HomeMy WebLinkAboutRES 10-168 RESOLUTION NO. 10-168
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute a letter agreement,
substantially in the form attached hereto as Exhibit"A,"with Union Pacific Railroad for the
acquisition of property for the new Amtrak Station.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 22nd day of
June, 2010.
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,� - Mayor Becky Ames -
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May 7,2010 \
Folder: 2591-70
VIA UPS Overnight
RETURN RECEIPT REQUESTED
TOM WARNER
CITY OF BEAUMONT
801 MAIN STREET, SUITE 210
BEAUMONT TX 77701
Dear Mr.Warner:
This letter ("Agreement") confirms our understandings covering the possible sale by Union Pacific
Railroad Company ("Seller") to CITY OF BEAUMONT("Buyer") of Seller's interest in certain real property
together with Seller's right, title and interest, if any, in all improvements thereon, including, without
limitation, the free standing communication tower(collectively, the "Property")in Beaumont,Texas.
The undersigned will recommend to Seller's Management a sale of the Property on the following terms
and conditions:
Article 1. Description of Property:
A. The Property is approximately 195,950 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 Seller. Survey will be at the sole cost and expense of Buyer. Survey will
depict all facilities affecting the property.
B. Before finalizing any survey, Buyer shall submit the draft survey to Seller for review and
approval. Computer files of the survey and legal descriptions shall be sent via e-mail to
PMMORAN @UP.COM, with a subject line referencing the UPRR Folder Number 02591-
70 assigned to this document. Buyer shall deliver a certified copy of the completed
survey to Seller within Forty Five (45) days after Buyer's execution of this Agreement
("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 the `Closing — Default:'
Article).
Article 2. Sale Price:
Union Pacific Railroad Real Estate 1400 Douglas Strec EXHIBIT "A" 79-1690 fx.(402)501-0340
A. The sale price ("Sale Price") for the Property shall be Three Hundred Three Thousand
Nine Hundred Twenty Five Dollars ($303,925.00).
B. Upon execution of this Agreement by Buyer, Buyer shall pay to Seller the sum of One
Hundred Dollars ($100.00) as independent consideration for entering into this
Agreement.
C. The Sale Price is computed as follows:
195,950 square feet x $1.50 per square foot = $293,925.00, plus $10,000 for the free
standing communication tower.
D. The Sale Price will be adjusted on the basis set forth in Article 2-C if the area of the
Property, as determined by Seller's Senior Manager Engineering Services or his
authorized representative, or as determined by the survey, differs from the area set
forth in Article 1-A.
Article 3. Feasibilitv Review/Right of Entry:
A. For Seventy Five (75) 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. 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.
B. Buyer's right to enter upon the Property pursuant to Article, 3-A is subject to the
following:
1. To the extent allowed by the laws and constitution of the State of Texas, 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.
2. 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. If Buyer discovers hazardous or
toxic substances or materials, Buyer will immediately notify Seller.
3. 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.
4. To the extent allowed by the laws and constitution of the State of Texas, 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.
S. 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.
C. 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
digging/drilling/excavation, the following procedures will be followed by Buyer and
Buyer's Contractors:
1. 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.
2. 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.
D. 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 Article 3-A and 3-13 and Seller will retain all of its remedies for Buyer's
default under Article 3-A and 3-B.
Article 4. As Is Sale-Release-Indemnity:
A. 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.
B. TO THE EXTENT ALLOWED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS,
FROM AND AFTER CLOSING, BUYER WILL RELEASE SELLER, AND, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND SAVE HARMLESS 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.
C. The provisions of this Article 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.
Article 5. Escrow,Title Insurance and Abstract of Title:
A. 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.
B. 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.
Article 6. Form of Deed: Reservations:
A. 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.
B. Seller will reserve from the transfer all minerals and mineral rights without right of
surface entry.
C. Noise/Vibration.
The Property shall be conveyed by Seller subject to the following covenant, condition
and restriction, which Buyer by the acceptance of the Deed shall covenant for itself, its
successors and assigns,faithfully to keep, observe and perform:
Railroad Proximity Covenant.
(a) Buyer acknowledges that the property abutting the southern boundary line of
the Property is dedicated and used for railroad purposes, that railroad operations may
create noise, vibrations, emissions, fumes and odors twenty-four (24) hours a day, and
that the amount, nature and intensity of railroad operations may increase or change
(collectively, the "Permitted Effects"). Buyer accepts the Property subject to the
existence of the Permitted Effects. By acceptance of the Property, Buyer agrees that, at
Buyer's sole cast and expense, as part of the development of the Property, Buyer shall
design and install and/or construct and thereafter maintain improvements to reduce or
limit the Permitted Effects and to comply with all governmental requirements, if any,
which may be imposed as a condition to the development and use of the Property
because of the Permitted Effects.
(b) Buyer shall not, and hereby waives all rights to, (i) institute legal proceedings
against Seller to reduce or lessen the Permitted Effects, and (ii) directly or indirectly
participate in petition drives, lobbying efforts or other activities seeking the enactment
of federal, state or local laws or ordinances to reduce or lessen the Permitted Effects.
Any party breaching such covenant shall reimburse Seller for all costs incurred by Seller
to comply with any such orders, laws or ordinances, including, without limitation,
attorney fees and court costs.
(c) If Buyer sells or leases all or any portion of the Property, Buyer shall require all
purchasers and tenants to acknowledge the location of the railroad operations abutting
the Property and the existence of the Permitted Effects, and to agree in writing, for the
benefit of Seller,to comply with the above covenants.
Covenants To Run With Land. The foregoing covenant, condition and restriction shall
run with the Property, the burdens of which will be binding on the successors and
assigns of Buyer, and the benefits of which will inure to the successors and assigns of
Seller. A breach of the foregoing covenant, condition and restriction, or the
continuance thereof, may, at the option of Seller, its successors or assigns, be enjoined,
abated or remedied by appropriate proceedings.
D. Restrictive No Schools/Day Care.
The Property is conveyed by Seller subject to the following covenant, condition and
restriction which Buyer by the acceptance of this Deed covenants for itself, its
successors and assigns,faithfully to keep, observe and perform:
Restriction on Use. Buyer, its successors and assigns, may use the Property for
industrial, office, and retail-oriented commercial business (for example,
shopping center, filling station, restaurant) purposes, only, and for no other
purposes whatsoever. Without limitation of the foregoing, the Property must
not be used for any of the following purposes: (i) residential, (ii) lodgings or
accommodations (including, without limitation, hotels, motels, boarding houses,
dormitories, hospitals, nursing homes, or retirement centers), or (iii) cultural,
educational, recreational or child-care facilities (including, without limitation,
schools, kindergartens, day-care centers, gymnasiums, athletic fields, picnic
grounds or parks).
The foregoing covenant, condition and restriction shall run with the Property, and a
breach of the foregoing covenant, condition and restriction, or the continuance thereof,
may, at the option of Seller, its successors or assigns, be enjoined, abated or remedied
by appropriate proceedings.
Article 7. Existing Agreements:
A. 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.
B. Buyer acknowledges that the Property may be subject to unidentified Use Rights. It is
the responsibility of Buyer to determine if any of these unidentified Use Rights exist.
Article S. Closing-Default:
A. Closing will occur on or before August 20, 2010 ("Closing Date"). The Closing will be
deemed to occur upon payment of the Sale Price by a cashier's or certified check, and
delivery of the deed. All Closing costs, including transfer taxes and excise taxes, will be
paid by Buyer.
B. If Closing fails to occur due to default by Seller, Buyer may terminate this Agreement as
Buyer's sole remedy against Seller. In the event of such termination, neither Seller nor
Buyer will have any further liability hereunder.
C. If Closing fails to occur due to default by Buyer, Seller may terminate this Agreement
and neither Seller nor Buyer shall have any further obligations or liability hereunder
except for any of Buyer's surviving obligations pursuant to Article 3 (B) hereof. In no
event shall Seller have any obligation whatsoever to extend the Closing Date for any
reason if Buyer fails to perform.
Article 9. Prorations:
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. Buyer will assume any installments of assessments not yet due and payable.
Article 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 party.
Article 11. Subdivision/Plattine 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 Seller,
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.
Article 12. Mortizaae 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.
Article 13. Eminent Domain.
The parties acknowledge that Buyer has the authority to condemn the Property under its power
of eminent domain. Buyer represents that it will institute eminent domain proceedings in the
event that Seller does not sell the Property upon the terms set forth in this Agreement. The
parties further acknowledge that Seller intends to treat the sale of the Property as sold under
imminent threat of condemnation, pursuant to Section 1033 of the Internal Revenue Code of
1986 (26 U.S.C.).
Article 14. Seller's Management Approval:
BUYER ACKNOWLEDGES THAT NEITHER THIS AGREEMENT NOR THE
NEGOTIATIONS LEADING TO THIS AGREEMENT CREATE ANY OBLIGATION
ON THE PART OF SELLER TO SELL THE PROPERTY TO BUYER UNLESS THIS
AGREEMENT IS APPROVED IN ACCORDANCE WITH SELLER'S MANAGEMENT
POLICY STATEMENT. IF SUCH APPROVAL IS NOT GIVEN AND
COMMUNICATED TO BUYER BY THE CLOSING DATE, THIS AGREEMENT WILL
TERMINATE AND NEITHER PARTY WILL HAVE ANY FURTHER OBLIGATION.
Article 15. Condemnation:
If, prior to Closing, a governmental agency commences or imminently threatens in writing to
commence any eminent domain proceedings to take any material portion of the Property, Buyer
and Seller shall each have the unilateral right, exercisable by giving notice of such decision to the
other parry within thirty (30) days after receiving written notice of such actual or threatened
condemnation proceedings, to terminate this Agreement. In the event of such termination, this
Agreement will be without any further force and effect and without further obligation of either
party to the other. If neither party elects to terminate pursuant to this Article- Condemnation, the
Sale Price will be determined as though such condemnation had not occurred, and the net
proceeds of condemnation awards paid or payable to Seller by reason of such condemnation of
the Property shall be paid or assigned to Buyer at Closing.
Article 16. Disclosures and Notices to Buyer.
(A) Notice Regarding Possible Liability for Additional Taxes (Texas Property Code Section
5.010 . If for the current ad valorem tax year the taxable value of the Property is
determined by a special appraisal method that allows for appraisal of the Property at
less than its market value, the person to whom the Property is transferred may not be
allowed to qualify the Property for that special appraisal in a subsequent tax year and
the Property may then be appraised at its full market value. In addition, the transfer of
the Property or a subsequent change in the use of the Property may result in the
imposition of an additional tax plus interest as a penalty for the transfer or the change
in the use of the Property. The taxable value of the Property and the applicable method
of appraisal for the current tax year is public information and may be obtained from the
tax appraisal district established for the county in which the Property is located.
(B) Annexation Disclosures. If the Property is located outside the limits of a municipality,
the Property may now or later be included in the extraterritorial jurisdiction of a
municipality and may now or later be subject to annexation by the municipality. Each
municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction.
To determine if the Property is located within a municipality's extraterritorial
jurisdiction or is likely to be located within a municipality's extraterritorial jurisdiction,
Buyer should contact all municipalities located in the general proximity of the Property
for further information.
(C) Notice of Water and Sewer Service. Pursuant to Section 13.257 of the Texas Water
Code, Seller provides Buyer with the following notice:
"The Property may be located in a certificated water or sewer service area, which is
authorized by law to provide water or sewer service to the Property. No other retail
public utility is authorized to provide water or sewer service to the properties in the
certificated area. If the Property is located in a certificated area, there may be special
costs or charges that you will be required to pay before you can receive water or sewer
service. There may be a period required to construct lines or other facilities necessary
to provide water or sewer service to the Property. You are advised to determine if the
Property is in a certificated area and contact the utility service provider to determine
the cost that you will be required to pay and the period, if any, that is required to
provide water or sewer service to the Property.
Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of
this Agreement."
At the Closing, Buyer agrees to execute a separate copy of the foregoing notice, in a
form required by Section 13.257 of the Texas Water Code, to be subsequently recorded
in the real property records of the county in which the Property is located.
If you agree with the foregoing terms and conditions with respect to the possible purchase of the Property,
please indicate your acceptance of these terms and conditions by signing in the acceptance space provided
below and returning one copy to Pat Moran at the address listed on the bottom of the first page of this
letter, in order that it is received by Seller no later than May 17, 2010. Please also indicate below how you
wish to take title. If you should have any questions, please call Pat Moran at(402) 544-8537.
Sincerely,
Director -Real Estate
ACCEPTED AND AGREED THIS DAY OF , 20
CITY OF BEAUMONT
By:
Its:
Title to the Property will be taken as follows:
If Corporation, State of incorporation:
If Husband and Wife, indicate how title will be taken:
Joint Tenants with rights of survivorship
Tenants in Common
Community Property
Mailing Address:
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FILENAME - DSK FILE: 2591-70
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May 7,2010
Folder: 2591-70
VIA UPS Overnight
RETURN RECEIPT REQUESTED
TOM WARNER
CITY OF BEAUMONT
801 MAIN STREET, SUITE 210
BEAUMONT TX 77701
Dear Mr.Warner:
This letter ("Agreement") confirms our understandings covering the possible sale by Union Pacific
Railroad Company ("Seller") to CITY OF BEAUMONT("Buyer") of Seller's interest in certain real property
together with Seller's right, title and interest, if any, in all improvements thereon, including, without
limitation,the free standing communication tower(collectively,the "Property")in Beaumont,Texas.
The undersigned will recommend to Seller's Management a sale of the Property on the following terms
and conditions:
Article 1. Description of Property:
A. The Property is approximately 195,950 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 Seller. Survey will be at the sole cost and expense of Buyer. Survey will
depict all facilities affecting the property.
B. Before finalizing any survey, Buyer shall submit the draft survey to Seller for review and
approval. Computer files of the survey and legal descriptions shall be sent via e-mail to
PMMORAN @UP.COM, with a subject line referencing the UPRR Folder Number 02591-
70 assigned to this document. Buyer shall deliver a certified copy of the completed
survey to Seller within Forty Five (45) days after Buyer's execution of this Agreement
("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 the 'Closing — Default:'
Article).
Article 2. Sale Price:
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha,Nebraska 68179-1690 fx.(402)501-0340
A. The sale price ("Sale Price") for the Property shall be Three Hundred Three Thousand
Nine Hundred Twenty Five Dollars ($303,925.00).
B. Upon execution of this Agreement by Buyer, Buyer shall pay to Seller the sum of One
Hundred Dollars ($100.00) as independent consideration for entering into this
Agreement.
C. The Sale Price is computed as follows:
195,950 square feet x $1.50 per square foot = $293,925.00, plus $10,000 for the free
standing communication tower.
D. The Sale Price will be adjusted on the basis set forth in Article 2-C if the area of the
Property, as determined by Seller's Senior Manager Engineering Services or his
authorized representative, or as determined by the survey, differs from the area set
forth in Article 1-A.
Article 3. Feasibility Review/Right of Entry:
A. For Seventy Five (75) 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. 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.
B. Buyer's right to enter upon the Property pursuant to Article 3-A is subject to the
following:
1. To the extent allowed by the laws and constitution of the State of Texas, 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.
2. 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. If Buyer discovers hazardous or
toxic substances or materials, Buyer will immediately notify Seller.
3. 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.
4. To the extent allowed by the laws and constitution of the State of Texas, 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.
5. 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.
C. 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
digging/drilling/excavation, the following procedures will be followed by Buyer and
Buyer's Contractors:
1. 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.
2. 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.
D. 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 Article 3-A and 3-13 and Seller will retain all of its remedies for Buyer's
default under Article 3-A and 3-B.
Article 4. As Is Sale-Release-Indemnity:
A. 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.
B. TO THE EXTENT ALLOWED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS,
FROM AND AFTER CLOSING, BUYER WILL RELEASE SELLER, AND, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, INDEMNIFY, DEFEND AND SAVE HARMLESS 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.
C. The provisions of this Article 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.
Article S. Escrow,Title Insurance and Abstract of Title:
A. 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.
B. 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.
Article 6. Form of Deed: Reservations:
A. 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.
B. Seller will reserve from the transfer all minerals and mineral rights without right of
surface entry.
C. Noise/Vibration.
The Property shall be conveyed by Seller subject to the following covenant, condition
and restriction, which Buyer by the acceptance of the Deed shall covenant for itself, its
successors and assigns,faithfully to keep, observe and perform:
Railroad Proximity Covenant.
(a) Buyer acknowledges that the property abutting the southern boundary line of
the Property is dedicated and used for railroad purposes, that railroad operations may
create noise, vibrations, emissions, fumes and odors twenty-four (24) hours a day, and
that the amount, nature and intensity of railroad operations may increase or change
(collectively, the "Permitted Effects"). Buyer accepts the Property subject to the
existence of the Permitted Effects. By acceptance of the Property, Buyer agrees that, at
Buyer's sole cost and expense, as part of the development of the Property, Buyer shall
design and install and/or construct and thereafter maintain improvements to reduce or
limit the Permitted Effects and to comply with all governmental requirements, if any,
which may be imposed as a condition to the development and use of the Property
because of the Permitted Effects.
(b) Buyer shall not, and hereby waives all rights to, (i) institute legal proceedings
against Seller to reduce or lessen the Permitted Effects, and (ii) directly or indirectly
participate in petition drives, lobbying efforts or other activities seeking the enactment
of federal, state or local laws or ordinances to reduce or lessen the Permitted Effects.
Any party breaching such covenant shall reimburse Seller for all costs incurred by Seller
to comply with any such orders, laws or ordinances, including, without limitation,
attorney fees and court costs.
(c) If Buyer sells or leases all or any portion of the Property, Buyer shall require all
purchasers and tenants to acknowledge the location of the railroad operations abutting
the Property and the existence of the Permitted Effects, and to agree in writing, for the
benefit of Seller,to comply with the above covenants.
Covenants To Run With Land. The foregoing covenant, condition and restriction shall
run with the Property, the burdens of which will be binding on the successors and
assigns of Buyer, and the benefits of which will inure to the successors and assigns of
Seller. A breach of the foregoing covenant, condition and restriction, or the
continuance thereof, may, at the option of Seller, its successors or assigns, be enjoined,
abated or remedied by appropriate proceedings.
D. Restrictive No Schools/Day Care.
The Property is conveyed by Seller subject to the following covenant, condition and
restriction which Buyer by the acceptance of this Deed covenants for itself, its
successors and assigns,faithfully to keep, observe and perform:
Restriction on Use. Buyer, its successors and assigns, may use the Property for
industrial, office, and retail-oriented commercial business (for example,
shopping center, filling station, restaurant) purposes, only, and for no other
purposes whatsoever. Without limitation of the foregoing, the Property must
not be used for any of the following purposes: (i) residential, (ii) lodgings or
accommodations (including, without limitation, hotels, motels, boarding houses,
dormitories, hospitals, nursing homes, or retirement centers), or (iii) cultural,
educational, recreational or child-care facilities (including, without limitation,
schools, kindergartens, day-care centers, gymnasiums, athletic fields, picnic
grounds or parks).
The foregoing covenant, condition and restriction shall run with the Property, and a
breach of the foregoing covenant, condition and restriction, or the continuance thereof,
may, at the option of Seller, its successors or assigns, be enjoined, abated or remedied
by appropriate proceedings.
Article 7. Existine ALreements:
A. 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.
B. Buyer acknowledges that the Property may be subject to unidentified Use Rights. It is
the responsibility of Buyer to determine if any of these unidentified Use Rights exist.
Article 8. Closine-Default:
A. Closing will occur on or before August 20, 2010 ("Closing Date"). The Closing will be
deemed to occur upon payment of the Sale Price by a cashier's or certified check, and
delivery of the deed. All Closing costs, including transfer taxes and excise taxes, will be
paid by Buyer.
B. If Closing fails to occur due to default by Seller, Buyer may terminate this Agreement as
Buyer's sole remedy against Seller. In the event of such termination, neither Seller nor
Buyer will have any further liability hereunder.
C. If Closing fails to occur due to default by Buyer, Seller may terminate this Agreement
and neither Seller nor Buyer shall have any further obligations or liability hereunder
except for any of Buyer's surviving obligations pursuant to Article 3 (B) hereof. In no
event shall Seller have any obligation whatsoever to extend the Closing Date for any
reason if Buyer fails to perform.
Article 9. Prorations:
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. Buyer will assume any installments of assessments not yet due and payable.
Article 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 party.
Article 11. Subdivision/Plattine 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 Seller,
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.
Article 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.
Article 13. Eminent Domain.
The parties acknowledge that Buyer has the authority to condemn the Property under its power
of eminent domain. Buyer represents that it will institute eminent domain proceedings in the
event that Seller does not sell the Property upon the terms set forth in this Agreement. The
parties further acknowledge that Seller intends to treat the sale of the Property as sold under
imminent threat of condemnation, pursuant to Section 1033 of the Internal Revenue Code of
1986(26 U.S.C.).
Article 14. Seller's ManaLement Approval:
BUYER ACKNOWLEDGES THAT NEITHER THIS AGREEMENT NOR THE
NEGOTIATIONS LEADING TO THIS AGREEMENT CREATE ANY OBLIGATION
ON THE PART OF SELLER TO SELL THE PROPERTY TO BUYER UNLESS THIS
AGREEMENT IS APPROVED IN ACCORDANCE WITH SELLER'S MANAGEMENT
POLICY STATEMENT. IF SUCH APPROVAL IS NOT GIVEN AND
COMMUNICATED TO BUYER BY THE CLOSING DATE, THIS AGREEMENT WILL
TERMINATE AND NEITHER PARTY WILL HAVE ANY FURTHER OBLIGATION.
Article 15. Condemnation:
If, prior to Closing, a governmental agency commences or imminently threatens in writing to
commence any eminent domain proceedings to take any material portion of the Property, Buyer
and Seller shall each have the unilateral right, exercisable by giving notice of such decision to the
other party within thirty (30) days after receiving written notice of such actual or threatened
condemnation proceedings, to terminate this Agreement. In the event of such termination, this
Agreement will be without any further force and effect and without further obligation of either
party to the other.. If neither parry elects to terminate pursuant to this Article- Condemnation,the
Sale Price will be determined as though such condemnation had not occurred, and the net
proceeds of condemnation awards paid or payable to Seller by reason of such condemnation of
the Property shall be paid or assigned to Buyer at Closing.
Article 16. Disclosures and Notices to Buyer.
(A) Notice Regarding Possible Liability for Additional Taxes (Texas Property Code Section
5.010 . If for the current ad valorem tax year the taxable value of the Property is
determined by a special appraisal method that allows for appraisal of the Property at
less than its market value, the person to whom the Property is transferred may not be
allowed to qualify the Property for that special appraisal in a subsequent tax year and
the Property may then be appraised at its full market value. In addition, the transfer of
the Property or a subsequent change in the use of the Property may result in the
imposition of an additional tax plus interest as a penalty for the transfer or the change
in the use of the Property. The taxable value of the Property and the applicable method
of appraisal for the current tax year is public information and may be obtained from the
tax appraisal district established for the county in which the Property is located.
(B) Annexation Disclosures. If the Property is located outside the limits of a municipality,
the Property may now or later be included in the extraterritorial jurisdiction of a
municipality and may now or later be subject to annexation by the municipality. Each
municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction.
To determine if the Property is located within a municipality's extraterritorial
jurisdiction or is likely to be located within a municipality's extraterritorial jurisdiction,
Buyer should contact all municipalities located in the general proximity of the Property
for further information.
(C) Notice of Water and Sewer Service. Pursuant to Section 13.257 of the Texas Water
Code,Seller provides Buyer with the following notice:
"The Property may be located in a certificated water or sewer service area, which is
authorized by law to provide water or sewer service to the Property. No other retail
public utility is authorized to provide water or sewer service to the properties in the
certificated area. If the Property is located in a certificated area, there may be special
costs or charges that you will be required to pay before you can receive water or sewer
service. There may be a period required to construct lines or other facilities necessary
to provide water or sewer service to the Property. You are advised to determine if the
Property is in a certificated area and contact the utility service provider to determine
the cost that you will be required to pay and the period, if any, that is required to
provide water or sewer service to the Property.
Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of
this Agreement."
At the Closing, Buyer agrees to execute a separate copy of the foregoing notice, in a
form required by Section 13.257 of the Texas Water Code, to be subsequently recorded
in the real property records of the county in which the Property is located.
If you agree with the foregoing terms and conditions with respect to the possible purchase of the Property,
please indicate your acceptance of these terms and conditions by signing in the acceptance space provided
below and returning one copy to Pat Moran at the address listed on the bottom of the first page of this
letter, in order that it is received by Seller no later than May 17, 2010.Please also indicate below how you
wish to take title. If you should have any questions, please call Pat Moran at(402) 544-8537.
Sincerely,
Director-Real Estate
✓t
ACCEPTED AND AGREED THIS r 3 DAY OF +�1� , 20 /1,
CITY OF BEAUMONT
By.
Its:
Title to the Property will be taken as follows:
If Corporation, State of incorporation:
If Husband and Wife, indicate how title will be taken:
Joint Tenants with rights of survivorship
Tenants in Common
Community Property
Mailing Address:
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AGREEMENT FOR FIBER OPTIC PROVISIONS.
w LEGEND= EXHIBIT A"
SALE AREA SHOWN UNION PACIFIC RAILROAD COMPANY
BEAUMONT, JEFFERSON COUNTY. TEXAS
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UPRRCO. R/W OUTLINED ......••• —•• M.P. 458.84 - BEAUMONT SUBDIVISION
TO ACCOMPANY AGREEMENT WITH
CITY OF BEAUMONT
F I BERG CALL BEFORE I SCALE: 1 " = 200'
OPTIC YOU DIG CARD 0259170
FILENAME OFFICE OF REAL ESTATE
CABLE ! ' 1 -800- 336-9193 SCAN SCANNED FILE - OMAHA. NEBRASKA DATE: 12-07-2009
FILENAME DSK FILE: 2591-70
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