Loading...
2009-192sAour documents\ordinances\09\wilkerson acquisition ordinance.doc ORDINANCE NO. 2009- / 92 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT OF SALE BETWEEN THE CITY OF DENTON AND M. TONY WILKERSON, AND ANY OTHER DOCUMENTS NECESSARY TO ACQUIRE AN APPROXIMATE 3.0 ACRE TRACT OF LAND LOCATED IN THE GIDEON WALKER SURVEY, ABSTRACT NUMBER 1330, DENTON COUNTY TEXAS AND BEING TWO PARCELS OF LAND CONVEYED TO M. TONY WILKERSON, BY DEED RECORDED UNDER COUNTY CLERK'S FILE NUMBER 03-87943, 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 Contract of Sale between the City of Denton and M. Tony Wilkerson attached hereto and made a part hereof as Exhibit "A" (the "Contract"), and any other documents necessary for the acquisition of an approximately 3.0 acre tract of land as more particularly described in the Contract (the "Land"). The Land is being acquired at this time for Denton Municipal Landfill operations and buffer. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this day of 2009. MARK A. B~TRROt.jvURS, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPR ED AS O LEGAL FORM: ANITA BURGESS, CITY ATTORNEY B y: CONTRACT OF SALE STATE OF TEXAS § COUNTY OF DENTON § This Contract of Sale (the "Contract") is made this f J day of 2009, effective as of the date of execution hereof by Buyer, as defined herein, (the "Effective Date"), by and between M. TONY WILKERSON (referred to herein as "Seller") and the CITY OF DENTON, TEXAS, a Home Rule Municipal Corporation of Denton County, Texas (referred to herein as "Buyer"). RECITALS WHEREAS, Seller owns those certain lands 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 City, and City desires to buy from Seller, the Land, subject to the reservations made herein, 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, 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 himself, his heirs, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Land. Seller, his heirs, successors and assigns shall not have the right to use or access the surface of the Land, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Land for the location of any well or drill sites, well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas) 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 Land; and (ii) all substances (except oil and gas) which are at or near the surface of the Land. 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 Land" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. ARTICLE II PURCHASE PRICE AND EARNEST MONEY 2.01 Purchase Price. The Purchase Price to be paid to Seller for the Property is the sum of Two Hundred Ten Thousand and No/100 Dollars ($210,000.00) (the "Purchase Price"). 2.02 Earnest Money. Buyer shall deposit the sum of One Thousand and No/100 Dollars ($1,000.00), as Earnest Money (herein so called) with Sendera Title of Texas, Inc., 2540 Lillian Miller Parkway, Suite 115, Denton, Texas 76210, (the "Title Company"), as escrow agent, upon execution of this Contract by Seller and Buyer. All interest earned thereon shall become part of the Earnest Money and shall be applied or disposed of in the same manner as the original Earnest Money deposit, as provided in this Contract. If the purchase contemplated hereunder is consummated in accordance with the terms and the provisions hereof, the Earnest Money, together with all interest earned thereon, shall be applied to the Purchase Price at Closing. In all other events, the Earnest Money, and the interest accrued thereon, shall be disposed of by the Title Company as provided in this Contract. 2.03 Independent Contract Consideration. Within five (5) calendar days after the Effective Date, as defined below, Buyer shall deliver to Seller a check in the amount of One Hundred and No/100 Dollars ($100.00) (the "Independent Contract Consideration"), which amount the parties hereby acknowledge and agree has been bargained for and agreed to as consideration for Seller's execution and delivery of the Contract. The Independent Contract Consideration is in addition to, and independent of any other consideration or payment provided in this Contract, is non-refundable, and shall be retained by Seller notwithstanding any other provision of this Contract. ARTICLE III TITLE AND SURVEY 3.01 Title Commitment. (a) Within twenty (20) calendar days after the Effective Date, Seller, at Seller's sole Contract of Sale Page 2 of 18 cost and expense, shall cause to be furnished to Buyer a current Commitment for Title Insurance (the "Title Commitment") for the Property, issued by Title Company. The Title Commitment shall set forth. the state of title to the Property, including a list of liens, mortgages, security interests, encumbrances, pledges, assignments, claims, charges, leases (surface, space, mineral, or otherwise), conditions, restrictions, options, severed mineral or royalty interests, conditional sales contracts, rights of first refusal, restrictive covenants, exceptions, easements (temporary or permanent), rights-of-way, encroachments, or any other 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 Seller's sole cost and expense, true and correct copies of all instruments that create or evidence Exceptions, including those described in the Title Commitment as exceptions to which the conveyance will be subject and/or which are required to be released or cured at or prior to Closing. 3.02 Survey. Within thirty (30) calendar days after the Effective Date, Seller shall cause to be prepared and furnished to Buyer, at Buyer's expense, a current on the ground survey of the Property (the "Survey"). The Survey shall depict the location of all roads, streets, easements and rights of way, both on and adjoining the Property, water courses, 100 year flood plain, fences and improvements and structures of any kind. The Survey shall further 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 or amended or revised survey(s) as required by the Title Company in order to amend the survey exception as required by Section 3.05 below. The description of the Property as set forth in the Survey shall be used to describe the Property in the deed to convey the Property to Buyer and shall be the description set forth in the Title Policy. 3.03 Review of Title Commitment, Survey and Exception Documents. Buyer shall have a period of fifteen (15) calendar days (the "Title Review Period") commencing with the day Buyer receives the last of the Title Commitment, the Survey, and the Exception documents, in which to give written notice to Seller, specifying Buyer's objections to one or more of the items ("Objections"), if any. All items set forth in the Schedule C of the Title Commitment, and all other items set forth in the Title Commitment which are required to be released or otherwise satisfied at or prior to Closing, shall be deemed to be Objections without any action by Buyer. 3.04 Seller's Obligation to Cure; Buyer's Right to Terminate. The Seller shall, within twenty (20) calendar days after Seller is provided notice of Objections, either satisfy the Objections at Seller's sole cost and expense or promptly notify Buyer in writing of the Objections that Seller cannot or will not satisfy at Seller's expense. Notwithstanding the foregoing sentence, Seller shall, in any event, be obligated to cure those Objections or Exceptions that have been voluntarily placed on or against the Property by Seller after the Effective Date. If Seller fails or refuses to satisfy any Contract of Sale Page 3 of 18 Objections that Seller is not obligated to cure within the allowed twenty (20) calendar day period, and if Buyer does not agree in writing to an extension of that period, said extension to not exceed an additional thirty (30) days, then Buyer has the option of either: (a) waiving the unsatisfied Objections by, and only by, notice in writing to Seller prior to Closing, in which event those Objections shall become Permitted Exceptions (herein so called), or (b) terminating this Contract by notice in writing prior to Closing and receiving back the Earnest Money, in which latter event Seller and Buyer shall have no further obligations, one to the other, with respect to the subject matter of this Contract. 3.05 Additional Title Commitment. In the event that the effective period of the Title Commitment shall expire prior to Closing, Seller shall cause to be furnished to Buyer, prior to Closing, a Title Commitment ("Updated Commitment"), in the form of the Title Commitment prescribed by Section 3.01 above that will be effective at Closing. Buyer shall have fifteen (15) calendar days to review and provide Objections (herein so called) to the items in the Updated Commitment in the same manner as prescribed by Section 3.03 related to the Title Commitment. All time periods related to review and cure of the Objections, waiver of uncured Objections and termination of this Contract, as set forth in Article III above, shall be applicable to the Objections by Buyer to the Updated Commitment and Closing shall be so extended to accommodate such review and cure period. 3.06 Title Policy. At Closing, Seller, at Buyer's sole cost and expense, shall cause a standard Texas Owner Policy of Title Insurance ("Title Policy") to be furnished to Buyer. The Title Policy shall be issued by the Title Company, on behalf of Title Resources Guaranty Company, in the amount of the Purchase Price and insuring that Buyer has indefeasible fee simple title to the Property, subject only to the Permitted Exceptions and, if requested by Buyer, contain a T-19.1 Endorsement, with no amendment. 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"; (d) no liens will be shown on Schedule B. Contract of Sale Page 4 of 18 Notwithstanding the enumeration of the following exceptions, amendments and/or deletions, Buyer may object to any Exception it deems material, in its sole discretion. ARTICLE IV FEASIBILITY REVIEW PERIOD AND IMPROVEMENTS 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 ninety (90) calendar days thereafter (the "Absolute Review Period"), based on such 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 and/or market and economic feasibility studies of the Property, and to conduct a physical inspection of the Property, including inspections that invade the surface and subsurface of the Property. If Buyer determines, in its sole judgment, that the Property is not suitable, for any reason, for Buyer's intended use or purpose, the Buyer may terminate this Contract by written notice to the Seller, as soon as reasonably practicable, but in any event prior to the expiration of the Absolute Review Period, in which case the Earnest Money will be returned to Buyer, and neither Buyer nor Seller shall have any further duties or obligations hereunder. In the event Buyer elects to terminate this Contract pursuant to the terms of this Section 4.01, Buyer will provide to Seller copies of (i) any and all non- confidential and non-privileged reports and studies obtained by Buyer during the Absolute Review Period; and (ii) the Survey. ARTICLE V REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS 5.01 Representations and Warranties of Seller. To induce Buyer to enter into this Contract and consummate the sale and purchase of the Property in accordance with the terms and provisions herewith, Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date, except where specific reference is made to another date, that: (a) The descriptive information concerning the Property set forth in this Contract is complete, accurate, true and correct. (b) There are no adverse or other parties in possession of the Property or any part thereof, and no party has been granted any license, lease or other right related to the use or possession of the Property, or any part thereof, except those described in the Leases, as defined in Section 5.03(a). Contract of Sale Page 5 of 18 (c) The Seller has good and marketable fee simple title to the Property, subject only to the Permitted Exceptions. (d) The Seller has the full right, power, and authority to sell and convey the Property as provided in this Contract and to carry out Seller's obligations hereunder. (e) The Seller has not received notice of, and has no other knowledge or information of, any pending or threatened judicial or administrative action, or any action pending or threatened by adjacent landowners or other persons against or affecting the Property. (f) The Seller has disclosed to Buyer in writing of any and all facts and circumstances relating to the physical condition of the Property that may materially and adversely affect the Property and operation or intended operation thereof, or any portion thereof, of which Seller has knowledge. (g) The Seller has paid all real estate and personal property taxes, assessments, excises, and levies that are presently due, if any, which are against or are related to the Property, or will be due as of the Closing, and the Property will be subject to no such liens. (h) 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. (i) To the best of Seller's knowledge, there has not occurred the disposal or release of any Hazardous Substance on or from the Property. As used in this Contract, "Hazardous Substance" means' and includes all hazardous and toxic substances, waste or materials, and any pollutant or contaminant, including without limitation, PCB's, asbestos, asbestos-containing material, petroleum products and raw materials that are included under or regulated by any Environmental Law or that would or may pose a health, safety or environmental hazard. As used in this Contract, "Environmental Law" means and includes all federal, state, and local statutes, ordinances, regulations and rules presently in force or hereafter enacted relating to environmental quality, contamination, and clean-up of Hazardous Substances, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act (42 U.S.C. 6901, et seq.), as amended, and state superlien and environmental clean-up statutes and all rules and regulations presently or hereafter promulgated under or related to said Contract of Sale Page 6 of 18 statutes, as amended. (j) All Leases, as defined in Section 5.03(a), shall have expired or otherwise terminated and any and all tenants shall have permanently abandoned and vacated the Property on or before the date of Closing. 5.02 As Is Conveyance. Except as expressly represented and warranted to Buyer in this Article V and the Special Warranty Deed, attached hereto as Exhibit "B", the conveyance of the Property to Buyer shall be "As Is". However, nothing contained herein shall be construed to release, discharge or hold harmless any of Seller's predecessors in title. 5.03 Covenants and Agreements of Seller. Seller covenants and agrees with Buyer as follows: (a) Unless stated otherwise, prior to the Effective Date hereof, or within ten (10) days after the Effective Date, Seller, at Seller's sole cost and expense, shall deliver to Buyer, with respect to the Property, true, correct, and complete copies of the following: (i) All lease agreements and/or occupancy agreements and/or licenses of any kind or nature (if oral, Seller shall provide to Buyer in writing all material terms thereof) relating to the possession of the Property, or any part thereof, including any and all modifications, supplements, and amendments thereto (the "Leases"). (ii) All oil, gas and/or mineral leases, environmental audits, soil tests and engineering and feasibility reports, including any and all modifications, supplements and amendments thereto,- with respect to the Property that Seller possesses or has the right to receive. (b) From the Effective Date until the date of Closing or earlier termination of this Contract, Seller shall: (1) Not enter into any written or oral contract, lease, easement or right of way agreement, conveyance or any other agreement of any kind with respect to, or affecting, the Property that will not be fully performed on or before the Closing or would be binding on Buyer or the Property after the date of Closing. (ii) Advise the Buyer promptly of any litigation, arbitration, or administrative hearing 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 Contract of Sale Page 7 of 18 to the Property, or create, or permit to exist, any lien, encumbrance, or charge thereon. (c) To 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) Seller shall remove from the Property the three (3) mobile homes or manufactured homes now located on the Property and dispose of same in accordance with all applicable laws on or before one hundred eighty (180) days after the Effective Date. 5.04 Survival Beyond Closing. Notwithstanding anything to the contrary contained in this Contract, the representations, warranties, covenants and agreements of Seller and Buyer contained in this Contract shall survive the Closing, and shall not, in any circumstance, be merged with the Special Warranty Deed, as described in Section 7.02(a). ARTICLE VI CONDITIONS PRECEDENT TO PERFORMANCE 6.01 Performance of Seller's Obligations. Buyer is not obligated to perform under this Contract unless, within the designated time periods, at Seller's sole cost and expense (except as herein expressly provided to the contrary), all of the following shall have occurred: (a) Seller has performed, furnished, or caused to be furnished to Buyer all items required to be so performed or furnished under other sections of this Contract; and (b) Seller cures or Buyer waives in writing, within the time periods specified in Article III, all of Buyer's objections made in accordance with Article III. 6.02 Breach of Seller's Representations, Warranties, Covenants and Agreements. Buyer is not obligated to perform under this Contract unless all representations, warranties, covenants and agreements of Seller contained in this Contract are true and correct or have been performed, as applicable, as of the Closing Date, except where specific reference is made to another date. 6.03 Adverse Change. Buyer shall not be obligated to perform under this Contract, if on the date of Closing, any portion of the Property has been condemned, or is the subject of condemnation, eminent domain, or other material proceeding, or the Property, or any part thereof, has been materially or adversely impaired in any manner. 6.04 Review Period. Buyer shall not be obligated to perform under this Contract if Buyer delivers notice to Seller pursuant to Section 4.01 that Buyer has determined that Contract of Sale Page 8 of 18 the Property is unsuitable to or for Buyer's purposes. 6.05 Buyer's Right to Waive Conditions Precedent. Notwithstanding anything contained in this Contract to the contrary, Buyer may, at Buyer's option, elect to waive any of the conditions precedent to the performance of Buyer's obligations under this Contract by giving to the Seller, at any time prior to Closing, a written waiver specifying the waived condition precedent. 6.06 Buyer's Termination if Conditions Precedent Not Satisfied or Waived. If any of the conditions precedent to the performance of Buyer's obligations under this Contract have not been satisfied or waived by the Buyer, the Buyer may, by giving written notice to Seller, terminate this Contract. On Buyer's termination, the Earnest Money shall be immediately returned to Buyer by the Title Company. The Seller shall, on written request from Buyer, promptly issue the instructions necessary to instruct the Title Company to return to Buyer the Earnest Money and, thereafter, except as otherwise provided in this Contract, Buyer and Seller shall have no further obligations under this Contract, one to the other. ARTICLE VII CLOSING 7.01 Date and Place of Closing. The Closing 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 on the earlier to occur of (i) five (5) days following the completion of all conditions precedent to Buyer's performance of this Contract, as set forth in Article VI, hereof ; and (ii) as 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 Title Policy, in the form specified in Section 3.06; (ii) The Special Warranty Deed, substantially in the form as attached hereto as Exhibit "B", subject only to the Permitted Exceptions, if any, duly executed by Seller and acknowledged; 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: Contract of Sale Page 9 of 18 (i) The sum required by Section 2.01, less the Earnest Money and interest earned thereon, in the form of certified or cashier's check or other immediately available funds; (ii) Other items reasonably requested by the Title Company as administrative requirements for consummating the Closing. 7.03 Adjustments at Closing. Notwithstanding anything to the contrary contained in this Contract, the provisions of this 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 between Seller and Buyer as of the Closing Date. If the actual amount of taxes for the calendar year in which the Closing shall occur is not known as of the Closing Date, the proration shall be- based on the amount of taxes due and payable with respect to the Property for the preceding calendar year. If Seller changes or has changed in the past the use of the Property prior to Closing, resulting in the assessment of additional taxes, Seller will pay the additional taxes. 7.04 Possession at Closing. Possession of the Property shall be delivered to Buyer at Closing. 7.05 Costs of Closing. Each party is responsible for paying the legal fees of its counsel, in negotiating, preparing, and closing the transaction contemplated by this Contract. Seller is responsible for paying fees, costs and expenses identified herein as being the responsibility of Seller. Buyer is responsible for paying fees, costs, expenses identified herein as being the responsibility of Buyer. If the responsibility for such costs or expenses associated with closing the transaction contemplated by this Contract are not identified herein, such costs or expenses shall be borne by Buyer. ARTICLE VIII DEFAULTS AND REMEDIES 8.01 Seller's Defaults and Buyer's Remedies. (a) Seller's Defaults. Seller is in default under this Contract on the occurrence of any one or more of the following events: (i) Any of Seller's warranties or representations contained in this Contract are untrue on the Closing Date; or (ii) Seller fails to meet, comply with or perform any covenant, agreement, condition precedent or obligation on Seller's part required within the time limits and in the manner required in this Contract; or Contract of Sale Page 10 of 18 (iii) Seller fails to deliver at Closing, the items specified in Section 7.02(a) of this Contract for any reason other than a default by Buyer or termination of this Contract by Buyer pursuant to the terms hereof prior to Closing. (b) Buyer's remedies. If Seller is in default under this Contract, Buyer as Buyer's sole and exclusive remedies for the default, may, at Buyer's sole option, do either one of the following: (1) Terminate this Contract by written notice delivered to Seller in which event the Buyer shall be entitled to a return of the Earnest Money, and Seller shall, promptly on written request from Buyer, execute and deliver any documents necessary to cause the Title Company to return to Buyer the Earnest Money; or (ii) Enforce specific performance of this Contract against Seller, requiring Seller to convey the Property to Buyer subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment. 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 Section 7.02(b) of this Contract for any reason other than a default by Seller under this Contract or termination of this Contract 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 remedies for the default, may at Seller's sole option, do either one of the following: (i) Terminate this Contract by written notice delivered to Buyer in which event the Seller shall be entitled to a return of the Earnest Money, and Buyer shall, promptly on written request from Seller, execute and deliver any documents necessary to cause the Title Company to return to Seller the Earnest Money; or (ii) Enforce specific performance of this Contract against Buyer, requiring Buyer to purchase the Property from Seller subject to no liens, encumbrances, exceptions, and conditions other than those shown on the Title Commitment. ARTICLE IX MISCELLANEOUS 9.01 Notice. All notices, demands, requests, and other communications required Contract of Sale Page 11 of 18 hereunder shall be in writing, and shall be deemed to be delivered, upon the earlier to occur of (a) the date provided if provided by telephonic facsimile, and (b) the date of the deposit of, in a regularly maintained receptacle for the United States Mail, registered or certified, return receipt requested, postage prepaid, addressed as follows: SELLER: M. Tony Wilkerson 1136 Bridgewater Walk Snellville, Georgia 30078-2035 Telecopy: Copies to: For Seller: D. Jorge Urbina Urbina Law & Title 620 West Hickory Street Denton, Texas 76201 Telecopy: (940) 565-1917 BUYER: City of Denton Paul Williamson, 901-A Texas Street Denton, Texas 76209 Telecopy: (940) 349-8951 For Buyer: Richard Casner, Deputy City Attorney City Attorney's Office 215 E. McKinney Denton, Texas 76201 Telecopy: 940.3 82.7923 9.02 Governing Law and Venue. This Contract is being executed and delivered and is intended to be performed in the State of Texas, the laws of Texas governing the validity, construction, enforcement and interpretation of this Contract. This Contract is performable in, and the exclusive venue for any action brought with respect hereto, shall lie in Denton County, Texas. 9.03 Entirety and Amendments. This Contract embodies the entire agreement between the parties and supersedes all prior agreements and understandings, if any, related to the Property, and may be amended or supplemented only in- writing executed by the party against whom enforcement is sought. 9.04 Parties Bound. This Contract is binding upon and inures to the benefit of Seller and Buyer, and their respective heirs, executors, administrators, legal representatives, successors and assigns. If requested by Buyer, Seller agrees to execute, acknowledge and record a memorandum of this Contract in the Real Property Records of Denton County, Texas, imparting notice of this Contract to the public. 9.05 Risk of Loss. If any condemnation or any eminent domain proceedings are threatened or initiated 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 Contract of Sale Page 12 of 18 (b) Consummate this Contract, in which case Buyer, with respect to the Property, shall be entitled to receive any proceeds paid for the Property. If Buyer makes this election, the Closing shall be held on the tenth (10) calendar day after election is made to close and receive the proceeds. Buyer shall have a period of ten (10) days after receipt of written notification from Seller on the final settlement of all condemnation proceedings in which to make Buyer's election. 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, the provisions of this 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 Like-Kind Exchange. Buyer covenants and agrees with Seller that it shall cooperate with Seller in its efforts, in the event it shall so elect, to complete a "like kind" exchange pursuant to Section 1031 of the Internal Revenue Code of the Property by and through a qualified intermediary. However, in no event shall Buyer be required to purchase or exchange any property other than the Property. 9.10 Delegation of Authority. Authority to take any actions that are to be, or may be, taken by Buyer under this Contract are hereby delegated by Buyer, pursuant to action by the City Council of Denton, Texas, to the City Manager, or his designee. SELLER: ~ c M. TO Y WIL SON Executed by Seller on the day of Y 2009. Contract of Sale Page 13 of 18 BUYER: By: e~ ~ C " ~ GEORGE C. CAMPBELL, CITY MANAGER Executed by Buyer on the l day of E , v 2009. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY BY: G, L_ Contract of Sale Page 14 of 18 EXHIBIT A To Contract of Sale Legal Description TRACT I: BEING a lot, tract or parcel of land lying and being situated in Denton County, Texas and being a part of a ten acre tract out of the southwest corner of a 100 acre tract of land out of the northwest corner of the GIDEON WALKER SURVEY, Abstract No. 13305 being located about four miles east of the Town of Denton, Texas and described by metes and bounds as follows, to wit: BEGINNING at the southwest corner of a 10 acre tract of land described in a deed from Walter L. Hunter and wife, to F.W. Trietsch and shown of record in Volume 297, Page 575, Deed Records of Denton County, Texas; THENCE North with the west boundary line of said 10 acre tract, 217.9 feet to a corner on the east boundary line of said 10 acre tract; THENCE East 440 feet, 158.4 varas to a stake in the east boundary line of said 10 acre tract; THENCE South with the east boundary line of said 10 acre tract, 217.9 feet to the southeast corner of said 10 acre tract; THENCE West with the south boundary line of said 10 acre tract 440 feet to the PLACE OF BEGINNING, containing two and twenty/100ths acres of land (2.20 acres), more or less. TRACT II: BEING all that certain lot, tract or parcel of land being a part of a ten acre tract out of the southwest corner of a 100 acre tract of land out of the northwest corner of the GIDEON WALKER SURVEY, Abstract No. 1330, Denton County, Texas, being located about four miles east of the Town of Denton, Texas and described by metes and bounds as follows: BEGINNING at the southwest corner of a 2.5 acre tract of land described in a deed from F.W. Trietsch and wife, Alwine Trietsch to James F. Hammett and shown of record in Volume 390, Page 605, of the Deed Records of Denton County, Texas; THENCE East 200 feet along the side boundary line of said Hammett tract of land, a stake for corner; THENCE North 163.5 feet parallelling the west boundary line of said 2.5 acre tract, a stake for corner; THENCE West 200 feet parallelling the south boundary line of 2.5 acre tract, a stake for corner; THENCE South 163.5 feet to the PLACE OF BEGINNING. Contract of Sale Page 15 of 18 EXHIBIT "B" To Contract of Sale 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 M. TONY WILKERSON, (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 762015 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 himself, his heirs, successors and assigns all oil, gas and other minerals in, on and under and that may be produced from the Land. Seller, his heirs, successors and assigns shall Contract of Sale Page 16 of 18 not have the right to use or access the surface of the Land, in any way, manner or form, in connection with or related to the reserved oil, gas, and other minerals and/or related to exploration and/or production of the oil, gas and other minerals reserved herein, including without limitation, use or access of the surface of the Land for the location of any well or drill sites; well bores, whether vertical or any deviation from vertical, water wells, pit areas, seismic activities, tanks or tank batteries, pipelines, roads, electricity or other utility infrastructure, and/or for subjacent or lateral support for any surface facilities or well bores, or any other infrastructure or improvement of any kind or type in connection with or related to the reserved oil, gas and other minerals, and/or related to the exploration or production of same. As used herein, the term "minerals" shall exclude (i) all substances (except oil and gas) 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 Land; and (ii) all substances (except oil and gas) which are at or near the surface of the Land. 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 Land" shall include the area from the surface of the earth to a depth of five hundred feet (500') below the surface of the earth and all areas above the surface of the earth. 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 Seller's predecessors in title. Contract of Sale Page 17 of 18 TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's successors and assigns forever; and Grantor does hereby bind Grantor and Grantor's successors and assigns to WARRANT AND FOREVER DEFEND all and singular the Property unto Grantee and Grantee's successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise. EXECUTED the day of 2009. M. TONY WILKERSON THE STATE OF § COUNTY OF § This instrument was acknowledged before me on 2009 by M. Tony Wilkerson. Notary Public, State of Texas My commission expires: Contract of Sale Page 18 of 18