2011-123s:Uegal\our documents\ordinances\11\black fountain - purchase agreement ordinance.doc
ORDINANCE NO. 2011-123
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A CONTRACT OF SALE, BY AND BETWEEN THE CITY OF DENTON
TEXAS, AS BUYER AND KRISTA M. BLACK AND JOEL N. FOUNTAIN, AS SELLER,
CONTEMPLATING THE SALE TO AND PURCHASE BY THE CITY OF DENTON OF AN
APPROXIMATE 0.94 ACRE TRACT OF REAL PROPERTY IN THE M. YOACHUM
SURVEY, ABSTRACT NUMBER 1442, DENTON COUNTY, TEXAS, BEING THE TRACT
CONVEYED FROM GENEVA POTTS TRUST TO DAVID LEE DOSIER, ET UX,
RECORDED IN VOLUME 4130, PAGE 453, REAL PROPERTY RECORDS, DENTON
COUNTY, TEXAS, ALSO KNOWN AS 228 MOCKINGBIRD LANE, DENTON, TEXAS,
FOR THE PURCHASE PRICE OF ONE HUNDRED EIGHTEEN THOUSAND FIVE
HUNDRED AND NO/100 DOLLARS ($118,500.00); AUTHORIZING THE CITY
MANAGER TO EXECUTE AND DELIVER ANY AND ALL OTHER DOCUMENTS
NECESSARY TO ACCOMPLISH THE CLOSING OF THE TRANSACTION
CONTEMPLATED BY THE CONTRACT OF SALE; AUTHORIZING THE EXPENDITURE
OF FUNDS THEREFOR; 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 (i) a
Contract of Sale, between the City of Denton, as Buyer and Krista M. Black and Joel N.
Fountain, as Seller, in the form attached hereto and made a part hereof as Exhibit "A" (the
"Contract"), with a purchase price of $118,500.00' plus costs as prescribed in the Contract; and
(ii) any other documents necessary for closing of the transaction contemplated by the Contract.
SECTION 2. The City Manager is hereby authorized to make expenditures as set forth
in the Contract of Sale.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the day of , 2011.
MARK IS-. B OU S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
Y
BY:
sAlegal\our documents\ordinances\ll\black fountain - purchase agreement ordinance.doc
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Page 2
EXHIBIT "N' Pagel of 21
s:\legal\our documents\contracts\l l\black and fountain - contract of sale - final 070511.doc
CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF DENTON §
This Contract of Sale (the "Contract") is made this day of
2011, effective as of the date of execution hereof by Buyer, as
defined erein (the "Effective Date"), by and between Krista M. Black and Joel N.
Fountain (collectively referred to herein as "Seller") and the CITY OF DENTON,
TEXAS, a Home Rule Municipal Corporation of Denton County, Texas (referred to
herein as "Buyer").
RECITALS
WHEREAS, Seller owns that certain tract of land being more particularly
described on Exhibit "A", attached hereto and made a part hereof for all purposes, being
located in Denton County, Texas (the "Land"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
(i) the Land, together with any and all rights or interests of Seller in and to adjacent
streets, alleys and rights of way; and (ii) together with all and singular the improvements
and fixtures thereon, less and except the refrigerator, stove and oven, dishwasher, washer
and dryer and the existing red metal detached garage, all as now located on the Land, and
(iii) all other rights and appurtenances to the Land (collectively, the "Property"); and
WHEREAS, unless expressly provided otherwise in this Contract, all obligations
of Seller are the joint and several obligations of each of them.
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.
ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller jointly for the Property
is the sum of One Hundred Eighteen Thousand Five Hundred and No/100 Dollars
($118,500.00) (the "Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of Three Thousand and No/100
Dollars ($3,000.00), as Earnest Money (herein so called) with Capital Title of Texas, 620
EXHIBIT "A" Page 2 of 21
West Hickory Street, Denton, Texas, 76201, (the "Title Company"), as escrow agent,
within seven (7) days of the Effective Date hereof. All interest earned thereon shall
become part of the Earnest Money and shall be applied or disposed of in the same manner
as the original Earnest Money deposit, as provided in this Contract. If the purchase
contemplated hereunder is consummated in accordance with the terms and the provisions
hereof, the Earnest Money, together with all interest earned thereon, shall be applied to
the Purchase Price at Closing. In all other events, the Earnest Money, and the interest
accrued thereon, shall be disposed of by the Title Company as provided in this Contract.
2.03 Independent Contract Consideration. Within fourteen (14) calendar days after
the Effective Date, Buyer shall deliver to the Title Company, payable jointly to and for
the benefit of Seller, a check in the amount of One Hundred and No/100 Dollars
($100.00) (the "Independent Contract Consideration"), which amount the parties hereby
acknowledge and agree has been bargained for and agreed to as consideration for Seller's
execution and delivery of the Contract. The Independent Contract Consideration is in
addition to, and independent of any other consideration or payment provided in this
Contract, is non-refundable, and shall be retained by Seller notwithstanding any other
provision of this Contract.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be
furnished to Buyer a current Commitment for Title Insurance (the "Title
Commitment") for the Property, issued by Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of
liens, mortgages, security interests, encumbrances, pledges, assignments, claims,
charges, 'leases (surface, space, mineral, or otherwise), conditions, restrictions,
options, severed mineral or royalty interests, conditional sales contracts, rights of
first refusal, restrictive covenants, exceptions, easements (temporary or
permanent), rights-of-way, encroachments, or any other outstanding claims,
interests, estates or equities of any nature (each of which are referred to herein as
an "Exception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments
that create or evidence Exceptions, including those described in the Title
Commitment as exceptions to which the conveyance will be subject and/or which
are required to be released or cured at or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall
cause to be prepared at Buyer's expense, a current on the ground survey of the Property
(the "Survey"). The Survey may include but not be limited to, a depiction of the location
of all roads, streets, easements and rights of way, both on and adjoining the Property,
Contract of Sale
Page 2 of 20
EXHIBIT "A" Page 3 of 21
water courses, 100 year flood plain, fences and improvements and structures of any kind.
The Survey may further describe the size of the Property, in acres, and contain a metes
and bounds description thereof. Seller shall furnish or cause to be furnished any
affidavits, certificates, assurances, and/or resolutions or amended or revised survey(s) as
required by the Title Company in order to amend the survey exception as required by
Section 3.05 below. The description of the Property as set forth in the Survey, at the
Buyer's election, shall be used to describe the Property in the deed to convey the Property
to Buyer and shall be the description set forth in the Title Policy.
3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall
have a period of fifteen (t5) calendar days (the "Title Review Period") commencing with
the day Buyer receives the last of the Title Commitment, the Survey, and the Exception
documents, in which to give written notice to Seller, specifying Buyer's objections to one
or more of the items ("Objections"), if any. All items set forth in the Schedule C of the
Title Commitment, and all other items set forth in the Title Commitment which are
required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be
Objections without any action by Buyer.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall,
within twenty (20) calendar days after Seller is provided notice of Objections, either
satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in
writing of the Objections that Seller cannot or will not satisfy at Seller's expense.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure
those Objections or Exceptions that have been voluntarily placed on or against the
Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any
Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day
period, and if Buyer does not agree in writing to an extension of that period, said
extension to not exceed an additional thirty (30) days, then Buyer has the option of either:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller
prior to Closing, in which event those Objections shall become Permitted
Exceptions (herein so called), or
(b) terminating this Contract by notice in writing prior to Closing and receiving back
the Earnest Money, in which latter event Seller and Buyer shall have no further
obligations, one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a
standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer.
The Title Policy shall be issued by the Title Company, in the amount of the Purchase
Price and insuring that Buyer has indefeasible fee simple title to the Property, subject
only to the Permitted Exceptions. The Title Policy may contain only the Permitted
Exceptions and shall contain no other exceptions to title, with the standard printed or
common exceptions amended or deleted as follows:
(a) survey exception must be amended if required by Buyer to read "shortages in
Contract of Sale
Page 3 of 20
EXHIBIT "A" Page 4 of 21
area" only (although Schedule C of the Title Commitment may condition
amendment on the presentation of an acceptable survey and payment, to be borne
solely by Seller, of any required additional premium);
(b) no exception will be permitted for "visible and apparent easements" or words to
that effect (although reference may be made to any specific easement or use
shown on the Survey, if a Permitted Exception);
(c) no exception will be permitted for "rights of parties in possession";
(d) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or
deletions, Buyer may object to any Exception it deems material, in its sole discretion.
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 sixty (60) calendar days thereafter (the
"Absolute Review Period"), based on such tests, examinations, studies, investigations and
inspections of the Property the Buyer deems necessary or desirable, including but not
limited to studies or inspections to determine the existence of any environmental hazards
or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for
Buyer's purposes. Buyer is granted the right to conduct engineering and/or market and
economic feasibility studies of the Property, and to conduct a physical inspection of the
Property, including inspections that invade the surface and subsurface of the Property. If
Buyer determines, in its sole judgment, that the Property is not suitable, for any reason,
for Buyer's intended use or purpose, the Buyer may terminate this Contract by written
notice to the Seller, as soon as reasonably practicable, but in any event prior to the
expiration of the Absolute Review Period, in which case the Earnest Money will be
returned to Buyer, and neither Buyer nor Seller shall have any further duties or
obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to
the terms of this Article IV, Section 4.01, Buyer will provide to Seller copies of (i) any
and all non-confidential and non-privileged reports and studies obtained by Buyer during
the Absolute Review Period; and (ii) the Survey.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this
Contract and consummate the sale and purchase of the Property in accordance with the
terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective
Contract of Sale
Page 4 of 20
EXHIBIT "A" Page 5 of 21
Date and as of the Closing Date, except where specific reference is made to another date,
that:
(a) The descriptive information concerning the Property set forth in this Contract is
complete, accurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any part
thereof, and no party has been granted any license, lease or other right related to
the use or possession of the Property, or any part thereof, except those described
in the Leases, as defined in Article V, Section 5.02(a).
(c) The Seller has good and marketable fee simple title to the Property, subject only
to the Permitted Exceptions.
(d) The Seller has the full right, power, and authority to sell and convey the Property
as provided in this Contract and to carry out Seller's obligations hereunder.
(e) The Seller has not received notice of, and has no other knowledge or information
of, any pending or threatened judicial or administrative action, or any action
pending or threatened by adjacent landowners or other persons against or
affecting the Property.
(f) The Seller has disclosed to Buyer in writing of any and all facts and
circumstances relating to the physical condition of the Property that may
materially and adversely affect the Property and operation or intended operation
thereof, or any portion thereof, of which Seller has knowledge.
(g) The Seller has paid ` all real estate and personal property taxes, assessments,
excises, and levies that are presently due, if any, which are against or are related
to the Property, or will be due as of the Closing, and the Property will be subject
to no such liens
(h) Seller has not contracted or entered into any agreement with any real estate
broker, agent, finder, or any other party in connection with this transaction or
taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated by this Contract.
(i) To the best of Seller's knowledge, there has not occurred the disposal or release
of any Hazardous Substance on or from the Property.
As used in this Contract, "Hazardous Substance" means and includes all
hazardous and toxic substances, waste or materials, and any pollutant or
contaminant, including without limitation, PCB's, asbestos, asbestos-containing
material, petroleum products and raw materials, that are included under or
regulated by any Environmental Law or that would or may pose a health, safety or
Contract of Sale
Page 5 of 20
EXHIBIT "A" Page 6 of 21
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
and regulations presently or hereafter promulgated under or related to said
statutes, as amended.
(j) All Leases, as defined in Article V, Section 5.02(a), shall have expired or
otherwise terminated and any and all tenants shall have permanently abandoned
and vacated the Property on or before the date of Closing.
(k) The Seller is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer
as follows:
(a) Unless stated otherwise, within ten (10) days after the Effective Date, Seller, at
Buyer's sole cost and expense, shall deliver to Buyer, with respect to the Property,
true, correct, and complete copies of the following:
(i) All lease agreements and/or occupancy agreements and/or licenses of any
kind or nature (if oral, Seller shall provide to Buyer in writing all material
terms thereof) relating to the possession of the Property, or any part
thereof, including any and all modifications, supplements, and
amendments thereto (the "Leases").
(ii) All environmental audits, soil tests and engineering and feasibility reports,
including any and all modifications, supplements and amendments thereto,
with respect to the Property that Seller possesses or has the right to
receive.
(b) From the Effective Date until the date of Closing or earlier termination of this
Contract, Seller shall:
(i) Not enter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect
to, or affecting, the Property that will not be fully performed on or before
the Closing or would be binding on Buyer or the Property after the date of
Closing.
Contract of Sale
Page 6 of 20
EXHIBIT "A" Page 7 of 21
(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
labor or materials furnished to the Property under any written or oral contracts
arising or entered into prior to Closing.
(d) Seller shall remove from the Land the refrigerator, the stove and oven, the
dishwasher, washer and dryer, and the existing red metal detached garage prior to
Closing. In the event Seller shall not remove such property from the Land prior to
Closing, Seller expressly stipulates and agrees it waives and relinquishes all rights
to such property and further expressly stipulates and agrees that Buyer may retain,
destroy or dispose of any of such property left remaining on the Land at Closing
in its sole and absolute discretion without liability of any kind to Buyer.
5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in
this Contract, the representations, warranties, covenants and agreements of Seller
contained in this Contract shall survive the Closing, and shall not, in any circumstance,
be merged with the General Warranty Deed, as described in Article VII, Section 7.02(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, at Seller's sole cost and expense
(except as herein expressly provided to the contrary), all of the following shall have
occurred:
(a) Seller has performed, furnished, or caused to be furnished to Buyer all items
required to be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the time periods specified in
Article III, all of Buyer's objections made in accordance with Article III.
6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements.
Buyer is not obligated to perform under this Contract unless all representations,
warranties, covenants and agreements of Seller contained in this Contract are true and
Contract of Sale
Page 7 of 20
EXHIBIT "N' Page 8 of 21
correct or have been performed, as applicable, as of the Closing Date, except where
specific reference is made to another date.
6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the
date of Closing, any portion of the Property has been condemned, or is the subject of
condemnation, eminent domain, or other material proceeding, or the Property, or any part
thereof, has been materially or adversely impaired in any manner.
6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer
delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined
that the Property is unsuitable to or for Buyer's purposes.
6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything
contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive
any of the conditions precedent to the performance of Buyer's obligations under this
Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying
the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any
of the conditions precedent to the performance of Buyer's obligations under this Contract
have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving
written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest
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 upon the later to occur of (i) ten (10) days following the completion
of all conditions precedent to Buyer's performance of this Contract, as set forth in Article
VI, hereof; and (ii) November 15, 2011, unless otherwise mutually agreed upon by Buyer
and Seller.
7.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or
the Title Company, at the expense of the party designated herein, the following
items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
Contract of Sale
Page 8 of 20
EXHIBIT "A" Page 9 of 21
(ii) The General Warranty Deed, substantially in the form as attached hereto
as Exhibit "B", subject only to the Permitted Exceptions, if any, duly
executed by Seller and acknowledged;
(iii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the
following items:
(i) The sum required by Article II, Section 2.01, less the Earnest Money and
interest earned thereon, in the form of certified or cashier's check or other
immediately available funds;
(ii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in
this Contract, the provisions of this Article VII, Section 7.03 shall survive the Closing.
The following item shall be adjusted or prorated between Seller and Buyer with respect to
the Property:
(a) Ad valorem taxes relating to the Property for the calendar year in which the
Closing shall occur shall be prorated between Seller and Buyer as of the Closing
Date. If the actual amount of taxes for the calendar year in which the Closing
shall occur is not known as of the Closing Date, the proration at Closing shall be
based on the amount of taxes due and payable with respect to the Property for the
preceding calendar year. As soon as the amount of taxes levied against the
Property for the calendar year in which Closing shall occur is known, Seller and
Buyer shall readjust in cash the amount of taxes to be paid by each party with the
result that Seller shall pay for those taxes attributable to the period of time prior to
the Closing Date (including, but not limited to, subsequent assessments for prior
years due to change of land usage or ownership) and Buyer shall pay for those
taxes attributable to the period of time commencing with the Closing Date.
7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at
Closing.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its
counsel, in negotiating, preparing, and closing the transaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses identified herein as
being the responsibility of Seller. Buyer is responsible for paying fees, costs and
expenses identified herein as being the responsibility of Buyer. If the responsibility for
such costs or expenses associated with closing the transaction contemplated by this
Contract are not identified herein, such costs or expenses shall be paid by Buyer.
Contract of Sale
Page 9 of 20
EXHIBIT "A" Page 10 of 21
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 Seller's Defaults and Buyer's Remedies.
(a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any
one or more of the following events:
(i) Any of Seller's warranties or representations contained in this Contract are
untrue on the Closing Date; or
(ii) Seller fails to meet, comply with or perform any covenant, agreement,
condition precedent or obligation on Seller's part required within the time
limits and in the manner required in this Contract; or
(iii) Seller fails to deliver at Closing, the items specified in Article VII,
Section 7.02(a) of this Contract for any reason other than a default by
Buyer or termination of this Contract by Buyer pursuant to the terms
hereof prior to Closing.
(b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's
sole and exclusive remedies for the default, may, at Buyer's sole option, do either
one of the following:
(i) Terminate this Contract by written notice delivered to Seller in which
event the Buyer shall be entitled to a return of the Earnest Money, and
Seller shall, promptly on written request from Buyer, execute and deliver
any documents necessary to cause the Title Company to return to Buyer
the Earnest Money; or
(ii) Enforce specific performance of this Contract against Seller, requiring
Seller to convey the Property to Buyer subject to no liens, encumbrances,
exceptions, and conditions other than those shown on the Title
Commitment.
8.02 Buyer's Default and Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver
at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for
any reason other than a default by Seller under this Contract or termination of this
Contract pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's
sole and exclusive remedy for the default, may terminate this Contract by written
notice delivered to Buyer in which event the Seller shall be entitled to the Earnest
Contract of Sale
Page 10 of 20
EXHIBIT "A" Page 11 of 21
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, delivered as provided herein, and shall be deemed to be
delivered, upon the earlier to occur of (a) the date provided if provided by telephonic
facsimile, and (b) the date of the deposit of, in a regularly maintained receptacle for the
United States Mail, registered or certified, return receipt requested, postage prepaid,
addressed as follows:
SELLER:
Krista M. Black
8 Gilberstoun Place
Edinburgh EH 15 2RB
Scotland
United Kingdom
Phone: 44-131-669-3907
BUYER:
City of Denton
Paul Williamson
Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
Joel N. Fountain
945 Windermere Street
Vancouver, BC
V5K-4J6
CANADA
Phone: (604) 999-5701
Copies to:
For Beer:
Richard Casner, Deputy City Attorney
City Attorney's Office
215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 382-7923
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
Contract of Sale
Page 11 of 20
EXHIBIT "A" Page 12 of 21
COUNTY, TEXAS.
9.03 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if any,
related to the Property, and may be amended or supplemented only in writing executed
by the parry against whom enforcement is sought.
9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller
and Buyer, and their respective successors and assigns. If requested by Buyer, Seller
agrees to execute, acknowledge and record a memorandum of this Contract in the Real
Property Records of Denton County, Texas, imparting notice of this Contract to the
public.
9.05 Risk of Loss. If any damage or destruction to any improvement located on the
Land shall occur prior to Closing, or if any condemnation or any eminent domain
proceedings are threatened or initiated that might result in the taking of any portion of the
Property, Buyer may, at Buyer's option, do any of the following:
(a) Terminate this Contract and withdraw from this transaction without cost,
obligation or liability, in which case the Earnest Money shall be immediately
returned to Buyer; or
(b) Consummate this Contract, in which case Buyer, with respect to the Property,
shall be entitled to receive any (i) in the case of damage or destruction, any
insurance proceeds, together with the deductible amount under Seller's policy or
policies; and (ii) in the case of eminent domain, proceeds paid for the Property
related to the eminent domain proceedings. If Buyer makes this election, the
Closing shall be held on the tenth (10) calendar day after election is made to close
and receive the proceeds described herein.
Buyer shall have a period of ten (10) days after receipt of written notification from Seller
on the final settlement of all condemnation proceedings or insurance claims related to
damage or destruction of any improvement located on the Property, in which to make
Buyer's election.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract
and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller
and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed
and/or delivered at the Closing or after the Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated
hereby. Notwithstanding anything to the contrary contained in this Contract, the
provisions of this Article IX, Section 9.06 shall survive Closing.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
Contract of Sale
Page 12 of 20
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by
the City Council of Denton, Texas, to the Director of Parks of Buyer, or his designee.
9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing any such counterpart.
9.11 Expiration of Offer. The execution of this Contract by Seller constitutes, subject
to the terms hereof, an irrevocable offer to sell the Property to Buyer. Unless by 5:00
p.m., on August 3, 2011, this Contract is accepted by Buyer by action of the City Council
of Buyer, the offer of this Contract shall be automatically revoked and terminated.
SELLER:
By:
KRISTA M. BLACK
By: ~-zz~
J N. FOUNTAIN
Executed by Seller on the day of 2011.
BUYER:
By: GL~
G GE . CAMPBELL, ITY MANAGER
Contract of Sale
Page 13 of 20
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all'purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by
the City Council of Denton, Texas, to the Director of Parks of Buyer, or his designee.
9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing any such counterpart.
9.11 Expiration of Offer. The execution of this Contract by Seller constitutes, subject
to the terms hereof, an irrevocable offer to sell the Property to Buyer. ,,Unless by 5:00
p.m., on August 3, 2011, this Contract is accepted by Buyer by action ofthe City Council'
of Buyer, the offer of this Contract shall be automatically revoked; and. terminated.
SELLER:
Executedby Seller on the day of 2011.
BUYER:
By:
GEORGE C. CAMPBELL, CITY MANAGER
Contract of Sale
Page 13 of 20
EXHIBIT "A" Page 15 of 21
Executed by Buyer on the ~ day of J&azdl~ 2011.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
ar ~OC,-,
Contract of Sale
Page 14 of 20
EXHIBIT "A" Page 16 of 21
RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, Title Company acknowledges receipt of an executed copy
of this Contract. Title Company agrees to comply with, and be bound by, the terms and
provisions of this Contract and to perform its duties pursuant to the provisions of this
Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as
amended from time to time, and as further set forth in any regulations or forms
promulgated thereunder.
TITLE COMPANY:
Capital Title of Texas
620 West Hickory Street
Denton, TX 76201
By:
Printed Name:
Title:
Contract receipt date: , 2011
Contract of Sale
Page 15 of 20
EXHIBIT "A" Page 17 of 21
EXHIBIT "A"
to
Contract of Sale
Legal Description
228 Mockingbird Lane
0.94 ACRES
FIELD NOTES to all that certain tract of land situated in the M. Yoachum Survey, Abstract
#1442 in the City and County, of Denton, Texas and being a re-survey of a called 0.938 acre tract
of land described on the deed from Geneva Potts Trust to David Lee Dosier et ux recorded in
Volume 4130, Page 453, Real Property Records, Denton County, Texas, the subject tract being
more particularly described as follows:
BEGINNING for the Southwest corner of the tract being described herein at a point in
Mockingbird Lane and the Southwest corner of said 0.938 acre tract,
THENCE North 01 Degrees 04 Minutes 00 Seconds East with said road and the West line thereof
a distance of 176.27 feet to a point in said road for the Northwest corner of said 0.938 acre tract;
THENCE South 88 Degrees 25 Minutes 00 Seconds East at 30.00 feet passing a %2" capped iron
rod set for reference and continuing along set course, in all, a total distance of 232.35 feet to a
5/8" iron rod found for the Northeast corner of said 0.938 acre tract;
THENCE South 01 Degrees 12 Minutes 00 Seconds East along and near the remains of a fence
with the East line of said 0.938 acre tract a distance of 169.50 Feet to a capped iron rod set for
the Southeast corner of said 0.938 acre tract;
THENCE South 89 Degrees 54 Minutes 52 Seconds West along and near the remains of a fence
and the South line thereof at 209.08 feet passing a %2" capped iron rod set for reference in the
occupied East line of said road and continuing along said course, in all, a total distance of 239.09
feet to the PLACE OF BEGINNING and enclosing 0.94 acres of land more or less.
Contract of Sale
Page 16 of 20
EXHIBIT "K Page 18 of 21
EXHIBIT "B"
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 ANY INSTRUMENT THAT TRANSFERS AN
INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN
THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR
DRIVER'S LICENSE NUMBER.
GENERAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS
That Krista M. Black and Joel N. Fountain, (collectively herein called "Grantor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), and other
good and valuable consideration to Grantor in hand paid by the CITY OF DENTON,
TEXAS, a Texas Home Rule Municipal Corporation (herein called "Grantee"), 215 E.
McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby
acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these
presents does GRANT, SELL and CONVEY, unto Grantee all the real property in
Denton County, Texas being particularly described on Exhibit "A", attached hereto and
made apart hereof for all purposes, and being located in Denton County, Texas, together
with any and all rights or interests of Grantor in and to adjacent streets, alleys and rights
of way and together with all and singular the improvements and fixtures thereon and all
other rights and appurtenances thereto (collectively, the "Property").
This conveyance is subject to the following:
[Insert Permitted Exceptions, if any]
TO HAVE AND TO HOLD the Property, together with all and singular the rights
Contract of Sale
Page 17 of 20
EXHIBIT "A" Page 19 of 21
and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors
and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee and Grantee's successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof.
EXECUTED the day of , 2011.
By:
KRISTA M. BLACK
By:
JOEL N. FOUNTAIN
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on ,
, 2011 by Krista M. Black.
Notary Public, State of Texas
My commission expires:
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on
, 2011 by Joel N. Fountain.
Notary Public, State of Texas
My commission expires:
Contract of Sale
Page 18 of 20
EXHIBIT "A" Page 20 of 21
Upon Filing Return To:
The City of Denton-Engineering
Attn: Paul Williamson
901-A Texas Street
Denton, TX 76209
Contract of Sale
Page 19 of 20
EXHIBIT "A" Page 21 of 21
Exhibit "A"
To
General Warranty Deed
Legal Description
228 Mockingbird Lane
0.94 ACRES
FIELD NOTES to all that certain tract of land situated in the M. Yoachum Survey, Abstract
#1442 in the City and County, of Denton, Texas and being a re-survey of a called 0.938 acre tract
of land described on the deed from Geneva Potts Trust to David Lee Dosier et ux recorded in
Volume 4130, Page 453, Real Property Records, Denton County, Texas, the subject tract being
more particularly described as follows:
BEGINNING for the Southwest corner of the tract being described herein at a point in
Mockingbird Lane and the Southwest corner of said 0.938 acre tract,
THENCE North 01 Degrees 04 Minutes 00 Seconds East with said road and the West line thereof
a distance of 176.27 feet to a point in said road for the Northwest corner of said 0.938 acre tract;
THENCE South 88 Degrees 25 Minutes 00 Seconds East at 30.00 feet passing a'/2" capped iron
rod set for reference and continuing along set course, in all, a total distance of 232.35 feet to a
5/8" iron rod found for the Northeast corner of said 0.938 acre tract;
THENCE South 01 Degrees 12 Minutes 00 Seconds East along and near the remains of a fence
with the East line of said 0.938 acre tract a distance of 169.50 Feet to a''/z" capped iron rod set for
the Southeast corner of said 0.938 acre tract;
THENCE South 89 Degrees 54 Minutes 52 Seconds West along and near the remains of a fence
and the South line thereof at 209.08 feet passing a '/Z" capped iron rod set for reference in the
occupied East line of said road and continuing along said course, in all, a total distance of 239.09
feet to the PLACE OF BEGINNING and enclosing 0.94 acres of land more or less.
Contract of Sale
Page 20 of 20