2009-263s:\our documents\ordinances\09\capfinancial ordinance.doc
ORDINANCE NO. 2009- 24!, 3
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A REAL ESTATE CONTRACT BY AND BETWEEN THE CITY OF DENTON,
TEXAS AND CAPFINANCIAL PROPERTIES CV 1, LLC, A DELAWARE LIMITED
LIABILITY COMPANY, AND ANY OTHER DOCUMENTS AND CONVEYANCES THAT
ARE NECESSARY TO ACQUIRE AN APPROXIMATE 15.85 ACRE TRACT OF REAL
PROPERTY IN THE T.M. DOWNING SURVEY, ABSTRACT NUMBER 346, DENTON
COUNTY, TEXAS, BEING LOCATED APPROXIMATELY 1,700 FEET NORTH OF
MCKINNEY STREET ON THE EAST SIDE OF AUDRA LANE, AND BEING THE LANDS
CONVEYED TO CAPFINANCIAL PROPERTIES CV], LLC, BY DEED RECORDED IN
COUNTY CLERK'S FILE NUMBER 2009-13562, REAL PROPERTY RECORDS, DENTON
COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. The City Manager or his designee is hereby authorized to execute a Real
Estate Contract, by and between the City of Denton, Texas, as Purchaser and CAPFinancial
Properties CV 1, LLC, a Delaware Limited Liability Company, as Seller, substantially in the
form that is attached hereto and made a part hereof as Exhibit "A" (the "Contract"), and any
other documents necessary for the acquisition of an approximate 15.85 acre tract of land, as
described in the caption above. The land is being acquired for municipal purposes.
SECTION 2. The City Manager is hereby authorized to carry out the rights and duties of the
City under said Contract, including the expenditure of funds.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this ~Dday of , 2009.
J
q A. S, MAYOR
a
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
i
s:\our documents\ordinances\09\capfinancial ordinance.doc
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
scour doctmtents\contracts\09\capfinancial real estate contract-final.doc
REAL ESTATE CONTRACT
THIS CONTRACT OF SALE is made by CAPFINANCIAL PROPERTIES CVI,
LLC, a Delaware limited liability. company (hereinafter referred to as "Seller") and_CITY OF
DENTON, TEXAS, a home rule municipality, of Denton County, Texas, (hereinafter
referred to as "Purchaser"), upon the terms and conditions set forth herein.
1.
PURCHASE AND SALE
Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay
for all those certain tracts, lots or parcels of land consisting of approximately 15.85 acres located
in Abstract 346, T. Downing Survey, Tracts 14, 15, and 16, County of Denton, Denton, Texas, as
shown in "EXHIBIT A" attached herein, with all rights and appurtenances pertaining to the said
property, including any right, title and interest of Seller in and to adjacent streets, alleys or
rights-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as
the "Property"), together with any improvements, fixtures, and personal property situated on and
attached to the Property, for the consideration and upon and subject to the terms, provisions, and
conditions hereinafter set forth.
Mineral Reservation. Seller retains and reserves all oil, gas, and other liquid or gaseous
hydrocarbons in, under or that may be produced from the Property. However, such reservation
does not include any right to enter or use any portion of the surface to develop or produce the
reserved estate, or the use of surface or subsurface fresh water. Seller it's heirs, successors, and
assigns shall include the following clause or one substantially similar in any lease of the mineral
estate: "Notwithstanding anything to the contrary in this Lease, lessee, its successors,
contractors and assigns shall have no right to use the surface of the said Property for
development, exploration, or production of any rights granted herein. Lessee shall have no right
of ingress or egress to or from the Property for development, exploration, or production of any
rights granted herein. Lessee shall have no right of ingress or"egress to or from the Property and
no right to use the surface is granted by this Lease by the Lessor. Lessee hereby waives any
easements, implied or otherwise, to use the surface of the said Property for any of its operations.
The forgoing limitation regarding the use of the surface includes any right to use surface or
subsurface fresh water from the said Property. Notwithstanding the forgoing, this provision does
not prohibit the development of the mineral estate by means of horizontal or directional drilling
from lands outside of the Property or other methods that do not require entrance upon the surface
estate". This clause shall be considered a covenant running with the land and shall be included
in substantially similar form in the deed at the closing of this transaction.
II.
PURCHASE PRICE
1. Amount of Purchase Price. The total purchase price for the Property shall be the
sum of Three Hundred Seventeen Thousand Four Hundred Twenty Dollars and No
Cents ($317,420.0) (the "Purchase Price").
2. Payment of Purchase Price. The full amount of the Purchase Price shall be payable
in cash at the closing.
III.
PURCHASER'S OBLIGATIONS
The obligations of Purchaser hereunder to consummate the transactions contemplated
hereby are subject to the satisfaction of each of the following conditions any of which may be
waived in whole or in part by Purchaser at or prior to the closing.
1. Preliminary Title Report. Within thirty (30) business days after the date hereof,
Purchaser, at Purchaser's sole cost and expense, shall have caused the Title Company
(hereinafter defined) to issue a owner's policy commitment (the "Commitment") accompanied
by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the
Property. Purchaser shall give Seller written notice on or before the expiration of thirty (30)
business days after Purchaser receives the Commitment that the condition of title as set forth in
the Commitment is or is not satisfactory. In the event Purchaser states the condition of title is
not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all
unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to
do so within thirty (30) business days after receipt of written notice, Purchaser, at its option may
elect to terminate this Agreement (in which event this Agreement shall be null and void), grant
Seller additional time to cure, or proceed to closing. Purchaser's failure to give Seller this
written notice shall be deemed to be Purchaser's acceptance of the commitment.
2. Survey. Within thirty (30) business days after the date hereof, Purchaser, at
Purchaser's sole cost and expense, shall obtain a current ALTA survey of the Property, prepared
by a duly licensed Texas land surveyor acceptable to Purchaser, which meets the minimum
standard detail requirements for ALTA/ACSM Land Title surveys as currently adopted by
American Land Title Association and the National Society of Professional Surveyors. The
survey shall be staked on the ground, and shall show the location of all improvements, highways,
streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of-
way on or adjacent to the Property, if any, and shall contain the surveyor's certification that there
are no encroachments on the Property and shall set forth the number of total acres comprising the
Property, together with a metes and bounds description thereof. Following delivery of the
Survey, the parties agree to amend this Contract to substitute the metes and bounds description
of the Property set forth on the Survey for the current description set forth herein if the current
description is different from that set forth in the Survey.
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Purchaser will have thirty (30) business days after receipt of the survey to review and
approve the survey. In the event the survey is unacceptable, then Purchaser shall within the
thirty (30) business day period, give Seller written notice of this fact. Seller shall, at Seller's
option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the
reasonable satisfaction of Purchaser. In the event Seller is unable to do so within thirty (30)
business days after receipt of written notice, Purchaser, at its option may elect to terminate this
Agreement (in_which event this Agreement shall be null and void),.grant_ Seller additional time to
cure, or proceed to closing. Purchaser's failure to give Seller this written notice shall be deemed
to be Purchaser's acceptance of the survey.
3. Seller's Compliance. Seller shall have performed, observed, and complied with all of
the covenants, agreements, and conditions required by this Agreement to be performed,
observed, and complied with by Seller prior to or as of the closing.
IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows, which representations and
warranties shall be deemed made by Seller to Purchaser also as of the closing date:
1. Property to be sold in "AS IS" condition; however nothing herein shall be construed to
release, discharge or hold harmless, any of Seller's predecessors in title.
V.
CLOSING
The closing shall be held at the office of Sendera Title Company 2540 Lillian Miller
Parkway #115, Denton, Texas 76210, on or before November 13, 2009, or at such title company,
time, date, and place as Seller and Purchaser may mutually agree upon (which date is herein
referred to as the "closing date").
VI.
CLOSING REQUIREMENTS
1. Seller's Requirements. At the closing Seller shall:
A. Deliver to the City of Denton a duly executed and acknowledged 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;
conveying good and marketable title in fee simple to all of the Property, free and
clear of any and all liens, leases, encumbrances, conditions, assessments, and
restrictions, except for the following:
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I . General real estate taxes for the year of closing and
subsequent years not yet due and payable;
2. Any exceptions approved by Purchaser pursuant to
Purchaser's Obligations hereof, and
3. Any permitted exceptions approved by Purchaser in
writing. -
B. Deliver to Purchaser a Texas Owner's Policy of Title Insurance at Purchaser's
sole expense, issued by Sendera Title Company, Denton, Texas, (the "Title
Company"), or such title company as Seller and Purchaser may mutually agree upon,
m Purchaser's favor in the full amount of the purchase price, insuring fee simple title
for the City of Denton to the Property subject only to those title exceptions listed in
Closing Requirements hereof, such other exceptions as may be approved in writing
by Purchaser, and the standard printed exceptions contained in the usual form of
Texas Owner's Policy of Title Insurance, provided, however:
1. The boundary and survey exceptions shall be deleted if
required by Purchaser and if so required, the costs associated
with it shall be borne by Purchaser;
2. The exception as to restrictive covenants shall be
endorsed "None of Record";
3. The exception for taxes shall be limited to the year of
closing and shall be endorsed "Not Yet Due and Payable";
and
4. The exception as to liens encumbering the Property shall
be endorsed "None of Record".
C. Deliver to Purchaser possession of the Property on the day of closing.
2. Purchaser's Requirements. Purchaser shall pay the consideration as referenced in the
"Purchase Price" section of this contract at Closing in immediately available funds.
3. Closing Costs. Seller shall pay all taxes assessed by any tax collection authority
through the date of Closing. All other customary and standard costs and expenses of closing in
consummating the sale and purchase of the Property not specifically allocated herein shall be
paid by the Purchaser, except each party will be responsible for its own attorney fees.
VII.
REAL ESTATE COMMISSION
Seller shall be responsible for the payment of any broker or real estate fees due as a result
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of the consummation of this contract.
VIII.
BREACH BY SELLER
_ If Seller falls to fully-- and timely.perform any of its obligations under. this Contract. or
_
fails to consummate the sale of the Property for any reason, except Buyer's default, Buyer may
enforce specific performance of this Contract.
IX.
BREACH BY PURCHASER
In the event Buyer fails to consummate the purchase of the Property, if Seller is not in
default under ihis Contract, Seller will have the right as its sole and exclusive remedy, to enforce
specific performance of this Contract.
X.
MISCELLANEOUS
1. Assignment of Agreement. Purchaser may assign this Agreement without the express
written consent of Seller.
2. Survival of Covenants. Any of the representations, warranties, covenants, and
agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period
of time following the closing of the transactions contemplated hereby shall survive the closing
and shall not be merged therein.
3. Notice. Any notice required or permitted to be delivered hereunder shall be deemed
received when sent by United States mail, postage prepaid, certified mail, return receipt
requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath
the signature of the party.
a. Seller's agent for purposes of notice shall be: CapFinancial Properties CV 1, LLC, 508 3rd
Street, P.O. Box 38, Prinsburg, MN 56281
b. Purchaser's agent for the purposes of notice shall be: Paul Williamson, Real Estate
Manager, City of Denton, 901-A Texas Street, Second Floor, Denton, Texas, 76209
4. Texas Law to Apply. This Agreement shall be construed under and in accordance with
the laws of the State of Texas, and all obligations of the parties created hereunder are
performable in Denton County, Texas.
5. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives, successors and
assigns where permitted by this Agreement.
6. Legal Construction. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
said invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been
contained herein.
7. Prior Agreements Superseded. This Agreement constitutes the sole and only agreement
of the parties and supersedes any prior understandings or written or oral agreements between the
parties respecting the within subject matter.
8. Time of Essence. Time is of the essence in this Agreement.
9. Gender. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise.
10. Memorandum of Contract. Upon request of either party, both parties shall promptly
execute a memorandum of this Agreement suitable for filing of record.
11. Compliance. In accordance with the requirements of the Texas Real Estate License
Act, Purchaser is hereby advised that it should be furnished with or obtains a policy of title
insurance or Purchaser should have the abstract covering the Property examined by an attorney
of Purchaser's own selection.
12. Effective Date. The term "Effective Date" means the latter of the dates on which
this Contract is signed by either Seller or Purchaser, as indicated by their signature below. If the
last party to execute this Contract fails to complete the date of execution below that party's
signature, the date the Title Company acknowledges receipt of a copy of this fully executed
contract is the Effective Date.
IN WITNESS WHEREOF, Seller and Purchaser have executed this contract as follows:
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SELLER:
CAPFINANCIAL PROPyERTIES CV1, LLC,
a Delaware, limited liability company
By:
Title: s •~~~1
PURCHASER:
CITY OF DENTON, TEXAS
By:
eor a C. Campbell
City Manager
APPROVED AS TO FORM:
ANITA BURGESS, CITY ATTORNEY
City of Denton, Texas
BY: l
7
ACKNOWLEDGEMENT
STATE OF 1 r5c?tu
COUNTY OF ty
This instrument was acknowledged before me on tv 2009
by (r t:' l_i,~.t-of CapFinancial_P_roperties CV 1,
LLC, a Delaware limited liability company, on behalf of said limited liability Company.
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Notary Pubiic-Uinnesota
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nqy cp" r Notary Public in and for
State of ma
My commission expires
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF DENTON
Before me the undersigned authority on this day personally appeared George C. Campbell, City
Manager, City of Denton Texas, known to me to be the person whose name is subscribed hereto
and after being duly sworn, acknowledged that he executed the above document for the purposes
and consideration therein stated and for the purpose therein stated on behalf of and for the City
of Denton, Texas. AWitness my hand and seal of office this the 101/0 day of 0-/-
JENNIFER ~"z 2009.
K. WALTERS
Notary Public, State of Texas
r My Commission Expires
':'FO<<E'~' December 19, 2010
Printed Name of Notary
lL
My commission expires A"
TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT
The Title Company acknowledges receipt of the fully executed Contract on day of
2009.
TITLE COMPANY:
Name: Sendera Title Company
Address: 2540 Lillian Miller Parkway #115
Denton, Texas 76210
Phone: 940-382-7555
By:
Printed Name:
Title:
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EXHIBIT "A"
ALL that certain tract of land situated in the T. M. Downing Survey, Abstract Number 346,
Denton County, Texas and being all of a called 3.871 acres of land described in the Deed to
James Richard Griffith et ux, recorded in Volume 614, Page 201 of the Deed Records of
Denton County Texas, and all of called 4.993 acres of land described in the deed toT.E.
_Sanders.and_Marc is Sanders,-recorded in-Volume-885-Page 839 of the Deed Reco_
_rds of - -
Denton.County, Texas and all of a called 6.991 acres of land described in the deed to Shirley
Ann Griffith, Trustee of the Jimmy Ray-Sharp Trust, recorded in Volume 3219 Page 503 of the
Deed Records of Denton County, Texas, and being more particularly described as follows:
BEGINNING at a found for the most Northerly Northwest comer of said 3.871 acre tract,
same being the Southwest corner of a tract of land described in the deed to Morelle M. Miller,
recorded in Volume 1245, Page 992 of the Real Property Records of Denton County, Texas;
THENCE North 88 deg 57'03' East a distance of 913.70 feet to a 3/4" iron pipe found for the
Northeast corner of the herein described tract at the Northeast comer of said 6.991 acre tract;
THENCE South 01 degrees 00_minutes 52 seconds East, a distance of 730.53 feet to 1/2'
capped iron rod set for the Southeast comer of the tract being described herein at the
Southeast comer of said 6.991 acre tract;
THENCE North 87 deg 51'37- West a distance of 424.29 feet to a 1" iron pipe found for the
Southwest comer of said 6.991 acre tract, same being the Southeast comer of said 4.993 acre
tract;
THENCE North 87 deg 15' 02' West a distance of 31226 feet to a 1/2' iron found for comer at
the Southwest comer of said 4.993 acre tract;
THENCE North 87 deg 42'28* West a distance of 283.66 feet to a 112° iron rod found for the
Southwest comer of the tract being the Northwest comer of a tract of land dedicated to the City
of Denton by Pauline Berry Made on 5-6-71 recorded in the Deed Records of Denton County,
Texas, in the East line of Mack Park, an Addition to Denton County, according to the Plan
thereof recorded in Cabinet E, Page 85 of the Plat Records of said county;
THENCE North 00 deg 31'28' West with the East fine of said Addition a distance of 433.90
feet to a metal fence comer post found for the comer at the Southwest comer of a tract of land
described in deed to Edward WoIW recorded in Volume 1142, Page 58 of the Deed Records of
said county;
THENCE North 89 deg 24' 45' East with the South line of said Wolski tract a distance of 75. 65
feet to a metal fence comer post found for the comer post found for the comer at the Northeast
comer of said Wolski tract;
THENCE North 01 deg 41'32' West, with the East fine of said WoWd tract a distance of 213.88
feet to an 'X' found for comer of the Northeast comer of said Wolski tract in the East line of a
road under apparent public use posted as Audra Lane;
THENCE North 47 deg 27'56° East, with the West line thereof a distance of 26.73 feet to the
PLACE OP BEGINNING enclosing 15.85 acres of land more or less.
EXHIBIT "B"
To
Real Estate Contract
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU
MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS
INSTRUMENT 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 CAPFINANCIAL PROPERTIES CV1,
LLC, a Delaware limited liability company, (herein called "Grantor"), for and in consideration
of the sum of TEN AND N01100 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, retains and reserves all oil, gas, and other liquid or gaseous hydrocarbons in, under or
that may be produced from the Property. However, such reservation does not include any right
11
to enter or use any portion of the surface to develop or produce the reserved estate, or the use of
surface or subsurface fresh water. Grantor, its successors and assigns, shall include the
following clause or one substantially similar in any lease of the mineral estate:
"Notwithstanding anything to the contrary in this Lease, lessee, its successors, contractors and
assigns shall have no right to use the surface of the said Property for development, exploration,
or production of any rights granted herein. Lessee shall have no right of ingress or egress to or
from the Property for development, exploration, or production of any rights granted herein.
Lessee shall have no right of ingress or egress to or from the Property and no right to use the
surface is granted by this Lease by the Lessor. Lessee hereby waives any easements, implied or
otherwise, to use the surface of the said Property for any of its operations. The forgoing
limitation regarding the use of the surface includes any right to use surface or subsurface fresh
water from the said Property. Notwithstanding the forgoing, this provision does not prohibit the
development of the mineral estate by means of horizontal or directional drilling from lands
outside of the Property or other methods that do not require entrance upon the surface estate".
This clause shall be considered a covenant running with the land.
This conveyance is subject to the following:
[Insert Permitted Exceptions, if any]
Except as represented and warranted to Grantee (i) pursuant to that certain Contract of
Sale (herein so called), dated , by and between Grantor and Grantee, said
Contract of Sale being incorporated herein by reference; and (ii) in this Special Warranty Deed,
the conveyance of the Property is "As Is". However, nothing contained herein shall be construed
to release, discharge or hold harmless any of Grantor's predecessors in title.
TO HAVE AND TO HOLD the Property, together with all and singular the rights and
12
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, by, through or under Grantor, but not otherwise.
EXECUTED the day of , 2009.
GRANTOR
CAPFINANCIAL PROPERTIES CVI, LLC,
a Delaware limited liability company
By:
Print Name:
Title:
THE STATE OF §
COUNTY OF §
This instrument was acknowledged before me on 2009
by of CapFinancial Properties CVI,
LLC, a Delaware limited liability company, on behalf of said limited liability Company.
Notary Public, State of Texas
My commission expires:
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