AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT (DEVELOPED - BULK)
Exhibit 10.32
AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT
(DEVELOPED - BULK)
This
Amended and Restated Purchase and Sale Agreement
(“Agreement”) is
made between 150 CCM Black Oak,
Ltd. a Texas limited partnership (collectively
“Seller” and/or
“Developer”,
whether one or more) and Xxxxxxx
XX, LLC (“Buyer”).
WHEREAS, the
parties entered into that certain Purchase & Sale Agreement on
July 2, 2018 (“Original
Agreement”) involving the purchase and sale of the
same developed real property described herein and that is the
subject of this Agreement; and
WHEREAS, during the
Inspection Period as defined in the Original Agreement, Buyer was
made aware of certain pending and on-going agreements and
operations with third parties relating to the development and
construction of the water, sewer, and other
infrastructure/utilities that will serve the lots within the real
property, and which still requires substantial work in order to
complete development of the lots; and
WHEREAS, the
parties amended the Original Agreement on several occasions to
extend the dates and deadlines within the Original Agreement to
allow Seller to continue its development work and to discuss the
terms for this Agreement; and
WHEREAS, the
parties now wish to amend and restate the terms of the Original
Agreement to account for Seller’s pending and on-going
development work.
NOW
THEREFORE, for Ten Dollars ($10.00) and other valuable
consideration received and acknowledged by the parties, the parties
do hereby amend and re-state the Original Agreement in its entirety
as set forth in this Agreement, which shall replace and supersede
the Original Agreement, except for Buyer’s acknowledgement of
receipt of the notice set forth on the attached Exhibit E, which
shall not be superseded.
1. Sale
of Property/Lots. Seller agrees to sell and Buyer agrees to
purchase, subject to the terms and conditions of this Agreement,
certain property more particularly described as
follows:
124
Lots located in the Lakes at Black Oak Subdivision, Magnolia,
Xxxxxxxxxx County, Texas, as more particularly referenced and
described on the “Plat” attached hereto as Exhibit
A, and specifically including the Lot Numbers listed on
Exhibit A.
together with all
improvements thereon and all appurtenant rights of Seller
including, without limitation, any rights of ingress and egress
through the adjacent streets, roads, infrastructure, alleys and
right-of-ways and such other rights as may be specified in this
Agreement (collectively the “Property”, which may refer also to
the lots included therein). Buyer and Seller acknowledge and
understand the location and description of the Property referenced
and described herein, regardless of the sufficiency of any legal
description.
2. Purchase
Price. The Purchase
Price for the Property shall be $6,175,000.00
and allocated as
follows:
|
50 lf
Lot
|
$44,000
|
Number
of lots: 53
|
$2,332,000
|
|
60 lf
Lot
|
$54,000
|
Number
of lots: 70
|
$3,780,000
|
|
70 lf
Lot
|
$63,000
|
Number
of lots: 1
|
$63,000
|
The
Purchase Price shall be payable as follows:
A.
Both parties acknowledge that Buyer has already
delivered $150,000.00 (an original payment of $50,000 and a
subsequent payment of $100,000) to Texas State Title, attn. Xxxx
Xxxxxxxx, Pres. 000-000-0000 (“Escrow Agent”) as xxxxxxx money to be credited toward
the Purchase Price at the Closing. In addition, Buyer has already
delivered along with the xxxxxxx money the independent
consideration for the pre-closing period in Paragraph
4
below.
B.
Within
two (2) business days after execution of this Agreement, Buyer
shall deliver to the Escrow Agent an additional $100,000.00 xxxxxxx
money deposit, which shall be considered xxxxxxx money for all
purposes under this Agreement.
C.
The
remaining balance of the Purchase Price shall be paid in cash or
its equivalent at Closing as specified below, as adjusted for
prorations and closing costs described below, and subject to
conditions and exceptions contained herein.
D.
In addition to the Purchase Price, Buyer agrees to
deliver to Escrow Agent $2,500 per lot ($310,000 total) at Closing
as a “community enhancement fee” to be held by Escrow
Agent in order to help compensate/reimburse Seller for funding an
amenity package on the Property after Closing. The current proposed
amenity package is attached on Exhibit B
hereto. Prior to Closing, Seller shall
provide Buyer with a copy of the final plans & specifications
for the amenity package (“Amenity Plans”) and Buyer
will review, comment and approve of the Amenity Plans within seven
(7) days after receipt. Seller shall commence construction of the
amenity package improvements within 30 days after Closing and
complete same within 6 months after Closing, subject to
“Force Majeure” (which in this Agreement is defined as
that term is defined in the USA reference below but as such
definition is applicable to Seller). If Seller has not completed
the amenity package improvements within this 6 month period, then
Seller shall have an additional thirty (30) days to complete,
during which time Buyer and the Escrow Agent may withhold any
remaining escrowed portions of the community enhancement fee until
completed (as further described in the process below). As Seller
constructs and completes the components of the amenity package,
Seller may submit periodic draw requests to the Escrow Agent (with
a copy to Buyer) requesting a draw from the community enhancement
fee held in escrow to pay for/reimburse Seller’s contractor
for the completed components of the amenity package for which the
draw is being requested. Each draw request shall be accompanied by
(i) a certification by the engineer/architect that the portion of
the amenity package for which the draw request is being made has
been completed substantially in accordance with the Amenity Plans
and (ii) fully executed conditional lien waiver from the general
contractor for the work performed. Upon submission of a draw
request with the information/documentation required above, then
Escrow Agent shall pay the draw with the community enhancement fee
funds held in escrow, subject to availability. The parties may
enter into a separate Community Enhancement Fee Escrow Agreement as
necessary which shall be subject to these terms. All parties
acknowledge that the community enhancement fee contributed by Buyer
herein does not necessarily represent the total cost of completion
of the amenity package but is merely Buyer’s agreed upon
contribution toward said costs, and Seller is obligated to complete
the amenity package and pay for all costs over and above the amount
of the community enhancement fee contributed by Buyer as stated
herein. All parties acknowledge that the obligations under this
provision shall survive Closing.
The
Purchase Price to be paid by Buyer for the Property, and
Seller’s right to retain any of the xxxxxxx money other than
the independent consideration (so long as Buyer is not in default),
is conditioned upon Seller’s delivery of the Property and
fulfillment of all other conditions and obligations in compliance
with the terms of this Agreement.
3. Effective
Date. The Effective Date shall
be the date when the last one of the Buyer or Seller executes this
Agreement.
4. Pre-Closing
Period & Initial Acceptance. Within sixty (60) days after execution hereof by
all parties (“Pre-Closing
Period”), Seller will (i)
obtain the initial acceptance of such roads by Xxxxxxxxxx County
(the “County”) subject to a one-year maintenance bond
period and a performance bond, both as required by the County, and
furnish the County required bond, and (ii) obtain initial
acceptance of the internal water and sewer facilities, including
the internal water/sewer utility lines, onsite lift station, and
water well(s), that will service the Property to Aqua Texas, Inc.
(the “Utility” or “Aqua”) and cause Aqua to accept same for
maintenance and operation subject to a one-year performance bond
and/or letter of credit and warranty of Seller, as required by
Aqua, and furnish Aqua the required bond and/or letter of credit
(Seller’s “Initial
Dedications”). If
necessary, the Pre-Closing Period may be extended one time by
Seller for an additional thirty (30) days in order to fulfill its
obligations stated herein. During the Pre-Closing Period,
Buyer’s representatives shall have access to the Property to
continue its inspections and review of the Property, so long as to
not unreasonably interfere with Seller’s completion of the
Initial Dedications and other Pre-Closing Period work. Prior to
Closing, Buyer agrees to restore the Property substantially to its
pre-existing condition after completion of any inspections. Buyer
agrees to share copies of any tests, inspections and reports with
Seller upon request. Buyer shall indemnify, defend, and hold Seller
and its employees, representatives and agents harmless from and
against all claims, liabilities, liens, costs, fees and expenses,
including attorney fees, related to or in any way arising from
Buyer’s inspections or entry on the Property, and this
obligation shall survive termination of this Agreement or Closing,
as applicable. Following the one-year period after each of the
Initial Dedications, Seller shall cause the County to agree to
final acceptance for maintenance of the above-described roads, and
shall cause Aqua to agree to final acceptance for maintenance of
the above described utilities (the “Final
Acceptances”), this
obligation of Seller to survive Closing. Buyer shall be liable for
and reimburse Seller for (A) the cost to repair any damages to the
above-described roads and the above-described utilities that is
caused by Buyer or Buyer’s agents and that is suffered by
Seller prior to the Final Acceptances and (B) costs incurred by
Seller related to Buyer’s failure to construct improvements
on the Property in accordance with the standards of the County and
the Utility that delay or cause Seller to incur additional costs to
obtain Final Acceptances from either or both of the County and the
Utility. This obligation of Seller shall survive
Closing.
Buyer
acknowledges that Seller has disclosed and provided to Buyer copies
of any third party materials that Seller identified in its
possession that relate to the Property and that Seller has not
already provided, which may include (but Seller does not represent
that it has all of these materials) a current survey, boundary and
topographical surveys, plats, HOA, restrictive covenants and
conditions, engineering reports by electronic format in PDF, CAD
(including but not limited to .dwg and/or .dgn format) or other
media, environmental reports, flood zone certifications, soils
reports, easement agreements, encroachments or encumbrances,
municipal zoning related documents, improvement/management district
information & agreements, utility agreements, construction
agreements, requirements and fees, mineral leases, oil/gas
xxxxx/lines, property line discrepancies, and homeowners or
community association documents, but Seller is under no obligation
to disclose or provide documents of record in the real property
records.
5. Title
Commitment. Buyer acknowledges
receipt of the Title Commitment (the “Current Title
Commitment”) with an
effective date of September 4, 2018, issued on September 13, 2018,
by Texas State Title, LLC. Prior to expiration of the Pre-Closing
Period, , Buyer, at its expense, may order an updated title
commitment for the Property in the amount of the Purchase Price
from Escrow Agent and obtain a copy of all documents which
constitute exceptions to the title commitment. Buyer shall give
Seller written notice within five (5) days following receipt of the
updated title commitment of any condition of title (exceptions or
requirements) that is not shown on the Current Title Commitment and
that is not satisfactory to Buyer. Seller may, but shall not be
obligated, to resolve such matters; provided, however, that
mortgage liens may be resolved at closing. If Seller is unable or
unwilling to resolve such matters before the expiration of the
Pre-Closing Period as defined above, then Buyer may, at
Buyer’s sole option, either (1) accept title subject to
the objections raised by Buyer and such accepted objections (along
with the matters not objected to) shall become permitted exceptions
(“Permitted
Exceptions”) without any
adjustment in the Purchase Price, or (2) terminate this
Agreement prior to the expiration of the Pre-Closing Period,
whereupon the xxxxxxx monies (less the independent consideration)
shall be immediately returned to Buyer by Escrow Agent, or
(3) work with Seller, if mutually agreeable, to satisfy
unacceptable matters and postpone the end of the Pre-Closing Period
and/or Closing Date to satisfy these matters. At Closing, Seller
shall provide Buyer with an owner’s policy of title insurance
in the amount of the Purchase Price. Seller shall pay the cost for
the basic cost of the owner’s policy of title insurance, and
Buyer shall pay the cost for all endorsements, changes, and
modifications to the owner’s policy of title
insurance.
6. Closing.
Closing (the “Closing”) shall occur within ten (10)
days after expiration of the Pre-Closing Period or ten (10) days
after Buyer receives written confirmation and verification that the
Initial Dedications have been made and accepted, whichever is
earlier (“Closing Date”), subject to the Property being delivered
in compliance with all terms herein and the satisfaction and
fulfillment of all other pre-Closing conditions and obligations
stated herein.
7. Title
& Deliveries. At
or prior to Closing, Buyer and Seller, as applicable, shall deliver
to the Escrow Agent and/or each other the following items for the
Property, duly executed and acknowledged where
required:
A. Conveyance
Deed. A special
warranty deed in the form satisfactory to Buyer, specifically
stating all approved exceptions to title, if any, subject but not
limited to, zoning or deed restrictions, easements and encumbrances
of record by either Buyer or Seller, or future assessments if
applicable, with an acknowledgment of the Post-Closing Work to be
performed hereunder.
B. Foreign
Person Tax Withholding. Documentation or information required
for compliance with Section 1445 of the Internal Revenue
Code.
C. Additional
Documents. Such
additional documents as might be reasonably required by the Seller,
Buyer, Buyer’s Lender, or the Escrow Agent to consummate the
sale of the Property and convey clear title to the Buyer with all
appurtenant rights, including but not limited to the Community
Enhancement Fee Escrow Agreement referenced
above.
D. Insurance
Policy and Costs. Seller will pay the costs of
Seller’s counsel, preparation of any deeds and any xxxx of
sale, deliver and pay the basic costs for a title insurance policy
in an amount equal to the Purchase Price, transfer taxes for the
conveyance, and one half of the escrow or closing fees. Buyer will
pay the cost of Buyer’s counsel, all loan costs required by
Buyer’s lender, including title policy cost in excess of
owner’s policy, Buyer’s portion of the cost of the
owner’s policy of title insurance, one half of any escrow or
closing fee, and recording fees for any deeds and mortgage, and any
applicable mortgage tax.
E. Tax
Prorations. All taxes and assessments (including pending
assessments if the related improvement is substantially completed
as of the Closing Date), whether payable in installments or not,
for the year of the Closing will be prorated to the Closing Date
based on the latest available tax rate and assessment valuation
(with the parties signing a proration agreement as to adjustments
when actual taxes are known).
F. Take
Over Assignments. On or before
Closing, Seller, Buyer and any necessary third parties will execute
and deliver assignments of the “Aqua Texas, Inc. Black Oak
Force Main Agreement” (“FMA”) between Aqua Texas
Inc. and Seller pertaining to the construction of the Improvements
as defined herein and listed on Exhibit F attached hereto,
including specifically an assignment of the right to and ownership
of District funds being held in escrow (approximately $1,200,000)
for the costs of completion of the offsite water and sewer
facilities to service the Property (“Escrow Funds”) (but excluding all other reimbursables
and reimbursements) as referenced in the agreements listed on
Exhibit F attached hereto (the “Ancillary
Agreements”), said
assignments and deliveries to be a condition of Buyer’s
obligation to close and to be held in escrow by the Escrow Agent
and subject to the provisions of Paragraph 9 and Buyer’s Take
Over Rights.
8. Obligations
of Seller and Buyer & Conditions Precedent to
Closing. On or prior
to Closing, Seller shall complete and deliver the Property in
compliance with all terms and requirements stated herein, if not
already done so, including specifically providing the Initial
Dedications. Buyer’s obligation to close on the Property and
Seller’s right to retain any of the xxxxxxx money deposit
(other than the independent consideration) is subject to and
conditioned upon the completion, compliance and satisfaction, as of
the Closing Date, of each of the requirements described herein and
below, and compliance with all delivery requirements of Paragraph 7
above. Unless specifically stated otherwise, the satisfaction of
these conditions shall be at Seller’s expense. Buyer shall
cooperate with Seller to satisfy these conditions as
needed.
A. Correctness
of Representations and Warranties. Seller represents and warrants that
(i) to its knowledge, it holds good and marketable title in fee
simple to the Property, (ii) all closing documents signed by Seller
will be valid, authorized and binding upon Seller, (iii) to its
knowledge, no outstanding contracts, fees, debts or liens exist on
the Property (except mortgage liens to be satisfied at closing and
other items related to the development of the Property); and (iv)
to its knowledge, there are no leases or third-party
rights/interests on the Property and Seller is in sole possession.
These representations and warranties of Seller shall be evaluated
by Buyer during its title review and shall not create any
obligations of Seller or rights of Buyer, outside of those
specified in Paragraph 5 of this Agreement.
B. Final
Plat Recording & 911 Addresses. Finalization and recording of the
proposed plat and Seller’s delivering a copy thereof to Buyer
on or before the Closing Date, which Buyer acknowledges has been
delivered. The plat shall be deemed finalized after all required
governmental approvals have been obtained, said plat has been duly
recorded in the real property records of the applicable County
Clerk’s office, corresponding 911 addresses have been
provided by the Seller to the Buyer.
C. Covenants,
Conditions, and Restrictions
(“CC&Rs”).
Seller shall draft CC&Rs for Buyer’s review prior to the
expiration of the Pre-Closing Period, and Buyer shall approve the
CC&Rs so long as they are reasonable. If Buyer does not believe
that the CC&Rs are reasonable, it shall give Seller written
notice specifying its objections and Seller and Buyer shall attempt
to negotiate a final set of CC&Rs prior to the expiration of
the Pre-Closing Period. If Seller or its affiliate is the declarant
and/or governing architectural review authority under the
CC&Rs, then upon Buyer’s submittal from time to time,
Seller shall approve Buyer’s submittals so long as they are
in accordance with the CC&Rs.
D. Completion/Compliance.
With the exception of the incomplete
Post Closing Work defined below, the Property and lots therein,
including all work and Post Closing Work performed by Seller as of
Closing, have been completed in full compliance with all terms
hereof. All requirements by applicable local, state and federal
governmental authorities, as certified by a certified professional
engineer, will have been met or exceeded for the Property and each
lot therein, including but not limited to, preliminary and final
plat approval, proper construction and availability of fully
operational utilities including roads, water, sanitary sewer,
storm, sewer with all necessary permits and fully compliant (no
violations) with all applicable rules, regulations, and ordinances
of applicable authorities, and a written statement from the
engineer of record that building permits are obtainable from the
appropriate governmental agencies for the construction of
single-family houses on the lots. A preliminary and final plat of
the development, approved construction drawings from the municipal
authority and an “AS BUILT” survey will be provided in
“PDF” and “CAD” format to the Buyer as they
become available. Each lot pin shall have a flagged wooden lathe to
xxxx the pin location. Provided that Buyer provides Seller adequate
and appropriate utility easements over and under the Property and
has graded the Property and staked all of the lots in the Property,
all as reasonably determined by Seller, Seller will cause permanent
underground electric power and telecommunication facilities
(collectively, the “Permanent
Utilities”) to be
installed and available to the perimeter of each lot within the
Property within ninety (90) days after Buyer has poured the slab
for a residence on a lot and has given Seller written notice that
Buyer is ready for the Permanent Utilities for the lot. This
post-Closing obligation of Seller for Permanent Utilities shall be
performed at Seller’s expense and shall expressly survive
Closing for twenty-four (24) months and shall not merge into the
deed or Closing.
E. Permits
and Environmental Concerns.
With the exception of the incomplete Post Closing Work defined
below, Seller will obtain and complete all requirements related to
Storm Water Pollution Prevention Plans (“SWPPP”) as required by applicable local, state
and federal authorities and maintain the same during the
development of the lots within the Property. Upon Closing, Seller
will deliver to Buyer Seller’s most recent reports from its
compliance inspector regarding storm water quality that all
BMP’s are installed and maintained per the SWPPP. Upon
Closing, Seller will close out its storm water permit for the
Property and Buyer shall assume all responsibility for future
maintenance and installation and Seller shall be released from
liability thereon. Seller shall have caused all FEMA requirements
to have been met for a home on any lot to be exempted from
purchasing flood insurance and no portion of any house pad site (it
being understood that some portions of some lots are within a flood
plain) is to be located in a FEMA defined flood plain.
Seller’s principals have no actual knowledge that the
Property has been or is presently used for handling, storage,
manufacturing, refining, transportation or disposal of “toxic
material”, “hazardous substances”, or
“hazardous waste”. If “hazardous wastes”,
“hazardous substances”, or “hazardous
material” is located on the Property, as determined by a
Phase I or permitted Phase II environmental assessment obtained by
the Buyer, then Buyer shall have the right to terminate this
Agreement during the Pre-Closing Period pursuant to
Paragraph
4
above. Without diminishing the
obligations still to be performed by Seller hereunder, Buyer
otherwise acknowledges Seller’s delivery of the Property in
compliance with this Paragraph.
F. Trash,
Trees, Brush & Debris. The
Property is being sold “as-is” and Buyer shall be
responsible for mowing, brush hogging, and removing, clearing, and
disposing of all trees, trash and debris on the Property, except
that Seller will remove any construction debris of which Buyer
notifies Seller in writing prior to the expiration of the
Pre-Closing Period, and Buyer acknowledges Seller’s delivery
of the Property in compliance with this
Paragraph.
9. Seller’s
Post Closing Obligations. The
Property lies within the boundaries and jurisdiction of the Xxxxxx
County Improvement District No. 17 (the “District”). The District was created to, amongst
other things, provide sewer and utility infrastructure to the
Property. Pursuant to that certain agreement titled the
“Xxxxxx County Improvement District No. 17 – Black Oak
Utility Service Agreement” (the “USA”) and the FMA, and other Ancillary
Agreements between the District, the Seller, and Aqua Texas, Inc.
(the “Utility”) which are referenced herein and
incorporated herein by reference in Exhibit F, the Seller is
obligated to construct certain sewer and water utility
infrastructure improvements, including internal sewer/water lines
within the Property subdivision, a lift station, a force main, and
other onsite and offsite improvements (such improvements, insofar
as those improvements pertain to, service, and/or if not completed
would have a negative impact on servicing the Property, are
collectively, the “Improvements”). After Seller’s completion of the
Improvements, the Utility is to take over, accept and operate the
Improvements, along with separate facilities constructed by the
Utility, in order to provide water and sewer service to the lots
within the Property subdivision. To facilitate the construction of
the Improvements, the Escrow Funds held by the District are or will
be accessible by Seller to complete the construction. The parties
acknowledge that the Improvements may not be complete prior to
Closing. However, Seller will continue its work on the Improvements
and complete the Improvements after Closing, in accordance with the
terms and schedules stated herein and in the USA, the FMA,and other
Ancillary Agreements with specific regard to the Property
..
A.
Post
Closing Work. Following the
Closing, Seller, at its cost and expense (subject to approved
disbursements from the District and otherwise), shall perform the
Post Closing Work as set forth on Exhibit G hereto and in
accordance with all terms, conditions and schedules stated herein
and in the USA, the FMA, and other Ancillary Agreements as that
work pertains to the Property. All
parties, including specifically Seller, acknowledge and agree that
Seller’s performance of the Post Closing Work and all other
terms of this Paragraph 9 shall expressly survive Closing and shall
not merge with any deed, and these provisions may be construed
separately as needed to give surviving effect and full validity to
these terms after Closing.
B.
Performance
of the Post Closing Work. Time
is of the essence with respect to performance of the Post Closing
Work pursuant to the schedules on Exhibit G and the applicable
schedules in the USA and Ancillary Agreements, subject to Force
MajeureSeller shall not permit any liens or encumbrances to arise
against the Property in connection with or as a result of the
performance of the Post Closing Work. Seller shall protect,
indemnify, defend and hold Buyer and the Property harmless of and
from any and all losses, liabilities, costs, expenses (including
attorney fees), damages, liens, claims, actions or causes of action
arising from or relating to Seller or its contractors entering upon
the Property to complete the Post Closing Work. At all times prior
to completion of the Post Closing Work, Seller, at its cost and
expense, shall maintain commercial general liability insurance on
an occurrence basis covering Seller and its agents, contractors,
subcontractors and licensees, against claims of bodily injury,
personal injury and property damage for limits not less than
$1,000,000 each occurrence, which insurance shall name Buyer as
additional insured if allowable by insurance
company.
C.
Completion
of Post Closing Work. The
parties acknowledge that Seller has commenced performance of the
Post Closing Work and Seller shall use its commercially reasonable,
good faith efforts to complete the Post Closing Work by August 1,
2019 (“Completion
Date”), and the various
components thereof by the dates set forth on Exhibit G (the
“Progress
Dates”), subject to Force
Majeure.
X.
Xxxxx
or Failure to Complete Post Closing Work. In the event Seller (i) fails to complete the
Post Closing Work by the Completion Date and/or (ii) fails to
complete any portion of the Post Closing Work by the applicable
Progress Date on which that portion of work was to be completed as
set forth on Exhibit G and/or (iii) ceases continuous and diligent
performance and construction of the Post Closing Work for a period
of ten (10) days or more without a definable excuse under the
applicable Force Majeure provisions, then Buyer may deliver written
notice of default to Seller and if Seller fails to resume
continuous and diligent construction of the Post Closing Work
within fifteen (15) days of receiving notice, then Buyer, as its
sole remedy, shall be immediately entitled to notify Seller, the
Utility, the District and any other interested parties that Buyer
is exercising its right to step in, take over all right, title and
interest to all parts, plans and components of the Post Closing
Work and the Improvements, receive all payments, benefits and funds
from the Escrow Funds , and complete the Post Closing Work itself
(“Take
Over Rights”). If
exercised, Seller will fully cooperate with Buyer and any other
parties to effectuate the Take Over Rights and Seller shall
relinquish any claims or rights under the Ancillary Agreements or
otherwise and to any and all equipment, personal property,
plans/specs or otherwise related to, connected with or to be
connected with the Improvement. This shall also include
Seller’s assignment and delivery of all construction plans
and any necessary licenses and permits connected to the Post
Closing Work and the Improvements. To accommodate Buyer’s
exercise of its Take Over Rights and Buyer’s right to receive
the Escrow Funds in connection therewith, Seller shall execute, on
or before Closing, all documents necessary and shall assign all of
its rights and entitlements to Buyer, with an assumption by Buyer,
in all of the Ancillary Agreements listed on Exhibit F and as
referenced in Paragraph 7.F above. These assignments shall be held
in escrow by the Escrow Agent pursuant to an escrow agreement (the
“Take-Over Escrow
Agreement”) and shall
entitle Buyer to receive all Escrow Funds referenced in the
Ancillary Agreements to assist and compensate Buyer in and for the
completion of the Improvements. All parties acknowledge that fully
executed assignments of the Ancillary Agreements, including all
third party signatures necessary, and documentation assuring
Buyer’s access to the Escrow Funds and the Take Over Rights
is an express condition precedent of Buyer’s obligation to
close under this Agreement (so long as Buyer negotiates a
reasonable form of such assignments and documents in good faith),
otherwise Buyer may terminate and receive its xxxxxxx money
deposits (other than the independent consideration) or seek
specific performance as provided herein.
E.
Take
Over Rights Limitation. With
respect to Buyer’s Take Over Rights and assumption of rights
and obligations under the Ancillary Agreements, all parties
acknowledge that Buyer’s obligations to perform under the
Ancillary Agreements shall be limited to the Improvements (onsite
and offsite) which specifically pertain to the Property being
purchased hereunder by Buyer, and shall in no way extend to or
obligate any work or Improvements that are beyond the scope of the
FMA and that service or pertain to any separate property, including
Seller’s other real property. However, this limitation shall
not be interpreted to relieve Buyer from performing all obligations
and constructing all improvements under the FMA in the event Buyer
exercises its Take Over Rights. A statement to this effect shall be
included in any assignments of the Ancillary Agreements as provided
herein.
10. Offsite
Water Flow. Seller will deliver
the Property at Closing with proper offsite water flow on and to
the Property and which will be managed through the appropriate
infrastructure, and Buyer acknowledges Seller’s compliance
with this Paragraph.
11. Subsurface
Rock. Prior to expiration of
the Pre-Closing Period, Buyer may terminate this Agreement pursuant
to Paragraph
4 above and recover the xxxxxxx money
(less the independent consideration) upon the discovery of
subsurface rock underlying the Property in any quantity deemed
excessive by the Buyer, unless Seller has remedied the same to
Buyer’s satisfaction, Buyer acknowledges Seller’s
delivery of the Property in compliance with this
Paragraph.
12. Assessments.
So long as Developer is in control
under the CC&Rs, Buyer shall be exempt from paying any and all
applicable assessments (but will have to pay TAP fees and the
amenity assessment) in the CC&Rs to the Developer during the
Seller’s period of ownership, including, but not limited to
regular and special assessments. Seller also agrees to exempt bona
fide home builders from assessments in the CC&R’s during
the same time period.
13. Notice. All
notices will be in writing and served by electronic transmission to
the addresses shown below, until notification of a change of such
addresses. All such notices shall be deemed delivered on the date
initiated.
For
Buyer:
Xxxxx
X. Xxxx, Manager
Xxxxx.xxxx@xxxxxxxxxxxxx.xxx
479.455.9090
Xxxx
Danvers, Director of Acquisitions
Xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Xxxx
Xxxxxxx
Xxxx.xxxxxxx@xxxxxxxxxxxxx.xxx
Xxxx
Xxxxxx
Xxxx.xxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx
Xxxx, Financial Coordinator
Xxxxx.xxxx@xxxxxxxxxxxxx.xxx
For
Seller:
Xxxxxxx
XxxXxxxxx
xxxxxxx@xxx.xxx.xx
Xxxxx
Xxxxxxxx
xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
Xxx
Xxxx
xxx@xxx.xxx.xx
Xxxxxx
X’Xxxxxx
xxxxxx@xxx.xxx.xx
Xxxxx
Xxxxxxx
xxxxxxxx@xxxxx.xxx
Xxxxx
Xxxxxx
xxxxxxx@xx.xxx
Xxxxxx
Xxx
14. Disclosure
by Buyer and Seller. One or more individuals representing
the Buyer or Seller may hold real estate licenses from multiple
states.
15. Default.
If Seller has performed all of Seller’s obligations and
fulfilled the conditions under this Agreement and, if within five
(5) days after the date specified for Closing, the Buyer fails to
make payment as required herein, through no fault of Seller, then
Seller may, as its sole and exclusive remedy, cancel and terminate
this Agreement and keep the xxxxxxx money deposit paid by the Buyer
as liquidated damages. Subject to Buyer’s separate post
closing rights and remedies discussed in Paragraph 9, if Seller
breaches this Agreement or fails to perform any of Seller’s
obligations hereunder, then Buyer may as its sole remedy, (i)
terminate this Agreement and receive a refund of all of the xxxxxxx
money (less the independent consideration), or (ii) seek specific
performance of this Agreement pursuant to the remainder of
this Paragraph
15.
A.
Buyer may enforce specific performance of
Seller’s obligation to execute the documents required to
convey the Property to Buyer, including the Take Over Assignments,
but waiving any uncured title or survey objections or matters and
without any offset against, deduction from, or reduction in the
Purchase Price (except for the costs Buyer will incur to complete
the Property and Improvements in accordance with the terms hereof),
and Seller’s warranty of title in the special warranty deed
and the owner policy of title insurance to be delivered under this
Agreement shall be subject to the permitted title exceptions and
all uncured title or survey objections or matters, and Buyer
expressly waives its rights to seek damages if it files a lawsuit
for specific performance. After Closing, Buyer may also seek
specific performance of Seller’s obligation to (i) complete
the post-closing Permanent Utilities as defined in Paragraph 8.D
(or to recover the costs to complete same), and (ii) complete the
Final Acceptances (or to recover the costs to complete
same).
B.
Buyer shall be deemed to have elected to terminate
this Agreement under clause (i) above if Buyer fails to file suit
for specific performance in accordance with Sub-Paragraph
A
above against Seller in a court having
jurisdiction in the county and state in which the Property is
located on or before 60 days after the date upon which closing was
to have occurred.
16. Binding
Effect/Assignment. This Agreement will inure to the
benefit of and bind the respective successors of the parties,
including specifically the post closing provisions stated herein
which shall survive Closing. Seller may not assign this Agreement
or any obligations hereunder. Buyer may assign this Agreement and
any and all rights and obligations hereunder at any time prior to
closing to any person or entity controlling, controlled by, or
under common control with Buyer. For purposes of this Paragraph a
person or entity shall control an entity, if it, directly or
indirectly, holds a majority interest in the entity to be
controlled. Notwithstanding anything stated herein to the contrary,
either Buyer or Seller (or both) may unilaterally execute and
record a simple notice of this Agreement with the land records
office for the purpose of providing notice hereof and both parties
shall deem any such notice as sufficient, lawful and proper
pursuant to all applicable state and local laws. If this Agreement
is properly terminated prior to Closing in accordance with the
terms herein pertaining to termination rights, then Seller may file
a release of any such notice without the consent of Buyer, and any
such release may be relied upon by any third
party.
17. No
Waiver. Failure of
either party to exercise any rights under this Agreement shall not
constitute a waiver of any right, nor excuse the other
party’s full performance. No express waiver of any matter
shall affect any other matter under this Agreement. Express waivers
are only effective if in writing.
18. Brokerage. Buyer
represents that it has not contracted with any real estate broker
in connection with the transaction contemplated by this Agreement.
Seller shall be responsible for paying a 4% Broker’s
commission based on the Purchase Price to Xxxx Xxxxxx with Home
Asset, Inc. Each party shall indemnify and hold the other party
harmless from all claims, losses, liabilities, costs, fees, and
expenses (including, but not limited to, court costs, litigation
expenses, and attorneys’ fees) related to or incurred in
connection with any claims for brokerage commissions arising by,
through, or under the indemnifying party.
19. Entire
Agreement. This
document constitutes the entire agreement between the parties,
incorporating all prior agreements, and may only be amended in
writing executed by both parties. The exhibits attached to this
Agreement are incorporated into this Agreement for all
purposes.
20. Attorney’s
Fees. If either
party prevails against the other in a legal action concerning any
part of this Agreement, the successful party shall be entitled to
its reasonable attorney’s fees and costs connected with such
action, through appellate and bankruptcy proceedings, in addition
to all other recovery or relief. Costs shall include all deposition
costs and expert fees, even if not used at
trial.
21. Governing
Law. This Agreement
shall be governed and enforced in accordance with the law of the
state where the Property is located.
22. Time.
Buyer and Seller understand that “Time is of the
Essence” for this Agreement.
23. ADA
Compliant Ramps. Seller shall
be responsible for installation of any and all required ADA
sidewalk ramps for sidewalks installed by Seller. Said ramps shall
meet all the ADA Guidelines, Code and Specifications for such
ramps.
A.
Within 30 days after Closing, Seller shall
commence construction of the Black Oak Community Entry on Black Oak
Drive, including the landscaping and amenities in
Paragraph
2.c. This provision shall
expressly survive Closing and remain a continuing obligation of
Seller until complete.
B.
Prior
to Closing, Buyer shall propose its signage to Seller for approval,
as to type, size, appearance, and placement. Seller shall not
unreasonably withhold its approval of the signage, so long as the
signage meets all applicable governmental requirements and is
limited so as not to clutter the Property. After approval by
Seller, Buyer may place the signage in the agreed locations prior
to closing.
C.
Seller’s obligations under this
Paragraph
24
and any liabilities therefore shall
survive Closing.
D.
The
terms of this Agreement shall be kept confidential by both parties,
subject to the remainder of this paragraph. Each party may disclose
the terms of this Agreement (including information about the
parties) where disclosure is required by (or advisable to comply
with) applicable law or regulation, rule of stock exchange,
governmental agency, or self-regulatory agency, by a court of
competent jurisdiction, or by any other regulatory body, and the
terms may be disclosed to the parties’ respective counselors,
attorneys, accountants, brokers, and other persons with a need to
know. The provisions of this paragraph shall survive termination of
this Agreement and Closing, as applicable.
25. AS-IS. Subject to the representations and covenants
stated herein to expressly survive Closing, including those set
forth in Paragraph 8.D and the Post Closing Work, the parties
intend that the sale of the Property will be made on an “As
Is, Where Is” basis with all faults, in accordance with the
terms and provisions of
Exhibit C.
26. Statutory
Notices. To the extent
applicable, Seller gives Buyer the notices set forth in
Exhibit
D.
Purchase
and Sale Agreement 150 CCM Black Oak, Ltd.
Xxxxxxx XX,
LLC
Page 9 of
10
|
SELLER:
150 CCM BLACK OAK LP,
a Texas
limited partnership
By: 00
Xxxxx Xxx XX, Inc.,
a Texas
corporation
Its:
General Partner
By:
/s/ Xxxxxxx
XxxXxxxxx
Xxxxxxx
XxxXxxxxx,
Chief
Development Officer
Date:
10/12/18
|
|
BUYER:
XXXXXXX XX, LLC
By:
/s/ Xxxxx X.
Xxxx
Xxxxx
X. Xxxx,
Manager
Date:
10-12-2018
|
Purchase
and Sale Agreement 150 CCM Black Oak, Ltd.
Xxxxxxx XX,
LLC
Page 10 of
10
EXHIBIT A
and List of Lots
EXHIBIT B
EXHIBIT C
1.
BUYER
ACKNOWLEDGES AND AGREES THAT SELLER AND ITS AGENTS HAVE NOT MADE,
DO NOT MAKE, WILL NOT MAKE AND SPECIFICALLY NEGATE AND DISCLAIM ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE,
OF, AS TO, CONCERNING OR WITH RESPECT TO: (A) THE NATURE, QUALITY,
OR CONDITION OF THE PROPERTY OR ANY PART THEREOF, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY; (B) THE ECONOMIC
FEASIBILITY OF THE PROPERTY OR THE INCOME TO BE DERIVED FROM THE
PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON; (D) EXCEPT FOR
ANY WARRANTIES OF TITLE CONTAINED IN THE SPECIAL WARRANTY DEED TO
BE DELIVERED BY SELLER AT THE CLOSING, THE NATURE AND EXTENT OF ANY
RIGHT-OF-WAY; (E) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS
OPERATION WITH ANY LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, WITHOUT
LIMITATION, THE STATUS OF ANY PERMITS AND GOVERNMENTAL APPROVAL;
(F) THE RENTABILITY, HABITABILITY, MARKETABILITY, MERCHANTABILITY,
OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (G) THE
PRESENCE OF ANY ENDANGERED OR THREATENED SPECIES ON THE PROPERTY,
AS WELL AS THE SUITABILITY OF THE PROPERTY AS HABITAT FOR ANY OF
THOSE SPECIES; OR (H) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY. WITHOUT LIMITING THE FOREGOING, SELLER AND ITS AGENTS
HAVE NOT MADE, DO NOT MAKE, WILL NOT MAKE AND SPECIFICALLY NEGATE
AND DISCLAIM ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE
OR ABSENCE OF ANY HAZARDOUS MATERIALS (AS HEREINAFTER DEFINED) ON,
UNDER, OR ABOUT THE PROPERTY OR THE COMPLIANCE OF THE PROPERTY WITH
ANY OF THE ENVIRONMENTAL LAWS (AS HEREINAFTER DEFINED). THE TERM
“HAZARDOUS MATERIALS” MEANS ANY SUBSTANCE, COMPOUND,
MATERIAL OR WASTE, WHETHER SOLID, LIQUID OR GASEOUS: (1) THE
PRESENCE OF WHICH REQUIRES INVESTIGATION, MONITORING OR REMEDIATION
UNDER ANY ENVIRONMENTAL LAW (DEFINED BELOW); (2) WHICH IS OR
BECOMES DEFINED AS A “HAZARDOUS SUBSTANCE”,
“HAZARDOUS MATERIAL”, “HAZARDOUS WASTE”,
“EXTREMELY HAZARDOUS WASTE”, “SOLID WASTE”,
“TOXIC SUBSTANCE”, “CHEMICAL SUBSTANCE”,
“REGULATED SUBSTANCE”, “POLLUTANT”, OR
“CONTAMINANT”, OR IS OTHERWISE CLASSIFIED AS HAZARDOUS
OR TOXIC, IN OR PURSUANT TO ANY ENVIRONMENTAL LAW; (3) WHICH IS
EXPLOSIVE, CORROSIVE, FLAMMABLE, RADIOACTIVE, OR OTHERWISE
HAZARDOUS AND IS OR BECOMES REGULATED BY ANY GOVERNMENTAL
AUTHORITY, AGENCY, DEPARTMENT, COMMISSION, BOARD, AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES, THE STATE OF TEXAS OR ANY
POLITICAL SUBDIVISION THEREOF; (4) THE PRESENCE OF WHICH ON THE
PROPERTY CAUSES OR THREATENS TO CAUSE A NUISANCE UPON THE PROPERTY
OR TO ADJACENT PROPERTIES OR POSES OR THREATENS TO POSE A HAZARD TO
THE HEALTH OR SAFETY OF PERSONS ON OR ABOUT THE PROPERTY; (5) THAT
CONTAINS PETROLEUM HYDROCARBONS, ASBESTOS, RADON, POLYCHLORINATED
BIPHENYLS, UREA FORMALDEHYDE FOAM INSULATION, LEAD, OR MOTOR FUEL
OR OTHER VOLATILE ORGANIC COMPOUNDS; (6) WHICH CAUSES OR POSES A
THREAT TO CAUSE A HAZARD TO THE ENVIRONMENT OR TO THE HEALTH,
SAFETY OR WELFARE OF PERSONS ON OR ABOUT THE PROPERTY, OR (7) WHICH
IS A SHARP (E.G. NEEDLE) OR AN INFECTIOUS, MEDICAL OR RADIOACTIVE
WASTE. THE TERM “ENVIRONMENTAL LAWS” MEANS ANY FEDERAL,
STATE OR LOCAL LAW, STATUTE, GUIDANCE OR POLICY STATEMENT,
ORDINANCE, CODE, RULE, REGULATION, LICENSE, AUTHORIZATION,
DECISION, ORDER, INJUNCTION OR DECREE, WHICH PERTAINS TO HEALTH,
SAFETY OR THE ENVIRONMENT (INCLUDING, BUT NOT LIMITED TO, GROUND,
AIR, WATER OR NOISE POLLUTION OR CONTAMINATION, AND UNDERGROUND OR
ABOVEGROUND TANKS) AND SHALL INCLUDE WITHOUT LIMITATION, THE CLEAN
WATER ACT, 33 U.S.C. § 1251 ET SEQ.; THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, 42 U.S.C.
§ 9601 ET SEQ.; THE RESOURCE CONSERVATION AND RECOVERY ACT, 42
U.S.C. § 6901 ET SEQ.; THE TOXIC SUBSTANCE CONTROL ACT, 15
U.S.C. §§ 2601 ET SEQ; THE OCCUPATIONAL HEALTH AND SAFETY
ACT; THE TEXAS WATER CODE; AND THE TEXAS SOLID WASTE DISPOSAL ACT,
TEXAS HEALTH AND SAFETY CODE CHAPTER 361, ALL AS
AMENDED.
2.
BUYER
AGREES THAT IT HAS EXAMINED AND INVESTIGATED THE PROPERTY PRIOR TO
EXECUTION HEREOF OR THAT IT WILL INVESTIGATE THE PROPERTY PRIOR TO
THE EXPIRATION OF THE PRE-CLOSING PERIOD AND THAT IN PURCHASING THE
PROPERTY BUYER WILL RELY SOLELY UPON ITS INDEPENDENT EXAMINATION,
STUDY, INSPECTION AND KNOWLEDGE OF THE PROPERTY, AND BUYER IS
RELYING SOLELY UPON ITS OWN EXAMINATION, STUDY, INSPECTION, AND
KNOWLEDGE OF THE PROPERTY AND BUYER’S DETERMINATION OF THE
VALUE OF THE PROPERTY AND USES TO WHICH THE PROPERTY MAY BE PUT,
AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY
SELLER.
3.
BUYER
AGREES TO PAY FOR AND HAS MADE OR CAUSED TO BE MADE (OR WILL MAKE
OR CAUSE TO BE MADE) ALL INSPECTIONS, INVESTIGATIONS AND ANALYSES
NECESSARY OR APPROPRIATE FOR THE PURPOSE OF DETERMINING COMPLIANCE
OR NON-COMPLIANCE BY THE PROPERTY WITH ALL BUILDING, HEALTH,
ENVIRONMENTAL, ZONING AND LAND USE LAWS, ORDINANCES, RULES AND
REGULATIONS, AND SELLER MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, CONCERNING THE PROPERTY’S COMPLIANCE WITH
SUCH BUILDING, HEALTH, ENVIRONMENTAL, ZONING AND LAND USE LAWS,
ORDINANCES, RULES AND REGULATIONS.
4.
BUYER
FURTHER ACKNOWLEDGES THAT THE INFORMATION, IF ANY, PROVIDED AND TO
BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A
VARIETY OF SOURCES AND SELLER (A) HAS NOT MADE AND WILL NOT BE
OBLIGATED TO MAKE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND (B) DOES NOT MAKE ANY REPRESENTATIONS AS TO
THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. BUYER
ACKNOWLEDGES AND AGREES THAT ALL MATERIALS, DATA AND INFORMATION
DELIVERED AT ANY TIME BY SELLER TO BUYER IN CONNECTION WITH THE
TRANSACTION CONTEMPLATED HEREBY ARE PROVIDED TO BUYER AS A
CONVENIENCE ONLY AND THAT ANY RELIANCE ON OR USE OF SUCH MATERIALS,
DATA OR INFORMATION BY BUYER SHALL BE AT THE SOLE RISK OF BUYER.
BUYER ACKNOWLEDGES AND AGREES THAT IT WILL CONDUCT ITS OWN
VERIFICATION OF THE INFORMATION, EITHER INDEPENDENTLY OR THROUGH
AGENTS OF BUYER’S CHOOSING. NEITHER SELLER, NOR ITS AGENTS,
NOR THE PERSON OR ENTITY WHICH PREPARED ANY REPORT OR REPORTS
DELIVERED BY SELLER TO BUYER SHALL HAVE ANY LIABILITY TO BUYER FOR
ANY INACCURACY IN OR OMISSION FROM ANY SUCH REPORTS.
5.
BUYER
RELEASES, ACQUITS AND FOREVER DISCHARGES SELLER FROM, AND WAIVES,
ANY AND ALL LIABILITIES, CLAIMS, CAUSES OF ACTION, DAMAGES, AND
OTHER RELIEF, WHETHER AT LAW OR IN EQUITY AND WHETHER IN CONTRACT,
TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER PAST, PRESENT, OR
FUTURE, IN CONNECTION WITH, AS A RESULT OF OR OTHERWISE WITH REGARD
TO THE CONDITION OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO ITS
ENVIRONMENTAL CONDITION. THIS GENERAL RELEASE SHALL BE APPLICABLE,
WITHOUT LIMITATION, TO ANY AND ALL LIABILITIES, CLAIMS, CAUSES OF
ACTION, DAMAGES AND OTHER RELIEF UNDER ANY OF THE ENVIRONMENTAL
LAWS.
6.
THE
OCCURRENCE OF A CLOSING SHALL CONSTITUTE AN ACKNOWLEDGMENT BY BUYER
THAT THE PROPERTY WAS ACCEPTED WITHOUT REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED (EXCEPT FOR THE SPECIAL WARRANTIES OF TITLE SET
FORTH IN THE SPECIAL WARRANTY DEED), AND OTHERWISE IN AN “AS
IS”, “WHERE IS”, AND “WITH ALL
FAULTS” CONDITION. THE PROVISIONS OF THIS EXHIBIT SHALL
SURVIVE CLOSING.
EXHIBIT D
1.
Abstract or Title
Policy. Buyer should have an abstract covering the Property
examined by an attorney of Buyer’s selection, or Buyer should
be furnished with or obtain a title policy.
2.
Notice Regarding
Possible Liability for Additional Taxes (§5.010 Texas Property
Code). If the Property is vacant land, then pursuant to
Section 5.010 of the Texas Property Code Seller notifies Buyer:
“If for the current ad valorem tax year the taxable value of
the land that is the subject of this Agreement is determined by a
special appraisal method that allows for appraisal of the land at
less than its market value, the person to whom the land is
transferred may not be allowed to qualify the land for that special
appraisal in a subsequent tax year and the land may then be
appraised at its full market value. In addition, the transfer of
the land or a subsequent change in the use of the land 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 land. The taxable
value of the land 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 land
is located.”
3.
Notice Regarding
Possible Annexation (§5.011 Texas Property Code). If
the Property is located outside the limits of a municipality, the
Property may now or later be included in the extra-territorial
jurisdiction (“ETJ”) 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 ETJ. To determine if the Property is located within
a municipality’s ETJ or is likely to be located within a
municipality’s ETJ, Buyer should contact all municipalities
located in the general proximity of the Property for further
information.
4.
Notice of Water
Level Fluctuations (§5.019 Texas Property Code). If the
Property adjoins an impoundment of water, including a reservoir or
lake, constructed and maintained under Chapter 11 of the Texas
Water Code, that has a storage capacity of at least 5,000 acre-feet
at the impoundment’s normal operating level, then pursuant to
Section 5.019 of the Texas Property Code Seller notifies Buyer:
“The water level of the impoundment of water adjoining the
Property fluctuates for various reasons, including as a result of:
(1) an entity lawfully exercising its right to use the water stored
in the impoundment; or (2) drought or flood
conditions.”
5.
Notice of Private
Transfer Fee (§5.205 Texas Property Code). If the
Property is subject to a private transfer fee, then pursuant to
Section 5.205 of the Texas Property Code Seller notifies Buyer that
the private transfer fee obligation may be governed by Chapter 5,
Subchapter G of the Texas Property Code.
6.
Notice Required by
§13.257 of the Texas Water Code Regarding Certificated Water
or Sewer Service. Pursuant to Section 13.257 of the Texas
Water Code Seller notifies Buyer: “The real property,
described below, that you are about to purchase may be located in a
certificated water or sewer service area, which is authorized by
law to provide water or sewer service to the properties in the
certificated area. If your 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 your
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 your
property. The undersigned Buyer hereby acknowledges receipt of the
foregoing notice at or before the execution of a binding Agreement
for the purchase of the real property described in the notice or at
closing of purchase of the real property.” The real property
referred to in this notice is the Property defined in this
Agreement.
7.
Notice Regarding
Taxing Districts (§49.452 Texas Water Code). If the
Property is located in a district created under Title 4 of the
Texas Water Code (currently Chapters 49 through 68) or by a special
act of the legislature, that is providing or proposing to provide
water, sanitary sewer, drainage, or flood control or protection
facilities or services, or any of these facilities or services that
have been financed or are proposed to be financed with bonds of the
district payable in whole or part from taxes of the district, or by
imposition of a standby fee, if any, then pursuant to Section
49.452 of the Texas Water Code Seller gives Buyer the notice in the
attached Exhibit E, which is
incorporated into this Agreement for all purposes.
8.
Notice of
Obligation to Pay Public Improvement District Assessment
(§5.014 Texas Property Code). If the Property is
located in a public improvement district established under
Subchapter A, Chapter 372, Local Government Code, or Chapter 382,
Local Government Code, and consists of not more than one dwelling
unit, then pursuant to Section 5.014 of the Texas Property Code
Seller notifies Buyer that as a Buyer of the Property you are
obligated to pay an assessment to a municipality or county for an
improvement project undertaken by a public improvement district
under Subchapter A, Chapter 372, Local Government Code, or Chapter
382, Local Government Code. The assessment may be due annually or
in periodic installments. More information concerning the amount of
the assessment and the due dates of that assessment may be obtained
from the municipality or county levying the assessment. The amount
of the assessments is subject to change. Your failure to pay the
assessments could result in a lien on and the foreclosure of your
property.
EXHIBIT E
(§49.452 and § 54.812 Texas Water Code)
NOTICE TO BUYER OF REAL ESTATE
SITUATED IN
XXXXXX COUNTY IMPROVEMENT DISTRICT NO. 17
The real property, described below, which you are about to purchase
is located Xxxxxx County Improvement District No. 17 (the
“District”). The District has taxing authority separate
from any other taxing authority, and may, subject to voter
approval, issue an unlimited amount of bonds and levy an unlimited
rate of tax in payment of such bonds. As of this date, the rate of
taxes levied by
the District on real property located in the District is $1.25 on
each $100 of assessed valuation. The total amount of bonds,
excluding refunding bonds and any bonds or any portion of bonds
issued that are payable solely from revenues received or expected
to be received under a contract with a governmental entity,
approved by the voters and that has been or may be issued, at this
date, is
$200,000,000 for water, sewage and drainage purposes, $670,000,000
for roads, and $80,000,000 for parks and recreational facilities,
and the aggregate initial principal amount of all bonds issued for
one or more of the specified facilities of the District and payable
in whole or in part from property taxes is $-0-.
The District also has the authority to adopt and impose a standby
fee on property in the District that has water, sanitary sewer, or
drainage facilities and services available but not connected and
which does not have a house, building or other improvement located
thereon and does not substantially utilize the utility capacity
available to the property. The District may exercise the authority
without
holding an election on the matter. As of this date, the most recent
amount of the standby fee is $-0-. An unpaid standby fee is a
personal obligation of the person that owned the property at the
time of imposition and is secured by a lien on the property. Any
person may request a certificate from the District stating the
amount, if any, of unpaid standby fees on a tract of property in
the District.
The District has the authority to levy an assessment on property
within the District. The District may exercise this authority
without holding an election the matter. As of this date, the amount
of the assessment is $-0- per $100 valuation for real property and
improvements thereon. The District is located in whole or in part
within the extra-territorial jurisdiction of the Cities of Houston
and Tomball. By law, a district
located in the extraterritorial jurisdiction of a municipality may
be annexed without the consent of a district or the voters in the
District. When a district is annexed, it is
dissolved.
The purpose of this District is to provide water, sewer, drainage
or flood control facilities, roads, services, and park and
recreation facilities within the District through the issuance of
bonds payable in whole or in part from property taxes. The cost of
these utility facilities is not included in the purchase price of
your property, and these utility facilities are owned or to be
owned by the District.
See the
legal description of the Property in the contract to which this
notice is attached.
Buyer is advised that the information shown on this form is subject
to change by the district at any time. The district routinely
establishes tax rates during the months of September through
December of each year, effective for the year in which the tax
rates are approved by the district. buyer is advised to contact the
district to determine the status of any current or proposed changes
to the information shown on this form.
The
Buyer hereby acknowledges receipt of the foregoing notice at or
prior to execution of a binding contract for the purchase of the
real property described in such notice or at closing of purchase of
the real property.
____________________________
________________________________
Date
Signature
of Seller
The undersigned buyer hereby acknowledges receipt of the foregoing
at or prior to execution of a binding contract for the purchase of
the real property described in such notice or at closing of
purchase of the real property.
____________________________
___________________________ _____
Date
Signature
of Buyer
EXHIBIT F
List of Ancillary Agreements
(not in chronological order)
1.
“Development,
Financing and Construction Agreement by and between Xxxxxx County
Improvement District No. 17 and 150 CCM Black Oak, Ltd.”
dated September 15, 2014.
2.
“Aqua
Texas, Inc. Black Oak Force Main Agreement” dated
________________, 2017
3.
Assignment of HCID
Xx. 00 Xxxxxxxxxxxxx & Xxxxxx Xxxxx (xx xx
prepared)
4.
Agreement/Declaration
from HCID No. 17 and Preston Hollow Capital for Periodic
Disbursements of District Escrow Funds (to be
prepared)
5.
Other
agreements/assignments as necessary for Buyer’s Take Over
Rights.
EXHIBIT G
Seller’s Post Closing Work and Schedule
Definition, Explanation, Details & Interpretations of all work
referenced herein shall be as described in the Ancillary
Agreements, when in doubt or further explanation is needed. The
Force Majeure provisions of the USA (as revised to apply to Seller)
shall apply to the Post Closing Work and Schedule outlined below.
The term “Post Closing Work” means the construction and
completion of the lift stations, force main, and related
improvements under the FMA in accordance with the requirements of
the FMA and the applicable requirements of the other Ancillary
Documents.
Post Closing Work – General
Description
Progress Date Deadline
All construction plans & specifications
(“Plans”) for the Post
Closing
January
1, 2019
Work (lift stations, all portions
of Force Main, etc.) shall have been approved by certified
engineer with
contract awarded to Project Contractor; all necessary County and/or
other municipal
approvals are obtained for the construction of the Post Closing
Work; copies
of approved Plans delivered to Buyer
Re-commence/continue diligent construction work on lift stations
and
all remaining incomplete portions of the Force
Main
to
start within 60 days after Closing (but no later than February 1,
2019)
Continuous and diligent construction work on lift
stations and Force
Main
February
1, 2019 – August 1, 2019
Completion and dedication/acceptance of all Post
Closing Work
(lift
August
1, 2019
stations, Force Main, etc.) in fully operational state, with all
permits and
capacity to accept water/sewer from Property
