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2001-217S \Our Documents\Ordmances\01\Umon Pacific Real Estate Ordinance doc ORDINANCE NO ~__ 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 hts designee, m hereby authorized to execute a Letter Real Estate Agreement between the C~ty of Denton and the Umon Pacific Rmlroad ~n substantially the form of the agreement whmh is attached to and made a part of th~s or&nance for all purposes (the "Agreement"), for the purchase of approximately 190,400 square feet of land for use as parkmg and hike and bike trmls and related purposes SECTION 2 The City Manager m authorized to make the expenditures as set forth m the Agreement SECTION 3 Tlus or&nance shall become effective ~mmedmtely upon ~ts passage and approval PASSED AND APPROVED this the /~tl. day of ~ ,2001 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY UNION PACIFIC RAILROAD COMPANY Real Estate Department R D Uhnch J L Hawkins Assistant V~ce President ~ Director Operations Support J A Anthony ~ M E Heenan Director Contracts Director Administration & Budgets D D Brown D H L*ghtwme D~rector Real Estate Director Real Estate M W Casey T K Love General Director Special Properties 1800 Famam Street Director Real Estate J P Gade Omaha Nebraska 68102 Director Facdlty Management Fax (402) 997 3601 June 7, 2001 Folder 1873-22 DUi=Me,II O~[~N.I[I. CITY OF DENTON TEXAS 215 EAST MCKINNEY DENTON, TEXAS 76201 This letter ("Agreement") confirms our tmderstandmgs covering the sale byUmon Pacffic Radroad 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 1 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 descrlptmn of the Property and shall be performed by a Registered Professional Surveyor heensed in the State of Texas In addition, the Survey shall include a separate metes and bounds legal description of the easement area ~dentlfied 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 1 2 Before finahzlng the Survey, Buyer shall submit the Survey to Seller for review and approval Buyer shall dehver a cerhfied copy of the completed Survey to Seller within Sixty (60) days ("Survey Period") Delay in obtaining or furmshmg the survey to Seller shall in no event give Buyer the right to extend the Closing Date (as defined ~n Section 8) 2 Sale Price 2 I The sale prme ("Sale Price") for the Property shall be Two Hundred One Thousand Seven Hundred and 00/100tbs Dollars ($201,700 00), computed as follows Sale Area A 34,400 SF x $0 00/SF = $ 0 00 SaleAreaB 50,400 SF x $2 00/SF = $100,800 00 SaleAreaC 27,600 SF x $1 50/SF $ 41,400 00 Sale Area D 32,000 SF x $1 50/SF $ 48,000 00 ROADWAYS 46,000 SF x $0 25/SF $ 11,500 00 Sale Price $201 ~700 O0 2 2 The sale praee ("Sale Price") for the property shall be Two Hundred One Thousand Seven Hundred and 00/100tbs Dollars ($201,700 00), regardless of the area disclosed by the survey 2 3 On the date Buyer s~gns thas Agreement, Buyer will deposit with a title company of Buyer's selection ("Title Company"), the nonrefundable sum of $100 00 as consideration for the Feasabahty Review Period as provaded in Section 3 (the "Deposit") 2 4 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 3 Feasibility Revaew/lPaght of Entry 3 1 For s~xty (60) days from the date of execution of this Agreement by Buyer ("Feasibility Revaew Period"), Buyer and ~ts agents and contractors may enter upon the Property to perform environmental audats, soil tests, engineering and feasibility studies of the Property Within tharty (30) days after the Effective Date, Seller shall deliver to Buyer copies of all environmental and~ts, soft tests, engineering and feasibility studies, if any, whmh are contained m Its current Real Estate files on the Property If the results of such audits, tests or studaes, or Buyer's review of tatle 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 Feas~blhty Review Period If no such written notice of termination IS given before the end of the Feasablhty 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 copaes of all andats, softs, engmeerang 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 thas Agreement will terminate without any further force and effect, and w~thout further oblagatlon of either party to the other 3 2 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 d~reetly or and~rectly controls or is controlled by or is under common control with Seller), their officers, agents and employees, agmnst and from any and all Inability, loss, costs and expense of whatsoever nature growing out of personal anjury 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 artses ~n connection w~th the entry upon the Property by Buyer, ars agents or contractors prior to Closang (b) To the extent allowable under Texas law, Buyer and Buyer's agents and contractors (collectively "Contractors") wall maintain in confidence all mformataon, reports, and evaluatxons generated an connection with any environmental assessments and will not make dasclosure without the praor 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 dascovers hazardous or toxic substances or matermls, Buyer wall ammedaately notary Seller If Buyer or its consultants belaeves that at ~s requared under the law to report the results of any of its envaronmental andats 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 ~ssuance of any final environmental report, Seller will have the oppormmty to make comments, pose questions and offer recommendations to the Contractor preparing the report (d) Buyer agrees to ~ndemnlfy, 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 furmshed 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 ~t was in ~mmedxately 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 rendmon 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 bur~ed on the Property Before any dlggmg/drllhng/excavatlon, 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 serwce to users resulting in business ~nterruptlon 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 hohdays) to determine if any fiber optic cable ~s buried on the Property Ifxt ~s determined that fiber optic cable IS buried on the Property, Buyer shall promptly reform Seller, at the address at the top of th~s Agreement, of the results of ~ts ~nvest~gat~on (b) Before drllhng or excavatxng with mechanized eqmpment, Buyer will explore with hand tools to a depth of at least eight (8) feet below the surface or will use suitable detect~on eqmpment 3 4 Notwithstanding any provisions m th~s Agreement to the contrary, If this Agreement ~s terminated for any reason whatsoever, Buyer wdl remain obhgated to comply w~th the prowslons of Secttons 3 1 and 3 2 and Seller will retain all of ~ts 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 opportumty to make such ~nspectlons of the Property and matters rolatad thereto as Buyer desires, including, without limitation, governmental laws and regulations to which the Property is subject, the t~tle to the Property, and the smtablhty or fitness of the Property for Buyer's proposed use Buyer acknowledges and agrees that the Property ~s to be sold and accepted by Buyer m an "AS IS" condition, 3 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 hmited to, any lease or other document, engmeerlng study or environmental assessment) is furnished on the eon&tion that Buyer will make an independent verlfieatiun of the accuracy of the reformation Seller does not make any representations or warranties of any kind whatsoever, either express or lmphed, with respect to the Property, in particular, without lmaitatlon, Seller makes no representations or warranties with respect to the use, condition, title, occupation or management of the Property, or compliance with apphcable 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 4 2 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 4 3 The previsions of this Section 4 will survive the delivery of the deed and wdl bind and inure to the benefit of the parties hereto, their heirs, successors and assigns 5 Escrow, Title Insurance and Abstract of T~tle 5 1 Seller will not furnish title msuranee 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 dehvered to Seller Seller has no obligation to cure any title defects or to assist Buyer in obtaining title insurance 5 2 If Buyer desires title insurance, Buyer shall pay the cost of any title insurance and any endorsements or changes to the t~tle pohcy 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 C~ty and/or County Transfer Taxes and recording fees 4 6 Form of Deed; Reservations 6 1 At Clostng, Seller wall transfer Seller's ~nterest m 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 m~neml rights without right of surface entry 6 2 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 ~tself, tts successors and assigns a perpetual easement thirty feet (30') ~n w~dth for the construction, reconstruction, oparat~on, repair, renewal and, ff necessary, removal of rmlroad trackage and track appurtenances along, across, under and w~th~n the "Track Easement Reservation" area shown on Exhibit A, together w~th a right of ingress and egress to the reserved easement over and across the Property for purposes of maintenance and operation, as reasonably necessary 7 Existing Agreements If any lease or "Use Rights" (hcense or other rights to use the Property) affects only the Property (whether ~dentffied by Seller before or after execunon ofth~s Agreement), Seller's rights and obhgatlons under any such ldentffied lease or Use Rtght will be assigned to and assumed by Buyer at or at~er Closing 8 Closing - Default 8 1 Closing will occur on or before August 30, 2001 ("Closing Date") The Closing wtll be deemed to occur upon payment of the Sale Pace by cashier's or certffied check, and dehvery of the deed All Closing costs, including transfer taxes and exc~se taxes, ~f any, will be prod by Buyer, except that each party shall pay ~ts own attorneys fees 8 2 If Closing falls to occur due to default by Seller or Buyer, the non-defaulting party may e~ther enforce spemfic performance of this Agreement or terminate th~s Agreement by written not,ce In the event of termination by written not,ce by the non-defaulting party, neither Seller nor Buyer will have any further habnhty hereunder 9 Prorations Local property taxes, if any, and other assessments due and payable m the year of Closing, as well as rental under any leases or Use RJghts that are being assigned, wdl be prorated as of the date of Closing However, Seller shall be responsible for any dehnquent local property taxes Buyer wall assume any Installments of assessments not yet duc and payable However, Seller represants that to ~ts knowledge there are no such assessments against the Property 10 Negotiations - Brokers and Finders Negotiations relative to th~s transaction have been earned on by both part,es w~thout the mterventmn of any person which will g~ve nsc to any vahd clmm agamst e~ther of the part,es hereto, for brokerage commission or other hke payment Each party hereto shall mdemmfy and hold harmless tho other party against and from any and all claims for brokerage commission or other hke payments arising out of the transaction contemplated by th~s Agreement and occasmned by the mdemmfymg party 5 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 mqmrement 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 pr~or 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 Seller, then Seller, m 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 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 hstlng any mortgages put on the Property by Seller or its predecessors m interest Effective Date The "Effective Date" of this Agreement is the date of signature of the parties as set forth below Notice. Any notice or other communication required or permitted to be given under this Agreement ("Notices") shall be in writing and shall be 0) personally delivered, (ii) delivered by a reputable overnight courier, or (iii) delivered by certified mall, return receipt requested and deposited in the U S Mall, 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 (1) 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 m the U S Mall, 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 m 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 6 15 Offer: This offer shall continue m 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 th~s offer shall be null and void If you agree w~th the foregmng terms and condmons w~th respect to the purchase of the Property, please ~ndleate your acceptance of these terms and condmons by s~gmng in the acceptance space provided below and returning the copy marked "Duphcate Original - Rmlroad Copy" to Dan Leis, at the address listed at the top ofth~s letter If you should have any questions, please call Dan Leis at (402) 997-3574 Smeerely, Tony K Love D~rector - Real Estate Dated 1800 Famam Street Omaha, Nebraska 68102 AND AGREED THIS/F~~' DAY O? , 2001 ACCEPTED APPROVED AS TO FORM HERBERT L PROUTY, CITY ATTORNEY 7