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HomeMy WebLinkAboutResolution 2002-073 ') 4 ó 8 JO 12 14 16 18 20 22 24 2Ó 28 30 32 RESOLUTION NO. 2002-073 WHEREAS, the City Council desires to authorize the City Manager to execute the contract for library land acquisition authorizing payment of purchase price; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OFTHE CITYOFNORTH RICHLAND HILLS, TEXAS: Section 1: That the City Manager of the City of North Richland Hills is authorized to execute the attached contract for acquisition of land described therein for the library site, authorizing payment of the purchase price. AND IT IS SO RESOLVED. PASSED on the 23rd day of September, 2002. RICHLAND HILLS . ~J."....'" ! n) . : <~.. c JI \~<J ~ f rr :'¡::.. ~-.:>\ "í 12"'" \(À:" ,1-,' .f, .~.~\ in./ 1";. A TrßSI:··"" By: ~ " /'./) , ·..··..·l. Patricia Hutson, City Secretary AGREEMENT OF SALE AND PURCHASE THIS AGREEMENT OF SALE AND PURCHASE (the "A2reement") is made and entered into by and between CITY OF NORTH RICHLAND HILLS (hereinafter referred to as "Purchaser"), and ARCADIA HOLDINGS, INC. (hereinafter referred to as "Seller"). WIT N E SSE T H: WHEREAS, Seller is, or will be, the owner of that certain approximately 9611 square fcct of rcal property (the "Property") located in the County of Tarrant, State of Texas, and being more particularly described on Exhibit "A" attached hereto and made a part hereof for all purposes; WHEREAS, Purchaser is desirous of purchasing such Property, subject to the conditions and thc other agreements hcreinafter set forth, and Seller is agreeable to such sale and to such conditions and agrecments. NOW, THEREFORE, in consideration of the sum of Ten and NollOO Dollars ($10.00) and of thc premises and the respective undertakings of the parties hereinafter set forth, the receipt and sufficiency of which are hereby acknowlcdged, it is hereby agreed as follows: 1. Sale of Property. The Purchaser acknowledges that the Seller has entered into a certain Option Contract of Sale and Agreement to Lend with Trustees of E-Systems, Inc. Pool Trust, the predeccssor in interest to Ramco Realty, Inc. ("Ramco"), dated December 22, 1998, as amcnded (as amended, the "Purchase Contract"), under which the Seller has the right to purchase the Property (hereinafter described). Subject in all events to the completion by Seller of a purchasc of thc Property from Ramco, in consideration of the purchase price and upon the temlS and conditions hcreinafter sct forth, Seller shall sell to Purchaser and Purchaser shall purchase the Property from Seller, together with all of Seller's rights and appurtenances, if any, pertaining to such real estate, including, without limitation, any and all rights of Seller, if any, in and to all casements, riparian rights, strips and gores, and all roads, alleys, streets and ways adjacent to the Property to the center line thereof, and any existing rights of ingress and egress thereto, together with all improvements, structures and fixtures owned by Seller, if any, placed, constructed or installcd on thc Property, and all equipment, fumishings, contracts or contract rights and other tangiblc personal propcrty owncd by Scller, if any, that relate to the Property, and all lcases or other occupancy agreements, if any, affecting the Property. 2. Purchase Price and Earnest Money. (a) Purchase Price. The purchase price (the "Purchase Price") for the Property shall be the product determined by multiplying $9.84 by the number of square feet containcd in the Property as set forth on the Survey (hereinafter defined) approved (or deemed approved) by Purchaser in accordance with Paragraph Sea) hereof. (b) Earnest Money. The Purchaser shall makc an eamest money deposit (thc "Earnest Money") in the amount of Onc Hundred and No/1 00 Dol1ars ($100.00) with AGREEMENT OF SALE AND PURCHASE· Page 1 2IS(LI04 Commonwcalth Land Title Company, 5949 Sherry Lane, Suite 111, Dallas, Texas 75225, Attention: Ms. Joni Mulkey (the "Title Company" or the "Escrow A2ent") within thrcc (3) busincss days following the date hereof and receipt by Purchaser of a ful1y executed copy of this Agreement and such Eamest Money shal1 be applied at Closing (hereinaftcr defined) in the manner provided in Paragraph 3 below. The Eamest Money shal1 bc placed in an interest-bearing account, with all interest accruing thereon being for the account of, and payable to, Purchaser in al1 events, and Purchaser may withdraw such interest at any time, and from time to time, as Purchaser may elect. (c) Independent Contract Consideration Upon the ful1 and final execution hereof by both parties, Purchaser shall pay to Seller the amount of $10.00 ("Independent Contract Consideration"), which amount the parties hereto have bargained for and agreed upon as consideration for Seller's execution and delivery of this Agreement. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is non-refundable, and shal1 be retained by Seller, notwithstanding any other provisions of this Agreement. 3. Payment of Purchase Price. The Purchase Price shall be payable all in cash, by wire transfer, cashier's or certified check or other evidence of funds acceptable to the Title Company for immediate disbursement at Closing. The Eamest Money shall be applied at Closing to the Purchase Price or retumed to Purchaser at Closing. 4. Closin2. The closing (the "Closin2") of the transaction contemplated herein shall commence at 8:00 a.m. on the 1 51 day of October, 2002, or on such earlier date as may be designated by Purchascr by notice to Seller and the Title Company (the "Closin2 Date"). The Closing shall be held at the offices of Clements, Allen, Woods & Margolis, P.c., 15303 Dallas Parkway, Suite 1050, Addison, Texas 75001, or at such other location as may be acceptable to both parties. The procedure to be followed by the parties in connection with the Closing shall be as follows: (a) Seller's Closin2 Documents At the Closing, Seller shall cause to be delivcred to the Title Company al1 of the items specified herein including the following documcnts and instruments, in form reasonably satisfactory to Purchaser and Seller, duly executed and, ifrequired, acknowledged, in recordable form: (1) A special warranty deed (the "Deed"), dated as of the Closing Date, in favor of Purchaser, substantially in the form of Exhibit "B" attached hereto and made a part hereof for all purposes; (2) Evidence reasonably acceptable to Purchaser and Title Company, authorizing the consummation by Seller of the purchase and sale transaction contemplated hcreby and the exccution and delivery of the closing documents on behalf of Seller; (3) Current tax statements, if available; AGREEMENT OF SALE AND PURCHASE· Page 2 215(,.104 (4) A certificate in such foml as may be required by the Internal Revcnue Service pursuant to the IntemaI Revenue Code of 1986, as amended, or the regulations issued pursuant thereto, certifying as to the non-foreign status of a transfcror; (b) Purchaser's Closin2 Documents At the Closing, Purchaser shall cause to be delivered to the Title Company the following documents and instruments duly executcd: (1) Funds representing thc cash payment of the Purchasc Price due in accordance with Paragraph 3 hereof; (2) Evidence reasonably acceptable to Seller and the Title Company authorizing the consummation by Purchaser of the purchase and sale transaction contemplated hereby and the execution and delivery of the closing documents on behalf of the Purchaser; and Upon the complction of the deliveries above, the Escrow Agent shall be authorizcd to cause the appropriate closing documents to be immediately recorded in the appropriate records of Tarrant County, Texas, shall deliver the net proceeds from the sale to Seller, and shall delivcr countcrparts (or photocopies, as appropriate) of the closing documents to Purchaser and Sellcr. (c) Title Insurance. At Closing, Seller shall cause the Title Company to commit to fumish Purchaser with a Form T -1 Texas Standard Owner's Policy of Title Insurance (the "Owner's Policy"), in the full amount of the Purchase Price, wherein the Title Company shall insure that fee simple title to the Property is vested in Purchaser, containing no exceptions to such title other than the exceptions (the "Permitted Exceptions") shown on the Commitment (as hcreinafter defined) which have bcen approved or dcemcd approved by Purchaser, and the standard printed exceptions except that (i) the exception for area and boundaries shall be limitcd to "shortages in area" if Purchaser elects to pay the premium for such additional coverage; (ii) the exception for ad valorem taxes shall reflect only taxes for the current year and subsequent years, and subsequent assessments for prior years due to changes in land usage or ownership; (iii) there shall be no exception for "visible and apparent easements," for "public or private roads" or the like (although exception may be made by unrecorded exception shown on a specificd survey); and (iv) there shall be no exception for "rights of parties in possession." Seller shall pay the basic premium for the issuance of the Owner's Policy provided for above, Purchaser shall pay the additional premium for amendment of thc survcy exception in the Owner's Policy if the Purchaser shall elect to obtain such coverage, and all other escrow and closing costs shall be allocated to and paid by Seller and Purchascr in accordance with the manner in which such costs arc customarily bome by such parties in sales of similar property in Tarrant County, Texas, on the date of Closing; provided, however, that each party shall be responsible for the payment of its own attomeys' fces. 5. Requirements and Conditions. AGREEMENT OF SALE AND PURCHASE Page 3 2IS() 104 (a) Title Documents. Upon execution of this Agreement, Purchaser and/or Seller, as the case may be, shall perfonn the following within the time stated, each of which shall be a condition precedent to Closing: (1) Commitment On or before fifteen (15) days after the date hereof, Seller, at Se1ler's sole cost and expense, shall cause the Title Company to deliver to Purchaser (i) a Commitment for Title Insurance (the "Commitment") issued by the Title Company, showing fce simple title to the Property to be in Ramco, (ii) a true, correct and legible copy of all recorded items or documents referred to therein (the "Exception Documents"), and (iii) a current survey (the "Survey") of the Property in the form described in Paragraph 5(a)(2) below (with the Commitment, the Exception Documents and the Survey being sometimes referred to collectively herein as the "Title Documents"). Purchaser shall have ten (10) business 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. In the event that, during such Title Review Period, Purchaser shall notify Se1ler in writing of any item(s) affecting title to the Property which is unacceptable to Purchaser, Seller shall have a period (the "Title Cure Period") of ten (10) days following receipt of such written notice in which to correct or cure any such item, Seller having no obligation or duty to correct or cure any such item. In the event that Seller shall either fail to cure or correct a1l title objections timely made by Purchaser, or if Se1ler shall notify Purchaser that it is unable or unwilling to cure or correct any such objection, the Title Company shall, within two (2) business days fo1lowing the date of such notice or the expiration of such Title Cure Period, return to Purchaser all Eamest Money that has been deposited by Purchaser with the Title Company under or in connection with this Agreemcnt, whereupon this Agreement sha1l terminate, and the parties hereto sha1l be released from all obligations hereunder, except the indemnity obligations of Purchaser sct forth in Paragraph 5(b) hereof. In the altemative, at the written request of Purchaser, to be delivered to Se1ler and the Title Company within two (2) business days following the earlier to occur of (i) delivery of written notice from Seller to Purchaser that the Se1ler is unwilling or unable to cure any title objections noted by Purchascr, or (ii) fo1lowing the expiration of the Title Cure Period set forth herein without Se1ler's having cured or corrected all title objections timely made by Purchaser, Se1ler sha1l deliver the title to the Property at Closing in its existing condition and Purchaser shall, by acceptance of such title, waive all uncured objections to such title, except as to warranties contained in the documents of conveyance. All Pem1itted Exceptions shall be noted as cxceptions in the Deed. (2) Survey. The Survey, at Seller's sole cost and expense, shall be prepared by a duly licensed land surveyor reasonably acceptable to the Title Company and Purchaser, shall show the location on the Property of all improvements, building and set-back lines, fences, evidence of abandoned fences, ponds, creeks, streams, rivcrs, officially designated 100-year flood plains and AGREEMENT OF SALE AND PURCHASE Page 4 215(,.104 flood prone areas, canals, watercourses, easements, roads, rights-of-way, encroachments and such other exceptions located on the Property as may be described in the Commitment, and, in general, shan comply with an requircments of the Texas Surveyor's Association for a Category I-A Survey. The Survey shall contain a legal description of the Property described by metes and bounds which shall also include a reference to thc recorded plat, if any, and shall include a reference to the number of square feet contained in the Property, which calculation shall be conclusivc for purposes of calculation of the Purchase Price as set forth herein. The surveyor shan ccrtify to the Purchaser and to the Title Company that the Survey is corrcct and was made on the ground; that there are no visible discrepancies, conflicts, encroachments, overlapping of improvements, violations of set-back lines, fences, evidence of abandoned fences, ponds, creeks, streams, rivers, officially designated lOO-year flood plans or flood prone areas, canals, watercourses, easements, roads or rights-of-way except as are shown on the Survey. All recorded easements shan be legibly identified on the Survey by appropriate volume and page recording references. (b) Feasibility Period. For a period (the "Feasibility Period") of sixty (60) days after the date hereof, Purchascr shall have the right, during normal business hours, to perfornl any and an inspections, engineering and feasibility studies of the Property, soils tcsts, or environmental studies or inspections which Purchaser deems necessary, in its solc discretion, in order to determine whether to proceed with the Closing of this transaction. In this regard, Seller shall provide Purchaser, and/or Purchaser's agents or employecs, unlimited access to the Property during such Feasibility Period to conduct any and all such studies and inspections; provided, however, Purchaser shall indemnify and hold Scller and Ramco haml1ess from any and an costs or expenses incurred in relation to the inspections and studies described herein This indemnity by Purchaser shall cxpressly survive the Closing or any other termination of this Agreement. If Purchaser shall find any such inspections or studies to be unsatisfactory, Purchaser shall have the right, at its option, to temlinate this Agreement prior to the expiration of the Feasibility Period and, upon such tennination, all Eamest Money previously deposited shall bc immediately refunded or returned, as appropriate, to Purchaser and the parties hereto shall have no furthcr liabilities one to the other, other than the indemnity obligations of Purchaser set forth in this Paragraph 5(b). In this regard, by Purchascr dclivering a copy of a notice of temlination called for pursuant to this Paragraph 5(b) to the Title Company, on or before the expiration of such Feasibility Period, Seller hereby authorizcs and directs the Title Company to immediately retum the Earnest Money to Purchascr without requiring any further authorizations or approvals from the Seller. Upon tcmlination of the Agreement by the Purchaser in accordance with this Paragraph 5(b), the Purchaser shall simultaneously provide to the Seller, and as a condition precedcnt to the refund of the Eamest Money, a true, correct and complete copy of any environmcntal studies or soils tests obtained by the Purchaser with regard to the Property. 6. Representations. Warranties and Disclaimers. (a) Representations and Warranties. In addition to the representations and AGREEMENT OF SALE AND PURCHASE Page 5 2156.104 warranties contained in other articles of this Agreement, Seller makes the following representations and warranties, to the hest of its actual knowledge and helief, which shall bc true and correct as of the Closing Date and shall survive the Closing for the limitcd period set forth herein, and the truth of which shall be a condition precedent to Purchascr's obligations to close the transaction contemplated herein: (I) Seller will have good and indefeasible fee simple title to the Property as of the Closing Date and the Property is free and clear from any liens or encumbrances of any sort whatsoever except those described herein, and there is no existing or pending litigation, claims, condemnations or sales in lieu thereof, with respect to any aspect of the Property nor have any such actions, suits, proceedings or claims been threatened or asserted. (2) Seller has received no notice and has no knowledge of any pending improvements, liens or special assessments to be made against the Property by any govemmental authority. (3) Seller has not received notice of any violations of any rights, ordinances, orders, regulations or requirements affecting any portion of the Property. Seller shall provide to Purchaser copies of any notices or such violations it may receive following the date hereof. (4) No pcrson, firm or corporation or other entity has any right or option to acquire the Property, or any part thereof, from Seller. (5) Neither thc execution and delivery of this Agreement by Seller nor Seller's pcrformance of its obligations hereunder will result in a violation or breach of any term or provision or constitute a default or accelerate the performance required under any other agreement or document to which Seller is a party or is otherwise bound or to which the Property, or any part thereof, is subject, and will not constitute a violation of any law, ruling, regulation or order to which Seller is subject. (6) The party or parties executing this Agreement on behalf of Sellcr have been duly authorized and are empowered to bind Seller to this Agreement. (b) Disclaimer As a condition precedent to Seller's undertakings and agreemcnts hereunder, Seller expressly disclaims and Purchaser acknowledges and accepts that Seller has disclaimed making any representations, warranties, or assurances with respect to the Property other than as specifically set out herein, specifically including, but not limited to, representations or warranties as to matters of title, zoning, tax consequences, physical condition, operating history or projections, valuations, governmental approvals or compliance with applicable laws, ordinances, statutes or governmental regulations, including, without limitation, statutes or regulations relating to hazardous materials or toxic substances. With respect to the Property, Purchaser will rely upon its inspections thereof or its AGREEMENT OF SALE AND PURCHASE· Page 6 215(,.104 determinations not to inspect the same, and upon Closing shall accept the Property in its" AS IS" condition, with all faults, and without reference to merchantability or fitness for any specific purpose. With regard to the Property, "AS IS" means, without limitation, "AS IS" physical condition (both as to defects seen and unseen and conditions natural or artificial), "AS IS" with respect to all documents, agreements, restrictions, leases and covenants to which the Property is subject and which have been disclosed by Seller to Purchaser, and "AS IS" with respect to all laws, ordinances, rules and regulations to which the Property is subject under any applicable 20vernmental or regulatory jurisdiction. (c) No Indirect Liability No partner, joint venturer, officer, sharcholder, director, agent or employee of Seller, nor any of their respective beneficiaries, partners, officers, agents or employees, heirs, successors or assigns shal1 have any pcrsonal liability of any kind or nature for or by reason of any matter or thing whatsoever under, in connection with, arising out of or in any way related to this Agreement or the transactions contcmplated herein, and Purchaser hereby waives, for itself and anyone who may claim by, through or under Purchaser, any and all rights to sue or recover against any such pcrsons or entities on account of any such alleged pcrsonalliability. 7. Closing. Possession. Purchaser shall be entitled to full possession of the Propcrty at 8. Prorations and Adjustments. Collected rents, tenant reimbursement amounts or chargcs, and ad valorem taxes or other tax asscssments shal1 be prorated at the Closing, effectivc as of the Closing Date, utilizing the best available computations of such items. If current ad valorem tax assessmcnts are unavailable at Closing, said ad valorem taxes shall be adjusted based on tax asscssments for the immediately preceding tax year, with Purchaser to assume the payment of all taxes relative to the Property for the year in which the Closing occurs and subscquent years; provided, however, if actual taxes relative to the Property vary from the amounts used for proration at Closing, the parties shal1 readjust such tax prorations following receipt of such actual tax statements. 9. Commissions. Purchaser does hcreby represent and warrant that it, its officers, employees and agents have contracted for no real estate commissions or similar fècs, nor has Purchaser, without knowledge of Seller contacted real estate agents or brokers, nor has Purchaser, without Scller's knowledge, acted in a manner so as to give rise to a claim for rcal estate commissions or similar fees payable by Seller. Purchaser shall indemnify Seller and hold Seller hamllcss from and against any and all such real estate commissions or similar fees, including costs and attomeys' fees incurred by Seller in any dispute regarding commissions and fees claimed to be due or arising from the actions of Purchaser. By its execution hereof, Purchaser hereby acknowledges that, pursuant to the terms of the Texas Real Estate License Act, it has been informed that it should obtain, in connection with its purchase of the Property, either an owner's policy of title insurance or it should have an abstract of title of the Property examined by an attorney of its choice. AGREEMF.NT OF SALE AND PURCHASE· Page 7 2156.104 10. Further Instruments Seller will, whenever and as often as it shall be reasonably rcquestcd so to do by Purchaser or the Title Company, and Purchaser will, whenever and as often as it shall be reasonably rcquested so to do by Sel1er or the Title Company, execute, acknowledge and deliver, or cause to be exccuted, acknowledged and delivered, any and all affidavits, certificatcs, notices, conveyances, assignments and al1 other documents and instruments as may be reasonably necessary in order to complete the transaction herein provided for and to carry out the intent and purposes of this Agreement. 11. Termination and Remedies. (a) Default by Seller In thc event that Seller shall be in default in any of thc agrecments or obligations contained herein which are to be performed by Seller within thc time periods for performance or cure as set out herein, and Purchaser shall not then be in default of its obligations hcreunder, Purchaser may elect either of thc following remedies: (i) to tcrminate this Agreement by giving written notice of termination to Seller within thc time period specified herein for such notice and receive a full and immediate refund and/or return, as is appropriate, of any and all Eamest Money previously depositcd, or (ii) to seek to enforce specific performance of this Agreement, subject to titlc objections which Seller has no duty or obligation to cure or correct, the Purchaser hereby waiving all rights to seek monetary damages for breach of this Agrecment by Seller. (b) Default by Purchaser. In the evcnt that Purchaser shal1 be in dcfault of any of the obligations or agreemcnts contained herein, and Se1ler shall not then be in default of its obligations hereunder, Sellcr may elect any of the fol1owing rcmedies: (i) to receive the Eamest Money as liquidated damages, and not as a penalty, or (ii) to seek monetary damages for breach of this Agreement by Purchaser. Seller and Purchaser acknowledge that actual monetary damages due to a default in this Agreement by Purchaser may be difficult or impractical to ascertain, and, if the default by Purchaser occurs prior to the Closing, the Earnest Money represcnts a reasonable approximation of Scllcr's damages for Purchaser's failure to close this transaction that is fair and reasonable in light of al1 relevant circumstances. (c) Liability of Escrow A2ent The Purchaser and the Seller shall, severally and not jointly, indemnify and hold the Escrow Agent harmless from all damages, costs, cxpcnses, or other charges it may incur or be required to pay due to or as a result of its compliance with its duties and obligations under the terms of this Agreement. Should the Escrow Agent, receive or become aware of any conflicting demands or claims conceming this Agreement, or the right of any of the parties hereto to receive the Eamest Money, the Escrow Agent shal1 have the right to discontinue any or a1l further acts on its part until the conflict is rcsolved to its satisfaction, and Escrow Agent sha1l have a further right to commence or defend any action or proceeding for the determination of any such conflict. The parties hcreto, severa1ly and not jointly, agree to pay all costs, damages, judgments and expenscs, including reasonable attomeys' fees, suffered or incurred by the Escrow Agcnt in connection with, or arising out of, this Agreement, other than resulting from Escrow Agent's own negligence or wrongful intentional acts or omissions, including, but AGREEMENT OE SALE AND PURCHASE Page 8 2156104 without limiting the generality of the foregoing, a SUIt III interpleader brought by the Escrow Agent. If the Escrow Agent files a suit in interpleader, the Escrow Agent shall, by that filing, be fully released and discharged from a1l obligations imposed on the Escrow Agent in this Agreement, other than those resulting from the Escrow Agent's own ncgligence or wrongful intentional acts or omissions. 12. Risk of Loss Risk of loss until Closing sha1l be bome by Se1ler. In the event that any damage or destruction of the Property, or any part hereof, by fire or other casualty, or through condemnation or sale in lieu thereof, occurs prior to the actual Closing of the transactions contemplated hereby, the Purchaser sha1l, at its option, elect one of the fo1lowing: (a) To temlinate this Agreement and reccive an immediate refund of all Eamest Moncy previously deposited; or (b) To close this transaction as provided herein and accept an assignment of such insurance proceeds or condemnation proceeds arising from such casualty or condemnation, and rcceive an additional credit against the portion of the Purchasc Pricc due at Closing in the amount of any deductible applicable to such insurance coverage. 13. Purchase of Additional Land. (a) Aftcr thc Closing and until the Purchaser has purchased the additional land described in Scction 13(b) below, the Purchaser makes the following covenants: (i) Purchaser sha1l maintain the Property in the same condition as thc Property was in when Purchaser purchased the Property from the Se1ler. (ii) Purchaser shall not make any changes or improvements to the Property, including any devclopment or construction of the library. (iii) Purchaser shall not allow any "hazardous materials" to be brought on the Property. As uscd hcrein, "hazardous materials" means any explosives, radioactive materials, gasolinc, diesel fucl, asbestos, lead based paint, or other hazardous waste including, without limitation, substances defined as "hazardous substances," "hazardous materials," or "toxic substances," in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or any regulations promulgated thereunder; The Hazardous Materials Transportation Act or any regulations promulgated thereunder; or "hazardous waste" as defined in the Resource Conservation and Recovery Act, or any regulations promulgated thereunder; or any substance regulated by the Toxic Substances Control Act, or any regulations promulgated thereunder, all as amended. (b) The Property conveyed to the Purchaser pursuant to this Agreement is an advance conveyancc of a portion of the land Se11er has agreed to se1l and Purchaser has agrccd to purchase for the City Library in the contract between the parties dated April 10, 2001 styled Home Town North Richland Hi11s Comprehensive Development Agreement (the "Development A2rcement"), subjcct to a number of conditions therein set forth. It is agreed and understood AGREEMENT OF SALE AND PURCHASE· Page 9 215Ú.I04 that thc conveyance of the Property wil1 bc subject to al1 the conditions of the Development Agrccment. It is also agreed that if Purchaser does not purchase the remaining portion of such land required for the City Library pursuant to the Development Agreement within two (2) ycars after the conveyance of the Property to the Purchaser, the Property shal1, at the option of either of the parties hereto, be resold by Purchaser to Seller herein for the same price as it is being sold for in this Agreement. (c) The terms and conditions of this Section 13 shall expressly survive the Closing of the Property. 14. Notices. Any notice, request, demand, instruction or other communication to be givcn to either party hereunder, except those required to be delivered at Closing, shall be in writing, and shal1 be deemed to be delivered upon the earlier to occur of (a) receipt, if hand delivered, delivercd by express delivery service or courier, or delivered by facsimile transmission (with proof of transmission), or (b) three (3) days following the deposit of such written noticc in registered or certified mail, retum receipt requested, postage prepaid, addressed as follows: I f to Sel1er: Arcadia Holdings, Inc. 5440 Harvcst Hil1, Suite 206 Dal1as, Texas 75230 Attention: Mr. John Hodge Phone No. (972) 774-9110 Fax No. (972) 774-9111 Copy to: Robert M. Allen, Esq. Clements, Allen, Woods & Margolis, P.C. 15303 Dallas Parkway, Suite 1050 Addison, Texas 75001 Phone No. (972) 991-2600 Fax No. (972) 991-2601 I f to Purchaser: City of North Richland HiI1s 7301 N.E. Loop 820 P.O.Box 820609 Fort Worth, Texas 76107 North Richland Hil1s, Texas 76180 Attention: Greg Vick Phonc No. (817) 427-6009 Fax No. (817) 427-6016 Copy jQ: Gcorge A. Staples, Esq. T ^ YLOR, OLSON, ADKINS, SRALLA & ELAM, L.L.P. 6000 Wcstern Place, Suite 200 1-30 @. Bryant Irvin Road Fort Worth, Tcxas 76107 Phone No. (817) 332-2580 Fax No. (817) 332-4740 AGREEMENT OF SALE AND PURCHASE· Page 10 215(,.104 The addresses, addressces or facsimile telephone numbers for the purpose of this articlc may be changed by either party by giving notice of such change to the other party in the manner provided for herein for giving notice. For the purpose of changing such addresses, addressees or facsimile telephone numbers only, unless and until such written notice is received, the last addrcss, addressee or facsimile telephone numbers stated herein shall be deemed to continue in effect for all purposcs. 15. Miscellaneous. (a) Entire A2reement This Agreement and the exhibits attached hereto contain the entire agreement between the parties, and no promise, representation, warranty or covenant not included in this Agrcement or any such referenced agreements has been or is being relied upon by either party. Furthem10re, neither party has made any rcprescntations, warranties or covenants to the other concerning any tax benefits or tax treatment which may accrue or be givcn to the other party in connection with the transactions contemplated hereby. Each party has relied upon its own cxamination of the full Agreement and the provisions thereof, and the counsel of its own advisors, and the warranties, representations and covenants expressly contained in this Agreemcnt. No modification or amendment of this Agreement shall be of any force or effect unless made in writing and executed by both Purchaser and Seller. (b) Construction, Venue and Attorney's Fees. In the event that any litigation arises hereunder, it is specifically stipulated that this Agreement shall be interpreted and construed according to the laws of the State of Texas, and shall be perfomlable in Tarrant County, Texas. Further, the prevailing party in any litigation betwccn the parties shall be entitled to recover reasonable attomeys' fees and all costs and expenses relatcd to such litigation. (c) Limited Survival. All representations, warranties, covenants, obligations and agrcements made by both Purchaser and Seller hereunder shall survive the execution and delivery of the Deed and shall survive the Closing for a period of one (1) month following the Closing Date, at which time all such representations, warranties and agrcements shall tem1inate and be of no further force and effect and shall be deemed to be mcrged into the documcnts and instruments executed by the parties at the Closing. (d) Multiple Counterparts~ Headin2s. This Agreement may be executed in any number of counterparts which together shall constitute the agreement of the parties. The article headings herein contained are for purposes of identification only and shall not be considered in construing this Agreement. (e) Time of the Essence~ Business Days. Timc is of the essence with respect to the performance of all obligations provided herein and the consummation of all transactions contemplated hereby. All references in this Agreement to "busincss days" shall mean all days except Saturdays, Sundays and days on which national banks are officially closcd for busincss. AGREEME:NT OF SALE: AND PURCHASE· Page 11 2156.104 (I) Computation of Time Periods In computing any period of time under this Agreement, the date of the act, event or default from which the designated period of time begins to run shall not be included. The last day of any period computed under this Agreemcnt shall be included unless it is a Saturday, Sunday or day on which national banks are officially closed for business, in which event the period shall run until the end of the next business day. (g) Assienment This Agreement, and the rights and obligations hercunder, may not be assigned by Purchaser without the prior written consent or approval of the Seller. In the event of any permitted assignment, Seller agrees to close the transaction contemplated hereunder with the permitted assignee of Purchaser. The rights and obligations of Seller under this Agreement may be assigned by Sel1er upon assumption by any such assignee of the rights and duties of Seller hereunder. (h) Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall bc fully sevcrable, and this Agrcement shal1 be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of the Agreement, and the remaining provisions of the Agreement shal1 remain in full force and effect and shall not be affcctcd by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid, or unenforceable provision, there shall be deemed added automatically as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. (i) Effective Date; Termination of Offer All references in this Agreement to the "effcctive date" or "the date hereof" or similar references shal1 be deemed to refcr to the last date, in point of time, on which Purchaser and Sel1er have executed this Agreemcnt. This Agreement constitutes an offer by Seller to sell the Property to Purchaser on the terms and conditions and for the Purchase Price specified herein. Unless sooner terminated or withdrawn by notice in writing to Purchaser, this offer shall lapse and terminate at the close of Seller's business day on September 23, 2002, unless, prior to such time, the Purchaser has executed and retumed to Seller a fully executed countcrpart( s) 0 f this Agrecment. (j) Parties Bound. Subject to pennitted rights of assignment hereof, this Agreement and the terms and provisions hereof shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, personal representativcs, successors and permitted assigns whenever the context so requircs or admits. No third party shall have any rights, claims, benefits or obligations accruing hercunder, unless such third party is claiming same by virtue of rights or interests obtained from Purchaser or Seller in accordance with the rights of assignment pemlitted hereundcr. (k) Confidentiality The Seller shall hold as confidential all information AGREEMENT OF SALE AND PURCHASE· Page 12 2156.104 concerning the Purchaser disclosed to Seller in connection with the transaction contcmplated herein, including all financial statements, credit references and similar information. If the Purchaser terminates this Agreement prior to the Closing, in accordance with the terms and conditions hereof, the Seller shall retum to Purchaser all information conceming Purchaser disclosed to the SeHer in connection with this transaction. Without the Purchaser's prior written consent, the Seller shaH not disclose any financial infomlation relative to the Purchaser to any third parties, except pursuant to a court order requiring such release or as otherwise may be required by law, or in connection with enforcement of the rights and remedies of the SeHer under this Agreement. Until the Closing, the Purchaser shall hold as confidential all infonnation conceming the Property disclosed by the Seller to the Purchaser in connection with the transaction contemplated herein, including all development plans, environmental reports and similar information. If the Purchaser terminates this Agreement prior to the Closing, in accordance with thc terms and conditions hereof, the Purchaser shaH return to Seller all infomlation conceming the Property disclosed to the Purchaser in connection with this transaction. Until the Closing, thc Purchaser may disclose such information regarding the Property only to its authorized representatives, agents and attomeys, and potential lenders or cquity participants in such transaction. EXECUTED by Purchaser the _ day of September, 2002. PURCHASER: CITY OF NORTH RICH LAND HILLS By: Name: Title: EXECUTED by SeHer the day of September, 2002. SELLER: ARCADIA HOLDINGS, INC., a Texas corporation By: John Hodge, President AGREEMENT OF SALE AND PURCHASE· Page 13 2156.104 2 4 ó 8 10 12 14 16 18 20 22 24 26 28 30 32 RESOLUTION NO. 2002-073 WHEREAS, the City Council desires to authorize the City Manager to execute the contract for library land acquisition authorizing payment of purchase price; NOW, THEREFORE, BE IT RESOLVED BYTHE CITY COUNCILOFTHE CITYOFNORTH RICHLAND HILLS, TEXAS: Section 1: That the City Manager of the City of North Richland Hills is authorized to executc the attach cd contract for acquisition of land described therein for the library site, authorizing payment of the purchase price. AND IT IS SO RESOLVED. PASSED on the 23rd day of September, 2002. RICHLAND HILLS . , '<\< \'í} .:.f. [n') ,<,,' I U ~, f r;1 ,»., Ir .-" <p~, ; !.." \f-\ i\.. /.) ~\ n / ((.:" 'A TrßSJ:..··/ By: ., 'l Patricia Hutson, City Sccretary AGREEMENT OF SALE AND PURCHASE THIS AGREEMENT OF SALE AND PURCHASE (the "A2reement") is made and entered into by and between CITY OF NORTH RICHLAND HILLS (hereinafter referred to as "Purchaser"), and ARCADIA HOLDINGS, INC. (hereinafter referred to as "Seller"). WIT N E SSE T H: WHEREAS, Scl1er is, or will be, the owner of that certain approximately 96 I I square feet of rcal property (the "Property") located in the County of Tarrant, State of Texas, and being more paliicularly described on Exhibit "A" attached hereto and made a part hereof for all purposes; WHEREAS, Purchaser is desirous of purchasing such Property, subject to the conditions and the other agreements hereinafter set forth, and Seller is agreeable to such sale and to such conditions and agreements. NOW, THEREFORE, in consideration of the sum of Ten and NolIOO Dollars ($10.00) and of the prcmises and the respective undertakings of the parties hercinafter set forth, the receipt and sufficicncy of which are hcreby acknowledged, it is hereby agreed as follows: 1. Sale of Property. The Purchaser acknowledges that the Seller has entered into a certain Option Contract of Sale and Agreement to Lend with Trustees of E-Systems, Inc. Pool Trust, the predecessor in interest to Ramco Realty, Inc. ("Ramco"), dated December 22, 1998, as amendcd (as amcnded, the "Purchase Contract"), undcr which the Scl1er has the right to purchasc the Propcrty (hereinaftcr described). Subject in al1 events to the completion by Sel1er of a purchase of the Property from Ramco, in consideration of the purchase price and upon thc terms and conditions hereinafter set forth, Seller shal1 sell to Purchaser and Purchaser shall purchase the Property from Seller, together with al1 of Seller's rights and appurtenances, if any, pertaining to such real estate, including, without limitation, any and all rights of Seller, if any, in and to all easements, riparian rights, strips and gores, and all roads, alleys, streets and ways adjacent to the Propcrty to the center line thereof, and any existing rights of ingress and egress thereto, together with all improvements, structures and fixtures owned by Seller, if any, placcd, constructed or installed on the Property, and all cquipment, furnishings, contracts or contract rights and other tangible personal property owned by Seller, if any, that relate to the Property, and all leases or other occupancy agrcements, if any, affccting the Property. 2. Purchase Price and Earnest Money. (a) Purchase Price. The purchase price (the "Purchase Price") for the Property shal1 be the product determined by multiplying $9.84 by the number of square feet contained in the Property as set forth on the Survey (hereinafter defined) approved (or dccmed approved) by Purchaser in accordance with Paragraph 5(a) hereof. (b) Earnest Money. The Purchaser shall make an earnest money deposit (the "Earnest Money") in the amount of One Hundrcd and Noll 00 Dollars ($100.00) with AGREEMENT OF SALE AND PURCHASE· Page 1 215(,.104 Commonwcalth Land Title Company, 5949 Sherry Lane, Suite 111, Dallas, Texas 75225, Attention: Ms. Joni Mulkey (the "Title Company" or the "Escrow A2ent") within threc (3) business days following the date hereof and receipt by Purchaser of a fully executed copy of this Agreement and such Eamest Money shall be applied at Closing (hereinafter dcfined) in the manner provided in Paragraph 3 below. The Eamest Money sha1l be placed in an interest-bearing account, with all interest accruing thereon being for the account of, and payable to, Purchaser in all events, and Purchaser may withdraw such intercst at any time, and from time to time, as Purchaser may elect. (c) Independent Contract Consideration Upon the fu1l and final execution hereof by both parties, Purchaser sha1l pay to Sel1er the amount of $1 0.00 ("Independent Contract Consideration"), which amount the parties hereto have bargained for and agreed upon as consideration for Se1lcr's execution and delivery of this Agreement. The Independcnt Contract Consideration is in addition to and independent of any other considcration or payment provided in this Agreement, is non-refundable, and sha1l be retained by Sel1er, notwithstanding any other provisions of this Agreement. 3. Payment of Purchase Price. The Purchase Price shall be payable al1 in cash, by wire transfer, cashier's or ccrtified check or other evidence of funds acceptable to the Title Company for immediate disbursement at Closing. The Eamest Money shall be applied at Closing to the Purchase Price or rcturned to Purchaser at Closing. 4. Closin2. The closing (the "CIosin2") of the transaction contemplated hcrein sha1l commence at 8:00 a.m. on the 1 st day of October, 2002, or on such earlier date as may be designated by Purchaser by notice to Sel1er and the Title Company (the "Closin2 Date"). The Closing shall be held at the offices of Clements, Allen, Woods & Margolis, P.C., 15303 Dal1as Parkway, Suitc 1050, Addison, Texas 7500 l, or at such other location as may be acceptable to both partics. The procedure to be fol1owed by the parties in connection with the Closing shall be as f01l0ws: (a) Seller's CIosin2 Documents At the Closing, Seller sha1l cause to bc dclivered to the Title Company al1 of the items specified herein including the following documents and instruments, in form reasonably satisfactory to Purchaser and Seller, duly executed and, if required, acknowledged, in recordable form: (1) A special warranty deed (the "Deed"), dated as of the Closing Date, in favor of Purchaser, substantially in the form of Exhibit "B" attached hereto and made a part hereof for a1l purposes; (2) Evidence reasonably acceptable to Purchaser and Title Company, authorizing the consummation by Se1ler of the purchase and sale transaction contemplated hereby and the cxecution and delivery of thc closing documents on bchaIf of Seller; (3) CUlTent tax statements, if available; AGREEMENT OF SALE AND PURCHASE· Page 2 215ó.!04 (4) A certificate in such form as may be required by the Internal Revcnuc Service pursuant to the Intemal Revenue Code of 1986, as amended, or the regulations issued pursuant thereto, certifying as to the non-foreign status of a transferor; (b) Purchaser's Closin2 Documents At the Closing, Purchaser shall cause to be delivered to the Title Company the following documents and instruments duly executed: (1) Funds representing the cash payment of the Purchase Price due in accordance with Paragraph 3 hereof; (2) Evidence reasonably acceptable to Seller and the Title Company authorizing the consummation by Purchaser of the purchase and sale transaction contemplated hereby and the execution and delivery of the closing documents on behalf of the Purchaser; and Upon the completion of the deliveries above, the Escrow Agent shall be authorized to cause the appropriate closing documents to bc immediately recorded in the appropriatc records of Tarrant County, Texas, shall dcliver the net proceeds from the salc to Seller, and shall deliver countcrparts (or photocopies, as appropriate) of thc closing documents to Purchaser and Seller. (c) Title Insurance. At Closing, Seller shall cause the Title Company to commit to fumish Purchaser with a Form T -1 Texas Standard Owner's Policy of Title Insurance (the "Owner's Policy"), in the full amount of the Purchase Price, wherein the Title Company shal1 insure that fee simple title to the Property is vested in Purchaser, containing no exceptions to such title other than the exceptions (the "Permitted Exceptions") shown on the Commitment (as hereinafter defined) which have bccn approved or deemed approvcd by Purchaser, and the standard printcd exceptions except that (i) the cxception for area and boundaries shal1 be limited to "shortages in area" if Purchascr clects to pay the premium for such additional coverage; (ii) the exception for ad valorem taxes shall reflect only taxes for the current year and subsequent years, and subsequent assessments for prior years due to changes in land usage or ownership; (iii) there shall be no exception for "visible and apparent easements," for "public or private roads" or the like (although exception may be made by unrecorded exception shown on a specified survey); and (iv) there shall be no exception for "rights of parties in possession." Seller shal1 pay the basic premium for the issuance of the Owner's Policy provided for above, Purchaser shall pay the additional premium for amendment of the survey exception in the Owner's Policy if the Purchaser shall elect to obtain such covcrage, and all other escrow and closing costs shall be allocated to and paid by Seller and Purchascr in accordance with the manncr in which such costs are customarily bornc by such parties in sales of similar property in Tarrant County, Texas, on the date of Closing; provided, howcver, that each party shal1 be responsible for the payment of its own attorneys' fees. 5. Requirements and Conditions. AGREEMENT OF SALE AND PURCHASE· Page 3 2156.104 (a) Title Documents. Upon execution of this Agreement, Purchaser and/or Scller, as the case may be, shall perfoml the following within the time stated, each of which shall be a condition precedent to Closing: (1) Commitment On or before fifteen (15) days after the date hereof, Seller, at Seller's sole cost and expense, shall cause the Title Company to deliver to Purchaser (i) a Commitment for Title Insurance (the "Commitment") issued by the Title Company, showing fee simple title to the Property to be in Ramco, (ii) a true, correct and legible copy of a1l recorded items or documents referred to therein (the "Exception Documents"), and (iii) a current survey (the "Survey") of the Property in the form described in Paragraph 5(a)(2) below (with the Commitment, the Exception Documents and the Survey being sometimes referred to c01lectively herein as the "Title Documents"). Purchaser shall have ten (10) business 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. In the event that, during such Title Review Period, Purchaser shall notify Seller in writing of any item(s) affecting title to the Property which is unacceptable to Purchaser, Se1ler shal1 have a period (the "Title Cure Period") of ten (10) days fol1owing receipt of such written notice in which to correct or cure any such item, Sel1er having no obligation or duty to correct or curc any such item. In the event that Scl1er shal1 either fail to cure or correct all title objections timely made by Purchaser, or if Seller shal1 notify Purchaser that it is unable or unwil1ing to cure or correct any such objection, the Title Company shall, within two (2) business days fol1owing the date of such notice or the expiration of such Title Cure Period, retum to Purchaser all Eamest Money that has been deposited by Purchaser with the Title Company under or in connection with this Agreement, whereupon this Agreement shal1 terminate, and the parties hereto sha1l be releascd from all obligations hereunder, except the indemnity obligations of Purchaser set fOlih in Paragraph 5(b) hereof. In the altemative, at the written request of Purchaser, to be delivered to Seller and the Title Company within two (2) busincss days following the earlier to occur of (i) delivery of written notice from Sel1er to Purchaser that the Sel1er is unwilling or unable to cure any title objections noted by Purchaser, or (ii) following the expiration of the Title Cure Period set forth herein without Seller's having cured or corrected all title objections timely made by Purchaser, Seller shall deliver the title to the Property at Closing in its existing condition and Purchaser shal1, by acceptance of such title, waive al1 uncured objections to such title, except as to warranties contained in the documents of conveyance. AI1 Permitted Exceptions shall be noted as exceptions in the Deed. (2) Survey. The Survey, at Seller's sole cost and expense, shall be prepared by a duly licensed land surveyor reasonably acceptable to the Title Company and Purchaser, shall show the location on the Property of all improvements, building and set-back lines, fences, evidence of abandoned fences, ponds, creeks, streams, rivers, officially designated 100-year flood plains and AGREEMENT OF SALE AND PURCHASE,' Page 4 2156.104 flood prone areas, canals, watercourses, easements, roads, rights-of-way, encroachments and such other exceptions located on the Property as may be described in the Commitment, and, in general, shall comply with all requirements of the Texas Surveyor's Association for a Category I-A Survey. The Survey sha11 contain a legal description of the Property described by metes and bounds which sha11 also include a reference to the recorded plat, if any, and sha11 include a reference to the number of square feet contained in the Property, which calculation shall be conclusivc for purposes of calculation of the Purchase Price as set forth hcrein. The surveyor sha11 certify to the Purchaser and to the Title Company that the Survey is correct and was made on the ground; that therc arc no visible discrepancies, conflicts, encroachments, overlapping of improvements, violations of set-back lines, fences, evidence of abandoned fences, ponds, creeks, streams, rivers, officially designated 100-year flood plans or flood prone areas, canals, watercourses, easements, roads or rights-of-way except as are shown on the Survey. All recorded easements shall be legibly identified on the Survey by appropriate volume and pagc recording references. (b) Feasibility Period. For a period (the "Feasibility Period") of sixty (ÓO) days al1er the date hereof, Purchaser sha11 have the right, during normal business hours, to perform any and a11 inspections, engineering and feasibility studies of the Property, soils tests, or environmental studies or inspections which Purchaser deems necessary, in its sole discretion, in order to determine whether to proceed with the Closing of this transaction. In this regard, Se11er sha11 provide Purchaser, and/or Purchaser's agents or employces, unlimited access to the Property during such Feasibility Period to conduct any and a11 such studies and inspections; provided, however, Purchaser shall indemnify and hold Se11er and Ramco harmless from any and a11 costs or expenses incurred in relation to the inspections and studies described herein This indemnity by Purchascr shall expressly survive the Closing or any other termination of this Agreemcnt. If Purchaser sha11 find any such inspections or studies to be unsatisfactory, Purchaser shall have the right, at its option, to terminate this Agreement prior to the expiration of the Feasibility Period and, upon such termination, all Eamest Money previously deposited shall be immediately refunded or returned, as appropriate, to Purchaser and the parties hereto shall have no further liabilities onc to the other, other than the indemnity obligations of Purchaser set forth in this Paragraph 5(b). In this regard, by Purchaser delivcring a copy of a notice of termination called for pursuant to this Paragraph 5(b) to the Titlc Company, on or before the expiration of such Feasibility Period, Seller hcreby authorizes and directs the Title Company to immediately return the Eamest Money to Purchaser without requiring any further authorizations or approvals from the Sc11er. Upon termination of the Agreement by the Purchaser in accordance with this Paragraph 5(b), thc Purchaser sha11 simultaneously provide to the Seller, and as a condition precedent to thc refund of the Earnest Money, a true, correct and complete copy of any environmental studies or soils tests obtained by the Purchaser with regard to the Property. 6. Representations. Warranties and Disclaimers. (a) Representations and Warranties. In addition to the reprcsentations and AGREEMENT OF SALE AND PURCHASE - Page 5 2156.104 warranties contained in other articles of this Agreement, Seller makes the following representations and warranties, to the best of its actual knowledge and belief, which shall be true and correct as of the Closing Date and shall survive the Closing for the limited period set forth herein, and the truth of which shall be a condition precedent to Purchaser's obligations to close the transaction contemplated herein: (1) Seller will have good and indefeasible fee simple title to the Property as of the Closing Date and the Property is free and clear from any liens or encumbrances of any sort whatsoever except those described herein, and there is no cxisting or pending litigation, claims, condemnations or sales in lieu thereof, with respect to any aspect of the Property nor have any such actions, suits, proceedings or claims been threatened or asserted. (2) Seller has received no notice and has no knowledge of any pending improvements, liens or special assessments to be made against the Property by any governmental authority. (3) Seller has not received notice of any violations of any rights, ordinances, orders, regulations or requirements affecting any portion of the Property. Seller shall provide to Purchaser copies of any notices or such violations it may receive following the date hereof. (4) No person, firm or corporation or other entity has any right or option to acquire the Property, or any part thereof, from Seller. (5) Neither the execution and delivery of this Agreement by Sellcr nor Seller's performance of its obligations hereunder will result in a violation or breach of any term or provision or constitute a default or accelerate the performance required undcr any other agreement or document to which Seller is a party or is otherwise bound or to which the Property, or any part thereof, is subject, and will not constitute a violation of any law, ruling, regulation or order to which Seller is subject. (6) The party or parties executing this Agreement on behalf of Seller have been duly authorized and are empowered to bind Seller to this Agreement. (b) Disclaimer As a condition precedent to Seller's undertakings and agreements hereunder, Seller expressly disclaims and Purchaser acknowledges and accepts that Seller has disclaimed making any representations, warranties, or assurances with respect to the Property other than as specifically set out herein, specifically including, but not limited to, representations or warranties as to matters of title, zoning, tax consequences, physical condition, operating history or projections, valuations, governmental approvals or compliance with applicable laws, ordinances, statutes or governmental regulations, including, without limitation, statutes or regulations relating to hazardous materials or toxic substances. With respect to the Property, Purchaser will rely upon its inspections thereof or its AGREEMENT OF SALE AND PURCHASE,' Page 6 2156.104 determinations not to inspect the same, and upon Closing shall accept the Property in its" AS IS" condition, with all faults, and without reference to merchantability or fitness for any specific purpose. With regard to the Property, "AS IS" means, without limitation, "AS IS" physical condition (both as to defects seen and unseen and conditions natural or artificial), "AS IS" with respect to all documents, agreements, restrictions, leases and covenants to which the Property is subject and which have been disclosed by Seller to Purchaser, and "AS IS" with respect to all laws, ordinances, rules and regulations to which the Property is subject under any applicable governmental or regulatory jurisdiction. (c) No Indirect Liability No partner, joint venturer, officer, shareholder, director, agent or employee of Sel1er, nor any of their respective beneficiaries, partners, officers, agents or employees, heirs, successors or assigns shal1 have any personal liability of any kind or nature for or by reason of any matter or thing whatsoever under, in connection with, arising out of or in any way related to this Agreement or the transactions contcmplated herein, and Purchaser hereby waives, for itself and anyone who may claim by, through or under Purchaser, any and al1 rights to sue or recover against any such persons or entities on account of any such alleged personal liability. 7. Closing. Possession. Purchaser shal1 be entitled to full possession of the Property at 8. Prorations and Adjustments. Col1ected rents, tenant reimbursement amounts or charges, and ad valorem taxes or other tax assessments shaH be prorated at the Closing, effectivc as of the Closing Date, utilizing the best available computations of such items. If currcnt ad valorcm tax assessments are unavailable at Closing, said ad valorem taxes shal1 be adjusted based on tax assessments for the immediately preceding tax year, with Purchaser to assume the payment of al1 taxes relative to the Property for the year in which the Closing occurs and subsequent years; provided, however, if actual taxes relative to the Property vary from the amounts used for proration at Closing, the parties shall readjust such tax prorations following rcceipt of such actual tax statements. 9. Commissions. Purchaser does hereby represent and warrant that it, its officers, employees and agcnts have contracted for no real estate commissions or similar fees, nor has Purchaser, without knowledge of Se11er contacted real estate agents or brokers, nor has Purchaser, without Scl1er's knowledge, acted in a manner so as to give rise to a claim for real cstate commissions or similar fees payable by Seller. Purchaser shall indemnify Seller and hold Seller harmless from and against any and a11 such real estate commissions or similar fees, including costs and attomeys' fees incurred by Seller in any dispute regarding commissions and fees claimed to be due or arising from the actions of Purchaser. By its execution hereof, Purchaser hereby acknowledges that, pursuant to the terms of the Texas Real Estate License Act, it has been informed that it should obtain, in connection with its purchase of the Property, either an owner's policy of title insurance or it should have an abstract of title of the Property examined by an attorney of its choice. AGREEMENT OF SALE AND PURCHASE· Page 7 2156.104 10. Further Instruments SeHer wiH, whenever and as often as it shall be reasonably requcstcd so to do by Purchaser or the Title Company, and Purchaser will, whenever and as often as it shall be reasonably requested so to do by SeHer or the Title Company, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all affidavits, certificates, notices, conveyances, assignments and all other documents and instruments as may be reasonably necessary in order to complete the transaction herein provided for and to carry out the intent and purposes of this Agreement. 11. Termination and Remedies. (a) Default by Seller In the event that Seller shaH be in default in any of the agreements or obligations contained herein which are to be performed by SeHer within the time periods for performance or cure as set out herein, and Purchaser shaH not then be in default of its obligations hereunder, Purchaser may elect either of the fo1lowing rcmedics: (i) to terminate this Agreement by giving written notice of termination to Seller within the time period specified herein for such notice and receive a fuH and immediate refund and/or retum, as is appropriate, of any and all Eamest Money prcviously deposited, or (ii) to seek to enforce specific performance of this Agreement, subject to title objections which Seller has no duty or obligation to cure or correct, the Purchaser hereby waiving aH rights to seek monetary damages for breach of this Agreement by Se1ler. (b) Default by Purchaser. In the evcnt that Purchaser shall be in default of any of the obligations or agreements contained herein, and Se11er shall not then be in default of its obligations hereunder, SeHer may elect any of the fo1lowing remedies: (i) to rcccivc the Eamest Money as liquidated damages, and not as a penalty, or (ii) to seek monetary damages for breach of this Agreement by Purchaser. Seller and Purchaser acknowledge that actual monetary damages due to a default in this Agreement by Purchascr may be difficult or impractical to ascertain, and, if the default by Purchaser occurs prior to the Closing, the Eamest Money represents a reasonable approximation of Se11er's damages for Purchaser's failure to close this transaction that is fair and reasonable in light of a11 relevant circumstances. (c) Liability of Escrow A2ent The Purchaser and the Seller sha1l, severa1ly and not jointly, indemnify and hold the Escrow Agent harmless from all damages, costs, expenses, or other charges it may incur or be required to pay due to or as a result of its compliancc with its duties and obligations under the terms of this Agreement. Should the Escrow Agent, receive or become aware of any conflicting demands or claims concerning this Agreement, or the right of any of the parties hereto to receive the Eamest Money, the Escrow Agent sha1l have the right to discontinue any or an further acts on its part until the conflict is resolved to its satisfaction, and Escrow Agent sha1l have a further right to commcnce or defend any action or procecding for the determination of any such conflict. Thc parties hereto, severa1ly and not jointly, agree to pay all costs, damagcs, judgments and expenses, including reasonable attomeys' fees, suffered or incurred by the Escrow Agent in connection with, or arising out of, this Agreement, other than resulting from Escrow Agent's own negligence or wrongful intentional acts or omissions, including, but AGREEMENT OF SALE AND PURCHASE· Page 8 2156.104 without limiting the generality of the foregoing, a suit in interpleader brought by the Escrow Agent. If the Escrow Agent files a suit in interpleader, the Escrow Agent shall, by that filing, be fully released and discharged from all obligations imposed on the Escrow Agent in this Agreement, other than those resulting from the Escrow Agent's own negligence or wrongful intcntional acts or omissions. 12. Risk of Loss Risk of loss until Closing shall be borne by Seller. In the event that any damage or destruction of the Property, or any part hereof, by fire or other casualty, or through condemnation or sale in lieu thereof, occurs prior to the actual Closing of the transactions contemplated hereby, the Purchaser shall, at its option, elect one of the following: (a) To terminate this Agreement and receive an immediate refund of all Eamest Money previously deposited; or (b) To closc this transaction as provided herein and accept an assignment of such insurance proceeds or condemnation procceds arising from such casualty or condemnation, and receive an additional credit against the portion of the Purchase Price due at Closing in the amount of any deductible applicable to such insurance coverage. 13. Purchase of Additional Land. (a) After the Closing and until the Purchaser has purchased the additional land dcscribcd in Section 13(b) below, the Purchaser makes the following covenants: (i) Purchaser shall maintain the Property in the same condition as the Property was in when Purchaser purchased the Property from the Seller. (ii) Purchaser shall not make any changes or improvements to the Property, including any development or construction of the library. (iii) Purchaser shall not allow any "hazardous materials" to be brought on the Propcrty. As used hcrein, "hazardous materials" means any explosives, radioactive materials, gasolinc, diesel fuel, asbestos, lead based paint, or other hazardous waste including, without limitation, substances defined as "hazardous substances," "hazardous materials," or "toxic substances," in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or any regulations promulgated thereunder; The Hazardous Materials Transportation Act or any regulations promulgated thereunder; or "hazardous waste" as defined in the Resource Conservation and Recovery Act, or any regulations promulgated thereunder; or any substance regulated by the Toxic Substances Control Act, or any regulations promulgated thereunder, a1l as amended. (b) Thc Property conveyed to the Purchascr pursuant to this Agreement is an advancc convcyance of a portion of the land Seller has agreed to sell and Purchaser has agreed to purchase for the City Library in the contract bctween the parties dated April 10, 2001 styled Homc Town North Rich1and Hills Comprehensive Development Agreement (the "Development A2reemenC), subject to a number of conditions therein set forth. It is agreed and understood AGRE.EMENT OF SALE AND PURCHASE· Page 9 2156.104 that the conveyance of the Property will be subject to al1 the conditions of the Developmcnt Agreemcnt. It is also agreed that if Purchaser does not purchase the remaining portion of such land rcquired for thc City Library pursuant to the Development Agreement within two (2) years after the convcyance of the Property to the Purchaser, the Property shall, at the option of cither of the parties hereto, be rcsold by Purchaser to Seller herein for the same price as it is being sold for in this Agreement. (c) The terms and conditions of this Section 13 shal1 expressly survive the Closing of thc Property. 14. Notices. Any notice, request, demand, instruction or other communication to be given to either party hereunder, exeept those required to be delivered at Closing, shall be in writing, and shall be deemed to be delivered upon the earlier to occur of (a) receipt, if hand delivered, delivered by express delivery service or couricr, or delivered by facsimile transmission (with proof of transmission), or (b) three (3) days following the deposit of such written notice in registered or certified mail, retum receipt requested, postage prepaid, addressed as follows: If to Sel1er: Arcadia Holdings, Inc. 5440 Harvest Hil1, Suite 206 Dallas, Texas 75230 Attention: Mr. John Hodge Phonc No. (972) 774-9110 Fax No. (972) 774-9111 COPY to: Robert M. Allen, Esq. Clements, Allen, Woods & Margolis, P.C. 15303 Dallas Parkway, Suite 1050 Addison, Texas 75001 Phone No. (972) 991-2600 Fax No. (972) 991-2601 I f to Purchascr: City of North Richland Hil1s 7301 N.E. Loop 820 P.O. Box 820609 Fort Worth, Texas 76107 North Richland Hil1s, Texas 76180 Attention: Greg Vick Phone No. (817) 427-6009 Fax No. (817) 427-6016 Copy to: George A. Staples, Esq. TA YLOR, OLSON, ADKINS, SRALLA & ELAM, L.L.P. 6000 Westem Place, Suite 200 1-30 @ Bryant Irvin Road Fort Worth, Texas 76107 Phone No. (817) 332-2580 Fax No. (817) 332-4740 AGREEMENT OF SALE AND PURCHASE· Page 10 2 ¡ 56.1 04 Thc addresses, addressees or facsimile telcphone numbers for the purpose of this article may be changed by either party by giving notice of such change to the other party in the manner provided for herein for giving notice. For the purpose of changing such addresses, addressces or facsimile telephone numbers only, unless and until such written notice is received, the last address, addressee or facsimile telephone numbers stated herein shall be deemed to continue in effect for all purposes. 15. Miscellaneous. (a) Entire A2reement This Agreement and the exhibits attached hereto contain the entire agreement between the parties, and no promise, representation, warranty or covenant not includcd in this Agreement or any such referenced agreements has been or is being relied upon by either party. Furthermore, neither party has made any representations, warranties or covenants to the other conceming any tax benefits or tax treatment which may accrue or be given to the other party in connection with the transactions contemplated hereby. Each party has rclied upon its own examination of the full Agreement and the provisions thereof, and the counsel of its own advisors, and the warranties, representations and covenants expressly contained in this Agreement. No modification or amendment of this Agreement shall be of any force or effect unless made in writing and executed by both Purchaser and Seller. (b) Construction. Venue and Attorney's Fees. In the event that any litigation arises hereunder, it is specifically stipulated that this Agreemcnt shall be interpreted and construed according to the laws of the State of Texas, and shall be performable in Tarrant County, Texas. Further, the prevailing party in any litigation between thc parties shall be entitled to recover reasonable attomeys' fees and all costs and expenses relatcd to such litigation. (c) Limited Survival. All representations, warranties, covenants, obligations and agrecments made by both Purchaser and Seller hereunder shall survive the execution and delivery of the Deed and shal1 survive the Closing for a period of one (I) month fol1owing the Closing Date, at which time al1 such representations, warranties and agrccments shal1 terminate and be of no further force and effect and shall be deemed to be merged into the documents and instruments executed by the parties at the Closing. (d) Multiple Counterparts~ Headin2s. This Agreement may be executed in any number of counterparts which together shall constitute the agreement of the partics. The article headings herein contained are for purposes of identification only and shall not bc considered in construing this Agreemcnt. (e) Time of the Essence~ Business Days. Time is of the essence with respect to the performancc of all obligations provided herein and the consummation of all transactions contemplated hereby. All references in this Agreement to "business days" shall mean all days except Saturdays, Sundays and days on which national banks are officially closcd for business. AGREEMENT OF SALE AND PURCHASE· Page 11 2156.104 ({) Computation of Time Periods In computing any period of time under this Agreement, the date of the act, event or default from which the designated period of time bcgins to run shal1 not be included. The last day of any period computed under this Agrccment shall be included unlcss it is a Saturday, Sunday or day on which national banks are officially closed for business, in which event the period shall run until the end of the next business day. (g) Assi2nment This Agreement, and the rights and obligations hereunder, may not be assigned by Purchaser without the prior written consent or approval of the Seller. In the event of any permitted assignment, Seller agrees to close the transaction contemplated hereunder with the permitted assignee of Purchaser. The rights and obligations of Seller under this Agreement may be assigned by Seller upon assumption by any such assignee of the rights and duties of Seller hereunder. (h) Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforccable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illcgal, invalid or unenforceable provision had never comprised a part of the Agrecment, and thc remaining provisions of the Agreement shall remain in full force and effect and shall not be affectcd by the il1egal, invalid or unenforceable provision or by its severance from this Agreement. Furthermorc, in lieu of such illegal, invalid, or unenforceable provision, there shall be decmed added automatically as a part of this Agreement, a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. (i) Effective Date~ Termination of Offer All references in this Agrecment to the "cffective date" or "the date hereof' or similar references shall be dccmed to refer to the last date, in point of time, on which Purchaser and SeHer have executed this Agreement. This Agreement constitutes an offer by Seller to sell the Property to Purchaser on the terms and conditions and for the Purchase Price specified herein. Unless sooner terminated or withdrawn by notice in writing to Purchaser, this offcr shall lapse and terminate at the close of Seller's business day on September 23, 2002, unless, prior to such time, the Purchaser has cxecuted and retumed to Seller a fully executed counterpart( s) of this Agreement. (j) Parties Bound. Subject to permitted rights of assignment hereof, this Agreement and the tcrms and provisions hereof shall inure to the benefit of and bc binding upon the parties hereto and their respective heirs, executors, personal reprcscntatives, succcssors and permitted assigns whenever the context so requires or admits. No third party shall have any rights, claims, bencfits or obligations accruing hereunder, unless such third party is claiming same by virtue of rights or intcrcsts obtained from Purchaser or Seller in accordance with the rights of assignment permitted hereunder. (k) Confidentiality The Seller shall hold as confidential all information AGREEMENT OF SALE AND PURCHASE· Page 12 2156.104 conceming the Purchaser disclosed to Seller in connection with the transaction contemplated herein, including a11 financial statements, credit references and similar infomlation. If the Purchaser terminates this Agreement prior to the Closing, in accordance with the terms and conditions hereof, the Seller shall retum to Purchaser all infomlation conceming Purchaser disclosed to the Se1ler in connection with this transaction. Without the Purchaser's prior written consent, the Seller shall not disclose any financial infomlation relative to the Purchaser to any third parties, except pursuant to a court ordcr requiring such release or as otherwise may be required by law, or in connection with enforcement of the rights and remedies of the Se11er under this Agreement. Until the Closing, the Purchaser shall hold as confidential a1l information conceming the Property disclosed by the Seller to the Purchaser in connection with the transaction contemplated herein, including all development plans, environmental reports and similar infomlation. If the Purchaser terminates this Agreement prior to the Closing, in accordance with the terms and conditions hereof, the Purchaser shall retum to Se11er a11 information conceming the Property disclosed to the Purchaser in connection with this transaction. Until the Closing, the Purchaser may disclose such information regarding the Property only to its authorized representatives, agents and attomeys, and potential lenders or equity participants in such transaction. EXECUTED by Purchaser the _ day of Scptember, 2002. PURCHASER: CITY OF NORTH RICH LAND HILLS By: Name: Title: EXECUTED by Se1ler the day of September, 2002. SELLER: ARCADIA HOLDINGS, INC., a Texas corporation By: John Hodge, President AGREEMENT OF SALE AND PURCHASE· Page 13 2156.104 ACCEPT ANCE BY TITLE COMPANY The undersigncd COMMONWEALTH LAND TITLE COMPANY, referred to in the foregoing Agreement as the "Escrow Agent" or the "Title Company," hereby acknowledges receipt of a copy (or counterparts) of the foregoing Agreement executed by the Purchaser and the Seller and accepts the obligations of the Title Company as set forth therein, and certifies that it has this day executed all of the same and transmitted one (1) fully executed copy (or copy with counterpart execution pages) of the Agreement to both the Seller and the Purchaser, at their respective notice addresses as set forth in the Agreement and has received the Earnest Money. The Title Company hereby agrees to hold and deliver the Eamest Money as provided in this Agreemcnt, and to perfom1 all of its other duties, obligations and requirements in accordance with the terms and provisions of the Agreement. EXECUTED by the Title Company this _ day of ,2002. COMMONWEALTH LAND TITLE COMPANY By: Title: AGREEMENT OF SALE AND PURCHASE· Page 14 2156.104