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1997-292AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A REVISED REAL ESTATE CONTRACT---OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY WHEREI'N THE CITY OF DENTON, TEXAS OBTAINS RIGHTS TO ACQUIRE A CERTAIN 18 969 ACRE TRACT OF LAND SITUATED IN THE DAVID HOUGH SURVEY, ABSTRACT NO 646, FOR PUBLIC USE, AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL OTHER DOCUMENTS NECESSARY TO CONSUMMATE THE PURCHASE OR ACQUISITION 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. WHEREAS, the City Council approved and enacted Ordinance No 97-276 on September 9, 1997 which provided for the purchase, by the ~ of a certain one acre tract of land situated adjacent to Mayhlll Road, being part of a 19.969 acre tract of land situated in the David Hough Survey, Abstract No 646, for the future widening of Mayhill Road in accordance with the terms of the Real Estate Contract attached to said ordinance, and WHEREAS, said Ordinance No 97-276further provided that the City is authorized to acquire addi-~-~nal real property, as may be required, consisting of the remaining 18 969 acres of land which are part of the 19 969 acre tract described in the preceding paragraph, and in furtherance thereof, a certain Real Estate Contract---Option To Acquire Addltlonal Real Property was attached to said ordinance for execution by the parties, and WHEREAS, since the approval of said Ordinance on September 9, 1997, further discussions have occurred between the City and the Owner of the remaining 18 969 acre tract of land hereinabove described, respecting several provisions of the Real Estate Contract---Option To Acquire Additional Real Property document, and the parties determined that several changes of wording in said contract were necessary and appropriate to properly reflect and to clarify the obligations of the Clty and the Owner of the said remaining 18 969 acre tract of land, to each other; and WHEREAS, the City and said Owner have prepared, and said Owner has execmted and delivered that certain revised "Real Estate Contract---Option To Acquire Additional Real Property" which is attached hereto as Exhlbit "A" and is incorporated herewith by reference NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS S_~ That the City Manager is hereby authorized to execute a revised Real Estate Contract---Optlon To Acquire Additional Real Property by and between the City of Denton as optlonee and Robert P Donnelly as optlonor, a copy of which contract is attached hereto as Exhibit "A" and is incorporated by reference herewith SECTION II. That the City Manager is hereby authorized to execute any and all documents necessary to consummate purchase or acquisition of real property in accordance with said contract SECTION III That the City Council hereby authorizes the expenditure of funds as provided in said contract, as well as the establishment of a sinking fund providing for the possible exercise of any option or right to acquire real property contained in said contract SECTION IV That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the ~day of O~f~/~, 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY 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 C~ty of Denton, Texas, a home rule municipality of Denton County, Texas, hereinafter referred to as "Optaonee," upon the terms and conditions set forth herein RECITALS WHEREAS, Optaonor Is the owner of certain real property cons~stang of approximately 19 969 acres located m the C~ty of Denton, Denton County, Texas A map of smd 19 969 acre tract is attached hereto as Exh~ba "A" and incorporated herem by reference for all purposes Optaonor, by a Real Estate Contract, has agreed to sell and convey to Opuonee, that certmn 1 0 acre tract of land more partmularly described ~n Exhlba "B" attached hereto and incorporated hereto by reference for all purposes Opt~onor, by this Agreement desires to grant Opt~onee a right and option upon the terms and speeffied condmons set forth herelnbelow to acquire the re- malmng 18 969 acre tract of land (smd tract being hereinafter referred to as the "Optluned Tract") more par~mularly described m Exhibit "C" attached hereto and incorporated herein by reference for all purposes, and WHEREAS, Optaonor and Optxonee antend ~n the hmlted circumstances described m Ar- nde I(B) hereof, to obligate Optaonee to purchase the Opt~oned Tract, and WHEREAS, Optaonee beheves that the 18 969 acre tract of land which is the subject of this right to acqmre and option is reasonably necessary for the public use m the future, and ac- cordingly desires to acquire a right to acqmre the Opuoned Tract under the terms and special eondmons set forth herelnbelow, THEREFORE, IT IS AGREED AS FOLLOWS ARTICLE I GRANT OF OPTION TO ACQUIRE ADDITIONAL REAL PROPERTY In conslderataon of the sum of ten dollars ($10 00), and the further consideration of Op- tlonee's payment for a survey of the Opt~oned Tract, Opt~onee's payment of the cost of a pre- hmmary plat pertalmng to the Optioned Tract and the 1 0 acre tract described in Exhab~t "B" at- tached hereto, Opttonee's agreement to reimburse Optlonor the cost of an apphcable building penmt pertmmng to the Optloned Tract, and the agreement of Optlonee to obtain and dehver, at Optaonee's expense, to Opt~onor, before any exercise of Optlonee of ~ts right or option granted herein, a prehmmary title report issued by Dentex Title Company, Denton, Texas, covenng the Opttoned Tract, Optlonor hereby GRANTS to Opttonee the right and option to acquire title to the Optloned Tract at the prices and conditions, and within the time limitations specified below A In the event that Optlonor receives from a third party, at any time before January 1, 2013, a bona-fide written offer supported by good and valuable consideration to purchase the Optioned Tract, then Optlonee has no right of first refusal to match said third party offer, and Opttonee wall not be obligated to pay any sum of money to Optlonor under the terms of this Agreement B In the event that Opttonor receives from a third party, at any time between January l, 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 mount tess than two dollars ($2 00) per square foot, then Opttonee shall be obligated to acquire tide to the Opttoned Tract by paying to Opttonor the purchase consideration of two dollars ($2 00) per square foot, subject only to the conditions eontamed in that cer- tmn Real Estate Sales Contract attached hereto as Exhibit "D': Opttonee shall tender smd executed Real Estate Sales Contract m accordance watlun the provisions of Article III hereof wathm sixty (60) days after Opuonee receives notice from the Optlonor of the third party offer C In the event that Opttonor 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 Opttoned Tract, and the stated purchase consideration is an amount greater than two dollars ($2 00) per square foot, then Opt~onee may acquire title to the Opttoned Tract by paying to Optlonor a total of one dollar ($1 00) more than the purchase consideration offered by the tbard party Opttonee shall exemlse its option by notifying Optlonor m writing wattun sixty (60) days after Optlonee receives notice from Optlonor of the tturd party offer, PROVIDED, HOWEVER, in the event that Opttonee elects not to acquire title to the Optloned Tract, then Optlonee shall not be required to pay any sum of money to Optlonor, and this Agreement shall be thereby tenmnated D Optlonor and Opttonee agree that unless earlier tenmnated, the rights and option of Op- tlonee shall expire on December 31, 2027 E Opt~onee represents to Optionor that it has no present, fixed, intention to condemn all or any part of the Optioned Tract at this time Optlonee is unable to lawfully agree to waive its right of eminent dommn wath respect to the Opttoned Tract, or, for that matter, any tract of real property in the City of Denton, Texas In the unlikely event that Opttonee, because of a public necessity, seeks condemnation of all or any part of the Opttoned Tract before January 1, 2013, then Opttonor and Optlonee shall treat such condemnation as Optlonee's early exemlse of its option to acquire the Optloned Tract and Opttonor and Optlonee each agree to designate a licensed real estate appraiser of the State of Texas, with the M A I (Member of Appraisal Institute) designa- tion, who wall in turn select a licensed real estate appraiser of the State of Texas wath the M A I designation, which selected apprmser shall maintain his or her pnnclpal office in Page 2 Denton County, Texas Thereafter, the selected approaser shall prepare a written ap- proasal report and determtne the approased foar market value of the Opttoned Tract Upon determtnatton of the approased fair market value by thts method, Opttonee shall pay to Opttonor the approased market value of the subject Optloned Tract or the amount of two dollars ($2 00) per square foot, whtchever amount ts greater ARTICLE II APPLICATION OF CONSIDERATION TO PURCHASE PRICE If Optlonee exercises its night or option to acqmre tttle to the Opttoned Tract tn accor- dance with the terms hereof, tt ts specifically understood and agreed that the consideration prod to Optlonor by Opt~onee pursuant to the first paragraph of Article I hereof, shall not apply to any purchase price expressed in Arttele I hereof ARTICLE III EXERCISE OF OPTION TO ACOUIRE ADDITIONAL REAL PROPERTY Optlonee must exerctse its options granted here~n by providtng written nottce to Opttonor tn accordance w~th any applicable deadline set forth m Arttcle I heremabove In order to exer- cise its option under the provisions of Article I B or Artmle I C heremabove, Opttonee must execute and deliver to Opttonor the Real Estate Sales Contract attached hereto as Exlublt "D," wbach ts incorporated heretn for all purposes ARTICLE IV CONDITION PRECEDENT Opttonor and Optionee agree that tins Agreement ts condittoned upon Optionee receivmg Solid Waste Landfill Penmt No 1590-A from the Texas Natural Resource Conservation Com- mission In the event that such condltton ts not sattsfied, then this Agreement shall be null and vmd ARTICLE V RETENTION OF CONSIDERATION In the event that Opttonee foals to exercise any or all of its rights or opttons granted herein, all sums and all constderatton poad or provided by Opttonee to Optionor shall be retoaned by Opt~onor tn constderatton of the grantmg of these rights and opttons to Optlonee ARTICLE VI TERMINATION OF OPTIONEE'S RIGHTS AND OPTIONS If Opt~onee fails to meet any deadline relating to the exerctse of any optxon or right granted hereunder, or to the terms of sale of the Opttoned Tract (exclusive, however, of the obh- gat~ons of Optionee set forth tn Arttcle I, paragraph B hereof), thts Agreement, and the rights of Optlonee shall automattcally terminate on the day followmg the apphcable deadline Page 3 ARTICLE VII MEMORANDUM OF AGREEMENT Optaonor and Optaonee each agree to execute, waban tbarty (30) days from the date eather party requests in writing a Memorandum of Agreement respecung the exastence of this Agree- ment and evidencing OpUonee's interest m the OpUoned Tract Optaonee may elect to record such Memorandum of Agreement m the Real Estate Records of Denton County, Texas ARTICLE VIII ASSIGNABILITY No assignment of thas Agreement, or of any right, duty, or option accruing under tbas Agreement shall be made, in whole or an part, by eather party, w~thout the prior written consent of the other party It is contemplated by Optaonor and Optaonee that Optaonor wall probably de- sire to assign bas rights and obhgatlons respectang tbas Agreement to a member of has ammedmte family, or a family partnership, or a hmlted partnersbap, or an anter-vavos trust, or any other en- taty wbach Optlonor has a contxolhng interest, and to whom/wbach the Opt~oned Tract has been conveyed vathout the exchange of valuable consaderataon Optaonee shall not unreasonably w~thhold its consent respecting any such assagnment by Optaonor ARTICLE IX NOTICES Unless otherwise provided herein, any notme, tender, or dehvery to be gaven hereunder by eather party to the other may be effected m writing by personal dehvery or by regastered or certtfied maxi, postage prepaxd, remm receapt requested, and shall be deemed received as of the date of actual receipt Mmled notice shall be addressed as set forth below, but each party may change bas address in accordance vath tbas paragraph To Optlonor To Optaonee Robert P Donnelly City of Denton, Texas Ted Benavades, City Manager 215 East McKanney Denton, Texas 76201 With a copy to Herbert L Prouty City Attorney 215 East McKanney Denton, Texas 76201 Page 4 ARTICLE X ENTIRE AGREEMENT Tins Agreement ¢ontmns the entire agreement between the parhes relatang to the option and rights hereto granted Any oral representations or mo&ficat~ons concerning th~s Agreement shall be of no force and effect, excepting a subsequent mo&ficat~on, m writing, sagned by the parties ARTICLE XI BINDING EFFECT Th~s Agreement shall brad and mute to the benefit of all the respectave he,rs, personal representataves, successors, and assagns of the parties hereto IN WITNESS WHEREOF,,the parbes hereto have executed this Agreement on th~s the r~::~ day of · ~'~..Z~r/Z~2~', 1997 OPTIONEE CITY OF DENTON, TEXAS ATTEST JENNIFER WALTERS, CITY SECRETARY BY , OPTIONOR ROBERT P DONNELLY I ~j~] State of Texas I Page 5 STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME the anders~gned authority, a Notary Pubhc in and for smd State of Texas, on flus day personally appeared Ted Benawdes, Ctty Manager of the C~ty of Denton, Texas, known to me to be the person who s~gned and executed the foregoing instrument, and acknowledged to me that tlus instrument was executed for the purposes and consideration thereto expressed g, OltVEN~ UNDER MY HAND AND SEAL OF OFFICE ttus the __~_.~day of ~ 19~7 · :~'~,%... ANN FORSYTHE ~, ,~'.,~ '1 Notary Pu,lis, 8ll~ta of ~. 8 Notary tPubhc~n and for the ~_, *,,,~.~' _.~. ,/My O0mmlaalon Explfali Ot.O{I.lg~8~ State of Texas My Com ss,o. Exp, s STATE OF TEXAS § COUNTY OF DENTON § BEFORE ME the tmders~gned authority, a Notary Pubhc m and for smd State of Texas, on th~s day personally appemed Robert P Donnelly, known to me to be the person who s~gned and exeeutedlthe foregoing instrument, and acknowledged to me that flus mstnunent was executed for the purposes and ¢ons~deraUon thereto expressed GIVEN UNDER MY HAND AND SEAL OF OFFICE ttus the /a~ day of t (,,OwE.- /:~T.!, ~otarv Put:,lk:: I Notaff Public m and for the \%~..~24q State of Texas __~.~ ?mm~lan Expires 11-28-981 State of Texas My Cormmss~on Expires // E '00CSLKkDONNELLY CONTRACT VER2 Page 6 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, in 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 Dounelly, as grantee, executed on November 19, 1992, smd deed being recorded in Volume 3384, Page 0905 of the Real Property Records of Denton County, Texas, and being further described as a tract of land West of and adjacent to the existing Mayhfll Road prescriptive right of way, runmng approximately 869 5 feet along the present location of Mayball Road, and being 50 feet in width Seller and Purchaser agree that upon completion of a ground survey of the above tract in connection vath the closing of tins transaction, that a metes and bounds legal description of smd tract will be substatuted for the above description EXHIBIT "C" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more partmularly described by metes and bounds as follows BEGINNING at a ~ inch iron rod in the centerhne of Mayhfll 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 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 rmnutes 28 seconds West, 744 08 feet along the North hne of said Andrew Corporation Tract and the South line of smd Hough Survey to a ½ inch iron rod in the Northeast right-of-way llne of the M K T Railroad, THEN'CE, 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 ~ron rod, 2 North 50 degrees 49 minutes 23 seconds West, 101 67 feet to a ~ tach iron rod, 3 North 53 degrees 56 rmnutes 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 rod at the Southwest comer of aforesoad Putnam Tract, also being the Southeast comer of a tract of land conveyed to Don V Cunnmgham and wife, by Deed recorded in Volume 653, Page 146, Deed Records of Denton County, Texas, THENCE, North 00 degrees 00 rmnutes 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 Cunnmgham Tract, THENCE, North 87 degrees 34 minutes 46 seconds East, 1,051 76 feet to a ~/2 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 said survey line and the East boundary line of smd Putnam Tract to the PLACE OF BEGINNING and contmmng 19 969 acres of land, more or less, LESS AND EXCEPT that certmn 1 0 acre tract of land described in Exhibit "B" hereto, leaving 18 969 acres, more or less, rematmng in tlus 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 munlelpahty, of Denton County, Texas (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for that certain tract of land located m the Ctty of Denton, Denton County, Texas, eontalmng 18 969 acres of land, more or less, and being more pamcularly described m Exlublt "l" attached hereto and incorporated herein by reference for all purposes, together vath all and singular the rights and appurtenances pertmmng to the propemy, including any right, title and interest of Seller an 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 wath any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth PURCHASE PRICE 1 Am0tltnt of Purchase Price The purchase pnee for the Property shall be the sum of $ as determined in that certaan Real Estate Contract-Option To Acqurre Adtht~onal Real Property executed by Seller, as Optaonor and Purchaser as Optionee, on the day of ., 199__ 2 Payment of Purchase Price The full amount of the purchase pnee shall be payable in cash at the closing PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the sausfaction of each of the following conditions any of which may be wmved in whole or in part by Purchaser at or prior to the closing 1 Prehmmarv Title Reoort Within 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 preliminary t~tle report (the "T~tle 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 ten (10) days after Purchaser receives the Title Report that the eonditlon of title as set forth m the title binder is or is not satisfactory, and in the event Purchaser states that the condition is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satasfactton of Purchaser In the event Seller is unable to do so within ten (10) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes, otherwise, this condition shall be deemed to be acceptable and any objection thereto shall be deemed to have been 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 grotmd, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together w~th a metes and bounds description thereof Purchaser will have ten (10) days after receipt of the survey to review and approve the survey In the event the survey is unacceptable, then Purchaser shall w~thm the ten (10) day period, give Seller written notice of this fact Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable pomons of the survey to the reasonable satisfaction of Purchaser In the event Seller is unable to do so wttlun ten (10) days after receipt of written notice, Purchaser may terminate ttus Agreement, and the Agreement shall thereupon be null and void for all purposes Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey 3 Seller's Compliance Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, or trespassers Page 2 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 behef of Seller IS any such proceerhng or assessment contemplated by any governmental authority 3 Seller has complied w~th all applicable laws, ordinances, regulations, statutes, rules and restrictions relatmg 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 wittun 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 tRle company, trine, date, and place as Seller and Purchaser may mutually agree upon (wluch date is hereto referred to as the "closing date") CLOSING REQUIREMENTS 1 Seller's Reau~rements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable txtle in fee simple to all of the Property, free and clear of any and all liens, encumbrances, condmons, 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 excepuons approved by Purchaser In writing B Deliver to Purchaser a Texas Owner's Title Policy at Seller's sole expense, xssued by Dentex Title Company, (the "Title Company"), or such Utle 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 hsted ~n Closing Reaulrements hereof, such other exceptions as may be approved xn writing by Purchaser, and the standard printed P~e3 exceptions contained in the usual form of Texas Owner's Title Pohcy, prowded, however 1 The boundary and survey exceptions shall be deleted if required by Purchaser and if so reqmred, the costs assocmted 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 hmtted to the year of closing and shall be endorsed "Not Yet Due and Payable", and 4 The exception as to hens encumbenng the Property shall be endorsed "None of Record" C Deliver to Purchaser possessmn of the Property on the day of closing 2 Purchaser's Reamrements Purchaser shall pay the consideration as referenced in the Purchase Price sectaon of thxs contract at Closing in xmmedmtely avmlable funds 3 Closme Costs Seller shall pay all taxes assessed by any tax junsd~ctxon through the date of Closing All other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated here~n shall be equally shared by Purchaser and Seller REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of thts Agreement shall be the sole responsxbfllty of Seller, and Seller agrees to Indemlfy and hold harmless Purchaser from any and all clmms for any such commxss~ons BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of ~ts obhgatxons hereunder or shall fail to consummate the sale of the Property except at Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement BREACH BY PURCHASER In the event Pumhaser should fall to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth tn PURCHASER'S OBLIGATIONS P~e4 having been satisfied and Purchaser being in default, Seller may either enfome specific performance of this Agreement, or terminate fins Agreement MISCELLANEOUS 1 Assignment of Agreement This Agreement may not be assigned by Pumhaser without the express written consent of Seller 2 Survlv01 of Covenants Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertmmng to a period of time following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein 3 Notate Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mml, postage prepaid, certified 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 Ttus Agreement shall be construed under and in accordance wath the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas 5 Parties Bound This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, admlmstrators, legal representatives, successors and assigns where permitted by this Agreement 6 Legal Construction In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenfomeable in any respect, said invalidity, illegality, or unenfomeabflity shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contmned herein 7 Prior A~,reements Sunerseded This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the w~finn subject matter 8 Time of Essence Time is of the essence in this Agreement 9 Gender Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record Page 5 11 ~ In accordance w~th the requirements of the Texas Real Estate License Act, Purchaser is hereby adxased that it should be furmshed vath or obtmn a policy of tatle insurance or Purchaser should have the abstract covenng the Property examined by an attorney of purchaser's own selectxon 12 Time Limit In the event a fully executed copy of this Agreement has not been returned to Seller w~thm tturty (30) days after Seller executes flus Agreement and delivers same to Purchaser, Seller shall have the right to terminate this Agreement upon written noUce to Purchaser DATED tins ~ day of PURCHASER THE CITY OF DENTON, TEXAS By City Manager 215 E Mcganney 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 tlus the day of by Robert P Donnelly Notary Pubhc m and for the State of Texas STATE OF TEXAS COUNTY OF DENTON Th~s mstmmem was acknowledged before me, on th~s the day of ~ , by ., C~ty Manager of the C~ty of Denton, Texas, a mumc~pal corporation, known to me to be the person and officer whose name ~s subscribed to the foregoing instrument and acknowledged to me that the same was the act of the smd C~ty of Denton, Texas, a mumc~pal corporation, that he was duly authorized to perform the same by appropriate ordtnance of the C~ty Council of the Ctty of Denton and that he executed the same as the act of smd C~ty for purposes and consideration thereto expressed, and m the capacity there~n stated Notary Pubhc ~n and for the State of Texas Page 7 EXHIBIT "I" BEING 19 969 acres of land located in the DAVID HOUGH SURVEY, Abstract No 646, Denton County, Texas, being the same tract of land as conveyed to Rozella A Putnam by the deed recorded in Volume 1586, Page 45 of the Deed Records of Denton County, Texas Said 19 969 acres being more particularly described by metes and bounds as follows BEGINNING at a ½ inch iron rod in the centeflme of Mayhfll 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 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 minutes 28 seconds West, 744 08 feet along the North line of smd Andrew Corporataon Tract and the South line of smd Hough Survey to a ½ inch iron rod in the Northeast right-of-way line of the M K T Rmlroad, THENCE, along smd 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 mlntnes 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 rod at the Southwest comer of aforesaid 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 Detnon 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 Cunnmgham 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 aforestud Maylull Road, also lying in the West survey line of the G Walker Survey, Abstract No 1330, THENCE, South 01 degrees 36 minutes 49 seconds West, 869 50 feet along stud survey line and the East boundary line of smd Putnam Tract to the PLACE OF BEGINNING and conttumng 19 969 acres of land, more or less, LESS AND EXCEPT that certtun I 0 acre tract of land previously conveyed by Robert P Dounelly to the City ol 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, remtumng in this tract