2012-150s:\legal\our documents\ordinances1121davenport final offer ordinance.doc
ORDINANCE NO. 2� 12-i s�
AN ORDINANCE AUTHORIZING THE EXECUTION OF A CONTRACT OF SALE, BY
AND BETWEEN THE CITY OF DENTON, TEXAS, AS BUYER, AND DEWITT S.
DAVENPORT, AS SELLER (HEREIN SO CALLED), REGARDING THE SALE AND
PURCHASE OF FEE SIMPLE TO AN APPROXIMATE 0.2159 ACRE TRACT LOCATED IN
THE M.E.P. & P. RAILROAD SURVEY, ABSTRACT NUMBER 1473, KNOWN AS LOT 24,
BLOCK A, OF BELLAIRE CROSSING, 1N THE CITY OF DENTON, DENTON COUNTY,
TEXAS, ACCORDING TO THE PLAT THEREOF RECORDED IN CABINET W, PAGE 667,
PLAT RECORDS, DENTON COUNTY, TEXAS, LOCATED GENERALLY ALONG THE
NORTH LINE OF PAISLEY STREET, WEST OF PACE DRIVE (THE "PROPERTY
INTERESTS"), FOR THE PURCHASE PRICE OF ONE HUNDRED AND SEVENTEEN
THOUSAND DOLLARS AND NO CENTS ($117,000.00), AND OTHER CONSIDER.ATION,
AS PRESCRIBED 1N THE CONTRACT OF SALE (THE "CONTRACT"), AS ATTACHED
HERETO AND MADE A PART HEREOF AS EXHIBIT "A"; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; AUTHORIZING RELOCATION
EXPENDITURES; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Denton ("City") made an initial offer to the Owner to purchase
the Property Interests, pursuant to Ordinance No. 2012-102, passed and approved by the City
Council of the City of Denton on May 15, 2012;
WHEREAS, Owner rejected the initial offer by making a counteroffer to City on or about
June 22, 2012;
WHEREAS, the terms of the counteroffer, as set forth in the Contract, are acceptable to
the City and in the best interest of the citizens of the City; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City 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. 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 (a) to execute for
and on behalf of the City (i) the Contract, by and between the City and Seller, in the form
attached hereto and made a part hereof as Exhibit "A", with a purchase price of $117,000.00 and
other consideration, plus costs and expenses, all as prescribed in the Contract; and (ii) any other
documents necessary for closing the transaction contemplated by the Contract; and (b) to make
expenditures in accordance with the terms of the Contract.
SECTION 3. The City Manager is authorized to malce expenditures in accordance with
Ordinance No. 2012-073, dated April 17, 2012, pertaining to relocation related expenses and
advisory services.
SECTION 4. 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 5. This ordinance shall become effective immediately upon its passage and
approval.
PAS SED AND APPROVED this the % 7�� day of , 2012
r �
1 �
�- ,�c. .�-�
M RK . B'�J OUG S, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
��
BY: ��
Page 2
� � e
STATE OF TEXAS §
COUNTY �F DEl�ITON §
CONTRACT OF SALE
NOTICE
YOU, AS OWNER OF TFIE PROPERTY {AS DEFINED SELOW}, HA'VE
THE RIGHT T�: {1) DYSCUSS ANY OFFER OR AGREEME�TT
REGARDYNG TIiE CIT�' �OF DENTON'S ACQUI�ITION OF THE
PROPERTY WITH OT�ERS; OR (2) KEEP THE OFi{ + R OR
AGI2EEMENT CONFlDENTIAL, UNLESS THE OFFER OR
AGREEMENT IS SUB.i�CT TO CHAPTER 552, GOVERNM�NT COD�.
This Coni�•act of Sale (the "Cont�act") is made tl�is ��G day of
2012, effective as af the date of execution hereof by Seller, as
define he ein {the "Effective Date"), by and bei:ween DeWitt S. Davanpori (referred to
herein as "Seller") and tlie City of Denton, Texas, a Home Rulc Municipal Cozpoxatxon of
Denton County, Texas (referred to herein as "Buyer"). .
REC`ITALS
WIIEREAS, Seller awns thai certain tract of �a�d being more particulax�y
described on Exhibit "A", attached hereto and made a paxt hereof for all pulposes, being
located �n Denton County, Texas. (the "Land"}; and
WI-�R.EAS, Seller deszres to sell to Buyer, and Buyer desires to 1�uy froin Seliez•,
tlte Land, together with �uzy an,d all rights or interests of Sellez' in at�.d to adjacent streets,
alleys and �•i�hts of way and together with all and singular the unproveinents and �'ixtures
thereon and all other rights and appui�tenances to tl�e Land (collectively, the "Property").
ARTICLE I
SALE OF PR�PERTY
For the consideration hereinafter set forth, and u�on the terins, conditions and
�ro�isions herein contained, and subject #o the resex�vations herein, Seller agrees to sell
and convey to Buycr, and Buyer agrees to purchase :Croxn Seller, the Property.
Seller, suUject to #he lunitation of such reservation made lxerein, shall resexve, for
hinnself, his heirs, devisees, successors and assigns all oil, gas and othei muzez•als in, on
and uncier and tliat xnay be produced from the Property. Seller, his heus, devisees,
successoxs and assigns sl�all not have the iight to use oz� access the surface of tlae
Propex�ty, in any way, inanner or fornl, in connection with or related to the reserved oil,
gas, and othez� m.inerals and/or z•elated to exploration andlor production oi't11e oil, gas az�d
othei° minerals reserved herein, including without limitaiion, use or access of the sl.uface
af t11e Property foz the location of any well or drill sites, well bores, whetk�er �ez�ical or
auy deviation from vertical, waier wells, pit areas, seismzc aciivities, tanks or tank
batterzes, pipelines, roads, electricity or of.�er utility infcasta•ucture, andJor for subjacent or
lateral support for any surface facilities or well bores, or any other infrastructure or
improvement of any kind or iype in conneciion wifih or �•elated to the resei�ved oil, gas and
oiher muierals, and/or related to the exploxation ox• �roduction of same.
As used herein, the tezxn "minerals" shall include oil, gas and a11 associated
hydxocaibons, and shall exclude (i) all substances (e�cept oil, gas azid all associated
hydrocaa�boiis} that any reasonable ex�iaction, mixaing or other exploxation and/or
product�on method, operation, process or procedure would cansume, deplete or destxoy
ihe s�rface of the �roperty; and (ii) all substances {except oil and gas} which aie at or
near the siuface of the Property. Tk�e intent of the parties hereto is that the meaning of
t1�e tezin "minex•als" as unlized herein, sha11 be in accordance with that set foirth in Reed v.
YVylie, 597 S.�V.2d 743 (Tex. 1980),
As used herein, the tezxn "surface of the Property" slaall include the area from tka
surface af the earth to a depth of five hundxed feet (500') below the sur£ace of the earth
and all areas above the surface of the eai�th,
ARTICLE II
PURCHA.SE P1tICE AND EARNEST MOIR�EY
2.01 Purcbase Price.
sum of One �Iundred
"Purchase price").
The Purchase Price to be paid to Seller for the Propex�ty is the
Seventeen Thausand and No/100 Do�la.rs ($117,OQ0,00) (the
2.02 Earnest Money, Bnyer shall deposit the su� af One Thousand and No/100
T�ollars ($1,OOQ.00), as Earnest Money (herein so calied) wifih Title Resources, LLC, S2S
South Loop 288 , Suite 125, Denton, Texas, 76205 (the "Title Company"), as escrow
agent, within fourteen (14) calerzdar days of fihe Effecti�ve Date hereof All interest eaxned
thereon shall become part oithe Earnest Moz�ey and shall be applied o� disposed of zn the
same manner as the oi7ginal Ea�nest Mon.ey deposit, as provided in this Cont�act. If the
ptarchase contemplated hereunder i.s consummated in accordance with the terms aud the
provisions hereof, the Eaxnest 1Vloney, tflgeiher with all ii�terest earned thereon, shall l�e
applied to the Purchase Pxice at Closing. In all other events, the Eaxnest Money, and tkze
interest accrued thereon, shall be disposed of by the Title Coix��any as �rovided in tbis
Contract.
2e03 Independent Contract Cansideration. Witivn. fourieen (14) calendar days after
the Effective Date, Buyer sha11 deliver to the Tit1e Cobapany, payable to and for the
Uene�t of Se11ex°, a checic in the anaount of One Hundred and No/100 Dollars ($100,00�
(fi1�e "Indcpendent Conix•act Consideration"}, which aln.ount the parties hereby
acknowledge and agx�ee has been bargained fdr and agreed to as consideration for Seller's
execution and delivery of the Conixact. The Independen� Coniract Consideration is in
Contract of Sale
addition to, and indepez�dent ai any other consideration or payment �rovided in this
Co��iact, is non-refundable, and shall be retained by Seller n.otwithstanding any other
provision of this Contract,
ART�CLE III
TTTLE AND �URVEi�
3A1 Title Commitment.
(a) Within twenty (20) calendax days after tk�e Effeciive Date, Seller shall cause to be
fiurushed. to Buyer a current Commiiment fox Title Insura�ce (the "Tztle
Commitanent") for ihe Propei�ty, issued by 'Title Compauy. The Title
Comnaitment shall sei forih the state of title to the Propexty, including a list of
liens, inoi-�gages, security znterests, encumbzances, pledges, assignments, claims,
charges, leases {sutface, spaca, mineral, or otherwise), conditions, xest�ictions,
optians, severed mineral or ;�oyalty uiterests, condifional sales contracts, rights of
first refusal, restrictive covenants, exceptions, easements (temporary o:r
permanent), xights-of-way, eneroach�ents, or any other outstauding cla.ims,
interests, estates or equzties af auy nature (each of which are refercred to herein as
an "Exception").
(b) Along with #he Title Commiiment, Seller sl�all also cause to be delivered to
Buyer, at Buyer's sole cost and e�pense, tr�ue az�d coxrect copies of all insh-uments
that create or evidence E�eepiions (tk�e "E�ception Docu�nents"), including those
described in the Title Comrrxitjnent as e�cepiions to which ihe conveyance will be
subject a.ndlor whi.ch are x•equired to be released or cured at or priox io Closing.
3.02 Survey. Within thirfy (30) calendar days af�ex the E;�fective Date, Saller shall
cause to be prepared ai Buyer's expense, a curreni on the ground survey of the Property
(the "Survey"). The contents o£ the Survey shall be prepaxed by a surveyor selected by
Suyer and shall include the inatiers prescribed by Buyer, which may in.clude but not be
limited to, a depiction of the location of all roads, sheets, easements and rights of way,
both �n and adjoinin.g the �'ropexty, water courses, 100 year flood plain, fences and
improvements and structures oi any kind. The Suxvey shall describe the size of the
Property, in acxes, and contain a n;zetes and bounds descriptaon thereof. Seller sha11
furx�ish or cause to be furnishad any affzdavits, cexti�icates, assurances, and/or zesolutions
as required by tb.e Title Compauy in order to amend the survey exception as required by
Section 3.OS below. The descxiption of the Pxoperty as set forth in tlse Survey, at the
Buyer's election, shall be used to describe the Property in the deed io convey the Propez�ty
to Buyer and sl�all be th.e description set forth in the Title Policy,
3.03 Review of Title Comrni�menf, Survey and Eaception Documents. Buyer shall
have a period of fifteen (15) calendar days (the "Tit1e Review Pexiod") commencing wzth
the day Sugez receives the �ast of the Title Comznit�ner�t, the Survey, and the Exceptaon
Docur,�ents, iu which to give written n.otice io Sellex, specifying Buyer's objections to
one or inore of the items ("Objections"), if any. All items set forth in tlie Schedule C of
Contract of Sale
the Title Commitmeni, and atl othex items set forth in the Title Comiuitment whicb a�e
r�quued to be released or otherwise satisfied at or prior to Closislg, shall be deezned to be
Objections without any action by Buyer.
3.0� Seller's Obligation ta Cure; Buyer's Right to Terminate. The Selier shatl,
within iwenty (20) calendar days after Seller is provided notzce of Objections, either
satisfy the 4bjections at Sellex�'s sole cost and expense ox promptly notify Buyer in
writi�g of the Objections that SeIIer cannot or will �ot satisfy at Se11er's expensa.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obIigated to ctue
those Objections or Exceptions that have been voluntarily placed on ox against t�e
Propei�ty by Seller after the Effective Date. If Seller fails or refuses ta satisfy any
Objections ihat Seller is not obligated to cure within the allowed twenty (20} catendax day
period, and if Buyer does i�ot agree in writizig to an exten.sion of that period, said
extension to not exceed an addiiian�al thirty (30) calendar days, then Buyer has the option
of eithex:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller
prior to Closing, ixz which event those Objectzons sha11 become Pe�xnitted
Exceptioxtis (herein so called), or
(b) terminating this Cant�act by notice in v�niting prior to Closz�g and receiving back
the Earuest Money, in which �atter event Sellar and Buyer shall have no fiu-ther
obligations, one to �1ie other, with respec� to the subject matier of this Contxact.
3.04.A Additional Title Comnaitment. Dua to il�e fact that the e:ffeciiva periQd of the
Title Commitm.ent shall expue prior to Closing, Seller shall cause to be furnislaed to
Buyer, no ea��ier tban ninety one (91) calendar days aftex the Effective Date and �o later
than one hundred ten (110} calendar days after the Effective Date, a Title Commitm.ent
("Updated Commitment"}, in the form of the Title Commitment pxescribed by �ection
3.01, above. Buyer shall have fifteex� {15) calendaa� days to review and provide
Objectians, if any, to the iie�n.s in the Updated Commitment in the same manner as
p�escribed b� Section 3.03 related to fihe Title Coznmiim�ent. All tirne periods related t�
review and cure of the Objections, waiver of uncured Qbjections and termin.ation of tl�is
Contract, as set forth in Article I�I, above, sha11 be applicable to the Objeciions by Buyer
to f.he Updated Committnent, if any, and Closing shat� ba so e�tended to accommodate
such review and cure period.
3.05 Title Policy. A.t Cl�sing, Seller, at Buyer's sole cost ar�d expense, shall cause a
standard Texas Owner's Policy o� Title Insl.uaazce ("Title Policy") io be furnxshed to
Buyer. The Title Policy shall be issued by the Title Company, izx the amount of t�ie
Purchase Price and in.suring that Buyer has indef�asible fee simple title to the Property,
subject only to the Perrnitted Excepiions, The Title Policy may contain oi�ly the
Per�n:iitted Exceptions and sha.11 contaix� no other e�ceptions io title, with the staxtdaa•d
prixlted or common excep�ions amended or deleted as follows:
(a) suxvey excepti.on. must be amended 'zf required by Buyer to read "shortages ui
Cont��act of Sate
area" only (alfhough Schedule C of the Title Coriunitineni znay condition
a�ne�ndmeni on t11e prasentation of an acceptabie survey and payment, to be born�e
solely by Buyer, of any required additionai �remium);
(b) no exception will be permitted for "visible and appaxent easements" or words to
that effect (although reference �nay be made to any speci�c easement or use
shown un the Si.uvey, if a Pet7nitted Exceptzon);
(c) no excep�ioii will be permitted fo�r "rights of parties in possession";
(d) no liens will be shown on Schedule B.
Notwithstandi�ng tlie enumeration of the following exc�ptions, amezadments ar�d/or
deletions, Buyer may object to any Exception it deerns matexial, in. its sole discxetian.
ARTICLE YV
FEASIBILITY REVIEW P�RIOD
4.01 Review Period. Any term oi provision of this Cont�•act notwithstanding, the
obligations of Buyer specif ed in tlus Contract are wholly condit�oned on Buyer's havxn.g
determined, in Buyex's sole and absoiute discretioxz, dtu•ing ihe peziod commencing with
ihe Effective Date of ihis Contract and e;nding sixty (60} caleudar days tlaereafter (the
"Absolute Review Period"), based on such tests, examinaiions, siudies, investigatzons and
inspections o£ the Property the Buyer deems necessary or desirable, including but not
iimited to studies or inspections to determine the existence o� any environmental hazards
or conditions, perfoirned at Buyer's sole cost, that Buyer finds the Propexty suitable �ox
Buyer's puxposes. Buyer �s granted the right to condt�ct engiueerix�g studies o�f the
Property, and to conduct a physical inspection of ihe Property, including inspections that
invade #he sur:faca and substuface of the Property, If Buyer determines, in its sole
judginent, that th.e Proper�ty is not suitable, for an;y reason, for Buyer's intended use or
purpose, the Buyer may iermiizate tlus Coni�act by wx-itten notaice to the Seller, as soon as
reasanably practicable, but in any event pxzor to the expiration of the Absolute Review
�eriod, in wluch case the Earnest Money wi11 be retutned to Buye�, and neither Buyer nor
Seller shall have any fiu�ther duties or obizgations hereund�r. In the event Buyer elects to
terxninafe this Conhact pursuant to the terms of this Article �V, Section 4.01, Buyer will
provide to Seller copxes of (i) any and a11 non-confidential and non-privileged repor�s and
studies obtai.ned by Buyex during the Absolute Review Period; and (ii) tb.e Survey.
ART.ICLE V
R�PRESENTATTONS, WARRAN'�IES, COVEI�,A,NTS AND
AGREEMENTS
5.01 Repi•esentations and VVarranties o� Selle�r. To iaiduce Buyer to enter into this
Contract and conswv�.nata the sala and purchase of the �'roperty in accordance with the
ierms and provisions herewith, Seller repxesents and warrants to Buyer as o�'the Effective
Date and as of the Closing Date, exce�t where speci�ic zeference is made to an.other date,
Connact of Sale
that:
(a) The descriptive information concern.ing the Propez�ty set forth in this Contract is
complete, accuiate, frue and conect.
(b} There are no adverse or othei° parties in possession of the Property or any part
tliereof, and no party has been granted any license, lease ox other �ight relatad to
the use or possession of the Property, or any paz�t thereof, except those described
in tlae Leases, as defined in Article V, Section 5.02(a).
(c) The Seller has good and masketable fee simple iiile to the Pro�eriy, subject onJ.y
to the Permitted Exceptions,
(d) The Se11er has the full right, power, and authority to sell and canvey tlze Property
as provided in t.buis Contract and ta carry out Seller's obligatiotts hereunder,
(e) The Seller has nat zeceived notice of, and has no otherc knowledge or information
of, any pending or ihreatened judicial or admiuistrative action, or any action
� pending or threatened by adjacent laz�downers or other persons aga�inst or
affecting t�e Property.
(� The Seller has disc�osad to Buyer in writing of any and all facts and
eireumsta.nces relating fo ihe physical condition of the Property that may
mateiially and adversely affect the Pxoperty and operaiio� or intended operation
thereof, or any poriioix thereof, of wLiich Seller has knawledge,
(g) The Seller has paid all real estate and personal property taxes, assessments,
excises, and levzes that are presently dua, if any, which aie against ar are related
to the Pro�erty, or vviIl be due as oi the Closing, and the Propexry wi11 be subj ect
to no such liens.
{h) Seller has not contracted or e�tered intio any agreemeni with any real estate
broker, agent, �nder, at any other party in con;�ection witk� this transaction or
taken any action which would result in any real estaie broker commzssions or
finder's fee or ofher fees payable to any other pa1�.y with respect to �t1te
transactions contemplafed by this Conf�a�t.
{i) To the best of Seller's knowledge, theze has not occurred the disposal or re�ease
of a�y Haza��dous Substance to, on or from the Properry.
As used in this Contract, "Hazardous Substance" means and includes all
haza�rdous a�ad toxic substan.ces, waste or nnaterials, chemicals, and auy pollutant
or contaxninant, including without limitation, PCB's, asbesias, asbestos-
cantaining material, pet�oleurrz products and raw materials, that are included
under or regulated by any Environmental Law or that would or may posa a heaith,
safety or en�vironmental hazaxd.
Contract of Sale
As nsed in th'rs Contract, "Envuonmental Law" meaxks and includes a11 federai,
state, and local statutes, ordinances, regulations and rules presently in force ox
hereaftex enacted relatzng to envuonmental quality, contamin;ation, and clean-up
of Haza�.•dous Substances, including without limitation, the Comprehensive
Environm.ental Response, Compensation and Liabiliiy Act (42 U.S,C. 9601, et
seq.), as amended by the Superfund Amendments and Reauthorxzation Act of
1986, the Resource Conservation and Recovery Act (42 YJ.S.C. 6901, et seq,), as
amended, Toxic Substauce Cont�al Act, 15 U.S.C, 2601, et seq., and state
superlien and envirozunental clean-up statutes and all rules and regulations
presentl� or hereafter promulgated under or reiated io said statutes, as amended.
(j) All Leases, as de�'ined zn Article V, Section 5.02(a), shall liave expued or
otherwise tei7ninated and, subject to applicable law and the Relocatxon Ordinance,
as defined below, any ar�d a11 tenants or parties occupying the �'roperly pw�suant
to the Leases sb.all have pei�nanently abandoned a.nd vacated the Property on or
before the daie of Closing.
(k) The Seller xs noi a"foreign pez•son" as defin.ed in Section 1445 of the Internal
Revenue Code of 1.986, as amended.
(I) Seller represents and warran.ts to Buyer that (i) the Property comprises no part o�
the homestead of Sellex and wi�e; and (ii} the Property is tk�e sepa�ate property of
Seller ox, if communiiy property, that Seller has the legal auihoriiy io perform all
actions and obligaiions pxesci7bed by this Contract,
5.02 Covenants and Agreements o� Seller. Seller covenants and agrees with Buyer
as fo�lows:
(a) Unless stated otherwise, withul ten (10) caiendar days after the Effecizve Date,
Seller, at Seller's sole cost and expense, shall delzver to Buyer, with respect to the
Propez•ty, true, correci, and complete copies of the followang:
{i) All lease agreemen�s and/or occupaucy agreements aud/nr licenses of any
ki.nd oz• nature (if o�a1, Seller shall provide to Buyer in vvritang all znaierial
terms ihereof) relating to the possession o� the Property, ox any �art
thereof, including ariy and aI1 n�odifications, supplem,ents, and
aznendments thereto (�h.e "Leases").
(ii) All environmental audits, soil tests and engzneering and �easibility reports,
including any and all modi�ZCations, sup�lements and axnendments tYxerefo,
with respect to the Pxoperty that Seller possesses or has �he right to
reeeive.
(b) From the Effective Date until the date of Closing or earlier termuiation of this
Conhact, 5eller shall:
Conl�ract of Sale
(i) Nof enter iz�to any written or oral contract, lease, easement or right of way
agreement, conveyance o�• any ot�ier agreemeut of any kind with respect
to, or affecting, tlie Property that wi11 not be fully performed on or before
the Closing or would be bindin.g on Buyer or the Propexty af'ter tl�e daie of
Closing,
(ii) Advise the Buyer promptly of any litiga�ion, arbitration, or adt�ninisirative
heaizng concerning or affecting the Property.
(iii) Not take, ar omit io take, any action that would result in. a violation of fihe
represeniations, warraniies, covenants, and agreemenis of Seller.
(zv) Not sell, assign, lease or convey any right, title o�• interesfi whatsoever in ox
to the Property, or create, grant or permzt to be attached or perfected, any
lien, encunabrance, or charge thereon.
(c} Seller s�all indemnify and hold Buyer harmless, to ihe extent permitted by law,
from. all loss, liability, and expense, includ'zng, without limita#xon, reasonable
attorneys' fees, axising or incuxred as a result of an.y liens or claix�as resultin.g from
labor or mateiials furnished to the Property und�r any v,2itten or oral contracts
arising or ea�tered inio prior to Closing. �
5.03 Surv�ival Seyond CIosing. Notwithstanding anything to ihe cQntrary contained in
i�is Contaact, the representations, warranties, covenants and agreemants of �eller
contained in this Contxact shaIl survive ihe Closiiig, and shall not, in any cixcu.mstance,
be merged with the Special Warranty Deed, as described in A,rticle VII, �ection 7.02(a).
ARTICY�E V][
C�N]�ITIONS PRECEDENT TO PERFORMANCE
G.OI Perfoxmance of Seller's Obligat�ons. Buyer is not obligated to perform under
this Confract unless, within the designated tune periods, a.11 of the fo�lowiilg shall ha.ve
occurred:
(a} Seiler has perfarxned, furnished, or caused to be furvished to Buyer alX iiems
requued to be so performed or �urnished under o�her sections of this Contract; and
(1�) Seller cures or Buyer waives in. writing, within the time periods specified i�i
Axticle III, all of Buyer's objections mada in accordance wzth Article III,
5.02 Breach o� Seller's Repxesentations, Warranties, Covenants and Agreetnents.
Buyer is not obligated to perform under fihis Contxact uz��ess a11 repxesentations,
waxranties, covenants and agreemeuts of Seller contained in tkus Contract axe t�ue and
conect or have been performed, as applieable, as of the Closing Date, except where
s�ecific re�erence is made to anothez date.
Coniract of Sale
6.03 Adlwerse Change. Buyex is not o�iigated �o perform under this Coiltract, if on the
date of Closing, any portiou of the Pzopei�ty has been condernned by aii entity otlier tllan
Buyer, ox is tile subject of condemnation, emiilent c�omaiz�., or other material proceeding
uutzated by an entity other than Buyer, or the Propex-ty, or an,y part thereof, has been
materially or advexsely inzpaired in �.ny maiiner.
6.0� �Levievv Period. Buyer is r�ot obiigated to pe�for�n uuder tliis Contraot if Bu�er
deli��z•s ilotice to Seller pursuani to r�rticle ]CV, �ec�ioa 4.0� tl�at Buyer has ctetez�ined
that the Propei�ty is tinsuitable �o or for Buyer's pLU-��oses,
6.05 B��er's Right io V�aive Couditions �'recede�at. Notwi#hstanding anytl�ing
contaiiied in this Contxact to the co�lfiraiy, Buyer may, at Buyer's aption, elect to waive
any of the conditions precedent ta the �erfarm.aiice of $uyer's obtigations under this
Contract by giving to t11e Seiler, at any time pr.iar to Closing, a written waivar s�ecifyil�g
the waive.d condition precedent.
6.06 Buye�•'s '�'erminatio�a i� �ondiiioms l�u�ec��lent 1�Iot �a�isfi�� os� Waived. If any
of t�ae conditions precedent to the perfoi�naanc� of Buyer's obligations ttnder tlus Cont�act
have not been satisfied by Seller or waived by i.i�e Buyer, the Buyer may, by giving
writtFii notice to Seller, termizaate this Coz�t�ac�. On Buyer's tei7nination, the Earnest
Nloney shall be immediately retuxned fo Buyer by the Title Company. The Seller sh�ll,
on r�vritten requesf fiom Buyer, proia�ptly issue the ins�tuctions necessary to instruct the
Title Com.pany to rehun to Buyer the Eaiilest Ailoiiey an.d, thereafter, except as atherwise
provided in flzis Contraci, .Suyer azld Seller sha.�l have no fiirther oblzgatioz�s tuzder tl�is
Confiact, oine to the other.
A�i'�y�CL� V�
CL�S�T�
—�
'�.Ol Date and Place of �losiaag. T'ae Closing {herein so called) shal� t�ke �Iace in ille
offices of tlze Title Coiupany and sha1� be accain�lished through an esexow to be
established with the Ti�Ia Compatzy, as escrowee. The Closing Daie (herein sometimes
called), shall be eg����-���l..�i$.�-%1-8.Q�acal�uda�sla_ys_a$�e��i� Eff����_D�te,
unless otherwise mi�t�ially agreed upon by Buyer and Seller.
7.02 Ite�ns to Ue IDeli:vei e�3 at the �1.asing.
{a) Seller. At tl�e Closing, Se).ler shall deliver or cause to i�e delivered to Buyer oi
the Title Coni�any, at the expense of the party desi��.at:ed herein, the fallowing
itetns:
{i) Tl�e Title Policy, in the �orm specified in Ai•�isl� ��, Seetion 3.05;
Initials
���5
�- '�
{ii} The Special �Varran� Deed, substantially irz thc foizn as attached hereto as
Exkubii "B", sttbject only to the Permit�ed Excepiions, ii any, duly
eYeeutec� by Se�ler aild acic�,otivledged;
^*Notwithstanding any other printed provision of this Contract to khe contrary,
all time pe�i..ods set forth herein shal'1 end on Jnly 30th, 20I�„ and closing s all take
place Ju1q 31, 2012 Con#ract of Sale Initials : ��
����._
(zii) Other items reasonablq requested by the T�tle Company as administrative
requiremer�ts for consumusating the Closing,
(h) Buver• At the Closing, Buyer shall deliver to Selle� or the Tiile Company, the
following items: .
{i) The sum xequu•ed by Article Z�, Section 2.01,1ess tl�e Earnest Money and
interest eai�ed thereon, in the form of a check or cashier's check or otlaer
immediately available funds;
(ii) Other ite�ns reasonably xequested by tb.e Title Company as ad�nninist�ative
z•equuexnents fo;r conswnrnating the Closing.
7.03 Adjnstmeuts at Closing. �Totwithstandin.g a.nything to the contraxy contained in
this Contract and without limiting the general applicatian o£ the provisions of Seciion
5.03, above, 1;he provisions of this Article VII, Sectiou 7.03 shall survive the Closing.
The following item shal� be adjusted or �rorated between Seller and Buyer with respeci to
the Property:
{a) lid val.arem taxes relating to the Proparty for the calendar year in which the
Closing shall occur shall be prorated between Se11er and Buyer as of the Closing
Date. If the actual amount of taxes for the calendar year in which tlae Closing
shall occur is not kuown as of the Closing Date, �lie proratioi� at Closing shall be
based on the amount of taxes due and payable wiih respect to the Prop�rty for the
preceding calendar year. As soon as the aynount �f taxes Ievied against the
Propei°iy for the calendar year in which Closing shall occur xs �own, Seller and
Buyer shall xeadjust in cash the amount of taxes to be paid by each party with the
result ihat Seller shall pay far those taxes attributable to the period of tune prioz to
the Closing Date (including, but not limited to, subsequent assessments for prior
years due to changc of land usage or ownerslup occtuzing prior to tl�e Closz�.g
Date) and Buy�r shall pay for those taxes athibutable to ihe period of tixne
cozbmencing with the Closing Date.
7.Q4 Possession at Ciosing, Possession of the Praperty shall ba delivered to Buyer at
Closx�ng.
7.05 Costs of Ciosing. Each party is responsible for paying the legal fees oi its
counsel, in negotiating, pxepaa•ing, and closing tl�e �:ansaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses iden�ified hezeiz� as
being Y�e responsib.ility of Seller. Buyer is responsible fox paying fees, costs and
expenses idex�tified herein as being the responsibility of Buyer. If filie responsibility %r
such� costs or expenses associated vvith closing the transaction contemplated by this
Contxact are nat identi�ed herezn, such costs or expenses sha1� be allocated between the
parties in the custflmaxy manner for closings ai real pxoperiy similar to the Property in
Denton County, Texas.
Cont�•act of Sale
ARTICLE VI%I
DEFAULTS AND REMEDIES
8.01 Seller's Defaults and' Buyer's Remedies.
(a) SeIler's Defaults. Seller is in default under this Contract on ihe occuxrence of any
one ar more o£ the following events:
(i) .Any of Seller's warranties or representations contained in this Cont�act are
untrue on the Closing Date; or
{ii) Sellar fails to meet, coxnply with or perform any covenant, agreement,
conclition precedent or obligation on Seller's part requued within the tiine
limits an.d in the mannez• required in this Cor�tract; or
(iii) Seller fails to deliver at Closing, #11e items specified in Artiele VI,�,
Section 7.02{a) of this Contract for any reason other tkza.�. a default by
Buyex• or termi.nation of this Cor�tract bq Buyer pursuaut to the terms
hereof prior to Closin�.
{b) Buyer's Remedies. If Seller is in default under tl�is Con#�act, Buyer as Suyer's
sole and exclusive remedies for the deiault, may, at Buyer's sole option, do any of
the following;
(i) Terminate this Conhact by written z�otice delivered io Seller in which
event tl�e Buyer shall be entztled to a returu of the Earnest Money, and
Seller sha11, promptXy on written request from Buyer, execute and deliver
any documents necessay.y to cause the Trtl� Company to return to Buyer
the Ea��nest Money;
(ii} Enforce speci�c performance of this Conttaci against Seller, requiring
Seller to convey the Propert� to Buyer subjeci to no liens, encu�mbranees,
exeeptions, ar�d conditions oihex than those shown on �e Title
Commitment, whereupon Buyer shall waive title objectio,ns, ii any, ax�d
accept such title w�.thout reduction in Purchase Priee on account of title
defects and shall be eniitled to assert any righ#s far damages Uased on
Seller's representaiions, warran#ies and obligations that are not waived by
�uyer by its acceptance of Seller's title; and
(iii) See1c other recourse or relief as m.ay be available #o Buyer at or by Iaw,
equity, cantract ar otherwise.
8.U2 Buyer'� Defau�t 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 AriicIe VII, Section 7.02(b) of this Cot�tract for
Cont�act of Sale
(b)
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.
Sefller's Reanedy. 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 Se11er shall be eniitled 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 specif c performance of this Contract against Buyer.
�.fl2T�CI,E IX
1VI�SCEI,Y,�TEOiJS
9.�fl 1\Totnce. All notices, demands, requests, and other communications required
hereunder shall be in writing, delivered, unless expressly pravided otherwise in this
Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be
deemed to be delivered and received, 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:
�- �. - .•
- �� .;, ',: :.L, � �
��1� _ ��, � 1 ! �_�� �� i�� � ��,'_� �
_ • , F�` ,,�! ; � ♦
Copies to:
For Seller:
BUYER:
City of Denton
Paul Williamson
Real Estate and Capital Support
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
For Buver:
Richard Casner, Deputy City Attorney
City Attorney's Office
�� (� 215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 3 82-7923
Contract of Sale
9.02 Govexning Lavcr and 'Venue. This Cont�act is being executad and delivered and
is intended to be performed in the State of Texas, the laws of Texas governing ihe
validity, consiruction, enforcement and interpretation of this Contract. THIS
CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE POR .ANY
ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE 1N DENTON
COLTNTY, TEXA.S.
9.03 Entirety and Amendments. Tbis Contrac# embodies the entire agreement
between the parties and supersedes all prior agreements aud understandings, if any,
related to the Pxoperty, and may be amended or supplemented. only in writing executed
by the party againsi whom enforcement is sought.
9.04 Partiss Bound, This Contr•act is binding upon and inuxes to the benefit of Seller
and Buyer, and their iespec�ive successors and assigns. If requested by Buyer, Seller
agrees to execute, aclrnowledge and record a memorandum of this Contract in the Real
Pro�erty Records of Denton County, Texas, imparting notice of thi�s Coxitract to the
public.
9.d5 Risl� of Loss. Tf any damage or des�ruction to the Propei-ty shall occur pzior to
Closing, or if arxy condemnaiion ox• any eminent doznain proceedings are thxeatened or
inifiated by an entity ar party other than Buyer that might result in the tal�ing of any
poriion oithe Property, Buyex may, at Buyer's opt�on., do any of the following:
(a) Terminate thzs Coniract and withdraw from thzs transaction withoui cosi,
obIigation or liability, irz which case the Earnesi Money shaIl be immedxately
returned to Buyer; or
(b) Consummate t1�is Contract, in whieh case Buyer, wi�1i respect to the Property,
shall be entitled to receive any (i) in tl�e case of damage or destruction, all
insurance proceeds; and (ii) in �e case of eminenf doinain, proceeds paid for t1�e
Prvperty re�ated to the eminant domai�r� proceedings.
Buyez shall have a period o:f up to ten {10) calendar days after receipt of vc+ritten:
notification froin Seller on the f nal settlement of a1I coildemnation proceedings or
i.nsurance claims related to damage ox destruction o£ any improvement Iocated on
the 1'ropet�ty, in. which to make Buyer's electian, In filxe event Buyer elects to
close prior to sueh fznal settlenaent, then the Closing shall talce place as provided
in ArticIe VII, above, and there shall be assigned by Seller to Buyer at Closing a�l
ix�.terests of Sel�er in and to any and aIl znsurax�ce proceeds or condemnation
awards which xnay be payable to Seller on account o� such event. In fhe event
Buyer elects to close upon tilis Contract after final settlexnent, as described above,
Closing shall be held :("ive (5) business days after such final settlement.
9.06 Further Assurances. In additio.n to the acts and deeds recited in this Coni�act
and contemp�ated to be pei�foxmed, executed and/or delivered by Seller and Buyer, Seller
arzd Buyex agree to pei%rm, execute and/or deliver, or cause to be performed, executed
Conh•act of Sale
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 Suyer, 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 talcen 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 conteinplated by this Contract.
SELLER:
�1 ��'
DeWitt S. Davenport
Executed by Seller on the o�a� � da of V� ,
� y � 2012.
Contract of Sale
BUYER:
By: - �-
GE RG C, CAMPBELL, CITY MANAGER
Executed by Buyer on the 1��G day of , 2012.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
,
BY:
Contract of Sale
RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, Title Company acicnowledges 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:
Title Resources, LLC
525 South Loop 288, Suite 125
Denton, Texas 76205
Telephone: (940) 381-1006
Telecopy: (940) 898-0121
:
Printed Name:
Title:
Contract receipt date: , 2012
Contract of Sale
EXHIBIT "A"
to
Contract of Sale
Legal Description
Of
Property
Being Lot 24, Block A, of BELLAIRE CROSSING, in the City of Denton, Denton
County, Texas, according to the Plat thereof recorded in Cabinet W, Page 667, Plat
Records, Denton County, Texas.
Conlxact of Sale
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 YOUR DRIVER'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS
That DeWitt S. Davenport, M.D., a single man ( 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 together with all and singular the
improvements and fixtures thereon and all other rights and appurtenances thereto
(collectively, the "Property").
Grantor, subj ect to the limitation of such reservation made herein, saves, excepts
and reserves, for himself, his heirs, devisees, successors and assigns a11 oil, gas and other
minerals in, on and under and that may be produced from the Property. Grantor, his
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 andlor 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, andJor 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) 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 "minera.ls" 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 subj ect to the following:
All valid and subsisting easements or other matters affecting title to the Property
recorded in the Official Public Records or Real Property Records of Denton County,
Texas and all matters shown on the plat recorded in Cabinet W, Page 667, Plat Records,
Denton County, Texas.
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
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
0
�
2012
DeWitt S. Davenport, M.D.
ACKNOWLEDGMENT
This instrument was acknowledged before me on
, 2012 by DeWitt S. Davenport, M.D.
Upon Filing Return To:
The City of Denton-Engineering
Attn: Paul Williamson
901-A Texas Street
Denton, TX 76209
Notary Public, State of Texas
My commission expires:
Send Tax Billing Statements To:
The City of Denton
Attn: Finance Department
215 East McKinney Street
Denton, Texas 76201
EXHIBIT "A"
to
Special Warranty Deed
Legal Description
Of
Property
Being Lot 24, Blocic A, of BELLAIRE CROSSING, in the City of Denton, Denton
County, Texas, according to the Plat thereof recorded in Cabinet W, Page 667, Plat
Records, Denton County, Texas.