RIGHT OF FIRST REFUSAL

Transcription

1 RIGHT OF FIRST REFUSAL THE STATE OF TEXAS COUNTY OF GALVESTON THIS Right of First Refusal Agreement is made this day of, 2018, at 910 S. Friendswood Drive, Friendswood, Galveston County, Texas, by and between Blackhawk LLC, acting by and through Kazem Khonsari, of 407 ½ Laurel Drive, Friendswood, Galveston County, Texas, referred to in this Right of First Refusal Agreement as Optionor, and the City of Friendswood, Texas, a home-rule municipal corporation acting by and through its Mayor, Kevin M. Holland of 910 S. Friendswood Drive, Friendswood, Galveston County, Texas, referred to in this Right of First Refusal Agreement as Optionee ; WHEREAS, Optionor is the owner of real property in Harris County, Texas, referred to in this Agreement as the Property being more particularly described as the land and building and associated site improvements located at the street address of Blackhawk Blvd., Friendswood, Harris County, Texas, whose legal description is TR 1A BLK 1 FOOD LION/FRIENDSWOOD, more particularly described in Exhibit A attached hereto and made a part hereof for all purposes; and WHEREAS, Optionee has leased the Property by lease agreement of even date herewith and during the term of the lease Optionee is to have an option to purchase the Property at an agreed price and under specific terms and conditions. NOW, THEREFORE, IT IS AGREED AS FOLLOWS: I. For the consideration expressed in Paragraph III of this Right of First Refusal Agreement, Optionor hereby grants to Optionee the exclusive right and option to purchase the Property at the price and under the terms set forth in the real estate sales contract attached hereto as Exhibit B, provided the Lease Agreement attached hereto as Exhibit C (the Lease ) is in force and the Lessee/Optionee is not in default of said Lease Agreement. II. If the Lease is still in force and effect, and Optionee is not in default of any term thereof and Optionor intends to offer the Property for sale, Optionor must first offer the Premises for sale to Optionee at a price in the amount of Four Million and No/100 Dollars ($4,000,000.00) (the Purchase Price ). The Optionee shall have fifteen (15) days after the notice from Optionor to Optionee of its intent to offer the Property for sale (the Offering Notice ) to determine if buying

2 the Property at the Purchase Price is in the best interest of the City of Friendswood, Texas. If Optionee does not exercise its right to purchase as provided in this paragraph II, or if Optionee exercises such right but fails to close the purchase of the Property for any reason as provided in the Contract attached hereto as Exhibit B, the right of the Optionee to the Right of First Refusal shall terminate and be of no further force or effect. III. This option is granted in consideration of Optionee s non-refundable payment of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged. If this option is exercised in accordance with the terms hereof, --$7,500 of the $22,000 of the monthly base rental payments paid to Lessor/Optionor pursuant to the terms of the Lease attached hereto during the primary term (but not during any holdover unless otherwise agreed by Optionor and Optionee in writing) shall apply to the purchase price. If this option or any extension thereof is not exercised, all funds paid and services rendered to Optionor by Optionee shall be retained by Optionor in consideration of the granting of this option. Optionee may exercise the option by execution and tender to Optionor of the real estate sales contract attached hereto as Exhibit B. Optionor shall forthwith execute and deliver to Optionee an executed copy of said contract within five (5) days thereafter. If Optionee fails to exercise the option in accordance with the terms of this Right of First Refusal Agreement within the option period or any extension thereof, or if the Lease terminates or Lessee/Optionee is in default under the terms of the Lease Agreement attached hereto as Exhibit C, then the option to purchase granted by this Right of First Refusal Agreement and the rights thereunder of Optionee shall automatically and immediately terminate without notice. Unless otherwise provided herein, any notice, tender or delivery to be given hereunder by either party to the other may be effected by personal delivery in writing or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received three (3) IV. V. VI. VII. VIII.

3 days after mailing. Mailed notices shall be addressed as set forth below, but each party may change his address by written notice in accordance with this paragraph: TO THE OPTIONOR: TO THE OPTIONEE: Blackhawk LLC Attention: Kazem Khonsari 407 ½ Laurel Drive Friendswood, Texas City of Friendswood, Texas Attention: City Manager 910 South Friendswood Drive Friendswood, Texas IX. COMPLIANCE WITH REQUIRED CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS, 2 C.F.R AND 2 C.F.R. PART 200, APPENDIX II Seller shall comply with the Code of Federal Regulations, 2 C.F.R and 2 C.F.R. Part 200, Appendix II, as shown in Exhibit B attached hereto and incorporated herein for all purposes. Suspension and Debarment. (1) This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt As such, the Seller is required to verify that none of the Seller, its principals (defined at 2 C.F.R ), or its affiliates (defined at 2 C.F.R ) are excluded (defined at 2 C.F.R ) or disqualified (defined at 2 C.F.R ). (2) The Seller must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulation in any lower tier covered transaction it enters into. (3) This certification is a material representation of fact relied upon by Buyer, City of Friendswood, Texas. If it is later determined that the Seller did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the City of Friendswood, Texas and the Texas Department of Emergency Management, the Federal Government may pursue available remedies, including but not limited suspension and/or debarment. (4) The bidder or proposer or Seller agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or

4 proposer or seller further agrees to include a provision requiring such compliance in its lower tier covered transactions. Byrd Anti-Lobbying Amendment, 31 U.S.C (as amended). Contractors who apply or bid for an award of $100,000 or more or Sellers of real property valued of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or any employee of a member of Congress in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient. Seller is required to complete the Certification Regarding Lobbying found on pages in Exhibit D. Procurement of Recovered Materials. (1) In the performance of this contract, Seller shall make maximum use of products containing recovered materials that are EPA-designated items unless the produce cannot be acquired (i) Competitively within a timeframe providing for compliance with the contract performance schedule; (ii) Meeting contract performance requirements; or (iii) At a reasonable price. (2) Information about this requirement, along with the list of EPA-designated itemw is available at EPA s Comprehensive Procurement Guidelines web site, Access to Records. (1) The contractor or Seller agrees to provide the City of Friendswood, Texas, the Texas Department of Emergency Management, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the

5 Contractor which are directly pertinent to this contract for the purposes of making audits, examination, excerpts, and transcriptions. (2) The contractor or Seller agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The contractor or Seller agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. DHS Seal, Logo, and Flags. The contractor or Seller shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA preapprovals. Compliance with Federal Law, Regulations, and Executive Orders. This is an acknowledgement that FEMA financial assistance will be used to fund the contract only. The Seller will comply with all applicable federal laws, regulations, executive orders, FEMA policies, procedures, and directives. No Obligation by Federal Government. The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-federal entity, contractor, or to any other party pertaining to any matter resulting from the contract. Program Fraud and False or Fraudulent Statements or Related Acts. The contractor or Seller acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the contractor or Seller s actions pertaining to this contract. X. This Right of First Refusal Agreement, together with the real estate sales contract attached hereto as Exhibit B, the Lease Agreement attached hereto as Exhibit C and the Code of Federal Regulations, 2 C.F.R and 2 C.F.R. Part 200, Appendix II attached hereto as Exhibit D contains the entire agreement between the parties relating to the option herein granted. Any oral representations or modifications concerning this Right of First Refusal Agreement and the attached exhibits shall be of no force and effect, excepting a subsequent modification in writing signed by the party to be charged. XI.

6 This Right of First Refusal Agreement shall bind and inure to the benefit of all the respective heirs, personal representatives, successors and assigns of the parties hereto, except as hereinabove expressly provided. IN WITNESS WHEREOF, the parties hereto have executed this Option Agreement the day and year first above written. OPTIONOR Blackhawk LLC By: Kazem Khonsari,

7 OPTIONEE City of Friendswood, Texas By: Kevin M. Holland, Mayor