HomeMy WebLinkAbout2014-208sAlegal\our documents\ordinances\14\north locust properties settlement ordinance.doc
ORDINANCE NO. 201-20
AN ORDINANCE OF THE CITY OF DENTON, TEXAS FOR THE PURCHASE OF A 2.493
ACRE TRACT OF LAND BEING GENERALLY SITUATED IN THE T. TOBY SURVEY,
ABSTRACT NO. 1288, CITY OF DENTON, DENTON COUNTY, TEXAS (`PROPERTY
INTEREST) FOR THE PUBLIC USE OF EXPANSION, CONSTRUCTION, OPERATION,
MAINTENANCE, AUGMENTATION, AND IMPROVEMENT OF ELECTRIC
TRANSMISSION AND DISTRIBUTION LINES, FACILITIES, STRUCTURES, AND
SUBSTATIONS FOR THE AMOUNT OF FOUR HUNDRED THIRTY FOUR THOUSAND
THREE HUNDRED EIGHTY DOLLARS AND NO/100 ($434,380.00) FROM NORTH
LOCUST PROPERTIES, L.L.C., A TEXAS LIMITED LIABILITY COMPANY
(`OWNER);AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE
THE NECESSARY AGREEMENT AND DOCUMENTS FOR THE PURCHASE;
AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the City Council of the City of Denton, Texas (Cite has approved plans for
the construction of multiple electric transmission line and substation projects (DME Expansion
Projects);
WHEREAS, the DME Expansion Projects serve the public interest of the citizens of the
City by continuing to provide reliable electric service through electric utility infrastructure
expansion and improvements;
WHEREAS, numerous real property interests need to be acquired by the City to construct
the DME Expansion Projects;
WHEREAS, the City needs to acquire a 2.493 acre tract of property owned by North
Locust Properties, L.L.C., a Texas limited liability company (referred to herein as"Owner for the
DME Expansion Projects (`Property Interest); the Property Interest is generally situated in the T.
Toby Survey, Abstract No. 1288, City of Denton, Denton County, Texas, and is more fully
described and depicted in Exhibit"A; which are attached to the Contract of Sale;
WHEREAS, the Property Interest is to be used for the public use of expansion,
construction, operation, maintenance, augmentation, and improvement of electric transmission
and distribution lines, facilities, structures, and substations;
WHEREAS, the City made both an Initial Offer and Final Offer to the Owner to purchase
the Property Interest;
WHEREAS, the Owner has made a counteroffer to the Final Offer of City;
WHEREAS, the City is amenable to the counteroffer, and finds that it is in the best
interest to agree to it; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The recitations and findings contained in the preamble of this ordinance
are incorporated by reference.
SECTION 2. The City Council finds that:
a. The DME Expansion Projects serve the public interest of the citizens of
the City by continuing to provide reliable electric service through electric utility
infrastructure expansion and improvements; and
b. The acquisition of the Property Interest is necessary for the public use of
expansion, construction, operation, maintenance, augmentation, and improvement of
electric transmission and distribution lines, facilities, structures, and substations as
required by the DME Expansion Projects.
SECTION 3. The City Manager, or his designee, is authorized to accept the Owner's
counteroffer to sell the Property Interest for the purchase price of Four Hundred Thirty -Four
Thousand Three Hundred Eighty Dollars and no/100 ($434,380.00).
SECTION 4. The City Manager, or his designee, is authorized to (a) execute (i) the
Contract of Sale, by and between the City and Owner, in the form attached as Attachment 1; and
(ii) any other documents necessary for closing the transaction contemplated by the Contract of
Sale; and (b) to make expenditures in accordance with the terms of the Contract of Sale.
SECTION 5. It is the intention of the City Council of the City of Denton, Texas, that if
any phrase, sentence, section, or paragraph of this ordinance shall be declared unconstitutional or
otherwise invalid by final judgment of a court of competent jurisdiction such unconstitutionality
or invalidity shall not affect any of the remainder of this ordinance since the same would have
been enacted by the City Council without the incorporation of the unconstitutional or invalid
phrase, sentence, section or paragraph.
SECTION 6. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the
CHRIS W
2
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:.,_"
APPI VEIL JgTO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
µ�p
BY.
STATE OF TEXAS
COUNTY OF DENTON
CONTRACT OF SALE
NOTICE
YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE
THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT
REGARDING THE CITY OF DENTON'S ACQUISITION OF THE
PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR
AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR
AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CO
a�
��� " `his Contract of Sale (the "Contract") is made this-% day of
U ., 24+3; effective as of the date of execution hereof by Seller, as
defined hereinf (the "Effective Date"), by and between North Locust Properties, L.L.C., a
Texas limited liability company (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 that certain tract of land being more particularly
described and depicted on Exhibit "A", attached hereto and made a part hereof for all
purposes, being located in Denton County, Texas (the "Land"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
the Land, 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, and subject to the reservations herein, 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
itself, its successors and assigns all oil, gas and other minerals in, on and under and that
may be produced from the Property. Seller, its 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, tank's 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 include oil, gas and all associated
hydrocarbons, and shall exclude (i) all substances (except oil, gas and all associated
hydrocarbons) 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.
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 _ Tt1 -ENTY--1-W0-JJ1
Dollff ice"). 31 97 e"}-
2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/l00
Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, LLC, 525
South Loop 288, Suite 125, Denton, Texas, 76205, (the "Title Company"), as escrow
agent, within fourteen (14) calendar days of the Effective Date hereof. 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, Buyer shall deliver to the Title Company, payable to and for the
benefit of 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
Conti -act of Sale
Page 2 of 23
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.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within twenty (20) calendar days after the Effective Date, Seller 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 Buyer's sole cost and expense, true and correct copies of all instruments
that create or evidence Exceptions (the "Exception Documents"), 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, Seller shall
cause to be prepared at Buyer's expense, a current on the ground survey of the Property
(the "Survey"). The contents of the Survey shall be prepared by a surveyor selected by
Buyer and shall include the matters prescribed by Buyer, which 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 shall 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
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
Contract of Sale
Page 3 of 23
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.
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) calendar 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.
3.04.A. Additional Title Commitment. Due to the fact that the effective period
of the Title Commitment shall expire prior to Closing, Seller shall cause to be furnished
to Buyer, no earlier than ninety one (91) calendar days after the Effective Date and no
later than one hundred ten (110) calendar days after the Effective Date, a Title
Commitment ("Updated Commitment"), in the form of the Title Commitment prescribed
by Section 3.01, above. Buyer shall have fifteen (15) calendar days to review and
provide Objections, if any, to the items in the Updated Commitment in the same manner
as prescribed by Section 3.03 related to the Title Commitment. All time periods related
to review and cure of the Objections, waiver of uncured Objections and termination of
this Contract, as set forth in Article III, above, shall be applicable to the Objections by
Buyer to the Updated Commitment, if any, and Closing shall be so extended to
accommodate such review and cure period.
3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a
standard Texas Owner's 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:
Contract of Sale
Page 4 of 23
(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 Buyer, 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.
ARTICLE IV
FEASIBILITY REVIEW PERIOD
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 sixty (60) 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 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
Contract of Sale
Page 5 of 23
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).
(e) The Seller has good and marketable fee simple title to the Property, subject only
to the Permitted Exceptions.
(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) The Seller shall convey the Property free and clear of all debts, liens and
encumbrances,
(i) 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.
(j) To the best of Seller's knowledge, there has not occurred the disposal or release
of any Hazardous Substance to, on or from the Property.
As used in this Contract, "Hazardous Substance" means and includes all
hazardous and toxic substances, waste or materials, chemicals, 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, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state
superlien and environmental clean-up statutes and all rules and regulations
presently or hereafter promulgated under or related to said statutes, as amended.
(k) All Leases, as defined in Article V, Section 5.02(a), shall have expired or
otherwise terminated and any and all tenants or parties occupying the Property
pursuant to the Leases shall have permanently abandoned and vacated the
Property on or before the date of Closing.
(1) The Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer
as follows:
(a) Unless stated otherwise, within ten (10) calendar 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
Contract of Sale
Page 7 of 23
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, grant or permit to be attached or perfected, 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
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 Special 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, 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
Contract of Sale
Page 8 of 23
date of Closing, any portion of the Property has been condemned by an entity other than
Buyer, or is the subject of condemnation, eminent domain, or other material proceeding
initiated by an entity other than Buyer, 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 detennined
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
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 be one hundred and eighty (180) calendar days after the Effective Date,
unless otherwise 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 Special Warranty Deed, substantially in the form as attached hereto as
Exhibit "B", subject only to the Permitted Exceptions, if any, duly
executed by Seller and acknowledged;
Contract of Sale
Page 9 of 23
(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 a check 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 and without limiting the general application of the provisions of Section
5.03, above, 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:
(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 at Closing shall be
based on the amount of taxes due and payable with respect to the Property for the
preceding calendar year. As soon as the amount of taxes levied against the
Property for the calendar year in which Closing shall occur is known, Seller and
Buyer shall readjust in cash the amount of taxes to be paid by each party with the
result that Seller shall pay for those taxes attributable to the period of time prior to
the Closing Date (including, but not limited to, subsequent assessments for prior
years due to change of land usage or ownership occurring prior to the date of
Closing) and Buyer shall pay for those taxes attributable to the period of time
commencing with the Closing Date.
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 and
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.
Contract of Sale
Page 10 of 23
ARTICLE VI11
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 any of
the following:
(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;
(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, whereupon Buyer shall waive title objections, if any, and
accept such title without reduction in Purchase Price on account of title
defects and shall be entitled to assert any rights for damages based on
Seller's representations, warranties and obligations that are not waived by
Buyer by its acceptance of Seller's title; and
(iii) Seek other recourse or relief as may be available to Buyer at or by law,
equity, contract or otherwise.
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
Contract of Sale
Page 1 I of 23
any reason other than a default by Seller under this Contract or termination of this
Contract by Buyer 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 remedies for the default, may, at Seller's sole option, do either
one of the following:
(i) 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; or
(ii) Enforce specific performance of this Contract against Buyer.
ARTICLE IX
MISCELLANEOUS
9.01 Notice. All notices, demands, requests, and other communications required
hereunder shall be in writing, delivered, unless expressly provided otherwise in this
Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be
deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by
telephonic facsimile or hand delivery, and (b) 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: BUYER:
North Locust Properties, L.L.C., City of Denton
a Texas li cited liabdi Paul Williamson
ii Real Estate and Capital Support
a +" "ou , t , 'lo D 901 -A Texas Street
Telecopy/,C - �' �r� Denton, Texas 76209
Telecopy: (940) 349-8951
Copies to:
For Seller:
Telecopy:
For Bum
Scott W. Hickey, Attorney at Law
Kelsey, Kelsey & Hickey, PLLC
P.O. Box 918
Denton, Texas 76202
Telecopy: (940) 387-9553
Contract of Sale
Page 12 of 23
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 the Property shall occur prior to
Closing, or if any condemnation or any eminent domain proceedings are threatened or
initiated by an entity or party other than Buyer 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, all
insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the
Property related to the eminent domain proceedings.
Buyer shall have a period of up to ten (10) calendar days after receipt of written
notification from Seller 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. In the event Buyer elects to
close prior to such final settlement, then the Closing shall take place as provided
in Article VII, above, and there shall be assigned by Seller to Buyer at Closing all
interests of Seller in and to any and all insurance proceeds or condemnation
awards which may be payable to Seller on account of such event. In the event
Buyer elects to close upon this Contract after final settlement, as described above,
Closing shall be held five (5) business days after such final settlement.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract
Contract of Sale
Page 13 of23
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 and without
limiting the general application of the provisions of Section 5.03, above, 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, including without limitation, adjustment of the
Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of
Denton, Texas, to Prank Payne, P.E., City Engineer of Buyer, or his designee.
9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing any such counterpart.
9.11 Business Days. if the Closing Date or the day of performance required or
permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then
the Closing Date or the date of such performance, as the case may be, shall be the next
following regular business day.
9.12 Relocation. Relocation advisory services and relocation financial assistance, if
applicable pursuant to Ordinance No. 2012-073 (the "Relocation Ordinance"), shall be
administered as provided by the Relocation Ordinance, aside and apart from the
transaction contemplated by this Contract.
SELLER:
North Locust Properties, L.L.C.,
a Texas limited liability company
Capacity.,
J)A
Executed by Seller on the 1 day of
Contract of Sale
Page 14 of 23
BUYER:
By _ —--
GEORGE C. CAMPBELL, CITY MANAGER
Executed by Buyer on the ��h day of Ill \ rYl -I% 12013.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
SCOTT W. HICKEY, KELSEY, KELSEY & HICKEY, PLLC
BY:
Contract of Sale
Page 15 of 23
By its execution
on below, Title Company acknowledges receipt of an" executed COI)Y
of this Contract. Title Company agrees to comply with, and be boutid 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 RCMILIC ("ode of 1986, as
amended from time to time, and as further set forth in any regulations or forms
promulgated thereunder.
TITLE COMPANY:
Title Resources, LLC
525 South Loop 288, Suite 125
Denton, Texas 76205
Telephone: (940) 381-1006
Telecopy: (940) 898-0121
in.
Printed Name:
Title:
Contract receipt date:
Contract of Sale
Page 16 of 23
Exhibit "A" Page I
LEGAL DESCRIPTION
. 8 Abstract No 128D.Don�on Cou�y,
BE|NGa2483 acre�rootof|and situated in �hoT� Toby Survey, onao ' . '
Texooand being pmdofaoaUad1148acre baoiofland described inaDeed toNodhLocust proper�es.
LLC.. 'orecorded inDocument Nu'2O10-52O41 ofthe Real Property Records ofDenton County, Texas,
and being more particularly described osfollows:
BEGINNING at a 1/2 inch iron rod found for corner at an interior ell corner of the above cited 11.46 acre
tract, said point being the Northwest corner of aoaKed 3.375 acre tract of land described in a Deed to theCityofDenton Texas,as recorded in Volume 732 Page 072o{the Deed Records of Denton County,
Texaa said point a|a~being at an angle point in the East line of Block C^ per the Final Plat of La
Hacienda Hoi^^^, Phase 1, as recorded in Cobime\VV. PaVe668 of the Plat Records of Denton County,
Texas;
THENCE North 00"10'48" East (North 00"2325" East per said Pbd x+uundad in CnbinatVV. Page 686),
along the East line of said Block Ccf&a Hacienda Heights, Phase |, for o distance of35O.78 fent(390.82
feet per said Plat recorded inCabinet VV Page 868)bmm5/8inch kumrod with cap stamped ''TNP''set for
corner in a non -tangent curve to the right
in the South line of 8eo|| Street. (variable width right-of-way per
said Plat recorded inCabinet VV.Page GS8);
THENCE in an Easterly direction,along the South line ofsaid Beall Street, and along said non-tangent
e10 the right having a central ang|eofO2^31'51'' o radius of387.5O feet, a chord bearing of North
88"47'53'' Eaot, a chord distance
~^ 17.12 feet and an'arc length of 17.12 feet to a 5/8 inch iron rod with
cap stamped ^TNP''set for corner;
THENCE South 89"49'40" East (South 80^34'35^ East per said Plat recorded in Cob|netVV. Page 688).
continuing along the South line ofsaid Beall Gtvuet, fora distance of245.83 feet (Z45.82feet per said Plot
recorded in Cabinet W, Page 666) to a 5/8 inch iron rod with cap stamped "TNP" set for corner;
THENCE South 44^17'24^ East (South 44~03'41^ East per said Plat recorded in CabinetVV. Paga68G).
continuing along the South line of said Beall Stneot, fora distance of28.U7 feet (28.02 feet per said Plat
recorded in Cabinet W, Page 666) to an "X" cut in a concrete drainage structure set for corner;
THENCE South 88°42'18" Eon1 (South 88°32'40" East per said Plat recorded in CabinetVV. Page 606),
continuing along the South line of said Beall Street, for distance of 23.34 feet (23.37 feet per said Plat
recorded inCabinet VV' Page 666) to an "X" cut in a concrete drainage strU_tUre set for corner in the West
164 00' Vu|umue4O0 Page 13o(the Deed Records cd
Unao�No�hLouuo�Stnaot(F�W1�2 h the
|right-of-way\ Northeast �1 46 acre tract bears North
DentonCounty.Texas).fromvv�|o eoaouaveo oono� � �
01"11'10^ East adistance of72.32;
THENCE South 01"11'10" West (South 01^14'40^ East per said Deed recorded in Document No.
201052041) along the VVeotline ofsaid No�hLocust Street (F.N1.2164).for odistance of340.20feet to
a 5/8'inoh iron rod with cap stamped ^TNP^ set for corner at the most Easterly Southeast corner ofsaid
11.46 acre tract, said point also being the Northeast corner of the above cited 3.375 acre tract;
THENCE North 8943`25" vVeaX (North 89°41'09" West per said Deed recorded in Document No.
201052O41) departing the VVaailine of said North Locust Street (F.K8' 2164), and along the South line of
said
-14departingrmtract and the No�hline ofsaid 3.375acre tract, for a distance of2Q$.87feet (299.97feet
per said Deed recorded in Document No. 2010'52041) to the POINT OF BEGINNING, and containing
2,403anrem of land, more or less.
Contract of Sale
Page 17 of 23
Exhibit "A" Paqe 2
..... ... ...
4k
QI'I
Iry f
RIlI I
, Ii itpsf. cc if
fill
all, i
t Yii VA III
4
21.1 4
ii. qfed j
91
�[ $' � Eft � �� S � � � @ j`t y! 9,t t F $� �� t� �a
F1 I
Pf
FRESCA FALLS
$Vj
X
"A A
C)
Of
—7, i`m'6�
N. LUL;Ubl NTHLbT i;
(Ftd, 2164)
Rey
VLid -T P IiCl
-�
ro—
EXHIBIT "B"
to
Contract of Sale
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE
FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUR DRIVER'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS
That North Locust Properties, L.L.C., a Texas limited liability company (herein
called "Grantor"), for and in consideration of the sum of TEN AND NO1100 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, subject to the reservations set forth below, has GRANTED,
SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY,
unto Grantee all the real property in Denton County, Texas being particularly described
and depicted 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
itself, its successors and assigns all oil, gas and other minerals in, on and under and that
may be produced from the Property. Grantor, its successors and assigns shall not have
Contract of Sale
Page 19 of 23
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 include oil, gas and all associated
hydrocarbons, and shall exclude (i) all substances (except oil, gas and all associated
hydrocarbons) 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 t11e earth
and all areas above the surface of the earth.
This conveyance is subject to the following:
(All of those Exceptions from Coverage found on Schedule B of the
Owners Title Policy to which referenced is hereby made for all purposes
and incorporated by reference as is fully set forth herein.)
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
Contract of Sale
Page 20 of 23
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 when the claim is by, through, or under
Grantor but not otherwise.
EXECUTED the day of
GRANTOR:
North Locust Properties, L.L.C.,
a Texas limited liability company
Capacity:
State of Texas §
County of §
2013
This instrument was acknowledged before me on this day of
2013 by as
of North Locust Properties, L.L.C., a Texas limited
liability company on behalf of the said company and in the capacity therein stated.
Upon Filing Return To:
The City oi'Denton-Engineering
Attn: Paul Williamson
901-A Texas Street
Denton, TX 76209
Notary Public, State of
My Commission Expires:
Send Tax Billing Statements To:
The City of Denton
Attn: Finance Department
215 East McKinney Street
Denton, Texas 76201
Contract of Sale
Page 21 of 23
Exhibit "A" Page 1
LEGAL DESCRIPTION
BEING a 2.493 acre tract of land situated in the T. Toby Survey, Abstract No. 1288, Denton County,
Texas, and being part of a called 11.46 acre tract of land described in a Deed to North Locust Properties,
LLC., as recorded in Document No. 2010-52041 of the Real Property Records of Denton County, Texas,
and being more particularly described as follows:
BEGINNING at a 1/2 inch iron rod found for corner at an interior ell corner of the above cited 11.46 acre
tract, said point being the Northwest corner of a called 3.375 acre tract of land described in a Deed to the
City of Denton, Texas, as recorded in Volume 732, Page 972 of the Deed Records of Denton County,
Texas, said point also being at an angle point in the East line of Block C, per the Final Plat of La
Hacienda Heights, Phase I, as recorded in Cabinet W, Page 666 of the Plat Records of Denton County,
Texas;
THENCE North 00°10'49" East (North 00025'25" East per said Plat recorded in Cabinet W, Page 666),
along the East line of said Block C of La Hacienda Heights, Phase I, for a distance of 359.78 feet (359.82
feet per said Plat recorded in Cabinet W, Page 666) to a 5/8 inch iron rod with cap stamped "TNP" set for
corner in a non -tangent curve to the right in the South line of Beall Street, (variable width right-of-way per
said Plat recorded in Cabinet W, Page 666);
THENCE in an Easterly direction, along the South line of said Beall Street, and along said non -tangent
curve to the right having a central angle of 02`31'51", a radius of 387.50 feet, a chord bearing of North
88°47'53" East, a chord distance of 17.12 feet and an arc length of 17.12 feet to a 5/8 inch iron rod with
cap stamped "TNP" set for corner;
THENCE South 89°49'40" East (South 89"34'35" East per said Plat recorded in Cabinet W, Page 666),
continuing along the South line of said Beall Street, for a distance of 245.83 feet (245.82 feet per said Plat
recorded in Cabinet W, Page 666) to a 5/8 inch iron rod with cap stamped "TNP" set for corner;
THENCE South 44°17'24" East (South 44003'41" East per said Plat recorded in Cabinet W, Page 666),
continuing along the South line of said Beall Street, for a distance of 28.07 feet (28.02 feet per said Plat
recorded in Cabinet W, Page 666) to an "X" cut in a concrete drainage structure set for corner;
THENCE South 88042'16" East (South 88"32'46" East per said Plat recorded in Cabinet W, Page 666),
continuing along the South line of said Beall Street, for a distance of 23.34 feet (23.37 feet per said Plat
recorded in Cabinet W, Page 666) to an "X" cut in a concrete drainage structure set for corner in the West
line of North Locust Street (F.M. 2164 - 90' right-of-way per Volume 400, Page 13 of the Deed Records of
Denton County, Texas), from which the calculated Northeast corner of said 11.46 acre tract bears North
01 "11'10" East a distance of 72.32;
THENCE South 01°11'10" West (South 01°14'40" East per said Deed recorded in Document No.
2010-52041), along the West line of said North Locust Street (F.M. 2164), for a distance of 340.29 feet to
a 5/8 inch iron rod with cap stamped "TNP" set for corner at the most Easterly Southeast corner of said
11.46 acre tract, said point also being the Northeast corner of the above cited 3.375 acre tract;
THENCE North 89043'25" West (North 89°41'09" West per said Deed recorded in Document No.
2010-52041), departing the West line of said North Locust Street (F.M. 2164), and along the South line of
said 11.46 acre tract and the North line of said 3.375 acre tract, for a distance of 299.97 feet (299.97 feet
per said Deed recorded in Document No. 2010-52041) to the POINT OF BEGINNING, and containing
2.493 acres of land, more or less.
Contract of Sale
Page 22 of 23
- - -- - -- ------
it
(I Egg g� `i Iy
91
FRESCA FALLS
it i
1W
W1
lot
It
:W:1 N. LOCUST STRE
(F.M. 2164)
... .. . ... ...
wwwi
ki
c:
r