2014-016s; \legal \our documents \ordinances \14 \rd wells contract of sale ord.doc
ORDINANCE NO. 2014 -016
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 WESTPARK GROUP, L.P.,
A TEXAS LIMITED PARTNERSHIP (THE "SELLER "), CONTEMPLATING THE SALE BY
SELLER AND PURCHASE BY CITY OF A 3.0 ACRE TRACT OF LAND, MORE OR LESS,
FOR THE PURCHASE PRICE OF ONE HUNDRED EIGHTY THOUSAND NINE
HUNDRED NINETY ONE AND 80/100 DOLLARS ($180,991.80), SAID REAL PROPERTY
BEING GENERALLY LOCATED EAST OF WESTERN BOULEVARD AND NORTH OF
AIRPORT ROAD, AND LOCATED IN THE JAMES PERRY SURVEY, ABSTRACT 1040,
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 (a) execute (i)
the Contract of Sale, by and between the City of Denton, as buyer and Westpark Group, L.P., as
seller, in the form attached hereto and made a part hereof as Exhibit "A ", with a purchase price
of $180,991.80, 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; and (b) extend the closing date of 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 _ ... „m_ day of,__k � _
a °° 2014.
I11�1 IOU HS, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APP, VED TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
V 12 -26 -13
CONTRACT OF SALE
THIS CONTRACT OF SALE ( "Contract ") is dated the 7th day of January, 2014
( "Effective Date "), and is made by and between Westpark Group, LP, a Texas limited
partnership ( "Westpark ") and the City of Denton, a Texas home rule municipal corporation
( "Denton ").
RECITALS
A. Westpark owns a certain tract of land being more particularly described hereinbelow.
B. Westpark desires to sell to Denton, and Denton desires to buy from Westpark, said tract
of land located in the corporate limits of the City of Denton, Texas, as specifically described
hereinbelow.
NOW THEREFORE, in consideration of the exchange of real property, mutual covenants
and agreements set forth in the Contract, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Westpark and Denton hereby agree
to the following:
ARTICLE I: CONVEYANCES OF PROPERTY
On the Closing Date (as hereinafter defined), Westpark shall grant and convey the below
described Property interests to Denton, subject to the terms and provisions set forth below:
1.1 Sale and Purchase of the Property. Westpark agrees to sell and convey to Denton,
and Denton agrees to purchase from Westpark the Property (as hereinafter defined), for the
Purchase Price (as hereinafter defined), on and subject to the terms and conditions set forth in
this Contract, the following grants and conveyances:
1.1.1 Fee Title to Land. Fee simple title to a certain 3.0 acre tract of land ( "Land "),
pursuant to the Special Warranty Deed ( "Deed ") attached hereto as Appendix 1 (said
Land being more particularly described in said Deed attached as Appendix 1), together
with all of Westpark's rights and interests in and to all roads, streets, alleys, surface
water privileges, association rights and easements belonging or appurtenant to the
Land, rights of way, licenses, interests, and other rights and appurtenances appertaining
thereto, as provided in the Deed.
The fee simple interest in the Land and appurtenant rights and interests granted pursuant to the
foregoing are referred to herein as the "Property ". The physical land area covered by the fee
simple interest in the Land is referred to herein as the "Property Area ".
1.2 Minerals Excluded. Westpark has previously sold and conveyed to RIL Mineral
Holdings, LP ( "RILMH ") all of Westpark's right, title and interest in all minerals of every kind,
including oil, crude oil, natural gas, casing -head gas, other gas, other gaseous or liquid
hydrocarbon minerals or substances, condensate, coal, ores, sulfur and other minerals of every
kind and nature in and under and /or that may be produced from the Land (and other Property
Areas) pursuant to those certain Mineral Deeds recorded as Document No. 2011 -67794 and
Document No. 2011 -67798 of the Official Records of Denton County, Texas ( "Prior Mineral
Conveyance "). Westpark shall be permitted to execute and record a confirmatory Mineral
Deed in form similar to and in furtherance of said existing Mineral Deeds to RILMH but with the
final legal description of the Land or any other Property Area attached thereto ( "Confirmatory
Mineral Deed "). Nonetheless, to the extent Westpark continues to hold as of Closing any such
minerals in and under and /or that may be produced from the Land (or any other Property
Areas), Westpark, subject to the limitation of such reservation made herein, shall reserve, for
itself, its successors and assigns all oil, gas and other minerals in, on and under and that may
be produced from the Land ( "Mineral Reservation "). Westpark, its successors and assigns
shall not have the right to use or access the surface of the Land, in any way, manner or form, in
connection with or related to the reserved oil, gas, and other minerals and /or related to
exploration and /or production of the oil, gas and other minerals reserved herein, including
without limitation, use or access of the surface of the Land for the location of any well or drill
sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic
activities, tanks 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 kind or type in connection with or related to the reserved oil, gas and
other minerals, and /or related to the exploration or production of same. With respect to the Prior
Mineral Conveyance, Westpark also agrees to cause RILMH to deliver, at or prior to Closing, a
surface waiver agreement waiving RILMH's rights to use the surface of the Land in the form
attached hereto and made a part hereof as Appendix 2 (the " RILMH Surface Waiver "). As
used herein, the term "surface of the Land" shall include the area from the surface of the earth
to a depth of five hundred feet (500') below the surface of the earth and all areas above the
surface of the earth.
ARTICLE II: PURCHASE PRICE AND EARNEST MONEY
2.1 Purchase Price. The Purchase Price to be paid to Westpark for the Property is the sum
of $180,991.80 ( "Purchase Price ").
2.2 Earnest Money. Denton shall deposit the sum of one thousand and No /100 Dollars
($1,000.00), as Earnest Money (herein so called) with Republic Title of Texas, Inc., 550 Bailey
Avenue, Suite 100, Fort Worth, Texas 76107 (the "Title Company "), as escrow agent, on or
before the Closing Date. 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.
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2.3 Independent Contract Consideration. On or before the Closing Date, Denton shall
deliver to the Title Company, payable to and for the benefit of Westpark, 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 Westpark'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 Westpark notwithstanding
any other provision of this Contract.
ARTICLE III: TITLE AND SURVEY
3.1 Title Commitment. Denton may cause to be issued a current Commitment for Title
Insurance (the "Title Commitment ") for the Property, issued by the Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of any defects,
encumbrances and other exceptions to title, and outstanding claims, interests or equities of any
nature (each of which referred to herein as an "Exception ").
3.2 Survey. Denton may, at its expense, cause a current on the ground survey of the
Property Area, or any part thereof, to be prepared by Gerry Curtis Associates or any other
surveyor approved by both parties (the "Survey "). The Survey may include all matters
prescribed by Denton. In any case, the description of the Land as set forth in Appendix 1
hereto shall be used to describe the Land in the Deed conveying the Land to Denton and shall
be the description of the Land set forth in the Title Policy.
3.3 Westpark's Efforts to Cure. Westpark shall take good faith efforts to assist Denton in
curing or satisfying any Exceptions or defects depicted or revealed in the Title Commitment
and /or Survey, as set forth in a notice to Westpark by Denton ( "Objections "). Notwithstanding
the obligation of Westpark to provide good faith efforts in its assistance to Denton to cure any
defects depicted or revealed in the Title Commitment or Survey, Westpark shall not be obligated
to expend funds in such efforts or incur any liability or otherwise incur any economic burden. In
the event Denton and Westpark cannot cure the Objections prior to Closing, Denton may elect
to either (i) terminate this Contract; or (ii) waive the uncured Objections, which shall become
Permitted Exceptions (as defined below), and upon such waiver, close the transaction
contemplated by this Contract. The term "Permitted Exceptions" as used herein shall mean (i)
the Roll -Back Taxes (as hereinafter defined), (ii) the Prior Mineral Conveyance and the Mineral
Reservation, (iii) easements, restrictions, claims, rights of way, encroachments or other
encumbrances or other matters whatsoever affecting the Property as shown in the Title
Commitment or Survey, but excluding any matters which were subject to Objections and which
Westpark actually cures, (iv) all municipal or other governmental zoning laws, regulations and
ordinances, if any, affecting the herein - described Property and (v) any other matters affecting
the Property which are of public record or would be disclosed by a physical inspection of the
Property and /or an accurate survey of the Property. Notwithstanding anything to the contrary
herein, Westpark shall provide to Denton, at or prior to Closing, the RILMH Surface Waiver, and
shall use reasonable efforts to provide to Denton, at or prior to Closing, evidence satisfactory to
RD Wells Expansion Tract Page 3
Denton and Westpark that any other owners of the rights to conduct mineral exploration and
production activities (the "Operations ") on the Property are prohibited from using or occupying
in any way the surface of the Property in connection with such Operations.
3.4 Title Policy. At Closing, Denton, at Denton's sole cost and expense, may cause a
standard Texas Owner Policy of Title Insurance ( "Title Policy "), along with a T -19.1, T -19.2 or
T -19.3 endorsement, as applicable, to be furnished to Denton, to the extent available. The Title
Policy shall be issued by the Title Company, in the amount of the fair market value of the
Property and insuring that Denton has indefeasible fee simple title to the Land, subject only to
the Permitted Exceptions.
ARTICLE IV: AS -IS SALE
4.1 AS -IS Sale. Denton expressly acknowledges that the Property is being sold,
conveyed, granted and accepted AS -IS, WHERE -IS WITH ALL FAULTS, and, except as
expressly set forth in Article VI, below, Westpark makes no representations or warranties,
express or implied, with respect to the physical condition or any other aspect of the Property or
any real property encumbered by the Property, including without limitation: (i) the structural
integrity of improvements on such properties, if any; (ii) the manner, construction, condition and
state of repair or lack of repair of any improvements on such properties; (iii) the conformity of
any improvements to any plans or specifications for such properties, including but not limited to
any plans and specifications that may have been or which may be provided to Denton; (iv) the
conformity of such properties to past, current or future applicable zoning or building code
requirements or such properties' compliance with any other laws; (v) the financial earning
capacity or history or expense history of the operation of such properties; (vi) the existence of
soil instability, past soil repairs, soil additions or conditions of soil fill, such properties'
susceptibility to landslides, sufficiency of undershoring or sufficiency of drainage to, from or
across such properties; (vii) whether such properties are located wholly or partially in a flood
plain or a flood hazard boundary or similar area or within any area that may be considered
wetlands or jurisdictional waters of the United States; (viii) the existence or non - existence of
underground or above ground storage tanks, asbestos, hazardous waste or other toxic or
Hazardous Materials (as hereinafter defined) of any kind or any other environmental condition or
whether such properties are in compliance with applicable laws; (ix) such properties' investment
potential or resale at any future date, at a profit or otherwise; (x) any tax consequences of
ownership of such properties, except as provided in Section 7.3, below; or (xi) any other matter
whatsoever affecting the stability, integrity, other condition or status of the Property (collectively,
the "Property Conditions "). EXCEPT AS PROVIDED IN ARTICLE VI, BELOW, DENTON
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR
POTENTIAL RIGHTS IT MIGHT HAVE REGARDING ANY FORM OF WARRANTY, EXPRESS
OR IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY
LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE
RELATED TO THE PROPERTY, ANY IMPROVEMENTS THEREON OR THE PROPERTY
CONDITIONS, SUCH WAIVER BEING ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED
IN ANY WAY. This waiver fully applies to Westpark as well as all other Westpark Parties (as
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hereinafter defined) but does not apply to Westpark's predecessors in title to the Property who
are not Westpark Parties. As used herein the "Westpark Parties" shall mean Westpark,
Rayzor Investments, Ltd. ( "RIL "), Jesse Newton Rayzor and Eugenia Porter Rayzor, and any
other person that was a spouse, descendant or other relative of Jesse Newton Rayzor and /or
Eugenia Porter Rayzor, or an affiliated entity of any of the foregoing.
4.2 Information Disclaimer. Any and all information related to the Property provided to
Denton by Westpark (without implying any obligation to deliver such information, however)
( "Information "), shall be delivered as an accommodation to Denton only, without any
representation or warranty as to the completeness or accuracy of the data or other information
contained therein, and all such Information is furnished to Denton solely as a courtesy, and
Westpark has not verified the accuracy of any statements or other information therein
contained, the method used to compile such Information nor the qualifications of the persons
preparing such Information. The Information is provided on an AS -IS, WHERE -IS BASIS, AND
DENTON EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE
AGREEMENTS HEREIN, WESTPARK MAKES NO REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED
TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, MERCHANTABILITY,
SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE INFORMATION.
4.3 Waiver of Compliance with Requirements. Denton expressly acknowledges that it is
not relying on (and hereby disclaims and renounces) any representations or warranties made by
or on behalf of Westpark of any kind or nature whatsoever, except as expressly provided in
Article VI, below. Denton acknowledges that the Property may not be in compliance with all
laws that may apply to such Property or any part thereof and the continued ownership,
maintenance, management and repair of such properties ( "Requirements "). Denton shall be
solely responsible for any and all Requirements.
4.4 Environmental Waiver. Without limitation, to the fullest extent permitted by law, and
except as provided in Article VI, below, Denton, for itself and its successors and assigns,
hereby releases Westpark from and waives any and all claims and liabilities against Westpark,
related to or in connection with any environmental condition at such Property (or the presence of
any matter or substance relating to the environmental condition of such Property), including, but
not limited to, claims and /or liabilities relating to (in any manner whatsoever) any hazardous,
toxic or dangerous materials or substances located in, at, about or under such Property, or for
any and all claims or causes of action (actual or threatened) based upon, in connection with or
arising out of: (i) the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. § §9601 et seq.) ( "CERCLA "); (ii) the Resource Conservation and Recovery Act (42
U.S.C. § §6901 et seq.) ( "RCRA "); (iii) the Superfund Amendments and Reauthorization Act (42
U.S.C. § §9601 et seq.) ( "SARA "); or (iv) any other claim or cause of action (including any
federal or state based statutory, regulatory or common law cause of action, including without
limitation, the Texas Solid Waste Disposal Act) related to environmental matters or liability with
respect to or affecting the Property. This waiver fully applies to Westpark as well as all other
Westpark Parties but does not apply to Westpark's predecessors in title to the Property who are
not Westpark Parties.
RD Wells Expansion Tract Page 5
4.5 Assumption of Hazardous Materials Risks. Without limitation to any of the above,
Denton assumes the risk that Hazardous Materials may be present in, on or under the Property,
and except as provided in Article V, and Article VI, below, hereby waives, releases and
discharges forever, Westpark from any and all present or future claims or demands, and any
and all damages, loss, injury, claims or costs, including fines, penalties and judgments arising
from or in any way related to the condition of the Property or presence of any Hazardous
Materials in, on or under the Property, whether or not arising from or attributed to the sole or
concurrent negligence of Westpark. This waiver fully applies to Westpark as well as all other
Westpark Parties but does not apply to Westpark's predecessors in title to the Property who are
not Westpark Parties.
4.6 Parties Relying on Own Inspections. Denton acknowledges and agrees that
Westpark was unwilling to convey, grant and sell the Property unless Westpark was released as
expressly set forth above. With respect to the waivers and agreements contained in Article IV,
Sections 4.1 through 4.5, above, Denton and Westpark represent and warrant to the other
that: they are (i) represented by legal counsel in connection with the sale contemplated by this
Contract; (ii) each, with its counsel, has fully reviewed the disclaimers and waivers and
agreements set forth in this Contract and understands their significance and effect; (iii) each is
knowledgeable and experienced in the purchase, operation, ownership, refurbishing and sale of
commercial real estate, and is fully able to evaluate the merits and risks of this transaction; and
(iv) each is not in a significantly disparate bargaining position. As part of the provisions of this
Article IV, but not as a limitation thereon, Denton agrees, represents and warrants that the
matters released herein are not limited to matters which are known or disclosed. To the extent
permitted by law, Denton hereby agrees, represents and warrants that it realizes and
acknowledges that factual matters now unknown to it may have given or may hereafter give rise
to causes of action, claims, demands, debts, controversies, damages, costs, losses and
expenses which are presently unknown, unanticipated and unsuspected, and Denton further
agrees, represents and warrants that the waivers and releases herein have been negotiated
and agreed upon in light of that realization and that Denton nevertheless hereby intends to
release, discharge and acquit Westpark from any such unknown causes of action, claims,
demands, debts, controversies, damages, costs, losses and expenses which might in any way
be included in the waivers and matters released as set forth in this Article IV.
4.6A. Waivers Limited. Notwithstanding anything to the contrary herein, any and all
representations, disclaimers and waivers of any claims by Denton, all as may be prescribed in
this Article IV, are made to the extent, and only to the extent, such is authorized or permitted
under existing laws.
4.7 Survival. Notwithstanding anything herein to the contrary, all of the terms and
provisions of Article IV, Sections 4.1 through 4.6A shall survive the Closing.
ARTICLE V: INSPECTION
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5.1 Tests. Until the Closing, Denton and its agents, employees and contractors, at their
sole risk and expense, shall have the right to enter upon the Property Area during normal
business hours (and subject to advance notice as required below) for inspections, surveying,
engineering and other reasonable testing and inspection purposes ( "Tests "). All such
inspections may include both non - intrusive inspections and studies (such as non - intrusive
"Phase I Level" type tests with respect to environmental matters) which do not involve borings
or any sampling of any material or media, including soil, surface water, or ground water and
intrusive "Phase II Level" environmental or other intrusive testing or any borings or sampling of
any material or media, including soil, surface water, or ground water. Without limiting the
general authorization provided herein, Denton may conduct soil borings on the Property Area for
the purpose of evaluating soil stability and characteristics for typical construction industry
purposes related to its intended use of the Property without obtaining Westpark's prior approval.
All soil borings shall be conducted in a commercially reasonable manner in accordance with
generally accepted construction industry standards, and upon completion of all such soil
borings, Denton shall restore the affected portion of the Property to substantially the same
condition as existed prior to such soil borings. Any and all activities conducted by Denton shall
be in accordance with applicable laws. Any entry upon the Property Area is referred to herein
as an "Entry". All such activities shall be conducted in such a fashion so as to minimize
interference with the use of the properties being inspected. Denton shall promptly repair any
damage to the affected portion of the Property as a result of such Tests and restore same to its
condition which existed prior to such Tests. Denton shall deliver to Westpark a copy of any
report, summary or other documentation of the findings produced by or resulting from the Tests.
5.2 Notice of Entry. Prior to any Entry upon the Property Area to be inspected for any
purpose permitted herein, Denton shall give prior notice to and shall coordinate such access as
follows: Mr. Philip A. Baker (telephone 940/387 -8711, fax 940/566 -1591, The Rayzor Company,
400 West Oak Street, Suite 200, Denton, Texas 76201) or his successor or designee who will
act as Westpark's agent with respect thereto. Such notice shall be given at least 24 hours prior
to the proposed Entry and shall include the names of the individuals who will be entering the
Property Area and the name of such individual's firm or company, the purpose of the inspection
and specific activities which will be conducted by such individuals on such Property Area, the
times during which such Entry shall occur and such other information as may be reasonably
requested by Mr. Baker. The inspecting party shall fully cooperate with and follow any
reasonable additional requirements or instructions given by Mr. Baker with respect to such
Entry.
5.3 Insurance. Any consultant or contractor of Denton desiring to enter the Property to be
inspected for any Tests shall only enter such Property Areas after submitting to Westpark
certificates of insurance evidencing Commercial General Liability Insurance coverage in the
amount of Five Hundred Thousand and No /100 Dollars ($500,000.00), covering such
consultant's or contractor's operations on the Property to be inspected, with Westpark included
as an additional insured thereunder and stating that such insurance is primary with regard to
any other insurance maintained by Westpark.
RD Wells Expansion Tract Page 7
5.4 Termination. Any term or provision of this Contract notwithstanding, the obligations of
Denton specified in this Contract are wholly conditioned on Denton's having determined, in
Denton's sole and absolute discretion, during the inspection provided by this Article V, based
on such tests, examinations, studies, investigations and inspections of the Property Denton
deems necessary or desirable, that Denton finds the Property suitable for Denton's purposes. If
Denton determines, in its sole judgment, that the Property is not suitable, for any reason, for
Denton's intended use or purpose, Denton may terminate this Contract by written notice to
Westpark, as soon as reasonably practicable, but in any event prior to the Closing. In the event
Denton elects to terminate this Contract pursuant to the terms of this Section 5.4, Denton will
provide to Westpark copies of any and all non - confidential and non - privileged reports and
studies obtained by Denton during or resulting from the Tests.
ARTICLE VI: REPRESENTATIONS WARRANTIES, COVENANTS AND AGREEMENTS
6.1 Representations and Warranties of Westpark. Westpark represents and warrants to
Denton, as of the Effective Date of this Contract and as of the Closing Date, except where
specific reference is made to another date that:
(a) Westpark has the full right, power and authority to sell and convey the Property
as provided in this Contract and to carry out Westpark's obligations hereunder
and this Contract, and all documents to be delivered by Westpark hereunder, are
and shall be legal and binding upon Westpark.
(b) Westpark 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.
(c) Westpark has not contracted or entered into any agreement with any real estate
broker, agent, finder, or any other party in connection with this transaction or
taken any action which would result in any real estate broker commissions or
finder's fee or other fees payable to any other party with respect to the
transactions contemplated by this Contract.
(d) All Leases, as defined in Section 6.3(a), relating to the Property shall have
expired or otherwise terminated on or before the date of Closing.
(e) Westpark has not received notice of any violation of any law, statute, rule,
regulation or ordinance related to or affecting the Property or Westpark's
obligations under this Contract.
(f) To Westpark's actual knowledge, without independent investigation, there are no
Hazardous Materials (as hereinafter defined) which are or have been used,
manufactured, placed or stored on the Property. As used above, the term
"Hazardous Materials" means any material or substance which is (i) defined as
a "hazardous waste," "extremely hazardous waste," "restricted hazardous
RD Wells Expansion Tract Page 8
waste," "hazardous material," "hazardous substance," or any similar formation
under or pursuant to any state or federal statute or common law rule, (ii)
designated as a "hazardous waste" pursuant to Section 311 of the Clean Water
Act, 33 U.S.C. §1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307
of the Clean Water Act (33 U.S.C. §1317), (iii) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 44
U.S.C. §6901 et seq. (42 U.S.C. §6903) or (iv) defined as a "hazardous
substance" pursuant to Section 101 of the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C.
§9601); provided, however, "Hazardous Materials" shall not, for purposes of this
representation, include gasoline, diesel fuel or other petroleum products routinely
used in connection with farm and ranch operations, nor shall such term include
any pesticides, herbicides, cattle dipping solutions and other substances which
are now or ever have been customarily used in connection with farm and ranch
operations (and such exclusion from such term shall include items which were
historically used in the farm and ranching industry for such purposes but which
may now be banned or otherwise not so used). Westpark hereby informs Denton
that it has not conducted an independent investigation in connection with the
above representation and that Westpark has limited knowledge as to such
matters and advises Denton to conduct independent investigations with respect
to such matters as Denton may deem necessary or desirable to fully satisfy itself
with respect to the environmental condition of the Property and /or real property
encumbered by the Property, it being understood that the above representation is
limited in nature and is only to Westpark's actual knowledge, and does not give a
complete understanding of the environmental condition of the Property and /or
real property encumbered by the Property.
(g) Westpark is not a "foreign person" as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended.
(h) Mr. Baker shall serve as the representative or agent of Westpark with respect to
this Contract.
6.2 Representations and Warranties of Denton and Westpark. Denton and Westpark
represent and warrant to each other that they have the power to execute, deliver and perform
under this Contract, have taken all actions necessary to authorize the execution, delivery and
performance of this Contract and that the parties executing this Contract and the conveyance
documents exhibited hereto for and on behalf of Denton and Westpark have been duly
authorized by Denton and Westpark to act in such capacity.
6.3 Covenants and Agreements of Westpark. Westpark covenants and agrees with
Denton as follows:
(a) Within ten (10) business days after the Effective Date, Westpark shall deliver to
Denton, true, correct and complete copies of the following:
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(i) All lease agreements and /or occupancy agreements and /or licenses of
any kind or nature (if oral, Westpark shall provide to Denton in writing all
material terms thereof) relating to the possession of the Property, or any
part thereof, including any and all modifications, supplements, and
amendments thereto (the "Leases "), provided that only those Leases
which will remain in force after the Closing, if any, must be delivered to
Denton.
(b) From the Effective Date until the date of Closing and with respect to the Property,
Westpark, shall:
(i) Not enter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect
to, or affecting, the Property that will not be fully performed on or before
the Closing or would be binding on Denton or the Property after the date
of Closing.
(ii) Not sell, assign, lease or convey any right, title or interest whatsoever in
or to the Property, or create, or permit to exist, any lien, encumbrance, or
charge thereon.
(c) Westpark shall assist and cooperate in the platting activities of Denton, as set
forth in Section 6.4 below, including without limitation, execution of any
applications or other materials related to ownership of the Land, in such
processes.
6.4 Covenants and Agreements of Denton.
(a) Denton shall, prior to Closing, have obtained approval of a conveyance plat or
other plat of the Land from the Planning and Zoning Commission or the
Development Review Committee in accordance with the terms of the Denton
Development Code, including without limitation, Sections 35.16.6, 35.16.17,
35.16.17.1 and 35.16.17.2 thereof, or, alternatively to the foregoing, Denton shall
obtain any necessary approval of the transaction herein contemplated in lieu of a
conveyance plat from the Planning and Zoning Commission and /or Development
Review Committee. In the event Denton produces a conveyance plat or other
plat in connection with this Contract, Westpark shall reasonably cooperate in the
platting process and shall either execute a conveyance plat provided to it by
Denton or provide objections to same to Denton, on or before five (5) business
days after the conveyance plat or other plat is submitted to it by Denton.
Notwithstanding anything herein to the contrary, in no event shall a conveyance
plat impose obligations on Westpark to dedicate easements or rights of way
across any of Westpark's other lands or impose any restrictions or other
requirements with respect to Westpark's such other lands.
RD Wells Expansion Tract Page 10
6.5 Notwithstanding anything to the contrary contained in this Contract, the representations,
warranties, covenants and agreements of Westpark contained in this Contract shall survive the
Closing for a period of one year after the Closing Date, and shall not, in any circumstance, be
merged with the Deed to be delivered at Closing pursuant to Section 7.2; provided, however,
that the limitation upon the duration of the warranties of this Section 6.5 shall not apply to the
warranties provided in the Deed.
ARTICLE VII: CLOSING
7.1 Date and Place of Closing. The "Closing" (herein so called) shall take place in the
offices of the Title Company and shall be accomplished through an escrow to be established
with the Title Company, as escrowee. The "Closing Date" (herein sometimes called), shall
occur before 5:00 PM on the date which is 10 business days after Council Acceptance (as
herein after defined), unless otherwise mutually agreed to in writing by Denton and Westpark
(with the City Manager of Denton to have authority to agree to any such extension on behalf of
Denton acting in his sole discretion). The Closing Date as defined in this Section 7.1, subject to
possible extension by mutual written agreement as provided above, is the deadline by which
Closing must occur and is intended to prevail over any conflicting terms provided in this
Contract or the Appendices attached hereto.
7.2 Items to be Delivered at the Closing..
(a) At the Closing, Westpark shall deliver or cause to be delivered to the Title
Company, the following items:
(i) The Deed for the Land, in form and substance identical to that attached
hereto as Appendix 1, subject only to the Permitted Exceptions, duly
executed by Westpark and acknowledged.
(ii) The RILMH Surface Waiver, in the form as attached hereto as Appendix
2, executed by RILMH and acknowledged.
(iii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
(b) At the Closing, Denton shall deliver to the Title Company, the following items:
(i) The sum equal to the Purchase Price as required by Article II.
(ii) Other items reasonably requested by the Title Company as administrative
requirements for consummating the Closing.
7.3 Adjustments at Closing. Notwithstanding anything to the contrary contained in this
Contract and without limiting the general application of the provisions of Section 6.5, above, the
RD Wells Expansion Tract Page 11
provisions of this Section 7.3 shall survive the Closing. The following items shall be adjusted or
prorated between Westpark and Denton with respect to the Property:
7.3.1 General Proration. Ad valorem and similar taxes and assessments (the "Taxes ")
relating to the Property for the year in which the Closing occurs shall be prorated
between Westpark and Denton as of the Closing Date, in accordance with Section 26.11
of the Texas Tax Code. In this regard the Title Company shall have each taxing unit
certify Westpark's prorated tax liability for the year of closing which amounts will be paid
by Westpark out of the proceeds of the sale.
7.3.2 Roll -Back Taxes. Westpark stipulates that, for purposes of assessing Taxes
against the Property for prior years, the applicable central appraisal district has applied
agricultural, open -space or other special use valuation methods ( "Special Use
Valuation ") to arrive at the taxable value of the Property as permitted under the Texas
Tax Code, and accordingly a change in land usage of the Property may result in an
additional tax (in addition to Taxes for the year in which the Roll -Back Event, as
hereinafter defined, occurs) being assessed against the Property (any such additional
taxes, together with interest thereon, being referred to herein as "Roll -Back Taxes "). To
the extent any Roll -Back Taxes exist, Westpark shall not be responsible for same.
7.4 Possession at Closing. Possession of the Property shall be delivered to Denton at
Closing, subject to the Permitted Exceptions.
7.5 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. Westpark is
responsible for paying fees, costs and expenses identified herein as being the responsibility of
Westpark. Denton is responsible for paying fees, costs and expenses identified herein as being
the responsibility of Denton. If the responsibility for such costs or expenses associated with
closing the transaction contemplated by this Contract are not identified herein, such costs or
expenses shall be allocated between the parties in the customary manner for closings of real
property similar to the Property in Denton County, Texas.
ARTICLE VIII: DEFAULTS AND REMEDIES
8.1 Westpark's Defaults and Denton's Remedies.
8.1.1 Westpark's Defaults. Westpark is in default under this Contract on the
occurrence of any one or more of the following events:
(i) Any of Westpark's warranties or representations contained in this
Contract are untrue on the Closing Date; or
(ii) Westpark fails to meet, comply with or perform any covenant, agreement,
condition precedent or obligation on Westpark's part required within the
time limits and in the manner required in this Contract; or
RD Wells Expansion Tract Page 12
(iii) Westpark fails to deliver at Closing, the items specified herein at Section
7.2(a) for any reason other than a default by Denton or termination of this
Contract by Denton pursuant to the terms hereof prior to Closing.
8.1.2 Denton's Remedies. If Westpark is in default under this Contract, Denton, as
Denton's sole and exclusive remedies for the default, may, at Denton's sole option, do
either one of the following:
(i) Terminate this Contract by written notice delivered to Westpark; or
(ii) Enforce specific performance of this Contract against Westpark, requiring
Westpark to convey the Property to Denton subject to no liens,
encumbrances, exceptions, and conditions other than the Permitted
Exceptions.
8.2 Denton's Default and Westpark's Remedies..
8.2.1 Denton's Default. Denton is in default under this Contract on the occurrence of
any one or more of the following events:
(i) Denton fails to meet, comply with or perform any covenant, agreement,
condition precedent or obligation on Denton's part required within the time
limits and in the manner required by this Contract; or
(ii) Denton fails to deliver at Closing, the items specified in Section 7.2(b) of
this Contract for any reason other than a default by Westpark under this
Contract or termination of this Contract pursuant to the terms hereof prior
to Closing.
8.2.2 Westpark's Remedy. If Denton is in default under this Contract, Westpark, as
Westpark's sole and exclusive remedy for the default, may terminate this Contract by
written notice delivered to Denton, whereupon neither party shall have any further rights
or obligations hereunder.
8.3 Notwithstanding the foregoing, Westpark may pursue all rights and remedies available at
law or in equity against Denton with respect to (i) any damages incurred by Westpark as a result
of Denton's failure to comply with the insurance requirements provided for in this Contract, and
(ii) all obligations under the various closing documents executed at Closing
ARTICLE IX: MISCELLANEOUS PROVISIONS
9.1 Notice. Unless otherwise specified in a recorded instrument of conveyance of the
Property under this Contract, all notices, demands, requests, and other communications
required hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to
occur of (a) the date provided if provided by telephonic facsimile, and (b) the date of the deposit
RD Wells Expansion Tract Page 13
of, in a regularly maintained receptacle for the United States Mail, registered or certified, return
receipt requested, postage prepaid, addressed as follows:
DENTON:
Richard Casner,
First AssistantCity Attorney
City of Denton, Texas
215 E. McKinney Street
Denton, Texas 76201
Phone: (940) 349 -8333
Fax: (940) 382 -7923
Richard.Casner @cityofdenton.com
Paul Williamson, Real Estate Manager
City of Denton Texas
Phone: (940) 349 -8921
Fax: (940) 349 -8951
Paul .Williamson @cityofdenton.com
With Copies To:
Pamela England, Real Estate Specialist
City of Denton, Texas
Phone: (940) 349 -8928
Fax: (940) 349 -8951
Pamela.England @cityofdenton.com
Michael S. Grim
Executive Manager
Power, Legislative and
Regulatory Affairs
City of Denton Texas
Phone: (940) 349 -7565
Fax: (940) 349 -7334
Mike.grim @cityofdenton.com
WESTPARK:
David Mellina
Mellina & Larson, P.C.
1128 Fairmount Avenue
Fort Worth, Texas 76104
Phone: (817) 335 -1200
Fax: (817) 335 -1221
Dmellina @mellinalarson.com
Philip A. Baker, Vice President
The Rayzor Company
P.O. Box 336
Denton, Texas 76202
Phone: (940) 387 -8711
Fax: (940) 566 -1591
pabaker @rayzorcompany.com
Joanna Cloud
Republic Title of Texas, Inc.
550 Bailey Avenue, Suite 100
Fort Worth, Texas 76107
Phone: (817) 877 -1481
Fax: (817) 654 -0008
joannacloud @republictitle.com
9.2 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 shall apply. This Contract is
RD Wells Expansion Tract Page 14
performable in, and the exclusive venue for any action brought with respect hereto shall lie in,
COURTS OF COMPETENT JURISDICTION IN Denton County, Texas.
9.3 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 and authorized by the party
against whom enforcement is sought.
9.4 Further Assurances. In addition to the acts and deeds recited in this Contract and
contemplated to be performed, executed and /or delivered by Westpark and Denton, Westpark
and Denton agree to perform, execute and /or deliver, or cause to be performed, executed
and /or delivered at the Closing or after the Closing, any further deeds, acts, and assurances as
are reasonably necessary to consummate the transactions contemplated hereby.
Notwithstanding anything to the contrary contained in this Contract, the provisions of this
Section 9.4 shall survive Closing.
9.5 Appendices. Each Appendix which is referenced in, and attached to this Contract, is
incorporated in and made a part of this Contract for all purposes.
9.6 Assigns. This Contract shall inure to the benefit of and shall bind the parties hereto and
their respective legal representatives, successors and assigns; provided, however, no party may
assign its rights under this Contract without the prior written consent of the other party.
9.7 Time of the Essence. Time is of the essence of this Contract.
9.8 Taking Prior to Closing. If the Property, or any portion thereof, becomes subject to a
taking under the provisions of eminent domain prior to the Closing, Denton shall have the option
of: (i) closing this transaction as provided herein (with no reduction in consideration), in which
event Westpark shall assign to Denton at Closing all condemnation proceeds, if any, but only to
the extent such proceeds accrue from a taking of the Land, as a result of such proceeding; or (ii)
terminating this Contract, either in its entirety (an "Entire Termination ") or only as to the portion
of the Property subject to or affected by a taking (a "Partial Termination" and the portion of the
Property so terminated, the "Affected Areas "), by giving Westpark written notice thereof within
ten (10) business days from the date such party receives notice of such taking, and in the event
of an Entire Termination this Contract shall be deemed null and void in its entirety and the
parties hereto shall have no further obligations to or recourse against each other under this
Contract, and in the event of a Partial Termination this Contract shall be deemed null and void
with respect to the portion of the Property affected by the Affected Areas and the parties hereto
shall have no further obligations to or recourse against each other under this Contract with
respect to the portion of the Property affected by the Affected Areas.
In the event Denton shall elect a Partial Termination as to the Affected Areas, the Purchase
Price, as provided in Section 1.3 and Section 2.1, above, shall be reduced by the product of
$1.385 times the square footage included in the Affected Areas.
RD Wells Expansion Tract Page 15
9.9 Severability. In case any one or more of the provisions contained in this Contract shall
for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall
be construed as if such invalid, illegal, or unenforceable provision had never been contained
herein.
9.10 Rule of Construction. The parties acknowledge that each party and its counsel has
reviewed and revised this Contract, and the parties hereby agree that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Contract or any amendments or exhibits hereto.
9.11 Business Days and Time References. All references to "days" in this Contract shall be
deemed for all purposes to be "business days" provided that the Closing Date as defined at
Section 7.1 herein prevails over any other timeframe which may arguably affect Closing. If the
Closing Date or the day of performance of any act required under this Contract falls on a
Saturday, Sunday or legal holiday ( "All agencies closed" days defined by Texas State Auditor's
office), then the Closing Date or the day for such performance, as the case may be, shall be the
next following regular business day. References to particular times of day correspond to the
time in Denton, Texas.
9.12 Designation of Reporting Person. Denton and Westpark hereby designate the Title
Company as the "Reporting Person" with respect to the transaction contemplated under this
Contract for purposes of complying with the regulations set forth in 26 C.F.R. Section 1.6045 -
4(e)(5).
9.13 Counterparts. This Contract may be executed in multiple counterparts, each of which
shall, for all purposes, be deemed an original, but which together shall constitute one and same
instrument, and the signature pages from any counterpart may be appended to any other
counterpart to assemble fully executed documents, and counterparts of this Contract may also
be exchanged via electronic facsimile machines and any electronic facsimile of any party's
signature shall be deemed to be an original signature for all purposes; provided, however, that
any signature pages transmitted by electronic facsimile shall nevertheless be followed by the
exchange of hard copy originals.
9.14 Waiver. The waiver by any party of a breach of any provision of this Contract shall not
be deemed a continuing waiver or a waiver of any subsequent breach whether of the same or
another provision of this Contract.
9.15 Delegation of Authority. Authority to take any actions that are to be, or may be, taken
by Denton under this Contract are hereby delegated by Denton, pursuant to approval of this
Contract by the City Council of Denton, Texas, to (i) the General Manager of Denton Municipal
Electric, or his designee and (ii) the City Manager of Denton, Texas, or his designee.
9.16 Expiration of Offer. The execution of this Contract by Westpark constitutes, subject to
the terms hereof, an irrevocable offer to sell the Property to Denton. Unless by 5:00 p.m., on
RD Wells Expansion Tract Page 16
January 31, 2014, this Contract is accepted by Denton by action of the City Council of Denton
( "Council Acceptance "), the offer of this Contract shall be automatically revoked and
terminated.
9.17 Appendices. The following Appendices are attached hereto and made a part hereof:
• Appendix 1 — Deed
• Appendix 2 — RILMH Surface Waiver
IN WITNESS WHEREOF, this Contract is hereby executed as of the Effective Date.
[The Balance of This Page Has Been Intentionally
Left Blank — Signature Pages Follow.]
RD Wells Expansion Tract Page 17
WESTPARK SIGNATURE PAGE
WESTPARK:
WESTPARK GROUP, LP, a Texas limited partnership
By: Westpark Group GP, LLC, a Texas limited liability
company, its general partner
By: The Rayzor Company, a Texas corporation,
its sole mar g r
By: A
�I
Philip A. B er, Vice President
r
Executed by Westpark on the 30th day of December, 2013.
RD Wells Expansion Tract Page 18
DENTON SIGNATURE PAGE
DENTON:
CITY OF DENTON, a Texas municipal corporation
�m
By:
GEORGE C.
GEO CAMPBELL, CITY MANAGER
Executed by City of Denton on the day of January 2014.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ,.._.
RD Wells Expansion Tract Page 19
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:
REPUBLIC TITLE OF TEXAS, INC.
0
Printed Name:
Title:
Contract receipt date: January , 2014
RD Wells Expansion Tract Page 20
APPENDIX 1
Attached hereto and made a part hereof is the Deed.
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 §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF DENTON §
That Westpark Group, LP, a Texas limited partnership (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
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, subject to the limitation of such reservation made herein, shall reserve,
for itself, its successors and assigns all oil, gas and other minerals in, on and under and
that may be produced from the Property which Grantor may hold, if any. Grantor, its
successors and assigns shall not have the right to use or access the surface of the
Property, in any way, manner or form, in connection with or related to the reserved oil,
gas, and other minerals and /or related to exploration and /or production of the oil, gas
and other minerals reserved herein, including without limitation, use or access of the
surface of the Property for the location of any well or drill sites, well bores, whether
vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks 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 kind or type in connection with or related to the
reserved oil, gas and other minerals, and /or related to the exploration or production of
same; provided, further, however, that the parties acknowledge that the minerals held
by Grantor, if any, may not constitute all of the minerals under the Property and there
may be third party holders of mineral rights ( "Other Mineral Rights Holders ") and /or the
minerals may be subject to one or more existing oil and gas or other mineral leases, to
the extent same are valid and subsisting ( "Existing Mineral Leases ") in favor of lessees
thereunder ( "Mineral Lessees "), and the forgoing waiver as to surface use shall not be
construed to limit any of the existing rights of the Other Mineral Rights Holders or
Mineral Lessees under the Existing Mineral Leases, nor shall Grantor have any duty or
obligation to obtain any waivers or other agreements from any such Other Mineral
Rights Holders or Mineral Lessees with respect to limitations on surface use or
otherwise, and in no event shall Grantor haye any liability or responsibility for any
surface damage or injury to property or person as a result of the exploration and /or
production of minerals by any Other Mineral Rights Holders or any Mineral Lessee, and
Grantee shall pursue any such claims solely against such Mineral Lessee or Other
Mineral Rights Holder, as applicable.
As used herein, the term "minerals" shall mean all minerals of every kind,
including oil, crude oil, natural gas, casing -head gas, other gas, other gaseous or liquid
hydrocarbon minerals or substances, condensate, coal, ores, sulpher and other
minerals of every kind and nature in and under and /or that may be produced from the
Property.
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.
This Deed is executed by Grantor and accepted by Grantee subject to the
following (collectively, the "Permitted Exceptions "): ;(i) the Roll -Back Taxes as
hereinafter defined, (ii) the prior conveyance of all minerals associated with the Land as
contained in mineral deeds recorded under Instrument Number 2011 -67794 and /or
Instrument Number 2011 -67798 and /or Instrument Number 2013 - 142128 in the official
property records of Denton County, Texas; (iii) the encumbrances and matters listed in
Exhibit "B" hereto [attach list of all "Permitted Exceptions" as defined in the
Agreement] and (iv) all municipal or other governmental zoning laws, regulations and
ordinances, if any, affecting the Property, and (v) any other matters affecting the
Property of public record or which would be disclosed by a physical inspection of the
Property or an accurate survey of the Property. "Roll -Back Taxes" as used herein shall
mean any taxes or assessments assessed against the Property as a result of any
change in land usage or ownership based on the Property having been assessed under
any agricultural, open -space or other special use valuation methods ( "Special Use
Valuation ") to arrive at the taxable value of the Property as permitted under the Texas
Tax Code.
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.
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, subject to the Permitted Exceptions; and Grantor does
hereby bind Grantor and Grantor's successors and assigns to WARRANT AND
FOREVER DEFEND all and singular the Property, subject to the Permitted Exceptions,
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 w— day of January, 2014
WESTPARK GROUP, LP, a Texas limited partnership
By: Westpark Group GP, LLC, a Texas limited liability company,
its general partner
By: The Rayzor Company, a Texas corporation,
its sole member
By:
Philip A. Baker, Vice President
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of January,
2014, by Philip A. Baker, Vice President of The Rayzor Company, a Texas corporation,
sole member of Westpark Group GP, LLC, a Texas limited liability company, general
partner of Westpark Group, LP, a Texas limited partnership, on behalf of said limited
partnership.
GIVEN under my hand and seal of office this day of January, 2014.
Notary Public, State of Texas
Upon Filing Return To:
The City of Denton - Engineering
Attn: Paul Williamson
901 -A Texas Street
Denton, TX 76209
Exhibit "A"
Lot 9, in Block A, of WESTPARK ADDITION, Phase 2, an Addition to the City of Denton,
Denton County, Texas, according to the Plat thereof recorded in CC# 2013 -318, Plat
Records, Denton County
Exhibit "B"
Permitted Exceptions
[Specific Exceptions as Defined in Section 3.3 to be Attached at Closing]
APPENDIX 2
Attached hereto and made a part hereof is the RILMH Surface Waiver.
WAIVER AND RELEASE OF SURFACE RIGHTS AGREEMENT
STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF DENTON §
This Waiver and Release of Surface Rights Agreement ( "Agreement') is made and
entered into as of day of January, 2014 by RIL MINERAL HOLDINGS, LP, a Texas limited
partnership ( "Mineral Owner ") for the benefit of WESTPARK GROUP, LP, a Texas limited
partnership ( "Westpark ") and any other successor owners of the certain tract of land described
hereinbelow as the Waiver Property (any successors and assigns who own any portion of the
surface of the Waiver Property is referred to as a "Surface Owner" with respect to the surface
lands owned by it).
RECITALS:
A. Westpark is the surface owner of certain real property located in Denton County,
Texas as more particularly described on Exhibit "A" (the "Waiver Property ").
B. Mineral Owner is the owner of the mineral estate relating to the Waiver Property
(such minerals owned by Mineral Owner being referred to as the " RILMH Minerals ").
C. Westpark is selling and conveying the surface of the Waiver Property to the City
of Denton, Texas (the "City ") on or about the date hereof.
D. Mineral Owner, as the current holder of the RILMH Minerals, has agreed to
execute this instrument to confirm and agree that Mineral Owner waives and releases its right to
use the surface of the Waiver Property as provided below.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually acknowledged, Mineral
Owner covenants and agrees as follows:
1. Release and Waiver. Mineral Owner waives and releases, on behalf of Mineral
Owner and Mineral Owner's successors and assigns, all rights of ingress and egress and all
other rights to enter upon or to use the surface of the Waiver Property or any part thereof in any
way, manner or form, in connection with or related to the RILMH Minerals and /or related to
exploration and /or production of the RILMH Minerals, including without limitation, use or access
of the surface of the Waiver 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, tanks 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 kind or type in connection with or related to the RILMH Minerals, and /or related to the
exploration or production of same; provided further, however, nothing herein shall prevent
Mineral Owner or its successors and assigns from exploring for, developing and /or producing
the RILMH Minerals in and under the Waiver Property by pooling or by directional drilling under
the Waiver Property from well sites or mining sites located on other property; provided, further,
however, that the parties acknowledge that the RILMH Minerals may not constitute all of the
minerals under the Waiver Property and there may be third party holders of mineral rights
( "Other Mineral Rights Holders ") and /or the RILMH Minerals may be subject to one or more
existing oil and gas or other mineral leases ( "Existing Mineral Leases ") in favor of lessees
thereunder ( "Mineral Lessees "), and the forgoing waiver as to surface use shall not be
construed to limit any of the existing rights of the Other Mineral Rights Holders or Mineral
Lessees under the Existing Mineral Leases, nor shall Mineral Owner have any duty or obligation
to obtain any waivers or other agreements from any such Other Mineral Rights Holders or
Mineral Lessees with respect to limitations on surface use or otherwise, and in no event shall
Mineral Owner have any liability or responsibility for any surface damage or injury to property or
person as a result of the exploration and /or production of minerals by any Other Mineral Rights
Holders or any Mineral Lessee, and all Surface Owners shall pursue any such claims solely
against such Mineral Lessee or Other Mineral Rights Holder, as applicable. 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.
2. Current Holder of Rights. Mineral Owner represents and warrants that Mineral
Owner is the current holder of the RILMH Minerals.
3. Successors and Assigns. The acknowledgements and agreements of Mineral
Owner hereunder shall (i) run with the Waiver Property for the benefit of Westpark and any
future Surface Owner, specifically including, without limitation, the City, (ii) inure to the benefit of
and be enforceable by Westpark as well as any future Surface Owner, specifically including,
without limitation, the City, and its respective heirs, legal representatives, successors and
assigns of and (iii) be binding upon and enforceable against Mineral Owner and its legal
representatives, successors and permitted assigns.
4. Other /Miscellaneous.
(a) Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY
THE LAWS OF THE UNITED STATES OF AMERICA AND THE INTERNAL LAWS OF
THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICT OF RULES. THIS
AGREEMENT IS PERFORMABLE IN, AND THE EXCLUSIVE VENUE FOR ANY
ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE IN COURTS OF
COMPETENT JURISDICTION IN DENTON COUNTY, TEXAS.
(b) Headings. The titles and article headings contained herein are for
purposes of identification only and shall not be considered in construing this Agreement.
(c) Notices. Any notice, report or demand by Westpark and /or Surface
Owner to Mineral Owner with respect to this Agreement shall be in writing and shall be
deemed to have been sufficiently given or served to Mineral Owner for all purposes upon
Mineral Owner's receipt or refusal of receipt when sent by (i) registered or certified mail,
return receipt requested, or (ii) personal hand delivery, or (iii) overnight courier service,
to the Mineral Owner at the address shown beneath Mineral Owner's signature below.
EXECUTED to be effective as of the first date hereinabove written.
MINERAL OWNER:
RIL MINERAL HOLDINGS, LP, a Texas limited partnership
By: RIL Mineral Holdings GP, LLC, a Texas limited
liability company, its general partner
By: The Rayzor Company, a Texas corporation,
its sole member
By`
Philip A. Baker, Vice - President
Address:
c/o The Rayzor Company
400 W. Oak, Suite 200
Denton, Texas 76201
Tel. No. (940) 387 -8711
Fax No. (940) 566 -1591
THE STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on the day of January, 2014 by
Philip A. Baker, Vice - President of The Rayzor Company, a Texas corporation, sole member of
RIL Mineral Holdings GP, LLC, a Texas limited liability company, sole general partner of RIL
Mineral Holdings, LP, a Texas limited partnership, on behalf of said limited partnership.
Notary Public, State of Texas
After Recording Return To:
c/o The Rayzor Company
400 W. Oak, Suite 200
Denton, Texas 76201
EXHIBIT "A"
to Waiver and Release of Surface Rights Agreement
Lot 9, in Block A, of WESTPARK ADDITION, Phase 2, an Addition to the City of Denton,
Denton County, Texas, according to the Plat thereof recorded in CC# 2013 -318, Plat
Records, Denton County