2010-151
. S:\;.êgal\Our pocuments\Ordin2nces\10\Fuller RE Purchase Contract - Eagle Dr Drainage - Ph 1- drafft ordinance PHW 06032010.doc
ORDINANCE NO. 201 .0-151
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER
OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT OF SALE BETWEEN THE
CITY OF DENTON AND ODIS J. FULLER, JR. AND WIFE, KATHY A. FULLER AND ANY
OTHER DOCUMENTS NECESSARY TO ACQUIRE TWO TRACTS, ONE BEING
APPROXIMATELY 0.377 ACRE OF LAND, THE OTHER BEING APPROXIMATELY 0.049
ACRE OF LAND, BOTH LOCATED IN THE WILLIAM LOVII\TG SURVEY, ABSTRACT
NUMBER 759, CITY AND COUNTY OF DENTON, TEXAS (THE "PROPERTY");
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute a Contract of
~Sale, between the City of Denton and'Odis J. Fuller, Jr. and wife, Kathy A. Fuller, substantially in the
form attached hereto and made a part hereof as Exhibit "A" (the "Contract"), with a purchase price of
$285,545.00 plus closing costs as prescribed in the Contract, and any other documents necessary for the
acquisition of the Property, as mōre particularly described therein. The Properry is being acquired for
stōrm water drainage improvements.
SECTIŌN 2. This Ordinance shall become effective immediately upon its . passage and
approval.
-
'P=AS SED AND APPROVED this the /52~lGday of , 2010.
. . -
.
, MARK A. B RRO S YOR
~ ~ -
ATTESTED: ;
JENNIFER WALTERS, CITY SECRETARY
By: ~
APPROVED AS TO LEGAL FORM:
ANITA BURGES S, CITY ATTORNEY
~
BY.
EXHIBIT A
CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF DENTON § .
This Contract of Sale ~(the «Contract ) is made this ~day of June, 2010,
effective as of the date of execution hereof by Buyer, as defined herein (the "Effective
Date"), by and between Odis Fuller, Jr. and Kathy A. Fuller (collectively referred to
herein as "Seller") and the CITY OF DENTŌN, TEXAS, a Home Rule Municipal
Corporation of Denton County, Texas (referred to hêrein as `Buyer").
RECITALS
W=REAS, Seller owns those certain lands being more particularly described as
Tract I on Exhibit "A" and Tract II on Exhibit "B", attached hereto and made a part
hereof for all purposes, being located in Denton County, Texas (together the "Land");
and
W~REAS, Seller desires to sell to City, and City desires to buy from Seller, the
Land, subject to the reservations made herein, together with any and all rights or interests
of Seller in and to adjacent streets, alleys and rights of way and together with all and
singular the improvements and fixtures thereon ánd all other rights and appurtenances to
the Land (collectively, the "Property").
ARTICLE I
SALE OF PROPERTY
For the consideration hereinafter set forth, and upon the terms, conditions and
provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees
to purchase from Seller, the Property.
Seller, subject to the limitation of such reservation made herein, shall reserve, for
themselves, their heirs; successors and assigns all oil, gas and other minerals in, on and
under and that may be produced firom the Property. Seller, their heirs, successors and
assigns shall not have the right to use or access the surface of the Property, in any way,
manner or form, in connection with or related to the reserved oil, gas, and other minerals
and/or related to exploration andlor production of the oil, gas and other minerals reserved
herein, íncluding without limitation, use or access of the surface of the Property for the
location of any well or drill sites, well bores, whether vertical or any deviation from
vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads,
electricity or other utility infrastructure, and/or for subjacent or lateral support for any
surface facilities or well bores, or any other infrastructure or improvement of any kind or
type in connection with or related to the reserved oil, gas and other minerals, and/or
related to the exploration or production of same.
As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas)
that any reasonable extraction, mining or other exploration and/or production method,
operation, process or procedure would consume, deplete or destroy the surface of the
Property; and (ii) all substances (except oil and gas) which are at or near the surface of
the Property. The intent of the parties hereto is that the meaning of the term "minerals"
as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d
743 (Tex. 1-980).
As used herein, the term "surface of the Property" shall include the area from the surface
of the earth to a depth of five hundred feet (500') below the surface of the earth and all
areas above the surface of the earth.
ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller for the.Property is the
sum of Two Hundred Eighty Five Thousand Five Hundred Forry Five Dollars and
No/100 ($285,545.00) (the "Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of Ten Thousand and No/100
Dollars ($10,000.00), as Earnest Money (herein so called) with Silver Star Title, LLC dba
Sendera Title, 958 South Highway 377 South, Suite 100, Aubrey, TX 76227, (the "Title
Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. All
interest earned thereon shall become part of the Eamest Money and shall be applied or
disposed of in the same manner as the original Earnest Money deposit, as provided in this
Contract. If the purchase contemplated hereunder is consummated in accordance with
the terms and the provisions hereof, the Earnest Money, together with all interest eamed
thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest
Money, and the interest accrued thereon, shall be disposed of by the Title Company as
provided in this Contract.
2.03 Independent Contract Consideration. Within fourteen (14) calendar days-after
the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount
of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract
Consideration"), which amount the parties hereby acknowledge and agree has been
bargained for and agreed to as consideration for Seller's execution and delivery of the
Contract. The Independent Contract Consideration is in addition to, and independent of
any other consideration or payment provided in this _Contract, is non-refundable, and shall
be retained by Seller notwithstanding any other provision of this Contract.
Contract of Sale
Page 2 of 21
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within twenty (20) calendar days after the Effective Date, Seller, at Seller's sole
cost and expense, shall cause to be fumished to Buyer a current Commitment for
Title Insurance (the "Title Commitment") for the Property, issued by Title
Company. The Title Commitment shall set forth the state of title to the Property,
including a list of liens, mortgages, security interests, encumbrances, pledges,
assignments, claims, charges, leases (surface, space, mirieral, or otherwise),
conditions, restrictions, options, severed mineral or royalty interests, conditional
sales contracts, rights of first refusal, restrictive covenants, exceptions, easements
(temporary or permanent), rights-of-way, encroachments, or any other
outstanding claims, interests, estates or equities of any nature (each of which are
referred to herein as an "Exception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
Buyer, at Seller's sole cost and expense, true and correct copies of all instrumênts
that create or evidence Exceptions, including those described in the Title
Commitment as exceptions to which the conveyance will be subj ect and/or which
are required to be released or cured at or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Buyer may
cause to be prepared at Buyer's expense, a current on the ground ALTA survey of the
Property (the "Survey"). The Survey may include but not be limited to, a depiction of
the location of all roads, streets, easements and rights of wáy, both on and adj oining the
Property, water courses, 100 year flood plain, fences and improvements and structures of
any kind. The Survey may further describe the size of the Property, in acres, and contain
a metes and bounds description thereof. Seller shall furnish or cause to be furnished any
affidavits, certificates, assurances, and/or resolutions or amended or revised survey(s) as
required by the Title Company in order to amend the survey exception as required by
Section 3.05 below. The description of the Property as set forth in the Survey, at the
Buyer's election, shall be used to describe the Properry in the deed to convey the Properry
to Buyer and shall be the description set forth in the Title Policy.
3.03 Review of Title Commitment, Survey and Ezception Documents. Buyer shall
have a period of fifteen (15) calendar days (the "Title Review Period") commencing with
the day Buyer receives the last of the Title Commitment, the Survey, and the Exception
documents, in which to give written notice to Seller, specifying Buyer's obj ections to one
or more of the items ("Objections"), if any. All items set forth in the Schedule C of the
Title Commitment, and all other items set forth in the Title Commitment which are
required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be
Obj ections without any action by Buyer.
Contract of Sale
Page 3 of 21
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall,
within twenty (20) calendar days after Seller is provided notice of Objections, either
satisfy the Objêctions at Seller's sole cost and expense or promptly notify Buyer in
writing of the Objections that Seller cannot or will not satisfy at Seller's expense.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure
those Objections or Exceptions that have been voluntarily placed on or against the
Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any
Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day
period, and if Buyer does not agree in writing to an extension of that period, said
extension to not exceed an additional thirty (30) days, then Buyer has the option of either:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller
prior to Closing, in which event those Objections shall become Permitted
Exceptions (herein so called), or
(b) terminating this Contract by notice in writing prior to Closing and receiving back
the Earnest Money, in which latter event Seller and Buyer shall have no further
obligations, one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Seller's sole cost and expense, shall cause a
standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer.
The Title Policy shall be issued by the Title Company, in the amount of the Purchase
Price and insuring that Buyer has indefeasible fee simple title to the Property, subj ect
only to the Permitted Exceptions. The Title Policy may contain only the Permitted
Exceptions and shall contain no other exceptions to title, with the standard printed or
common exceptions amended or deleted as follows:
(a) survey exception must be amended if required by Buyer to read "shortages in
area" only (although Schedule C of the Title Commitment may condition
amendment on the presentation of an acceptable survey and payment, to be borne
solely by Seller, of any required additional premium);
(b) no exception will be permitted for "visible and apparent easements" or words to
that effect (although reference may be made to any specific easement or use
shown on the Survey, if a Permitted Exception);
(c) no exception will be permitted for "rights of parties in possession";
(d) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments andlor
deletions, Buyer may obj ect to any Exception it deems material, in its sole discretion.
Contract of Sale
Page 4 of 21
ARTICLE IV
FEASIBILITY REVIEW PERIOD AND IMPROVEMENTS
4.01 Review Period. Any term or provision of this Contract notwithstanding, the
obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having
determined, in Buyer's sole and absolute discretion, during the period commencing with
the Effective Date of this Contract and ending thirry (30) calendar days thereafter (the
"Absolute Review Period'.'), based on such tests, examinations, studies, investigations and
inspections of the Property the Buyer deems necessary or desirable, including but not
limited to studies or inspections to determine thê existence of any environmental hazards
or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for
Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and
economic feasibility studies of the Property, and to conduct a physical inspection of the
Property, including inspections that invade the surface and subsurface of the Property. If
Buyer determines, in its sole judgment, that the Property is not suitable, for any reason,
for Buyer's i.ntended use or purpose, the Buyer may terminate this Contract by written
notice to the Seller, as soon as reasonably practicable, but in any event prior to the
expiration of the Absolute Review Period, in which case the Earnest Money will be
returned to Buyer, and neither Buyer nor Seller shall have any further duties or
obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to
the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any
and all non-confidential and non-privileged reports and studies obtained by Buyer during
the Absolute Review Period; and (ii) the Survey.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this
Contract and consummate the sale and purchase of the Property in accordance with the
terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective
Date and as of the Closing Date, except where specific reference is made to another date,
that:
(a) The descriptive information concerning the Property set forth in this Contract is
complete, áccurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any, part
thereof, and no party has been granted any license, lease or other right related to
the use or possession of the Properry, or any part thereof, except those described
in the Leases, as defined in Article V, Section 5.02(a).
(c) The Seller has good and marketable fee simple title to the Property, subject only
to the Permitted Exceptions.
Contract of Sale
Page 5 of 21
(d) The Seller has the full right, power, and authority to sell and convey the Properry
as provided in this Contract and to carry out Seller's obligations hereunder.
(e) The Seller has not received notice of, and has no other knowledge or information
of, any pending or threatened judicial or administrative action, or any action
pending or threatened by adj acent landowners or other persons against or
affecting the Property.
(f) The Seller has disclosed to Buyer in writing of any and all facts and
circumstances relating to the physical condition of the Property that may
materially and adversely affect the Properry and operation or intended operation
thereof, or any portion thereof, of which Seller has knowledge.
(g) The Seller has paid all real estate and personal property taxes, assessments,
excises, and levies that are presently due, if any, which are against or are related
to the Property, or will be due as. of the Closing, and the Property will be subject
to no such liens.
(h) Seller has not contracted or entered into any agreement with any real estate
broker, agent, finder, or any other parry in connection with this transaction or
taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated by this Contract.
(i) With the exception of those findings in the Phase I Environmental Site
Assessment prepared by W& M Environmental Group, Inc. dated November 4,
2009 and the Limited Phase II Investigation prepared by W& M Environmental
Group, Inc. dated January 6, 2010, both of which have been provided to Buyer
and Seller, to the best of Seller's knowledge, there has not occurred the disposal
or release of any Hazardous Substance on or from the Property.
As used in this Contract, "Hazardous Substance" means and includes all
hazardous and toxic substánces, waste or materials, and any pollutant or
contaminant, including without limitation, PCB's, asbestos, asbestos-containing
material, petroleum products and raw materials that are included under or
regulated by any Environmental Law or that would or may pose a health, safety or
environmental hazard.
As used in this Contract, "Environmental Law" means and includes all federal,
state, and local statutes, ordinances, regulations and rules presently in force or
hereafter enacted relating to environmental quality, contamination, and clean-up
of Hazardous Substances, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et
seq.), as amended by the Superfund Amendments and Reauthorization Act of
1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as
amended, and state superlien and environmental clean-up statutes and all rules
Contract of Sale
Page 6 of 21
and regulations presently or hereafter promulgated under or related to said
statutes, as amended.
(j) Intentionally Omitted.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer
as follows:
(a) Unless stated otherwise, prior to the Effective Date hereof, or within ten (10) days
after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to
Buyer, with respect to the Property, true, correct, and complete copies of the
following:
(i) All lease agreements and/or occupancy agreements and/or licenses of any
kind or nature (if oral, Seller shall provide to Buyer in writing all material
terms thereof) relating to the possession of the Property, or any part
thereof, including any and all modifications, - supplements, and
amendments thereto (the "Leases").
(ii) All environmental audits, soil tests and engineering and feasibility reports,
including any and all modifications, supplements and amendments thereto,
with respect to the Property that Seller possesses or has the right to
receive.
(b) From the Effective Date until the date of Closing or earlier termination of this
Contract, Seller shall:
(i) Not eriter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect
to, or affecting, the Property that will not be fully performed on or before
the Closing or would be binding on Buyer or the Property after the date of
Closing.
(ii) Advise the Buyer promptly of any litigation, arbitration, or administrative
hearing concerning or affecting the Property.
(iii) Not take, or omit to take, any action that would result in a violation of the
representations, warranties, covenants, and agreements of Seller.
(iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or
to the Property, or create, or permit to exist, any lien, encumbrance, or
charge thereon.
(c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law,
from all loss, liability, and expense, including, without limitation, reasonable
attorneys' fees, arising or incurred as a result of any liens or claims resulting from
Contract of Sale
Page 7 of 21
labor or materials furnished to the Property under any written or oral contracts
arising or entered into prior to Closing.
5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in
this Contract, the representations, warranties, covenants and agreements of Seller
contained in this Contract shall survive the Closing, and shall not, in any circumstance,
be merged with the General Warranty Deed, as described in Article VII, Section 7.02(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, at Seller's sole cost and expense
(except as herein expressly provided to the contrary), all of the following shall have
occurred:
(a) Seller has performed, furnished, or caused to be fiu-nished to Buyer all items
required to be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the time periods specified in
Article III, all of Buyer's objections made in accordance with Article III.
6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements.
Buyer is not obligated to perform under this Contract unless all representations,
warranties, covenants and agreements of Seller contained in this Contract are true and
correct or have been performed, as applicable, as of the Closing Date, except where
specific reference is made to another date.
6.03 Adversê Change. Buyer is not obligated to perform under this Contract, if on the
date of Closing, any portion of the Properiy has been condemned, or is the subject of
condemnation, eminent domain, or other material proceeding, or the Property, or any part
thereof, has been materially or adversely impaired in any manner.
6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer
delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined
that the Property is unsuitable to or for Buyer's purposes.
6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything
contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive
any of the conditions precedent to the performance of Buyer's obligations under this
Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying
the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any
of the conditions precedent to the performance of Buyer's obligations under this Contract
have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving
written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest
Contract of Sale
Page 8 of 21
Money shall be immediately returned to Buyer by the Title Company. The Seller shall,
on written request from Buyer, promptly issue the instructions necessary to instruct the
Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise
provided in this Contract, Buyer and Seller shall have no further obligations under this
Contract, one to the other.
ARTICLE VII
CLOSING
7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the
offices of the Title Company and shall be accomplished through an escrow to be
established ,with the Title Company, as escrowee. The Closing Date (herein sometimes
called), shall occur ten (10) days following the completion of all conditions precedent to
Buyer's performance of this Contract, as set forth in Article VI, hereof; but no later than
June 30, 2010, or as mutually agreed upon by Buyer and Seller.
7.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or
the Title Company, at the expense of the party designated herein, the following
items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
(ii) The General Warranty Deed, substantially in the form as attached hereto
as Exhibit "C", subj ect only to the Permitted Exceptions, if any, duly
executed by Seller and acknowledged;
(iii) Other items rea.sonably requested by the Title Company as administrative
requirements for consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the
following items:
(i) The sum required by Article II, Section 2.01, less the Eamest Money and
interest earned thereon, in the form of certified or cashier's check or other
immediately available funds;
(ii) Other items reasonably requested by the Title Company as administrative
requirements for consu.mmating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in
this Contract, the provisions of this Article VII, Section 7.03 shall survive the Closing.
The following item shall be adjusted or prorated between Seller and Buyer with respect to
the Property:
Contract of Sale
Page 9 of 21
(a) Ad valorem taxes relating to the Property for the calendar year in which the
Closing shall occur shall be prorated between Seller and Buyer as of the Closing
Date. If the actual amount of taxes for the calendar year in which the Closing
shall occur is not known as of the Closing Date, the proration shall be based on
the amount of taxes due and payable with respect to the Property for the preceding
calendar year. If Seller changes or has changed in the past the use of the Property
prior to Closing, resulting in the assessment of additional taxes, Seller will pay the
additional taxes.
7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at
Closing.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its
counsel, in negotiating, preparing, and closing the transaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses identified herein as
being the rêsponsibility of Seller. Buyer is responsible for paying fees, costs, expenses
identified herein as being the responsibility of Buyer. If the responsibility for such costs
or expenses associated with closing the transaction contemplated by this Contract are not
identified herein, such costs or expenses shall be allocated between the parties in the
customary manner for closings of real property similar to the Property in Denton County,
Texas
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any
one or more of the following events:
(i) Any of Seller's warranties or representations contained in this Contract are
untrue on the Closing Date; or
(ii) Seller fails to meet, comply with or perform any covenant, agreement,
condition precedent or obligation on Seller's part required within the time
limits and in the manner required in this Contract; or
(iii) Seller fails to deliver at Closing, the items specified in Article -VII,
Section 7.02(a) of this Contract for any reason other than a default b.y
Buyer or termination of this Contract by Buyer pursuant to the terms
hereof prior to Closing.
(b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's
sole and exclusive remedies for the default, may, at Buyer's sole option, do either
one of the following:
Contract of Sale
Page 10 of 21
(i) Terminate this Contract by written notice delivered to Seller in which
event the Buyer shall be entitled to a return of the Earnest Money, and
Seller shall, promptly on written request from Buyer, execute and deliver
any documents necessary to cause the Title Company to return to Buyer
the Earnest Money; or
(ii) Enforce specific performance of this Contract against Seller, requiring
Seller to convey the Property to Buyer subj ect to no liens, encumbrances,
exceptions, and conditions other than those shown on the Title
Commitment.
8.02 Buyer's Default and Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver
at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for
any reason other than a default by Seller under this Contract or termination of this
Contract pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's
sole and exclusive remedy for the default, may terminate this Contract by written
notice delivered to Buyer in which event the Seller shall be entitled to a return of
the Earnest Money, and Buyer shall, promptly on written request from Seller,
execute and deliver any documents necessary to cause the Title Company to
return to Seller the Earnest Money.
ARTICLE IX
MISCELLANEOUS
9.01 Notice. All notices, demands, requests, and other communications required
hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to
occur of (a) the date provided if provided by telephonic facsimile, and (b) on the date of
the deposit of, in a regularly maintained.receptacle for the United States Mail, registered
or certified, return receipt requested, postage prepaid, addressed as follows:
SELLER: BUYER:
Odis Fuller, Jr. City of Denton
433 Pine Hills Drive Paul Williamson
Frisco, TX 75234-1042 Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
Contract of Sale
Page 11 of 21
Copies to:
For Buyer:
Richard Casner, Deputy City Attorney
City Attorney's Office
215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 3 82-7923
9.02 Governing Law and Venue. This Contract is being executed and delivered and
is intended to be performed in the State of Texas, the laws of Texas governing the
validity, construction, enforcement and interpretation of this Contract. This Contract is
performable in, and the exclusive venue for any action brought with respect hereto, shall
lie in Denton County, Texas.
9.03 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if any,
related to the Properry, and may be amended or supplemented only in writing executed
by the party against whom enforcement is sought.
9.04 Párties Bound. This Contract is binding upon and inures to the benefit of Seller
and Buyer, and their respective successors and assigns. If requested by Buyer, Seller
agrees to execute, acknowledge and record a memorandum of this Contract in the Real
Property Records of Denton County, Texas, imparting notice of this Contract to the
public.
9.05 Risk of Loss. If any damage or destruction to any improvement located on the
Land shall occur prior to Closing, or if any condemnation or any eminent domain
proceedings are threatened or initiated that might result in the taking of any portion of the
Property, Buyer may, at Buyer's option, do any of the following:
(a) Term.inate this Contract and withdraw from this transaction without cost,
obligation or liability, in which case the Earnest Money shall be immediately
returned to Buyer; or
(b) Consummate this Contract, in which case Buyer, with respect to the Property,
shall be entitled to receive any (i) in the case of damage or destruction, any
insurance proceeds, together with the deductible amount under Seller's policy or
policies; and (ii) in the case of eminent domain, proceeds paid for the Property
related to. the eminent domain proceedings. If Buyer makes this election, the
Closing shall be held on the tenth (10) calendar day after election is made to close
and receive the proceeds described herein.
Buyer shall have a period of ten (10) days after receipt of written notification from Seller
Contract of Sale
Page 12 of 21
on the final settlement of all condemnation proceedings or insurance claims related to
damage or destruction of any improvement located on the Property, in which to make
Buyer's election.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract
and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller '
and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed
and/or delivered at the Closing or áfter the Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated
hereby. Notwithstanding anything to the contrary. contained in this Contract, the
provisions of this Article IX, Section 9.06 shall survive Closing.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
9.08 Ezhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by
the City Council of Denton, Texas, to the Director of Water Utilities of Buyer, or his
designee.
9.10 Ezpiration of Offer. The execution of this Contract by Seller constitutes, subject
to the terms hereof, an irrevocable offer to sell the Property to Buyer. Unless by 5:00 p.m.
on June 18, 2010, (i) this Contract is accepted by Buyer by action of the City Council of
Buyer; and (ii) that certain Release and Settlement Agreement, by and between the Buyer
and Denton Bible Church, is accepted by Buyer, by action of the City Council of Buyer,
and Denton Bible Church, the offer of this Contract shall be automatically revoked and
terrninated.
SELLER:
By:
ODIS FULL R, JR.
SELLER:
By:
KATHY FULLER
Executed by Seller on the day of 2010.
Contract of Sale
Page 13 of 21
BUYER:
By: ~
GE R C. CAMPBELL, CITY MANAGER
Executed by Buyer on the day of 2010.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
w
BY: ~ APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ~
Contract of Sale
Page 14 of 21
RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, Title Company acknowledges receipt of (1) an executed
copy of this Contract. Title Company agrees to comply-with, and be bound by, the terms
and provisions of this Contract and to perform its duties pursuant to the provisions of this
Contract and comply with Section 6045(e) of thê Internal Revenue Code of 1986, as
amended from time to time, and as further set forth in any regulations or forms
promulgated thereunder.
TITLE COMPANY:
Silver Star Title, LLC
dba Sendera Title
958 Highway 377 South, Suite 100
Aubrey, Texas 76227
By:
Printed Name:
Title:
Contract receipt date: 32010
Contract of Sale
Page 15 of 21
EXI-IIBIT "A"
to
Contract of Sale
Legal Description
TRACT ONE :
A11 that certai•n 0.377 acre tract, or parcel v£ land si.tuated in the
City of Denton, Denton-County, Texas; said tract being the same tract-
as shown by deed to James E. IIargadon recorcled in Volumc 659, -page
421,>of the Deed Records of IIenton County, Texas, and being part of
Lot I, Block D, of the Blount Addition'to the City of Denton, TeXas,
a's sho.jirn by the plat recordêd in the'Plat Re•cords of Denton County,
Texa-s,•and being more particularly described as folloias:
BEGINNING for the Northeast corner ōf the.-herein described tract
at the Nvrtheast corne.r of said Lot I, Block D, Blount Addition,•an
"X" cut in concrete;
TIIENCE South.'00° 101 20" East a distance of 10-0. 0 leet.to the
Southeast corner ōf' said Lot 1, an iron pi.n found;
TkiENCE Soutfi-'.89° 17' 'West with the Sovth line of said lot a
distance of 164.2 feet to an "X" found in a concrete lined drainage
chánn.el-, b.eing the Southeast corner of the Community Natural Gas
Company Tŕact;
THBNCE North with the East line of said G.as Company Tract, 100.0
feei to a*point for corner in the North line of said Lot 1;
THENCE North 89° 161 30" East 163.9 feet to the Point of Beginning.
Contract of Sale
Page 16 of 21
EXHIBIT "B"
to
Contract of Sale
Legal Description
TRAC'P TIVO : , VOt.LUUJ hlGE 14
t11I that certain 0.049 acre tract, or parcol o.f land situated i.n -the
1V. Loving SurvCy, A-.759, Dcnten Caunty, Tcxas, said t:-ect beinR rart
of *a tract 'sllowzi by dc-eci to James Elargad.on an4 recorded in Volurne
659, pusc 123, o.f thc Dcccl Rcc4rf.is of Dcnton.County, Texas, and being
n:oro'particular*ly dcscribed as faílows:
- IiLGTh~I~ I?~C for t}~e Nōrthêast corner of the tra.ct being described
herein. a.t an' iroil pin found at the h~ortheast corner of said Fiargadon
tract; •
Tl1PNCG Sotttli 69.3 feet to an iron pin found at the Southeast
corriêr of said Eiargadon tract;
TIIEi`1CL ScLtlt 89° 17' titiTcst leith the varth edge of a eon`rete wa11
31..0 fect to a►i "X" cut in concrete; %
7'lil:liClŕ North 69.5 fect to an iroii pin,set in the ground on the
North line of said iiargadcn's tract;
TfiLNCC Nvrth 89° lc' 30" East 31.0 fect to Foint of )i.eginning.
Contract of Sale
Page 17 of 21
EXHIBIT "C"
to
Contract of Sale
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING
INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUR DRIVER' S LICENSE NUMBER.
GENERAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS
That Odis Fuller, Jr. and Kathy A. Fuller, (collectively herein called "Grantor"),
for and in consideration of the sum of TEN AND N01100 DOLLARS ($10.00), and other
good and valuable consideration to Grantor in hand paid by the CITY OF DENTON,
TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee"), 215 E.
McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby
acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these
presents does GRANT, SELL and CONVEY unto Grantee, subject to the reservation
made herein, all the real property in Denton County, Texas being particularly described
on Exhibit "A", attached hereto and made a part hereof for all purposes, and being
located in Denton County, Texás, together with any and all rights or interests of Grantor
in and to adjacent streets, alleys and rights of way and together with all and singular the
improvements and fixtuŕes thereon and all other rights and appurtenances thereto
(collectively, the "Properry").
Grantōr, subject to the limitation of such reservation made herein, reserves, for
themselves, their heirs, successors and assigns all oil, gas and other minerals in, on and
under and that may be produced from the Property. Grantor, their heirs, successors and
Contract of Sale
Page 18 of 21
assigns shall not. have the right to use or access the surface of the Property, in any way,
manner or form, in connection with or related to the reserved oil, gas, and other minerals
and/or related to exploration and/or production of the oil, gas and other minerals reserved
herein, including without limitation, use or access of the surface of the Property for the
location of any well or drill sites, well bores, whether vertical or any deviation from
vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads,
electricity or other utility infrastructure, and/or for subj acent or lateral support for any
surface facilities or well bores, or any other infrastructure or improvement of any kind or
type in connection with or related to the reserved oil, gas and other minerals, and/or
related to the exploration or production of same.
As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas)
that any reasonable extraction, mining or other exploration and/or production method,
operation, process or procedure would consume, deplete or destroy the surface of the
Property; and (ii) all substances (except oil and gas) which are at or near the surface of
the Property. The intent of the parties hereto is that the meaning of the term "minerals"
as utilized herein, shall be in accordance with that set forth in Reed v. Wylie, 597 S.W.2d
743 (Tex. 1980).
As used herein, the term "surface of the Property" shall include the area from the surface
of the earth to a depth of five hundred feet (500') below the surface of the earth and all
areas above the surface of the earth.
.
This conveyance is subject to the following:
[Insert Permitted Exceptions, if any]
Contract of Sale
Page 19 of 21
TO HAVE AND TO HOLD the Properry, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors
and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto
'Grantee and Cnantee's successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof.
EXECUTED the day of , 2010.
By:
ODIS FULLER, JR.
By:
KATHY A. FULLER
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on ,
, 2010 by Odis Fuller, Jr.
Notary Public, State of Texas
My commission expires:
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on ,
, 2010 by Kathy A. Fuller. Notary Public, State of Texas
My commission expires:
Contract of Sale
Page 20 of 21
Exhibit "A"
To
General Warranty Deed
Legal Description
TRACT ONE:
A11 that certain 0.377 acre tract, or parce2 of ?and si.tuated in the
City of Denton, Denton-County, Texas; sa"id tract being the same tract_
as shown by decd to James E. Eiargadon recarded in Volume 659,-Pnge
421,-of the Deed Records of Dentvn County, Texas, and being part of
Lot I, Block D, of the nlount Addition'to the City of Denton, Texas,
a's sho-wn by the plat recordêd in the- Plat Re,cords of Denton County,
Texa-s,•and being mdre particularly described as folloivs:
BEGINNING for the Northeast corner ōf the..herein described tract
at the Northeast corne.r of said Lot.I, Blvck D. Blount Addition, an
"X" cut in concrete;
TIIENCE South .'00° 10' 20" East a distance of 10-0.0 -"eet.to the
Southeast corner ōf'said Lot 1, an i.ron pin found;
TNENCE Soutfi ,89° 171•West with the South line of said Iot a
distance of 164.2 feet to an "X" found in a concrete lined drainage
chánn.el•, b.eing the Southeast corner 'of the Cornmunity Natural Gas
Company Tŕact;
THENCE North with the East line of said G.as Company Tract, 100.0
feei to a'point for corner in the North Iine of said Loi 1;
THENCE North 89° 16' 30" East 163.9 feet to the Point of Beginning.
. .
TRACT TIV0 : ~ U
,
VOL J5 t'E 14
AlI that certain 0.049 acre tract, or parcel o.f :iand situated in -the
lV. Laving ~urvcy, A-_759, Dcnton Caunty, Tcxas, said trect being rart
of -a tract sltiowi) by de-ed to Ja:nes iiargAd.orl an~ recorded in 1lolume
6591 pti:se '423, o.f the Deecl Rccorcis of Denton County, Texas' and being
n.oro-j=ticvlarIy dcscribcd as fa11ows:
I3EGĩh>✓'I1vG ŕor the Mōrthêas t corner of the trn.ct being described
herein. at aji'iron Pin found at the hortheast corner of said Hargadon
tract; •
T16CN-CE South 69.3 feet to an iron pin founcl at the Southeast
corrie'r of said flargadon tract;'
TIiENCL ScLth 89° 17' Wcst 1vitii the Ncrth edge of a concrete wa11
31.0 Leet to an "'Y" cut in concrete;
TIiL'NCC North 69.5 feet to a, iron pin.set in the ground on the
North 1411e of said liargadcnts tract;
TEfL-NCE North 89° lc' 30°' East 33.0 feet to Point of 8.eginning.
Contract of Sale
Page 21 of 21