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HomeMy WebLinkAbout2001-217S \Our Documents\Ordinances\01\Umon Pacific Real Estate Ordinance doc AN ORDINANCE APPROVING A LETTER REAL ESTATE AGREEMENT BETWEEN THE CITY OF DENTON AND UNION PACIFIC RAILROAD COMPANY RELATING TO THE PURCHASE OF APPROXIMATELY 190,400 SQUARE FEET OF LAND LOCATED BETWEEN E MCKINNEY AND PRAIRIE AND ADJACENT TO UNION PACIFIC RAIL LINES FOR USE AS PARKING AND HIKE AND BIKE TRAILS AND RELATED PURPOSES, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 The City Manager, or his designee, is hereby authorized to execute a Letter Real Estate Agreement between the City of Denton and the Union Pacific Railroad in substantially the form of the agreement which is attached to and made a part of this ordinance for all purposes (the "Agreement"), for the purchase of approximately t90,400 square feet of land for use as parking and hike and bike trails and related purposes SECTION 2 The City Manager is authorized to make the expenditures as set forth in the Agreement SECTION 3 This ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of 2001 � ATTEST; JENNIFER WALTERS, CITY SECRETARY B?OVED 4 AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY UNION PACIFIC RAILROAD COMPANY Real Estate Department R D Uhrich Assistant Vice President J A Anthony Director Contracts D D Brown Director Real Estate M W Casey General Director Special Properties J P Gade Director Facility Management CITY OF DENTON TEXAS 215 EAST MCKINNEY DENTON, TEXAS 76201 1800 Farnam Street Omaha Nebraska 68102 Fax (402) 997 3601 June 7, 2001 Folder 1873-22 J L Hawkins Director Operations Support M E Heenan Director Administration 8 Budgets D H Lightwme Director Real Estate T K Love Director Real Estate DUPLICATE ORIGINAL This letter ("Agreement") confirms our understandings covering the sale byUmon Pacific Railroad Company ("Seller") to the City of Denton ("Buyer") of Seller's interest in certain real property ("Property") situated in the City of Denton, County of Denton, State of Texas Seller agrees to sell and Buyer agrees to buy the Property on the following terms and conditions Description of Property 1 I The Property is approximately 190,400 square feet as shown on the print attached hereto as Exhibit A and made a part hereof The legal description of the Property will be determined by an "as built" ALTA survey ("Survey") of the Property Survey shall include a metes and bounds description of the Property and shall be performed by a Registered Professional Surveyor licensed in the State of Texas In addition, the Survey shall include a separate metes and bounds legal description of the easement area identified in section 6 and generally depicted as "Track Easement Reservation" on the attached Exhibit A Survey shall be arranged by Buyer at Buyer's sole expense 12 Before finalizing the Survey, Buyer shall submit the Survey to Seller for review and approval Buyer shall deliver a certified copy of the completed Survey to Seller within Sixty (60) days ("Survey Period") Delay in obtaining or furnishing the survey to Seller shall in no event give Buyer the right to extend the Closing Date (as defined in Section 8) Sale Price 2 1 The sale price ("Sale Price") for the Property shall be Two Hundred One Thousand Seven Hundred and 00/100ths Dollars ($201,700 00), computed as follows Sale Area A Sale Area B Sale Area C Sale Area D ROADWAYS Sale Price 34,400 SF x $0 00/SF 50,400 SF x $2 00/SF 27,600 SF x $1 50/SF 32,000 SF x $1 50/SF 46,000 SF x $0 25/SF $ 000 $100,800 00 $ 41,400 00 $ 48,000 00 $ 11,500 00 $201,700 00 22 The sale price ("Sale Price") for the property shall be Two Hundred One Thousand Seven Hundred and 00/100ths Dollars ($201,700 00), regardless of the area disclosed by the survey 23 On the date Buyer signs this Agreement, Buyer will deposit with a title company of Buyer's selection ("Title Company"), the nonrefundable sum of $100 00 as consideration for the Feasibility Review Period as provided in Section 3 (the "Deposit") 24 On or before the Closing Date (as defined in Section 8) Buyer shall deliver the balance of the Sale price, less the Deposit, to the Title Company Feasibility Review/Right of Entry 3 1 For sixty (60) days from the date of execution of this Agreement by Buyer ("Feasibility Review Period"), Buyer and its agents and contractors may enter upon the Property to perform environmental audits, soil tests, engineering and feasibility studies of the Property Within thirty (30) days after the Effective Date, Seller shall deliver to Buyer copies of all environmental audits, soil tests, engineering and feasibility studies, if any, which are contained in its current Real Estate files on the Property If the results of such audits, tests or studies, or Buyer's review of title or any other matters relating to the Property are unsatisfactory, Buyer may terminate this Agreement by giving Seller written notice before the end of the Feasibility Review Period If no such written notice of termination is given before the end of the Feasibility Review Period, the Property will be deemed suitable for Buyer's purposes In the event of such termination by Buyer, then Buyer shall surrender to Seller copies of all audits, soils, engineering and any other reports prepared for Buyer pertaining to the Property and such reports will become the sole property of Seller without cost or expense of Seller and this Agreement will terminate without any further force and effect, and without further obligation of either party to the other 32 Buyer's right to enter upon the Property pursuant to Section 3 1 is subject to the following (a) To the extent allowable under Texas law, Buyer will indemnify, defend and save harmless Seller and/or Seller's affiliates (Seller's affiliates means any corporation which directly or indirectly controls or is controlled by or is under common control with Seller), their officers, agents and employees, against and from any and all liability, loss, costs and expense of whatsoever nature growing out of personal injury to or death of persons whomsoever, or loss or destruction of or damage to property whatsoever, where such personal injury, death, loss, destruction or damage arises in connection with the entry upon the Property by Buyer, its agents or contractors prior to Closing (b) To the extent allowable under Texas law, Buyer and Buyer's agents and contractors (collectively "Contractors") will maintain in confidence all information, reports, and evaluations generated in connection with any environmental assessments and will not make disclosure without the prior written consent of Seller However, Seller understands that Buyer is subject to the Texas Public Information Act, being Chapter 551 of the Texas Government Code If Buyer discovers hazardous or toxic substances or materials, Buyer will immediately notify Seller If Buyer or its consultants believes that it is required under the law to report the results of any of its environmental audits to any local, state or federal agency regulating hazardous 2 materials, Buyer shall first provide written notice to Seller, and Seller may elect to make such report itself (c) Buyer will promptly deliver to Seller the results and copies of any and all reports, evaluations, tests and studies generated in connection with any environmental assessments Prior to the issuance of any final environmental report, Seller will have the opportunity to make comments, pose questions and offer recommendations to the Contractor preparing the report (d) Buyer agrees to indemnify, defend and hold harmless Seller against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of any work done, labor performed or materials furnished at the Property on behalf of Buyer prior to Closing (e) If the sale of the Property does not close, Buyer will, as soon as possible and at Buyer's sole expense, restore the Property to the same condition it was in immediately prior to the time Buyer entered the Property, failing in which Seller may perform the work of restoration and Buyer will reimburse Seller within thirty (30) days after rendition of bill by Seller 3 3 Absence of markers is not a warranty by Seller of no subsurface installations Fiber optic systems, pipelines, and other structures may be buried on the Property Before any diggmg/drilhnglexcavation, the following procedures will be followed by Buyer and Buyer's Contractors (a) Protection of any fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits Buyer will telephone 1-800-336-9193 (a 24-hour, 7-day number for emergency calls) during normal business hours (7 A M to 9 P M , CT, Monday - Friday, except holidays) to determine if any fiber optic cable is buried on the Property If it is determined that fiber optic cable is buried on the Property, Buyer shall promptly inform Seller, at the address at the top of this Agreement, of the results of its investigation (b) Before drilling or excavating with mechanized equipment, Buyer will explore with hand tools to a depth of at least eight (8) feet below the surface or will use suitable detection equipment 34 Notwithstanding any provisions in this Agreement to the contrary, if this Agreement is terminated for any reason whatsoever, Buyer will remain obligated to comply with the provisions of Sections 3 1 and 3 2 and Seller will retain all of its remedies for Buyer's default under Sections 3 1 and 3 2 4 As Is Sale - Release 4 1 Prior to the Closing Date, Buyer will have the opportunity to make such inspections of the Property and matters related thereto as Buyer desires, including, without limitation, governmental laws and regulations to which the Property is subject, the title to the Property, and the suitability or fitness of the Property for Buyer's proposed use Buyer acknowledges and agrees that the Property is to be sold and accepted by Buyer in an "AS IS" condition, with all faults, and Buyer acknowledges that the Property may have been used for railroad and/or industrial purposes, among other uses Buyer agrees that any information Buyer may receive from Seller or its agents concerning the Property (including, but not limited to, any lease or other document, engineering study or environmental assessment) is furnished on the condition that Buyer will make an independent verification of the accuracy of the information Seller does not make any representations or warranties of any kind whatsoever, either express or implied, with respect to the Property, in particular, without limitation, Seller makes no representations or warranties with respect to the use, condition, title, occupation or management of the Property, or compliance with applicable statutes, laws, codes, ordinances, regulations, requirements (collectively "Condition of the Property") Buyer acknowledges that it is entering into this Agreement on the basis of Buyer's own independent investigation of the physical and environmental conditions of the Property Buyer assumes the risk that adverse physical and environmental conditions may not have been revealed by its investigation 42 FROM AND AFTER CLOSING, BUYER WILL RELEASE SELLER, ITS AFFILIATES, THEIR EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL SUITS, ACTIONS, CAUSES OF ACTION, LEGAL OR ADMINISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, FINES, PUNITIVE DAMAGES, LOSSES, COSTS, LIABILITIES AND EXPENSES, INCLUDING ATTORNEYS' FEES, IN ANY WAY ARISING OUT OF OR CONNECTED WITH THE KNOWN OR UNKNOWN CONDITION OF THE PROPERTY (INCLUDING, WITHOUT LIMITATION, ANY CONTAMINATION IN, ON, UNDER OR ADJACENT TO THE PROPERTY BY ANY HAZARDOUS OR TOXIC SUBSTANCE OR MATERIAL), OR ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION APPLICABLE THERETO, INCLUDING, WITHOUT LIMITATION, THE TOXIC SUBSTANCES CONTROL ACT, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AND THE RESOURCE CONSERVATION AND RECOVERY ACT THE FOREGOING WILL APPLY REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF SELLER, ITS AFFILIATES, OR THEIR EMPLOYEES, AGENTS OR OFFICERS 43 The provisions of this Section 4 will survive the delivery of the deed and will bind and inure to the benefit of the parties hereto, their heirs, successors and assigns Escrow, Title Insurance and Abstract of Title 5 1 Seller will not furnish title insurance or an abstract of title to the Property Buyer may, at its sole option and expense, obtain a preliminary title report ("PTR") in order to review the status of title to the Property during the Feasibility Review Period If Buyer obtains a PTR, a copy will be delivered to Seller Seller has no obligation to cure any title defects or to assist Buyer in obtaining title insurance 52 If Buyer desires title insurance, Buyer shall pay the cost of any title insurance and any endorsements or changes to the title policy desired by Buyer If an escrow is used, Buyer shall pay any and all fees relating to the escrow, including, but not limited to, any City and/or County Transfer Taxes and recording fees Form of Deed; Reservations 6 1 At Closing, Seller will transfer Seller's interest in the Property to Buyer by Deed Without Warranty, subject to all outstanding rights, whether or not of record Seller will reserve from the transfer all minerals and mineral rights without right of surface entry 62 Seller shall retain ownership of all railroad trackage and track appurtenances now located upon, along and across the Sale Area A, and shall reserve to itself, its successors and assigns a perpetual easement thirty feet (30') in width for the construction, reconstruction, operation, repair, renewal and, if necessary, removal of railroad trackage and track appurtenances along, across, under and within the "Track Easement Reservation" area shown on Exhibit A, together with a right of ingress and egress to the reserved easement over and across the Property for purposes of maintenance and operation, as reasonably necessary Existing Agreements If any lease or "Use Rights" (license or other rights to use the Property) affects only the Property (whether identified by Seller before or after execution of this Agreement), Seller's rights and obligations under any such identified lease or Use Right will be assigned to and assumed by Buyer at or after Closing Closing - Default 8 1 Closing will occur on or before August 30, 2001 ("Closing Date") The Closing will be deemed to occur upon payment of the Sale Price by cashier's or certified check, and delivery of the deed All Closing costs, including transfer taxes and excise taxes, if any, will be paid by Buyer, except that each party shall pay its own attorneys fees 82 If Closing fails to occur due to default by Seller or Buyer, the non -defaulting party may either enforce specific performance of this Agreement or terminate this Agreement by written notice In the event of termination by written notice by the non -defaulting party, neither Seller nor Buyer will have any further liability hereunder 9 Proration Local property taxes, if any, and other assessments due and payable in the year of Closing, as well as rental under any leases or Use Rights that are being assigned, will be prorated as of the date of Closing However, Seller shall be responsible for any delinquent local property taxes Buyer will assume any installments of assessments not yet due and payable However, Seller represents that to its knowledge there are no such assessments against the Property 10 Negotiations — Brokers and Finders Negotiations relative to this transaction have been carried on by both parties without the intervention of any person which will give rise to any valid claim against either of the parties hereto, for brokerage commission or other like payment Each party hereto shall indemnify and hold harmless the other party against and from any and all claims for brokerage commission or other like payments arising out of the transaction contemplated by this Agreement and occasioned by the indemnifying ply 11 Subdivision/Platting Compliance It may be necessary to comply with local or state subdivision or platting laws or regulations prior to Closing All necessary applications, maps and other requirements to comply with this requirement will be completed by Buyer at Buyer's sole cost and expense, and are subject to review and approval by Seller before filing If Buyer fails to comply with subdivision requirements prior to the Closing Date, or if any proposed subdivision plat or parcel map contains conditions affecting Seller, the Property prior to Closing, or other real property owned by Seiler, then Seller, in its sole and absolute discretion, may terminate this Agreement Seller is not obligated to extend the Closing Date due to Buyer's failure to comply with subdivision or platting requirements prior to the Closing Date 12 Mortgage Release If the Property is subject to a blanket mortgage granted by Seller or a corporate predecessor of Seller, Seller will obtain a release within approximately six (6) months after Closing Seller shall provide the Title Company an indemnification in order that that Title Company may issue a policy to Buyer without listing any mortgages put on the Property by Seller or its predecessors in interest 13 Effective Date The "Effective Date" of this Agreement is the date of signature of the parties as set forth below 14 Notice - Any notice or other communication required or permitted to be given under this Agreement ("Notices") shall be in writing and shall be (i) personally delivered, (u) delivered by a reputable overnight courier, or (ni) delivered by certified mail, return receipt requested and deposited in the U S Mail, postage prepaid Telecopy notices shall be deemed valid only to the extent they are (a) actually received by the individual to whom addressed and (b) followed by delivery of actual notice in the manner described above within three (3) business days thereafter Notices shall be deemed received at the earlier of actual receipt or (i) one (1) business day after deposit with an overnight courier as evidenced by a receipt of deposit, or (ii) three (3) business days following deposit in the U S Mail, as evidenced by a return receipt Notices shall be directed to the parties at their respective addresses shown below, or such other address as either party may, from time to time, specify in writing to the other in the manner described above If to Seller UNION PACIFIC RAILROAD COMPANY ATTN Tony Love Facsimile (402) 997-3601 1800 Farnam St Omaha, NE 68179 If to Buyer City of Denton, Texas ATTN Mike Conduff, City Mgr Facsimile (940) 382-7923 215 McKinney Denton, Texas 76201 15 Offer: This offer shall continue in full force and until June 20, 2001 In the event this offer is not accepted by the Buyer on or before June 20, 2001, then this offer shall be null and void If you agree with the foregoing terms and conditions with respect to the purchase of the Property, please indicate your acceptance of these terms and conditions by signing in the acceptance space provided below and returning the copy marked "Duplicate Original — Railroad Copy" to Dan Leis, at the address listed at the top of this letter If you should have any questions, please call Dan Leis at (402) 997-3574 Sincerely, Tony K Love Director - Real Estate Dated ✓yNf 4 zod/ 1800 Farnam Street Omaha, Nebraska 68102 ACCEPTED AND AGREED THIS/ DAY O2001 APPROVED AS TO FORM HERBERT L PROUTY, CITY ATTORNEY By /J 7 Line SO 116844-62 8 t # bas a 56 ' r -o X ' 5hl- v WR c �xl t7im i 4 8 : • � • ._ " wager ojf<l�'° 'o Cs! _ O e � ~� V / V'o0•p. �/ CAMORE `Ot' a 1 1 � LE 11042+6 ram; 110414-8 x #� I o n N a '* w it v Ak o ,._rs� 39+•992 1 10 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