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1997-276C~\DOCS\ORD\HOUGH.ORD Note. Amended by Ordinance No. 97-292 ORDINANCE NO. ¢%-~ AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A REAL ESTATE CONTRACT WHEREIN THE CITY OF DENTON, TEXAS PURCHASES A CERTAIN ONE ACRE TRACT OF LAND SITUATED ADJACENT TO MAYHILL ROAD, BEING PART OF AN 19.969 ACRE TRACT IN THE DAVID HOUGH SURVEY, ABSTRACT NUMBER 646, FOR THE FUTURE WIDENING OF MAYHILL ROAD, AND ESTABLISHING OPTIONS FOR THE ACQUISITION OF ADDITIONAL REAL PROPERTY AS MAY BE REQUIRED; AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL DOCUMENTS NECESSARY TO CONSUMMATE THE PURCHASE OF REAL PROPERTY IN ACCORDANCE WITH SAID CONTRACT; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING THE ESTABLISHMENT OF A SINKING FUND THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: ~ That the City Manager is hereby authorized to execute a Real Estate Contract by and between the C~ty of Denton as purchaser and Robert P. Donnelly, as seller, a copy of which Contract is attached hereto and incorporated by reference herein. SE TIO~ That the City Manager is hereby authorized to execute any and all documents necessary to consummate the purchase of real property in accordance with said Contract. ~ That the C~ty Council hereby authorizes the expenditure of funds as provided in the Contract, as well as the establishment of a sinking fund providing for the possible exercise of any option contained in said Contract ~ That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the ¢~-~ day of ~, 1997 ATTEST .' JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY REAL ESTATE CONTRACT STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT Is made by and between Robert P Donnelly (hereinafter referred to as "Seller") and the CITY OF DENTON, TEXAS, a home rule mumc~pahty, of Denton County, Texas (hereinafter referred to as "Purchaser"), upon the terms and condit~ons set forth herein PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for, that certmn tract of land located ~n the City of Denton, Denton County, Texas, containing one (1) acre of land, more or less, and being depicted ~n the map attached hereto as Exhibit A, which Is incorporated here~n by reference, and as more particularly described m Exhibit B attached hereto and incorporated here~n by reference for all purposes, together w~th all and singular the rights and appurtenances pertaimng to the property, ~ncluding any right, t~tle and ~nterest of Seller m and to adjacent streets, alleys or nghts-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together w~th any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, prov~s~ons, and condmons hereinafter set forth PURCHASE PRICE 1 Amount of Purchase Price The purchase price for the Property shall be the sum of $8,000 00 cash and the following further consideration a the payment by Purchaser of a survey of the entire 19 969 acre tract described m Exhibit "C" hereto, and b the payment by Purchaser of the cost of a prehm~nary plat perta~mng to the entire 19 969 acre tract described m Exhibit "C" hereto as well as to the 1 acre tract of land described m Exhibit "B" hereto, and c the reimbursement by Purchaser of the cost of an applicable braiding permit to be apphed for by Seller, together w~th Purchaser's agreement to assist and fully cooperate w~th Seller dunng the building permitting process 2 P~yment Of Purchase Price The full amount of the purchase price shall be payable m cash at the closing 3 Condmon Precedent Seller and Purchaser agree that the consummation of th~s Purchase and Sale and the payment of the Purchase Price provided for hereto, are subject to and conditional upon the ~ssuance of Sohd Waste Landfill Permit No 1590-A by the Texas Natural Resource Conservation Commission to Purchaser PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived m whole or in part by Purchaser at or prior to the closing 1 Preliminary Title Report Within thirty (30) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a preliminary title report (the "Title Report") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc, affecting the Property Purchaser shall give Seller written notice on or before the expiration of fifteen (15) days after Purchaser receives the Title Report that the condition of title as set forth in the title binder is or is not satisfactory, and in the event Purchaser states the condition is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser In the event Seller is unable to do so w~thm thirty (30) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes, otherv~se, this condmon shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes 2 Survey Purchaser shall, at Purchaser's sole cost and expense, obtmn a current survey of the Property, prepared by a duly licensed Texas land surveyor chosen by and acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all improvements,, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set further the number of total acres comprising the Property, together with a metes and bounds description thereof Purchaser will have twenty (20) days after receipt of the survey to review and approve the survey In the event the survey is unacceptable, then Purchaser shall within the twenty (20) day period, give Seller written notice of this fact Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser In the event Seller is unable to do so within twenty (20) days after receipt of written notice, Purchaser may terminate tlus Agreement, and the Agreement shall thereupon be null and void for all purposes Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey 3 ~ Seller shall have performed, observed, and complied with all of the covenants, agreements, and condalons required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date P~e2 1 There are no parties in possession of any port~on of the Property as lessees, tenants at sufferance, or trespassers 2 Except for the prior actions of Purchaser, there is no pending or threatened condemnation or slmtlar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and behef of Seller ~s any such proceeding or assessment contemplated by any governmental authority 3 Seller has comphed w~th all apphcable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof 4 To the best of the Seller's knowledge, there are no toxin or hazardous wastes or materials on or w~thm the Property Such toxic or hazardous wastes or materials include, but are not hm~ted to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Enwronmental Response Compansatmn and Liability Act (CERCLA), as amended REPRESENTATIONS OF PURCHASER There ~s no pending or threatened condemnatton or similar proceeding or assessment affecting the Property, or any part thereof Purchaser ~ntends to secure the Property for the purpose ofwtdenmg ex~stmg Mayhfll Road CLOSING The closing shall be held at the office of Dentex T~tle Company, 300 North Elm, State 101, Denton, Texas, within ten (10) days after the Texas Natural Resource Conservation Commlssxon ~ssues Sohd Waste Landfill Permit No 1590-A to Purchaser, or at such txtle company, t~me, date, and place as Seller and Purchaser may mutually agree upon (which date his hereto referred to as the "closing date") CLOSING REQUIREMENTS 1 Seller's Rea_mrements At the closing Seller shall A Dehver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title In fee s~mple to all of the Property, free and clear of any and all hens, encumbrances, conditions, easements, assessments, and restrictions, except for the following 1 General real estate taxes for the year of closing and subsequent years not yet due and payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obhgat~ons hereof, and 3 Any exceptions approved by Purchaser ~n writing Page 3 B Deliver to Purchaser a Texas Owner's Title Policy at Purchaser's sole expense, ~ssued by Dentex Tale Company (the "Title Company"), or such t~tle company as Seller and Purchaser may mutually agree upon, m Purchaser's favor xn the full amount of the purchase price, insuring Purchaser's fee s~mple txtle to the Property, subject only to those title exceptions listed m Closing Requirements hereof, such other exceptions as may be approved m writing by Purchaser, and the standard pnnted exceptmns contmned in the usual form of Texas Owner's T~tle Pohcy, prowded, however 1 The boundary and survey exceptions shall be deleted ~f required by Purchaser and ~f so required, the costs assocmted with same shall be borne by Purchaser, 2 The exception as to restrictive covenants shall be endorsed "None of Record," 3 The exception for taxes shall be hm~ted to the year of closing and shall be endorsed "Not Yet Due and Payable," and 4 The exception as to liens encumbering the Property shall be endorsed "None of Record" C Dehver to Pumhaser possession of the Property on the day of closing 2 l~rchaser's Keqmrements Purchaser shall pay the consideration as referenced in the "Purchase Price" section of this contract at Closing In lmmedmtely avadable funds, and shall further prowde Seller w~th satisfactory wmten proof that the further purchase consideration has been prod, or that firm arrangements have been made regarding such payments 3 Closing Costs Seller shall pay all taxes assessed by any tax jurisdiction through the date of Closing All other costs and expenses of closing In consummating the sale and purchase of the Property not specifically allocated herein shall be prod by Purchaser REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of the Agreement shall be the sole respons~bthty of Seller, and Seller agrees to indemnify and hold harmless Purchaser from any and all claims for any such commissions BREACH BY SELLER In the event Seller shall fad to fully and t~mely perform any of ~ts obhgatmns hereunder or shall fail to consummate the sale of the Property except Purchaser's default, Purchaser may e~ther enforce specific performance of this Agreement or terminate th~s Agreement Page 4 BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obhgatlons set forth m PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default, Seller may e~ther enforce specific performance of th~s Agreement, or terminate this Agreement MISCELLANEOUS 1 A~slgnment of Agreement This Agreement may not be assigned by Purchaser wxthout the express written consent of Seller 2 Surwval of Covenants Any of the representations, warranties, covenants, and agreements of the part,es, as well as any rights and benefits of the parties, pertaining to a period oft~me following the closing of the transactions contemplated hereby shall survive the clostng and shall not be merged thereto 3 N0t~ce Any notice reqmred or permitted to be dehvered hereunder shall be deemed received when sent by Umted States mall, postage prepmd, cemfied marl, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the s~gnature of the party 4 Texas Law to Apply Th~s Agreement shall be construed under and m accordance wxth the laws of the State of Texas, and all obligations of the parties created hereunder are performable m Denton County, Texas 5 Parttes Bound This Agreement shall be binding upon and inure to the benefit of the partxes and thexr respective he~rs, executors, administrators, legal representatives, successors and assigns where permitted by th~s Agreement 6 Legal Construction In case any one or more of the provisions contamed m this Agreement shall for any reason be held to be invalid, illegal, or unenforceable xn any respect, smd mvahdxty, filegahty, or unenforceab~hty shall not affect any other proms~on hereof, and this Agreement shall be construed as if the lnvahd, illegal, or unenforceable provision had never been contained here~n 7 Prior Agreements Superseded Th~s Agreement constitutes the sole and only Agreement of the part~es and supersedes any prior understandings or written or oral agreements between the part~es respecting the wltlun subject matter 8 T~me of Essence Txme xs of the essence m the performance ofth~s Agreement 9 Gender Words of any gender used in this Agreement shall be held and construed to include any other gender, and words m the singular number shall be held to include the plural, and wce versa, unless the context requtres otherwise 10 Memorandum of Contract Upon request of e~ther party, both parties shall promptly execute a memorandum ofth~s Agreement statable for filing of record P~e5 11 Comphance In accordance wxth the requirements of the Texas Real Estate L~cense Act, Purchaser ~s hereby advised that is should be furmshed with or obtmn a pohcy of t~tle insurance or Purchaser should have the abstract covenng the Property examined by an attorney of Purchaser's own selectmn 12 T~me L~mxt In the event a fully executed copy of this Agreement has not been returned to Seller w~thm twenty (20) days a~er Seller executes tNs Agreement and dehvers same to Purchaser, Seller shall have the right to terminate tNs Agreement upon written not,ce to Purchaser PURCHASER THE CITY OF DENTON, TEXAS Ted Benawdes, City Manager 215 E McKlnney Denton, Texas 76201 ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY SELLER ROBERT P DONNELLY \%~,P'n, dsl ~tate of Texas | Page 6 STATE OF TEXAS § COUNTY OF DENTON § Th~s ~nstrument was acknowledged before me on th~s /~ day of ,~_~'x ~'~ ,1997byRobert P Donnelly ~t'~/' A '~'~ Notory PUb I "~,~'~' Commission Expire* 11 28-981 Notary Pubhc in and for the State of Texas STATE OF TEXAS § COUNTY OF DENTON § Th~s ~ strument was acknowledged before me on th~s ~ day o.f ~f~ ..~la~. , 1997 by Ted Benav~des, C~ty Manager of t~e City of Dento..., T~a~ a ~fim~pal eo~oratmn, ~own to me to be the person and o~eer whose name ~s subscribed to the foregmng instrument and ac~owledged to me that the same was the act of the smd City of Denton, Texas, a mummpal eo~oratmn, that he was duly authorized to peffo~ the same by appropriate ordinance of the C~ty Council of the C~ty of Denton ~d that he executed the same as the act of the smd C~ty for the purposes and consideration therein expressed, and m the capacity there~n stated ~s, ~N FORSYTHE ~ ~ ~;~x~l N0~ryPu~li~ S~te0tTex~ ~ Nota~ Public ~n a~d for t~ ~tate of Texas Page 7 EXHIBIT "A" EXHIBIT "B" Being a 1 0 acre tract of land, more or less, being situated in the DAVID HOUGH SURVEY, Abstract No 646, m the City of Denton, Denton County, Texas, and being part of a certmn 19 969 acre tract of land described in Special Warranty Deed from the Federal Deposit Insurance Corporation as Receiver of Western Bank as grantor, to Robert P Donnelly, as grantee, executed on November 19, 1992, smd deed being recorded m Volume 3384, Page 0905 of the Real Property Records of Denton County, Texas, and being further described as a tract of land West of and adjacent to the exlmng Mayhfll Road prescriptive right of way, mnnmg approximately 869 5 feet along the present location of Mayball Road, and being 50 feet m width Seller and Purchaser agree that upon completion of a ground survey of the above tract m connection w~th the closing of this transaction, that a metes and bounds legal description of said tract will be substituted for the above description EXHIBIT "C" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Smd 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a ½ inch iron rod in the eenterllne of Mayhfll Road at the Southeast comer of said Putnam Tract, also being the Northeast comer of a tract of land conveyed to Andrew Corporation, by the deed recorded in Volume 912, Page 797, Deed Records of Denton County, Texas, also being the Southeast comer of said Hough Survey, THENCE, South 87 degrees 13 minutes 28 seconds West, 744 08 feet along the North line of smd Andrew Corporation Tract and the South line of said Hough Survey to a ~ inch iron md m the Northeast right-of-way line of the M K T Rmlroad, THENCE, along said Northeast right-of-way line as follows 1 North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a ½ inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 101 67 feet to a ½ inch iron rod, 3 North 53 degrees 56 unnutes 53 seconds West, 101 75 feet to a ½ inch iron rod, 4 North 57 degrees 13 minutes 33 seconds West, 67 68 feet to a 1/2 inch iron rod at the Southwest comer of aforesaid Pumam Tract, also being the Southeast corner of a tract of land conveyed to Don V Cunnmgham and wife, by Deed recorded m Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 641 34 feet to a ½ inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast comer of said Cunmngham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,051 76 feet to a ½ inch iron rod m the center line of aforesaid Mayhfll Road, also lying in the West survey line of the G Walker Survey, AbstractNo 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along said survey line and the East boundary line of said Putnam Tract to the PLACE OF BEGINNING and containing 19 969 acres of land, more or less, LESS AND EXCEPT that certain 1 0 acre tract of land described in Exhibit "B" hereto, leaving 18 969 acres, more or less, remaining in ttus tract REAL ESTATE CONTRACT OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT as made by and between Robert P Donnelly, hereinafter referred to as "Optlonor" and the City of Denton, Texas, a home rule mumcipalaty of Denton County, Texas, hereinafter referred to as "Optaonee," upon the terms and conditions set forth hereto RECITALS WHEREAS, OpUonor is the owner of certain real property consisting of approximately 19 969 aeras located an the City of Danton, Denton County, Texas A map of smd 19 969 acre tract as attached hereto as Exhibit "A" and incorporated hereto by reference for all purposes Opuonor, by a Real Estate Contract, has agreed to sell and convey to Optaonee, that certain 1 0 acre tract of land more parUcularly described m Exlubat "B" attached hereto and incorporated hereto by reference for all purposes OpUonor, by this Agreement desires to grant OpUonee a right and option upon the terms and specified condmons set forth hereinbelow to aeqmre the re- malmng ,18 969 acre tract of land more particularly described an Exhibit "C" attached hereto and incorporated hereto by reference for all purposes, and WHEREAS, OpUonee believes that the 18 969 acre tract of land which is the subject of thts right to aeqmre and option (smd tract being hereinafter referred to as the "OpUoned Tract") ~s reasonably necessary for the pubhe use m the future, and accordingly desires to acquire a right to acquire the OpUoned Tract under the terms and speeml condmons set forth hereanbelow, THEREFORE, IT IS AGREED AS FOLLOWS ARTICLE I GRANT OF OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY In eonsaderaUon of the sum of ten dollars ($10 00), and the further consideration of Op- Uonee's payment for a survey of the Opt~oned Tract, Optionee's payment of the cost of a pre- hmlnary, plat pertmmng to the OpUoned Tract and the 1 0 acre tract described an Exhibit "B" at- tached hereto, Optaonee's agreement to reimburse Opt~onor the cost of an appheable bmldmg permit pertmmng to the Optaoned Tract, and the agreement of Opt~onee to obtain and dehver, at Optionee's expense, to Optlonor, before any exercise of Opt~onee of ars right or option granted herein, a prehmmary txtle report issued by Dentex Title Company, Denton, Texas, covering the Optioned Tract, Optaonor hereby GRANTS to Opt~onee the right and option to aeqmre Utle to the Optaoned Tract at the prices and eondmons, and within the t~me hmataUons specified below A In the event that OpUonor receives from a third party, at any tame before January 1,2013, a bona-fide written offer supported by good and valuable consaderaUon to purchase the Optloned Tract, then Optlonee has no right of first refusal to match said third party offer, arid Optlonee will not be obligated to pay any sum of money to Opt~onor under the terms of tbas Agreement B In the event that Optionor receives from a third party, at any time between January 1, 2013 and December 31, 2027, a bona-fide written offer supported by good and valuable consideration to purchase the Optloned Tract, and the stated purchase consideration is an amount less than two dollars ($2 00) per square foot, then Opuonee shall acquire t~tle to the Optloned Tract by paying to Opt~onor the purchase consideration of two dollars ($2 00) per square foot Opt~onee shall exercise its option by not~fying Opt~onor in writ- mg w~th~n sixty (60) days after Opt~onee recelvas noUce from the Optionor of the third party offer C In the event that Optsonor receives from a third party, at any t~me between January 1, 2013 and December 31, 2027, a bona-fide written offer supported by good and valuable consideration to purchase the Optioned Tract, and the stated purchase conslderaUon ~s an amount greater than two dollars ($2 00) per square foot, then Opt~onee may acquire title to the Optloned Tract by paying to Opt~onor a total of one dollar ($1 00) more than the purchase consideration offered by the tturd party Optlonee shall exercise its option by noUfymg Opt~onor m writing vathm sixty (60) days after Optlonee receives not,ce from Opt~onor of the third party offer, PROVIDED, HOWEVER, m the event that Optionee elects not to aeqmre t~tle to the Optioned Tract, then Opt~onee shall not be reqtured to pay any sum of money to Optsonor, and th~s Agreement shall be thereby terminated D Optxonor and Opt~onee agree that unless earlier terminated, the rights and option of Op- t~onee shall expire on December 31, 2027 E Optxonee represents to Opt~onor that it has no present, fixed, intention to condemn all or any part of the Optloned Tract at th~s time Optionee is unable to lawfully agree to waive its right of eminent dommn w~th respect to the Opt~oned Tract, or, for that matter, any t~act of real property m the City of Denton, Texas In the unhkely event that Optlonee, because of a public necessity, seeks condemnation of all or any part of the Optioned Tract before January 1, 2013, then Opt~onor and Opuonee shall treat such condemnation as Opt~onee's early exercise of its option to acquire the Optioned Tract and Optlonor and OpUonee each agree to designate a hcensed real estate apprmser of the State of Texas, w~th the M A I (Member of Apprmsal Institute) designa- tion, who vall in turn select a licensed real estate apprmser of the State of Texas w~th the M A I designation, which selected apprmser shall mmntmn h~s or her principal office m Denton County, Texas Thereafter, the selected apprmser shall prepare a written ap- prmsal report and determine the apprmsed fair market value of the Opt~oned Tract Upon detarmmat~on of the apprmsed fmr market value by this method, Optlonec shall pay to Optxonor the appraised market value of the subject Opt~oned Tract or the amount of two dollars ($2 00) per square foot, wbachever amount ~s greater Page 2 ARTICLE II APPLICATION OF CONSIDERATION TO PURCHASE PRICE If OpUonee cxermsas its right or option to acquire Utle to the OpUoned Tract m accor- dance w~th the terms hereof, tt lS specifically understood and agreed that the consideration pud to Optlonor by Optlonee pursuant to the first paragraph of Article I hereof, shall not apply to any purchase price expressed m Article I hereof ARTICLE III EXERCISE OF OPTION TO ACOUIRE ADDITIONAL REAL PROPERTY OpUonee must exemise its options granted herein by providing written notice to Optlonor in accordance v~th any apphcable deadline set forth in Article I heremabove In order to exer- cise its option under the provisions of Article I B or Article I C heremabove, OpUonee must execute and deliver to Opuonor the Real Estate Sales Contract attached hereto as Exhibit "D," which as incorporated herein for all purposes ARTICLE IV CONDITION PRECEDENT OpUonor and OpUonee agree that this Agreement as conditioned upon Optlonee receiving Solid Waste Landfill Permit No 1590-A from the Texas Natural Resource Conservation Com- mission In the event that such condition as not satisfied, then this Agreement shall be null and void ARTICLE V RETENTION OF CONSIDERATION In the event that Opuonee fmls to exercise any or all of its rights or options granted herein, all sums and all consideration pud or provided by Optlonee to OpUonor shall be retatned by Optlonor an consideration of the granUng of these rights and options to Optlonee ARTICLE VI TI~RMINATION OF OPTIONEE'S RIOHTS AND OPTIONS If OpUonee fmls to meet any deadline relaung to the exercise of any option or right granted hereunder, or to the terms of sale of the Opuoned Tract, this Agreement, and the rights of OpUonee shall automaUcally terminate on the day following the applicable deadhne ARTICLE VII MEMORANDUM OF AGREEMENT OpUonor and Optlonee agree to execute, within thirty (30) days from the date this Agreement as executed by OpUonor and OpUonee, a Memorandum of Agreement respecting the existence of this Agreement and evidencing Opuonee's interest in the OpUoned Tract Optlonee Page 3 may elect to record such Memorandum of Agreement xn the Real Estate Records of Denton County, Texas ARTICLE VIII ASSIGNABILITY No assignment of tins Agreement, or of any right, duty, or option accruing under this Agreement shall be made, in whole or In part, by exther party, without the prior written consent of the other party ARTICLE IX NOTICES Unless otherwise prowded bereln, any notice, tender, or delivery to be g~ven hereunder by either party to the other may be effected in wrxt~ng by personal dehvery or by registered or certified mall, postage prepaid, return recexpt requested, and shall be deemed received as of the date of actual receipt Mailed notice shall be addressed as set forth below, but each party may change bas address m accordance w~th thxs paragraph To Optaonor To Optaonee Robert P Donnelly Cxty of Denton, Texas Ted Benav~des, City Manager 215 East McKlnney Denton, Texas 76201 With a copy to Herbert L Prouty City Attorney 215 East McKinney Denton, Texas 76201 ARTICLE X ENTIRE AGREEMENT Tbas Agreement contains the entire agreement between the part,es relating to the option and rights hereto granted Any oral representattons or modifications concerning tbas Agreement shall be of no force and effect, excepting a subsequent modification, m writing, signed by the parties ARTICLE XI BINDING EFFECT Tbas Agreement shall bind and inure to the benefit of all the respective hears, personal representattvas, successors, and assigns of the parties hereto Page 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreemem on this the ~ day of 2~I~.~, 1997 OPTIONEE CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAOER ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY OPTIONOR ROBERT P DONNELLY ROBERT P DONNELLY Page 5 STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME the undersigned authority, a Notary Public m and for smd State of Texas, on tbas day personally appeared Ted Benawdes, City Manager of the City of Denton, Texas, known to me to be the person who signed and executed the foregmng instrument, and acknowledged to me that this mstxument was executed for the purposes and consideration thereto expressed / GIVEN, UNDER MY HAND AND SEAL OF OFFICE flus the _~day of ~ o~,% ~ ~08S¥1,[ § Not~Pubhc m and~for the ~/ ~ ~k~d,~, My gammi,slon Exl~lres 05-00q008~ State of Texas ~o~oooooo0oooo~0ooo0~0o00000~ My Commission Expires 5' ~. ~ STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME the undersigned authority, a Notary Pubhe in and for smd State of Texas, on th~s day personally appeared Robert P Donnelly, known to me to be the person who signed and executed the foregoing ~nstrument, and acknowledged to me that ttus mstrmnent was executed for the purposes and consideration thereto expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE th~s the __ day of ,19__ Notary Pubhc in and for the State of Texas My Comnumon Expires E \DOCS'dC~DONNELLY CONTRACT Page 6 EXHIBIT "A" EXHIBIT "B" Being a 1 0 acre tract of land, more or less, being situated ~n the DAVID HOUGH SURVEY, Abstract No 646, m the C~ty of Denton, Denton County, Texas, and being part of a eertmn 19 969 acre tract of land described m Specml Warranty Deed from the Federal Deposit Insurance Corporation as Receiver of Western Bank as grantor, to Robert P Donnelly, as grantee, executed on November 19, 1992, smd deed being recorded m Volume 3384, Page 0905 of the Real Property Records of Denton County, Texas, and being further described as a tract of land West of and adjacent to the ex~stmg Mayhfll Road prescriptive right of way, runmng approximately 869 5 feet along the present locatmn of Maylutl Road, and bemg 50 feet m wadth Seller and Purchaser agree that upon completion of a ground survey of the above tract m connection wath the closing of flus transactxon, that a metes and bounds legal description of smd tract wall be substamted for the above description EXHIBIT "C" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, bemg the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Smd 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a ½ inch iron rod in the centerhne of Mayhlll Road at the Southeast comer of said Putnam Tract, also being the Northeast comer of a tract of land conveyed to Andrew Corporation, by the deed recorded in Volume 912, Page 797, Deed Records of Denton County, Texas, also being the Southeast comer of smd Hough Survey, THENCE, South 87 degrees 13 mmutes 28 seconds West, 744 08 feet along the North line of smd Andrew Corporataon Tract and the South line of said Hough Survey to a ½ inch iron rod in the Northeast right-of-way line of the M K T Railroad, THENCE, along smd Northeast right-of-way line as follows 1 North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a ~ inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 101 67 feet to a ½ inch iron rod, 3 North 53 degrees 56 minutes 53 seconds West, 101 75 feet to a ½ inch iron rod, 4 North 57 degrees 13 minutes 33 seeunds West, 67 68 feet to a ½ inch iron rod at the Southwest comer of aforesatd Putnam Tract, also being the Southeast comer of a tract of land conveyed to Don V Cunmngham and w~fe, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 641 34 feet to a ½ inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast comer of said Cunmngham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,051 76 feet to a ½ inch iron rod in the center line of aforesmd Mayhlll Road, also lying in the West survey line of the G Walker Survey, AbstractNo 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along smd survey line and the East boundary line of said Putnam Tract to the PLACE OF BEGINNING and contmnmg 19 969 acres of land, more or less, LESS AND EXCEPT that certain 1 0 acre tract of land described in Exhibit "B" hereto, leaving 18 969 acres, more or less, remalmng in this tract EXHIBIT "D" REAL ESTATE SALES CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between ROBERT P DONNELLY (hereinafter referred to as "Seller") and the CITY OF DENTON, TEXAS, a home rule municipality, of Denton County, Texas (heremafier referred to as "Purchaser"), upon the terms and condmons set forth herem PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agreeslto pay for that eartmn tract of land located in the City of Demon, Denton County, Texas~ cuntammg 18 969 acres of land, more or less, and being more particularly described in Extubat "1" attached hereto and incorporated hereto by reference for all purposes, together w~th all and sangular the rights and appurtenances pertmmng to the property, including any right, t~tle and interest of Seller m and to adjacent streets, alleys or rights-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together w~th any xmprovements, fixtures, and personal property satuated on and attached to the Property, for the consaderat~on and upon and subjee~ to the terms, provisions, and cond~tlons hereinafter set forth PURCHASE PRICE 1 Amount of Purchase Price The purchase price for the Property shall be the sum of $ as determined in that certmn Real Estate Contract-OpUon To Acquire Addmonal Real Property executed by Seller, as Optlonor and Purchaser as Optlonee, on the day of ,199__ 2 Payment of Purchase Price The full amount of the purchase price shall be payable an cash at the closing PURCHASER'S OBLIGATIONS The obhgatlons of Purchaser hereunder to consummate the transactions conte~ aplated hereby are subject to the satasfactlon of each of the following condmons any ol 'wlueh may be wmved m whole or m part by Purchaser at or prior to the closang 1 ~ Txfle Reoort Wathan twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall have caused the T~tle Company (hereinafter defined) to issue a prehmmary title report (the "T~tle Report") accompamed by coptes of all recorded documents relating to easements, rights-of-way, etc, affecting the Property Purchaser shall give Seller written notace on or before the exparataon of ten (10) days after Purchaser receaves the Tatle Report that the condmon of title as set forth m the title binder is or is not satisfactory, and an the event Purchaser states that the conditton as not satasfactory, Seller shall, at Seller's optaon, promptly undertake to ehmanate or modafy all unacceptable matters to the reasonable satisfaction of Purchaser In the event Seller as unable to do so wathm ten (10) days after receipt of written notace, thas Agreement shall thereupon be null and void for all purposes, othervase, this condataon shall be deemed to be acceptable and any objectton thereto shall be deemed to have been wmved for all purposes 2 Survey Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor chosen by and acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, rmlroads, rivers, creeks, or other water courses, fences, easements, and rights-of-way on or adjacent to the Property, ffany, and shall contain the surveyor's certffication that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together vath a metes and bounds description thereof Purchaser wall have ten (10) days after receipt of the survey to review and approve the survey In the event the survey as unacceptable, then Purchaser shall wtthm the ten (10) day period, gave Seller written nouce ofthas fact Seller shall, at Seller's option, promptly undertake to ehnunate or modtfy the unacceptable portaons of the survey to the reasonable satasfacUon of Purchaser In the event Seller as unable to do so wttlun ten (10) days after receapt of written notice, Purchaser may terminate this Agreement, and the Agreement shall thereupon be null and void for all purposes Purchaser's fmlure to give Seller this written notace shall be deemed to be Purchaser's acceptance of the survey 3 Seller's Comt~hance Seller shall have performed, observed, and complied with all of the covenants, agreements, and condxtaons reqmred by this Agreement to be performed, observed, and complied wath by Seller prior to or as of the closang REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no parttes m possessaon of any portxon of the Property as lessees, tenants at sufferance, or trespassers P~e2 2 Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment affecting the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any governmental authority 3 Seller has complied with all applicable laws, ordinances, regulations, statutes, roles and resmctlons relating to the Property, or any part thereof 4 To the best of the Seller's knowledge, there are no toxic or hazardous wastes or materials on or w~tlun the Property Such toxic or hazardous wastes or materials include, but are not limited to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended CLOSING The closing shall be held at the office of Dentex Title Company, Denton, Texas, at such title company, time, date, and place as Seller and Purchaser may mutually agree upon (winch date IS herein referred to as the "closing date") CLOSING REQUIREMENTS 1 Seller's Reoulrements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions except for the following 1 General real estate taxes for the year of closing and subsequent years not yet due and payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obligations hereof, and 3 Any exceptions approved by Purchaser in writing B Deliver to Purchaser a Texas Owner's Title Policy at Seller's sole expense, issued by Dentex Title Company, (the "Tale Company"), or such title company as Seller and Purchaser may mutually agree upon, in Purchaser's favor of the full amount of the purchase price, lnsunng Purchaser's fee simple title to the Property, subject only to those title exceptions listed in ~ments hereof, such other exceptions as may be approved In writing by Purchaser, and the standard pnnted P~e3 exceptions contained in the usual form of Texas Owner's Title Policy, provided, however 1 The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with same shall be borne by Seller, 2 The exception as to restrictive covenants shall be endorsed "None of Record", 3 The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable", and 4 The exception as to liens encumbenng the Property shall be endorsed "None of Record" C Deliver to Purchaser possession of the Property on the day of closing 2 Ptlrehaser's Reomrements Purchaser shall pay the consideration as referenced in the Purchase Price section of this contract at Closing in immediately available funds 3 ~ Seller shall pay all taxes assessed by any tax jurisdiction through the date of Closing All other costs and expenses of closing in consummating the sale and purchase of the Property not speeffically allocated herein shall be equally shared by Purchaser and Seller REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of this Agreement shall be the sole responsibility of Seller, and Seller agrees to mdemmfy and hold harmless Purchaser from any and all cl~ums for any such commissions BREACH BY SELLER In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fall to consummate the sale of the Property except at Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement BREACH BY PURCHASER In the event Purchaser should fml to consummate the purchase of the Property, the conditions to Purchaser's obhgattons set forth in PURCHASER'S OBLIGATIONS Page 4 hawng been satisfied and Purchaser bexng m default, Seller may e~ther enforce specific performance of thts Agreement, or terminate this Agreement MISCELLANEOUS 1 Assxgnment of Agreement This Agreement may not be assigned by Purchaser w~thout the express written consent of Seller 2 Survival1 of Covenants Any of the representatxons, warranties, covenants, and agreements of the pames, as well as any rights and benefits of the parties, pertmmng to a period of txme following the closing of the transactions contemplated hereby shall survxve the closing and shall not be merged therexn 3 Nottce Any notme reqmred or penmtted to be delivered hereunder shall be deemed received when sent by Umted States mad, postage prepmd, cemfied mall, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party 4 Texas Law to An~lv Tlus Agreement shall be construed under and in accordance wtth the laws of the State of Texas, and all obhgatlons of the pames created hereunder are performable m Denton County, Texas 5 Parties Bound. Th~s Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, admlmstrators, legal representatives, successors and assigns where permitted by this Agreement 6 ~ Construction In case any one or more of the prov~sions contained in tlus Agreement shall for any reason be held to be mvahd, illegal, or unenfomeable in any respect, smd invalidity, illegality, or unenforeeabdxty shall not affect any other provision hereof, and this Agreement shall be construed as ~f the ~nvahd, illegal, or unenforceable provisxon had never been contained hereto 7 Prior A~reements Sunerseded Thxs Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the partxes respecting the within subject matter 8 Time of Essence T~me ~s of the essence m th~s Agreement 9 Oender Words of any gender used in this Agreement shall be held and construed to ~nclude any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record Page 5 11 Com~hance In accordance w~th the requirements of the Texas Real Estate License Act, Purchaser is hereby adwsed that it should be fumxshed w~th or obtmn a pohcy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection 12 T~me L~mxt In the event a fully executed copy of fins Agreement has not been returned to Seller vafinn finrty (30) days after Seller executes this Agreement and dehvers same to Purchaser, Seller shall have the right to terminate this Agreement upon written notice to Purchaser DATED this __ day of , PURCHASER THE CITY OF DENTON, TEXAS By City Manager 215 E McKxnney Denton, Texas 76201 ATTEST By APPROVED AS TO LEGAL FORM CITY ATTORNEY, CITY OF DENTON, TEXAS By SELLER ROBERT P DONNELLY By Robert P Donnelly Page 6 STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me on tins the day of by Robert P Donnelly Notary Public in and for the State of Texas STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me, on this the day of , by , City Manager of the City of Denton, Texas, a mumclpal corporation, known to me to be the person and officer whose name is subscribed to the foregmng Instrument and acknowledged to me that the same was the act of the smd City of Denton, Texas, a municipal corporaUon, that he was duly authorized to perform the same by appropriate ordinance of the City Council of the City of Denton and that he executed the same as the act of smd City for purposes and cons~deratton therein expressed, and an the capacity thereto stated Notary Public in and for the State of Texas Page 7 EXHIBIT "1" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more partlctflarly described by metes and bounds as follows BEGINNING at a ½ meh iron rod in the cemerhne of Mayhlll Road at the Southeast comer of smd Putnam Tract, also being the Northeast comer of a tract of land conveyed to Andrew Corporation, by the deed recorded m Volume 912, Page 797, Deed Records of Demon County, Texas, also being the Southeast comer of said Hough Survey, THENCE, South 87 degrees 13 minutes 28 seconds West, 744 08 feet along the North line of said Andrew Corporation Tract and the South line of said Hough Survey to a ½ inch iron rod in the Northeast right-of-way line of the M K T Railroad, THENCE, along smd Northeast right-of-way hne as follows 1 North 47 degrees 59 minutes 44 seconds West, 87 69 feet to a ½ inch iron rod, 2 North 50 degrees 49 minutes 23 seconds West, 101 67 feet to a lA inch iron rod, 3 North 53 degrees 56 minutes 53 seconds West, 101 75 feet to a ½ inch iron rod, 4 North 57 degrees 13 minutes 33 seconds West, 67 68 feet to a ½ inch iron md at the Southwest comer of aforesaid Putnam Tract, also being the Southeast comer of a tract of land conveyed to Don V Cunmngham and wafe, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 minutes 04 seconds East, 641 34 feet to a ½ inch iron rod in the South line of a tract of land conveyed to E P Jeske by the deed recorded in Volume 1386, Page 377, Deed Records of Denton County, Texas, also being the Northeast comer of smd Cunmngham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,051 76 feet to a ½ inch iron rod in the center line of aforesmd Mayhlll Road, also lying tn the West survey line of the G Walker Survey, Abstract No 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along stud survey line and the East boundary line of smd Putnam Tract to the PLACE OF BEGINNING and containing 19 969 acres of land, more or less, LESS AND EXCEPT that certain 1 0 acre tract of land previously conveyed by Robert P Donnelly to the City of Denton, Texas by General Warranty Deed on the day of , 19 , which deed is recorded at Volume _, Page of the Real Estate Records of Denton County, Texas, leaving 18 969 acres, more or less, remmmng in tlus tract OWNER POLICY OF TITLE INSURANCE Issued by 502345 Alamo Title Inmmnce SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, ALAMO TITLE INSURANCE, a Texas corporabon, herein celled the Company, insures, as of Date of Policy shown ~n Schedule A, against loss or damage, not exceeding the Amount of Insurance stated ~n Schedule A, sustained or Incurred by the tnsured by reason of 1 T~tle to the estate or interest descnbed ~n Schedule A being vested other than as stated thereto, 2 Any defect ~n or hen or encumbrance on the t~tle, 3 Any statutory or const~tubonal mechamc's, contractor's, or materralman's hen for labor or matenal having tts ~ncept~on on or before Date of Pohcy, 4 Lack of a nght of access to end from the land, 5 Lack of good and indefeas~ble btle The company also w~ll pay the costs, attorneys' fees and expenses ~ncurred m defense of the btle, as insured, but only to the extent provided ~n the Conditions and Shpulabons  ALAMO TITLE INSURANCE Secretary ~f ~ President FORM T 1 , of Title Insurance EffecWe January 1,1993 seq AOrlOd lo ~lea ol Iuenbesqns pelee~o JO §ulqoelle {p) CONDITIONS AND STIPULATIONS Continued 4 DEFENSE AND PROSECUTION OF ACTIONS DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon written request by the ~nsured and subiect to the options coll~amed in Section 6 of these Conditions and Stipulations the Company at ~ts own cost and wrihout unreasonable delay shatl prowde for the defense of an insured ~n Iregatlon m which any third party asserts a claim adverse to the t~tle or interest as insured but only as to those stated c~uaes of action alleging a defect I~en o encumbrance or other matter ~nsured against dy this pallcy The Company shall have the nght to select counsel of Its choice (subject to the nght of the insured to oblect for reasonable cause) ~o represent the ~nsured as to those stated causes of action and shall not be haole for and wilt not pay the fees of any other counset The Company w=~l not pay any fees costs or expenses recurred by the insured in the defense of those causes of action that atlege matters not insured against by this ~ohcy (b)The Comben!,,shall bave the right a its own cost to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or e o ne estate or interest as nsu ed o to p even or reduce loss o damage o he insured The Company may take any appropriate action des abe oeetablshtbe I hebl o waves ovsono thspol~cy I theCombenysbel undarthetermso hspo~cy wbehe O no shal[be edehoeunder andsha no the eby concede ty yp exercise ~ts nghts under thee paragraph it shall do so dlhgently (c) Whenever the Company shall have brought an action or ~nterdosed a defense as redu~red or pe,m~ffed by the provlsl0ns of this pohcy the Company may pursue any litigation to rinel determine ~on by a court of corr detent juned[chon and expressly reserves the r~ght ~n ItS sole q~scretlon to apbeal from any adverse judgment or order (d) I'~ all cases whore this policy permits or requires the Company to prosecute or prowbe for the defense of any action or proceeqlng the insured shall secure to the Company the right to so prosecute or prowde belense in the aceon or proceeding and all appeals therein and permit the Company to use at its POtion the name of tbs insured for th~s burpose Whenever requested by the Company the ~nsured at tile Companys expense shall give the Company afl reasonable aid (I) in any action or proceeding s$curlng ewdence obtmnlng witnesses prosecuting or defending the acodn or proceeding or affecting settlement and (1~) m any other [awful act that m the opinion of the Company may be necessary or bemredle to establish the title to the estate or interest as ~nsure<~ Il the Company is prejudiced by the failure of the insured to furnish the required cooperation the Companys cbhgatlon~ to the ~nsured under the policy shall terminate ~ncludlng any hab~hty or obllgaeon to defend prosecute or continue any llhpatlOr wrih regard to the matter or matters requmng such cooberatlon 5 PROOF OF LOSS OR OAMAGE tn addition to and after the not{cee requ~req unbar Section 3 of Ihese Condglone and Stlpulahons have been provided the Company a proof of loss or damage s~gned and sworn to by the insured claimant shall be furnished to 1he Company wit bin 91 days after the insured claimant shall ascertain the facts giving rise to the toss or damage The proof of loss or damage shall describe the defect in or Ii~.n or encumbrance on the htle or other matter insured against by th~s policy that conshtutes the beSlS of Ices or damage and shall state to the extent possible the bests of calculating the amount of the loss or damage If the Company is prejudiced by the failure of the insured claimant to provide the redu~rad proof of loss or damage the Company s obligations to the insured under the policy shat[ terminate including any Ilablldy or obhgatlon to defend prosecute or continue any lltlgaeon wdh ragard to ~he matter or matters requiring such proof of loss or damage r claimant ma reasoned be iequlrad to subm o examination undo oath Dy any authonzed repreeenteeve of the Company and shall produce for n addition the Insu ed Y Y nzed e esentatlve o the Company al ecords books ledgers examlnakon inspect on and copying at such sesoned e t mas and places as may be paslgna(ed by any autho p checks correspondence and memoranda whether beanng a date before or after Date of Policy which reasonably pertain to the lose or bemage Further It requested by any authorized repree~ctatlve of the Company the insured claimant shall grant its permission m writing for any authonzed representative of the Company to examine inspect and copy all records books ledgers checks correspondence and memoranda in the custody or control of a third party which reasonably pertain to the loss or damage All information designated as confidential by the insured claimant provided to the Company pursuant to this Secgon shall not be disclosed to others unless ~n the reasonable luqgment of the Company it is necessary In the edmln~etraeon of the claim Failure of the ~nsured claimant to submit for examlnehon under oath produce other reasonably requested [nformatiob or grant permtsslon to secure reasonably necessary ~nformahotl from third part,es as ¢oduged in this paragraph shall terminate any IleqlJtty of the Company under th~s policy as to that claim 6 OPTIONS TO PAY OR OTNERWlSE SETTLE CLAIMS TERMINATION OF LIABILITY in case of a claim under this policy the Company shall have the following eddd~onal options a TO Pay or Tender Payment of the Amount o! Insurance TO pay or tender payment o he amount of msu anco under this pohcy Iogether with any costs attorneys fees and expenses incurred by the insured claimant which were authonzed dy tbs Company up to the t~me of payment or tender of payment and which the Company ~s obhgated to pay Upon the exercise by the Company of tht~ ophon all I~ab~llty and obligations to the insured under th~s policy other than to make the payment required shall terminate including any I~ab~tlty or obhgahon to defend prosecute or continue any Irilgahon and the behCy shall be surrendered to the Company for cancellation (b) TO Pay or Otherwise Settle With Parties Other than the Insured or Wffh the insured Claimant 0) to pay or ctherW~Se settle with other bertles lot or in the name of an irsureq claimant any claim insured against under this policy together with any costs attorneys fees and expenses mcurre0 by the insured claimant which were authorized by the Company up to the ~lme of payment and which the Company ts obhgated to pay or (111 to pay Or otherwise settle with the insured c{almant the loss or damage prowded for under th~s pohcy together w~th any costs attorneys fees and expenses ~ncurred by the ihsured claimant which were authonz~d by the Company up to the hms of payment and which the Company Is obligated to pay Upon the exerclbe by the Company of e~tber of the options provipad for in paragraphs (b)(0 or (;~) the Company s obhgat~ons to the insured under this pohcy for the claimed loss or damage other than the payments required to be made shall terminate ~ncludmg any liability or obligation to defend prosecute or cootmue any Irilgatlon 7 DETERMINATION, EXTENT OF LIABILITY AND COINSURANCE This pohcy Is a contract of indemnity against actual monetary loss or damage sustained or recurred by the ~nsured c[a~mam who has suffered loss or damage by reason of matters insured against by this policy and only lo the extent herein desonbed {a} The liability of the Company ueder th~s pohcy shall not 9xceeq the least of (~) the Amount of Insurance stated ~n Schoduie A (~l) the dlberence between the value of the insured estate or interest a insured and the value of the insured estate or ~nterest subject to the defect lien or encumbrance msored against by this pohcy at the date the insured claitnant is regulred to furnish to Company a proof of loss or damage ~n accordance w~th Seceon 5 of these Conditions arid Stipulations (b) In the event the Amount of Insurance stated in Schedule A at the Date ct Policy is less than 80 percent of the value Gf the i~sured estate or interest or the full consideration paid for the land whlcbever is ~ess or ri subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or mrarest v he Amount of Insurance s a ed in Schedule A then this Pohcy is subject to the 0 ow ng byasleast2 percento e rn de astoan artla oss he Combeny sha l only bey the loss pro rara n heproportlonthattheamountofmsurance {) whee~nosubeequent~mpovementhaebeen a YP at Date of Policy bears to the total value ol the ~nsured estate or interest at Date of Pohcy or (,) where a subsequent ~mprovement has been made as to any partial toss the Company shall only pay the loss pro rata in the proportion that 120 percent of the Amount ct Insurance stated in Schedule A bears to ~he sum of the Amount of Insurance stated ~n Schedule A and the amount expended for the improvement The provisions of ibis paragraph shall not apply to costs attorneys fees and expanses for which the Company ~s hable under this policy and shall coty apply to that port~on of any loss which exceeds ,n the aggregate t0 percent of the Amount of Insurance stated m Schedule A {c) The Compai3y will pay only thcso COSTS ,~ttorneys ee~ sod expenses recurred ~n accordance w~th Sechon 4 of these Condri~ons a~d Shpulatlons 8 APPORTIONME[~T ....... re lot used as a s nn e s~te and a loss ~s established aflec ng one or more of the parcels but not all the If the land pascnbeq ~n Scbedu e A consists o wp or more pa ce ~ .,~ ~ u loss shatl be computed and settled on a pro rata bas~s as ~f the amount of insurance under this pct~cy was d~vlded pro rata as to the value on Date of Policy of each separate parcel to the whole exclusive of any ~mprovements made subsequent to Date of Pohcy unless a hab~l~ty or value has othe~se been agreed upon as to each parcel by the Company an0 the insured at the hms pi the ~ssuance of this policy and shown by an express statement or by an endorsement attached to th~s policy 9 LIMITATION OF LIABILITY (a) It the Company establishes the ctle or removes the alleged defect I~en or encumbrance or cures the lack of a right of access to or from the land all as insured or takes achon in accordance with Section 3 or Se~.hon 6 in a reasonab,y dlhgent manner by any method including hegaeon and the completion of any appeals therelrom it shall have fully performed ~ts obhgatlons with respect to that matter and shall not be liable for any loss or damage caused thereby (b) In the event of any litigation ~ncludlng I~bgat~on Dy the (..orogeny or w~th the Company s consent the Company shall have no i~ab~l[ty for loss or damage unSl there has been a fmai determ~naodn by a caurt of competent lunsd~ct~on and d~spos~lon of all appeals theretrom adverse to the t~tle as insured (c) The Company shall not be I~ahle for loss or damage to any nsured for hab~llty voluntarily assumed by (he insured in settling any claim or suit without the prior written consent of the Company 10 REDUCTIONOPINSURANCE REDUCTiON OR TERMINATION OF LIABILITY All payments under th~s policy except payments made for costs attorneys fees and expenses shall reduce the amount pi the ~nsurance pro tanto (Conenued on Reverse Side ol Page) CON DITIONS AN D ~TIPULATIONS ConUnu~ 11 LIABILITY NONCUMULATIVE t ia expressly understood that the amount of insurance under this polic sha~ pe reduced b n ' Y y a y amoun he Company may pay under any polIW Insudng a mortgage to which exception Is taken in Schedule B or to wthch the Insured has agreed assumed or taken subject or which is herealter executed by an ~osured and which ~s a charge or lien on the estate or interest described or referred to m Schedule A and ~he amount so pstd shall be deemed a payment under this policy to the insured owner 12 PAYMENT OF LOSS {a) NO payment shall be made without producing th~s pohcy for endorsement of the payment unless the pcticy has Peen los/or destroyed in wthch case proof of loss Or destruction shall be furnished to the satlstoCtlon of the Company (b) When habllity and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations the loss or damage shall be payafile within 30 days thereafter 13 SUBROGATION UPON PAYMENT OR SETTLEMENT (a) The Company s Right of Subrogation Whenever the Company shall have settled and pa~d a claim under this policy all dght of subrogation shall vest ~n the Company unaffected by any ac/ol the insured claimant The Company shatl de subregated to and be entlded to all rights and remedies that the insured ctalmant would have had against any person or property ~n respect to the paltm had th~e pohcy not been ~ssued If requested by the Company the insured claimant shall transfer to the Company all rights and remedies against any person or propeR neoesss~/in order to perfect th~s right of subrogation The ~nsured claimant shall permit the Company to sue compromise or settle in the name of the Insured claimant end to use the name of the insured cla~mard ~n any transact[on or lifigafion ~nvolvthg these rights or remedies II a payment on account of a claim does not futly cover the loss of the insured claimant the Company shall be subregsted to these rights end remethee in the propoffion that the Company s payment beam to the whole amount of the loss If loss should result lmm any act ol the insured cla~mard as stated above that act shall not void this policy but the Company in that event shall be r~:lu~rpo to pay only that part of any losses ~nsured against by tths pohcy that shall exceed the amount if any lost to the Company by reason of the impairment by the msursd claimant of the Company s right ol subrogation (b) The Company a RIEhta Against Non Insured Obligors The Companys right of subregatlon egalnct non Insured obligors shall ex~st and shall Include wrihout limitation the rights ol the insured to ~ndemnittss guarsnfies other policies ol insurance or bonds notwhhstandmg any terms or concttlons contained th those instruments that provide for subrogation debts by reason ol this pohcy 14 ARBITRATION Unless prohibited by apphcedle law or unless th~s arbitrst~on section ~s deleted by speC#lC provision in Schedule B ol thic policy eriher the company or the insured may demand erbthatton pursuant to the Trile Insurance Arbitrst~on Rules of the American Arbitration Association Arbitrable matters may include but are not hm~ted to any controversy or claim between the Company and the Insured arising out of or relpang to this pohcy any service of the Company in connection w~th ils issuance or the breach of a policy provision or other obligation All arbitrable matters when the Amount of Insurance is $1 000 000 or less SHALL SE arbdrated at the request of either the Company or the Insured unless the ~nssred is an ththvldual person (as distinguished ftom a corporation trust partnership assoclapon or other legal entity) All arbitrable matters when/he Amount of Insurance ~s *n excess of $1 ttO0 000 shall pe arb~tratsd only when agreed to by both the Company and the Insured Arbhratlon pursuant to this policy and under the Rtpas in eheCl on the date the demand for arblftallOn is made or at the option of the msu ed the Ru es n edec at Date ol Policy shall be bind ng upon the parties The award may include attorneys toss on y the laws of the state in which the land ~s located permn a court o award attorneys fees to a prevailing patty Judgment upon the award rendered b the Arbitrator s court bev ng junsdtsfion thereof Y ( ) may be entered in any The law of the s~lus of the land shall apply to an arbrbafion under the T~tle Insurance Arbitration Rules A copy of the Rules may be obtained lrom the Company upon request 15 LIABILITY LIMITED TO THIS POLICY POLICY ENTIRE CONTRACT (a) This policy together wrih all endorsements il any attached hereto by the Company ~s the entire policy and contract between the Insured and the Company In intsrprssng any provision of tths policy th~s policy shell be construed as a whole (b) Any claim of loss or damage whether or not based on neghganos and which arise out of the status of the trits to the estate or interest covered hereby or by any acbon asserting such claim shall be restricted to tths pohcy (c) NO amendment ol or endorsement to tths policy can be made except by a wrd~ng endorsed hereon or attached hereto signed by either the President a Vice President the Secretory and Assistant Secretary ct valldafing officer or authorized signatory of the Company 16 EEVERABILITY In the event any provision of the pohcy is held invalid or unenfomeedic under apphcabic law the policy shall be deemed not to include that provision and all other prows~ons shall COMPLAINT NOTICE not roeolv~, you el~ may writs the Texas Department of insurance, P O Box 149091, Aoefln, TX 78714-9091, Fax No (512) 476 1771 This nottos of complaint prooedura is for Informatloe only and does not become a pan or oon~gtton of this polthy E-03 Property Cetso; ;, 1000s 278.00 Comtty Codes 12~ O~E POL?-CY OF ~T~,E IN8U~CE SCHEDULE A CF No. ~ 97-21~9S Policy No. s 5025&5 Issued with Policy No. Amount o[ Insurances $8, 000. O0 Premiuu~ $278. 00 Date o[ Policyt January 23, 1998 1. Ra~ of l~ured~ CITY OF 2. T~ estate or interest in t~ la~ ~t is covered by t~s policy i8~ ~ee Sidle 3. Title ~o ~ estate or in~ereo~ in ~ lap~ is i~ured as ~oted im CITY OF DE~H, ~. T~ lend referred to in ~o policy is described as follo~z ~1 tht certain ~rac~ of la~, lyi~ a~ bei~ sit.ted in t~ DaSd ~h Survey, Abstract Ho. 6~6, ~n~on Co~y, Te~e, described ~re specifically in E~bit "A" a~tac~d ~re~o a~ i~orpora~ed ~rein by referees flor all purposes. Alamo Title Insurance of Texas )Au~norxzec voun~e~sx~nu~- FOEH T-I~ Owner Policy-Scbxdule A Effective January 1, 1993 ~.L'''n ~ tO all that ae~te ~IA~ ~o~d tn Vole 3394, b ~e~y ~s~, f~th 87 D~eoe 34 M~U~oo 46 Seo~ Wee~ s d~e~u~e of ~ amah Ox ~eee We~ , eA~ of hyhAll ~ad a D~lXy ~ ~h 87 ~eee ~ ~h O~ Ue~eee 4 ~nu~eo ~2 Se~ds hf~, SO ~eeC Wee~ of nd pelto1 ~th b ~uae ~ b ~wt eL~ of hyhL%l r~d, m d~e~nae o~ 870.2~ feet ~o ~ M~ l~e of ~ i~h 97 ~eos 34 ~u~ee OWNER POLICY Off TITLE INSURANCE SCHEDULE B G.P. No.~ 97-21195 Policy No.~ 5023~5 EXCEPTIONS PROM COVERAGE This Policy does p~t insure a$ainet loss or damase (and the Company will not pay costs, attorneys' ~ees or expenses) that arise by reason of the terms and conditions of the leases or easements insured, if any, sho~n in Schedule A and the following matters= 1. The following restrictive covenants of record intemized belov (the Company must either insert specific recording data or delete this exception): This exception is hereby deleted in its entirety. 2. Any discrepancies, con£1icts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlappin~ of improvements. Homestead or co~aunity property or survivorship rights, if any, of any spouse of any insured. 4. Any titles or rights asserted by anyone, inolnding, but not limited to, persons, the public, corporations, $overrmaents or other entities, a. to tidelands, or lands comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, $ul~s or oceans, or b. to lap~s beyond the line of the harbor or bulktmad lines as established or changed by any government, or c. to filled-in lands, or artificial islands, or d. to statutory tmter rights, including riparian rights, or e. to the area extending ~rom the line of mean iow tide to the li~ o£ vegetation, or the right of access to that area or easement along and across that area. §. Standby ~ees, taxes and assessments by any taxing authority for the year 1998 and subsequent years, and subseqtmnt taxes and assessments by any taxing authority for prior years due to change in land usage or o~nership. ~. The following matters and all terms of the doc--~nts creating or o~fering evidence of the matters (We must insert matters or delete this exception): a. Eights of parties in possessior~ b. This policy insures real estate only and does not insure title to any removables vhichmay be situated thereo~ c. Eights of parties in possessio~ (OnOTP only) d. Any visible and apparent easements over and across said property, the existence of ~hich does not appear of record. e. Any part or portion of the herein described property, lying within the boundaries of a public or private road or right of way. f. Any outstanding oil, sas and other mineral interest o~ned by others of record in the office o£ the County Clerk of Denton County, Texas, inolnding, but not limited to the following~ Alamo Title Insurance of Texas Porm T-I: Owner Policy-Schedule B Effective January 1, 1993 O.F. No. = 97-2119S CONTINUATION OF SCHEDULE B Policy No. = 502~65 Lease between J.L Shilg a~d Ba~view Oil Corporation filed Au~. 16, 1960, and recorded in Volume &$9, Page iS, ~ed ~corda~ said lease aesi&~d to Car:er-gif~ord Oil Co.an7 et al by i~tr~nt recorded in Vol~ Deed ~eorde. *Title ~o said ~ral leases/reeerva~io~ ~ve ~t been ~eeearc~d eubeeq~n~ to date o~ g. T~ ~ollo~ casemate, recorded in t~ Deed ~corda o~ ~nton County, Te~a, a~ 8ranted ~o Te~a Po~r a~ ~8ht Co~anys ~. Vol~ 190, Page 620 2. Vol~,~ 336, Page 3a7 3. Vol-~ 336, Page 583 a. Vol,~ 391, Pass 169 5. Vol-~ 658, Page Ease~nt ~ranted to Dallas & ~c~ta ~il ~ad Co.any ~rom DaSd Ho~h by i~tr~nt ~iled Oct. 29, 1880 a~ recorded in Vol~ P, Page a66, Deed ~corda, ~n:on Cowry, Te~e. i. Eaae~n~ ~ranted to $i~lair ~fi~ Co.any ~rom ~. ~ Bta~t et ~ by i~tr~,~nt ~iled ~c. 18, 19a7 a~ recorded in Vol~ 3al, Page 202, ~ed ~corde, Denton County, Te~s. Said eaae~nt assis~d ~o Si~lair Pipleli~ Co.any by i~:r~nt recorded in Vol,,~ 367, Page 2~2, Deed ~cords o~ ~nton County, Te~s~ and am~ed by ~ree~nt recorded in Vol,,~ 1989, Pass 360, Deed ~corda o~ Den:on County, Te~e. J. Eaeemn: ~an:ed to Btazos ~ver Tree.salon Electric Cooperative, Inc. ~rom G. ~ Bra~t, b7 i~t~,~nt ~iled ~t. 2a, 19a9 a~ recorded in Vol-~ 357, Pa~e aS, ~ed ~corda, ~nton County, Te~s. Eaee~nt 8ranted to ~ City o~ ~n~on ~:om ~0. Beasley et ~iled ~c. 1~, 1955 a~ recorded in Vol~ ~17, Page 581, ~ed ~corde, ~nton Co~y, Te~s. 1. Ease~nt 8ranted ~o Jo~ D. Put~m et al ~rom J.E. S~l& et ~ in Warranty ~ed ~iled A~. 09, 1~71 a~ recorded in Vol~,~ 626, Page 573, Deed ~cords, Denton Co~7, Te~s. Eaaemnt 8~anted ~o t~ City o~ Denton ~rom ~nton-~y~ll Joint Venture, by i~tr~nt ~iled ~2 29, ~986 a~ recorded in Vo]-~ 189a, Page 280, ~al Property ~corde, ~nton 0o~7, Te~s. Alamo Title Insurance of Te~ae Porto T-lt O~ner Policy-Schedule B Effective January 1, 1993