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HomeMy WebLinkAbout2010-151S-V. gal\Our Documents\0rdinances\10\Fuller RE Purchase Contract -Eagle Dr Drainage - Ph 1 -draft ordinance PHW 06032010.doc ORDINANCE NO. 2O 10-151 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT OF SALE BETWEEN THE CITY OF DENTON AND ODIS J. FULLER, JR. AND WIFE, KATHY A. FULLER AND ANY OTHER DOCUMENTS NECESSARY TO ACQUIRE TWO TRACTS, ONE BEING APPROXIMATELY 0.377 ACRE OF LAND, THE OTHER BEING APPROXIMATELY 0.049 ACRE OF LAND, BOTH LOCATED IN THE WILLIAM LOVINTG SURVEY, ABSTRACT NUMBER 759, CITY AND COUNTY OF DENTON, TEXAS (THE "PROPERTY"); AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager or his designee is hereby authorized to execute a Contract of Sale, between the City of Denton and Odis J. Fuller, Jr. and wife, Kathy A. Fuller, substantially in the form attached hereto and made a part hereof as Exhibit "A" (the "Contract"), with a purchase price of $285,545.00 plus closing costs as prescribed in the Contract, and any other documents necessary for the acquisition of the Property, as more particularly described therein. The Property is being acquired for storm water drainage improvements. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. -PASSED AND APPROVED this the /J-*day of )2010. MARK A. B RRO S YOR ATTESTED: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY EXHIBIT A CONTRACT OF SALE STATE OF TEXAS § COUNTY OF DENTON § . This Contract of Sale (the Contract) is made this _ day of June, 2010, effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date"), by and between Odis Fuller, Jr. and Kathy A. Fuller (collectively referred to herein as "Seller") and the CITY OF DENTON, TEXAS, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns those certain lands being more particularly described as Tract I on Exhibit "A" and Tract II on Exhibit "B", attached hereto and made a part hereof for all purposes, being located in Denton County, Texas (together the "Land"); and WHEREAS, Seller desires to sell to City, and City desires to buy from Seller, the Land, subject to the reservations made herein, together with any and all rights or interests of Seller in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances to the Land (collectively, the "Property"). ARTICLE I SALE OF PROPERTY For the consideration hereinafter set forth, and upon the terms, conditions and provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees to purchase from Seller, the Property. Seller, subject to the limitation of such reservation made herein, shall reserve, for themselves, their heirs, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Seller, their heirs, successors and assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation,_ use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas) that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances (except oil and gas) which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1-980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Two Hundred Eighty Five Thousand Five Hundred Forty Five Dollars and No/100 ($285,545.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of Ten Thousand and No/100 Dollars ($10,000.00), as Earnest Money (herein so called) with Silver Star Title, LLC dba Sendera Title, 958 South Highway 377 South, Suite 100, Aubrey, TX 76227, (the "Title Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within fourteen (14) calendar days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non-refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. Contract of Sale Page 2 of 21 ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller, at Seller's sole cost and expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by Title Company. The Title Commitment shall set forth the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights -of -way, encroachments, or any other outstanding claims, interests, estates or equities of any nature (each of which are referred to herein as an "Exception"). (b) Along with the Title Commitment, Seller shall also cause to be delivered to Buyer, at Seller's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions, including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Buyer may cause to be prepared at Buyer's expense, a current on the ground ALTA survey of the Property (the "Survey"). The Survey may include but not be limited to, a depiction of the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey may further describe the size of the Property, in acres, and contain a metes and bounds description thereof. Seller shall furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions or amended or revised survey(s) as required by the Title Company in order to amend the survey exception as required by Section 3.05 below. The description of the Property as set forth in the Survey, at the Buyer's election, shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. Contract of Sale Page 3 of 21 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, said extension to not exceed an additional thirty (30) days, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions. The Title Policy may contain only the Permitted Exceptions and shall contain no other exceptions to title, with the standard printed or common exceptions amended or deleted as follows: (a) survey exception must be amended if required by Buyer to read "shortages in area" only (although Schedule C of the Title Commitment may condition amendment on the presentation of an acceptable survey and payment, to be borne solely by Seller, of any required additional premium); (b) no exception will be permitted for "visible and apparent easements" or words to that effect (although reference may be made to any specific easement or use shown on the Survey, if a Permitted Exception); (c) no exception will be permitted for "rights of parties in possession"; (d) no liens will be shown on Schedule B. Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception it deems material, in its sole discretion. Contract of Sale Page 4 of 21 ARTICLE IV FEASIBILITY REVIEW PERIOD AND IMPROVEMENTS 4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in Buyer's sole and absolute discretion, during the period commencing with the Effective Date of this Contract and ending thirty (30) calendar days thereafter (the "Absolute Review Period"), based on such tests, examinations, studies, investigations and inspections of the Property the Buyer deems necessary or desirable, including but not limited to studies or inspections to determine the existence of any environmental hazards or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and economic feasibility studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any and all non -confidential and non -privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any, part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Article V, Section 5.02(a). (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. Contract of Sale Page 5 of 21 (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as. of the Closing, and the Property will be subject to no such liens. (h) Seller has not contracted or entered into any agreement with any real estate broker, agent, finder, or any other party in connection with this transaction or taken any action which would result in any real estate broker commissions or finder's fee or other fees payable to any other party with respect to the transactions contemplated by this Contract. (i) With the exception of those findings in the Phase I Environmental Site Assessment prepared by W & M Environmental Group, Inc. dated November 4, 2009 and the Limited Phase II Investigation prepared by W & M Environmental Group, Inc. dated January 6, 2010, both of which have been provided to Buyer and Seller, to the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance on or from the Property. As used in this Contract, "Hazardous Substance" means and includes all hazardous and toxic substances, waste or materials, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos -containing material, petroleum products and raw materials that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, and state superlien and environmental clean-up statutes and all rules Contract of Sale Page 6 of 21 and regulations presently or hereafter promulgated under or related to said statutes, as amended. 0) Intentionally Omitted. 5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, prior to the Effective Date hereof, or within ten (10) days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"). (ii) All environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto, with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (i) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing concerning or affecting the Property. (iii) Not take, or omit to take, any action that would result in a violation of the representations, warranties, covenants, and agreements of Seller. (iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or to the Property, or create, or permit to exist, any lien, encumbrance, or charge thereon. (c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law, from all loss, liability, and expense, including, without limitation, reasonable attorneys' fees, arising or incurred as a result of any liens or claims resulting from Contract of Sale Page 7 of 21 labor or materials furnished to the Property under any written or oral contracts arising or entered into prior to Closing. 5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the General Warranty Deed, as described in Article VII, Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, at Seller's sole cost and expense (except as herein expressly provided to the contrary), all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned, or is the subject of condemnation, eminent domain, or other material proceeding, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined that the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Contract of Sale Page 8 of 21 Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the offices of the Title Company and shall be accomplished through an escrow to be established ,with the Title Company, as escrowee. The Closing Date (herein sometimes called), shall occur ten (10) days following the completion of all conditions precedent to Buyer's performance of this Contract, as set forth in Article VI, hereof, but no later than June 30, 2010, or as mutually agreed upon by Buyer and Seller. 7.02 Items to be Delivered at the Closing. (a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or the Title Company, at the expense of the party designated herein, the following items: (i) The Title Policy, in the form specified in Article III, Section 3.05; (ii) The General Warranty Deed, substantially in the form as attached hereto as Exhibit "C", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; (iii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. (b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the following items: (i) The sum required by Article II, Section 2.01, less the Earnest Money and interest earned thereon, in the form of certified or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract, the provisions of this Article VII, Section 7.03 shall survive the Closing. The following item shall be adjusted or prorated between Seller and Buyer with respect to the Property: Contract of Sale Page 9 of 21 (a) Ad valorem taxes relating to the Property for the calendar year in which the Closing shall occur shall be prorated between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration shall be based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. If Seller changes or has changed in the past the use of the Property prior to Closing, resulting in the assessment of additional taxes, Seller will pay the additional taxes. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs, expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be allocated between the parties in the customary manner for closings of real property similar to the Property in Denton County, Texas ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or (iii) Seller fails to deliver at Closing, the items specified in Article VII, Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do either one of the following: Contract of Sale Page 10 of 21 (i) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; or (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment. 8.02 Buyer's Default and Seller's Remedies. (a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract pursuant to the terms hereof prior to Closing. (b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and exclusive remedy for the default, may terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile, and (b) on the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: Odis Fuller, Jr. 433 Pine Hills Drive Frisco, TX 75234-1042 BUYER: City of Denton Paul Williamson Real Estate and Capital Support 901-A Texas Street Denton, Texas 76209 Telecopy: (940) 349-8951 Contract of Sale Page 11 of 21 Copies to: For Buyer: Richard Casner, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 3 82-7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. This Contract is performable in, and the exclusive venue for any action brought with respect hereto, shall lie in Denton County, Texas. 9.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any damage or destruction to any improvement located on the Land shall occur prior to Closing, or if any condemnation or any eminent domain proceedings are threatened or initiated that might result in the taking of any portion of the Property, Buyer may, at Buyer's option, do any of the following: (a) Terminate this Contract and withdraw from this transaction without cost, obligation or liability, in which case the Earnest Money shall be immediately returned to Buyer; or (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any (i) in the case of damage or destruction, any insurance proceeds, together with the deductible amount under Seller's policy or policies; and (ii) in the case of eminent domain, proceeds paid for the Property related to the eminent domain proceedings. If Buyer makes this election, the Closing shall be held on the tenth (10) calendar day after election is made to close and receive the proceeds described herein. Buyer shall have a period of ten (10) days after receipt of written notification from Seller Contract of Sale Page 12 of 21 on the final settlement of all condemnation proceedings or insurance claims related to damage or destruction of any improvement located on the Property, in which to make Buyer's election. 9.06 Further Assurances. In addition to the acts and deeds recited in this Contract and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as are reasonably necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary contained in this Contract, the provisions of this Article IX, Section 9.06 shall survive Closing. 9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time is of the essence with respect to this Contract. 9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are incorporated in and made a part of, this Contract for all purposes. 9.09 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to the Director of Water Utilities of Buyer, or his designee. 9.10 Expiration of Offer. The execution of this Contract by Seller constitutes, subject to the terms hereof, an irrevocable offer to sell the Property to Buyer. Unless by 5:00 p.m. on June 18, 2010, (i) this Contract is accepted by Buyer by action of the City Council of Buyer; and (ii) that certain Release and Settlement Agreement, by and between the Buyer and Denton Bible Church, is accepted by Buyer, by action of the City Council of Buyer, and Denton Bible Church, the offer of this Contract shall be automatically revoked and terminated. SELLER: By: O� ODIS FULL R, JR. SELLER: By: A t KATHY FULLER 10. Executed by Seller on the day of 2010. Contract of Sale Page 13 of 21 BUYER: By: GE R C. CAMPBELL, CITY MANAGER Executed by Buyer on the /5—/e day ofL2"e&2010. ATTEST: JENNIFER WALTERS, CITY SECRETARY oil APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: ��e C Contract of Sale Page 14 of 21 RECEIPT OF AGREEMENT BY TITLE COMPANY By its execution below, Title Company acknowledges receipt of (1) an executed copy of this Contract. Title Company agrees to comply -with, and be bound by, the terms and provisions of this Contract and to perform its duties pursuant to the provisions of this Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any regulations or forms promulgated thereunder. TITLE COMPANY: Silver Star Title, LLC dba Sendera Title 958 Highway 377 South, Suite 100 Aubrey, Texas 76227 IMa Printed Name: Title: Contract receipt date: 32010 Contract of Sale Page 15 of 21 EXHIBIT "A" to Contract of Sale Legal Description TRACT ONE: All that certain 0.377 acre tract, or parcel of land situated in the City of Denton, Denton -County, Texas; said tract being the same tract_ as shown by deed to James B. flargadon recorded in Volume 659, page 421,-of the Deed Records of Denton County, Texas, and being part of Lot 1, Block D, of the Blount Addition'to the City of Denton, Texas, a's showwn by the plat recorded in the'Plat Records of Denton County, Texa-s,•and being more particularly described as follows: 'BEGINNING for the Northeast corner of the. -herein described tract at the Northeast corner of said Lot 1, Block D, Blount Addition, -an "X" cut in concrete; THENCE South '00° 101 20" East a distance of 10.0. 0 leet .to the Southeast corner of'said Lot 1, an iron pin found; THENCE Soutfi-'.89° 17' 'West with the South line of said lot a distance of 164.2 feet to an "X" found in a concrete lined drainage chann.el-, b.eing the Southeast corner of the Community Natural Gas Company Tract; THENCE North with the East line of said Gas Company Tract, 100.0 feet to a'point for corner in the North line of said Lot 1; THENCE North 890 16' 30" East 163.9 feet to the Point of Beginning. Contract of Sale Page 16 of 21 EXHIBIT "B" to Contract of Sale Legal Description TRACT TI'V0: ��ll,� �•� VOt.LU 00 I -ACE 14 All that certain O. G49 acre tract, or parcel of land situated in the IV. Loving SurvcCy, A-159, Denton County, Texas, said tract being part of *a tract ;shown by deed to James Elargad.on and recorded in Volume 659, pago'423, of the Dood Rccords of Denton County, Texas, and being more particularly described as follows: B"GINl� ING for the Northeast corner of the tract being described herein. at an' iroii pin found at the Northeast corner of said Hargadon tract; TijEXCE South 69.5 feet to an iron pin found at the Southeast corner of said Fiargadon tract; THENCE South 89° 17' West with the earth edge of a concrete wall 31..0 feet tc a►i "X" cut in concrete; THENCE North 69.5 feet to an iron pin ,set in the ground on the North line of said Hargaden's tract; TUNCE North 890 lc' 30" East 31.0 feet to Point of Beginning. Contract of Sale Page 17 of 21 EXHIBIT "C" to Contract of Sale NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. GENERAL WARRANTY DEED STATE OF TEXAS § COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS That Odis Fuller, Jr. and Kathy A. Fuller, (collectively herein called "Grantor"), for and in consideration of the sum of TEN AND N0/100 DOLLARS ($10.00), and other good and valuable consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee"), 215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY unto Grantee, subject to the reservation made herein, all the real property in Denton County, Texas being particularly described on Exhibit "A", attached hereto and made a part hereof for all purposes, and being located in Denton County, Texas, together with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights of way and together with all and singular the improvements and fixtures thereon and all other rights and appurtenances thereto (collectively, the "Property"). Grantor, subject to the limitation of such reservation made herein, reserves, for themselves, their heirs, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Property. Grantor, their heirs, successors and Contract of Sale Page 18 of 21 assigns shall not have the right to use or access the surface of the Property, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Property for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas) that any reasonable extraction, mining or other exploration and/or production method, operation, process or procedure would consume, deplete or destroy the surface of the Property; and (ii) all substances (except oil and gas) which are at or near the surface of the Property. The intent of the parties hereto is that the meaning of the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980). As used herein, the term "surface of the Property" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. This conveyance is subject to the following: [Insert Permitted Exceptions, if any] Contract of Sale Page 19 of 21 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof. EXECUTED the day of , 2010. By: By: THE STATE OF § COUNTY OF § ODIS FULLER, JR. KATHY A. FULLER This instrument was acknowledged before me on , 2010 by Odis Fuller, Jr. Notary Public, State of Texas My commission expires: THE STATE OF § COUNTY OF § This instrument was acknowledged before me on , 2010 by Kathy A. Fuller. Notary Public, State of Texas My commission expires: Contract of Sale Page 20 of 21 Exhibit "A" To General Warranty Deed Legal Description TRACT ONE: All that certain 0.377 acre tract, or parcel of land situated in the City of Denton, Denton -County, Texas; said tract being the same tract_ as shown by deed to James r. llargadon recorded in Volume 659,-page 421,- of the Deed Records of Denton County, Texas, and being part of Lot 1, Block D, of the Blount Addition'to the City of Denton, Texas, a's showwn by the plat recorded in the- Plat Records of Denton County, Texa-s,•and being more particularly described as folloivs: BEGINNING for the Northeast corner of the. -herein described tract at the Northeast corner of said Lot 1, Block D. Blount Addition,•an "X" cut in concrete; THENCE South '00' 10' 20" East a distance of 10.0.0 -eet .to the Southeast corner of'said Lot 1, an iron pin found; THENCE Soutfi-'.89° 17''West with the South line of said lot a distance of 164.2 feet to an "X" found in a concrete lined drainage chann.el•, b.eing the Southeast corner - of the Community Natural Gas Company Tract; THENCE North with the East line of said Gas Company Tract, 100.0 feet to a•point for corner in the North line of said Lot 1; THENCE North 890 16' 30" East 163.9 feet to the Point of Beginning. TRACT TI'V0: v .q VOL i' 5 IAGE l All that certain 0.049 acre tract, or parcel. of !and situated in the W. Loving Survcy, A-159, Denton County, Texas, said tract he-ing part of -a tract'shown by deed to James llargad.on and recorded in Volume M , pago 423, of tho Decd Records of Denton County, Texas' and being noro'particularly described as follows: •. , I3►�Gi>�?v'I1vG for the Morthe-""ast corner of the trn.ct being described herein. at an ' iro?i lain found at the Northeast corner of said Hargadon tract; TICEN-CE South 69.3 feet to an iron pin found at the Southeast corner of. said Nargadon tract; THENCE South 890 17' West with the North edge of a concrete wall 31.0 feet to an "'X" cut in concrete; TIIENCE North 69.5 feet to an iron pin .set in the ground on the North line of said HargadcnIs tract; TUNCE North 890 lc' 30" East 33.0 feet to Point of Beginning. Contract of Sale Page 21 of 21