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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.