19-2757ORDINANCE NO. 19-2757
AN ORDINANCE OF THE CITY OF DENTON AUTHORIZING THE CITY MANAGER, OR
HIS DESIGNEE, TO EXECUTE A CONTRACT OF SALE BETWEEN THE CITY OF
DENTON, AS BUYER, AND 612 E MCKINNEY, LLC, AS SELLER, FOR THE PURCHASE
OF A 1.22 ACRE TRACT OF LAND, MORE OR LESS, BEING SITU A TED IN THE HIRAM
SISCO SURVEY, ABSTRACT NO. 1184, LOCATED IN THE CITY OF DENTON, DENTON
COUNTY, TEXAS, AND KNOWN AS 612 EAST MCKINNEY STREET, FOR THE
PURCHASE PRICE OF ONE MILLION SEVEN HUNDRED THOUSAND DOLLARS AND
N0/100 ($1,700,000.00); AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR;
PROVIDING FOR SEVERABILITY; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the above-captioned tract, containing approximately 1.22 acres of land,
located at 612 East McKinney Street, and being more particularly described in Exhibit "A" to the
Contract attached hereto and made a part hereof for all purposes, (the "Property") may be put to
public use and benefit; and
WHEREAS, 612 E McKinney, LLC (collectively, the "Owner") has agreed to sell the
Property to the City of Denton (the "City") for the purchase price of One Million Seven Hundred
Thousand Dollars ($1,700,000.00); and
WHEREAS, the City Council hereby finds that the Contract of Sale between the City and
Owner serves a municipal and public use and is in the public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings set forth in the preamble of this Ordinance are incorporated by
reference into the body ofthis Ordinance as if fully set forth herein.
SECTION 2. The City Manager, or his designee, is authorized to: (a) execute the Contract
of Sale between the City of Denton, as Buyer, and 612 E McKinney, LLC, as Seller, for the
purchase price of $1,700,000.00 and under the terms and conditions set forth in the attached Exhibit
"A," and (b) execute any other documents necessary for closing of the transaction contemplated by
the Contract.
SECTION 3. The City Manager is further authorized to make expenditures as set forth in
the Contract.
SE T lON 4. If any section, article, paragraph, sentence, phrase, clause, or word in this
ordinance, or application thereof to any persons or circumstances, is held invalid or
unconstitutional by a court of competent jurisdiction, such holding shall not affect the validity of
the remaining portions of this ordinance; the City Council declares that it would have ordained
such remaining portion despite such invalidity, and such remaining portion shall remain in full
force and effect.
SECTION 5. This ordinance shall become effective immediately upon its passage and
approval.
The motion l appr v this ordinance was made by ~/f,GD /l-ti.L)S,4?€7l/tmd seconded
by ~ HN £yrt 1\1 , the ordinance was passed and approved by the
fol.lowing vote ~-(} ]:
Aye Nay Abstain Absent
Chris Watts, Mayor:
Gerard Hudspeth, District 1:
Keely G. Briggs, District 2:
Jesse Davis, District 3:
John Ryan, District 4:
Deb Armintor, At Large Place 5:
Paul Meltzer, At Large Place 6:
PA ED A 0 APPR V ED this the 11tiL day of /)e(!/jnl.u_ '2019.
ATTEST:
ROSA RIOS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY:~/UA-~
Page 2
CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF DENTON §
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 /7t-h day of December, 2019,
effective as of the date of execution hereof by Buyer, as defined herein (the "Effective Date"), by
and between 612 E McKinney, LLC, a Texas limited liability company (referred to herein
collectively as "Seller") and the City of Denton, a Texas Home Rule Municipal Corporation of
Denton County, Texas (referred to herein as "Buyer").
RECITALS
WHEREAS, Seller owns that certain tract of land, being an approximately 1.22 acre tract
of land in the Hiram Sisco Survey, Abstract 1184, City of Denton, Denton County, Texas as
described in Document Number 2017-124121, recorded in the Denton County Deed Records,
and 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, 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,
Contract of Sale
Page I of35
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. Notwithstanding the foregoing, nothing herein shall restrict or prohibit the
pooling or unitization of the portion of the mineral estate owned by Seller with land other than
the Property; or the exploration or production of the oil, gas, and other minerals by means of
wells that are drilled or mines that open on land other than the Property but enter or bottom under
the Property, provided that these operations in no manner interfere with the surface or subsurface
support of any improvements constructed or to be constructed on the Property.
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
ONE MILLION SEVEN HUNDRED THOUSAND and N0/100 Dollars ($1,700,000.00) (the
"Purchase Price"). The above amount includes any expenses or payments that Seller may be
entitled to under City of Denton Ordinance 2012-073 and Texas Property Code Sections 21.043
and 21.046; and, as additional consideration for this agreement, Seller hereby explicitly waives
any claims it may have under said provisions.
2.02 Earnest Money. Buyer shall deposit the sum ofTEN THOUSAND and No/100 Dollars
($1 0,000.00), as Earnest Money (herein so called) with Alamo Title, 3424 Long Prairie Rd,
Suite 100, Flower Mound, Texas 75022 (the "Title Company"), as escrow agent, within fourteen
(14) calendar days after the Effective Date hereof. All interest earned thereon shall become part
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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. If Buyer fails to timely deliver the Earnest Money,
Seller may terminate this Contract by written notice to Buyer.
3.01 Title Commitment.
ARTICLE III
TITLE AND SURVEY
(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 twenty (20) calendar days after the Effective Date, Buyer shall cause to
be prepared at Buyer's expense, a current on the ground survey of the Property (the "Survey"),
and Seller will reasonably cooperate with requests of Buyer's surveyor for access to the
Property. 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, 1 00 year flood plain, fences, 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 ofthe 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 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
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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 thirty (30) 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. Seller shall, within fifteen
(15) 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 fifteen
(15) 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 the
end of the Absolute Review Period (defined below), in which event those Objections
shall become Permitted Exceptions (herein so called), or
(b) terminating this Contract by notice in writing prior to end of the Absolute Review Period
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. Promptly following the 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 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
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agreed by Buyer; and
(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
FEASIBILITY REVIEW PERIOD
4.01 Review Period. Any term or provision of this Contract notwithstanding, the obligations
of Buyer specified in this Contract are wholly conditioned on Buyer's having determined, in
Buyer's sole and absolute discretion, during the period commencing with the Effective Date of
this Contract and ending thirty (30) 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, 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. Further, if
Buyer elects to terminate this Contract, any damages to the Property resulting from any
inspections, studies and/or soil tests conducted by or at the direction of Buyer will be repaired by
Buyer, at its sole cost and expense, so that the Property is restored to its original condition.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS, AND
AGREEMENTS
5.01 Representations and Warranties of Seller. 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 legal description of 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 Permitted
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Exceptions or in the Leases, as defined in Article V, Section 5.02(a).
(c) Seller has good and indefeasible fee simple title to the Property, subject only to the
Permitted Exceptions.
(d) 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) Seller has not received written notice of and has no other knowledge 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) 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.
(h) All Leases, as defined in Article V, Section 5.02(a), shall have expired or otherwise
terminated, and any and all tenants or parties occupying the Property pursuant to the
Leases shall have permanently abandoned and vacated the Property, including without
limitation, all personal property of any such tenants or parties, on or before the date of
Closing.
(i) The Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue
Code of 1986, as amended.
5.02 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as
follows:
(a) Within ten (10) calendar days after the Effective Date, Seller, at Seller's sole cost and
expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete
copies ofthe 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
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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) It is expressly stipulated that Buyer may retain, destroy, or dispose of any property, of
any kind or type, left or remaining on the Property at Closing or termination of the
Temporary Lease, whichever is later (the "Abandoned Property"), without liability of any
kind to Buyer and without payment of consideration of any kind to Seller.
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, IT IS UNDERSTOOD AND AGREED THAT SELLER IS
NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR
REPRESENTATIONS AS TO MATTERS OF PHYSICAL OR ENVIRONMENTAL
CONDITIONS, ZONING, THE VALUE, CONDITION, MERCHANTABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE
OF THE PROPERTY. BUYER REPRESENTS THAT IT HAS BEEN REPRESENTED BY
COUNSEL IN THE NEGOTIATION OF THIS CONTRACT, IS A KNOWLEDGEABLE AND
SOPHISTICATED BUYER OF REAL ESTATE AND THAT IT IS RELYING ONLY,
SOLELY AND EXCLUSIVELY ON ITS OWN EXPERTISE, INVESTIGATIONS AND
THAT OF BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY AND
EXPRESSLY DISCLAIMS RELIANCE ON ANY REPRESENTATIONS, WARRANTIES OR
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LACK THEREOF FROM SELLER. BUYER WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY, INCLUDING,
BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS
THEREOF, AND ZONING COMPLIANCE, AND SHALL RELY UPON SAME. SELLER
AGREES TO REASONABLY ACCOMONDATE ALL REQUESTS FOR ACCESS TO THE
PROPERTY BY BUYER OR BUYER'S AGENT TO CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S
INSPECTIONS AND INVESTIGATIONS. BUYER ACKNOWLEDGES AND AGREES
THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER
SHALL ACC PT TI-I ~ PROP ~RTY AS IS, WH R IS," WI TH ALL FAULTS. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH HEREIN, THERE
ARE NO WARRANTIES OR REPRESENTATIONS, PERTAINING TO OR AFFECTING
THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE
TERMS AND CONDITIONS OF THIS SECTION SHALL EXPRESSLY SURVIVE THE
CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS
AND SHALL BE INCORPORATED INTO THE DEED DELIVERED BY SELLER AT
CLOSING. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO
THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH
HEREIN.
In executing this Agreement, the parties unequivocally represent, acknowledge, and state that
they were represented by counsel in the negotiation and formation of this Contract, which
negotiation was conducted by the parties at arm's length, and the parties are relying solely upon
each party's own independent knowledge, understanding, and investigation of the matters
pertinent hereto and have not seen, heard, or relied upon any promises, statements,
representations, covenants, or warranties, whether written or oral, express or implied, made by
one another or by any representative or other person or entity and that no such party had any duty
to make any disclosures, except to the extent that a matter is expressly stated in this Contract.
The parties hereby waive, release, and disclaim any right or ability to seek to revoke, rescind,
vacate, or otherwise avoid the operation and effect of this Contract on the basis of any alleged
fraudulent inducement, misrepresentation, or material omission by any of the undersigned or
their representatives, or on the basis of mutual or unilateral mistake of fact or law, or newly
discovered information, and acknowledge that they are completely satisfied with this settlement,
as reflected in this Contract.
5.03 Covenants and Agreements of Buyer and Seller. Buyer and Seller covenant and agree
with the other as follows:
(a) At Closing, Buyer shall temporarily lease to Seller, and Seller shall temporarily lease
from Buyer, the entirety of the Property, upon the terms and conditions set forth in the form of
the Temporary Lease (herein so called), as attached hereto as Exhibit "B".
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(b) Seller shall remove all of Seller's personal property, trade fixtures and any other property
of Seller, excepting the buildings, structures, improvements and other facilities that are fixtures
to the Land ("the Fixtures"), other than trade fixtures (Seller's property described above, other
than the Fixtures, is herein called "Seller's Personal Property") from the Property on or before
the Termination Date (as defined in the Temporary Lease) of the Temporary Lease. Any of
Seller's Personal Property remaining on the Property after the Termination Date shall be deemed
Abandoned Property, as prescribed by Section E.19 of the Temporary Lease and may be
disposed of by Buyer in any manner prescribed by the Temporary Lease. Further, Seller shall
execute and deliver to Buyer a written stipulation and waiver, on or before the Termination Date,
expressly waiving any and all rights Seller may have in or to such Personal Property left on the
premises following Termination ofthe Lease.
5.03.A 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 for a period that is the earlier of one hundred
eighty (180) days and the shortest period allowed by applicable Texas law.
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 all of Buyer's objections made in accordance with Article III or Buyer fails
to terminate this Contract within the time periods specified in Article Ill.
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 in all material respects 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 to the extent that it may no longer be suitable for Buyer's intended use.
6.04 Review Period. Buyer is not obligated to perform under this Contract if Buyer delivers
written 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
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precedent to the performance of Buyer's obligations under this Contract by giving to 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 Buyer, 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. 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 January 2,
2020, 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 items:
(i) The Special Warranty Deed, substantially in the form as attached hereto as
Exhibit "C," subject only to the Permitted Exceptions, if any, duly executed by
Seller and acknowledged;
(ii) The Temporary Lease, in the form as attached hereto as Exhibit "B", duly
executed by Seller and acknowledged; and
(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 subject to
adjustments and prorations set forth herein, in the form of a cashier's check or
other immediately available funds;
(ii) The Temporary Lease, in the form attached hereto as Exhibit "B", duly executed
by Buyer and acknowledged; and
(iii) Other items reasonably requested by the Title Company as administrative
Contract of Sale
Page 10 of35
requirements for consummating the Closing.
The Title Policy, in the form specified in Article III, Section 3.05, shall promptly delivered to
Buyer as soon as commercially possible after 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 any such taxes as are due and payable 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 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,
subject to the Temporary Lease.
7.05 Costs of Closing. The escrow charges of the Title Company shall be paid equally by
Seller and Buyer. Buyer shall pay all recording fees associated with recording the conveyancing
instrument. All other expenses incurred by Seller and Buyer with respect to the Closing,
including, but not limited to, attorneys' fees and costs and expenses incurred in connection with
the negotiating, preparing and closing the transaction contemplated by this Contract, shall be
borne and paid exclusively by the party incurring same, unless otherwise expressly provided in
this Contract.
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 ofthe following events:
(i) Any of Seller's warranties or representations contained in this Contract are untrue
in a material respect on the Closing Date;
(ii) Seller fails to meet, comply with, or perform any material covenant, agreement,
condition precedent, or material obligation on Seller's part required within the
Contract of Sale
Page 11 of35
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 may, at Buyer's sole
option, do any ofthe following:
(i) Terminate this Contract by written notice delivered to Seller on or before the
Closing Date 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; or
(ii) Enforce specific performance of this Contract against Seller, requiring Seller to
convey the Property to Buyer in accordance with the terms and provisions of this
Contract without reduction in Purchase Price, provided that any action for specific
performance shall be commenced not later than the earlier of (A) sixty (60) days
after the date of such default, and (B) the earliest limitations period authorized by
Texas law (as applicable, the "Specific Performance Deadline"). If Buyer fails to
commence an action for specific performance before the expiration of the Specific
Performance Deadline, Buyer shall be deemed to have waived its specific
performance remedy; or
(iii) Seek other recourse or relief as may be available to Buyer at or by law, equity,
contract or otherwise.
8.02 Buyer's Default and Seller's Remedies.
(a) Buyer's Default. Buyer is in default under this Contract if Buyer fails to deliver at
Closing the items specified in Article VII, Section 7.02(b) of this Contract for any
reason other than a default by Seller under this Contract or termination of this Contract
by Buyer pursuant to the terms hereof prior to Closing.
(b) Seller's Remedy. If Buyer is in default under this Contract, Seller, as Seller's sole and
exclusive remedy for the default, may, at Seller's sole option, do either one of the
following:
(i) Terminate this Contract by written notice delivered to Buyer in which event the
Seller shall be entitled to a return of the Earnest Money, and Buyer shall,
promptly on written request from Seller, execute and deliver any documents
necessary to cause the Title Company to return to Seller the Earnest Money; or
(ii) Enforce specific performance ofthis Contract against Buyer.
Contract of Sale
Page 12 of35
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, electronic mail, by hand delivery, or by United States Mail, and shall be deemed to be
delivered and received upon the earlier to occur of: (a) if provided by telephonic facsimile, email
or hand delivery, the date provided, and (b) if provided by United State Mail, the date of the
deposit in a regularly maintained receptacle for the United States Mail, registered or certified,
return receipt requested, postage prepaid, addressed as follows:
SELLER:
612 E McKinney, LLC
4880 Long Prairie Road, #200
Flower Mound, TX 75028
Attn: Earl Herrington
Email: Earlherrington@elkriver. biz
Copies to:
For Seller:
Irwin Law Firm
207 S. Denton Tap Road, Suite 100
Coppell, Texas 75019
Attn: Barry D. Irwin
E-mail: birwin@irwin-law.com
BUYER:
Deanna Cody, Deputy Director
Capital Projects-Real Estate
216 W. Mulberry Street
Denton, Texas 76201
Telecopy: (940) 349-8951
E-mail:Deanna.Cody@cityofdenton.com
·or Buyer:
Aaron Leal, City Attorney
City Attorney's Office
215 E. McKinney
Denton, Texas 76201
Telecopy: (940) 382-7923
E-mail: ----------------
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. Other than the Temporary Lease, 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
Contract of Sale
Page 13 of35
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 ofthis Contract to the public.
9.05 Risk of Loss. If any damage to the Property shall occur prior to Closing, or if any
condemnation or any eminent domain proceedings are threatened or initiated by an entity or
party other than Buyer that might result in the taking of any portion of the Property, Buyer may,
at Buyer's option, do any of the following:
(a) Terminate this Contract and withdraw from this transaction without cost, obligation, or
liability, in which case the Earnest Money shall be immediately 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 (1 0) 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 reasonably 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 not later than the Closing Date.
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, to Todd Hileman,
City Manager of Buyer, or his designee.
Contract of Sale
Page 14 of35
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.
[SIGNATURE PAGES FOLLOW]
Contract of Sale
Page 15 of35
Executed to be effective as of the Effective Date.
SELLER:
612 E McKINNEY,....._.., . .,
a Texas limit· · ili
Executed by Seller on the \)A-\,.._ day of December 2019.
BUYER:
CITY OF DENTON, a :r:rrmau~municipru corporation
~ Hileman, City Manager
Executed by Buyer on the /~tiL
ATTEST:
ROSA RIOS, CITY SECRETARY
By:.__~-~/
THIS AGREEMENT HAS BEEN BOTH
REVIEWED AND APPROVED AS TO
Date: ------------------------
Contract of Sale
Page 16 of35
RECEIPT OF AGREEMENT BY TITLE COMPANY
By its execution below, the Title Company acknowledges receipt of an executed copy of
this Contract. The 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:
Alamo Title
3424 Long Prairie Rd, Suite 100
Flower Mound, Texas 75022
Direct-817-921-1215
Fax-817-370-6131
By: ____________________________ _
Printed Name: ------------------------
Title: ------------------------------
Contract receipt date: December _, 2019
Contract of Sale
Page 17 of35
lt~.XH I RIT •• A ••
LEGAL I>ESCRll"l'lON
BEING all that certain lot, traci, or parcel ofland situated in the H. Sisco Survey Abstract Number
1184 iL1 the City of Denton, Denton County, Texas. being all thru cettnin rroct l)f land conve ycd by
deed from Gary \V. SpStzer and Jac.k T. Bt·o,vn to Gene A Gohlke and wite~ Judith C. Gohlke
r"J;",.cQrded in Volurne 177G. P<1g.e 84, Re.al Property Roc,ord5. Denton Collnty, Texas flnd bdng mote'
particularly described <~.:s tollo\o,'s;
BbGINNJNU at an iron rod found tor comer in the !5tlUth line of .East McK.llmey Street, a pub1lc
roadway lutving a right~of-wa:r· of 7(1.0 fed, s~iJ point ht'irrg tl1c rror-r:hea~t corner of that certnin
tmd ofhmd conveyed by d~o..:d frorn JWKW R~~l bs.lale, lm:. ll) Rod<ll~l SanHU10 and Gricelda
Saman(l recordoo under Document Nun1ber 2016-22991, Real Properly Ret:.c'lru~. D~ton County.
Texas;
THENCE S 87'~ 5S' 3 T E, 125.53 f:.::ct v.·lth saki :s.ut1lh liHt:-of said E<ist Mc.;Kinnt.:y Sln:et to an
iron rod mark~d ,1:\57 l~nmd fi)r come•·1n the westline offorame Sttct:(, g puhli~.: ruw:lw·ay ha\'ln~
;a variahk widl11 right-oC:·w~l)';
THENCE S 00" 18' 10" b, :344.55 fc{·1 with said west line ofs~1ld l•'nuw.! Strcd Loa mag nail i"nnnd
for corner in the north hne of tha,t cert:1in tract of Land convey~d by deed fnm1 :•.,.1oon~ Hus1nes~
Forms, Inc. to the City of Denton t\.>:e-ot'dcd ln Vohune 29-02, Page 950. RNtl Pmp~.-~rly Kc.-:conJs,
Denton Cotmty. Texas;
THENCE alou11 the a«:-of !l curve to the ri~ht having~ central nn~Je of 32·~ 07' 52"\ a radius of
458.37 feet, an arc length of25'7.05 feet, \Vho9e chord bellt'S N 62" 15' OS" W, 2S3.70 feet \~o.-itn
sald north line of said City ot' Denton tract t.o an iron rod found tor C,.()rner in the eas1 Une oflutilroad
/\1,'el1Ue, a public rvOOV.'a)' lHwing a righHJf-way ~l[' 50,0 feel~
THENCE N oo~ 19" 07" v-,r, M.6~ fed v.-lth txli~] ea.st line t)f' ;:;aid Railroud Avenue to un iron rod
marked 4857 fbund t(lr C<mltT, !-;aid pt)int hcing lhc .south-..vc:d <:Pmc:r of ~id Samano tract and the
southwest corner of Lut l. Block l of Cur \llhr~h Equipment /\dditim1. an aJJitinn w ~h~: City of
Dr.mlor'l, Dcmo11 Connly, · l·cxa~. ac~(ltd-ing to the plat tllcrcofrccorJ...::d in Ca.bint..>t 11, l)age 374. Plat
Reconls, Denton County, T~xw-:;
THENCb S 88c' W' 28" E, 4.Jft.27 fed w3ih th~.: ~outb liul: of ~Ltd Samann lnu:L and wi1h the :-«J~llh
line of ~id C11r W:..\s.l'r Equipment ,·\ddi[ion to an imn md marked 4857 ~()llf'ld for cOT'ncr at the
s.ollthea~t comer of Httid Sanu:mo tract and s.aiti C::Jr \Vash Ji.quipnK:rtt Adcl.iLim1:
THENCE N 00° 11' 2S" \V, 149.57 fr!:d with the east lint:: of s~1jd SaulaBu tm~.;t w1d with lhi: cast
line of said Car Wash Equipment Addition to the PLACE OF DDGI.~·.r~HNG and containing 1.220
acres of land.
Contract of Sale
Page 18 of35
Effective Date: January 2, 2020
Landlord: City of Denton
EXHIBIT "B"
to
Contract of Sale
Temporary Lease
Basic Terms
Landlord's Address: 215 E. McKinney, Denton, Texas 76201
Tenant: 612 E McKinney, LLC
Tenant's Address: 4880 Long Prairie Road, Suite 200, Texas 75028
Premises-As described on Exhibit "A", attached hereto.
Term: Three (3) Months
Commencement Date: The Effective Date
Termination Date: (i) March 31, 2020; (ii) earlier termination of this Lease, as provided herein;
or (iii) surrender of the Premises by Tenant to Landlord, whichever is the earlier to occur.
Rent: The consideration for this Lease is Ten Dollars and No Cents ($10.00).
Permitted Use: Current office and warehouse, and no other uses.
Tenant's Insurance: As required by Insurance Addendum, attached hereto as Exhibit "B"
Landlord's Insurance: None
Tenant's Rebuilding Obligations: If the Premises are damaged by fire or other elements to the
extent the Permitted Use may not continue absent repair, this Lease shall terminate.
Contract of Sale
Page 19 of35
Definitions
"Arises." An Environmental Claim or Environmental Cleanup Liability shall be deemed to Arise
upon each discrete Release of a Chemical Substance.
"Chemical Substances" shall mean any chemical substance, including, but not limited to, any
sort of pollutants, contaminants, chemicals, raw materials, metals, intermediates, products,
industrial, solid, toxic or hazardous substances, materials, wastes, asbestos, asbestos-containing
materials, polychlorinated biphenyls, or petroleum products, including crude oil or any derived
product or component thereof, including, without limitation, gasoline and any material or
substance of any kind containing any ofthe above.
"Environmental Claim" shall mean any claim, demand, action, suit or proceeding for the injury,
disease or death of any person (including, without limitation, the Tenant, or Tenant's successors,
assigns, employees, agents and/or representatives), property damage, damage to the
environment, or damage to natural resources made, arising or alleged to arise under, or relating
to, any Environmental Law. Environmental Claim includes any damages, settlement amounts,
fines and penalties assessed or costs of complying with any orders or decrees of courts,
administrative tribunals or other governmental entities associated with resolving such claims,
demands, actions, suits or proceedings and any costs, expenses and fees, including, without
limitation, reasonable attorney's fees, incurred in the investigation, defense and resolution of
such claims, demands, actions, suits and proceedings.
"Environmental Cleanup Liability" shall mean any cost or expense of any nature whatsoever
incurred to investigate, contain, remove, remedy, respond to, clean up, or abate any Release of
Chemical Substances or other contamination or pollution of the air, surface water, groundwater,
land surface or subsurface strata related to the operation, occupation, use, maintenance,
abandonment or ownership of the Premises, whether such Release, contamination or pollution is
located on, within, under or above the Premises or is located on, within, under or above any other
lands or property including, but not limited to, any Release of Chemical Substances or other
contamination or pollution arising out of or resulting from the manufacture, generation,
formulation, processing, labeling, distribution, introduction into environment or commerce, or on
site or off site use, treatment, handling, storage, disposal, or transportation of any Chemical
Substance. Environmental Cleanup Liability includes, without limitation, any judgments,
damages, settlements, costs or expenses (including, without limitation, attorneys', consultants,
and experts' fees and expenses) incurred with respect to (i) any investigation, study, assessment,
legal representation, cost recovery by a governmental agency or third party, or monitoring or
testing in connection therewith, (ii) the Premises, as a result of actions or measures necessary to
implement or effectuate any such containment, removal, remediation, response, cleanup or
abatement, and (iii) the resolution of such liabilities.
"Environmental Law" means any statutes or legal requirements relating to or regulating
pollution, worker, employee and occupational safety and health, protection or cleanup of the
environment or damage to or remediation of damage to real property and natural resources
(including, but not limited to, ambient air, surface water, groundwater, and land surface or
Contract of Sale
Page 20 of35
subsurface strata) including, without limitation, legal requirements contained in the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et
seq., as amended (CERCLA); the Resources Conservation and Recovery Act, 42 U.S.C. § 6901,
et seq., as amended (RCRA); the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. 99-499, as amended (SARA); the Clean Air Act, 42 U.S.C. § 7401, et seq., as amended; the
Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq., as amended; the National
Environmental Policy Act, 42 U.S.C. § 4321, et seq., as amended (NEPA); and the Safe Drinking
Water Act, 42 U.S.C. § 300f, et seq., as amended; and/or any other federal, state or local laws,
statutes, ordinances, rules, regulations or orders (including decisions of any court or
administrative body) relating to pollution, worker, employee and occupational safety and health,
damage to and protection or cleanup of, the environment, real property and/or natural resources
as described above. Environmental Law shall also mean the Toxic Substance Control Act, 15
U.S.C. § 2601, et seq., as amended (TOSCA), and/or any other federal, state (including, without
limitation, laws with respect to trespass, nuisance and other torts or similar legal theories which
may be applied to establish liability or responsibility for Environmental Cleanup or
Environmental Claims) or local laws, statutes, ordinances, rules, regulations or orders (including
decisions of any court or administrative body) relating to (i) release, containment, removal,
remediation, response, cleanup or abatement of any sort of Chemical Substance, (ii) the
manufacture, generation, formulation, processing, labeling, distribution, introduction into
environment or commerce, use, treatment, handling, storage, disposal or transportation of any
Chemical Substance, (iii) exposure of persons, including agents, contractors and employees of
Tenant, to any Chemical Substance and other occupational safety or health matters, or (iv) the
environmental hazards relating to the physical structure or condition of a building, facility, tank,
fixture or other structure, including, without limitation, those relating to the management, use,
storage, disposal, cleanup or removal of any Chemical Substance.
"Injury" means (a) damage, harm to or impairment or loss of property or its use, including
without limitation, personal property, real property and/or natural resources, and (b) harm to or
death of a person.
"Landlord" means Landlord and its elected officials, agents, employees, invitees, licensees, or
visitors.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting, spraying, emptying,
discharging, escaping, leaching, dumping or disposing, in any way, manner or form, of any
Chemical Substance into the environment (including, but not limited to, the ambient air, surface
water, groundwater and/or land surface or subsurface strata) of any kind whatsoever (including
without limitation the abandonment or temporary abandonment or discarding of barrels,
containers, tanks or other receptacles containing or previously containing any Chemical
Substance).
"Tenant" means Tenant and its agents, contractors, employees, invitees, licensees, or visitors.
21
Clauses and Covenants
A. Tenant agrees to:
1. Lease the Premises for the entire Term beginning on the Commencement Date
and ending on the earlier to occur of (i) Termination Date; or (ii) upon surrender of the Premises
by Tenant to Landlord prior to the Termination Date.
2. ACCEPT THE PREMISES IN THEIR PRESENT CONDITION "AS IS,"
"WHERE IS" AND "WITH ALL FAULTS". TENANT STIPULATES THAT IT HAS
THOROUGHLY INSPECTED THE PREMISES AND FINDS THAT THE PREMISES IS
CURRENTLY SUITABLE FOR THE PERMITTED USE. LANDLORD MAKES NO
REPRESENTATION, COVENANTS OR WARRANTIES, EXPRESSED, IMPLIED OR OF
ANY KIND OR NATURE CONCERNING OR WITH RESPECT TO THE PREMISES,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
QUALITY, HABITABILITY, SUITABILITY, OR FITNESS FOR PARTICULAR PURPOSE
OR USE. TENANT STIPULATES TO LANDLORD THAT IT HAS PREVIOUSLY
OCCUPIED THE PREMISES AND IS AWARE OF THE CONDITION OF THE PROPERTY.
TENANT REPRESENTS AND WARRANTS TO LANDLORD THAT THERE HAVE BEEN
NO CHEMICAL SUBSTANCES CONTAINED OR STORED OR THAT HAVE BEEN
RELEASED IN OR ON THE PREMISES DURING THE LEASE TERM THAT WOULD
RESULT IN AN ENVIRONMENTAL CLAIM OR ENVIRONMENTAL CLEANUP
LIABILITY.
3. Obey (a) all applicable laws relating to the use, condition, and occupancy of the
Premises, and (b) any requirements imposed by utility companies serving or insurance
companies covering the Premises.
4. Obtain and pay for all utility services used by Tenant.
5. Pay all costs related to the utilities, of any kind or nature, related to the Premises.
6. Allow Landlord to enter the Premises to perform Landlord's obligations, if any,
and inspect the Premises.
7. Maintain the Premises in a good state of condition, normal wear and tear
excepted. Notwithstanding the obligation to maintain the Premises, if so desired by Tenant,
Tenant may repair and replace any and all parts of the Premises damaged during the Term
hereof, in its entirety. In the event Tenant does not desire to repair or replace the Premises, it
shall be under no obligation to do so but remit any proceeds or monies attributable to damage or
loss of the buildings, structures, improvements and other facilities that are fixtures to the
Property, received by Tenant from insurance coverage required herein to Landlord upon such
election. Tenant hereby expressly stipulates that Landlord is not obligated to repair, replace, or
maintain, any part or parcel of the Premises, including without limitation, roof systems, HV AC
systems, wall systems, foundations, windows, and doors.
22
8. Vacate, in its entirety, the Premises on or before the Termination Date. Tenant
shall remove all personal property, trade fixtures and any other property, excepting the buildings,
structures, improvements and other facilities that are fixtures, other than trade fixtures, to the
Premises (collectively, "Tenant's Personal Property") owned by it from the Premises on or
before the Termination Date or earlier termination of this Temporary Lease, whichever is earlier
to occur, and shall execute a written stipulation waiving any and all rights the Tenant may have
to the Premises and such property.
9. INDEMNIFY, DEFEND, AND HOLD LANDLORD HARMLESS FROM ANY
DAMAGE OR INJURY (AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS,
LIABILITY, OR REASONABLE EXPENSE, INCLUDING ATTORNEY'S FEES AND
OTHER FEES AND COURT AND OTHER COSTS) OCCURRING IN OR RELATED TO
ANY PORTION OF THE PREMISES CAUSED BY TENANT'S GROSS NEGLIGENCE OR
WILFUL MISCONDUCT.
9.A. THE INDEMNITIES CONTAINED IN PARAGRAPHS 9 ARE (A)
INDEPENDENT OF TENANT'S INSURANCE, (B) WILL NOT BE LIMITED BY
COMPARATIVE NEGLIGENCE STATUTES OR DAMAGES PAID UNDER THE
WORKERS' COMPENSATION ACT OR SIMILAR EMPLOYEE BENEFIT ACTS, (C)
WILL NOT SURVIVE THE END OF THE TERM, AND (D) WILL APPLY EVEN IF AN
INJURY OR DAMAGE IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE,
OF ANY KIND, TYPE OR DEGREE, OR STRICT LIABILITY OF LANDLORD.
10. During the term of this Lease, Tenant will not locate, store or dispose in or on, or
release or discharge from (including groundwater contamination) the Premises, any Chemical
Substances that could result in an Environmental Claim or Environmental Cleanup Liability.
11. Tenant shall, at no cost or expense to Landlord, take all actions necessary to
comply with all Environmental Laws affecting the Premises.
12. Any of Tenant's Personal Property remaining on the Premises after the
Termination Date shall be deemed Abandoned Property, as prescribed by Section E.19., below,
and may be disposed ofby Landlord in any manner prescribed by Section E.l9., below.
B. Tenant agrees not to:
1. Use the Premises for any purpose other than the Permitted Use.
2. Create a nuisance.
3. Permit any waste.
4. Use the Premises in any way that would increase insurance premiums or void
insurance on the Premises.
5. Change the lock system of the Premises.
6. Alter the Premises in any material respect.
7. Allow a lien to be placed on the Premises.
8. Assign this Lease or sublease any portion ofthe Premises.
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C. Landlord agrees to:
1. Lease to Tenant the Premises for the entire Term beginning on the
Commencement Date and ending on the earlier to occur of (i) Termination Date; or (ii) upon
surrender of the Premises by Tenant to Landlord prior to the Termination Date.
D. Landlord agrees not to:
1. Interfere with Tenant's possession of the Premises as long as Tenant is not
in default hereunder.
E. Landlord and Tenant agree to the following:
1. Alterations. Any physical additions, improvements or alterations to the Premises
made by Tenant must be consented to by Landlord, in its sole and absolute discretion.
2. Insurance. Tenant will maintain the insurance coverages described in the attached
Insurance Addendum during the Term of this Lease.
3. Release of Claims/Subrogation. TENANT RELEASES LANDLORD FROM
ANY AND ALL CLAIMS OR LIABILITIES FOR DAMAGE TO THE PREMISES, DAMAGE
TO OR LOSS OF PERSONAL PROPERTY WITHIN THE PREMISES, AND LOSS OF
BUSINESS OR REVENUES INCIDENT TO, ARISING FROM OR RELATED TO
TENANT'S OCCUPATION OF THE PREMISES. THE RELEASE IN THIS PARAGRAPH
WILL APPLY EVEN IF THE DAMAGE OR LOSS IS CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE, OF ANY KIND, TYPE OR DEGREE, OR STRICT
LIABILITY OF LANDLORD BUT WILL NOT APPLY TO THE EXTENT THE
DAMAGE OR LOSS IS CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF LANDLORD.
4. Casualty/Total or Partial Destruction. If the Premises are damaged by casualty
to the extent the Permitted Use may not continue absent repair, unless the Premises is repaired by
Tenant as provided in Section A.7., above, this Lease will terminate without liability of any kind
to Landlord.
5. Condemnation/Substantial or Partial Taking
a. If the Premises cannot be used for the purposes contemplated by this
Lease because of condemnation or purchase in lieu of condemnation, this
Lease will terminate.
b. Tenant will have no claim to the condemnation award or proceeds in lieu
of condemnation.
24
6. Default by Landlord/Events. Defaults by Landlord are failing to comply with any
provision of this Lease within thirty (30) calendar days after written notice.
7. Default by Landlord/Tenant's Remedies. Tenant's remedies for Landlord's default
are solely to either (i) enforce the terms of this Lease by specific performance; or (ii) terminate
this Lease. THE REMEDIES OF TENANT AS SET FORTH HEREIN ARE SOLE AND
EXCLUSIVE AND TENANT WAIVES ANY OTHER RIGHT OR REMEDY THAT MIGHT
BE AVAILABLE.
8. Default by Tenant/Events. Defaults by Tenant are (a) Tenant abandoning or
vacating a substantial portion of the Premises without surrendering the Premises to Landlord, (b)
Tenant failing to comply, within five (5) calendar days after written notice, with any provision of
this Lease other than the default set forth in (a) above, which shall require no notice of default to
Tenant; (c) Tenant shall become insolvent, or shall make a transfer in fraud of creditors, or shall
make an assignment for the benefit of creditors; (d) a receiver or trustee shall be appointed for all
or substantially all ofthe assets of Tenant; (e) Tenant shall file a voluntary petition in bankruptcy
or admit in writing that it is unable to pay its debts as they become due; (f) Tenant shall apply for
or consent to the appointment of a receiver, trustee, custodian, intervener or liquidator of itself or
of all or substantial part of its assets; (g) Tenant shall file an answer admitting the material
allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy,
reorganization or insolvency proceeding; and (h) any of Tenant's representations or warranties
contained in this Lease are untrue at any time during the Term.
9. Default by Tenant/Landlord's Remedies. Landlord's remedies for Tenant's default
are to (a) enter and take possession of the Premises, (b) terminate this Lease by written notice to
Tenant, or (c) pursue condemnation of the leasehold estate. THE REMEDIES OF LANDLORD
AS SET FORTH HEREIN ARE SOLE AND EXCLUSIVE AND LANDLORD WAIVES ANY
OTHER RIGHT OR REMEDY THAT MIGHT BE AVAILABLE, EXCEPT FOR THE
EXERCISE OF EMINENT DOMAIN, IF NECESSARY.
10. Default/Waiver/Mitigation. It is not a waiver of default ifthe non-defaulting party
fails to declare immediately a default or delays in taking any action. Except as to the sole and
exclusive remedies of Tenant and Landlord, pursuit of any remedies set forth in this Lease does
not preclude pursuit of other remedies in this Lease or provided by applicable law.
11. Holdover. If Tenant does not vacate the Premises following termination of this
Lease, Tenant will become a tenant at sufferance. No holding over by Tenant, whether with or
without the consent of Landlord, will extend the Term. Tenant stipulates that its possession of
the Premises after the expiration of the Term, as a tenant of sufferance, will cause damage to
Landlord in excess of fair market value of rent resulting, in part, due to delays to Landlord
construction projects.
12. Lease of Commercial Rental Property. Tenant represents and warrants that the
Premises is commercial rental property, as defined in Chapter 93 ofthe Texas Property Code.
25
13. Attorney's Fees. If either party retains an attorney to enforce this Lease, the party
prevailing in litigation is entitled to recover reasonable attorney's fees and other fees and court
and other costs.
14. Venue. EXCLUSIVE VENUE FOR ANY ACTION HEREUNDER IS IN
DENTON COUNTY, TEXAS, THE COUNTY IN WHICH THE PREMISES ARE LOCATED.
15. Entire Agreement. This Lease, together with the attached exhibits and addendums,
comprises the entire agreement of the parties, and there are no oral representations, warranties,
agreements, or promises pertaining to this Lease or occupation of the Premises.
16. Amendment of Lease. This Lease may be amended only by an instrument in
writing, duly authorized and signed by Landlord and Tenant. Notwithstanding anything to the
contrary herein, the authority to amend this Lease by Landlord is not delegated by the City
Council of Landlord.
17. Limitation of Warranties. THERE ARE NO IMPLIED WARRANTIES OF
MERCHANTABILITY, QUALITY, SUITABILITY, HABITABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE,
AND THERE ARE NO WARRANTIES THAT EXTEND BEYOND THOSE EXPRESSLY
STATED IN THIS LEASE.
18. Notices. Any notice given by one party to the other in connection with this Lease shall be
in writing and shall be sent by certified mail, return receipt requested, with postage fees prepaid, or via
facsimile or electronic mail as follows:
A. If to Landlord, addressed to:
Denton City Manager
215 E. McKinney
Denton, Texas 76201
Fax No. 940.349.8596
w/copy to:
Deanna Cody
Deputy Director-Real Estate
216 W. Mulberry Street
Denton, Texas 76201
Fax No. 940.349.8951
B. lfto Tenant, addressed to:
612 E McKinney, LLC
Attn: Earl Herrington
4880 Long Prairie Road, Suite 200
Flower Mound, Texas 75028
E-mail: Earlherrington@elkriver.biz
Notice shall be deemed received for all purposes when placed in the United States mail, as set
26
forth herein, or when delivered by telephonic facsimile or e-mail to the other party at the facsimile
number(s) or e-mail address provided above.
19. Abandoned Property. Landlord may retain, destroy, or dispose of any property, of
any kind or type, including without limitation, Tenant's Personal Property left or remaining on
the Premises after the Termination Date ("Abandoned Property") without liability of any kind to
Landlord and without payment of consideration of any kind to Tenant.
20. No Broker. Tenant represents and warrants Landlord that it has not contracted
with or otherwise retained any broker or any other third party related to this Lease to whom any
commission or other fee may be payable.
21. Authority ofTenant. Tenant represents and warrants to Landlord that it has taken
all actions necessary to authorize the party executing this Lease to bind, in all respects, Tenant to
all terms and provisions of this Lease, and that such person possesses the authority to execute
this Lease and bind Tenant hereto.
22. Delegation of Authority. Except as otherwise expressly provided herein, any
action that is to be or may be taken by Landlord under this Lease is hereby delegated by
Landlord, pursuant to approval of this Lease by City Council of Landlord, to the City Engineer
of Landlord, or his designee.
TENANT:
612 E MCKINNEY, LLC,
a Texas limited liability company
By: ____________________________ __
Earl Herrington, Manager
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me on this ___ day of January, 2020, by Earl
Herrington, Manager of 612 E MCKINNEY, LLC, a Texas limited liability company, on behalf
of said limited liability company.
Notary Public, State ofTexas
My commission expires: _________ _
27
LANDLORD:
CITY OF DENTON
BY: -------------------------------Todd Hileman, City Manager
ATTEST:
ROSA RIOS, CITY SECRETARY
BY: ________________________ __
APPROVED AS TO LEGAL FORM:
AARON LEAL, CITY ATTORNEY
BY: ________________________ __
STATE OF TEXAS §
COUNTYOF §
This instrument was acknowledged before me on this day of January, 20_, by
Todd Hileman, City Manager of the City of Denton, on behalf of the City of Denton.
Notary Public, State ofTexas
My commission expires: ________________ __
28
Exhibit "A"
To
Temporary Lease
Legal Description
BEJNG all that cel'tain lot, tmct, or parcel Clfland sitlwted in tbe II. Sis'".o Stn·vey .'\bstract Nutnber
1184 it1 the City of Denton~ Denton County, Texas. being EUl tlmf certain rroct of land conveyed by
dcOd trom (}(;lry W. Spitzer and ,Jack T. Bro,vu w Gene A. Gohlke aud wife, Judith C. Gohlke
l"l;'.Corded in Volu~ne 1776. Puge 84, Re.al Property Re.cords, Dt;"nhltl County, Texas and being more
{J"c.lrticuhirly described us fCJllows:
HEGINNJNU ~tun iro:n rod f()und fur comer in the :;outh !inc of .En.st McKl1mcy Street, a public
madwa;i ht.tving a right-of-w<~y of 7(UI fed, sllitl point hcinb'. the nort:hc.•ao;,t corner nf tha1 eertnin
tract of land cunvcyl!d by tk<:J frorn JWKW Real i!:::;luh:, lm:. lu Rmloll(, Samano and Gricelda
Samano recorded under Document Number 2016-22991, Real Properly Rl!ccml~, Dent~_,n County.
TCX!l..'l;
THENCE S 87" 58' 3T' I!, 125.53 fed with said sotllh lim· of ~~iJ East McKinney· ~ln:ct l<l an
iron rod mllfted '1R57 fm.1nd for cot'tter in the west line of Frome Strc.cl, :.\ putdic ruadway ha\'in~
a variable widlh right-of-\vay;
THENCE S oo~ 18' H)" b, 344.55 fc("l wi[h said west lino:: ufs<lid l'nune Strcd to a rna£ 11ail il.nmll
fm· corner in the north line of that cet·tain tract of Land conveyed by ._jeed fn)m :\·1o(lTC Hus.iness
Forms, Inc. to the City ofl>cn1on rec.o!'dcd in Volume 2902, PDgc 950. Kt'.!Ll Prop~'rly Rec.onis,
Denton County. Texas;
THENCE aloug tl1e arc of a curve to tbe right having t1 central .£Ingle of 32'' 07' 52'\ a radius of
458.37 feet, cmru"C len.gth of 25'7.05 feet, whose chord bems N 62° l5' OS" \V, :2SJ.70 fe:ct v..itll
said nortl1 line of:;aid City of Denton traer. to rtn irnn rod fmmd tor c..orner in the e.aslline llfRnilroad
Avenue, <1 p~thli<.: ro(~dway lHwing ii righl~of-way of 50.0 ii.lt:l;
THENCE N OfY" I 9' 0 r y.,:. 84.65 l't:.et v.<lih :;~1i~l (J~II>t lin~ o I' ~J id Rail ro<~d J\ venue to un iron rod
marked 4857 fbund f<"1r cvmcr, xaid pt:.>i111. bci11g the southw~o·st eomcr nf:<liid Samano trflct illld the
sou1hwl!;,;l curn~r of Lui I. Block l of CaT Wm,;h f.:.quipmenl Addilitm. an addition to thl:! Ciry of
01.'lnton, lX~1UH1 Cl)Llltty, Texas, acoonling to the plat thct'C()frccordcd in C:ihint..'t ~-.Page 374, Plat
Rec;QrJx, r~n~on Cvunty, T~x.u:;;
THENCE S 88<' D2' 2S" E, t,l!L27 fed wilh the south line of:.k'ltd Samano lmd and with tlw SOLllh
lir1c of said Car w~~sn Equipment :\ddidon to !Ul iron md m;:lrlwd 4B57 found j()T comer at the
south~::ast c~)fliCT of Hait.l Samano Lrilct and said Cnr \Vosh ikJuipmcnt AduiLion:
THENCE N 00° 11' 28" \\'. 149.57 fed wHh the c:ast line of s~1id SmnamJ trdct aml with lhc ca~l
line of sald Car Wash Equipment Addlti•Jn to the PLACE OF BilGIN::-.JlNG <~nd containing 1.220
ncres of land,
29
Exhibit "B"
To
Temporary Lease
Insurance
Tenant shall procure and carry, at its sole cost and expense during the term of this Lease
and as otherwise may be provided in this Lease, insurance protection as hereinafter specified, in
form and substance satisfactory to Landlord, carried with an insurance company (or companies)
authorized to transact business in the state of Texas, covering all aspects and risks of loss of all
operations in connection with this Lease, including without limitation, the indemnity obligations
set forth herein.
Tenant shall obtain and maintain the following insurance coverages in full force and
effect during the term of this Lease, and if coverage is afforded on a Claims Made basis, for three
(3) years thereafter as concerns the Environmental Liability Coverage:
Commercial General Liability:
Per Occurrence Limit: $1,000,000
Aggregate Limit: $2,000,000
Business Automobile Liability (providing coverage for owned, non-owned and hired
automobiles):
Per Occurrence Limit $ 500,000
Aggregate Limit: $1,000,000
Property Insurance:
30
AU risk property coverage on all buildings, attachments and improvements, including
the contents of all buildings, attachments and improvements, on a full replacement cost basis.
Landlord shall be listed as an Additional Insured with respect to the Commercial General
Liability and Business Automobile Liability and shall be granted a waiver of subrogation under
both policies. Landlord shall be listed as a Loss Payee with respect to the all risk property
coverage. Tenant will provide a Certificate of Insurance on or before the Effective Date of this
Lease to the Landlord as evidence of coverage. The Certificate will provide 30 days notice of
cancellation. A copy of the additional insured endorsement and waiver of subrogation attached
to the policy will be included in the certificate.
All insurance carriers must be admitted to do business in the state of Texas and have an
AM Best's Rating of A-VII or better.
All policies should be written on an occurrence basis. If a policy is written on a "claims
made" basis the Tenant shall provide evidence of continued coverage, or "tail coverage" for a
period ofthree (3) years following the expiration of this Lease.
31
EXHIBIT "C"
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.
STATE OF TEXAS §
COUNTY OF DENTON §
SPECIAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS
That 612 E MCKINNEY, LLC, a Texas limited liability company (collectively, herein
called "Grantor"), 4880 Long Prairie Road, #200, Texas 75028, for and in consideration of the
sum of TEN AND N0/100 DOLLARS ($10.00), and other good and valuable consideration to
Grantor in hand paid by the City of Denton, 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 itself, its
heirs, devisees, successors, and assigns all oil, gas, and other minerals in, on, and under and that
may be produced from the Property. Grantor, its 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
32
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. Notwithstanding the
foregoing, nothing herein shall restrict or prohibit the pooling or unitization of the portion of the
mineral estate owned by Seller with land other than the Property; or the exploration or
production of the oil, gas, and other minerals by means of wells that are drilled or mines that
open on land other than the Property but enter or bottom under the Property, provided that these
operations in no manner interfere with the surface or subsurface support of any improvements
constructed or to be constructed on the Property.
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
33
Grantee's successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof when the claim is by, through, or under Grantor but not
otherwise.
EXECUTED the ___ day of ______ , 2019.
THE STATE OF __ _
COUNTY OF ___ _
§
§
612 E MCKINNEY, LLC
BY:
Authorized Signor, Title
ACKNOWLEDGMENT
This instrument was acknowledged before me on
__________ on behalf of _________ _
Notary Public, State of Texas
2019 by
My commission expires: ___ _
Upon Filing Return To:
City of Denton
Development Services Annex
216 W. Mulberry Street
Denton, TX 76201
Attn: Deanna Cody, Deputy Director
Capital Projects -Real Estate
34
Property Tax Bills To:
City of Denton Finance Department
215 E. McKinney Street
Denton, Texas 76201
Exhibit "A"
To
Special Warranty Deed
Legal Description
35