing Documents. The parties will execute and deliver the Closing Documents.
b. Payment of Purchase Price. Buyer will deliver the Purchase Price and other amounts that Buyer is obligated to pay under this contract to Title Company in funds acceptable to Title Company. The Earnest Money will be applied to the Purchase Price. The Inspection Fee and the Independent Consideration do not apply to the Purchase Price.
C. Disbursement of Funds; Recording; Copies. Title Company will be instructed to disburse the Purchase Price and other funds in accordance with this contract, record the deed and the other Closing Documents directed to be recorded, and distribute documents and copies in accordance with the parties’ written instructions.
d. Possession. Seller will deliver possession of the Property to Buyer, subject to the Permitted Exceptions existing at closing.
11.02. Transaction Costs
a. Sellers Costs. Seller will pay the basic charge for the Title Policy; one-half of the escrow fee charged by Title Company; the costs to prepare the deed; the costs to obtain, deliver, and record releases of all liens to be released at closing; the costs to record all documents to cure Title Objections agreed to be cured by Seller; Title Company’s inspection fee to delete from the Title Policy the customary exception for parties in possession; and Seller’s expenses and attorney’s fees. If at closing Buyer shows an invoice for a Survey of the Property, Seller
will reimburse Buyer for up to $2,500 of Buyer’s actual cost for the Survey.
b. Buyer’s Costs. Buyer will pay one-half of the escrow fee charged by Title Company; the costs to obtain, deliver, and record all documents other than those to be recorded at Seller’s expense; the additional premium for the “survey/area and boundary deletion” in the Title Policy, if the deletion is requested by Buyer; the costs of work required by Buyer to have the survey reflect matters other than those required under this contract; the costs to obtain financing of the Purchase Price, including the incremental premium costs of mortgagee’s title policies and endorsements and deletions required by Buyer’s lender; and Buyer’s expenses and attorney’s fees.
C. Ad Valorem Taxes. Seller is not a taxpayer. Seller assumes no responsibility for ad valorem taxes for any period, rollback or otherwise.
d. Income and Expenses. Income and expenses pertaining to operation of the Property will be prorated as of the Closing Date on an accrual basis and paid at closing as a credit or debit adjustment to the Purchase Price. Invoices that are received after closing for operating expenses incurred on or before the Closing Date and not adjusted at closing will be prorated between the parties as of the Closing Date, and Seller will pay its share within 10 days of notice of Buyer’s invoice.
e. Postclosing Adjustments. If errors in the prorations made at closing are identified within 90 days after closing, Seller and Buyer will make postclosing adjustments to correct the errors within 15 days of receipt of notice of the errors.
f Brokers ’ Commissions. Buyer and Seller each represent to the other that they have not acted or omitted to act in any way that could give rise to an entitlement to a commission for the transaction to which this agreement relates except as noted at the beginning.
11.03. Issuance of Title Policy. Seller will cause Title Company to issue the Title Policy to Buyer as soon as practicable after closing.
12. Default and Remedies
12.01. Seller’s Default. If Seller fails to perform any of its obligations under this contract or if any of Seller’s representations is not true and correct as of the
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Effective Date or on the Closing Date (“Seller’s Default”), Buyer may elect either of the following, but not both, as its sole and exclusive remedy:
a. Termination. Buyer may terminate this contract by giving notice to Seller on or before the end of the Inspection Period and have the Earnest Money returned to Buyer. Seller retains the Independent Consideration and the Inspection Fee.
b. Liquidated Damages. If Seller’s Default occurs after Buyer has incurred costs to investigate the Property after the Effective Date and Buyer terminates this contract in accordance with the previous sentence, subject to appropriation of adequate funds by Council, Seller will also pay to Buyer as liquidated damages the lesser of Buyer’s actual out-of-pocket expenses incurred to investigate the Property after the Effective Date or the amount of Buyer’s Liquidated Damages, within 10 days of Seller’s receipt of an invoice from Buyer stating the amount of Buyer’s expenses.
12.02. Buyer’s Default. If Buyer fails to perform any of its obligations under this contract (“Buyer’s Default”), Seller may elect either of the following, but not both, as its sole and exclusive remedy:
a. Termination; Liquidated Damages. Seller may terminate this contract by giving notice to Buyer on or before the Closing Date and Closing Time and have the Earnest Money paid to Seller.
b. Speci$c Performance. Seller may enforce specific performance of Buyer’s obligations under this contract. If title to the Property is awarded to Buyer, the conveyance will be subject to the matters stated in the Title Commitment.
12.03. Liquidated Damages. The parties acknowledge that just compensation for the harm caused by a default by either party could not be accurately estimated or would be very difficult to accurately estimate and that the Earnest Money and the amounts provided above are reasonable forecasts of just compensation to the nondefaulting party for the harm that would be caused by a default.
13. Prohibited Interests in Contracts
13.01 The Charter of the City of San Antonio and its Ethics Code prohibit a City officer or employee, as defined in Section 2-52 of the Ethics Code, from having a financial interest in any contract with the City or any City agency such as city owned utilities. An officer or employee has a “prohibited financial interest” in a contract with the City or in the sale to the City of land, materials, supplies or service, if any of the following individual(s) or entities is a party to the contract or sale:
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(i) a City officer or employee;
(ii) his parent, child or spouse;
(iii) a business entity in which the offtcer or employee, or his parent, child or spouse owns (i) 10% or more of the voting stock or shares of the business entity, or (ii) 10% or more of the fair market value of the business entity;
(iv) a business entity in which any individual or entity above listed is a (i) subcontractor on a City contract, (ii) a partner, or (iii) a parent or subsidiary business entity.
13.02 Contractor warrants and certifies as follows:
(i) Contractor and its offtcers, employees and agents are neither officers nor employees of the City.
(ii) Contracto h t d r as en ered to the City a Discretionary Contracts Disclosure Statement in compliance with the City’s Ethics Code.
13.03 Contractor acknowledges that City’s reliance on the above warranties and certifications is reasonable.
14. Dispute Resolution.
14.01 As a condition precedent to bringing any action arising out of or relating to this agreement or any aspect thereof, including an action for declaratory relief but not an action specifically excepted below, the disputants must first submit in good faith to mediation. The parties may not assert limitations, lathes, waiver, and estoppel based upon attempts to mediate.
14.02. Filing suit on a claim that should be mediated hereunder waives the filer’s right to demand mediation. But one party’s waiver does not affect another party’s right. A defendant does not waive mediation for so long as, within a reasonable time after appearing, the defendant gives written notice to the plaintiff or its counsel of intent to require compliance with this paragraph.
14.03 Mediation must be conducted in San Antonio, Bexar County, Texas.
14.04 The party desiring relief has the burden to initiate mediation. Waiting for another party to initiate mediation does not waive the right to it.
14.05 If the parties can otherwise agree on a mediator, they may do so. Alternatively, either party may petition any court of competent jurisdiction to
appoint a mediator. The only predicate issues the court need consider before appointing a mediator are whether (i) the copy of the contract before the court is authentic and (ii) the contract was duly signed and delivered by all parties to be bound to mediate. If neither of those issues is denied under oath, the court may appoint a mediator upon motion, without trial.
14.06 Mediator fees must be borne equally.
14.07. The parties need not mediate before going to court (1) for either party to seek emergency injunctive relief or (2) for Landlord to seek forcible entry and detainer relief against Tenant.
15. Post-Closing Obligations
15.01 When Buyer brings in utility lines to the Property after the closing, the lines must be of a size and slope to permit connection and use by adjacent property.
15.02 The Property encloses on the north, east, and south a parcel fronting on Highway 15 I and retained by Seller (Seller Facility). Buyer must, at its own expense, construct a driveway over the servient estate shown on Exhibit C and along the boundary of the Seller Facility. The driveway must be completed as soon as reasonably possible. The driveway must be curbed and must be constructed according to the commercial concrete driveway standards of Item 502 of the City of San Antonio Flatwork Construction Handbook or such other standard as the parties may mutually agree on.
15.03 Buyer must further, at its own expense, and at a location satisfactory to Seller, make a curb cut in the above referenced driveway (I” Driveway”) and build a second driveway (2nd Driveway). The 2nd Driveway will run from the 1” Driveway, across the property line between the Property and the Seller Facility, to Seller’s parking lot on the Seller Facility. The 2”’ Driveway must be sufficiently elevated from the surrounding land to permit drainage and must be at least 30 feet wide. The 2nd Driveway need only have an all-weather surface.
15.04 Buyer will permit Seller to continue to use its existing drives to Old Highway 90 to get to and from the Seller Facility until Buyer completes the 1” and 2” Driveways. Buyer cannot charge Seller for the use of the existing drives. After construction of the Is’ and 2nd Driveways, Buyer will perpetually maintain the 1” Driveway in good condition, free of potholes and weeds.
15.05 Seller will cap wells as required by item A. (4) on Exhibit B.
15.06 The obligations of this paragraph survive the closing.
16. Miscellaneous Provisions
16.0 1 Applicable Law. This Agreement is entered into in San Antonio, Bexar County, state of Texas. THE CONSTRUCTION OF THIS AGREEMENT AND THE RIGHTS, REMEDIES, AND OBLIGATIONS ARISING THEREUNDER ARE GOVERNED BY THE LAWS OF THE STATE OF TEXAS. But the Texas conflicts of law rules must not be used to apply the laws of a jurisdiction other than Texas, The obligations performable hereunder by both parties are performable in San Antonio, Bexar County, Texas.
16.02 Severability. If any portion hereof is determined to be invalid or unenforceable, such determination does not affect the remainder hereof.
16.03 Successors. This Agreement inures to the benefit of and is binding on the heirs, representatives, successors, and permitted assigns of each party. This clause does not authorize any assignment not otherwise authorized.
16.04 Integration. This Written Agreement Represents The Final Agreement Between The Parties And May Not Be Contradicted By Evidence Of Prior, Contemporaneous, Or Subsequent Oral Agreements Of The Parties. There Are No Oral Agreements Between The Parties.
16.05 Modzjkation. This Agreement may not be changed orally but only by a written agreement, signed by the party against whom enforcement of any modification is sought. Subject to the foregoing, any of the terms of this Agreement may be modified at any time by the party entitled to the benefit thereof, but no such modification, express or implied, affects the right of the modifjring party to require observance of either (i) the same term or condition as it applies on a subsequent or previous occasion or (ii) any other term hereof.
16.06 Third Party BeneJiciaries. This Agreement is intended for the benefit of the parties hereto and their successors and permitted assigns only. There are no third party beneficiaries hereof
16.07 Notices. Any notice provided for or permitted hereunder must be in writing and by certified mail, return receipt requested, addressed to the parties at their respective addresses set forth in the preamble hereof If the addressee is a corporation, notices must be addressed to the attention of its President. The giving of notice is complete three days after its deposit, properly addressed and postage prepaid, with the United States Postal Service. Failure to use certified mail does not defeat the effectiveness of notice actually received, but such notice is given only upon actual receipt. Address for notice may be changed by giving notice hereunder.
16.08 Pronouns. In construing this Agreement, plural constructions include the singular, and singular constructions include the plural. No significance attaches to whether a pronoun is masculine, feminine, or neuter. The words “herein,”
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“hereof,” and other, similar compounds of the word “here” refer to this entire Agreement, not to any particular provision of it.
16.09 Captions. Paragraph captions in this Agreement are for ease of reference only and do not affect the interpretation hereof.
16.10 Counterparts. This Agreement may be executed in multiple counterparts, each of which is an original, whether or not all parties sign the same document. Regardless of the number of counterparts, they constitute only one agreement. In making proof of this agreement, one need not produce or account for more counterparts than necessary to show execution by or on behalf of all parties.
16.11 Further Assurances. The parties must execute and deliver such additional documents and instruments as may be required to effect fully the provisions hereof. No such additional document(s), however, shall alter the rights or obligations of the parties as contained in this agreement
16.12. Assignment. Buyer may assign this contract and Buyer’s rights under it only to an entity in which Buyer can, directly or indirectly, direct or cause the direction of its management and policies, whether through the ownership of voting securities or otherwise, and any other assignment is void.
16.13. Survival The obligations of this contract that cannot be performed before termination of this contract or before closing survive termination of this contract or closing, and the legal doctrine of merger does not apply to these matters. If there is any conflict between the Closing Documents and this contract, the Closing Documents control.
16.14. Ambiguities Not to Be Construed against Party Who Drafted Contract. The rule of construction that ambiguities in a document will be construed against the party who drafted it will not be applied in interpreting this contract.
16.15. No Special Relationship, The parties’ relationship is an ordinary commercial relationship, and they do not intend to create the relationship of principal and agent, partnership, joint venture, or any other special relationship.
16.16 Confidentiality. The parties will keep confidential this contract, this transaction, and all information learned in the course of this transaction, except to the extent disclosure is required by law or court order or to enable third parties to advise or assist Buyer to investigate the Property or either party to close this transaction.
16.17 Waiver of Consumer Rights. Buyer Waives Its Rights Under The Texas Deceptive Trade Practices-Consumer Protection Act, Section 17.41 El Seq. Of The Texas Business And Commerce Code, A Law That Gives Consumers Special Rights And Protections, After Consultation With An Attorney Of Its Own Selection, Buyer Voluntarily Consents To This Waiver.
In Witness Whereof, the parties have caused their representatives to set their hands to be effective as of the Effective Date.
Seller: Buyer:
City of San Antonio, a Texas municipal corporation
Signature:
Printed Name:
Title: Mehul P&
Date:
Attest:
City Clerk
Approved as to Form:
City Attorney
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Title Company Receipt:
Title Company acknowledges receipt of a copy of this contract executed by both Buyer and Seller.
Alamo Title Company
By:
Name:
Title:
Date:
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Exhibit A
Description of the Property
EXHIBIT-A=
EXTENDED PARCEL 8 Approx.
10 ACRES At!
i
Exhibit B
Representations; Environmental Matters
A. Seller’s Representations to Buyer
Seller represents to Buyer that the following are true and correct as- of the Effective Date and will be true and correct on the Closing Date.
1. Authority. Seller is a municipal corporation duly organized, validly existing, and in good standing under the laws of the state of Texas with authority to convey the Property to Buyer. This contract is, and all documents required by this contract to be executed and delivered to Buyer at closing will be, duly authorized, executed, and delivered by Seller.
2. Litigation. There is no litigation pending or threatened against Seller that might affect the Property or Seller’s ability to perform its obligations under this contract.
3. Violation of Laws. Seller has not received notice of violation of any law, ordinance, regulation, or requirements affecting the Property or Seller’s use of the Property.
4. Wells. Seller is unaware of any water, oil, or other wells on the Property. If Buyer identifies any such wells before Closing, Seller will cap them as soon as reasonably possible, even if it is after closing.
5. No Other Representation. Except as stated above or in the notices, statements, Seller makes no representation with respect to the Property.
6. contract.
No Warranty. Seller has made no warranty in connection with this
B. “As-Is, Where-k?’
This Contract Is An Arms-Length Agreement Between The Parties. The Purchase Price Was Bargained On The Basis Of An “As Is, Where Is” Transaction And Reflects The Agreement Of The Parties That There Are No Representations, Disclosures, Or Express Or Implied Warranties, Except For Seller’s Representations To Buyer Set Forth In Section A Of This Exhibit B.
The Property Will Be Conveyed To Buyer In An “As Is, Where Is” Condition, With All Faults. All Warranties Are Disclaimed.
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The provisions of this section B regarding the Property will be included in the deed with appropriate modification of terms as the context requires.
C. Environmental Matters
After Closing, As Between Buyer And Seller, The Risk Of Liability Or Expense For Environmental Problems, Even If Arising From Events Before Closing, Will Be The Sole Responsibility Of Buyer, Regardless Of Whether The Environmental Problems Were Known Or Unknown At Closing. Once Closing Has Occurred, Buyer Indemnifies, Holds Harmless, And Releases Seller From Liability For Any Latent Defects And From Any Liability For Environmental Problems Affecting The Property, Including Liability Under The Comprehensive Environmental Response, Compensation, And Liability Act (CERCLA), The Resource Conservation And Recovery Act (RCRA), The Texas Solid Waste Disposal Act, Or The Texas Water Code. Buyer Indemnifies, Holds Harmless, And Releases Seller From Any Liability For Environmental Problems Affecting The Property Arising As The Result Of Seller’s Own Negligence Or The Negligence Of Seller’s Representatives. Buyer Indemnifies, Holds Harmless, And Releases Seller From Any Liability For Environmental Problems Affecting The Property Arising As The Result Of Theories Of Products Liability And Strict Liability, Or Under New Laws Or Changes To Existing Laws Enacted After The Effective Date That Would Otherwise Impose On Sellers In This Type Of Transaction New Liabilities For Environmental Problems Affecting The Property.
The provisions of this section C regarding the Property will be included in the deed with appropriate modification of terms as the context requires.
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Exhibit C
Description of Servient Estate
The property subject to Seller’s retained ingress and egress easement is described as follows:
