2017-202S:\Legal\Our Documents\Ordinances\ 17\Ordinance - 2291 Scripture Street - 0.344 acre Cooke tract purchase - Pinal.docx
ORDINANCE NO. )17-202
stageWHEREAS, the above -captioned tract, containing approximately 0.344 acres, is located at
2291 Scripture Street and is slated for partial acquisition and bisection of the residential structure
situated thereupon, as a component part of the upcoming Bonnie Brae — North Widening and
Improvements project— Phase 5 (the "Project"); and
WHEREAS, the affected Owner has engaged city staff and desires to the sell to the City
the entire 0.344 acre property tract, in advance of the formal land rights acquisition
pending Project; an!
WHEREAS, approval of the purchase under consideration authorizes staff to proceed t*
closing the purchase transaction1
WHEREAS, the City Councilof of Denton hereby finds that the Contractof
between the City and Lisa Cooke serves . municipal .' • public 1 is in the public
`. R •
findingsSECTION t. The ! preamble of 1 rnce are incorporated
1 reference into the body of this Ordinance as if fully set forth
SECTION 2. The City Manager, or his designee, is herebyauthorized to execute the
Contractof 1 hereto as ExhibitI and incorporated hereinb reference, 1 to carry
out the duties and responsibilities of the City under the Contract of Sale, including the expenditure
of 1 provided !'
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the
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ATTEST:
JENNIFER WALTERS, CITY SECRETARY
A[)PI VED AS " `O LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
BY:
day of m , 2017.
W
A I I,S. AYOR
STATE OF TEXAS §
COUNTY OF DENTON §
CONTRACT OF SALE
NOTICE
YOU, AS OWNER OF THE PROPERTY (AS DEFINED BELOW), HAVE
THE RIGHT TO: (1) DISCUSS ANY OFFER OR AGREEMENT
REGARDING THE CITY OF DENTON'S ACQUISITION OF THE
PROPERTY WITH OTHERS; OR (2) KEEP THE OFFER OR
AGREEMENT CONFIDENTIAL, UNLESS THE OFFER OR
AGREEMENT IS SUBJECT TO CHAPTER 552, GOVERNMENT CODE.
This Contract of Sale (the "Contract") is made this I R day of
, 2017, effective as of the date of execution hereof by Buyer, as
defined herein (the "Effective Date"), by and between Lisa Cooke F/K/A Lisa Lynn
Dennie (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 Exhibit "A", attached hereto and made a part hereof for all purposes, being
located in Denton County, Texas (the "Land"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller,
the Land, together with any and all rights or interests of Seller in and to adjacent streets,
alleys and rights of way and together with all and singular the improvements and fixtures
thereon and all other rights and appurtenances to the Land (collectively, the "Property").
ARTICLE I
SALE OF PROPERTY
For the consideration hereinafter set forth, and upon the terms, conditions and
provisions herein contained, and subject to the reservations herein, Seller agrees to sell
and convey to Buyer, and Buyer agrees to purchase from Seller, the Property.
Seller, subject to the limitation of such reservation made herein, shall reserve, for
themselves and itself, their heirs, devisees, successors and assigns, all oil, gas and other
minerals in, on and under and that may be produced from the Property. Seller, their heirs,
devisees, successors and assigns shall not have the right to use or access the surface of
the Property, in any way, manner or form, in connection with or related to the reserved
oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas
and other minerals reserved herein, including without limitation, use or access of the
surface of the Property for the location of any well or drill sites, well bores, whether
vertical or any deviation from vertical, water wells, pit areas, seismic activities, 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.
As used herein, the term "minerals" shall include oil, gas and all associated
hydrocarbons, and shall exclude (i) all substances that any reasonable extraction, mining
or other exploration and/or production method, operation, process or procedure would
consume, deplete or destroy the surface of the Property; and (ii) all substances which are
at or near the surface of the Property. The intent of the parties hereto is that the meaning
of the term "minerals" as utilized herein, shall be in accordance with that set forth in
Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980).
As used herein, the term "surface of the Property" shall include the area from the
surface of the earth to a depth of five hundred feet (500') below the surface of the earth
and all areas above the surface of the earth.
It is understood that the Property, or a portion thereof, may be subject to an
existing oil and gas lease and that such oil and gas lease, to the extent it is valid and
subsisting, shall not be subject to such surface use prohibitions, to the extent provided by
law. However, (i) such oil and gas lease shall be considered an Exception, as defined
below; and (ii) nothing contained herein shall be deemed as recognizing the validity or
subsistence of such lease and/or operate as a revivor thereof.
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 Two Hundred Twenty Eight Thousand and No/100 Dollars ($228,000.00) (the
"Purchase Price").
2.02 Earnest Money. Buyer shall deposit the sum of Five Hundred and No/100
Dollars ($500.00), as Earnest Money (herein so called) with Capital Title of Texas, LLC,
620 West Hickory, Denton, TX 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
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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, at Buyer's expense, a current Commitment for Title Insurance
(the "Title Commitment") for the Property, issued by Title Company. The Title
Commitment shall set forth the state of title to the Property, including a list of
liens, mortgages, security interests, encumbrances, pledges, assignments, claims,
charges, leases (surface, space, mineral, or otherwise), conditions, restrictions,
options, severed mineral or royalty interests, conditional sales contracts, rights of
first refusal, restrictive covenants, exceptions, easements (temporary or
permanent), rights-of-way, encroachments, or any other outstanding claims,
interests, estates or equities of any nature (each of which are referred to herein as
an "Exception").
(b) Along with the Title Commitment, Seller shall also cause to be delivered to
Buyer, at Buyer's sole cost and expense, true and correct copies of all instruments
that create or evidence Exceptions (the "Exception Documents"), including those
described in the Title Commitment as exceptions to which the conveyance will be
subject and/or which are required to be released or cured at or prior to Closing.
3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall
cause to be prepared at Buyer's expense, a current on the ground survey of the Property
(the "Survey"). The contents of the Survey shall be prepared by a surveyor selected by
Buyer and shall include the matters prescribed by Buyer, which may include but not be
limited to, a depiction of the location of all roads, streets, easements and rights of way,
both on and adjoining the Property, water courses, 100 year flood plain, fences and
improvements and structures of any kind and other matters provided in items 1-4, 6a, 7a,
8, 11,13,16, 18, and 19 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, certificates, assurances, and/or resolutions as required by the Title Company in
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order to amend the survey exception as required by Section 3.05, below. The description
of the Property as set forth in the Survey, at the Buyer's election, shall be used to
describe the Property in the deed to convey the Property to Buyer and shall be the
description set forth in the Title Policy. Notwithstanding the Survey of the Property, the
Purchase Price for the Property, as prescribed by Section 2.01, above, shall not be
adjusted in the event the Survey shall determine the Property to be either larger or smaller
than that depicted in Exhibit "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, shall be deemed to be
Objections without any action by Buyer.
3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall,
within twenty (20) calendar days after Seller is provided notice of Objections, either
satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in
writing of the Objections that Seller cannot or will not satisfy at Seller's expense.
Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure
those Objections or Exceptions that have been voluntarily placed on or against the
Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any
Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day
period, 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
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 shall be issued by the Title Company, in the amount of the
Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property,
subject only to the Permitted Exceptions. The Title Policy may contain only the
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
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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 stated exceptions, amendments and/or
deletions, Buyer may object to any Exception it deems material, in its sole discretion.
ARTICLE IV
FEAS1II11.r,TY REVIEW PERIOD
4.01 Review Period. Any term or provision of this Contract notwithstanding, the
obligations of Buyer specified in this Contract are wholly conditioned on Buyer's having
determined, in Buyer's sole and absolute discretion, during the period commencing, with
the Effective Date of this Contract and ending sixty (60) calendar days thereafter (the
"Absolute Review Period"), based on such 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 Buyer's sole cost, that Buyer finds the
Property suitable for Buyer's purposes. Buyer is granted the right to conduct engineering
studies of the Property, and to conduct a physical inspection of the Property, including
inspections that invade the surface and subsurface of the Property. If Buyer determines,
in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended
use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as
soon as reasonably practicable, but in any event prior to the expiration of the Absolute
Review Period, in which case the Earnest Money will be returned to Buyer, and neither
Buyer nor Seller shall have any further duties or obligations hereunder. In the event
Buyer elects to terminate this Contract pursuant to the terms of this Article IV, Section
4.01, Buyer will provide to Seller, 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, WARRANT 11'K» COVENANTS AN
AGREEMENTS
5.01 Representations and Warranties of Seller. To induce Buyer to enter into this
Contract and consummate the sale and purchase of the Property in accordance with the
terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective
Date and as of the Closing Date, except where specific reference is made to another date,
that:
(a) The descriptive information concerning the Property set forth in this Contract is
complete, accurate, true and correct.
(b) There are no adverse or other parties in possession of the Property or any part
thereof, and no party has been granted any license, lease or other right related to
the use or possession of the Property, or any part thereof, except those described
in the Leases, as defined in Article V, Section 5.02(a).
(c) The Seller has good and marketable fee simple title to the Property, subject only
to the Permitted Exceptions.
(d) The Seller has the full right, power, and authority to sell and convey the Property
as provided in this Contract and to carry out Seller's obligations 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 all real estate and personal property taxes, assessments,
excises, and levies that are presently due, if any, which are against or are related
to the Property, or will be due as of the Closing, and the Property will be subject
to no such liens.
(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
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, except a 1% commission to Keller
Williams Realty to be paid by Seller from Seller's funds at Closing.
(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:
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(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 thereof) relating to the possession of the Property, or any part
thereof, including any and all modifications, supplements, and
amendments thereto (the "Leases").
(b) From the Effective Date until the date of Closing or earlier termination of this
Contract, Seller shall:
(i) Not enter into any written or oral contract, lease, easement or right of way
agreement, conveyance or any other agreement of any kind with respect
to, or affecting, the Property that will not be fully performed on or before
the Closing or would be binding on Buyer or the Property after the date of
Closing.
(ii) Advise the Buyer promptly of any litigation, arbitration, or administrative
hearing, 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.
(iv) Not sell, assign, lease or convey any right, title or interest whatsoever in or
to the Property, or create, grant or permit to be attached or perfected, any
lien, encumbrance, or charge thereon.
(c) Seller shall indemnify and hold Buyer harmless, to the extent permitted by law,
from all loss, liability, and expense, including, without limitation, reasonable
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.
It is expressly stipulated that (i) the Waste Material shall be deemed at all times
the property of Seller; and (ii) Buyer may retain, destroy, or dispose of any
property, of any kind or type, left or remaining on the Property at Closing (the
"Abandoned Property"), without liability of any kind to Buyer and without
payment of consideration of any kind to Seller. In the event Buyer shall elect to
store said Abandoned Property, Buyer may store such Abandoned Property in the
name, and at the expense, of Buyer.
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.
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 7.02(a).
ARTICLE VI
CONDITIONS PRECEDENT TO PERFORMANCE
6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under
this Contract unless, within the designated time periods, all of the following shall have
occurred:
(a) Seller has performed, furnished, or caused to be furnished to Buyer all items
required to be so performed or furnished under other sections of this Contract; and
(b) Seller cures or Buyer waives in writing, within the time periods specified in
Article III, all of Buyer's objections made in accordance with Article III.
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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. Notwithstanding anything
contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive
any of the conditions precedent to the performance of Buyer's obligations under this
Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying
the waived condition precedent.
6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any
of the conditions precedent to the performance of Buyer's obligations under this Contract
have not been satisfied by Seller or waived by the Buyer, the Buyer may, by giving
written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest
Money shall be immediately returned to Buyer by the Title Company. The Seller shall,
on written request from Buyer, promptly issue the instructions necessary to instruct the
Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise
provided in this Contract, Buyer and Seller shall have no further obligations under this
Contract, one to the other.
ARTICLE VII
CLOSING
7.01 Date and Place of Closing. The Closing (herein so called) shall take place in the
offices of the Title Company and shall be accomplished through an escrow to be
established with the Title Company, as escrowee. The Closing Date (herein sometimes
called), shall be forty five (45) calendar days after the Effective Date, unless otherwise
mutually agreed upon by Buyer and Seller.
7.02 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered to Buyer or
the Title Company, at the expense of the party designated herein, the following
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items:
(i) The Title Policy, in the form specified in Article III, Section 3.05;
(ii) The Special Warranty Deed, substantially in the form as attached hereto as
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 consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver to Seller or the Title Company, the
following items:
(i) The sum required by Article II, Section 2.01, less the Earnest Money 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:
(a) Ad valorem taxes relating to the Property for the calendar year in which the
Closing shall occur shall be prorated and submitted by Seller to the Denton
County Tax Assessor as of the Closing Date. Ad valorem tax for the calendar
year in which the Closing shall occur shall be tendered under Texas Tax Code
Section 26.11. 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. 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
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being the responsibility of Seller. Buyer is responsible for paying all other fees, costs and
expenses related to Closing.
ARTICLE VIII
DEFAULTS AND REMEDIES
8.01 Seller's Defaults and Buyer's Remedies.
(a) 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 7.02(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.
(b) 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:
(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 shall, promptly on written request from Buyer, execute and deliver
any documents necessary to cause the Title Company to return to Buyer
the Earnest Money;
(ii) Enforce specific performance of this Contract against Seller, requiring
Seller to convey the Property to Buyer subject to no liens, encumbrances,
exceptions, and conditions other than those shown on the Title
Commitment, whereupon Buyer shall waive title objections, if any, and
accept such title without reduction in Purchase Price on account of title
defects and shall be entitled to assert any rights for damages based on
Seller's representations, warranties and obligations that are not waived by
Buyer by its acceptance of Seller's title; and
(iii) Seek other recourse or relief as may be available to Buyer at or by law,
equity, contract or otherwise.
8.02 Buyer's Default and Seller's Remedies.
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(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.
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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
regularly maintained receptacle for the United States Mail, registered or certified, return
receipt requested, postage prepaid, addressed as follows:
SELLER:
1-blerall.ii
City of Denton
Paul Williamson
Real Estate Manager
901-A Texas Street
Denton, Texas 76209
Telecopy: (940) 349-8951
Copies to:
ForSeller: 9o� lt�;yar
Aaron Leal, Interim City Attorney
------------- _— City Attorney's Office
215 E. McKinney
Denton, Texas 76201
Telecopy: 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 devisees, heirs, 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
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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
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 shall
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 and/or deliver, or cause to be performed, executed
and/or delivered at the Closing or after the Closing, any further deeds, acts, and
assurances as are reasonably necessary to consummate the transactions contemplated
hereby. Notwithstanding anything to the contrary contained in this Contract and without
limiting the general application of the provisions of Section 5.03, above, the provisions
of this Article IX, Section 9.06 shall survive Closing.
9.07 Time is of the Essence. It is expressly agreed between Buyer and Seller that time
is of the essence with respect to this Contract.
9.08 Exhibits. The Exhibits which are referenced in, and attached to this Contract, are
incorporated in and made a part of, this Contract for all purposes.
9.09 Delegation of Authority. Authority to take any actions that are to be, or may be,
taken by Buyer under this Contract, including without limitation, adjustment of the
Closing Date, are hereby delegated by Buyer, pursuant to action by the City Council of
Denton, Texas, to Todd Hileman, City Manager of Buyer, or his designee.
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9.10 Contract Execution. This Contract of Sale may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement, and
any of the parties hereto may execute this Agreement by signing any such counterpart.
9.11 Business Days. If the Closing Date or the day of performance required or
permitted under this Contract falls on a Saturday, Sunday or Denton County holiday, then
the Closing Date or the date of such performance, as the case may be, shall be the next
following regular business day.
SELLER:
. �.
L'i��� M�.00ke F/K/A Lisa Lynn Dennie
Executed by Seller on the day of LIl, 2017.
BUYER:
TODD HILEMAN, CITY MANAGER
Executed by Buyer on the day of 2017
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
:•
APP'ROV'ED AS TO LEGAL FORM:
AARON LEAL, INTERIM CITY ATTORNEY
BY:
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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, LLC
620 W. Hickory Street
Denton, Texas 76201
Printed Name:
Title:
Contract receipt date: , 2017
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EXHIBIT "A"
to
Contract of Sale
Legal Description
All that certain lot, tract or parcel of land situated in the City of Denton, Denton County,
Texas, being a part of a tract of land out of the E. Puchalski Survey conveyed by J. M.
Crowley to C. S. Wilkins, by deed recorded in Volume 124, page 271, Deed Records of
Denton County, Texas, and more particularly described as follows:
BEGINNING at a stake at the Northeast corner of a tract of land conveyed by Ben C.
Ivey and wife to Dr. M. C. Sheppard said tract being described in said deed which is of
record in Volume 337, page 480, Deed Records of Denton County, Texas, and being in
the South boundary line of Scripture Street;
THENCE West along the South boundary line of Scripture Street 100 feet for corner,
same being the Northeast corner of a tract conveyed by Sheppard to Ponder;
THENCE South along the East line of said Ponder lot, 150 feet for corner;
THENCE East parallel with the South line of Scripture Street 100 feet for corner, same
being in the East boundary line of said tract conveyed by Ben C. Ivey to M. C. Sheppard
as aforesaid;
THENCE North along the East boundary line of said tract, 150 feet to the place of
beginning.
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EXHIBIT "B"
TO
CONTRACT OF SALE
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL
PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE
FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT
TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER
OR YOUR DRIVER'S LICENSE NUMBER.
SPECIAL WARRANTY DEED
STATE OF TEXAS §
COUNTY OF DENTON § KNOW ALL MEN BY THESE PRESENTS
That Lisa Cooke F/K/A Lisa Lynn Dennie (herein collectively 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, 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, reserves, for
themselves, their heirs, devisees, successors and assigns all oil, gas and other minerals in,
on and under and that may be produced from the Property. Grantor, their heirs, devisees,
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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.
As used herein, the term "other minerals" shall include oil, gas and all associated
hydrocarbons and shall exclude (i) all substances that any reasonable extraction, mining
or other exploration and/or production method, operation, process or procedure would
consume, deplete or destroy the surface of the Property; and (ii) all substances which are
at or near the surface of the Property. The intent of the parties hereto is that the meaning
of the term "other minerals" as utilized herein, shall be in accordance with that set forth
in Reed v. Wylie, 597 S.W.2d 743 (Tex. 1980).
As used herein, the term "surface of the Property" shall include the area from the
surface of the earth to a depth of five hundred feet (500') below the surface of the earth
and all areas above the surface of the earth.
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; 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.
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EXECUTED the day of _ 2017.
Lisa Cooke F/K/A Lisa Lynn Dennie
ACKNOWLEDGMENT
THE STATE OF
COUNTY OF
This instrument was acknowledged before me on
Lisa Cooke F/K/A Lisa Lynn Dennie.
Upon Filing Return To:
City of Denton -Engineering
Attn: Paul Williamson
901-A Texas Street
Denton, TX 76209
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2017 by
Notary Public, State of Texas
My commission expires: ___
Property Tax Bills To:
City of Denton Finance Department
215 E. McKinney Street
Denton, Texas 76201
Exhibit "A"
To
Special Warranty Deed
Legal Description
All that certain lot, tract or parcel of land situated in the City of Denton, Denton County,
Texas, being a part of a tract of land out of the E. Puchalski Survey conveyed by J. M.
Crowley to C. S. Wilkins, by deed recorded in Volume 124, page 271, Deed Records of
Denton County, Texas, and more particularly described as follows:
BEGINNING at a stake at the Northeast corner of a tract of land conveyed by Ben C.
Ivey and wife to Dr. M. C. Sheppard said tract being described in said deed which is of
record in Volume 337, page 480, Deed Records of Denton County, Texas, and being in
the South boundary line of Scripture Street;
THENCE West along the South boundary line of Scripture Street 100 feet for corner,
same being the Northeast corner of a tract conveyed by Sheppard to Ponder;
THENCE South along the East line of said Ponder lot, 150 feet for corner;
THENCE East parallel with the South line of Scripture Street 100 feet for corner, same
being in the East boundary line of said tract conveyed by Ben C. Ivey to M. C. Sheppard
as aforesaid;
THENCE North along the East boundary line of said tract, 150 feet to the place of
beginning.
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