15-Authorizing the purchase a 0.9585 acre tract of landCITY COUNCIL AGENDA ITEM BRIEFING SHEET
Submittal Date:
Originating Department:
Presented By:
Agenda Item No.:
11/04/10
Engineering, Planning &
Shawn Napier, P.E. Director of
Council Date:
Development
Engineering, Planning &
15.
11 /08/ 10
Development
RECOMMENDED MOTION:
Move to approve a Resolution authorizing the purchase a 0.9585 acre tract of land from Union Pacific
Railroad for the West extension of the property known as Trail De Paris from 12th Street SE West to gth
Street SE; and authorizing the Mayor to negotiate and execute all necessary documents.
POLICY ISSUE(S):
Land Acquisition
BACKGROUND:
The City has been awarded a$120,000 Texas Parks and Wildlife Recreational Trail Grant to extend the
Trail de Paris from SE 12th Street to SE 8th Street. The project requires that the City purchase a 0.9585
acre tract of land from Union Pacific Railroad (a letter of agreement with Union Pacific Railroad
accompanies this briefing sheet). The purchase price for this 50-feet wide, 835-feet long tract of land is
$8,363.52 and extends east from SE 8th Street. The Greater Paris Development Foundation (GPDF)
owns the remaining portion of Right-of-Way needed for the project. A lease was approved at the March
22, 2010 City Council meeting with the GPDF for this Trail de Paris extension project.
Richard Drake Construction (RDC) Company was awarded a construction contract at the July 26th City
Council meeting. City crews have been performing some of the work in order to reduce the project cost
and to receive credit through force labar towards the 20% required match of $24,000. The City's
portion of the work is not yet complete.
The following organizations have donated funds: $5,000 from Kiwanis, Keep Paris Beautiful and the
Chamber of Commerce, $2,500 from Lamar Power Partners. The contract with RDC was $111,553.00,
the railroad flat car (bridge) cost $14,740.00 and the engineering services are $23,623.00. $25,365.00
was paid out of last year's budget. The total project cost is $158,279.52, including the proposed ROW
purchase.
BOARD/COMMISSION RECOMMENDATION:
EXHIBITS:
Resolution, Letter of Agreement with Union Pacific Railroad, map
ACTION:
BUDGET INFO:
❑ Financial Report ❑ Minute Order
Expense
$8,363.52
❑ Department Report Z Resolution
Budgeted Amt.
$137,500.00
❑ Presentation ❑ Ordinance
y'I'D Actual
$8,363.52
❑ Public Hearing ❑ Other
Acct. Name
Trail de Paris SE 12 to 8 St.
Acct. Number
25-0340-43-00
FISCAL NOTES:
REVIEWED AND APPROVED BY:
Z Administration Z Ciry Clerk ❑ Community Development ❑ EMS/IT ❑ Finance ❑ Fire
❑ Municipal Court Z Legal ❑ Library ❑ Police Z Eng./Public Works ❑ Utiliries
City of Paris
Revised 2/04/08
lnR
DRAFT
S:\RESWORK\CURRENT\Trail de Paris - 12th to 8th St acq from Union Pacific RR - RES 2010.docx
RESOLUTION N0.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, TEXAS,
AUTHORIZING THE MAYOR TO ACQUIRE A 0.9585-ACRE TRACT OF
LAND FROM UNION PACIFIC RAILROAD FOR THE WEST EXTENSION OF
THE PROPERTY KNOWIV AS TRAIL DE PARIS FROM 12TH STREET SE
WEST TO 8TH STREET SE; AUTHORIZING THE EXECUTION OF AIVY AND
ALL DOCUMENTS NECESSARY FOR ACQUISITION; MAKING OTHER
FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Paris has been awarded a Texas Parks and Wildlife
Recreational Trail Grant to extend the Trail de Paris from 12th Street SE west to 8th Street
SE; and,
WHEREAS, in order to complete the project, the City must purchase a 0.9585-acre
tract of land from Union Pacific Railroad; and,
WHEREAS, in a letter agreement dated July 9, 2010, Union Pacific Railroad (the
"Railroad") confirmed an understanding between the City of Paris, Texas and the Railroad
for the City to acquire a certain 0.9585-acre tract of abandoned rail line, and right-of-way
for a price of $8,363.52 in Paris, Texas; and,
WHEREAS, the City Council of the City of Paris deems it in the best interest of the
City and the citizens of the City of Paris to approve the purchase of the land from Union
Pacific Railroad and authorize the Mayor to execute the Deed, in the form attached hereto
as Exhibit A, and the same should be approved;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PARIS, TEXAS:
Section 1. That the findings set out in the preamble to this resolution are hereby
in all things approved.
Section 2. That the Deed without Warranty to acquire the 0.9585-acre tract of
land from Union Pacific Railroad for the Trail de Paris Project from 12th Street SE west to
gtn Street SE, attached hereto as Exhibit A be, and the same is hereby approved.
Section 3. That the Mayor be, and he is hereby authorized and directed to
execute, on behalf of the City of Paris, any and all documents necessary for acquisition of
said property.
109
Section 4. That the City Engineer be, and he is hereby authorized to execute and
deliver, on behalf of the City of Paris, all reports, communications, assurances, and
documents necessary for the acquisition of said property.
Section 5. That the Director of Finance be, and he is hereby, authorized and
directed to distribute funds for purposes of the acquisition of said 0.9585-acre tract for the
Trail de Paris Project.
Section 6. That this resolution shall be effective immediately upon passage.
DULY PASSED AND APPROVED this 8th day of November, 2010.
Will Biard, Mayor
ATTEST:
Janice Ellis, City Clerk
APPROVED AS TO FORM:
W. Kent McIlyar, City Attorney
110
Space Above for Recorder's Use Only
2519-04
DEED WITHOUT WARRANTY
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF LAMAR )
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Grantar,
(successor in interest by merger to Union Pacific Railroad Company, a Utah corporation,
successor to Missouri Pacific Railroad Company), for and in consideration of Ten Dollars
($10.00) and other good and valuable consideration, to it in hand paid by CITY OF PARIS,
TEXAS, a municipal corporation of the State of Texas, Grantee, to be addressed at P.O.
Box 9037, Paris, Texas 75461-9037, the receipt of which is hereby acknowledged, has
granted, sold and conveyed, and by these presents does grant, sell and convey to
Grantee, the strip or tract of land (hereinafter the "Property") lying in the County of Lamar,
State of Texas, described in Exhibit A, hereto attached and hereby made a part hereof.
EXCEPTING from this conveyance and RESERVING unto Grantor, its ~
successors and assigns, forever, all minerals and all mineral rights of every kind and
character now known to exist or hereafter discovered underlying the Property, including
without limiting the generality of the foregoing, oil and gas and rights thereto, together with
the sole, exclusive and perpetual rights to explore for, remove and dispose of said minerals
by any means or methods suitable to the Grantor, its successors and assigns, but without
entering upon or using the surface of the Property, and in such manner as not to damage
the surface of the Property, or to interfere with the use thereof by the Grantee, its
successors and assigns.
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1
EXHIBITg
11 l
The Property is conveyed by Grantor subject to the following covenants,
conditions and restrictions, which Grantee by the acceptance of this Deed covenants for
itself, its successors and assigns, faithfully to keep, observe and perform:
1. Fence Covenant. Grantee, at its sole cost and expense, shall install,
within ninety (90) days after the date of delivery of this Deed, and thereafter maintain
fencing or other barriers to prevent access to or encroachment on the railroad right-of-way
of Grantor adjacent to the northern boundary of the Property. The fencing or barrier must
be of a design and type satisfactory to Grantor, and in compliance with applicable building
codes. Grantee shall submit the plans for the fencing or barrier construction to:
Vice President-Engineering Management
Union Pacific Railroad Company
1400 Douglas Street, Mail Stop 0910
Omaha, Nebraska 68179
with copy of transmittal to:
Assistant Vice President - Real Estate
Union Pacific Railroad Company
1400 Douglas Street, Maii Stop 1690
Omaha, Nebraska 68179
for review and approval. Grantor shall complete such review and make appropriate
response to Grantee within twenty (20) days after receipt of such plans by Grantor.
Grantor shall not unreasonably withhold its approval of such plans. Such approval does
not constitute a guarantee or warranty that such plans comply with applicable
governmental laws, ruEes, regulations or ordinances, or that the fence as constructed will
be structurally sound.
2. Restriction on Use. The Property must not be used for (i) residential,
(ii) lodgings or accommodations (including, without limitation, hotels, motels, boarding
houses, dormitories, hospitals, nursing homes, or retirement centers), or (iii) educational or
child-care facilities (including, without limitation, schools, kindergartens or day-care
centers).
The foregoing covenants, conditions and restrictions shall run with the
Property, and a breach of the foregoing covenants, conditions and restrictions, or the
continuance thereof, may, at the option of Grantor, its successors or assigns, be enjoined,
abated or remedied by appropriate proceedings.
This conveyance is made without anywarranty, express or implied, including,
without limitation, any warranty or covenant implied under the provisions of Section 5.023
of the Texas Property Code, which provisions are hereby expressly waived by Grantee
even as to the return of the purchase price.
l'tl~WU~\i1a.'ffJ~Glli~i;t'Ini Il-7'IC\.tI5C111L45ItOf_f]f)IlitRil~lI.S~COC6ifdlfS'~!(E\L[Vf~iLLS5l~1.~I1 Sx 2
112
IN WITNESS WHEREOF, Grantor has duly executed this instrument this
day of , 2010,
Attest: UNION PACIFIC RAILROAD COMPANY
L
By
,ssistant Secretary Title: Assi nt Vice President - Real Estate
(Seal)
ACKNOWLEDGMENT
STATE OF NEBRASKA )
) ss.
COUNTY OF DOUGLAS )
On , 2010, before me, , Notary
Public in and for said County and State, personally appeared
and who are the
and the Assistant Secretary, respectively, of Union Pacific Railroad Company, a Delaware
corporation, and who are personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to in the within
instrument, and acknowlsdged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
(Seal)
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113
Grantee hereby accepts this Deed and agrees for itself, its successors and
assigns, to be bound by the covenants set forth herein,
Dated this day of , 2010.
CITY OF PARIS, TEXAS
By:
Its:
STATE OF TEXAS )
) ss.
COUNTY OF LAMAR )
On this day of , 2010, before me, ,
Notary Public in and for said County and State, persanaHy appeared
who is the of CITY
OF PARIS, TEXAS, a municipal corporation of the State of Texas, and who is personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to in the within instrument, and acknowledged to me that he/she
executed the same in his/her authorized capacity, and that by his/her signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Notary Public
(Seal)
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114
Union Pacific Railroad Company
Lamar County, Texas
Exhibit "A"
0.9585 Acre of Land out of the Union Pacitic Railroad Coiupany Property
In the City of Paris, Lamar County, Texas
Being a 0.9585 acre ti-act of land in the Laekin Rattan Suivey, Abstract No. 778, in the City of Paris,
Lamar Couuty, Teaas; being all of that cei•tain called 0.35 acre tract of land described in deed dated
January 5, 1929, to Texas & Pacific Raihvay Co., recorded in Volume 222, Page 591 of tlie Lamar
County Deed Records (L.C.D.R.) and all of that certain callecl 0.62 acre ti-act of land described in deed
dated May 14, 1932, to Texas aud Pacific Railway Company, recorded iii Vol. 231, Pg. 624, L.C.D.R,,
said 0.9585 acre ti-act of laiid is more particularly described by metes and bounds as follows (all bearings
cited herein are based on Nortki 84 degrees 38 minutes 07 seconds West along the south botuidary line of
the subject tract according to Vol. 1940, Pg. 251 of the Lamar Count), Real Propeity Recocds
[L.C.R.P.R,]);
BEGINNING at a 1/2-inch iron rod with cap set in the east right-of-way line of 8'h Street SE (formerly
High Street; 40 feet tvide accordiug to the City of Paris), 75,00 feet fi•om the center line of the eaisting
railroad track iu a souHierly direction peipendicular to said track, for tlie northtivest corner of that certain
ti-act of land described in deed dated September 14, 2007, to Barbara McCuin, recorded in Vol. 1940, Pg.
251 of the Lamar Cottnty Official Public Records (L.C.0.1'.R.) and the southwest corner of said Texas &
Pacific Railway Co. called 0.35 acre tract aud the herei►i described tract;
1.) THENCE North 01 deg. 17 min. 16 sec. West, along the east riglit-of-way line of 8°i Street SE
and the west b4undaiy line of said Texas R Pacific Railway Co. called 035 acre tract, a distance
of 50.34 feet to a 1/2-iitch iron rod Nvitli cap set 25.00 feet fi•om the center line of the existing
railroad track in a southerly direction perpendicular to said tcack ancl in the sauth botuidary line of
the residue of that certain 50-foot wide right-of-way desa•ibed in deed dated May 31, 1876, to
Teaas & Pacific Railway Co., recorded in Vol. G2, Pg. 501, L.C.D.R. for the northwest corner of
said Texas & Pacific Railway Co. calle(i 0.35 acre tract, tl'O1Sl WI1tCI1 2 bCOliCll 4-1llCI1 square
concrete monument found in the east right-of-way line of S"' Street SE bears Norih 01 deg. 17
min. 16 sec. West, a distance of 49.05 feet;
2.) THENCE South 84 deg. 38 min. 07 sec. East, 25.00 feet from and parallel with the center line of
the existing i-ailroad track aiid along tlie south bouiidaiy line of saicl Texas & Pacific Railway Co.
50-foot wide riglrt-of-way cesidue and the north boundary line of said Texas & Pacific Raihvay
Co. called 0.35 acre tract, at a distance of 194.88 feet passing a I/2-inch iron rod with cap set for
the southwest corner of that certain ti-act of land described iu deed dated May 14, 1999, to Tlie
Greater Paris Development Foundation, Inc., recorded in Vol. 890, Pg. 147 of tlie Lamar County
Real Property Records (L.C.R.P,R,), at a distaiice of 235.00 feet passiiig a 1/2-incii iron rod with
cap set for the noitheast corner of said Texas & Pacific Raihvay Co. called 035 acre tract and the
nortlnvest corner of said Texas and Pacific Raihvay Company called 0.62 acre ti-act and that
certain tract of land described in deed ciated March 27, 1984, ta the City of Paris, recorded in Vol.
45, Pg. 81, L.C.R.P.R., and continuing along tlle north boundary line of said Texas and Pacific
Raihvay Company called 0.62 acre ti-act and said City of Paris ti-act and the soutli bouudary line
of said Greater Paris Development Foiuidation tract, a total distance of 835A0 feet to a 1/2-inch
1 15
iron rod with cap set for the noilheast corner of said Texas and Pacific Railway Compauy called
0,62 acre tract and said City of Paris tract aud an intei•ior cornar of said Greatet- Paris
Development Foiuidation tract;
3.} TI-IENCE South Ol deg. 17 min. 16 sec. East, along tlie east boundaiy line of said Tetas aiid
Pacific Railway Compaiiy called 0.62 acre tract and said City of Pai•is tract and an interior west
boundaiy line of said Greater Paris Development Foundation tract, passing the northwest corner
of tliat certain tract of laud described iu deed dated August 8, 2003, to Kenda Taylor, recorded in
VoL 1377, Pg. 325, L,C.O.P.R,, and continuing along the west boundary line of said Taylor tract
aud the east boundai-y line of said Texas and Pacific Railway Company called 0.62 acre tract and
said City of Paris tract, a total distaiice of 50.34 feet to a 1/2-iiicll ii•on rod with cap set for tlie
southeast corner of said Tesas and Pacific Raihvay Company called 0.62 acre tract;
4.) THENCE Not-th 84 deg. 38 min. 07 sea West, along ttie soutli bounda►y line of said Texas and
Pacific Railway Company called 0.62 acre tract, at a distance of 480.00 feet passing a 1/2-inch iron
rod with cap set in the west boundaiy line of said City of Paris tract for the southwest corner of
said Te.:as and Pacific Raihvay Company called 0.62 acre tract, the sotrtheast corner of said Texas R
Pacific Raihvay Co. called 0.35 acre tract, and the northeast corner of said McCuin tract, and
continuing along the north Uoundary line of said McCuin tract and the soutli boundacy liiie of saicl
Texas & Pacific Railway Co. called 0.35 acre tract, a total distance of 835.00 feet to the Point of
Beginning and contaiiiiiig 0.9585 ac►•e of land, of wlticli 0.6198 ac►•e is within said City of Paris
tYACt.
Union Pacific Railroad Co.
Real Estate Qepartment
Omaha, NE.
LD 0251904
October 6, 2010
11. 61
CERTIFICATION OF NON-FOREIGN STATUS
Under Section 1445(e) of the Internal Revenue Code, a corporation, partnership,
trust, or estate must withhold tax with respect to certain transfers of property if a holder of
an interest in the entity is a foreign person. To inform the transferee, CITY OF PARIS,
TEXAS, that no withholding is required with respect to the transfer of a U.S. real property
interest by UNION PACIFIC RAILROAD COMPANY, the undersigned hereby certifies the
following on behalf of UNION PACIFIC RAILROAD COMPANY:
UNION PACIFIC RAILROAD COMPANY is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2. UNION PACIFIC RAILROAD COMPANY is not a disregarded entity as defined in
Section 1.445.2(b)(2)(iii) of the Internal Revenue Code;
3, UNION PACIFIC RAILROAD COMPANY'S U.S. employer identification number is
94-6001323; and
4. UNION PACIFIC RAILROAD COMPANY'S office address is 1400 Douglas Street,
Omaha, Nebraska 68179, and place of incorporation is Delaware.
UNION PACIFIC RAILROAD COMPANY agrees to inform the transferee if it
becomes a foreign person at any time during the three year period immediately following
the date of this notice.
UNION PACIFIC RAILROAD COMPANY understands that this certification may be
disclosed to the Internal Revenue Senrice by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this Certification and to the
best of my knowledge and belief it is true, correct and complete, and i further declare that I
have authority to sign this document on behalf of UNION PACIFIC RAILROAD COMPANY.
UNION PACIFIC RAILROAD COMPANY,
a Delaware corporation
By: flu~ e4olc~
-~f
Title: Asslstan &e f'resldent - Real Estate
Date:
c`S.~imenls anl u~""~'L••J lU7l c.y uuinri I.nr nn irlcml fi:es':oMar.ti.SV(gu,w1~ dr,:ussea,~ I ~ S~
. I 17
July 09, 2010
Folder: 2519-04
VIA UPS Overnight
RETURN RECEIPT REQUESTED
SHAWN NAPIER
CITY OF PARIS
P.O. BOX 9037
PARIS TX 75461
Dear Mr. Napier:
This letter ("Agreement") confirms our understandings covering the possible sale by Union Pacific
Railroad Company ("Seller") to CITY OF PARIS ("Buyer") of Seller's interest in certain real property in
Paris, Texas.
The undersigned will recommend to Seller's Management a sale of the Property on the following terms
and conditions:
Article 1. Description of Propertv:
A. The Property is approximately 0.96 acre 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 ali 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 02519-
04 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 shail 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 Aeal Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fic. (402) 501-0340
11.8
A. The sale price ("Sale Price") for the Property shall be Eight Thousand Three Hundred
Sixty Three and 52/100 Dollars ($8,363.52).
B. Upon execution of this Agreement by Buyer, euyer 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:
0.96 acre x$0.20 per square foot =$8,363.52
D. The Sale Price wi(I 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 Entrv:
A. For Sixty (60) days from the date of execution of this Agreement by Buyer ("Feasibility
Review Period"), Buyer and its agents and contractors may enter upon the Property to
perform environmental audits, soil tests, engineering and feasibility studies of the
Property. 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. 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 antl will not make disclosure
i .1. 9
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. Buyer agrees to indemnify, defend and hold harmless Seller against and from
any and all liens, ciaims, 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
jmmediately 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 instailations. 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 calis) 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 wili 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-B 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 - Indemnitv:
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 Quyer'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 frorn 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, Seiler makes no
representations or warranties with respect to the use, contlition, title, occupation or
management of the Property, or compliance with appiicable statutes, laws, codes,
ordinances, regulations, requirements (coilectively "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. 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
ADMtNISTRATIVE PROCEEDINGS, CLAIMS, DEMANDS, FINES, PUNITIVE DAMAGES,
LOSSES, COSTS, LIABILITIES AND EXPENSES, IIVCLUDING 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. Seiler 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,
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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 Sellers 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. Fence.
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:
Fence Covenant. Buyer, at its sole cost and expense, shall install, within ninety (90) days
after the date of delivery of this Deed, and thereafter maintain fencing or other barriers
to prevent access to or encroachment on the railroad right-of-way of Seller adjacent to
the trackside boundary of the Property. The fencing or barrier must be of a design and
type satisfactory to Seller, and in compiiance with applicable building codes. Buyer shall
submit the plans for the fencing or barrier construction to:
Vice President-Engineering Management
Union Pacific Railroad Company
1400 Douglas Street, Mail Stop 0910
Omaha, Nebraska 68179
with copy of transmittal to:
Assistant Vice President - Real Estate
Union Pacific Railroad Company
1400 Douglas Street, Mail Stop 1690
Omaha, Nebraska 68179
for review and approval. Seller shall complete such review and make appropriate
response to Buyer within twenty (20) days after receipt of such plans by Seller. Seller
shall not unreasonably withhold its approval of such plans. Such approval does not
constitute a guarantee or warranty that such plans comply with applicable governmental
laws, rules, regulations ar ordinances, or that the fence as constructed will be structurally
sound.
The foregoing covenant, condition and restriction will run with the Property. 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.
122
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 retaii-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,
rnay, at the option of Seller, its successors or assigns, be enjoined, abated or remedied
by appropriate proceedings.
Article 7. Existing Ap_reements:
A. If any lease or "Use Rights" (license or other rights to use the Properly) affects onlv 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. Closing - Default:
A. Closing will occur on or before October 22, 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 taaes, 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.
' ' 123
Article 9. Prorations:
Local properiy 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. 1Veaotiations - 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/Plattini! 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 coinply 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. Mort2age 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 A.PPROVAL IS NOT GNEN AND
124
COMII7IJNICATED TO BUYER I3Y THE CLOSING DATE, THIS AGREEMENT WILL
TERMINATE AND N]EITHER 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 tenninate 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 detennined 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 Buver.
(A) Notice Regarding Possible Liability for Additional Taxes (Texas PropertV 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 tocated 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
125
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 retuniing 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 July 30, 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 6I M~, 20 I d
CITY OF PARIS
By:
Its:
Title to the Properiy 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
1 12 C)
Tenants in Common
Community Property
Mailing Address:
.127
PARIS, TEXAS
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SCALE: 1" = 200' EXHIBIT "A"
UNION PACIFIC RAILROAD CO.
LEGEND TO ACCOMPANY AGREEMENT WITH
U.P.R.R. RIGHT OF WAY CIlY OF PARIS
PARIS, LAMAR COUNTY, TX,
SALE AREA SHOWN ~ M.P.90.5+- BONHAM BR.
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REAL ESTATE DEPARTMENT OMAHA NE.
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