ESBD_383182_1732986913928_Property Earnest Money Contract.doc

EARNEST MONEY CONTRACT

STATE OF TEXAS

COUNTY OF BELL

This Earnest Money Contract ("Contract") is made by and between BELTON INDEPENDENT SCHOOL DISTRICT, of Belton, Texas, hereinafter referred to as "Seller," and ____________________ hereinafter referred to as "Buyer" upon the terms and conditions set forth herein.

ARTICLE I

Purchase and Sale

1.01.

Subject to the terms hereof, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase from Seller, a 40,329 square foot facility situated on 8.36 acres at 1110 Fairway, Belton, Texas located in Bell County, Texas, locally known as the Miller Heights Elementary School more particularly described in Exhibit A attached hereto (hereinafter the "Property").

1.02 Reservation from sale. Seller reserves and excepts from this sale, however, all mineral rights in the described property for grantor, grantor’s heirs, executors, and assigns, this reservation being understood to include by its terms, oil, gas, and any other minerals on, in, and under the property conveyed.

ARTICLE II

Purchase Price

2.01.

The "Purchase Price" of the Property shall be the total sum of $__________________________________. Buyer shall forthwith deposit with the “Title Company” (as defined in Article V of this Contract), the sum of $50,00.00 as earnest money to bind this sale (the "Earnest Money").

Payment of Purchase Price

2.02.

The Purchase Price shall be payable in cash at closing.

ARTICLE III

Condition of Title and Title Report and Survey

3.01.

Preliminary Title Report.

From the date of receipt of the Earnest Money by the Title Company herein, Title Company shall with due diligence prepare and issue to both Seller and Buyer a preliminary title report (the "Title Report") concerning the Property.

3.02 Procedures for Objections to Title. Buyer shall give Seller written notice on or before the expiration of 15 days after Buyer receives the Title Report, that the condition of title, as set forth in the Title Report, is not satisfactory, and in such event Seller may, but shall not be required to, promptly make all reasonable efforts to eliminate or modify all unacceptable matters to the reasonable satisfaction of Buyer. In the event Seller (i) fails or is unable to eliminate such exceptions to title to the reasonable satisfaction of Buyer within 7 days prior to the date of closing, or (ii) provides written notice to Buyer of Seller's unwillingness to remove an objection to title, Buyer, at its option, may terminate this Contract without liability to Seller by providing Seller with written notice of same prior to closing, in which event the Earnest Money shall be returned to Buyer, as Buyer's sole remedy. Buyer may also, at its option, waive any unacceptable matters and require that Seller proceed to closing as required herein by providing Seller with written notice of same.

3.03 Survey. Buyer, at Buyer's expense, will furnish a metes and bounds survey of the Property, if needed.

ARTICLE IV

Condition of Property

4.01 No Warranty.

EXCEPT AS EXPRESSLY PROVIDED IN THE CONTRACT, BUYER ACKNOWLEDGES THAT IT IS NOT RELYING IN WHOLE OR IN PART ON ANY STATEMENT MADE OR INFORMATION OR DOCUMENTATION PROVIDED BY OR ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OF ANY KIND, TYPE, CHARACTER, OR NATURE WHATSOEVER, MADE OR FURNISHED BY SELLER, ITS AGENTS, ADMINISTRATORS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES, ATTORNEYS, TRUSTEES, OR OTHER AFFILIATES.

4.02 Property is Sold “As Is.”

EXCEPT FOR THE WARRANTY OF TITLE CONTAINED IN THE DEED AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, (A) THE PROPERTY IS SOLD BY SELLER AND PURCHASED AND ACCEPTED BY BUYER ON AN “AS IS,” “WHERE IS” AND “WITH ALL FAULTS” BASIS, SUBJECT TO ANY CONDITION THAT MAY EXIST, AND WITHOUT THE EXISTENCE OF AND WITHOUT RELIANCE ON ANY REPRESENTATION, WARRANTY, AGREEMENT, OR STATEMENT BY SELLER, OR ANYONE ACTING ON SELLER’S BEHALF, INCLUDING, WITHOUT LIMITATION, ANY BROKER, ENGINEER, ARCHITECT, ATTORNEY, SURVEYOR, APPRAISER, OR ENVIRONMENTAL CONSULTANT; (B) BUYER HAS, OR WILL HAVE BEFORE CLOSING, THOROUGHLY INSPECTED AND EXAMINED THE PROPERTY TO THE EXTENT THAT BUYER MAY DEEM NECESSARY IN ORDER TO FULLY EVALUATE THE PROPERTY; AND (C) BUYER IS RELYING SOLELY ON SUCH INSPECTIONS, EXAMINATION, AND EVALUATION OF THE PROPERTY BY BUYER IN PURCHASING THE PROPERTY. EXCEPT FOR THOSE MATTERS EXPRESSLY STATED IN THIS CONTRACT AND ANY ATTACHMENTS, SELLER HAS NO (AND BUYER WAIVES ANY) OBLIGATION TO DISCLOSE ANY AND ALL MATERIAL FACTS REGARDING THE PROPERTY, REGARDLESS OF WHETHER SUCH FACTS ARE DISCOVERABLE BY BUYER. TO THE GREATEST EXTENT ALLOWED BY LAW, SELLER SPECIFICALLY — WITHOUT LIMITATION — DISCLAIMS ANY AND ALL LIABILITY OR WARRANTY FOR ANY CONSTRUCTION DEFECTS.

4.03 Environmental Matters. After Closing, as between Buyer and Seller, the risk of liability or expense for environmental problems affecting the Property will be Buyer’s absolute responsibility, regardless of whether such environmental problems existed or were known or unknown at Closing.

BUYER HEREBY ASSUMES THE RISK THAT ENVIRONMENTAL CONDITIONS MAY EXIST ON THE PROPERTY, INCLUDING ASBESTOS, AND HEREBY RELEASES SELLER FROM ANY AND ALL CLAIMS, ACTIONS, DEMANDS, RIGHTS, DAMAGES, COSTS, OR EXPENSES THAT COULD ARISE OUT OF OR IN CONNECTION WITH THE ENVIRONMENTAL CONDITION OF THE PROPERTY. BUYER FURTHER AGREES TO PROTECT, RELEASE, DEFEND, INDEMNIFY, AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DEMANDS, DAMAGES, ACTIONS, SUITS, LIABILITY, COSTS, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, ATTORNEY’S FEES AND EXPENSES FOR THE DEFENSE THEREOF, ARISING FROM ANY ENVIRONMENTAL PROBLEMS, INCLUDING, WITHOUT LIMITATION, LIABILITY UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA), THE RESOURCE CONSERVATION AND RECOVERY ACT (RCRA), THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS WATER CODE, THE CLEAR WATER ACT, THE CLEAN AIR ACT, OR THE UNDERGROUND INJECTION CONTROL PROGRAM OF THE SAFE DRINKING WATER ACT.

4.04 No Other Commissions. Buyer and Seller each represent and warrant to the other that no real estate broker or agent has been used or consulted by such representing party in connection with the negotiation or execution of this Contract or the purchase and sale of the Property.

BUYER AGREES THAT BUYER WILL DEFEND, INDEMNIFY, AND HOLD THE SELLER HARMLESS FROM AND AGAINST ALL LIABILITIES, CLAIMS, DEMANDS, AND ACTIONS BY THIRD PARTIES FOR BROKERAGE, COMMISSION, FINDER’S, OR OTHER FEES RELATIVE TO NEGOTIATION OR EXECUTION OF THIS CONTRACT OR THE PURCHASE AND SALE OF THE PROPERTY, AND ANY COURT COSTS, ATTORNEYS’ FEES, OR OTHER COSTS OR EXPENSES ARISING THEREFROM, ALLEGED TO BE CAUSED BY THE INDEMNIFYING PARTY’S ACTS.

4.05 No Waiver. Buyer expressly understands that Seller is a political subdivision of the State of Texas, and nothing in this Contract will be construed as a waiver or relinquishment by Seller of its right to claim such exemptions, privileges, and immunities as may be provided by law.

4.06 Inspections. Buyer and Buyer’s agents may enter the Property before the Closing Date to inspect it, as long as they do not unreasonably interfere with existing activities on or occupants of the Property. Buyer agrees to abide by reasonable entry rules imposed by Seller.

4.07 DTPA. Buyer acknowledges and agrees, on its own behalf and on behalf of any permitted assigns and successors of Buyer hereafter, that the Texas Deceptive Trade Practices-Consumer Protection Act, Subchapter E of Chapter 17 of the Texas Business and Commerce Code (the “DTPA”), is not applicable to this transaction. Accordingly, Buyer’s rights and remedies with respect to the transaction contemplated under this Contract, and with respect to all acts or practices of the Seller — past, present, and future — in connection with such transaction, shall be governed by legal principles other than the DTPA.

ARTICLE V

Closing

5.01.

The Closing shall be held at the District’s Title located in Bell County, Texas, herein known as "Title Company". Closing shall be on or before _____________________ or at such time, date, and place as Seller and Buyer may agree upon (which date is herein referred to as the "Closing").

5.02 At the Closing, Buyer shall pay Seller the amount of the Purchase Price as provided above and Seller shall deliver to Buyer a duly executed and acknowledged No Warranty Deed conveying Seller's title in the surface estate to the Property and to the extent authorized by the Seller’s Board of Trustees, subject to all covenants, conditions, reservations, restrictions, and interests of record.

5.03 Title Company shall deliver to Buyer, at Buyer's sole expense, a Texas Owner's Title Policy issued by a title insurance company acceptable to Buyer in Buyer's favor in the full amount of the Purchase Price, insuring Buyer's title to be conveyed, subject to those title exceptions appearing in the Policy including the standard printed exceptions contained in the usual form of the Texas Owner's Title Policy.

5.04 Closing Costs. The following costs and expenses of closing in consummating the sale and purchase of the Property shall be borne and paid as follows:

Owner's Title Policy:

Belton Independent School District

Escrow fee:

Belton Independent School District and Buyer, equally

Survey costs:

Buyer

Filing fees:

Buyer

Attorney's fees:

Seller and Buyer to their respective attorneys

General Real Estate Taxes:

There shall be no property tax proration as a part of this transaction. Seller is a political subdivision of the state of Texas and has no ad valorem tax liability. Seller assumes no responsibility for any outstanding taxes as may be due from its predecessors in interest. Any rollback taxes as may become due because of a change in use of the Property or on any other basis are not the responsibility of Seller, and Seller shall have no liability to Buyer for same.

5.05 The failure of this transaction to close on the date for closing, unless extended by mutual agreement of the parties, shall effect an automatic termination of this contract, and the Earnest Money shall be paid to Buyer or Seller as elsewhere provided herein.

ARTICLE VI

Earnest Money

6.01.

At the Closing, Buyer's Earnest Money shall be paid over to Seller and applied to the Purchase Price.

ARTICLE VII

Breach by Seller

7.01.

In the event Seller shall fail to consummate the sale of the Property in violation of Seller's obligation to do so, and Buyer is not in default hereunder, Buyer may terminate this Contract and receive the Earnest Money as liquidated damages, thereby releasing the parties from this Contract.

ARTICLE VIII

Breach by Buyer

8.01 In the event Buyer should fail to consummate the purchase of the Property, Seller shall have the right to be paid the Earnest Money, may enforce specific performance of this Contract against Buyer, or may seek any other legal or equitable remedy at Seller’s discretion.

ARTICLE IX

Miscellaneous

9.01 This Contract is subject to the following additional terms and conditions:

a.

Assignment of Contract.

This Contract is not assignable by Buyer or Seller.

b.

Survival of Covenants. Representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, which are expressly provided herein to survive Closing or which pertain to a period of time following Closing, shall survive Closing and shall remain enforceable and binding under this Contract.

c.

Texas Law to Apply. This Contract shall be construed under and in accordance with the laws of the State of Texas. Venue for any action under this Contract shall be in Bell County, Texas.

d.

Parties Bound. This Contract shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, representatives, successors, and assigns.

e.

Legal Construction. In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein.

f.

Prior Agreements Superseded.

This Contract constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreement between the parties respecting the within matter.

g.

Nothing in this Agreement will be construed to waive, modify, or amend any legal defense available to the Seller or any past or present trustee, officer, agent, or employee, including but not limited to governmental immunity from suit as provided by law.

EFFECTIVE as of the date of delivery and receipt of a fully executed original of this Contract and Earnest Money to the Title Company.

SELLER:

BELTON INDEPENDENT SCHOOL DISTRICT

By: ______________________________________

DATE: _______________

Title: President, Board of Trustees

BUYER:

By: ______________________________________

DATE: _______________

Authorized Representative

(Type or print name of authorized representative)

(Title of authorized representative)

Receipt of a fully executed original of the Contract and earnest money in the amount of $__________________ is hereby acknowledged.

BELTON ISD TITLE COMPANY

By: ______________________________________

Time: ____________________________________

Date: ____________________________________