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HomeMy WebLinkAbout1997-276C:\DOC3\ORD\HOUGH.ORD Note. Amended by Ordinance No. 97-292 ORDINANCE NO. q7-69 & AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A REAL ESTATE CONTRACT WHEREIN THE CITY OF DENTON, TEXAS PURCHASES A CERTAIN ONE ACRE TRACT OF LAND SITUATED ADJACENT TO MAYHILL ROAD, BEING PART OF AN 19.969 ACRE TRACT IN THE DAVID HOUGH SURVEY, ABSTRACT NUMBER 646, FOR THE FUTURE WIDENING OF MAYHILL ROAD, AND ESTABLISHING OPTIONS FOR THE ACQUISITION OF ADDITIONAL REAL PROPERTY AS MAY BE REQUIRED; AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL DOCUMENTS NECESSARY TO CONSUMMATE THE PURCHASE OF REAL PROPERTY IN ACCORDANCE WITH SAID CONTRACT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING THE ESTABLISHMENT OF A SINKING FUND THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the City Manager is hereby authorized to execute a Real Estate Contract by and between the City of Denton as purchaser and Robert P. Donnelly, as seller, a copy of which Contract is attached hereto and incorporated by reference herein. SECTION II. That the City Manager is hereby authorized to execute any and all documents necessary to consummate the purchase of real property in accordance with said Contract. SECTION III. That the City Council hereby authorizes the expenditure of funds as provided in the Contract, as well as the establishment of a sinking fund providing for the possible exercise of any option contained in said Contract SECTION IV. That this ordinance shall become effective immediately upon its passage and approval {� PASSED AND APPROVED this the 9 6 day of _ �y7(U 1997 JAC M .LLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made by and between Robert P Donnelly (hereinafter referred to as "Seller") and the CITY OF DENTON, TEXAS, a home rule municipality, of Denton County, Texas (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for, that certain tract of land located in the City of Denton, Denton County, Texas, containing one (1) acre of land, more or less, and being depicted in the map attached hereto as Exhibit A, which is incorporated herein by reference, and as more particularly described in Exhibit B attached hereto and incorporated herein by reference for all purposes, together with all and singular the rights and appurtenances pertaining to the property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights -of -way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together with any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth PURCHASE PRICE 1 Amount of Purchase Price The purchase price for the Property shall be the sum of $8,000 00 cash and the following further consideration a the payment by Purchaser of a survey of the entire 19 969 acre tract described in Exhibit "C" hereto, and b the payment by Purchaser of the cost of a preliminary plat pertaining to the entire 19 969 acre tract described in Exhibit "C" hereto as well as to the 1 acre tract of land described in Exhibit `B" hereto, and c the reimbursement by Purchaser of the cost of an applicable building permit to be applied for by Seller, together with Purchaser's agreement to assist and fully cooperate with Seller during the building permitting process 2 Payment of Purchase Price The full amount of the purchase price shall be payable in cash at the closing 3 Condition Precedent Seller and Purchaser agree that the consummation of this Purchase and Sale and the payment of the Purchase Price provided for herein, are subject to and conditional upon the issuance of Solid Waste Landfill Permit No 1590-A by the Texas Natural Resource Conservation Commission to Purchaser PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived in whole or in part by Purchaser at or prior to the closing 1 Preliminary Title Report Within thirty (30) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a preliminary title report (the "Title Report") accompanied by copies of all recorded documents relating to easements, rights -of -way, etc , affecting the Property Purchaser shall give Seller written notice on or before the expiration of fifteen (15) days after Purchaser receives the Title Report that the condition of title as set forth in the title binder is or is not satisfactory, and in the event Purchaser states the condition is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser In the event Seller is unable to do so within thirty (30) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes, otherwise, this condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes 2 Survev Purchaser shall, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor chosen by and acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all improvements„ highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights -of -way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set further the number of total acres comprising the Property, together with a metes and bounds description thereof Purchaser will have twenty (20) days after receipt of the survey to review and approve the survey In the event the survey is unacceptable, then Purchaser shall within the twenty (20) day period, give Seller written notice of this fact Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser In the event Seller is unable to do so within twenty (20) days after receipt of written notice, Purchaser may terminate this Agreement, and the Agreement shall thereupon be null and void for all purposes Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey 3 Seller's Compliance Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date Page 2 I There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers 2 Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority 3 Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof 4 To the best of the Seller's knowledge, there are no toxic or hazardous wastes or materials on or within the Property Such toxic or hazardous wastes or materials include, but are not limited to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended REPRESENTATIONS OF PURCHASER There is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof Purchaser intends to secure the Property for the purpose of widening existing Mayhill Road CLOSING The closing shall be held at the office of Dentex Title Company, 300 North Elm, Suite 101, Denton, Texas, within ten (10) days after the Texas Natural Resource Conservation Commission issues Solid Waste Landfill Permit No 1590-A to Purchaser, or at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (which date his herein referred to as the "closing date") CLOSING REQUIREMENTS Seller's Requirements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following 1 General real estate taxes for the year of closing and subsequent years not yet due and payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obligations hereof, and Any exceptions approved by Purchaser in writing Page 3 B Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, issued by Dentex Title Company (the "Title Company"), or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property, subject only to those title exceptions listed in Closing Requirements hereof, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy, provided, however 1 The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with same shall be borne by Purchaser, 2 The exception as to restrictive covenants shall be endorsed "None of Record," 3 The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable," and 4 The exception as to liens encumbering the Property shall be endorsed "None of Record " C Deliver to Purchaser possession of the Property on the day of closing 2 Purchaser's Requirements Purchaser shall pay the consideration as referenced in the "Purchase Price" section of this contract at Closing in immediately available funds, and shall further provide Seller with satisfactory written proof that the further purchase consideration has been paid, or that firm arrangements have been made regarding such payments 3 Closing Costs Seller shall pay all taxes assessed by any tax jurisdiction through the date of Closing All other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be paid by Purchaser REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of the Agreement shall be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Purchaser from any and all claims for any such commissions BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property except Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement Page 4 BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default, Seller may either enforce specific performance of this Agreement, or terminate this Agreement MISCELLANEOUS 1 Assignment of Agreement This Agreement may not be assigned by Purchaser without the express written consent of Seller 2 Survival of Covenants Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein 3 Notice Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party 4 Texas Law to Apply This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas 5 Parties Bound This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement 6 Legal Construction In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein 7 Prior Agreements Su erg seded This Agreement constitutes the sole and only Agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter 8 Time of Essence Time is of the essence in the performance of this Agreement 9 Gender Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record Page 5 11 om li nce In accordance with the requirements of the Texas Real Estate License Act, Purchaser is hereby advised that is should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection 12 Time Limit In the event a fully executed copy of this Agreement has not been returned to Seller within twenty (20) days after Seller executes this Agreement and delivers same to Purchaser, Seller shall have the right to terminate this Agreement upon written notice to Purchaser DATED this day of �e 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY BY AP OVED S TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY i ( 4 �'"�"b REBECCA L POWELL NoTary Public State of Texas Cornmisslon Expires 11-28-98 PURCHASER THE CITY OF DENTON, TEXAS By Ted Benavides, City Manager 215 E McKinney Denton, Texas 76201 SELLER ROBERTP DONNELLY By obert ' onnelly/ Page 6 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this la day of f —f�P v g hem 1997 by Robert P Donnelly REBECCA L POWELL Notary Public State of Texas Commission Expires1128.98 STATE OF TEXAS COUNTY OF DENTON ,1�"—/'"� Notary Public in and for the State of Texas This 1 strument was acknowledged before me on this q� day of 1997 by Ted Benavides, City Manager of the City of Denton, Texa a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by appropriate ordinance of the City Council of the City of Denton and that he executed the same as the act of the said City for the purposes and consideration therein expressed, and in the capacity therein stated czo©ooa00000c000ac00000coW000 g 2S.k ANN FORSYTHE g Nota Public in and for State of Texas Notary Public StatsotTexas gQQ 9aa�d' My commission Explroi06-09-18S88$ �iOOOOOOa000000000ti0C06000tiG00a9i6 Page 7 EXHTBIT "A" _ L M M 0 w 0 N v OD N H EXHIBIT "B" Being a 10 acre tract of land, more or less, being situated in the DAVID HOUGH SURVEY, Abstract No 646, in the City of Denton, Denton County, Texas, and being part of a certain 19 969 acre tract of land described in Special Warranty Deed from the Federal Deposit Insurance Corporation as Receiver of Western Bank as grantor, to Robert P Donnelly, as grantee, executed on November 19, 1992, said deed being recorded in Volume 3384, Page 0905 of the Real Property Records of Denton County, Texas, and being further described as a tract of land West of and adjacent to the existing Mayhill Road prescriptive right of way, running approximately 869 5 feet along the present location of Maylull Road, and being 50 feet in width Seller and Purchaser agree that upon completion of a ground survey of the above tract in connection with the closing of this transaction, that a metes and bounds legal description of said tract will be substituted for the above description EXHIBIT "C" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a %2 inch iron rod in the centerline of Mayhill Road at the Southeast corner of said Putnam Tract, also being the Northeast corner of a tract of land conveyed to Andrew Corporation, by the deed recorded in Volume 912, Page 797, Deed Records of Denton County, Texas, also being the Southeast corner of said Hough Survey, THENCE, South 87 degrees 13 minutes 28 seconds West, 744 08 feet along the North line of said Andrew Corporation Tract and the South line of said Hough Survey to a '/2 inch iron rod in the Northeast right-of-way line of the M K T Railroad, THENCE, along said Northeast right-of-way line as follows North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a'/2 inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 10167 feet to a'/2 inch iron rod, North 53 degrees 56 minutes 53 seconds West, 10175 feet to a'/2 inch iron rod, North 57 degrees 13 minutes 33 seconds West, 67 68 feet to a '/2 inch iron rod at the Southwest corner of aforesaid Putnam Tract, also being the Southeast corner of a tract of land conveyed to Don V Cunningham and wife, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 64134 feet to a'/2 inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast corner of said Cunningham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,05176 feet to a'/2 inch iron rod in the center line of aforesaid Mayhill Road, also lying in the West survey line of the G Walker Survey, Abstract No 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along said survey line and the East boundary line of said Putnam Tract to the PLACE OF BEGINNING and containing 19 969 acres of land, more or less, LESS AND EXCEPT that certain 10 acre tract of land described in Exhibit "B" hereto, leaving 18 969 acres, more or less, remaining in this tract REAL ESTATE CONTRACT OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT is made by and between Robert P Donnelly, hereinafter referred to as "Optionor" and the City of Denton, Texas, a home rule municipality of Denton County, Texas, hereinafter referred to as "Optionee," upon the terms and conditions set forth herein RECITALS WHEREAS, Optionor is the owner of certain real property consisting of approximately 19 969 acres located in the City of Denton, Denton County, Texas A map of said 19 969 acre tract is attached hereto as Exhibit "A" and incorporated herein by reference for all purposes Optionor, by a Real Estate Contract, has agreed to sell and convey to Optionee, that certain 10 acre tract of land more particularly described in Exhibit "B" attached hereto and incorporated herein by reference for all purposes Optionor, by this Agreement desires to grant Optionee a right and option upon the terms and specified conditions set forth herembelow to acquire the re- maining 18 969 acre tract of land more particularly described in Exhibit "C" attached hereto and incorporated herein by reference for all purposes, and WHEREAS, Optionee believes that the 18 969 acre tract of land which is the subject of this right to acquire and option (said tract being hereinafter referred to as the "Optioned Tract") is reasonably necessary for the public use in the future, and accordingly desires to acquire a right to acquire the Optioned Tract under the terms and special conditions set forth herembelow, THEREFORE, IT IS AGREED AS FOLLOWS ARTICLE I GRANT OF OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY In consideration of the sum of ten dollars ($10 00), and the further consideration of Op- tionee's payment for a survey of the Optioned Tract, Optionee's payment of the cost of a pre- liminary plat pertaining to the Optioned Tract and the 10 acre tract described in Exhibit "B" at- tached hereto, Optionee's agreement to reimburse Optionor the cost of an applicable building permit pertaining to the Optioned Tract, and the agreement of Optionee to obtain and deliver, at Optionee's expense, to Optionor, before any exercise of Optionee of its right or option granted herein, a preliminary title report issued by Dentex Title Company, Denton, Texas, covering the Optioned Tract, Optionor hereby GRANTS to Optionee the right and option to acquire title to the Optioned Tract at the prices and conditions, and within the time limitations specified below A In the event that Optionor receives from a third party, at any time before January 1, 2013, a bona -fide written offer supported by good and valuable consideration to purchase the Optioned Tract, then Optionee has no right of first refusal to match said third party offer, and Optionee will not be obligated to pay any sum of money to Optionor under the terms of this Agreement B In the event that Optionor receives from a third party, at any time between January 1, 2013 and December 31, 2027, a bona -fide written offer supported by good and valuable consideration to purchase the Optioned Tract, and the stated purchase consideration is an amount less than two dollars ($2 00) per square foot, then Optionee shall acquire title to the Optioned Tract by paying to Optionor the purchase consideration of two dollars ($2 00) per square foot Optionee shall exercise its option by notifying Optionor in writ- ing within sixty (60) days after Optionee receives notice from the Optionor of the third party offer C In the event that Optionor receives from a third party, at any time between January 1, 2013 and December 31, 2027, a bona -fide written offer supported by good and valuable consideration to purchase the Optioned Tract, and the stated purchase consideration is an amount greater than two dollars ($2 00) per square foot, then Optionee may acquire title to the Optioned Tract by paying to Optionor a total of one dollar ($1 00) more than the purchase consideration offered by the third party Optionee shall exercise its option by notifying Optionor in writing within sixty (60) days after Optionee receives notice from Optionor of the third party offer, PROVIDED, HOWEVER, in the event that Optionee elects not to acquire title to the Optioned Tract, then Optionee shall not be required to pay any sum of money to Optionor, and this Agreement shall be thereby terminated D Optionor and Optionee agree that unless earlier terminated, the rights and option of Op- tionee shall expire on December 31, 2027 E Optionee represents to Optionor that it has no present, fixed, intention to condemn all or any part of the Optioned Tract at this time Optionee is unable to lawfully agree to waive its right of eminent domain with respect to the Optioned Tract, or, for that matter, any tract of real property in the City of Denton, Texas In the unlikely event that Optionee, because of a public necessity, seeks condemnation of all or any part of the Optioned Tract before January 1, 2013, then Optionor and Optionee shall treat such condemnation as Optionee's early exercise of its option to acquire the Optioned Tract and Optionor and Optionee each agree to designate a licensed real estate appraiser of the State of Texas, with the M A I (Member of Appraisal Institute) designa- tion, who will in turn select a licensed real estate appraiser of the State of Texas with the M A I designation, which selected appraiser shall maintain his or her principal office in Denton County, Texas Thereafter, the selected appraiser shall prepare a written ap- praisal report and determine the appraised fair market value of the Optioned Tract Upon determination of the appraised fair market value by this method, Optionee shall pay to Optionor the appraised market value of the subject Optioned Tract or the amount of two dollars ($2 00) per square foot, whichever amount is greater Page 2 ARTICLE II APPLICATION OF CONSIDERATION TO PURCHASE PRICE If Optionee exercises its right or option to acquire title to the Optioned Tract in accor- dance with the terms hereof, it is specifically understood and agreed that the consideration paid to Optionor by Optionee pursuant to the first paragraph of Article I hereof, shall not apply to any purchase price expressed in Article I hereof ARTICLE III EXERCISE OF OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY Optionee must exercise its options granted herein by providing written notice to Optionor in accordance with any applicable deadline set forth in Article I hereinabove In order to exer- cise its option under the provisions of Article I B or Article I C heremabove, Optionee must execute and deliver to Optionor the Real Estate Sales Contract attached hereto as Exhibit "D," which is incorporated herein for all purposes ARTICLE IV CONDITION PRECEDENT Optionor and Optionee agree that this Agreement is conditioned upon Optionee receiving Solid Waste Landfill Permit No 1590-A from the Texas Natural Resource Conservation Com- mission In the event that such condition is not satisfied, then this Agreement shall be null and void ARTICLE V RETENTION OF CONSIDERATION In the event that Optionee fails to exercise any or all of its rights or options granted herein, all sums and all consideration paid or provided by Optionee to Optionor shall be retained by Optionor in consideration of the granting of these rights and options to Optionee ARTICLE VI TERMINATION OF OPTIONEE'S RIGHTS AND OPTIONS If Optionee fails to meet any deadline relating to the exercise of any option or right granted hereunder, or to the terms of sale of the Optioned Tract, this Agreement, and the rights of Optionec shall automatically terminate on the day following the applicable deadline ARTICLE VII MEMORANDUM OF AGREEMENT Optionor and Optionee agree to execute, within thirty (30) days from the date this Agreement is executed by Optionor and Optionee, a Memorandum of Agreement respecting the existence of this Agreement and evidencing Optionee's interest in the Optioned Tract Optionee Page 3 may elect to record such Memorandum of Agreement in the Real Estate Records of Denton County, Texas ARTICLE VIII ASSIGNABILITY No assignment of this Agreement, or of any right, duty, or option accruing under this Agreement shall be made, in whole or in part, by either party, without the prior written consent of the other party ARTICLE IX NOTICES Unless otherwise provided herein, any notice, tender, or delivery to be given hereunder by either party to the other may be effected in writing by personal delivery or by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received as of the date of actual receipt Marled notice shall be addressed as set forth below, but each party may change his address in accordance with this paragraph To Optionor To Optionee Robert P Donnelly City of Denton, Texas Ted Benavides, City Manager 215 East McKinney Denton, Texas 76201 With a copy to Herbert L Prouty City Attorney 215 East McKinney Denton, Texas 76201 ARTICLE X ENTIRE AGREEMENT This Agreement contains the entire agreement between the parties relating to the option and rights herein granted Any oral representations or modifications concerning this Agreement shall be of no force and effect, excepting a subsequent modification, in writing, signed by the parties ARTICLE XI BINDING EFFECT This Agreement shall bind and inure to the benefit of all the respective heirs, personal representatives, successors, and assigns of the parties hereto Page 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on this the day of P_.o" 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APP VED A TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY OPTIONEE CITY OF DENTON, TEXAS BY TED BENAVIDES, CITY MANAGER OPTIONOR ROBERT P DONNELLY ROBERTP DONNELL Page 5 STATE OF TEXAS COUNTY OF DENTON BEFORE ME the undersigned authority, a Notary Public in and for said State of Texas, on this day personally appeared Ted Benavides, City Manager of the City of Denton, Texas, known to me to be the person who signed and executed the foregoing instrument, and acknowledged to me that this instrument was executed for the purposes and consideration therein expressed GIVEN UNDER MY 19� HAND AND SEAL OF OFFICE tlus the e day of c�00000a0000000000000000000000 2S "�vw ANN FORSYTHE Notary Public Stem of Texas g f i4Af= My Commission Expires 06-W19W8 �o000000000000000o000000000OOC 5 STATE OF TEXAS COUNTY OF DENTON X*2 �' No Public man for the State of Texas My Commission Expires �-- jq.. �ft BEFORE ME the undersigned authority, a Notary Public in and for said State of Texas, on this day personally appeared Robert P Donnelly, known to me to be the person who signed and executed the foregoing instrument, and acknowledged to me that this instrument was executed for the purposes and consideration therein expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE tlus the day of '19 E \DOCS\x\DONNELLY CONTRACT Notary Public in and for the State of Texas My Commission Expires Page 6 EXHIBIT "A" M I Alir g 4c Q s L IYIWMgs T It W Q J 3 / M ON e rA Vt y� A OD It 2 8 EXHIBIT "B" Being a 10 acre tract of land, more or less, being situated in the DAVID HOUGH SURVEY, Abstract No 646, in the City of Denton, Denton County, Texas, and being part of a certain 19 969 acre tract of land described in Special Warranty Deed from the Federal Deposit Insurance Corporation as Receiver of Western Bank as grantor, to Robert P Donnelly, as grantee, executed on November 19, 1992, said deed being recorded in Volume 3384, Page 0905 of the Real Property Records of Denton County, Texas, and being further described as a tract of land West of and adjacent to the existing Mayhill Road prescriptive right of way, running approximately 869 5 feet along the present location of Mayhill Road, and being 50 feet in width Seller and Purchaser agree that upon completion of a ground survey of the above tract in connection with the closing of this transaction, that a metes and bounds legal description of said tract will be substituted for the above description EXHIBIT "C" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a %2 inch iron rod in the centerline of Mayhill Road at the Southeast corner of said Putnam Tract, also being the Northeast corner of a tract of land conveyed to Andrew Corporation, by the deed recorded in Volume 912, Page 797, Deed Records of Denton County, Texas, also being the Southeast corner of said Hough Survey, THENCE, South 87 degrees 13 minutes 28 seconds West, 744 08 feet along the North line of said Andrew Corporation Tract and the South line of said Hough Survey to a %2 inch iron rod in the Northeast right-of-way line of the M K T Railroad, THENCE, along said Northeast right-of-way line as follows 1 North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a''/2 inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 10167 feet to a''/2 inch iron rod, 3 North 53 degrees 56 minutes 53 seconds West, 10175 feet to a %2 inch iron rod, 4 North 57 degrees 13 minutes 33 seconds West, 67 68 feet to a %2 inch iron rod at the Southwest corner of aforesaid Putnam Tract, also being the Southeast corner of a tract of land conveyed to Don V Cunningham and wife, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 64134 feet to a %2 inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast corner of said Cunningham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,05176 feet to a'/2 inch iron rod in the center line of aforesaid Mayhill Road, also lying in the West survey line of the G Walker Survey, Abstract No 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along said survey line and the East boundary line of said Putnam Tract to the PLACE OF BEGINNING and containing 19 969 acres of land, more or less, LESS AND EXCEPT that certain 10 acre tract of land described in Exhibit "B" hereto, leaving 18 969 acres, more or less, remaining in this tract EXHIBIT "D" REAL ESTATE SALES CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between ROBERT P DONNELLY (hereinafter referred to as "Seller") and the CITY OF DENTON, TEXAS, a home rule municipality, of Denton County, Texas (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees Ito pay for that certain tract of land located in the City of Denton, Denton County, Texas, containing 18 969 acres of land, more or less, and being more particularly described in Exhibit "1" attached hereto and incorporated herein by reference for all purposes, together with all and singular the rights and appurtenances pertaining to the property, including any right, title and interest of Seller in and to adjacent streets, alleys or ng is -of -way (all of such real property, rights, and appurtenances being hereinafter referriz to as the "Property"), together with any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth PURCHASE PRICE Amount of Purchase Price The purchase price for the Property shall be the sum of $ as determined in that certain Real Estate Contract -Option To Acquire Additional Real Property executed by Seller, as Optionor and Purchaser as Optionee, on the day of , 199_ Payment of Purchase Price The full amount of the purchase price shall be payable in cash at the closing PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions conte plated hereby are subject to the satisfaction of each of the following conditions any o which may be waived in whole or in part by Purchaser at or prior to the closing Preliminary Title Report Within twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a preliminary title report (the "Title Report") accompanied by `1�4 .Dom ��w Ai lZ 4L cuydv'T T6 bnp- Wei/f' � ` kl L k.j ovv-u -4 y�J copies of all recorded documents relating to easements, rights -of -way, etc , affecting the Property Purchaser shall give Seller written notice on or before the expiration of ten (10) days after Purchaser receives the Title Report that the condition of title as set forth in the title binder is or is not satisfactory, and in the event Purchaser states that the condition is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser In the event Seller is unable to do so within ten (10) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes, otherwise, this condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes 2 Survey Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor chosen by and acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights -of -way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof Purchaser will have ten (10) days after receipt of the survey to review and approve the survey In the event the survey is unacceptable, then Purchaser shall within the ten (10) day period, give Seller written notice of this fact Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser may terminate this Agreement, and the Agreement shall thereupon be null and void for all purposes Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey 3 Seller's Compliance Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers Page 2 Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof 4 To the best of the Seller's knowledge, there are no toxic or hazardous wastes or materials on or within the Property Such toxic or hazardous wastes or materials include, but are not limited to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended CLOSING The closing shall be held at the office of Dentex Title Company, Denton, Texas, at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (winch date is herein referred to as the "closing date") CLOSING REQUIREMENTS Seller's Requirements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions except for the following General real estate taxes for the year of closing and subsequent years not yet due and payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obligations hereof, and 3 Any exceptions approved by Purchaser in writing B Deliver to Purchaser a Texas Owner's Title Policy at Seller's sole expense, issued by Dentex Title Company, (the "Title Company"), or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's favor of the full amount of the purchase price, insuring Purchaser's fee simple title to the Property, subject only to those title exceptions listed in Closing Requirements hereof, such other exceptions as may be approved in writing by Purchaser, and the standard printed Page 3 exceptions contained in the usual form of Texas Owner's Title Policy, provided, however 1 The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with same shall be borne by Seller, 2 The exception as to restrictive covenants shall be endorsed "None of Record", 3 The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable", and 4 The exception as to liens encumbering the Property shall be endorsed "None of Record" C Deliver to Purchaser possession of the Property on the day of closing 2 Purchaser's Requirements Purchaser shall pay the consideration as referenced in the Purchase Price section of this contract at Closing in immediately available funds 3 Closing Costs Seller shall pay all taxes assessed by any tax jurisdiction through the date of Closing All other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be equally shared by Purchaser and Seller REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of this Agreement shall be the sole responsibility of Seller, and Seller agrees to indemnify and hold harmless Purchaser from any and all claims for any such commissions BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property except at Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in PURCHASER'S OBLIGATIONS Page 4 having been satisfied and Purchaser being in default, Seller may either enforce specific performance of this Agreement, or terminate this Agreement MISCELLANEOUS Assignment of Agreement This Agreement may not be assigned by Purchaser without the express written consent of Seller Survival of Covenants Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein Notice Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mail, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party 4 Texas Law to Apply This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas 5 Parties Bound This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement Legal Construction In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein Prior Agreements Superseded This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within subject matter Time of Essence Time is of the essence in this Agreement Gender Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record Page 5 11 Co=liance In accordance with the requirements of the Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection 12 Time Limit In the event a fully executed copy of this Agreement has not been returned to Seller within thirty (30) days after Seller executes this Agreement and delivers same to Purchaser, Seller shall have the right to terminate this Agreement upon written notice to Purchaser DATED this day of ATTEST M APPROVED AS TO LEGAL FORM CITY ATTORNEY, CITY OF DENTON, TEXAS M PURCHASER THE CITY OF DENTON, TEXAS By City Manager 215 E McKinney Denton, Texas 76201 SELLER ROBERT P DONNELLY By Robert P Donnelly Page 6 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on this the day of by Robert P Donnelly Notary Public in and for the State of Texas STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me, on this the day of by , City Manager of the City of Denton, Texas, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said City of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by appropriate ordinance of the City Council of the City of Denton and that he executed the same as the act of said City for purposes and consideration therein expressed, and in the capacity therein stated Notary Public in and for the State of Texas Page 7 EXHIBIT "I" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a %2 inch iron rod in the centerline of Mayhill Road at the Southeast corner of said Putnam Tract, also being the Northeast corner of a tract of land conveyed to Andrew Corporation, by the deed recorded in Volume 912, Page 797, Deed Records of Denton County, Texas, also being the Southeast corner of said Hough Survey, THENCE, South 87 degrees 13 minutes 28 seconds West, 744 08 feet along the North line of said Andrew Corporation Tract and the South line of said Hough Survey to a %2 inch iron rod in the Northeast right-of-way line of the M K T Railroad, THENCE, along said Northeast right-of-way line as follows 1 North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a'/2 inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 10167 feet to a'/2 inch iron rod, 3 North 53 degrees 56 minutes 53 seconds West, 10175 feet to a'/2 inch iron rod, 4 North 57 degrees 13 minutes 33 seconds West, 67 68 feet to a '/2 inch iron rod at the Southwest corner of aforesaid Putnam Tract, also being the Southeast corner of a tract of land conveyed to Don V Cunningham and wife, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 64134 feet to a '/2 inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast corner of said Cunningham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,05176 feet to a'/2 inch iron rod in the center line of aforesaid Mayhill Road, also lying in the West survey line of the G Walker Survey, Abstract No 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along said survey lire and the East boundary line of said Putnam Tract to the PLACE OF BEGINNING and containing 19 969 acres of land, more or less, LESS AND EXCEPT that certain 10 acre tract of land previously conveyed by Robert P Donnelly to the City of Denton, Texas by General Warranty Deed on the day of 19_, which deed is recorded at Volume , Page of the Real Estate Records of Denton County, Texas, leaving 18 969 acres, more or less, remaining in this tract A10100/B3) OWNER POLICY OF TITLE INSURANCE Issued by 502345 ift Alamo Title Insurance SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, ALAMO TITLE INSURANCE, a Texas corporation, herein called the Company, Insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of 1 Title to the estate or interest described in Schedule A being vested other than as stated therein, 2 Any defect in or lien or encumbrance on the title, 3 Any statutory or constitutional mechanic's, contractor's, or materialman's lien for labor or material having its inception on or before Date of Policy, 4 Lack of a right of access to and from the land, 5 Lack of good and indefeasible title The company also will pay the costs, attorneys' fees and expenses incurred in defense of the title, as insured, but only to the extent provided in the Conditions and Stipulations O us/m By Secretary ALAMO TITLE INSURANCE By I /az r 7, President Insurance Effective January 1, 1993 EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage costs attorneys fees or expenses that arise by reason of 1 (a) Any law ordinance or governmental regulation (including but not limited to building and zoning laws ordinances or regulations) restricting regulating prohibiting or relating to (I) the occupancy use or enjoymen of the land pp the character dimensions or location of any improvement now or hereafter erected on the land pip a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a pad or iv) environmental protection or the effect of any violation of these laws ordinances or governmental regulations except to the extent that a notice of the enforcement thereof or a notice of a defect lien or encumbrance resulting from a violation or alleged violation affectng the land has been recorded in the public records at Date of Policy (b) Any governmental police power not excluded by (a) above except to the extent that a notice of the exercise thereof or a notice of a defect ben or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy 2 Rights of eminent domain unless notice of the exerese thereof has been recorded in the public records at Date of Policy but not excluding from coverage any taking that has occurred prior to Date of Policy which would be binding on the rights of a purchaser for value without knowledge 3 Defects hens encumbrances adverse claims or other matters (a) created suffered assumed or agreed to by the insured claimant (b) not known to the Company not recorded in the public records at Date of Polley but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured clarean became an insured under this policy (c) resulting in no loss or damage to the insured claimant (d) attaching or created subsequent to Date of Policy (a) resulting in loss or damage that would not have been sustained if the insured claimant had paid value for the estate or interest Insured by this Policy 4 The refusal of any person to purchase lease or lend money on the estate or interest covered hereby in the land described in Schedule A because of unmarketability of the title 5 Any claim which arises out of the transaction vesting in the person named in paragraph 3 of Schedule A the estate or interest insured by this policy by reason of the operation of federal bankruptcy state insolvency or other state or federal creditors rights laws that rs based on either (p the transaction creating the estate or interest Insured by this Policy being deemed a fraudulent conveyance or fraudulent transfer or a voidable distribution or voidable dividend or (it) the subordination or recharactenzation of the estate or Interest insured by this Policy as a result of the application of the doctrine of equitable subordination or (III) the transaction creating the estate or interest insured by this Policy being deemed a preferential transfer except where the preferential transfer results from the failure of the Company or its issuing agent to timely file for record the instrument of transfer to the Insured after delivery or the failure of such recordation to impart notice to a purchaser for value or a judgment or lien creditor y CONDITIONS AND STIPULATIONS DEFINITION OF TERMS The following terms when used in this policy mean (a) insured the insured named in Schedule A and subject to any rights or defenses the company would have had against the named insured those who succeed to the interest of the named insured by operation of law as distinguished from purchase including but not limited to heirs dlstributees devisees survivors personal representatives next of kin or corporate partnership or fiduciary successors and specifically without limitation the following (I) the successors in interest to a corporation resulting from merger or consolidation or the distribution of the assets of the corporation upon partial or complete liquidation (ill the partnership successors in interest to a general or limited partnership which dissolves but does not terminate (ill) the successors in interest to a general or limited partnership resulting from the distribution of the assets of the general or limited partnership upon partial or complete liquidation (Iv) the successors in interest to a joint venture resulting from the distribution of the assets of the joint venture upon partial or complete liquidation (v) the successor or substitute trustee(s) of a trustee named in a written trust instrument or (vi) the successors in interest to a trustee or trust resulting from the distribution of all of pad of the assets of the trust to the beneficiaries thereof (b) insured claimant an insured claiming loss or damage (c) knowledge or known actual knowledge not constructive knowledge or notice that may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart constructive notice of matters affecting the land (d) land the land described or referred to in Schedule A and improvements affixed thereto that by law constitute real properly The term land does not include any propedy beyond the lines of the area described or referred to in Schedule A nor any right title interest estate or easement in abutting streets roads avenues alleys lanes ways or waterways but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy (e) mortgage mortgage deed of trust trust deed or other security instrument (f) public records records established under state statutes as Date of Policy for the purpose of Imparting constructive notice of matters relating to real property to purchasers for value and without knowledge With respect to Section 1(a)pv) of tire Exclusions From Coverage public records also shall include environmental protection liens filed in the records of the clerk of the United States district could for the district in which the land is located (g) access legal right of access to the land and not the physical condition of access The coverage provided as to access does not assure the adequacy of access for the use intended CONTINUATION OF INSURANCE AFTER CONVEYANCE OF TITLE The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in the land or holds an Indebtedness secured by a purchase money mortgage goon by a purchaser from the insured or only so long as the Insured shall have liability by reason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest This policy shall not continue in force in favor of any purchaser from the insured of either (I) an estate or interest in the land or (ill and indebtedness secured f a purchase money mortgage given to the insured NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The insured shall notify the Company p directly in writing (I) in case of airy litigation as set forth in Section 4(a) below or Ill) in case knowledge shall come to an insured hereunder of any claim of title or interest that is adverse to the title to the estate or interest as insured and that might cause loss or damage for which the Company may be liable by virtue of this policy If prompt notice shall not be given to the Company than as to the insured all liability of the Company shall terminate with regard to the matter or matters for which prompt notice is required provided nor ever that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only the extent of the prejudice When after the date of the policy the insured notifies the Company as required herein of a ben encumbrance adverse claim or other defect in title to the estate or interest in the land insured by this policy that is not excluded or excepted from the coverage of this policy the Company shall promptly investigate the charge to determine whether the hen encumbrance adverse claim or defect is valid and not barred by law or statute The Company shall notify the insured in writing within a reasonable time of its determination as to the validity or invalidity of the Insureds claim or charge under the policy If the Company concludes that the hen encumbrance adverse claim or defect Is not covered by this policy or was otherwise addressed in the closing of the transaction in connection with which this policy was issued the Company shall specifically advise the insured of the reasons for its determination If the Company concludes that the hen encumbrance adverse claim or defect is valid the Company shall take one of the following actions (I) institute the necessary proceedings to clear the lien encumbrance adverse claim or defect from the title to the estate as insured (It) indemnify the insured as provided in this policy plc upon payment of appropriate premium and charges therefor issue to the insured claimant or to a subsequent owner mortgagee or holder of the estate or interest in the land insured by this policy a policy of title in-urance without exception for the Pen encumbrance adverse claim or defect said policy to be in an amount equal to the current value of the property or If a mortgagee policy the amount of the loan pv) indent another title insurance company in connection with its issuance of a policy(les) of title insurance without exception for the hen encumbrance adverse claim or defect (v) secure a release or other document discharging the hen encumbrance adverse claim or defect or (vl) undertake a combination of (1) through fv) herein CONDITIONS AND STIPULATIONS Continued DEFENSE AND PROSECUTION OF ACTIONS DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations the Company at its own cost and without unreasonable grSay shell provide for the defense of an insured in litigation in which any mvtl party asserts a claim adverse to the title or interest as insured but only all those stated causes Of action alleging a defect lion 0 encumbrance or other matter insured against by this policy The Company shall have the right to select counsel Of Its choice (subject to the right of the Insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel The Company m'I not pay any fees costs or expenses Incurred by the Insured in the defense of those causes of action that allege matters not Insured against by this policy l have the lbl desirable to establish right sh the tie te estatte ora Its rinterest as insured Cost to institute itor to prevent d prosecute aoryreduce loss or damage t the insaction or proceeding or to do urother l insured The Company l t to take any appropriate action under the terms of this p0110y whether or not it shell be liable hereunder and shall not thereby concede liability or waive any provision of this policy If the Company shell exercise Its rights under this paragraph it shall do so diligently (c) Whenever the Company shall have brought an action or Interposed a defense as required or permitted by the provisions of this policy the Company may pursue any litigation to final determine Ion by a court of compotent jurisdiction and expressly reserves the right in its sole discretion to appeal from any adverse judgment or order (tl) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding and all appeals therein and permit the Company to use at Its option the name of the Insured for this purpose Whenever requested by the Company the Insured at the Company expense shall give the Company all reasonable aid (1) in any action or proceeding securing evidence obtaining witnesses prosecuting or defending the action or proceeding or effecting settlement and (II) in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as insured If the Company is prejudiced by the failure of the insured to furnish the required cooperation the Company a obligations to the insured under the policy shall terminate including any liability Or obligation to defend prosecute or continue any litigation with regard to the matter or matters requiring such cooperation PROOF OF LOSS OR DAMAGE In addition to and attar the notices required under Section 3 of these Conditions and Stipulations have been provided the Company a proof of loss or damage signed and swom to by the insured claimant shall be furnished to the Company within 91 days after the insured claimant shall ascertain the facts giving rise to the loss or damage The proof of loss or damage shall deecdh the defect in or lien or encumbrance on the title or other matter insured against by this policy that constitutes the basis of loss or damage and shall state to the extent possible the basis of calculating the amount of the lass or damage If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage the Company s obligations to the insured under the policy shall terminate including any liability or obligation to defend prosecute Or continue any litigation with regard to the matter or matters requiring such proof of lose or damage In addition the Insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination inspection and copying at such reasonable times and places as may be designated by any authorized representative Of the Company all records books ledgers checks correspondence and memoranda whether bearing a date before or after Date of Policy which reasonably pertain to the loss or damage Further It requested by any authorized representative of the Company the Insured claimant shall grant Its permission in writing for any authorized representative of the Company to examine Inspect and copy all records books ledgers checks rorrespondence and memoranda In the custody or control of a third patty which reasonably pertain to the lose or damage All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless in the reasonable judgment of the Company It Is necessary In the administration of the claim Failure of the insured clamant to submit for examination under oath produce other reasonably requested Information or grant permission to secure reasonably necessary information from third parties as required n this paragraph shell terminate any (lability ai the Company under this policy as to that claim OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS TERMINATION OF LIABILITY In case of a claim under this policy the Company shall have the following additional options (a) To Pay or Tender Payment of the Amount of Insurance To pay or tender payment of the amount of insurance under this policy together with any costs attorneys fees and expenses incurred by the insured clamant which were authorized by the Company up to the time of payment or tender of payment and which the Company is obligated to pay Upon the exercise by the Company of this option all liability and obligations to the insured under this policy other than to make the payment required shall terminate including any liability or obligation to defend prosecute or continue any litigation and the pofiry shall be surrendered to the Company for cancellation (b) To Pay or Otherwlae Settle With Parties Other than the Insured or With the Insured Claimant (q to pay or otherwise settle with other parties for or in the name of an insured claimant any claim insured against under this policy together with any costs attorneys fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay or (it) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy together with any costs attorneys fees and expenses incurred by the Insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay oUpon the r damagexothe than the payments required t be he Company of either of the madesprovided for in shall terminate including any liability or obligationll the to defeny a nd prosecute or conigations to the tinue any ld under itigation DEis TERMINATION,for the claimed loss DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE This policy is a contract Of indemnity against actual monetary loss or damage sustained or incurred by the insured claimant who has suffered loss or damage by reason of matters insured against by this policy and only to the extent herein described ta) The theAmount liabihe Company under thpolicy lity of Insurance sttated in Schedule) not 0xceed the least of (it) the difference between the value of the insured estate or interest a insured and the value of the insured estate or interest subject to the defect ken or encumbrance insured against by this policy at the date the insured claimant Is required to furnish to Company a proof of loss or damage in accordance with Section 5 of these Conditions and Stipulations (b) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the full consideration paid for the land whichever is less or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by as least 2Q percent over the Amount of Insurance stated in Schedule A then this Policy is subject to the following (0 where o subsequent improvement has been made as to any partial loss the Company shall only pay the loss pro rate in the proponion that the amount of insurance at Data of Policy bears to the total value of the insured estate or interest at Date of Policy or id where a subsequent improvement has been made as to any penal loss the Company shall only pay the loss pro rate in the proportion that 120 percent of the Amount of Insurance stated in Schedule A bears to nit sum of the Amount of Insurance stated in Schedule A and the amount expended for the improvement The provisions of this paragraph shall not apply to costs attorneys fees and expenses for which the Company is liable under this policy and shall only apply to that portion of any loss which exceeds in the aggregate 10 percent of the Amount of Insurance stated in Schedule A tit) The Company will pay only these costs attorneys sob and expenses incurred in accordance with Section 4 of these Conditions and Stipulations 8 APPORTIONMENT If the land described in Schedule A consists of two or more parcels that are tot used as a single site and a loss is established affecting one or more of the parcels but not all the loss shall be computed and settled on a pro rate basis as it the amount of insurance under this policy was divided pro rate as to the value on Date of Policy of each separate parcel to the alue has otherwise been Company and the insured at the time of the ssurance of this poents made licy and shosequent townete of by an exlicy unless a liability orpress statement or by an endorsement attached to this licypon as to each parcel by the 9 LIMITATION OF LIABILITY (a) If the Company establishes the title or removes the alleged defect ken or encumbrance or cures the lack of a right of access to or from the land all as insured or takes action in accordance with Section 3 or Section 6 in a reasonat ry diligent manner by any method including litigation and the completion of any appeals therefrom it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby of In the event of any litigation including litigation by the Company or with the Company s consent the Company Shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction and disposition of all appeals therefrom adverse to the title as insured (c) The Company shall not be liable for loss or damage to any nsuretl for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company 10 REDUCTION OR INSURANCE REDUCTION OR TERMINATION OF LIABILITY All payments under this policy except payments made for costs attorneys fees and expenses shall reduce the amount of the insurance pro tonic (Continued on Reverse Side of Page) missing C )CO ® CL to n M O L ® N a N f00 C 00 3 o ca I... t2 CONDITIONS AND STIPULATIONS Continued 1 11 LIABILITY NONCUMULATIVE It le expressly understood that the amount of Insurance under this policy shall be reduced by any amount the Company may pay under any policy Insuring a mortgage to which exception Is taken In Schedule B or to which the insured has agreed assumed or taken subject or which Is hereafter executed by an Insured and which is a charge or Ilan on the estate or Interest described or referred to in Schedule A and the amount so paid shall be deemed a payment under this policy to the Insured owner 12 PAYMENT OF LOSS (a) No payment shall be made without producing this policy for endorsement of the payment unless the policy has been lost or destroyed In which case proof of lose or destruction shall be furnished to the satisfaction of the Company (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations the lose or damage shall be payable within 30 days thereafter 13 SUBROGATION UPON PAYMENT OR SETTLEMENT (a) The Company a Right of Subrogation Whenever the Company shall have settled and paid a claim under this policy all right of subrogation shall vest in the Company unaffected by any act of the Insured claimant The Company shall be subrogated to and be entiffad to all rights and remedies that the Insured claimant would have had against any person or property in respect to the claim had this policy not been issued If requested by the Company the insured claimant shall transfer to the Company all rights and remedies against any person or property necessary In order to perfect this right of subrogation The insured claimant shall permit the Company to sue compromise or Settle In the name of the Insured claimant and to use the name of the Insured claimant in any transaction or litigation involving these rights or remedies II a payment on account of a claim does not fully cover the loss of the Insured claimant the Company shall be subrogated to these rights and remedies In the proportion that the Company s payment bears to the whole amount of the loss If loss should result from any act of the insured claimant as stated above that act shall not Vold this policy but the Company In that event shalt be required to pay only that pert of any losses insured against by this policy that shall exceed the amount If any lost to the Company by reason of the impairment by the insured claimant of the Company s right of subrogation (b) The Company a Rights Against Non Insured Obligors The Company right of subrogation against non insured obligors shall exist and shall include without limitation the rights of the insured to indemnities guaranties other policies of Insurance or bonds notwihstanding any terms or conditions contained in those Instruments that provide for subrogation rights by reason of this policy 14 ARBITRATION Unless prohibited by applicable law or unless this arbitration section is deleted by specific provision in Schedule B of this policy either the company or the Insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association Arbitrable matters may Include but are not limited to any controversy or claim between the Company and the Insured arising out of or relating to this policy any Service of the Company In connection with Its Issuance or the breach of a policy provision or other obligation All arbitrable matters when the Amount of Insurance Is $1 000 000 or leas SHALL BE arbitrated at the request of either the Company or the Insured unless the insured Is an Individual person (as distinguished from a corporation trust partnership association or other legal entity) All arbitrable matters when the Amount of Insurance is In excess of $1 000 000 shall be arbitrated only when agreed to by both the Company and the Insured Arbitration pursuant to this policy and under the Rules In effect on the date the demand for arbitration Is made or at the option of the insured the Rules In effect at Date of Policy shall be binding upon the parties The award may include attorneys fees only if the laws of the state In which the land is located permit a court to award attorneys fees to a prevailing party Judgment upon the award rendered by the Arbitrators) may be entered In any court having jurisdiction thereof The Isw of the anus of the land shall apply to an arbitration under the Title Insurance Arbitration Rules A copy of the Rules may be obtained from the Company upon request 16 LIABILITY LIMITED TO THIS POLICY POLICY ENTIRE CONTRACT (a) This policy together with all endorsements it any attached hereto by the Company Is the entire policy and contract between the insured and the Company In interpreting any provision of this policy this policy shell be construed as a whole (b) Any claim of loss or damage whether or not based on negligence and which arise out of the status of the title to the estate or Interest covered hereby or by any 9chon asserting Such claim shall be restricted to this policy (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President a Vice President the Secretary and Assistant Secretary or validating officer or authorized signatory of the Company 16 SEVERABILITY In the event any provision of the policy is held invalid or unenforceable under applicable law the policy shall be deemed not to include that provision and all other provisions shall remain In full force and effect 17 NOTICES, WHERE SENT All notices required to be given the Company and any statement in writing required to be fumished the Company shall include the number of this policy and shall be addressed to the Company at 10010 San Pedro Suite 800 San Antonio Texas 78216 3895 COMPLAINT NOTICE Should any dispute arise about your premium or about a claim that you have filed, contact the agent or write to the Company that Issued the policy If the problem Is Inot resolved you oleo may write the Texas Department of Insurance, P 0 Box 149091, Austin, TX 78714.9091, Fox No (512) 4761771 This notice of complaint procedure le or InformaUon only and time not become a part or condition of this policy R-03 1000: 278. 00 OWNER POLICY OF TITLE INSURANCE SCHEDULE A GF No.t 97-21198 Policy No.: 502345 Amount of Insurances $8,000.00 Premiums $278.00 Date of Policyt January 23, 1998 at 3t05 PH 1. Name of Insureds CITY OF DENTON, TEXAS Property Catg.: L County Codes 121 Issued with Policy No. 2. The estate or interest in the land that is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is insured as vested in: CITY OF DENTON, TEXAS 4. The land referred to in this policy is described as followes All that certain tract of land, lying and being situated in the David Hough Survey, Abstract No. 646, Denton County, Texas, described more specifically in Exhibit "A" attached hereto and incorporated herein by reference for all purposes. Alamo Title Insurance of Texas Den�tex Title Company Authorized Countersignature FORK T-1: Owner Policy -Schedule A Effective January 1, 1993 EXHIBIT "A" SO -FOOT ADDITSONAL RZORT OF "Ay ALONG MAYNILL ROAD FINLD NOTNB to all that certain tract of land situated in the D. Rough Survey Abstract Number 646 in the City and County of Denton, Texas and being a part of the 19.969 aare tract described in the dead from F D.I.C. to Robert P. Donnelly recorded in Volume 3394, Page 909 of the Real Property Records of Denton County, Texasv the subject tract being 50 feet wide. Kest of and adjacent to the fence along the west side of Waybill Road and more particularly described as follows NRg1NWZNg for the Northeast corner of the tract being described herein, at a fence career post found on the west side of Waybill Road on the North line of the Donnelly tract. Booth 87 Degrees 34 Minutes 46 Seconds went a distance of 32.3 feet from a 1/2 inch iron red found at the Northeast Corner thereof* TMZXCN South 01 Degrees 41 Minutes 12 Seconds went along the fence on the wont .side of Waybill read a distance of 969.90 feet to the South line of the Donnelly Tract South 87 Degrees 11 Minutes 30 Seconds went a distance of 36.5 feet from an iron rod found at the Southeast corner thereofs TBSIICI{ South 87 Degrees 14 Minutes 04 Seconds west with the South line of the Donnelly tract a distance of $0.13 tests TNNNI North 01 Degrees 4 Minutes 12 Seconds Neat, 90 feet west of and parallel with the fence an the west side of Waybill road, a distance of 870.21 feet to the North line of the Donnelly Tracts TBaNf.'s North 87 Degrees 34 Minutes 46 Seconds Rant along a fence with the North line of the Dannelly tract a distance of $0.13 feet to PLACN OF MGX WM and enclosing 0.999 of an save of land. G. F. No.: 97-21198 Policy No.: 502345 OWNER POLICY OF TITLE INSURANCE SCHEDULE B EXCEPTIONS FROM COVERAGE This Policy does not insure against lose or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by reason of the terms and conditions of the leases or easements insured, if any, shown in Schedule A and the following matters: 1. The following restrictive covenants of record intemized below (the Company must either insert specific recording data or delete this exception): This exception is hereby deleted in its entirety. 2. Any diectepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any, of any spouse of any insured. 4. Any titles or rights asserted by anyone, including, but not limited to, persons, the public, corporations, governments or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs or oceans, or b. to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled -in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or a. to the area extending from the line of mean low tide to the line of vegetation, or the right of access to that area or easement along and across that area. 5. Standby fees, texas and assessments by any taxing authority for the year 1998 and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership. 6. The following matters and all terms of the documents creating or offering evidence of the matters (We must insert matters or delete this exception): a. Rights of parties in possession. b. This policy insures real estate only and does not insure title to any removables which may be situated thereon. c. Rights of parties in possession. (On OTP only) d. Any visible and apparent easements over and across said property, the existence of which does not appear of record. a. Any part or portion of the herein described property, lying within the boundaries of a public or private road or right of way. f. Any outstanding oil, gas and other mineral interest owned by others of record in the office of the County Clerk of Denton County, Texas, including, but not limited to the following: Alamo Title Insurance of Texas Form T-1: Owner Policy -Schedule B Effective January 1, 1993 G.F. No.: 97-2119S CONTINUATION OF SCHEDULE B Policy No.s 502345 Lease between J.E. Shilg and Bayview, Oil Corporation filed Aug. 16, 1960, and recorded in Volume 4599 Page 15, Deed Records; said lease assigned to Carter -Gifford Oil Company at al by instrument recorded in Volume 461, Page 294, Deed Records. *Title to said mineral leases/reservations have not been researched subsequent to date of document. g. The following easements, recorded in the Dead Records of Denton County, Texas, and granted to Texas Power and Light Company: 1. Volume 1909 Page 620 2. Volume 336, Page 347 3. Volume 336, Page 583 4. Volume 391, Page 169 5. Volume 658, Page 342 h. Easement granted to Dallas & Wichita Rail Road Company from David Hough at ux, by instrument filed Oct. 29, 1880 and recorded in Volume P, Page 466, Dead Records, Denton County, Texas. i. Easement granted to Sinclair Refining Company from G.H. Brammer at ux, by instrument filed Dec. 189 1947 and recorded in Volume 341, Page 202, Deed Records, Denton County, Texas. Said easement assigned to Sinclair Pipleline Company by instrument recorded in Volume 367, Page 242, Dead Records of Denton County, Texas; and amended by Agreement recorded in Volume 1989, Page 360, Deed Records of Denton County, Texas. J. Easement granted to Brazos River Transmission Electric Cooperative, Inc. from G.H. Grammer, by instrument filed Oct. 24, 1949 and recorded in Volume 357, Page 45, Deed Records, Denton County, Texas. k. Easement granted to the City of Denton from R.O. Beasley at ux, by instrument filed Dec. 139 1955 and recorded in Volume 417, Page 581, Deed Records, Denton County, Texas. 1. Easement granted to John D. Putnam at al from J.E. Shilg at ux, in Warranty Deed filed Aug. 09, 1971 and recorded in Volume 626, Page 573, Deed Records, Denton County, Texas. m. Easement granted to the City of Denton from Denton-Mayhill Joint Venture, by instrument filed May 29, 1986 and recorded in Volume 1894, Page 280, Real Property Records, Denton County, Texas. Alamo Title Insurance of Texas Form T-1: Owner Policy -Schedule B Effective January 1, 1993