2013-196s:llegallour documentslordinances1131murphy contract of sale ord.doC
ORDINANCE NO. 2013-196
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY
MANAGER OR HIS DESIGNEE TO EXECUTE A CONTRACT OF SALE (HEREIN SO
CALLED), AS ATTACHED HERETO AND MADE A PART HEREOF AS EXHIBIT "A", BY
AND BETWEEN THE CITY OF DENTON (THE "CITY"), AND TIMOTHY J. MURPHY,
TRUSTEE OF THE BAKER REVOCABLE TRUST (THE "SELLER"), CONTEMPLATING
THE SALE BY SELLER AND PURCHASE BY CITY OF A 1.475 ACRE TRACT OF LAND,
MORE OR LESS, FOR THE PURCHASE PRICE OF EIGHTY FIVE THOUSAND AND
NO/100 DOLLARS ($85,000.00), SAID REAL PROPERTY BEING GENERALLY
LOCATED IN THE 1400 BLOCK OF NORTH RUDDELL STREET, AND LOCATED 1N
THE WILLIAM CRENSHAW SURVEY, ABSTRACT NUMBER 318, DENTON COUNTY,
TEXAS; AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE AND
DELIVER ANY AND ALL OTHER DOCUMENTS NECESSARY TO ACCOMPLISH
CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THE CONTRACT OF SALE;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN
EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee, is hereby authorized to execute the
Contract of Sale, by and between the City of Denton, as buyer and Timothy J, Murphy, Trustee
of the Baker Revocable Trust, as seller, in the form attached hereto and made a part hereof as
Exhibit "A", with a purchase price of $85,000.00, plus certain costs as prescribed in the Contract
of Sale; and (ii) any and all other documents necessary for closing the transaction contemplated
by the Contract of Sale, as more particularly described therein.
SECTION 2. The City Manager is hereby authorized to make expenditures as set forth
in the Contract of Sale.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the � day of , 2013.
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MARK A. B O HS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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BY: i-� �
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
Exhibit "A"
to
Ordinance
STATE OF TEXAS §
COUNTY OF DENTON §
CONTRACT OF SALE
NOTICE
YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOV�, HAVE
THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT
REGARDING THE CITY OF DENTON'S ACQUISITION OF THE
PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR
AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR
AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE.
This Contract of Sale (the "Contract") is made this ��'' day of
, 2013, effective as of the date of execution hereof by Buyer, as
defned rein (the `Bffective Date"), by and between Timothy J..Murphy, Trustee of the
Baker Revocable Trust (referred to herein as "Seller") and the City of Denton, Texas, a
Home Rule Municipal Corporation of Denton County, Texas (referred to herein as
"Buyer").
RECITALS
WHEREAS, Seller owns that certain tract of land being more particularly
described on E�ibit "A", attached hereto and made a part hereof for all purposes, being
located in Denton County, Texas (the "Land"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
the Land, together with any and a11 rights or interests of Seller in and to adjacent streets,
alleys and rights of way and together with all and singular the improvements and fixtures
thereon and all other rights and appurtenances to the Land (collectively, the "Property").
ARTICLE I
SALE OF PROPERTY
For the consideration hereinafter set forth, and upon the terms, conditions and
provisions herein contained, Seller agrees to sell and convey to Buyer, and Buyer agrees
to purchase from Seller, the Property.
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ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the
sum of Eighty Five Thousand and No/100 Dollars ($85,000.00) (the "Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100
Dollars ($1,000.00), as Earnest Money (herein so called) with Capital Title of Texas,
LLC, 620 South Hickory, Denton, Texas 76201 (the "Title Company"), as escrow agent,
within fourteen (14) calendar days after the Effective Date hereof. All interest earned
thereon shall become part of the Earnest Money and shall be applied or disposed of in the
same manner as the original Earnest Money deposit, as provided in this Contract. If the
purchase contemplated hereunder is consummated in accordance with the terms and the
provisions hereof, the Earnest Money, together with all interest earned thereon, shall be
applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the
interest accrued thereon, shall be disposed of by the Title Company as provided in this
Contract.
2.03 Independent Contract Consideration. Within fourteen (14) calendar days after
the Effective Date, Buyer shall deliver to the Title Company, payable to and for the
benefit of Seller, a check in the amount of One Hundred and No/100 Dollars ($100.00)
(the "Independent Contract Consideration"), which amount the parties hereby
acknowledge and agree has been bargained for and agreed to as consideration for Seller's
execution and delivery of the Contract. The Independent Contract Consideration is in
addition to, and independent of any other consideration or payment provided in this
Contract, is non-refundable, and shall be retained by Seller notwithstanding any other
provision of this Contract.
ARTICLE III
TITLE AND SURVEY
3.01 Title Commitment.
(a) Within twenty (20) calendar days after the Effective Date, Seller shall cause to be
furnished to Buyer a current Commitment for Title Insurance (the "Title
Commitment") for the Property, issued by Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of
liens, mortgages, security interests, encumbrances, pledges, assignments, claims,
charges, leases (surface, space, mineral, or otherwise), conditions, restrictions,
options, severed mineral or royalty interests, conditional sales contracts, rights of
first refusal, restrictive covenants, exceptions, easements (temporary or
permanent), rights-of-way, encroachments, or any other outsta.nding claims,
interests, estates or equities of any nature (each of which are referred to herein as
an `Bxception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
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Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments
that create or evidence Exceptions (the "Exception Documents"), including those
described in the Title Commitment as exceptions to which the conveyance will be
subject and/or which are required to be released or cured at or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall
cause to be prepared at Buyer's expense, a current on the ground survey of the Property
(the "Survey"). The contents of the Survey sha11 be prepared by a surveyor selected by
Buyer and shall include the matters prescribed by Buyer, which may include but not be
limited to, a depiction of the location of all roads, streets, easements and rights of way,
both on and adjoining the Property, water courses, 100 year flood plain, fences and
improvements and structures of any kind and other matters provided in items 1-4, b, 7a,
8, 10 and ll of Table A of the ALTA Minimum Standard Detail Requirements. The
Survey shall describe the size of the Property, in acres, and contain a metes and bounds
description thereof. Seller shall furnish or cause to be furnished any affidavits,
certiiicates, assurances, and/or resolutions as required by the Title Company in order to
amend the survey exception as required by Section 3.05, below. The description of the
Property as set forth in the Survey, shall be used to describe the Property in the deed to
convey the Property to Buyer and shall be the description set forth in the Title Policy.
Notwithstanding the Survey of the Property, the Purchase Price for the Property, as
prescribed by Section 2.01, above, sha11 not be adjusted in the event the Survey shall
determine the Property to be either larger or smaller than that depicted in E�ibit "A",
attached hereto.
3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall
have a period of fifteen (15) calendar days (the "Title Review Period") commencing with
the day Buyer receives the last of the Title Commitment, the Survey, and the Exception
Documents, in which to give written notice to Seller, specifying Buyer's objections to
one or more of the items ("Objections"), if any. All items set forth in the Schedule C of
the Title Commitment, and all other items set forth in the Title Commitment which are
required to be released or otherwise satisfied at or prior to Closing, sha11 be deemed to be
Objections without any action by Buyer.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall,
within twenty (20) calendar days after Seller is provided notice of Objections, either
satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in
writing of the Objections that Seller cannot or will not satisfy at Seller's expense.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure
those Objections or Exceptions that have been voluntarily placed on or against the
Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any
Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day
period, as may be extended by Buyer, in its sole discretion, then Buyer has the option of
either:
(a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller
prior to Closing, in which event those Objections shall become Permitted
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Exceptions (herein so called), or
(b) terminating this Contract by notice in writing prior to Closing and receiving back
the Earnest Money, in which latter event Seller and Buyer shall have no further
obligations, one to the other, with respect to the subject matter of this Contract.
3.05 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a
standard Texas Owner's Policy of Title Insurance ("Title Policy") to be furnished to
Buyer. The Title Policy sha11 be issued by the Title Company, underwritten by Title
Resources Guaranty Company, in the amount of the Purchase Price and insuring that
Buyer has indefeasible fee simple title to the Property, subject only to the Permitted
Exceptions. The Title Policy may contain only the Permitted Exceptions and shall
contain no other exceptions to title, with the standard printed or common exceptions
amended or deleted as follows:
(a) survey exception must be amended if required by Buyer to read "shortages in
area" only (although Schedule C of the Title Commitment may condition
amendment on the presentation of an acceptable survey and payment, to be borne
solely by Buyer, of any required additional premium);
(b) no exception will be permitted for "visible and apparent easements" or words to
that effect (although reference may be made to any specific easement or use
shown on the Survey, if a Permitted Exception);
(c) no exception will be permitted for "rights of parties in possession", unless
otherwise agreed by Buyer;
(d) no liens will be shown on Schedule B.
Notwithstanding the enumeration of the following exceptions, amendments and/or
deletions, Buyer may object to any Exception it deems material, in its sole discretion.
ARTICLE IV
FEASIBILITY REVIEW PERIOD
4.01 Review Period. Any term or provision of this Contract notwithstanding, the
obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having
determined, in Buyer's sole and absolute discretion, during the period commencing with
the Effective Date of this Contract and ending forty five (45) calendar days thereafter (the
"Absolute Review Period"), based on such appraisals, tests, examinations, studies,
investigations and inspections of the Property the Buyer deems necessary or desirable,
including but not limited to studies or inspections to determine the existence of any
environmental hazards or conditions, performed at Suyer's sole cost, that Buyer finds the
Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering
studies of the Property, and to conduct a physical inspection of the Property, including
inspections that invade the surface and subsurface of the Property. If Buyer determines,
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in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended
use or purpose, the Buyer may tertninate this Contract by written notice to the Seller, as
soon as reasonably practicable, but in any event prior to the expiration of the Absolute
Review Period, in which case the Earnest Money will be returned to Buyer, and neither
Buyer nor Seller shall have any further duties or obligations hereunder. In the event
Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section
4.01, Buyer will provide to Seller, if requested by Seller, copies of (i) any and all non-
confidential and non-privileged reports and studies obtained by Buyer during the
Absolute Review Period; and (ii) the Survey.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this
Contract and consummate the sale and purchase of the Property in accordance with the
terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective
Date and as of the Closing Date, except where speciiic reference is made to another date,
that:
(a) The descriptive information concerning the Property set forth in this Contract is
complete, accurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any part
thereof, and no party has been granted any license, lease or other right related to
the use or possession of the Property, or any part thereof, except those described
in the Leases, as defined in Article V, Section 5.02(a).
(c) The Seller has good and marlcetable fee simple title to the Property, subject only
to the Permitted Exceptions.
(d) The Seller has the full right, power, and authority to sell and convey the Property
as provided in this Contract and to carry out Seller's obligations hereunder.
(e) The Seller has not received notice of, and has no other knowledge or information
of, any pending or threatened judicial or administrative action, or any action
pending or threatened by adjacent landowners or other persons against or
affecting the Property.
(f) The Seller has paid a11 real estate and personal property taxes, assessments,
excises, and levies that are presently due, if any, which are against or are related
to the Property, or will be due as of the Closing, and the Property will be subject
to no such liens.
(g) Seller has not contracted or entered into any agreement with any real estate
broker, agent, finder, or any other party in connection with this transaction or
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taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated by this Contract.
(h) All Leases, as defined in Article V, Section 5.02(a), shall have expired or
otherwise terminated and any and all tenants or parties occupying the Property
pursuant to the Leases shall have permanently abandoned and vacated the
Property, including without limitation, all personal property of any such tenants or
parties, on or before the date of Closing.
(i) The Seller is not a"foreign person" as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer
as follows:
(a) Within ten (10) calendar days after the Effective Date, Seller, at Seller's sole cost
and expense, shall deliver to Buyer, with respect to the Property, true, correct, and
complete copies of the following:
(i) All lease agreements and/or occupancy agreements and/or licenses of any
kind or nature (if oral, Seller shall provide to Buyer in writing all material
terms thereo fl relating to the possession of the Property, or any part
thereof, including any and a11 modifications, supplements, and
amendments thereto (the "Leases").
(ii) (a) a true, correct and complete copy of the trust agreement of the Baker
Revocable Trust identifying the "true owner" of the Property; and (b)
identify in writing the "true owner" of the Property to Buyer, all in
accordance with Section 2252.092 of the Texas Government Code.
(b) From the Effective Date until the date of Closing or earlier termination of this
Contract, Seller shall:
(i) Not enter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect
to, or affecting, the Property that will not be fully perfortned on or before
the Closing or would be binding on Buyer or the Property after the date of
Closing.
(ii) Advise the Buyer promptly of any litigation, arbitration, or administrative
hearing, or claims related thereto, concerning or affecting the Property.
(iii) Not take, or omit to take, any action that would result in a violation of the
representations, warranties, covenants, and agreements of Seller.
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(iv) Not sell, assign, lease or convey any rxght, title or interest whatsoever in or
to the Property, or create, grant or permit to be attached or perfected, any
lien, encumbrance, or charge thereon.
(c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law,
from all loss, liability, and expense, including, without limitation, reasonable
attorneys' fees, arising or incurred as a result of any liens or claims resulting from
labor or materials furnished to the Property under any written or oral contracts
arising or entered into prior to Closing.
(d) On or before Closing, Seller shall remove (i) any waste material or debris that are
located upon, or may accumulate or otherwise be placed on the Property (the
"Waste Material"), from the Property and dispose of same in accordance with all
applicable statutes, regulations, rules, orders and ordinances; and (ii) all personal
property from the Property.
5.02.A. Warranty of Buyer; Property Condition. Buyer represents and warrants to
Seller that it has made, or will make prior to Closing, an independent inspection and
evaluation of the Property and acknowledges that Seller has made no statements or
representations concerning the present or future value of the Property, or the condition,
including the environmental condition, of the Property.
Except as otherwise specifically represented and warranted by Seller in this
Contract, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES,
EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY,
QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR
UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF
THE PROPERTY, AND/OR MERCHANTABILITY OR FITNESS FOR PURPOSE OF
ANY OF THE PROPERTY. Buyer further acknowledges that it has relied solely upon
its independent evaluation and examination of the Property, and public records relating to
the Property and the independent evaluations and studies based thereon. Seller makes no
warranty or representation as to the accuracy, completeness or usefulness of any
information furnished to Buyer, if any, whether furnished by Seller or any third party.
Seller assumes no liability for the accuracy, completeness or usefulness of any material
furnished by Seller, if any, and/or any other person or party. Reliance on any material so
furnished is expressly disclaimed by Buyer, and shall not give rise to any cause, claim or
action against Seller.
THE CONVEYANCE OF THE PROPERTY SHALL BE ON A"WHERE IS",
"AS IS", AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT
REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED,
AS TO THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED IN, ON OR
UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF
THE PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY,
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OR FITNESS FOR PURPOSE OR MERCHANTABILITY.
5.03 Survival Beyond Closing. Notwithstanding anything to the contrary contained in
this Contract, the representations, warranties, covenants and agreements of Seller and
Buyer contained in this Contract shall survive the Closing, and shall not, in any
circumstance, be merged with the Special Warranty Deed, as described in Article VII,
Section 7A2(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, all of the following shall have
occurred:
(a) Seller has performed, furnished, or caused to be furnished to Buyer all items
required to be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the time periods specified in
Article III, all of Buyer's objections made in accordance with Article III.
6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements.
Buyer is not obligated to perform under this Contract unless all representations,
warranties, covenants and agreements of Seller contained in this Contract are true and
correct or have been performed, as applicable, as of the Closing Date, except where
specific reference is made to another date.
6.03 Adverse Change. Buyer is not obligated to perform under this Contract, if on the
date of Closing, any portion of the Property has been condemned by an entity other than
Buyer, or is the subject of condemnation, eminent domain, or other material proceeding
initiated by an entity other than Buyer, or the Property, or any part thereof, has been
materially or adversely impaired in any manner.
6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer
delivers notice to Seller pursuant to Article IV, Section 4.01 that Buyer has determined
that the Property is unsuitable to or for Buyer's purposes.
6.05 Buyer's Right to Waive Conditions Precedent. Notwithstand'mg anything
contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive
any of the conditions precedent to the performance of Buyer's obligations under this
Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying
the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any
of the conditions precedent to the performance of Buyer's obligations under this Contract
have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving
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written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest
Money shall be immediately returned to Buyer by the Title Company. The Seller shall,
on written request from Buyer, promptly issue the instructions necessary to instruct the
Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise
provided in this Contract, Buyer and Seller shall have no further obligations under this
Contract, one to the other.
ARTICLE VII
CLOSING
7.01 Date and Place of Clasing. The Closing (herein so called) shall take place in the
offices of the Title Company and shall be accomplished through an escrow to be
established with the Title Company, as escrowee. The Closing Date (herein sometimes
called), shall be eighty (80) calendar days after the Effective Date, unless otherwise
mutually agreed upon by Buyer and Seller.
7.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer ar
the Title Company, at the expense of the party designated herein, the following
items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
(ii) The Special Warranty Deed, in the form as attached hereto as Exhibit "B",
subject only to the Permitted Exceptions, if any, duly executed by Seller
and acknowledged;
(iii) Other items reasonably requested by the Title Company as administrative
requirements for const�mtnating the Closing.
(b) Buver• At the Closing, Buyer sha11 deliver to Seller or the Title Company, the
following items:
(i) The sum required by Article II, Section 2.O1, less the Earnest Money and
interest earned thereon, in the form of a check or cashier's check or other
immediately available funds;
(ii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in
this Contract and without limiting the general application of the provisions of Section
5.03, above, the provisions of this Article VII, Section 7.03 shall survive the Closing.
The following item shall be adjusted or prorated between Seller and Buyer with respect to
the Property:
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(a) Ad valorem taxes relating to the Property for the calendar year in which the
Closing shall occur shall be prorated between Seller and Buyer as of the Closing
Date. If the actual amount of taxes for the calendar year in which the Closing
shall occur is not known as of the Closing Date, the proration at Closing shall be
based on the amount of taxes due and payable with respect to the Property for the
preceding calendar year. As soon as the amount of taxes levied against the
Property for the calendar year in which Closing shall occur is known, Seller and
Buyer shall readjust in cash the amount of t�es to be paid by each party with the
result that Seller shall pay for those taxes attributable to the period of time prior to
the Closing Date (including, but not limited to, subsequent assessments for prior
years due to change of land usage or ownership occurring prior to the date of
Closing) and Buyer shall pay for those taxes attributable to the period of time
commencing with the Closing Date.
7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at
Closing.
7.05 Costs of Closing. Each party is responsible for paying the legal fees of its
counsel, in negotiating, preparing, and closing the transaction contemplated by this
Contract. Seller is responsible for paying fees, costs and expenses identified herein as
being the responsibility of Seller. Buyer is responsible for paying all other fees, costs and
expenses related to Closing.
8.01
(a)
(b)
ARTICLE VIII
DEFAULTS AND REMEDIES
Seller's Defaults and Buyer's Remedies.
Seller's Defaults. Seller is in default under this Contract on the occurrence of any
one or more of the following events:
(i) Any of Seller's warranties or representations contained in this Contract are
untrue on the Closing Date; or
(ii) Seller fails to meet, comply with or perform any covenant, agreement,
condition precedent or obligation on Seller's part required within the time
limits and in the manner required in this Contract; or
(iii) Seller fails to deliver at Closing, the items specified in Article VII,
Section 7.U2(a) of this Contract for any reason other than a default by
Buyer or termination of this Contract by Buyer pursuant to the terms
hereof prior to Closing.
Buyer's Remedies. If Seller is in default under this Contract, Buyer as Buyer's
remedies for the default, may, at Buyer's sole option, do any of the following:
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(i) Terminate this Contract by written notice delivered to Seller in which
event the Buyer shall be entitled to a return of the Earnest Money, and
Seller sha11, promptly on written request from Buyer, execute and deliver
any documents necessary to cause the Title Company to return to Buyer
the Earnest Money;
(ii) Enforce specific performance of this Contract against Seller, requiring
Seller to convey the Property to Buyer subject to no liens, encumbrances,
exceptions, and conditions other than those shown on the Title
Commitment, whereupon Buyer shall waive title objections, if any, and
accept such title without reduction in Purchase Price on account of title
defects and shall be entitled to assert any rights for damages based on
Seller's representations, warranties and obligations that are not waived by
Buyer by its acceptance of Seller's title; and
(iii) Seek other recourse or relief as may be available to Buyer at or by law,
equity, contract or otherwise.
8.02 Buyer's Default and Seller's Remedies.
•(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver
at Closing, the items specified in Article VII, Section 7.02(b) of this Contract for
any reason other than a default by Seller under this Contract or termination of this
Contract by Buyer pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's
sole and exclusive remedy for the default, may, at Seller's sole option, do either
one of the following:
(i) Terminate this Contract by written notice delivered to Buyer in which
event the Seller shall be entitled to a return of the Earnest Money, and
Buyer shall, promptly on written request from Seller, execute and deliver
any documents necessary to cause the Title Company to return to Seller
the Earnest Money; or
(ii) Enforce specific performance of this Contract against Buyer.
ARTICLE IX
MISCELLANEOUS
9.01 Notice. All notices, demands, requests, and other communications required
hereunder shall be in writing, delivered, unless expressly provided otherwise in this
Contract, by telephonic facsimile, by hand delivery or by United States Mail, and shall be
deemed to be delivered 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
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regularly maintained receptacle for the United States Mail, registered or certified, return
receipt requested, postage prepaid, addressed as follows:
SELLER:
Timothy J. Murphy, Trustee
of the Baker Revocable Trust
53 Devonshire Drive
Bedford, Texas 76021
Copies to:
For Seller:
Telecopy:
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, First Assistant City Attorney
City Attorney's Office
215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 382-7923
9.02 Governing Law and Venue. This Contract is being executed and delivered and
is intended to be performed in the State of Texas, the laws of Texas governing the
validity, construction, enforcement and interpretation of this Contract. THIS
CONTRACT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY
ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN DENTON
COUNTY, TEXAS.
9.03 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if any,
related to the Property, and may be amended or supplemented only in writing executed
by the party against whom enforcement is sought.
9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller
and Buyer, and their respective successors and assigns. If requested by Buyer, Seller
agrees to execute, acknowledge and record a memorandum of this Contract in the Real
Property Records of Denton County, Texas, imparting notice of this Contract to the
public.
9.05 Risk of Loss. If any damage to the Property shall occur prior to Closing, or if any
condemnation or any eminent domain proceedings are threatened or initiated by an entity
or party other than Buyer that might result in the taking of any portion of the Property,
Buyer may, at Buyer's option, do any of the following:
(a) Terminate this Contract and withdraw from this transaction without cost,
obligation or liability, in which case the Earnest Money shall be immediately
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returned to Buyer; or
(b) Consummate this Contract, in which case Buyer, with respect to the Property,
shall be entitled to receive (i) in the case of damage, all insurance proceeds, if
any; and (ii) in the case of eminent domain, all proceeds paid for the Property
related to the eminent domain proceedings.
Buyer shall have ten (10) calendar days after receipt of written notification from
Seller on the final settlement of all condemnation proceedings or insurance claims
related to damage to the Property, in which to make Buyer's election. In the
event Buyer elects to close prior to such final settlement, then the Closing sha11
take place as provided in Article VII, above, and there shall be assigned by Seller
to Buyer at Closing, in form and substance satisfactory to Buyer, all interests of
Seller in and to any and all insurance proceeds or condemnation awards which
may be payable to Seller on account of such event. In the event Buyer elects to
close upon this Contract after final settlement, as described above, Closing shall
be held five (5) business days after such final settlement.
9.06 Further Assurances. In addition to the acts and deeds recited in this Contract
and contemplated to be performed, executed and/or delivered by Seller and Buyer, Seller
and Buyer agree to perform, execute andlor deliver, or cause to be performed, executed
and/or delivered at the Closing or after the Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated
hereby. Notwithstanding anything to the contrary contained in this Contract and without
limiting the general application of the provisions of Section 5.03, above, the provisions
of this Article IX, Section 9.06 shall survive Closing.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract, including without limitation, adjustment of the
Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of
Denton, Texas, to Jim Coulter, General Manager/Water Administration, of Buyer, or his
designee.
9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Contract 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
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the Closing Date or the date of such performance, as the case may be, shall be the next
following regular business day.
SELLER:
The Baker Revocabl ust
By, / w
Name: Timothy J. M y
Title: Trustee
Executed by Seller on the 1zJ` day of
BUYER:
�Tu.� y 2013 .
By: '`"J � �
GEORGE C. CAMPBELL, CITY MANAGER
Executed by Buyer on the Cl�� day of - 2013.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: -
RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, Title Company acknowledges receipt of an executed copy
of this Contract. Title Company agrees to comply with, and be bound by, the terms and
provisions of this Contract to perform its duties pursuant to the provisions of this
Contract and comply with Section 6045(e) of the Internal Revenue Code of 1986, as
amended from time to time, and as further set forth in any regulations or forms
promulgated thereunder.
TITLE COMPANY:
Capital Title of Texas
620 West Hicicory
Denton, Texas 76201
C
Printed Name:
Title:
Contract receipt date: , 2013
EXHIBIT "A"
to
Contract of Sale
Legal Description
EXHIBIT A
TRACT ONE:
All that certain lot, tract or parcel of land out of the William Crenshaw Survey, and being
part of a ten acre tract conveyed by R. S. Ross to W. H. and Josephine Spinks, and more
particularly described as follows:
BEGINNING at a point in the South boundary line of said ten acre tract, and in the North
boundary line of a public road at the Southwest corner of a one acre tract conveyed by
Spinks to M. J. Wright by deed dated December 13, 1904, and recorded in Volume 91,
Page 308 of the Denton County Deed Records;
THENCE North with the West boundary line of said Wright tract 105.8 varas to his
Northwest corner;
THENCE West 75 varas to a stake for corner;
THENCE South 105.8 varas to the North boundary line of said public road;
THENCE Easterly with the North boundary line of said public road 75 varas, more or
less, to the place of beginning, and being the same identical tract of land conveyed by J.
S. Johnson and wife, Myrtle Johnson, to Monk Garrett by deed dated March 4, 1907, and
shown of record in Volume 104, Page 389 of the Denton County Deed Records, and
being also described and identified on the Denton County Tax Records as Blocks
Twenty (20) and Twenty-one (21) out of the William Crenshaw Survey, Abstract No.
318, and being Block Twenty (20) 75 x 50 feet and Block Twenty-one (21) 88 x 317 '/2
feet.
TRACT TWO:
All that certain lot, tract or parcel of land lying and situated in the City and County of
Denton, Texas, a part of the William Crenshaw Survey, Abstract 318, being part of a ten
acre tract out of said survey conveyed by J. R. McCormick, Administrator of the Estate of
R. S. Ross, deceased, to Josephine and W. H. Spinks, by deed dated January 22, 1892,
recorded in Volume 92, Page 551, Deed Records of Denton County, Texas, and more
particularly described as follows:
BEGINNING at a point 94.4 feet from the Southwest corner of a lot deeded by C. C.
Yancey to F. D. Moore on December 4, 1907, being the Northwest corner of said Moore
lot;
THENCE North 50 feet to a point for corner;
THENCE East 110 feet for corner;
THENCE South 50 feet for corner;
THENCE West 110 feet to the Place of Beginning.
TRACT THREE:
All that certain lot, tract, and parcel of land lying and being situated in the City and
County of Denton, State of Texas, being out of the William Crenshaw 130.7 acre survey,
Abstract No 318, and being more particularly described as follows:
BEGINNING 100 feet North of the Northwest corner of a lot sold to F. D. Moore by C.
C. Yancy and wife on December 4, 1910, as recorded in Volume 111, Page 10, of the
Deed Records of Denton County, Texas;
THENCE North 200 feet for corner;
THENCE East 110 feet for corner;
THENCE South 200 feet for corner;
THENCE West 110 feet to the Place of Beginning.
TRACT FOUR:
All that certain lot, tract or parcel of land situated in the City and County of Denton, State
of Texas, being part of the William Crenshaw Survey, Abst. No 318, and being part of a
certain tract of land conveyed by J. J. McCook and wife, to V. W. Shepard by deed dated
May 24, 1910, recorded in Volume 119, Page 222, Deed Records of Denton County,
Texas;
BEGINNING at a point in the East line of Ruddell Street 50 feet north of the Southwest
corner of said Shepard tract, at the Northwest corner of a 50 x 100 feet tract conveyed by
V.W. Shepard to John Lee;
THENCE East 110 feet to the Northeast corner of said Lee lot,
THENCE North 50 feet;
THENCE West 110 feet to the East line of Ruddell Street;
THENCE South 50 feet to the Place of Beginning, and being the same land described as
the First Tract in a deed from Marcia Jane Hart, a feme sole to Zella May Lasater,
recorded in Volume 547, Page 178 of the Deed Records of Denton County, Texas.
EXHIBIT "B"
TO
CONTRACT OF SALE
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAi,
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 Timothy J. Murphy, Trustee of the Baker Revocable Trust (herein called
"Grantor"), for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00), and other good and valuable consideration to Grantor in hand paid by the City
of Denton, Texas, a Texas Home Rule Municipal Corporation (herein called "Grantee"),
215 E. McKinney, Denton, Texas 76201, the receipt and sufficiency of which are hereby
acknowledged and confessed, has GRANTED, SOLD and CONVEYED, and by these
presents does GRANT, SELL and CONVEY, unto Grantee all the real property in
Denton County, Texas being particularly described on Exhibit "A", attached hereto and
made a part hereof for all purposes, and being located in Denton County, T�xas, 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").
Exceptions to conveyance and warranty:
[Insert Permitted Exceptions, if any]
Grantor hereby assigns to Grantee, without recourse or representation, any and all claims
and causes of action that Grantor may have for or related to any defects in, or injury to,
the Property.
Grantee represents and warrants to Grantor that it has made an independent
inspection and evaluation of the Property and acknowledges that Grantor has made no
statements or representations concerning the present or future value of the Property, or
the condition, including the environmental condition, of the Property.
Except as otherwise specifically represented and warranted by Grantor herein and
in that certain Contract of Sale, dated , 2013, by and between Grantor and
Grantee, GRANTOR MAKES NO REPRESENTATIONS OR WARRANTIES
EXPRESSED, STATUTORY, OR IMPLIED, AS TO THE VALUE, QUALITY,
QUANTITY, PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED 1N, ON OR
UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF
THE PROPERTY, AND/OR MERCHANTABILITY OR FITNESS FOR PURPOSE OF
ANY OF THE PROPERTY. Grantee further aclrnowledges that it has relied solely upon
its independent evaluation and examination of the Property, and public records relating to
the Property and the independent evaluations and studies based thereon. Grantor makes
no warranty or representation as to the accuracy, completeness or usefulness of any
information furnished to Grantee, if any, whether furnished by Grantor or any third
party. Grantor assumes no liability for the accuracy, completeness or usefulness of any
material furnished by Grantor, if any, and/or any other person or party. Reliance on any
material so furnished is expressly disclaimed by Grantee, and sha11 not give rise to any
cause, claim or action against Grantor.
THE CONVEYANCE OF THE PROPERTY IS ON A"WHERE IS", "AS IS",
AND "WITH ALL FAULTS" BASIS, AND SHALL BE WITHOUT
REPRESENTATION OR WARRANTY, EXPRESSED, STATUTORY OR IMPLIED,
AS TO THE PHYSICAL AND ENVIRONMENTAL CONDITION OF THE
PROPERTY AND/OR MATERIALS CONTAINED OR LOCATED 1N, ON OR
UNDER THE PROPERTY, THE NATURE OF THE PAST OR HISTORIC USE OF
THE PROPERTY, THE QUALITY, QUANTITY AND VALUE OF THE PROPERTY,
OR FITNESS FOR PURPOSE OR MERCHANTABILITY.
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 day of , 2013.
SELLER:
The Baker Revocable Trust
By:
Name: Timothy J. Murphy
Title: Trustee
ACKNOWLEDGMENT
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on , 2013 by
Timothy J. Murphy, as Trustee of the Baker Revocable Trust.
Notary Public, State of Texas
My commission expires:
Upon Filing Return To:
The City of Denton-Engineering
Attn: Paul Williamson
941-A Texas Street
Denton, TX 76209
Property Tax Bills To:
City of Denton Finance Department
215 E. McKinney Street
Denton, Texas 76201
Exhibit "A"
To
Special Warranty Deed
Legal Description
EXHIBIT A
TRACT ONE:
All that certain lot, tract or parcel of land out of the William Crenshaw Survey, and being
part of a ten acre tract conveyed by R. S. Ross to W. H. and Josephine Spinks, and more
particularly described as follows:
BEGINNING at a point in the South boundary line of said ten acre tract, and in the North
boundary line of a public road at the Southwest corner of a one acre tract conveyed by
Spinks to M. J. Wright by deed dated December 13, 1904, and recorded in Volume 91,
Page 308 of the Denton County Deed Records;
THENCE North with the West boundary line of said Wright tract 145.8 varas to his
Northwest corner;
THENCE West 75 varas to a stake for corner;
THENCE South 105.8 varas to the North boundary line of said public road;
THENCE Easterly with the North boundary line of said public road 75 varas, more or
less, to the place of beginning, and being the same identical tract of land conveyed by J.
S. Johnson and wife, Myrtle Johnson, to Monk Garrett by deed dated March 4, 1907, and
shown of record in Volume 104, Page 389 of the Denton County Deed Records, and
being also described and identified on the Denton County Tax Records as Blocks
Twenty (20) and Twenty-one (21) out of the William Crenshaw Survey, Abstract No.
318, and being Block Twenty (20) 75 x 50 feet and Block Twenty-one (21) 88 x 317 %z
feet.
TR.ACT TWO:
All that certain lot, tract or parcel of land lying and situated in the City and County of
Denton, Texas, a part of the Williarn Crenshaw Survey, Abstract 318, being part of a ten
acre tract out of said survey conveyed by J. R. McCortnick, Administrator of the Estate of
R. S. Ross, deceased, to Josephine and W. H. Spinks, by deed dated January 22, 1892,
recorded in Volume 92, Page 551, Deed Records of Denton County, Texas, and more
particularly described as follows:
BEGINNING at a point 94.4 feet from the Southwest corner of a lot deeded by C. C.
Yancey to F. D. Moore on December 4, 1907, being the Northwest corner of said Moore
lot;
THENCE North 50 feet to a point for corner;
THENCE East 110 feet for corner;
THENCE South 50 feet for corner;
THENCE West 110 feet to the Place of Beginning.
TRACT THREE:
All that certain lot, tract, and parcel of land lying and being situated in the City and
County of Denton, State of Texas, being out of the William Crenshaw 130.7 acre survey,
Abstract No 318, and being more particularly described as follows:
BEGINNING 100 feet North of the Northwest corner of a lot sold to F. D. Moore by C.
C. Yancy and wife on December 4, 1910, as recorded in Volume 111, Page 10, of the
Deed Records of Denton County, Texas;
THENCE North 200 feet for corner;
THENCE East 110 feet for corner;
THENCE South 200 feet for corner;
THENCE West 110 feet to the Place of Beginning.
TRACT FOUR:
All that certain lot, tract or parcel of land situated in the City and County of Denton, State
of Texas, being part of the William Crenshaw Survey, Abst. No 318, and being part of a
certain tract of land conveyed by J. J. McCook and wife, to V. W. Shepard by deed dated
May 24, 1910, recorded in Volume 119, Page 222, Deed Records of Denton County,
Texas;
BEGINNING at a point in the East line of Ruddell Street 50 feet north of the Southwest
corner of said Shepard tract, at the Northwest corner of a 50 x 100 feet tract conveyed by
V.W. Shepard to John Lee;
THENCE East 110 feet to the Northeast corner of said Lee lot,
THENCE North 50 feet;
THENCE West 110 feet to the East line of Ruddell Street;
THENCE South 50 feet to the Place of Beginning, and being the same land described as
the First Tract in a deed from Marcia Jane Hart, a feme sole to Zella May Lasater,
recorded in Volume 547, Page 178 of the Deed Records of Denton County, Texas.