2012-078ORDINANCE NO 2O 12-O7g
AN ORDINANCE FINDING THAT A PUBLIC USE AND NECESSITY EXISTS TO
ACQUIRE FEE SIMPLE TO AN APPROXIMATE 0.286 ACRE TRACT LOCATED 1N THE
M.E.P. & P.R.R. SURVEY, ABSTRACT NUMBER 1475, CITY OF DENTON, DENTON
COUNTY, TEXAS, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A",
ATTACHED HERETO AND MADE A PART HEREOF, LOCATED GENERALLY IN THE
2500 BLOCK OF MCKINNEY STREET (THE "PROPERTY INTERESTS"), FOR THE
PUBLIC USE OF EXPANDING AND IMPROVING THE DENTON MUNICIPAL
ELECTRIC DISTRIBUTION AND TRANSMISSION SYSTEM; AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO BOBBY R. MITCHELL AND
WIFE, CORINE MITCHELL (THE "OWNER") TO PURCHASE THE PROPERTY
INTERESTS FOR THE PURCHASE PRICE OF SIXTY EIGHT THOUSAND SIX HUNDRED
THIRTY ONE DOLLARS AND NO CENTS ($68,631.00), AND OTHER CONSIDERATION,
AS PRESCRIBED IN THE CONTRACT OF SALE (THE "AGREEMENT"), AS ATTACHED
HERETO AND MADE A PART HEREOF AS EXHIBIT "B"; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, after due consideration of the public interest and necessity and the public
use and benefit to accrue to the City of Denton, Texas; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The Council finds that a public use and necessity exists, and that the public
welfare and convenience require the acquisition of the Property Interests by the City of Denton,
Texas (the "City"). The City Council hereby finds and determines that the acquisition of the
Property Interests is necessary for public use to provide electric utility expansion and
improvements to serve the public and citizens of the City of Denton, Texas.
SECTION 2. The City Manager, or his designee, is hereby authorized to malce a formal
offer to the Owner to purchase the Property Interests from the Owner.
SECTION 3. The City Manager, or his designee, is hereby authorized to execute for and
on behalf of the City (i) the Agreement, by and between the City and Owner, in the form
attached hereto and made a part hereof as Exhibit "B", with a purchase price of $68,631.00 and
other consideration, plus costs and expenses, all as prescribed in the Agreement; and (ii) any
other documents necessary for closing the transaction contemplated by the Agreement.
SECTION 4. The City Manager, or his designee, is directed, by certified mail, return
receipt requested, to disclose to Owner any and all appraisal reports produced or acquired by the
City relating specifically to the Owner's property and prepared in the 10 years preceding the date
of the offer made by the Agreement.
SECTION 5. The offer to Owner shall be made in accordance with a11 applicable law.
SECTION 6. The City Manager is authorized to make expenditures in accordance with
(i) the terms of the Agreement; and (ii) Ordinance No. 2012-073, dated April 17, 2012,
pertaining to relocation related expenses and advisory services.
SECTION 7. If any section, article, paragraph, sentence, phrase, clause or word in this
ordinance, or application thereof to any persons or circumstances, is held invalid or
unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of
the remaining portions of this ordinance; the City Council declares that it would have ordained
such remaining portion despite such invalidity, and such remaining portion shall remain in full
force and effect.
SECTION 8. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the ���� da of J�1 l 2012
Y �
;
M RK A: B OU �' S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
VED AS TO LEGAL FORM:
ATTORNEY
ANITA BURGESS, CITY
BY: i�[� �
Page 2
EXHIBIT "A"
TO ORDINANCE
LEGAL DESCRIPTION
BEING all that certain lot, tract or parcel ofland situated in the M.E.P. & P.R.R. Survey,
Abstract Number 1475, City of Denton, Denton County, Texas, and being a part of a tract of
land described by deeds to Bobby R. Mitchell and wife, Corine Mitchell, recorded in Volume
419, Page 22 and Volume 473, Page 673 of the Deed Records, Denton County, Texas
(D.R.D.C.T.), and being more particularly described as follows;
BEGINNING at a point for the southeast comer of said Mitchell tract and a northeast comer
of a tract of land described by deed to Gary Dennis Dillard and wife, Jaymi Chris Dillard,
recorded in Volume 1188, Page 730, D.R.D.C.T., same point being in the west line of a tract
of land described in deed to Joan Cohagen, Trustee of the Joan Cohagen Living Trust,
recorded under Instrument Number 2005-69429, Official Public Records, Denton County,
Texas;
THENCE South 89 degrees 50 minutes 45 seconds West, with the south line of said Mitchell
tract and a north line of said Dillard tract for a distance of 74.81 feet to a point for the
southwest comer of said Mitchell tract and an inner ell comer of said Dillard tract;
THENCE North 00 degrees 47 minutes 38 seconds East, with the west line of said Mitchell
tract and an east line of said Dillard tract for a distance of 177.14 feet to a point for the north
west comer of said Mitchell tract and the most northerly northeast comer of said Dillard tract,
and being in the south right of way line of McKinney Street (F.M. 426);
THENCE South 72 degrees 31 minutes 34 seconds East, with the north line of said Mitchell
tract and the south right of way line of McKinney Street (F.M. 426) for a distance of79.45
feet to a point for the northeast comer of said Mitchell tract, same point being in the west line
of said Cohagen tract;
THENCE South O1 degrees 16 minutes 53 seconds West, with the east line of said Mitchell
tract and the west line of said Cohagen tract for a distance of 153.10 feet to the POINT OF
BEGINNING and containing 0.286 acre of land, more or less.
Page 3
STATE OF TEXAS §
COUNTY OF DENTON §
EXHIBIT "B"
TO ORDINANCE
CONTRACT OF SALE
NOTICE
YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE
THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT
REGARDING THE CITY OF DENTON'S ACQUISITION OF THE
PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR
AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR
AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE.
This Contract of Sale (the "Contract") is made this ���� da of
Y
/ , 2012, effective as of the date of execution hereof by Seller, as
defined herein (the "Effective Date"), by and between Bobby R, Mitchell and wife,
Corine Mitchell (collectively referred to herein as "Seller") and the City of Denton,
Texas, a Home 1Zule Municipal Corporation of Denton County, Texas (referred to herein
as "Buyer").
RECITALS
WHEREAS, Seller owns that certain tract of land being more particularTy
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,
the Land, together with any and all rights or interests of Seller in and to adjacent streets,
alleys and rights of way and together with all and singular the improvements and fixtures
thereon and all other rights and appurtenances to the Land (collectively, the "Property");
and
WHEREAS, unless expressly provided otherwise in tlus 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, and subject to the reservations herein, Seller agrees to sell
and convey to Buyer, and Buyer agrees to purchase from Seller, the Propertya
Seller, subject to the limitation of such reservation made herein, shall reserve, for
themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in,
on and under and that may be produced from the Property. Seller, their heirs, devisees,
successors and assigns shall not have the right to use or access the surface of the
Property, in any way, manner or form, in connection with or related to the reserved oil,
gas, and other minerals and/or related to exploration and/or production of the oil, gas and
other minerals reserved herein, including without limitation, use or access of the surface
of the Property for the location of any well or drill sites, well bores, whether vertical or
any deviation from vertical, water wells, pit areas, seismic activities, tanlcs 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 lcind or type in connection with or related to the reserved oil, gas and
other minerals, and/or related to the exploration or production of same.
As used herein, the term "minerals" shall include oil, gas and all associated
hydrocaxbons, and shall exclude (i) all substances (except oil, gas and all associated
hydrocarbons) that any reasonable extraction, mining or other exploration and/or
production method, operation, process or procedure would consume, deplete or destroy
the surface of the Property; and (ii) all substances (except oil and gas) which are at or
near the surface of the Property. The intent of the parties hereto is that the meaning of
the term "minerals" as utilized herein, shall be in accordance with that set forth in Reed v.
Wylie, 597 S.W.2d 743 (Tex. 1980).
As used herein, the term "surface of the Property" shall include the area from the
surface of the earth to a depth of five hundred feet (500') below the surface of the earth
and all areas above the surface of the earth.
ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller jointly for the Property
is the sum of Sixty Eight Thousand Six Hundred Thirty One and No/100 Dollars
($68,631.00) (the "Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100
Dollars ($1,000.00), as Earnest Money (herein so called) with Title Resources, 525 South
Loop 288, Suite 125, Denton, Texas 76205-4515, (the "Title Company"), as escrow
agent, within fourteen (14) calendar days of the Effective Date hereof. All interest earned
thereon shall become part of the Earnest Money and shall be applied or disposed of in the
same manner as the original Earnest Money deposit, as provided in this Contract. If the
purchase contemplated hereunder is consummated in accordance with the terms and the
provisions hereof, the Earnest Money, together with all interest earned thereon, shall be
applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the
interest accrued thereon, shall be disposed of by the Title Company as provided in this
Contract.
2.03 Independent Contract Cansideration. Within fourteen (14) calendar days after
the Effective Date, Buyer sha11 deliver to the Title Company, payable j ointly to and for
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Page 2 of 21
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 ar equities of any nature (each of which are referred to herein as
an "Exception"). ,
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments
that create or evidence Exceptions (the "Exception Documents"), including those
described in the Title Commitment as exceptions to which the conveyance will be
subject and/or which are required to be released or cured at or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall
cause to be prepared at Buyer's expense, a current on the ground survey of the Property
(the "Survey"). The contents of the Survey shall be prepared by a surveyor selected by
Buyer and shall include the matters prescribed by Buyer, which may include but not be
limited to, a depiction of the location of all roads, streets, easements and rights of way,
both on and adjoining the Property, water courses, 100 year flood plain, fences and
improvements and structures of any kind. The Survey shall describe the size of the
Property, in acres, and contain a metes and bounds description thereof. Seller shall
furnish or cause to be furnished any affidavits, certificates, assurances, and/or resolutions
as required by the Title Company in order to amend the survey exception as required by
Section 3.05 below. The description of the Property as set forth in the Survey, at the
Buyer's election, shall be used to describe the Property in the deed to convey the Property
to Buyer and shall be the description set forth in the Title Policyo
3.03 Revaew of Title Commitment, Survey and Exception Documents. Buyer shall
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Page 3 of 21
have a period of fifteen (15) calendar days (the "Title Review Period") commencing with
the day Buyer receives the last of the Title Commitment, the Survey, and the Exception
Documents, in which to give written notice to Seller, specifying Buyer's objections to
one or more of the items ("Objections"), if any. All items set forth in the Schedule C of
the Title Commitment, and all other items set forth in the Title Commitment which are
required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be
Objections without any action by Buyer.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall,
within twenty (20) calendar days after Seller is provided notice of Objections, either
satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in
writing of the Objections that Seller cannot or will not satisfy at Seller's expense.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure
those Objections or Exceptions that have been voluntarily placed on or against the
Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any
Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day
period, and if Buyer does not agree in writing to an extension of that period, said
extension to not exceed an additional thirty (30) calendar days, then Buyer has the option
of either:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller
prior to Closing, in which event those Objections shall become Permitted
Exceptions (herein so called), or
(b) terminating this Contract by notice in writing prior to Closing and receiving back
the Earnest Money, in which latter event Seller and Buyer sha11 have no further
obligations, one to the other, with respect to the subject matter of this Contract.
3.04.A Additional Title Commitment. Due to the fact that the effective period of the
Title Commitment shall expire prior to Closing, Seller shall cause to be furnished to
Buyer, no earlier than ninety one (91) calendar days after the Effective Date and no later
than one hundred ten (110) calendar days after the Effective Date, a Title Commitment
("Updated Commitment"), in the form of the Title Commitment prescribed by Section
3.01, above. Buyer shall have fifteen (15) calendar days to review and provide
Objections, if any, to the items in the Updated Commitment in the same manner as
prescribed by Section 3.03 related to the Title Commitment. All time periods related to
review and cure of the Objections, waiver of uncured Objections and termination of this
Contract, as set forth in Article III, above, shall be applicable to the Obj ections by Buyer
to the Updated Commitment, if any, and Closing shall be so extended to accommodate
such review and cure period.
3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a
standard Texas Owner's Policy of Title Insurance ("Title Policy") to be furnished to
Buyer. The Title Policy shall be issued by the Title Company, in the amount of the
Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property,
subject only to the Permitted Exceptions. The Title Policy may contain only the
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Page 4 of 21
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 Buyer, of any required additional premium);
(b) no exception will be permitted for "visible and apparent easements" or words to
that effect (although reference may be made to any specific easement or use
shown on the Survey, if a Permitted Exception);
(c) no exception will be permitted for "rights of parties in possession";
(d) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or
deletions, Buyer may object to any Exception it deems material, in its sole discretion.
ARTICLE IV
FEASIBILITY REVIEW PERIOD
4.01 Review Period. Any term or provision of this Contract notwithstanding, the
obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having
determined, in Buyer's sole and absolute discretion, during the period commencing with
the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the
"Absolute Review Period"), based on such tests, examinations, studies, investigations and
inspections of the Property the Buyer deems necessary or desirable, including but not
limited to studies or inspections to determine the existence of any environmental hazards
or conditions, performed at Buyer's sole cost, that Buyer finds the Property suitable for
Buyer's purposes. Buyer is granted the right to conduct engineering studies of the
Property, and to conduct a physical inspection of the Property, including inspections that
invade the surface and subsurface of the Property. If Buyer determines, in its sole
judgment, that the Property is not suitable, for any reason, for Buyer's intended use or
purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as
reasonably practicable, but in any event prior to the expiration of the Absolute Review
Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor
Seller shall have any further duties or obligations hereunder. In the event Buyer elects to
terminate this Contract pursuant to the terms of this Article IV, Section 4.01, Buyer will
provide to Seller copies of (i) any and all non-confidential and non-privileged reports and
studies obtained by Buyer during the Absolute Review Period; a.nd (ii) the Surveyo
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Page 5 of 21
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, 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 hereundero
(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 ar
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
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Page 6 of 21
of any Hazardous Substance to, on or from the Property.
As used in this Contract, "Hazardous Substance" means and includes all
hazardous and toxic substances, waste or materials, chemicals, and any pollutant
or contaminant, including without limitation, PCB's, asbestos, asbestos-
containing material, petroleum products and raw materials, that are included
under or regulated by any Environmental Law or that would or may pose a health,
safety or environmental hazard.
As used in this Contract, "Environmental Law" means and includes all federal,
state, and local statutes, ordinances, regulations and rules presently in force or
hereafter enacted relating to environmental quality, contamination, and clean-up
of Hazardous Substances, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et
seq.), as amended by the Superfund Amendments and Reauthorization Act of
1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as
amended, Toxic Substance Control Act, 15 U.S.C. 2601, et seq., and state
superlien and environmental clean-up statutes and all rules and regulations
presently or hereafter promulgated under or related to said statutes, as amended.
(j) All Leases, as defined in Article V, Section 5.02(a), shall have expired or
otherwise terminated and subject to applicable law and the Relocation Ordinance,
as defined below, any and all tenants or parties occupying the Property pursuant
to the Leases shall have permanently abandoned and vacated the Property on or
before the date of Closing.
(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) calendar days after the Effective Date,
Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the
Property, true, correct, and complete copies of the following:
(i) All lease agreements and/or occupancy agreements and/or licenses of any
kind or nature (if oral, Seller shall provide to Buyer in writing all material
terms thereo� 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.
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Page 7 of 21
{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.
(ii) Advise the Buyer promptly of any litigation, arbitration, or administrative
hearing concerning or affecting the Property.
(iii) Not take, or omit to take, any action that would result in a violation of the
representations, warranties, covenants, and agreements of Seller.
(iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or
to the Property, or create, grant or permit to be attached or perfected, any
lien, encumbrance, or charge thereon.
(c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law,
from all loss, liability, and expense, including, without limitation, reasonable
attomeys' fees, arising or incurred as a result of any liens or claims resulting from
labor or materials fiarnished 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 agreeznents of Seller
contained in this Contract shall survive the Closing, and sha11 not, in any circumstance,
be merged with the Special Warranty Deed, as described in Article VII, Section 7.02(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, all of the following shall have
occurred:
(a) Seller has performed, furnished, or caused to be furnished to Buyer all items
required to be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the iime 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
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Page 8 of 21
specific reference is made to another date.
6.03 Adverse Changeo Buyer is not obligated to perform under this Contract, if on the
date of Closing, any portion of the Property has been condemned by an entity other than
Buyer, or is the subject of condemnation, eminent domain, or other material proceeding
initiated by an entity other than Buyer, or the Property, or any part thereof, has been
materially or adversely impaired in any manner.
6004 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 be one hundred eighty (180) calendar days after the Effective Date, unless
otherwise mutually agreed upon by Buyer and Seller.
7.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or
the Title Company, at the expense of the party designated herein, the following
items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
(ii) The Special Warranty Deed, substantially in the form as attached hereto as
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Page 9 of 21
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 consuiiunating the Closing.
(b) Buyer• At the Closing, Buyer shall deliver to Seller or the Title Company9 the
following items:
(i) The sum required by Article II, Section 2.O1, less the Earnest Money and
interest earned thereon, in the form of a check or cashier's check or other
immediately available funds;
(ii) Other items reasonably requested by the Title Cornpany as administrative
requirements for consummating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in
this Contract and without limiting the general application of the provisions of Section
5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing.
The following item shall be adjusted or prorated between Seller and Buyer with respect to
the Property:
(a) Ad valorem taxes relating to the Property for the calendar year in which the
Closing shall occur shall be prorated between Seller and Buyer as of the Closing
Date. If the actual amount of ta�Yes for the calendar year in which the Closing
shall occur is not known as of the Closing Date, the proration at Closing shall be
based on the amount of taxes due and payable with respect to the Property for the
preceding calendar year. As soon as the amount of taxes levied against the
Property for the calendar year in which Closing shall occur is known, Seller and
Buyer shall readjust in cash the amount of taxes to be paid by each party with the
result that Seller shall pay for those taxes attributable to the period of time prior to
the Closing Date (including, but not limited to, subsequent assessments for prior
years due to change of land usage or ownership occurring prior to the Closing
Date) and Buyer shall pay for those t�es attributable to the period of time
commencing with the Closing Date.
7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at
Closing.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its
counsel, in negotiating, preparing, and closing the transaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses identified herein as
being the responsibility of Seller. Buyer is responsible for paying fees, costs and
expenses identified herein as being the responsibility of Buyer. If the responsibility for
such costs or expenses associated with closing the transaction contemplated by this
Contract are not identified herein, such costs or expenses shall be allocated between the
Contract of Sale
Page 10 of 21
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 Defaultso 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 Confiract by Buyer pursuant to the terms
hereof prior to Closing.
(b) Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's
sole and exclusive remedies for the default, may, at Buyer's sole option, do any of
the following:
(i) Terminate this Contract by written notice delivered to Sellex in which
event the Buyer shall be entitled to a return of the Earnest Money, and
Seller shall, promptly on written request from Buyer, execute and deliver
any documents necessary to cause the Title Company to return to Buyer
the Earnest Money;
(ii) Enforce specific performance of this Contract against Seller, requiring
Seller to convey the Property to Buyer subject to no liens, encumbrances,
exceptions, and conditions other than those shown on the Title
Commitment, whereupon Buyer shall waive title objections, if any, and
accept such title without reduction in Purchase Price on account of title
defects and shall be entitled to assert any rights for damages based on
Seller's representations, warranties and obligations that are not waived by
Buyer by its acceptance of Seller's title; and
(iii) Seek other recourse or relief as may be available to Buyer at or by law,
equity, contract or otherwise.
8.02 Buyer's Default and Seller's Remedies.
Contract of Sale
Page 11 of 21
(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 by Buyer pursuant to the terms hereof prior to Closing,
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's
sole and exclusive remedies for the default, may, at Seller's sole option, do either
one of the following:
(i) Terminate this Contract by written notice delivered to Buyer in which
event the Seller shall be entitled to a return of the Earnest Money, and
Buyer shall, promptly on written request from Seller, execute and deliver
any documents necessary to cause the Title Company to return to Seller
the Earnest Money; or
(ii) Enforce specific performance of this Contract against Buyer.
ARTICLE IX
MISCELLANEOUS
9.01 Notice. All notices, demands, requests, and other communications required
hereunder shall be in writing, delivered, unless expressly provided otherwise in this
Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be
deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by
telephonic facsimile or hand delivery, and (b) the date of the deposit of, in a regularly
maintained receptacle for the United States Mail, registered or certified, return receipt
requested, postage prepaid, addressed as follows:
SELLER: BUYER:
Telecopy
Copies to:
For Seller:
Telecopy:
City of Denton
Paul Williamson
Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
For Buyer:
Richard Casner, Deputy City Attorney
City Attorney's Ofiice
215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 382-7923
Contract of Sale
Page 12 of 21
9.02 Governing Law and Venue. This Contract is being eYecuted 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 1N, AND THE EXCLUSIVE VENUE FOR ANY
ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE 1N DENTON
COUNTY, TEXAS.
9.03 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if any,
related to the Property, and may be amended or supplemented only in writing executed
by the party against whom enforcement is sought.
9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller
and Buyer, and their respective successors and assigns. If requested by Buyer, Seller
agrees to execute, acknowledge and record a memorandum of this Contract in the Real
Property Recards of Denton County, Texas, imparting notice of tlus Contract to the
public.
9.05 Risk of Loss. If any damage or destruction to the Property shall occur prior to
Closing, or if any condemnation or any erninent domain proceedings are threatened or
initiated by an entity or party other than Suyer that might result in tke 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) Consmnmate this Contract, in which case Buyer, with respect to the Property,
shall be entitled to receive any (i) in the case of damage or destruction, all
insurance proceeds; and (ii) in the case of eminent domain, proceeds paid for the
Property related to the eminent domain proceedings.
Buyer shall have a period of up to ten (10) calendar days after receipt of written
notification from Seller on the final settlement of all condemnation proceedings or
insurance claims related to damage or destruction of any improvement located on
the Property, in which to make Buyer's election. In the event Buyer elects to
close prior to such final settlement, then the Closing shall take place as provided
in Article VII, above, and there shall be assigned by Seller to Buyer at Closing all
interests of Seller in and to any and all insurance proceeds or condemnation
awards which may be payable to Seller on account of such event. In the event
Buyer elects to close upon this Contract after final settlement, as described above,
Closing shall be held five (5) business days after such final settlement.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract
Contract of Sale
Page 13 of 21
and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller
and Buyer agree to perform, execute and/or deliver, or cause to be performed, executed
and/or delivered at the Closing or after the Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated
hereby. Notwithstanding anything to the contrary contained in this Contract and without
limiting the general application of the provisions of Section 5.03, above, the provisions
of this Article IX, Section 9.06 shall survive Closing.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract, including without limitation, adjustment of the
Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of
Denton, Texas, to Phil Williams, General Manager/Electric Administration of Buyer, or
his designee.
9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing any such counterpart,
9.11 Business Days. If the Closing Date or the day of performance required or
permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then
the Closing Date or the date of such performance, as the case may be, shall be the next
following regular business day.
9.12 Relocation. Relocation advisory services and relocation financial assistance, if
applicable pursuant to Ordinance No. 2012-073 (the "Relocation Ordinance"), shall be
administered as provided by the Relocation Ordinance, aside and apart from the
transaction contemplated by this Contract.
SELLER:
Bobby R. Mitchell
Corine Mitchell
Executed by Seller on the day of 2012.
Contract of Sale
Page 14 of 21
BUYER:
p
By: � ����lll l.� ��h�� ��'"
GEORGE C. CA BELL, CIT M NAGER
��Z� i��
Executed by Buyer on the � day of � C 2012.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: �
s:llegallour documentslcontracts1121mitchell offer to purchase contract of Sale.dOC
Contract of Sale
Page 15 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 furtlier set forth in any regulations or forms
promulgated thereurider.
TITLE COMPANY:
Title Resources
525 South Loop 288, Suite 125
Denton, Texas 76205-4515
By:
Printed Name:
Title:
Contract receipt date: , 2012
Contract of Sale
Page 16 of 21
EXHIBIT "A"
to
Contract of Sale
Legal Description
BEING all that certain lot, tract or parcel oflancl situated in the M.E.P. & P.R.R.
Survey, Abstract Nuinber 1475, City of Denton, Denton County, Texas, and being a
part of a tract of land described by deeds to Bobby R. Mitchell and wife, Corine
Mitchell, recorded in Vohime 419, Page 22 and Volume 473, Page 673 of the Deed
Records, Denton County, Texas (D.R.D.C.T.), and being more particularly described
as follows;
BEGINNING at a point for the southeast comer of said Mitchell tract and a northeast
comer of a tract of land described by deed to Gary Dennis Dillard and wife, Jaymi
Chris Dillard, recorded in Volume 1188, Page 730, D.R.D.C.T., same point being in
the west line of a tract of land described in deed to Joan Cohagen, Trustee of the Joan
Cohagen Living Trust, recorded under Instrument Number 2005-69429, Off cial
Public Records, Denton County, TeYas;
THENCE South 89 degrees 50 minutes 45 seconds West, with the south line of said
Mitchell tract and a north line of said Dillard tract for a distance of 74. S 1 feet to a
point for the southwest comer of said Mitchell tract and an inner ell comer of said
Dillard tract;
THENCE North 00 degrees 47 minutes 3 S seconds East, with the west line of said
Mitchell tract and an east line of said Dillard tract for a distance of 177.14 feet to a
point far the north west comer of said Mitchell tract and the most northerly northeast
comer of said Dillard tract, and being in the south right of way line of McKinney
Street (F.M. 426);
THENCE South 72 degrees 31 minutes 34 seconds East, with the north line of said
Mitchell tract and the south right of way line of McKinney Street (F.M. 426) for a
distance of79.45 feet to a point for the northeast comer of said Mitchell tract, same
point being in the west line of said Cohagen tract;
THENCE South O1 degrees 16 minutes 53 seconds West, with the east line of said
Mitchell tract and the west line of said Cohagen tract for a distance of 153.10 feet to
the POINT OF BEGINNING and containing 0.286 acre of land, more or less.
Contract of Sale
Page 17 of 21
EXHIBIT "B"
to
Contract of Sale
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE
FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUit DRIVEIt'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS
That Bobby R. Mitchell and wife, Corine Mitchell (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, subject to the reservations set forth below, has GRANTED,
SOLD and CONVEYED, and by these presents does GRANT, SELL and CONVEY,
unto Grantee all the real property in Denton County, Texas being particularly described
on Exhibit "A", attached hereto and made a part hereof for all purposes, and being
located in Denton County, Texas, together with any and all rights or interests of Grantor
in and to adjacent streets, alleys and rights of way and fiogether with all and singular the
improvements and fixtures thereon and all other rights and appurtenances thereto
(collectively, the "Property").
Grantor, subject to the limitation of such reservation made herein, reserves, for
themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in,
on and under and that may be produced from the Propertye Grantor, their heirs, devisees,
Contract of Sale
Page 18 of 21
successors and assigns shall riot 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 andlor 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 bares, whether vertical or
any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank
batteries, pipelines, roads, electricity ar 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 ar related to the reserved oi1, gas and
other minerals, andlor related to the exploration or production of same.
As used herein, the term "minerals" shall include oil, gas and all associated
hydrocarbons, and shall exclude (i) a11 substances (except oil, gas and all associated
hydrocarbons) that any reasonable extraction, mining or other exploration and/or
production method, operation, process or procedure would consume, deplete or destroy
the surface of the Property; and (u) 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]
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors
and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and
assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto
Contract of Sale
Page 19 of 21
Grantee and Grantee's successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof when the claim is by, through, or under
Grantor but not otherwise.
EXECUTED the
THE STATE OF
COUNTY OF
day of , 2012
Bobby R. Mitchell
Corine Mitchell
ACKNOWLEDGMENT
0
0
This instrument was acknowledged before me on ,
, 2012 by Bobby R. Mitchell.
THE STATE OF
COUNTY OF
�
��
Notary Public, State of Texas
My commission expires:
ACKNOWLEDGMENT
This instrument was acknowledged before me on ,
, 2012 by Corine Mitchell.
Upon Filing Return To:
The City of Denton-Engineering
Attn: Paul Williamson
901-A Texas Street
Denton, TX 76209
Contract of Sale
Page 20 of 21
Notary Public, State of Texas
My commission expires:
Tax Bills To:
City of Denton Finance Department
215 East McKinney Street
Denton, Texas 76201
Exhibit "A"
To
Special Warranty Deed
Legal Description
BEING all that certain lot, tract or parcel ofland situated in the M.E.P. & P.R.R.
Survey, Abstract Number 1475, City of Denton, Denton County, Texas, and being a
part of a tract of land described by deeds to Bobby R. Mitchell and wife, Corine
Mitchell, recorded in Volume 419, Page 22 and Volume 473, Page 673 of the Deed
Records, Denton Cotulty, Texas (D.R.D.C.T.), and being more particularly described
as follows;
BEGINNING at a point for the southeast comer of said Mitchell tract and a northeast
comer of a tract of land described by deed to Gary Dennis Dillard and wife, Jaymi
Chris Dillard, recarded in Voltlme 1188, Page 730, D.R.D.C.T., same point being in
the west line of a tract of land described in deed to Joan Cohagen, Trustee of the Joan
Cohagen Living Trust, recorded under Instrument Number 2005-69429, Official
Public Records, Denton County, Texas;
THENCE South 89 degrees 50 minutes 45 seconds West, with the south line of said
Mitchell tract and a north line of said Dillard tract for a distance of 74.81 feet to a
point for the southwest comer of said Mitchell tract and an inner ell comer of said
Dillard tract;
THENCE North 00 degrees 47 minutes 38 seconds East, with the west line of said
Mitchell tract and an east line of said Dillard tract for a distance of 177.14 feet to a
point for the north west comer of said Mitchell tract and the most northerly northeast
comer of said Dillard tract, and being in the south right of way line of McKinney
Street (F.M. 426);
THENCE South 72 degrees 31 minutes 34 seconds East, with the north line of said
Mitchell tract and the south right of way line of McKinney Street (F.M. 426) for a
distance of79.45 feet to a point for the northeast comer of said Mitchell tract, same
point being in the �vest line of said Cohagen tract;
THENCE South Ol degrees 16 minutes 53 seconds West, with the east line of said
Mitchell tract and the west line of said Cohagen tract for a distance of 153.10 feet to
the POINT OF BEGINNING and containing 0.286 acre of land, more or less.
Contract of Sale
Page 21 of 21