Loading...
2008-300ORDINANCE NO. 2008- AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A REAL ESTATE CONTRACT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND RAYZOR INVESTMENTS, LTD., AND ANY OTHER DOCUMENTS AND CONVEYANCES THAT ARE NECESSARY TO ACQUIRE AN APPROXIMATE 2.5367 ACRE TRACT OF REAL PROPERTY IN THE ASA HICKMAN SURVEY, ABSTRACT NUMBER 521, CITY OF DENTON, DENTON COUNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE. (ROSELAWN AREA WATER TANK) 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 Rayzor Investments, Ltd., as Seller, substantially in the form that is attached hereto and made a part hereof as Exhibit "A" (the "Contract"); the City Manager is hereby authorized to expend the funds pursuant to said Agreement; together with any other documents necessary for the acquisition of an approximate 2.5367 acre tract of land, as described in the caption above. The land is being acquired for municipal utility purposes. SECTION 2. This Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this. day of Azzn , 2008. zjr~ - Z" MARK A. BURROUGHS, MAMOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: I ~ AP VED A O LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: A" ~ 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. RIGHT OF ENTRY AND POSSESSION STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § (a P, A,,ro,,~) WHEREAS, (i) Rayzor Investments, Ltd.,/is the owner of, or claim an interest in, the following tract of land: ALL that certain lot tract or parcel of land lying and being situated in the Asa Hickman Survey, Abstract Number 521, in the City and County of Denton, Texas and being more particularly described as follows: BEING all of Lot 1, Block A, Roselawn Elevated Storage Tank Addition, an addition to the City of Denton, Denton County, Texas, according to the Conveyance Plat thereof recorded in Cabinet Y, Page 776, Plat Records, Denton County, Texas. WHEREAS, the City of Denton, Texas (the "City") is going to acquire fee title in the Property for municipal utility purposes, subject to reservations of any and all mineral rights and interests of said property described herein; and WHEREAS, the City will acquire the Property by purchase, or upon failure to acquire by purchase, by condemnation proceedings; and WHEREAS, the City needs possession of the Property in order to construct important public improvements for Roselawn Area Overhead Water Storage Tank Project (the '`Project"). NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Grantor for and in consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable consideration to it in hand paid by the City, the receipt and sufficiency of which is hereby acknowledged and confessed, has Granted, Bargained, and Conveyed and by these presents does Grant, Bargain, and Convey unto the City the right of entry upon, the right to remove improvements, if any, with which the land is encumbered, and possession of the Property for municipal utility purposes. This grant of right of entry and possession is conditioned upon the following: Grantor and the City agree to and hereby designate the date of taking for which to value the Property for negotiation or condemnation purposes as the date of this PAGE 1 Right Of Entry And Possession. The grant herein made shall not prejudice, in any way, Grantor's rights to receive full and just compensation from the City for the Property to be acquired by the City. 3. The City agrees to acquire the Property either by purchase, or in the alternative, by condemnation proceedings for the acquisition of the Property in a good faith and timely manner. 4. It is expressly provided that in the event the City institutes condemnation proceedings, the City is not liable to Grantor for interest upon any award or judgment as the result of such proceedings for any period of time prior to the date of the award. 5. This Right Of Entry And Possession shall extend to the City, its contractors and assigns. TO HAVE AND TO HOLD the possession of the herein described Property for municipal utility purposes. WITNESS THE EXECUTION HEREOF as of the v/~day of LAAe~ 2009. EFFECTIVE as of the execution date hereof. GRANTOR: RAYZOR INVESTMENTS, LTD., a Texas limited partnership By: The Rayzor Company, a Texas corporation, its general partner By: "12~~ Philip A. aker, Vice President ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me this 62y?1- day of , 2009 by Philip A. Baker, Vice President of The Rayzor Company. k, DEMNAMCCLESKEY Notary Public, State of Texas MY COMMISSION EXPIRES s QF. =g Maros 18, 2010 Printed name: ! a IVI c 5 CIL My commission expires: - - D/p PAGE 2 ACCEPTED AND AGREED TO by the City of Denton, Texas this Of p; day of 2009. CITY OF DENTON, TEXAS A Home-Rule Municipal Corporation By: °e`prrYs~~ JENNIFER K. WALiERg s+; °i Notary F'ublit;utt3tO (2t TOM George C. Campbell, My Commission Expires December 19, 201 0 City Manager I zt tv- I ~ hit ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me this day of , 2009 b G aryP ic, State of Texas Printed name:nT My commission expires: APPROVED AS TO FORM: /",W ) r~~ ~ ~ - Anita Burgess, CIT Oi6~~EY AFTER RECORDING RETURN TO: CITY OF DENTON - UTILITY ENGINEERING 901 A Texas Street Denton, Texas 76209 Attention: Paul Williamson AGREEMENT OF PURCHASE AND SALE THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made and entered into as of the Effective Date (as hereinafter defined) between RAYZOR INVESTMENTS, LTD., a Texas limited partnership ("Seller"), and the CITY OF DENTON, a Texas municipal corporation ("Purchaser"), upon the terms and conditions specified herein. Section 1. Agreement to Sell and Purchase. Seller hereby agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from Seller, for the Purchase Price (as hereinafter defined) on and subject to the terms and conditions set forth in this Agreement, the parcel of land described in Exhibit "A" attached hereto and by this reference made a part hereof ("Property"), together with all of Seller's rights and interest, if any, in and to all roads, streets, alleys and easements belonging or appurtenant thereto; provided, however, that Seller shall reserve and retain all coal, oil, gas, casing- head gas, and all ores and minerals of every kind and nature ("Reserved Resources") (subject to the surface waivers contained in the Deed). Section 2. Purchase Price Opening of Escrow, Earnest Money and Approval. 2.1 Purchase Price. The purchase price ("Purchase Price") to be paid by Purchaser to Seller for the Property is One Hundred and Forty Thousand Dollars and No Cents ($140,000). 2.2 Payment of Purchase Price. The Purchase Price shall be payable in Readily Available Funds (as hereinafter defined) at the Closing, and Purchaser shall make certain deposits to be applied to the Purchase Price at Closing as provided in Section 2.4 below. 2.3 Delivery to Title Company. Within three business days after the execution and delivery of this Agreement by both Purchaser and Seller, the last executing party shall deliver all executed counterparts of this Agreement to Republic Title of Fort Worth, 420 Throckmorton, Suite 640, Fort Worth, Texas 76102 (with Joanna Cloud acting as escrow officer) ("Title Company"). If Purchaser is the last executing party, Purchaser shall deliver Readily Available Funds for the below described Earnest Money to the Title Company simultaneously with its delivery of the executed counterparts of this Agreement. If Seller is the lastexecuting party, Title Company shall promptly notify Purchaser of its receipt of the executed counterparts and Purchaser shall deliver Readily Available Funds for the below described Earnest Money to the Title Company within three (3) business days after such notice. In either case, upon receipt of such funds required to be deposited with Title Company by Purchaser as provided below, Title Company shall execute each counterpart in the space provided below to evidence its receipt of such funds and agreement to hold same in accordance with this Agreement, and Title Company shall return a fully executed counterpart of this Agreement to each of the parties. 2.4 Earnest Money. After the execution and delivery of this Agreement by Seller and Purchaser as provided above, Purchaser shall deliver to Title Company Readily Available Funds in the amount of $5,610.00 ("Earnest Money") within the time periods contemplated under Section 2.3 above. The Earnest Money shall be held by Title Company in escrow in an interest-bearing account in accordance with the provisions hereof, and all interest accrued on the Earnest Money shall become a part thereof, and all further references to the Earnest Money in this Agreement shall include such accrued interest. The Earnest Money shall be refundable during the Review Period, less $50.00 as sole consideration for the Review Period (the "Option Fee")(as hereinafter defined) if Purchaser terminates this Agreement in accordance with the provisions of Section 4.1, or under Sections 13.2 or 20 of this Agreement. In the event Purchaser does not terminate this Agreement Agreement of Purchase and Sale Taylor Tract - Water Tank Site 1 on or before the expiration of the Review Period as provided in Section 4.1 hereof, then the Earnest Money shall only be refundable to Purchaser if Purchaser terminates this Agreement in accordance with the provisions of Sections 13.2 or 20 hereof. If the transaction contemplated hereby is consummated in accordance with the terms and provisions hereof, the Earnest Money shall be applied to the Purchase Price at the Closing. If the transaction is not so consummated, then any portion of the Earnest Money not refundable to Purchaser as expressly provided herein shall be paid to Seller either as liquidated damages under Section 20 or otherwise in consideration of Seller having entered into this Agreement. Timely delivery of the Earnest Money as specified above shall be a condition precedent to Seller's obligations under this Agreement and in the event of Purchaser's failure to timely deliver same, Seller may terminate this Agreement at any time prior to Purchaser's delivery of Readily Avaibble Funds for such Earnest Money. Section 3. Title Commitment, Survey and Submission Materials 3.1 Title Commitment Within 30 days after the Effective Date (subject, however, to Section 4.1.2 below), Seller, at Seller's sole cost and expense, shall deliver or cause to be delivered to Purchaser the following: . 3.1.1 Title Commitment. Owner's Commitment for Title Insurance ('Title Commitment') issued by Title Company, which Title Commitment shallset forth the status of the title of the Property and shall show all easements, restrictions, claims, rights-of-way, encroachments and other encumbrances and other matters, if any, affecting the Property ("Encumbrances"); and 3.1.2 Documents. A legible copy of all documents referred to in the Title Commitment,. including but not limited to plats, reservations, restrictions and easements. 3.2 Survey. 3.2.1 Survey Delivery. Within 30 days after the Effective Date (subject, however, to Section 4.1.2 below), Seller, at Purchaser's sole cost and expense, shall deliver to Purchaser a current survey ("Survey") consisting of a plat and field notes describing the Property. The Survey shall be prepared pursuant to a current on-the-ground staked survey performed by Gerry Curtis and Associates or another registered public surveyor or engineer selected by Seller and reasonably acceptable to Purchaser. The Survey shall (i) reflect the actual dimensions of and the total number of gross acres of land within the Property, (ii) identify any Encumbrances by applicable recording reference and identify any areas in a flood prone or flood hazard area, (iii) include the surveyor's registered number and seal, the date of the Survey and narrative certificate reasonably acceptable to Seller and Purchaser. 3.2.2 Survey Costs. Purchaser shall pay for the cost of the Survey. 3.3 Permitted Encumbrances. Purchaser may evaluate the status of title as reflected in the Title Commitment and Survey pursuant to Section 4.1 below. Seller shall have no obligation to cure any title matters or issues disclosed in the Title Commitment and/or Survey (but may do so, if Seller so chooses). The term "Permitted Encumbrances" as used herein shall mean the reservation of the Reserved Resources as provided in the Deed, and any Encumbrances affecting the Property as shown in the Title Commitment and/or Survey, togetherwith all municipal and other governmental zoning laws, regulations and ordinances, if any, affecting the Property. The Permitted Encumbrances shall be specifically listed and attached to the Deed as Exhibit "B" thereto as constituting the Permitted Encumbrances. Agreement of Purchase and Sale Taylor Tract - Water Tank Site 2 Section 4. Purchaser's Review Rights. 4.1 Review Period. 4.1.1 Termination Right. In the event that the Purchaser is not satisfied, in Purchaser's sole discretion, with (i) the physical condition and nature of the Property, (ii) the status of title to the Property as shown by the Title Commitment and/or Survey or otherwise, (iii) any Tests (as hereinafter defined) or studies conducted by the Purchaser pursuant to Section 8 hereof and (iv) all other aspects of the Property, or if Purchaser is not otherwise satisfied in Purchaser's sole discretion that the Property is suitable for Purchaser's Intended Development (as hereinafter defined) or use thereof (collectively, the "Conditions"), then Purchaser shall have the option at any time prior to the expiration of 180 days after the Effective Date ("Review Period") to choose one of the following as its sole and exclusive remedy: (i) terminate this Agreement by sending written notice thereof to Seller on or prior to expiration of the Review Period, and on such termination, Purchaser shall be entitled to the return of the Earnest Money, less the Option Fee, and neither party hereto shall have any further rights or obligations hereunder (except for Purchaser's obligations under Section 31 below; or (ii) elect to waive any of the Conditions and proceed with this transaction, but with no change in any of Purchaser's obligations hereunder and with no reduction in the Purchase Price. In the event Purchaser does not terminate this Agreement on or before the expiration of the Review Period as specified in this Section 4.1, then the Earnest Money shall be refundable to Purchaser only if Purchaser terminates this Agreement in accordance with the provisions of Sections 13.2 or 20. 4.1.2 Delay in Delivery of Surrey or Title Commitment. Notwithstanding anything herein to the contrary, in the event that Seller does not obtain and deliver either or both of the Survey and the Title Commitment within the time periods specified in Section 3 above, Purchaser's sole and exclusive remedy shall be to extend the Review Period for the number of days that Seller is so delayed in delivering the Survey and/or the Title Commitment, and Seller,shall not be deemed in default hereof. If both the Survey and the Title Commitment are delivered late, the number of days that Seller is so delayed in the delivering of both the Surrey and the Title Commitment shall run concurrently for purposes of the extension, so that th:e extension of the Review Period shall be the number of days between (i) the date that Purchaser would have received both the Title Commitment and Surrey under the above scheduled time periods and (ii) the actual date on which Purchaser has received both the Title Commitment and Survey. Section 5. [Intentionally Deleted] Section 6. Closing Matters. 6.1 Closing Date. The Closing ("Closing") of the sale of the Property by Seller to Purchaser shall occur in and through the office of the Title Company, with Title Company acting as escrow agent, on the date which is thirty (30) days after the expiration of the Review Period, unless Seller and Purchaser mutually agree to an earlier or later date("Closing Date"). 6.2 Concurrent Conditions at Closing. At the Closing, all of the following shall occur, all of which shall be deemed concurrent conditions: Agreement of Purchase and Sale Taylor Tract - Water Tank Site 3 . 6.2.1 Seller Deliveries. Seller, at Seller's sole cost and expense, shall deliver or cause to be delivered to Title Company, as escrow agent, for the immediate disbursement and delivery by the Title Company as hereinafter set forth, the following: a. A Special Warranty Deed ("Deed"), in form and substance identical to that attached hereto as Exhibit "B" and by this reference made a part hereof, fully executed and acknowledged by Seller, conveying to Purchaser title to the Property, subject to the Permitted Encumbrances. b. An Affidavit ("Affidavit') that Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. C. The Settlement Statement (as hereinafter defined) prepared by the Title Company for execution by Seller, fully executed by Seller. d. Evidence reasonably satisfactory to Purchaser and the Title Company that Seller (and the person executing the closing documents on behalf of Seller) has the full right, power, and authority to perform this Agreement and complete the Closing hereunder. 6.2.2 Purchaser Deliveries. Purchaser, at Purchaser's sole cost and expense, shall deliver or cause to be delivered to Title Company, as escrow agent, for the immediate disbursement and delivery by the Title Company as hereinafter set forth, the following: a. Immediately available funds in the form of a federal wire transfer, certified or cashier's check, or such other means of funding acceptable to the Title Company so as to constitute readily available funds for immediate disbursement by Title Company ("Readily Available Funds") in an amount equal to the Net Funds Due from Purchaser as shown on the Settlement Statement. b. The Deed, executed by Grantee to acknowledge the terms, conditions and reservations contained therein. C. The Settlement Statement prepared by the Title Company for execution by Purchaser, fully executed by Purchaser. d. Evidence reasonably satisfactory to Seller and the Title Company that Purchaser (and the person executing the closing documents on behalf of Purchaser) has the full right, power, and authority to perform this Agreement and complete the Closing hereunder. . 6.2.3 Settlement Statements. At Closing, Title Company shall prepare for execution by each party a Settlement Statement (Settlement Statement(s7') which shall reflect and show: (i) the Purchase Price and the application of all Earnest Money toward the Purchase Price, (ii) the payoff by Seller of any liens against the Property, (iii) the allocation of costs between the parties as provided herein and other prorations, credits, payments and other adjustments provided for herein, and (iv) the resulting overall funding and disbursement of cash funds necessary to close the transaction and the net funds due from Purchaser ("Net Funds Due from Purchaser") and the net funds due to/from Seller ("Net Funds Due to/from Seller"). Agreement of Purchase and Sale Taylor Tract - Water Tank Site 4 6.2.4 Issuance of Owner Policy. At Purchaser's sole cost and expense, Title Company shall issue to Purchaser an Owner Policy of Title Insurance (or a binding commitment to so issue with the actual title policy to be delivered within a reasonable period of time after the Closing) ("Owner Policy") in the amount of the Purchase Price insuring that, after the completion of the Closing, Purchaser is the owner of indefeasible fee simple title to the Property, subject only to the Permitted Encumbrances and the standard printed exclusions and exceptions included in a Texas Standard Form Owner Policy of Title Insurance (provided, however, that the survey exception as to areas and boundaries may, at the option and sole expense of Purchaser, be limited to "shortages in area"). 6.3 Closing of Escrow. Upon satisfaction and delivery of all of the matters described in Section 6.2 above, Title Company shall act as escrow agent in closing the transaction hereunder and shall: . 6.3.1 Recordation. Title Company shall record the following documents ("Recorded Documents") in the Real Property Records of Denton County, Texas with instructions for the recorder to return the original executed and recorded original of each document to the party specified below: Document After Recording Return To Deed Purchaser 6.3.2 Execution of Settlement Statements by Title Company. Title Company shall execute and deliver to each respective party its respective Settlement Statement. 6.3.3 Deliveries to Purchaser. Title Company shall deliver the following documents to Purchaser: (i) original Affidavit (ii) file-stamped copy of each Recorded Document 6.3.4 Deliveries to Seller. Title Company shall deliver the following documents to Seller: (i) file-stamped copy of each Recorded Document 6.3.5 Disbursement of Funds. Title Company shall release the Earnest Money from escrow and apply the same to the Purchase Price, and otherwise receive and disburse funds in accordance with the Settlement Statement(s) and deliver to Seller the Net Funds Due to Seller as reflected in the Settlement Statement(s). 6.4 Allocation of Closing Costs Closing costs shall be allocated as follows: 6.4.1 Seller Costs. Seller shall pay: (a) its own attorneys' fees, Agreement of Purchase and Sale Taylor Tract - Water Tank Site 6.4.2 Purchaser Costs. Purchaser shall pay: (a) its own attorneys' fees, (b) all of the escrow fees charged by the Title Company, (c) the cost to record the Deed, (d) the cost of the Survey, and (e) the cost of the basic premium for the Owner Policy, (f) any additional premium or charge to limit the survey exception in the Owner Policy to "shortages in area" if Purchaser desires such coverage or to obtain any other endorsements or additional coverages Purchaser may obtain relative to the Owner Policy (but Seller gives no assurances that any such endorsements or coverages are available and shall have no responsibility with respect thereto). 6.5 Taxes. Taxes affecting the Property shall be pro-rated as follows: . 6.5.1 General Proration. Ad valorem and similar taxes and assessments (the "Taxes") relating to the Property for the year in which the Closing occurs shall be prorated between Seller and Purchaser as of the Closing Date, in accordance with Section 26.11 of the Texas Tax Code. In this regard the Title Company shall have each taxing unit certify the Seller's prorated tax liability for the year of closing which amounts will be paid by Seller out of the proceeds of the sale. 6.5.2 Roll-Back Taxes. The parties acknowledge that, for purposes of assessing Taxes against the Property for prior years, the applicable central appraisal district has applied agricultural, open-space or other special use valuation methods ("Special Use Valuation") to arrive at the taxable value of the Property as permitted under the Texas Tax Code,.and accordingly a change in land usage of the Property may result in an additional tax (in addition to Taxes for the year in which the Roll-Back Event, as hereinafter defined, occurs) being assessed against the Property (any such additional taxes, together with interest thereon, being referred to herein as "Roll-Back Taxes"). As a tax exempt governmental entity, the Purchaser is exempt for payment of Roll-Back Taxes. A change in ownership will not trigger Roll-Back Tax liability. Therefore, no Roll-Back Taxes will be paid at Closing. 6.6 Delivery of Possession. Upon completion of the Closing, Seller shall deliver to Purchaser possession of the Property, subject to the Permitted Encumbrances Section 7. AS-IS Sale. 7.1 AS-IS Sale. Purchaser expressly acknowledges that the Property is being sold and accepted AS-IS, WHERE-IS WITH ALL FAULTS, and, except as expressly set forth in Section 12 below, Seller makes no representations or warranties, express or implied, with respect to the physical condition or any other aspect of the Property, including without limitation: (i) the structural Agreement of Purchase and Sale Taylor Tract - Water Tank Site 6 integrity of improvements on the Property, if any; (ii) the manner, construction, condition and state of repair or lack of repair of any improvements on the Property; (iii) the conformity of any improvements to any plans or specifications for the Property, including but not limited to any plans and specifications that may have been or which may be provided to Purchaser; (iv) the conformity of the Property to past, current or future applicable zoning or building code requirements or the Property's compliance with any other Laws; (v) the financial earning capacity or history or expense history of the operation of the Property; (vi) the status of title to the Property and the nature and extent of any right-of-way, lease, possession, lien, easement, license, reservation, condition or other Encumbrance affecting the Property; (vii) the existence of soil instability, past soil repairs, soil additions or conditions of soil fill, the Property's susceptibility to landslides, sufficiency of undershoring'or sufficiency of drainage to, from or across the Property; (viii) whether the Property is located wholly or partially in a flood plain or a flood hazard boundary or similar area or within any area that maybe considered wetlands or jurisdictional waters of the United States; (ix) the existence or non-existence of underground or above ground storage tanks, asbestos, hazardous waste or other toxic or Hazardous Materials (as hereinafter defined) of any kind or any other environmental condition or whether the Property is in compliance with applicable Laws; (x) the Property's investment potential or resale at any future date, at a profit or otherwise; (xi) any tax consequences of ownership of the Property; or (xii) any other matter whatsoever affecting the stability, integrity, other condition or status of the Property (collectively, the "Property Conditions"), and PURCHASER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS PURCHASER MIGHT HAVE REGARDING ANY FORM OF WARRANTY; EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF QUANTITY, QUALITY, CONDITION, HABITABILITY, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATED TO THE PROPERTY, ANY IMPROVEMENTS THEREON OR THE PROPERTY CONDITIONS, SUCH WAIVER BEING ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. This waiver only applies to Seller and is not a waiverto any predecessor in title to Seller. 7.2 Information Disclaimer. Any and all information related to the Property provided to Purchaser by Seller (without implying any obligation to deliver such information, however) ("Information"), shall be delivered as an accommodation to Purchaser only, without any representation or warranty as to the completeness or accuracy of the data or other information contained therein, and all such Information is furnished to Purchaser solely as a courtesy, and Seller has neither verified the accuracy of any statements or other information therein contained, the method used. to compile such Information nor the qualifications of the persons preparing such Information. :The Information is provided on an AS-IS, WHERE-IS BASIS, AND PURCHASER EXPRESSLY: ACKNOWLEDGES THAT, IN CONSIDERATION OF THE AGREEMENTS OF SELLER HEREIN, SELLER MAKES NO REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY:OF QUANTITY, QUALITY, CONDITION, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE INFORMATION. All such Information shall be held by Purchaser in confidence in accordance with the provisions of Section 31 below. Seller shall provide to Purchaser within 30 days after the Effective Date of this Agreement copies of all environmental and engineering reports it has within its care, custody or control. 7.3 : Waiver of Compliance with Requirements Purchaser expressly acknowledges that Purchaser is not relying on (and Seller hereby disclaims and renounces) any representations or warranties made by or on behalf of Seller of any kind or nature whatsoever, except as expressly provided in Section 12 below. Purchaser acknowledges that the Property may not be in compliance with all Laws that may apply to the Property or any part thereof and the continued ownership, Agreement of Purchase and Sale Taylor Tract - Water Tank Site 7 maintenance,. management and repair of the Property ("Requirements"). Purchaser shall be solely responsible for any and all Requirements, Property Conditions and all other aspects of the Property, whether the same shall be existing as of the Closing Date or not. 7.4 Environmental Waiver. Without limitation, to the fullest extent permitted by law, and except as provided in Section 12, Purchaser, for Purchaser's successors and assigns, hereby releases Seller from and waives any and all claims and liabilities against Seller for, related to or in connection with any environmental condition at the Property (or the presence of any matter or substance relating to the environmental condition of the Property), including, but not limited to, claims and/or. liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under the Property, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of: (i) the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §§9601 et seq.) ("CERCLA"); (ii) the Resource Conservation and Recovery Act (42 U.S.C. §§6901 et seq.) ("RCRA"); (iii) the Superfund Amendments and Reauthorization Act (42 U.S.C. §§9601 et seq.) ("SARA"); or (iv) any other claim or cause of action (including any federal or state based statutory, regulatory or common law cause of action, including without limitation, the Texas Solid Waste Disposal Act) related to environmental matters or liability with respect to or affecting the Property. This waiver only applies to Seller and is not a waiver to any predecessor in title to Seller. 7.5 Assumption of Hazardous Material Risks. Without limitation to any of the above, Purchaser assumes the risk that Hazardous Materials may be present in, on or under the Property, and hereby waives, releases and discharges forever, Sellerfrom any and all present orfuture claims or demands, and any and all damages, loss, injury, claims or costs, including fines, penalties and judgments arising from or in any way related to the condition of the Property or presence of any Hazardous Materials in, on or under the Property, whether or not arising from or attributed to the sole or concurrent negligence of Seller. This waiver only applies to Seller and is not a waiver to any predecessor in title to Seller. 7.6 Purchaser Relying on Own Inspections. Purchaser acknowledges and agrees that the provisions contained in Sections 7.1 - 7.5 above were a material factor in Seller's acceptance of the Purchase Price and that Seller was unwilling to sell the Property to Purchaser unless Seller was released as expressly set forth above. With respect to Purchaser's waivers and agreements contained in Sections 7.1 - 7.5 above, the Purchaser represents and warrants to the Seller that: (i) Purchaser is represented by legal counsel in connection with the sale contemplated by this Agreement; (ii) Purchaser, with Purchaser's counsel, has fully reviewed the disclaimers and waivers and agreements set forth in this Agreement and understands their significance and effect; (iii) Purchaser is knowledgeable and experienced in the purchase, operation, ownership, refurbishing and sale of commercial real estate, and is fully able to evaluate the merits and risks of this transaction; and (iv) Purchaser is not in a significantly disparate bargaining position. As part of the provisions of this Section 7, but not as a limitation thereon, Purchaser hereby agrees, represents and warrants that the matters released herein are not limited to matters which are known or disclosed. In this connection, to the extent permitted by law, Purchaser hereby agrees, represents and warrants that it realizes and acknowledgesthat factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Purchaser further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Purchaser nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included in the waivers and matters released as set forth in thisSection 7 above. Agreement of Purchase and Sale Taylor Tract - Water Tank Site 8 7.8 Survival. Notwithstanding anything herein to the contrary, all of the terms and provisions of this Section 7 shall survive the Closing. Section 8. Purchaser's Inspection. 8.1 . Purchaser Acknowledgment. Purchaser acknowledges and agrees that it will have the opportunity to fully and thoroughly inspect the Property in accordance with Section 8.2 below, and Purchaser will conduct such inspections and tests as Purchaser may deem advisable in Purchaser's discretion to fully evaluate and analyze the Property and all Property Conditions. 8.2 . Tests. Until the Closing, Purchaser and its agents and employees, at Purchaser's sole risk and expense, shall have the right to enter upon the Property during normal business hours (and subject to advance notice as required below) for inspections, surveying, engineering and other reasonable testing and inspection purposes ('Tests"); provided, however, unless Purchaser obtains the prior written approval by Seller (which approval shall not be unreasonably withheld or delayed), all such inspections shall be limited to non-intrusive inspections and studies (such as non-intrusive "Phase I Level" type tests with respect to environmental matters) which do not involve borings or any sampling of any material or media, including soil, surface water, or ground water. Purchaser shall not be permitted to conduct intrusive "Phase 11 Level" environmental or other intrusive testing or any borings or sampling of any material or media, including soil, surface water, or ground water, unless Seller, in Seller's commercially reasonable discretion, has approved in writing such testing and sampling, the.specific scope of work therefor and the consultant or persons performing such work; provided, however, Purchaser may conduct routine soil borings on the Property for the purpose of evaluating soil stability and characteristics for typical construction industry purposes directly related to Purchaser's Intended Development ("Routine Soil Borings") without obtaining Seller's prior approval. All- Routine Soil Borings shall be conducted in a commercially reasonable manner in accordance with the highest generally accepted construction industry standards, and upon completion of all such Routine Soil Borings, Purchaser shall restore the Property to substantially the same condition as existed prior to such Routine Soil Borings. Any and all activities conducted by Purchaser shall be in accordance with applicable Laws. Any entry upon the Property hereunder is referred to herein as an "Entry". All such activities shall be conducted in such a fashion so as to minimize interference with the use of the Property. Purchaser shall promptly repair any damage to the Property as a result of such Tests and restore the Property to its condition which existed prior to such Tests. 8.3 Notice of Entry. Prior to any Entry upon the Property for any purpose permitted hereunder, Purchaser shall give prior notice to and shall coordinate such access through Mr. Philip Baker (telephone 940/387-8711, telecopy 940/566-1591, The Rayzor Company, 400 West Oak Street, Suite 200, Denton, Texas 76201) who will act as Seller's agent with respect thereto. Such notice shall be given at least 24 hours prior to the proposed Entry and shall include the names of the individuals who will be entering the Property and the name of such individual's firm or company, the purpose of the inspection and specific activities which will be conducted by such individuals on the Property, the Jimes during which such Entry shall occur and such other information as may be reasonably requested by Mr. Philip Baker. Purchaser shall fully cooperate with and follow any reasonable additional requirements or instructions given by Mr. Philip Baker with respect to such Entry. 8.4 Interference. Purchaser acknowledges that the Property may currently used by Seller for agricultural, grazing and/or other purposes and agrees that all activities under Section 8.2 Agreement of Purchase and Sale Taylor Tract - Water Tank Site above shall be conducted in such a fashion so as to minimize interference with the use of the Property by Seller. 8.5 . Insurance. Any consultant or contractor of Purchaser desiring to enter the property for any Tests shall only enter the Property after submitting to Seller certificates of insurance evidencing Commercial General Liability Insurance coverage in commercially reasonable amounts covering such consultant's or contractor's operations on the Property, with Seller included as an additional insured thereunder and stating that such insurance is primary as regards any other insurance maintained by Seller. Section 9. [Intentionally Deleted] Section 10. Agents and Agent Notices. 10.1 Agents. Purchaser and Seller hereby represent and warrant to each other that neither party has dealt with any real estate agent, broker or similar party in connection with the sale of the Property to Purchaser. 10.2 Indemnification for Brokers' Commissions or Fees: Purchaser agrees that if any claims should be made for commissions allegedly arising from the execution of this Agreement or any sale of the Property to Purchaser by any broker by reason of any acts of Purchaser, Purchaser will protect, defend, indemnify and hold Seller harmless from and against any and all loss, liabilities and expenses in connection therewith. Seller agrees that if any claims should be made for commissions allegedly arising from the execution of this Agreement or any sale of the Property to Purchaser byany broker by reason of any acts of Seller, Seller will protect, defend, indemnify and hold Purchaser harmless from and against any and all loss, liabilities and expenses in connection therewith. Section 11 Miscellaneous Notices 11.1 Texas Water Code. If the Property is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49of the Texas Water Code requires Seller to deliver and Purchaser to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fee of the district prior to final execution of this Agreement. 11.2 Utility Service Provider. If the Property is not located within a municipality's limits or a municipal utility district (MUD) and is located in a certified service area of a utility service provider (a utility, a water supply or sewer service corporation, or a special utility district organized and operating under Chapter 65 of the Texas Water Code), Section 13.257 of the Texas Water Code requires Seller to deliver a notice regarding the utility service provider to Purchaser. 11.5 Back-Up Offers. Seller may continue to show the Property for sale and receive, negotiate and accept back-up offers. 11.6 Wetlands, Toxic Substances and Threatened or Endangered Species. Purchaser is advised that the presence of wetlands, toxic substances, including asbestos and wastes or other environmental hazards or the presence of a threatened or endangered species or its habitat may affect Purchaser's intended use of the Property. If Purchaser is concerned about these maters, an addendum to this Agreement should be prepared by the parties and attached hereto.] Agreement of Purchase and Sale Taylor Tract - Water Tank Site 10 Section 12. Representations. 12.1 . Seller's Representations. Seller represents and warrants to Purchaser the following: 12.1.1 Binding Agreement. This Agreement and all documents to be executed and delivered by Seller at Closing are and at the Closing will be duly authorized, executed, and delivered, and are and at the Closing will be legal, valid, and binding obligations of Seller, and do not and at the Closing will not violate any provisions of any agreement to which Seller is a party or to which Seller is subject. 12.1.2 No Litigation. There are no existing or pending litigation or claims with respect to the Property and, to Seller's actual knowledge, there are no such actions, suits, proceedings, or claims threatened or asserted. 12.1.3 No Violation. To Seller's actual knowledge, Seller has received no notice of any violation of any Law pertaining to the Property or any portion thereof. 12.1.4 Hazardous Material. To Seller's actual knowledge, without independent investigation, there are no Hazardous Materials (as hereinafter defined) which are or have been used, manufactured, placed or stored on the Property. As used above, the term "Hazardous Materials" means any material or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste," "restricted hazardous waste," "hazardous material," "hazardous substance," or any similar formation under or pursuant to any state or federal statute or common law rule, (ii) designated as a "hazardous waste" pursuant to Section 311 of the Clean Water Act, 33 U.S.C., §1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317), (iii) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 44 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (iv) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §9601 et seq. (42 U.S.C. §9601); provided, however, "Hazardous Materials" shall not, for purposes of this representation, include gasoline, diesel fuel or other petroleum products routinely used in connection with farm and ranch operations, nor shall such term include any pesticides, herbicides, cattle dipping solutions and other substances which. are now or ever have been customarily used in connection with farm and ranch operations (and such exclusion from such term shall include items which were historically used in the farm and ranching industry for such purposes but which may now be banned or otherwise not so used). Seller hereby informs Purchaser that Seller has conducted no independent investigation in connection with the above representation and that Seller has limited knowledge as to such matters and Seller advises Purchaser to conduct independent investigations with respect to such matters as Purchaser may deem necessary or desirable to fully satisfy itself with respect to the environmental condition of the Property, it being understood that the above representation is limited in nature and is only to Seller's actual knowledge, and does not give a complete understanding of the environmental condition of the Property. 12.1.5 Foreign Status. Seller is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended. 12.1.6 No Agreements. The Property is not subject to any agreements of sale, or any options or other rights of third parties to acquire any interest therein (other than pursuant Agreement of Purchase and Sale Taylor Tract - Water Tank Site 11 to this Agreement), and Seller has and at the Closing Date will have and will convey to Purchaser good and indefeasible fee simple title to the Property, free and clear of all conditions, exceptions, or reservations, except the Permitted Encumbrances. . 12.1.7 Parties in Possession. To Seller's actual knowledge there are no adverse or other parties in possession of the Property, or of any part thereof, except Seller. No parties have been granted, and there does not currently exist, any license, lease or other right relating to the use or possession of the Property, or any pat thereof. . 12.1.8 Condemnation. To Seller's actual knowledge, there are no condemnation proceedings, eminent domain proceedings or similar actions or proceedings now pending or threatened against the Property. 12.2 No Other Representations. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER. 12.3 Seller's Actual Knowledge and Limitations. For purposes of the above, wherever the term "Seller's actual knowledge" or words of similar import are used, it shall be deemed to mean the actual current knowledge of Philip A. Baker, Chief Operating Officer of the general partner of Seller, without any independent investigation. The representations and warranties contained in Subsections. 12.1.2, 12.1.3 and 12.1.4 shall survive the Closing hereunder. 12.4 ! Purchaser's Representations. Purchaser represents and warrants to Seller the following: 12.4.1 Valid Agreement. This Agreement and all documents to be executed and delivered by Purchaser at Closing are and at the Closing will be duly authorized, executed, and delivered, and are and at the Closing will be legal, valid, and binding obligations of Purchaser, and do not and at the Closing will not violate any provisions of any agreement to which Purchaser is a party or to which Purchaser is subject. 12.4.2 Opportunity to Inspect. Purchaser (or its representatives) have been afforded the opportunity to fully and thoroughly inspect the Property, and Purchaser has or will conduct such inspections and tests as Purchaser may deem advisable in Purchaser's discretion to fully evaluate and analyze the Property and all Property Conditions, and shall have satisfied itself therewith if Purchaser proceeds to Closing. Section 13. Termination, Default and Remedies 13.1 Seller's Rights and Remedies. 13.1.1 Purchaser Events of Default. The following shall be "Purchaser Events of Default' under this Agreement: (a) Purchaser fails or refuses to consummate the purchase of the Property pursuant to this Agreement at the Closing for any reason other than termination of this Agreement by Purchaser pursuant to a right to so terminate expressly set forth in this Agreement or Seller's failure to perform Seller's obligations under this Agreement; or Agreement of Purchase and Sale Taylor Tract - Water Tank Site 12 (b) Purchaser fails to perform any of Purchaser's other obligations hereunder either prior to or at the Closing for any reason other than termination of this Agreement by Purchaser pursuant to a right to so terminate expressly set forth in this Agreement or Seller's failure to perform Seller's obligations under this Agreement, and Purchaser fails to cure any such default within five (5) days after written notice thereof from Seller (provided, however, there shall be no notice and opportunity to cure for Purchaser's failure to close the transaction on the Closing Date so as to extend the Closing Date). 13.1.2 Remedies to Seller. Upon the occurrence of any Purchaser Event of Default, Seller.shall have (i) the right to terminate this Agreement by giving written notice thereof to Purchaser prior to or at the Closing, whereupon neither party hereto shall have any further rights or obligations hereunder, and Title Company shall deliver the Earnest Money to Seller as liquidated damages, free of any claims by Purchaser or any other person with respect thereto, or (ii) enforce specific performance of Purchaser's obligations under this Agreement, as its sole and exclusive remedy, except for the Ancillary Remedies defined below. It is agreed that the Earnest Money to which the Seller is entitled in the event of a termination by Seller as a result of a Purchaser Event of Default is a reasonable forecast of just compensation for the harm that would be caused by Purchaser's breach, and that the harm that would be caused by such breach is one that is incapable or very difficult of accurate estimation. Notwithstanding the foregoing, Seller may pursue all rights and remedies available at law or in equity against Purchaserwith respect to (i) the express indemnification provisions of this Agreement, (ii) any damages incurred by Seller as a result of Purchaser's failure to comply with the insurance requirements provided for in this Agreement, and (iii) the provisions of Section 31 (the "Ancillary Remedies"), such remedies to be as additional remedies and not in lieu of the foregoing liquidated damages remedy. 13.2 Purchaser's Rights and Remedies. 13.2.1 Seller Events of Default. The following shall be "Seller Events of Default' underthis Agreement: (a) Seller fails or refuses to consummate the sale of the Property pursuant to this Agreement at the Closing; or (b) Seller fails to perform any of Seller's other obligations hereunder either prior to or at the Closing for any reason other than the termination of this Agreement by Seller pursuant to a right to so terminate expressly set forth in this Agreement or Purchaser's failure to perform Purchaser's obligations under this Agreement, and Seller does not cure such failure to perform within five (5) days after written notice of such failure from Purchaser to Seller. 13.2.2 Purchaser Remedies. Upon the occurrence of any Seller Event of Default, Purchaser, as Purchaser's sole and exclusive remedy, shall have the right to either (i) enforce specific performance of Seller's obligations under this Agreement, or (ii) terminate this Agreement by giving written notice thereof to Seller prior to or on the date when the Closing Date would have occurred, whereupon neither party hereto shall have any further rights or obligations hereunder, and Title Company shall deliver the Earnest Money to Purchaser, free of any claims by Seller or any other person with respect thereto. Agreement of Purchase and Sale Taylor Tract - Water Tank Site 13 13.3 Disbursement of Earnest Money. In the event either Seller or Purchaser becomes entitled to the.Earnest Money (or portion thereof) upon cancellation of this Agreement in accordance with its terms; Purchaser and Seller covenant and agree to deliver a letter of instruction to the Title Company directing disbursement of the Earnest Money (or portion thereof) to the party entitled thereto. Section 14. Conditions Precedent to Purchaser's and Seller's Performance 14.1 Conditions Precedent to Purchaser's Performance. Purchaser's obligation under this Agreement to purchase the Property is subject to the fulfillment of each of the following conditions (any or all of which may be waived by Purchaser) in addition to the other conditions set forth in this Agreement: 14.1.1 Representations True. The representations and warranties of Seller contained herein shall be true, accurate and complete as of the Closing Date; 14.1.2 Seller Ready. Willing and Able. Seller shall be ready, willing and able to deliver title to the Property in accordance with the terms and conditions of this Agreement; and 14.1.3 Seller Delivery of Documents. Seller shall have delivered all the documents and other items required pursuant to Subsection 6.2.1, and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing. 14.2 Conditions Precedent to Seller's Performance. Seller's obligation under this Agreement to sell the Property to Purchaser is subject to the fulfillment of each of the following conditions (any or all of which may be waived by Seller) in addition to the other conditions set forth in this Agreement: 14.2.1 Representations True. The representations and warranties of Purchaser contained herein shall be true, accurate and complete as of the Closing Date; and 14.2.2 Delivery of Funds and Performance. Purchaser shall have delivered the Net Funds Due From Purchaser and all other amounts required hereunder and all the documents to be executed by Purchaser set forth in Subsection 6.2.2 and shall have performed, in all material respects, all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to Closing. Section 15. Notices. 15.1 Notice Requirements. Any notice required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) delivered in person to the address set forth below for the party to whom the notice is given, (ii) delivered in person at the Closing (if such party is present at the Closing), (iii) placed in the United States mail, return receipt requested, addressed to such party at the address hereinafter specified, (iv) deposited into the custody of Federal Express Corporation or another reputable overnight carrier, to be sent for next day delivery, addressed to such party at the address hereinafter specified, or (v) telecopied by facsimile transmission to such party at the telecopy Agreement of Purchase and Sale Taylor Tract - Water Tank Site 14 number listed below, provided that such transmission is confirmed by a machine generated confirmation report indicating successful transmission on the date of such transmission. 15.2 Seller's Address. The address of Seller for all purposes under this Agreement and for all notices. hereunder shall be: Philip A. Baker Rayzor Investments, Ltd. 400 West Oak Street, Suite 200 Denton, Texas 76201-1771 Telecopy: (940) 566-1591 Telephone: (940) 387-8711 with a copy to: David M. Mellina, Esq. Mellina & Larson, P.C. 777 Main Street, Suite 770 Fort Worth, Texas 76102 Telecopy: (817) 335-1221 Telephone: (817) 335-1200 15.3 Purchaser's Address. The address of Purchaser for all purposes under this Agreement and for all notices hereunder shall be: City of Denton City Service Center 901 A Texas Street Denton, Texas 76209 Attn: Paul Williamson Telecopy: (940) 349-8951 Telephone: (940) 349-8921 With a copy to: Anita Burgess, City Attorney City of Denton City Hall 215 E. McKinney Denton, Texas 76201 Telecopy: (940) 382-7923 Telephone: (940) 349-8333 15.4 : Title Company's Address. The address of Title Company for all purposes under this Agreement and for all notices hereunder shall be: Agreement of Purchase and Sale Taylor Tract - Water Tank Site 15 Joanna Cloud Republic Title of Fort Worth 420 Throckmorton, Suite 640 Fort Worth, Texas 76102 Telecopy: (972) 445-5047 Telephone: (817) 877-1481 15.5 Change of Address. From time to time either party may designate another address within the 48 contiguous states of the United States of America for all purposes of this Agreement by giving the other party not less than fifteen (15) days' advance written notice of such change of address in accordance with the provisions hereof. Section 16. Entire Agreement This Agreement (including the exhibits hereto) contains the entire agreement between Seller and Purchaser, and no oral statements or prior written matter not specifically incorporated herein shall be of any force and effect. No variation, modification, or changes hereof shall be binding on either party hereto unless set forth in a document executed by such parties or a duly authorized agent, officer or representative thereof. Section 17. Assigns. This Agreement shall inure to the benefit of and be binding on the parties hereto and their respective legal representatives, successors and assigns; provided, however, Purchaser may not assign its rights under this Agreement without the prior written consent of Seller. Section 18. : Time for Execution and Effective Date. After execution of this Agreement by the first party to execute, if the other party does not execute and return a fully executed copy of this Agreement to the Title Company by 5:00 p.m., Fort Worth, Texas time, on the day which is fourteen (14) days after the first party's execution of this Agreement as indicated beneath such party's signature in the space provided below, this Agreement shall be null and void. The date on which this Agreement is executed by the last to sign of the Seller and Purchaser shall be the 'Effective Date" of this Agreement. Section 19. Time of the Essence. Time is of the essence of this Agreement. Section 20. Taking Prior to Closing. If a portion of the Property becomes subject to a taking under the provisions of eminent domain prior to the Closing to such an extent that there would be a material and adverse affect on Purchaser's ability to use the Property for Purchaser's Intended Development, Purchaser shall have the option of: (i) closing this transaction as provided herein (with no reduction in the Purchase Price), in which event Seller shall assign to Purchaser at Closing all condemnation proceeds, if any, as a result of such proceeding or (ii) terminating this Agreement by giving Seller written notice thereof within ten (10) days from the date Purchaser receives notice of such taking, in which event this Agreement shall be deemed null and void and the parties hereto shall have no further obligations to or recourse against each other either under this Agreement or otherwise (except for Purchaser's obligations under Section 31 above and the indemnification obligations of Purchaser under Section 8.2 above) and the Earnest Money shall be returned to Purchaser. Section 21. Terminology. The captions beside the section numbers of this Agreement are for reference only and shall not modify or affect this Agreement in any manner whatsoever. Wherever required by the context, any gender shall include any other gender, the singular shall include the plural, and the plural shall include the singular. Agreement of Purchase and Sale Taylor Tract - Water Tank Site 16 Section 22. Governing Law. This Agreement shall be governed by and construed in accordance with the laws.of the State of Texas. Section 23. Performance of Agreement The obligations under the terms of the Agreement are performable in Denton County, Texas, and any and all payments under the terms of the Agreement are to be made in Denton County, Texas. Section 24. Venue. The parties hereto hereby consent that venue of any action brought under this Agreement shall be in Denton County, Texas. Section 25. ' Severability. 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, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as ;if such invalid, illegal, or unenforceable provision had never been contained herein. Section 26. Rule of Construction. The parties acknowledge that each party and its counsel has reviewed and revised this Agreement, and the parties hereby agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. Section 27. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party or parties shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which such party or parties may be entitled. Section 28. Business Days. If the Closing Date or the day for performance of any act required under this Agreement falls on a Saturday, Sunday or legal holiday, then the Closing Date or the day for such performance, as the case may be, shall be the next following regular business day. Section 29. Designation of Reporting Person. Seller and Purchaser hereby designate the Title Company as the "Reporting Person" with respect to the transaction contemplated under this Agreement for purposes of complying with the regulations set forth in 26 C.F.R. Section 1.6045- 4(e)(5). Section 30. Compliance With Section 6045(e) of the Tax Reform Act of 1986. Title Company hereby agrees to (a) timely file returns with the Internal Revenue Service, on Form 1099-B or such other forms as instructed by the Internal Revenue Service, showing the gross proceeds of each transaction contemplated hereunder, the recipient thereof and such other information as the Internal Revenue Service may by form or regulation require from time to time, and (b) furnish both Seller and Purchaser with a written statement showing the name and address of the Title Company and the information shown on such returns with respect to each such transaction. These returns shall be filed to ensure that the parties to these transactions will be in compliance 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 promulgated thereunder. Section 31. ' Confidentiality/Return of Information 31.1 No Disclosure. Except as otherwise provided in this Section 31, and subject to the requirementsof the Texas Public Information Act, being Chapter 552 of the Texas Government Code (the "Act"), neither Purchaser nor Seller shall do any of the following (nor permit their respective brokers, employees, officers, partners or agents to do any of the following): (a) disclose Agreement of Purchase and Sale Taylor Tract - Water Tank Site 17 or furnish to any person who is not a party to this Agreement or a broker, employee, officer, partner or agent of a party to this Agreement, the Submission Materials and any other Information supplied by Seller to Purchaser pursuant to this Agreement, or obtained by or for Purchaser pursuant to this Agreement (including, without limitation, any the results of any Tests including, but not limited to, any environmental study, report or analysis); (b) issue any press releases or other announcements regarding this Agreement or the transaction;; or (c) use the Information in Purchasers business prior to the Closing, except in connection with the evaluation of the acquisition of the Property. 31.2 Exceptions. This Section shall not, however, prohibit either Purchaser or Seller (or an employee, officer, partner or agent of Purchaser or Seller) from making such disclosures regarding this.Agreement, the terms and conditions hereof, and the transaction: (i) to Title Company, as may be necessary in connection with the opening, administration and closing of the transaction hereunder and issuance of the Title Commitment (or any amendments thereto) and the Owner Policy contemplated by this Agreement; (ii) to engineers, surveyors, appraisers, accountants and the like, but only to the limited extent reasonably required to permit such persons to prepare surveys, reports and the like for delivery to Purchaser, Seller or Title Company pursuant to this Agreement, or in connection with any Tests under Section 8; (iii) as may be required in response to any Public Information Act Request, subpoena or otherwise in connection with any litigation or arbitration with respect to Purchaser, Seller or this Agreement, or as may be required by any regulatory agency having jurisdiction; (iv) to Purchaser's and Seller's respective attorneys; or (v) to prospective lenders or other providers of financing with respect to the Property or the development thereof, or to brokers or investment advisers working with Purchaser in obtaining such investors or financing and if Purchaser has applied to any governmental or quasi-governmental entity for financing, Seller hereby consents to any disclosure regarding this Agreement, the terms and conditions hereof, the transaction and the escrow which may be made in a public session required by Law for obtaining such financing. Notwithstanding anything herein to the contrary, the parties recognize that this Agreement will become a public document under the Act once it is placed upon the City Council's agenda for approval. As such the parties understand and agree that it will be available for review and copying by any member of the public. 31.3 Post-Closing Disclosures. This Section shall not be deemed to prohibit either Purchaser or Seller, after the Closing, from making announcements, issuing press releases or otherwise making disclosures, which reveal that Purchaser has acquired the Property from Seller. 31.4 Return of Information. Notwithstanding the foregoing or anything contained herein to the contrary, in the event this Agreement is terminated pursuant to an express right of termination hereunder, or if a Purchaser Event of Default exists, or if the transaction contemplated hereunder does not close for any reason whatsoever, then in any of such events Purchaser shall (i) promptly deliver to Seller all Information (without keeping copies) and legible copies of all Test results, surveys, studies, reports and other written materials obtained or produced with respect to Purchaser's inspection and due diligence review of the Property and (ii) maintain in absolute confidence all Information and the results of any such Tests or studies conducted by Purchaser or its consultants with respect to the Property, subject to the requirements of the Act. Section 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original, but which together shall constitute one and same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts of this Agreement may also be exchanged via electronic facsimile machines and any electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes; provided, however, that any signature Agreement of Purchase and Sale Taylor Tract - Water Tank Site 18 pages transmitted by electronic facsimile shall nevertheless be followed by the exchange of hard copy originals. Section 33. . Waiver. The waiver by any party of a breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach whether of the same or another provision of this Agreement. IN WITNESS WHEREOF, this Agreement is hereby executed as of the Effective Date. SELLER: RAYZOR INVESTMENTS, LTD., a Texas limited partnership RAAY? By: The Rayzor Company, a Texas ~ ~Q CO corporation, its general partner P,p~~ CO .79m 2 By: 6 Name: Philip. Baker 4S Title: Vice residen Date Executed: q Z 1006 PURCHASER: ATTEST: JENN ER WALTERS, C TY SECRETARY BY: APPF ANI7 BY: CITY OF DENTON, a Texas municipal corporation By Na Tit Da Agreement of Purchase and Sale Taylor Tract - Water Tank Site 19 By its execution below, Title Company acknowledges receipt of: (1) an executed copy of this Agreement and (2) the Earnest Money described in this Agreement. Title Company agrees to comply with and be bound by the terms and provisions of this Agreement and to perform its duties pursuant to the provisions of this Agreement including without limitation those terms relating to: (i) the holding and delivery of the Earnest Money and (ii) compliance with Section 6045(e) of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any Regulations or forms promulgated thereunder. TITLE COMPANY: REPUBLIC TITLE OF FORT WORTH Attn: Joanna Cloud 420 Throckmorton, Suite 640 Fort Worth, Texas 76102 Telephone: (817) 877-1481 Telecopy: (972) 445-5047 By: Name: f, -4~ B Title: Fes- = Au Date Executed: 11 ztot Zoos Se-lr\M5 -I-- to A.2P~6 Lk:e, Gu,+1 Agreement of Purchase and Sale Taylor Tract - Water Tank Site 20 EXHIBIT "A" REAL PROPERTY DESCRIPTION ALL that certain lot tract or parcel of land lying and being situated in the Asa Hickman Survey, Abstract Number 521, in the City and County of Denton, Texas and being more particularly described as follows: BEING all of Lot 1, Block A, Roselawn Elevated Storage Tank Addition, an addition to the City of Denton, Denton County, Texas, according to the Conveyance Plat thereof recorded in Cabinet Page , Plat Records, Denton County, Texas. EXHIBIT "B" SPECIAL WARRANTY DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. THE STATE OF TEXAS § § KNOW ALL PERSONS BY THESE PRESENTS: COUNTY OF DENTON § RAYZOR INVESTMENTS, LTD., a Texas limited partnership, hereinafter referred to as "Grantor", for the sum of TEN AND NO/100 DOLLARS ($10.00) cash and other good and valuable consideration to it paid by the receipt and sufficiency of which are hereby acknowledged and confessed, has GRANTED, BARGAINED, SOLD, and CONVEYED, and by these presents does GRANT, BARGAIN, SELL, and CONVEY unto THE CITY OF DENTON, a Texas municipal corporation of the County of Denton, State of Texas, herein referred to as "Grantee" all of that certain tract or parcel of land containing approximately 2.5367 acres as more particularly described in Exhibit "A" attached hereto and made a part hereof by reference, together with all improvements thereon, appurtenances thereto, and all of Grantor's right, title, and interest, if any, in and to all roads, streets, alleys and easements belonging to or appurtenant thereto (the "Property") This conveyance, however, is made and accepted subject to any and all validly existing encumbrances, conditions and restrictions, relating to the hereinabove described property as now reflected by the records of the County Clerk of DENTON County, Texas (the "Permitted Encumbrances"). Grantor hereby retains and reserves, for Grantor and its successors and assigns forever, all of the subsurface mineral rights of every kind and nature ("Reserved Resources"). Grantor waives and releases,. on behalf of Grantor and Grantor's successors and assigns, all rights of ingress and egress and all other rights to enter upon or to use the surface of the Property or any part thereof for purposes of exploring for, developing and/or producing the Reserved Resources in and under the Property. TO HAVE AND TO HOLD the Property together with all and singular the rights and appurtenances thereto in anywise belonging unto Grantee, its legal representatives, successors, and assigns forever; and Grantor does hereby bind itself, its legal representatives, successors, and assigns to WARRANT AND FOREVER DEFEND all and singular the Property, subject to the Permitted Encumbrances and Reserved Resources, unto Grantee, its legal representatives, 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. WITNESS THE EXECUTION HEREOF as of the day of , 2008. EFFECTIVE as of the execution date hereof. GRANTOR: RAYZOR INVESTMENTS, LTD., a Texas limited partnership By: The Rayzor Company, a Texas corporation, its general partner By: Philip A. Baker, Vice President ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me this day of 12008 by Philip A. Baker, Vice President of The Rayzor Company Notary Public, State of Texas Printed name: My commission expires: After recording, return to: City of Denton City Service Center- Utilities Engineering 901-A Texas Street Denton, Texas 76209 Attention: Paul Williamson Send Tax Billino Statements to: City of Denton - Main City Hall Attn: Finance Department 215 East McKinney Street Denton, Texas 76201 2 EXHIBIT "A" ALL that certain lot tract or parcel of land lying and being situated in the Asa Hickman Survey, Abstract Number 521, in the City and County of Denton, Texas and being more particularly described as follows: BEING all of Lot 1, Block A, Roselawn Elevated Storage Tank Addition, an addition to the City of Denton, Denton County, Texas, according to the Conveyance Plat thereof recorded in Cabinet Page , Plat Records, Denton County, Texas.