2004-366OP. OINANCE NO. OOd-Z
AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
EXECUTE A REAL ESTATE CONTRACT FOR THE ACQUISITION OF
APPROXIMATELY 88.56 ACRES BY PURCHASE, AND APPROXIMATELY 34.89 ACRES
BY DONATION FOR A PUBLIC SAFETY TRAINING FACILITY, PARK, AND OTHER
FUTURE PUBLIC AMENITIES LOCATED AT THE SOUTHWEST CORNER OF VINTAGE
BOULEVARD AND BONNIE BRAE STREET, SAID TRACTS BEING A PART OF THE
JAMES EDMONDSON SURVEY, ABSTRACT NO. 401, AS DESCRIBED IN THE DEED
TO DENTON-CJW PARTNERS, LTD., RECORDED IN CLERKS DOCUMENT NO. 98-
R0038601, DEED RECORDS, DENTON COUNTY TEXAS; AUTHORIZING THE
EXPENDITURE OF FUNDS, AND DECLARING AN EFFECTIVE DATE.
WHEREAS, the City of Denton, Texas is desirous of entering into a Real Estate
Contract with Denton-CJW Partners, Ltd. to acquire approximately 88.56 acres and 34.89 acres
of land as more particularly described in that certain Real Estate Contract attached hereto and
made a part hereof by reference (the "Contract"); and
WHEREAS, the City Council finds that the Contract serves valid municipal and public
purposes and is in the public interest; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance
are incorporated herein by reference.
SECTION 2. The Contract is hereby approved. The City Manager, or his designee is
authorized to enter into the Contract, to make the expenditures provided for therein, and to carry
out the City's rights and duties under the Contract.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the /~-~ dayof ~~j, 2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY: '~'~ -
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REAL ESTATE CONTRACT
TItIS CONTRACT OF SALE ( the "Agreement") is made to be effective as the
Effective Date as hereinafter defined by Denton-CJW Partners, Ltd, a Texas limited partnership
(hereinafter referred to as "Seller") and City of Denton, Texas, a home rule municipality, of
Denton, Denton County, Texas~ (hereinafter referred to as "Purchaser"), upon the terms and
conditions set .forth herein.
PURCHASE~ SALE, AND DONATION
Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay
for all ihose certain tracts, lots or parcels of land containing approximately 88.56 acres of land
(the "Purchased Property"), as illustrated and described in "Exhibit A" which is attached hereto:
and made a part hereof by reference, and Seller agrees to donate to Purchaser for park purposes
that certain tract or parcel of land containing approximately 34.89 acres of land (the "Donated
Property") also illustrated and described in "Exhibit A" with all rights and appurtenances
pertaining to the said Purchased Property and Donated Property, including any right, title and
interest of Seller in and to adjacent streets, alleys or rights-of-way, together with any
improvements, fixtures, and personal property situated on and attached to such Purchased
Property and Donated Property, (all of such real property, rights, and appurtenances being
hereinafter referred to as the "Property"), for the consideration and upon and subject to the terms,
provisions, and conditions hereinafter set forth.
The subject Property is part of a development located in the City of Denton, Texas containing
approximately 40i.20 acres of land and consisting of Tracts A-M, as more particularly described
and depicted on the Detail Plan .of The Vintage Planned Development PD 139 attached hereto as
"Exhibit B" and made a part hereof by reference (the "Development").
Mineral Reservation. The deeds to be delivered at dosing shall provide for a reservation for
Seller and Seller's successors and assigns of all oil, gas and other minerals in and under and that
may be produced fi-om the Property, except that Seller, its successors and assigns, shall not have
the right to use the surface of the Property.
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PURCHASE PRICE
Amount of Purchase Price. The total purchase price for the Purchased Property shall be the
sum of Two Million Twenty Thousand Dollars and No Cents ($2,020,000.°°) (the
"Purchase Price"). The Donated Property shall be donated to Purchaser at closing as part
of the park dedication development requirements for the Seller's Development. The
Purchase Price will not be adjusted regardless of the final acreage defined in the final survey
results.
Payment of Purchase Price: The full amount of the Purchase Price shall be payable in
hiai~ediatcly available funds at the closing.
Earnest Money and Independent Consideration. Within five business days after the date of
this Agreement, Purchaser. shall deliver to the Title Company (hereinafter defined),
Purchaser's check in the mount of Twenty Thousand and No/100 Dollars ($20,000.00)
(the "Earnest Money"). Any and all cash deposited with the Title Company as Earnest
Money shall be deposited and held in an interest bearing account for the benefit'of the party
entitled thereto pursuant to this Agreement. All Earnest Money delivered hereunder, and all
interest (if any) accrued thereon, shall hereinafter be sometimes collectively referred to as
the."Eamest Money". In the event that the Title Company does not receive timely deposit
and ultimate collection of the Earnest Money, Seller as its sole and .exclusive remedy for
such failure may tei'n~ate this Agreement, and no party shall thereafter have any further
(~bligation to the other hereunder
PURCHASER'S OBLIGATIONS
The obligations of Purchaser hereunder to Consunmmte the transactions conteiiiplated
hereby are subject to the satisfaction of each of the following conditions any of which may be
waived in whole or in part by Purchaser at or prior to the closing.
.1. Preliminar~ Title Report. Within ten (10) business days after the Effective Date, Seller,
at Seller's sole cost and expense, shall cause the Title Company (hereinafter defined) to issue an
owner's title policy commitment covering the Property (the "Commitment") accompanied by
copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property.
Purchaser shall give Seller written notice on or before the expiration of ten (10) business' days
after Purchaser receives the Commitment that the condition of title as set forth in the Coi,a,,;tment
'is or is not satisfactory. In the event Purchaser states the condition of title is not satisfactory,
Seller may, but shall not be obligated to, at Seller's option, - undertake to eliminate or modify all
unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller notifies
Purchaser that Seller is unable or unwilling to el'mate or modify any unacceptable matters
specified by Purchaser in Purchaser's written notice, Purchaser, at its option may elect to
terminate this Agreement at any time up to closing (in which event this Agreement shall be null
and void), in which case the Earnest Money will be refunded to Purchaser, grant Seller additional
time to cure (but in no event shall the closing date be extended, unless agreed to in writing by
Seller and Purchaser), or proceed to .closing. Should proceed to closing Purchaser shall be
deemed to have approved all matters not el'mated or modified.
2. Survey. Within ten (10) business days after the Effective Date, Seller, at Seller's sole
cost and expense, shall obtain a current survey of the Property, prepared by a duly licensed Texas
land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and Shall show
the location of all improvements, highways, streets, roads, raikoads, rivers, creeks, or other water
courses, fences, easements, and rights-of-way on or adjacent to the Property, if any, and shall
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contain the surveyor's certification that there are no encroachments on the Property and shall set
forth the nmber of total acres comprising thfi Property, together With a metes and bounds
description thereof. Following delivery of the Survey, the parties agree to amend this Agreement
to substitute the metes and bounds description of the Property set forth on the Survey for the
current description set forth herein if the current description is different ~om that set forth in the
Survey.' .
PurchaSer will have ten (10) business days after receipt of the Survey to review and approve
the Survey. In the event the Survey is unacceptable, then PurchaSer shall within the ten (10)-
business day period, give Seller written notice of this fact. Seller shall, at Seller's option,
promptly undertake to eliminate or modify the unacceptable portions of the Survey to the
reaSonable satisfaction of Purchaser. In the event Seller notifies Purchaser that Seller is unable or
unwfllip, g to eliminate or modify any unacceptable matters specified by Purchaser in Purchaser's
written notice, Purchaser, at its option may elect to terminate this Agreement at any time up to
closing (in which event this Agreement shall be null and void), in which case the Earnest Money
will be refunded to Purchaser, grant Seller additional tittle to cure (but in no event shall the
closing date be extended, unless agreed to in writing by Seller and Purchaser), or proceed to
. closing Should Purchaser .proceed to closing Purchaser shall be deemed to have approved all
matters not eliminated or modified.
3. Seller's Compliance. Seller shall have performed, observed, and complied with all of the
covenants, agreements, and conditions required by this Agreement to be performed, observed,
and complied with by Seller prior to or as oftbe closing.
REPRESENTATIONS AND WARRANTEES OF SELLER
Seller hereby represents and warrants to Purchaser as follows to the current actual
knowledge of Seller aS of the closing date which representations and warranties shall be deemed
made by'Seller to PurchaSer also as of the closing date:
1. There are no parties in possession of any portion of the property as lessees, tenants at
sufferance, trespassers or other parties.
Except for .the prior actions of Purchaser, there is no pending or threatened
conderanation or similar proceeding or aSsessment or suit, affecting title to the Property,
or any part thereof, nor to the current actual knowledge of Seller is any such proceeding
or aSsessment contemplated by any governmental authority.
3. Seller has comlJlied with all applicable laws, ordinances, regulations, statutes, roles and
restrictions relating to the Property, or any part thereof.
4. To the best of the Seller's current actual knowledge, there are no toxic or hazardous
waStes or materials on or within the Property. Such toxic or hazardous waStes or
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materials include, but are not limited to hazardous materials or wastes as they are
defined by the Resource Conservation and Recovery Act (RCRA), as mended, and the
Comprehensive 'Environmental Response Compensation and Liability Act (CEKCLA),
as amended.
Within ten days after the' Effective Date Seller shall provide to Purchaser all
enviromental and engineering reports, if any, that it may have care custody and control
of relating to the Property.
As used in this Agreement, the phrase "current actual knowledge" shall mean awareness of
Michael A. Casey, without investigation or inquiry and shall not mean or include imputed
knowledge, constructive knowledge, information that is contained in public records or inquiry
knowledge. The foregoing representations and warranties shall not sur~ve the closing..
CONDITION OF PROPERTY.
A. As Is. Except as is expressly provided for in this agreement, Purchaser is acquiring
the property "as' is" and with all faults and without warranties, representations, or guarantees!of
any kind, oral or written, expressed or hntJlied, concerning the property including without
limitation, 1) the value, condition, merchantability,, habitability, marketability, profitability,
suitability, or fitness for a particular use or purpose of the property; 2) the manner or quality of
construction of the improvement o~ materials incorporated into the property; and 3) the manner of
repair of the property.
B. No Representations. Except as is expressly provided for in this Agreement,
Purchaser hereby expressly acknowledges that Seller has not made and does not make any
representations or warranties as to the physical condition of the property, or any other matter
affecting or relating to the herein descn2>ed property (other than the Warranty Deed to be
delivered at closing and the representations and warranties and warranties contained in this
agreement which shall not survive closing) and that Purchaser has been afforded an adequate
opportunity to inspect and evaluate the condition of the property. Purchaser hereby expressly
acknowledges that no such representations or warranties have been made and purchaser agrees to
accept the herein described property "as is" and "where is" without warranty, express or implied,
as to the merchantability of the property or of its fitness for any particular use or purpose. No
representations, claims, statements, advertising or promotional activities made or conducted by
Seller or Seller's agents or representative shall be binding upon Seller unless the same are
expressly set forth in this Agreement or it's Addendum.
C. No Reliance. Except as expressly provided for in this Agreement, Purchaser has
not relied upon any statements or representations made by Seller and/or any agent of Seller in it'.s
decision to acquire the property.
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D. Sole Reliance. Notwithstanding the representations and warranties of Seller
contained in this Agreement, Purchaser further agrees that it will be relying solely on it's
inspections, or inspections made by it's agents in making it's decision to acquire· the property
pertaining to whether the prope~3t is physically suited for purchaserrs intended uses.
· E. Condition Precedent. Purchaser acknowledges that but for the acceptance of the
property "as is", Seller would not have executed this Agreement.
F. Survival.
survive closing.
The provisions of this "condition of property" paragraph shall
ENTRY
A. General Indemnity. In connection with any entry upon the property by
Purchaser or Purchaser's representatives, to .the fullest extent' permitted by applicable law,
Purchaser and Purchaser's representatives shall indemnify, ·protect, defend, and hold harmless
Seller and Seller's Partners, successors, assigns, heirs, legal representatives, employees, agents
and contractors (collectively, "Indemnities") for, from and against all liabilities, claims, damages,
losses, liens, causes of action, suits,· fines, penalties, costs, charges, judgments, orders,
enforcement actions of any kind, and any other costs and expenses in connection therewith
(including, but not limited to, court costs, attorneys fees, and expenses and costs of investigation,
of any nature, kind or description of any person or entity (collectively, the "Liabilities") directly or
indirectly arising out of, caused by or resulting from (in whole or in part)(1 the hewing,
inspecting and studies of the property conducted by Purchasei- or Purchaser's representatives (the
"Work"), or any part thereof, or 2) violation of any applicable environmental, health, or safety
law, role, or regulation applicable· to the property or the work, including property damage,
personal injury to Purchaser and/or Purchaser's representatives and any mechanic's or material
men~s liens arising out of or related m the ·work.
· B. Confidentiality. Purchaser and Purchaser's Representatives shall use their
best efforts to keep, and cause their respective employees, agents, contractors and subcontractors
to keep confidential all information, materials, records, data, drawings, specifications, engineering
and other documents related to the Work (the "Documents") and not disclose the existence of the
Documents or their contents to any person or entity, including but not I/m/ted to any federal,
state, or local governmental agency, without the express written consent of Seller.
Notwithstanding the forgoing Purchaser as a municipality must comply with the Texas Public
Information Act, Chapter 552 of the Texas Government Code (the "Act"). Any disclosure
required by the Act shall not be deemed a violation of this provision.
C. Liens. Purchaser and Purchaser's RepreSentatives shall save and keep the
Property free from all mechanics' and material men's liens, and all other liens or claims, legal or
equitable, arising out of the Work hereunder. In the event any lien or claim is filed by' anyone
claiming by, through, or under Purchaser or Purchaser's Representatives, Purchaser and
Purchaser's Representatives shall remove and discharge same within thirty (30) days of the filing
thereof.
D. Survival. The provisions of this Entry paragraph shah survive closing
or any termination of this Agreement.
PROVISIONS ]FOR WATER AND SANITARY SEWER FACILITIES
Seller is the owner and developer of the Development: The Property ~s depicted in Exh~?oit
"B" as Tracts E, K, and L. Tracts A, B, C, D, F, G, H, I, and J as depicted in Exhibit "B"are
hereinafter collectively called the "Sellers Remaining Undeveloped Property".
There is insufficient capacity in the City's water and sanitary sewer system to serve the
needs Created by the Seller's Rema'ming Undeveloped Property and the Property. Therefore, this
Agreement is conditioned upon the Seller's .obligations under this Article V, which shall survive
closing. The Seller shall design and construct certain sanitary sewer and water facilities as
provided for herein:
1. The Public Water and Sewer Improvements. The Seller shall design and construct the
following public sanitary sewer and water facilities (the "Public Water and Sewer
Improvements"):
a. At the sole cost and expense of the Seller a sanitary sewer lif~ station (the "Lift
Station".) shall be designed and constructed by Seller of sufficient capacity to meet
the needs of the Seller's Remaining Undeveloped Property and the Property in
accordance with the City's standards for construction of such facilities (the
"Capacity to Serve the Seller's Remaining Property and the Property"). The Lift
Station will be located on the Property at the location shown on "Exhibit C"
which is attached hereto and incorporated herein by -reference. Should the City
require that the Lift Station be oversized above the Capacity to Serve the Seller's
Remaining Undeveloped Property and the Property (the "Oversize Cost") the
Purchaser will be responsible for the OVersize Cost.
b. At the sole cost and expense of the Seller a sanitary sewer gravity line (the
"Gravity Line") shah be designed and constructed by Seller of sufficient Capacity
to SerVe the Seller's Remaining Undeveloped Property and the Property. The
Gravity Line will be located along Roark Branch on the Purchaser's Property at
the location shown on "Exhibit C". Should the City require that the Gravity Line
be oversized above the Capacity to SerVe the Seller's Remaining Undeveloped
Property and the Property the Purchaser will be reSpons~le for the Oversize Cost.
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At the sole cost and expense of the Seller a sanitary sewer force main (the "Force
Main") shall be designed and constructed by Seller of sufficient Capacity to Serve
the Seller's Remaining UndevelOped Property and the Property. The Force Main
will be located along Bonnie Brae extending from the Lif~ Station to the existing
gravity sewer line as. shown on Exh~it C. Should the City require that the Force
Main be oversized above the Capacity to Serve the Seller's Remaining
Undeveloped Property and the Property the purchaser will be respons~'ble for the
Oversize Cost.
d. Except for the Purchaser's ParticipatiOn of $32,000.°°, a 24-inch waterline (the
"Water Line") shall be designed and constructed at the sole cost and expense of
Seller in accordance with the City's standards for construction of such facilities.·
The Water Line will be located along Bonnie Brae extending from approximately
.US 377 to Vintage Blvd. as shown on "Exhibit D" attached.hereto and
incorporated herein by reference. Should the City require that the Water Line be
larger than the 24" the Purchaser will be responsible for the Oversize Cost.
The Construction Project. 'As stated above the Seller is respons~le for the design' and
construction of the Public Water and Sewer Improvements (the "Construction Project")
and the cost thereof (the "Construction Costs"). The Purchaser however will pay any
Oversize Costs, if any, as stipulated, herein. The Oversize Costs shall be paid to the
Seller's contractor in progress payments within thirty (30) days of the Purchaser's receipt
of an .invoice for same as .portions of the Construction Project are completed, minus 5%
retainage, with the retainage and the balance being paid upon final completiOn and
acceptance by the City of the Seller's Construction project ("Final Acceptance"), which
paymem schedule shall be provided in the Three-Way Agreement 'hereinafter described.
Separate invoices shall also· bo submitted to the Purchaser describing non-oversize
portions of the work that have been performed by the contractor on the Construction
Project through the date of such invoice which shall be reviewed by the Purchaser within
five (5) business days followhag receipt thereof. If the representatives of the Purchaser
have any objections to the progress payment being requested in such invoice on the
Construction Project, they shall co,~ntmicate such objections, in writing, to the Seller
within such five (5) business day period, and the parties shall seek to resolve any questions
or issues relative to such invoice promptly. As tO any invoice submitted by the Seller (or
its contractor) and for which no conuhent has been received from the Purchaser within
five (5) business days following submission thereof, such invoice shall be deemed to be
approved by the Purchaser in all respects. If feas~le and if requested by Seller, items in
any invoice to which the Purchaser has raised questions Shall be segregated from all
remaining items in such invoice, and the approved items shall be submitted for payment
out of the escrow hereinat~er descn'bed. A representative of the Purchaser shall deliver all
approved invoices to the Project Engineer, who is hereby authorized to submit such
approved invoices for payment in accordance with the Escrow Agreement hereinafter
defined. The Oversize Costs shall bear no interest unless the Purchaser has not paid
Oversize Costs when due, in which case it shall bear interest from that date until paid at
the rate of 6% per annum. The Purchaser has available budgeted funds sufficient to pay
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all of the Oversize Costs. The Construction Costs and Oversize Costs include design and
engineering fees for the Public Water and Sewer Improvements. The Construction Project
shall be completed within 12 months after the Effective Date of this Agreement.
3. Design of Public Water and Sewer ImproVements/Approval of Plans and Specifications'.
The Public Water and Sewer ImproVements shall be designed and constructed in
accordance with the City's standard specifications for public works construction, which
are incorporated herein by reference.' Prior to awarding the construction contract for the
ConStruction Project the Seller shall submit to the Purchaser a complete set of
conStruction plans and specifications for the Construction Project for review and approval
by the Purchaser. Said Plans and Specifications.shall be completed and approved .by the
Purchaser 30 days prior to closing. The construction contract will not be awarded until
the Purchaser has given its written approval. The Purchaser will not unreasonably
~vithhold or delay its consent or approvals to the plans and specifications or the
construction contract. ConStruction for the Construction Project shall not coimnence until'
the Seller. and its contractor enter into the City's standard three-way public works contract
between the City and the Seller, and its contractor (the "Three-Way Agreement") and a
perfOrmance bond, payment bond and requked insurance certificates are delivered to the
City in the substance and form required by the City..
Construction Schedule/Water and Sewer Cost Estimate. A construction schedule and cost
estimate for the construction of the Construction Project shall be submitted and approved
by the Purchaser 30 days prior to the closing date herein.
Escrow Agreement. To ensure completion of the Construction Project, at the closing of
this Agreemeni, such portion of the cash Purchase Price deemed adequate to ensure
completion of the Construction Project and Purchaser's. Participation as provided in
Article VII Section D herein will be deposited in Escrow with Alamo Title Insurance
Company, Arlington, Texas (the "Escrow Agent"), which Escrow shall thereafter be
disbursed in accordance with an agreement (the "Escrow Agreement"), which shall be in a
form approved by the City Attorney, orhis designee. The Escrow Agreement shall include
the following provisions:
If Seller breaches the Escrow Agreement and fails to cure the breach within fifteen
(15) days after written notice of such breach, then the Purchaser, or its designee,
shall have the fight to use the remaining funds in escrow to complete construction
of Construction Project.
Seller or its agent shall provide invoices to the Escrow Agent, which has been
approved (or deemed approved) by the Purchaser relative to the portions of the
Construction Project that have been completed, and the Escrow Agent shall be
authorized to pay each such invoice hmx~ediately out of the funds on deposit in
such escrow.
Seller shall pay all costs for the Construction Project specified herein, except for
· the $32,000~°° City participation~ and the Oversize Costs, notwithstanding that the
escrow might be .depleted prior to the completion of the Construction Project.
Additionally~ if the Purchaser cures a breach of the Escrow Agreement and ff there
are not sufficient funds in escrow to complete the construction of Construction
Project,· then Seller shall pay tO the Purchaser, within ten (10) days after receipt of
demand for payment, the difference between the cost to complete construction of
the Construction Project and the remaining'funds in escrow.
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When the Construction Project is completed and the Purchaser has issued Final
Acceptance, if there are still funds in such escrow, the Escrow Agreement shall
provide that all such funds shall be hi~nediately released to the Seller and the
Escrow Agreement shall terafinate.
Diligent Pursuit of Construction of Water and Sewer Facilities. The Seller shall
diligently pursue the design and construction of the Construction Project and complete
it within 12.months after the Effective Date herein.
7. Prior Easement Acquisition. This Agreement makes the need for constmction of a
planned Roark Branch sanitary sewer line that was to extend fi.om Bonnie Brae to US
377 that would serve the Development unnecessary at this time. The Purchaser shall
reimburse the Seller up to $40,000.00 for the cost incurred by Seller for the acquisition
cost of easements for that sewer line. Seller shall provide sufficient evidence of exact
cost of the acquisition of easements for this sewer line, and submit it to the Purchaser for
reimbursement. Said reimbursement is in addition to the Purchase Price defined herein
and to be included in the settlement costs of this transaction. Engineering services for
the Roark Branch Sanitary Sewer project are not a part of this agreement and shall be
administered separately by the City of Denton Utility department.
8. Notices. Any notice, demand or other con'ananicatlon required or permitted to be
delivered hereunder (other than invoices to be delivered as hereinafter described) shall
be deemed received when sent by United States mail, postage pre-paid, certified mail,
return receipt requested, addressed to each respective party, or sent via facsimile to the
fax number set forth for each party, as follows:
If to the City_:
With a copy to:
The City of Denton, Texas
215 E. McKinney
Denton, Texas 76201
Attention: Mr. Howard Martin,
Assistant City Manager
Fax No.: (940) 349-8596
Edwin Snyder, Esq:
Assistant City Attorney
City of Denton, Texas
215 E. McKinney
Denton, Texas 76201
Fax No.: (940) 382-8596
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If tO the Seller:
With copies to:
Denton CJW Partners Ltd.
C/O M/chael A. Casey
1170 Corporate Drive West
Suite #101
Arlington, TX 76006-6813
Fax No.: (432) 686-1501
Dan A. White
Shannon, Gracey, Ratliff &
Miller, LLP
1000 Ballpark Way,
· Suite 300
Arlington, Texas
Fax No. (817) 795-4864
All invoices or notices or other conunanications applicable to the invoices specified in Article
V herein shall be delivered to the Purchaser and the Seller at the address set forth for each
party as follows:
Ifto the City:
Mr. Cn'cg Blackstone
City of Denton Inspection Group
601 East Hickory Street
Suite B
Denton, Texas 76201
Fax No.: (940) 349-8951
If to the Seller:
With copies to:
Denton CJW Partners Ltd.
C/O Michael A. Casey
t 170 Corporate Drive West
Suite #101
Arlington, TX 76006-6813
Any of the parties hereto may change their respective notice addresses for all communications
and invoices by a notice delivered in accordance with the terms and conditions of this Article
V, Section 8 herein.
CLOSING
The closing shall be held at the office of Alamo Title InsUrance Company, Arlington, Texas
on or before January 31, 2004, or at such title company, time, date, and place as Seller and
Purchaser may mutually agree upon (which date is herein referred to as the "closing date").
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coNDITIONS PRECEDENT. As conditions precedent to the obligations of Seller
and/or Purchaser to dose, the following shall occur contemporaneously with dosing:
· Seller and Purchaser shall have mutually agreed to the plans and specifications for
the Construction project, the construction contracts relating to the Construction Project, the
Construction Costs, the Oversize Costs, the Oversize Agreement, the Three-Way Agreement
(including performance and payment bonds), the Construction Schedule/Construction Project
Cost Estimate, the Escrow Agreement and all other substantive and ancillary~docments and
agreement contemplated Under this Agreement.
· Purchaser shall furnish to Seller all pertinent information that Seller may need
relating to the Property and Purchaser's intended uses thereof, in order to enable Seller to cause
the Construction Project to be designed and constructed. Purchaser and Seller agree that the
terms of the City's standard Three-Way Agreement that includes a Development Contract,
Performance Bond, and Payment Bond will be executed by Seller at dosing, and shall govern' the
responsibilities, obligations, and liabilities of all parties to this transaction with respect to the
Constmcti0n Project. The Three-Way Agreement is attached and made a part hereof as "Exhibit
E". This disclaimer shall survive dosing.
Seller has entered into that certain Oil and Gas Lease effective March 15, 2002
with Lynx Oil Co. Inc. that affects the Property (the "Oil and Gas Lease"). Seller shall cause the
Oil and Gas Lease to be amended prior to closing to prohibit lessee's use oftbe surface of the
Property. Access to any existing gas well sites on Seller's remaining property as well as any
future gas well Sites developed on Sellers remaining property shall be to and from the Seller's
Remaining Property.
CLOSING REQUIREMENTS
1. Seller's Keqhirements. At the dosing Seller shall:
A. Deliver to the Purchaser a duly executed and acknowledged special warranty deed
for the Purchased Property and a duly executed and acknowledged donation special
warranty deed for the Donation Property for park purposes, conveying good and
infeasible title in fee simple to all Of the Property, free and clear of any and all liens,
leases, encumbrances, conditions, assessments, and restrictions, ·except for the
following:
1. General real estate taxes for the year of dosing and
subsequent years not yet due and payable; and
2. Any exceptions approved, or deemed approved by
Purchaser pursuant to Purchaser's Obligations (Article III,
1!
above) hereofi and
3. Any excePtions approved by Purchaser in writing.
B. Deliver to Purchaser a Texas owner's Policy of Title Insurance at Seller,s sole
expense, issued by Alamo Title, Arlington; Texas, (the '!Title Company"), m' such title
company as Seller and Purchaser may mutually agree upon, in Purchaser's ·favor in the
full amount of the purchase 'price, insuring fee simple title for the Purchaser to the
Property subject only to those title exceptions listed in Article VII herein, such other
exceptions as may be approved or deemed approved by Purchaser,. and the standard
printed exceptions contained in the usual form of Texas Owner's Policy of Title
Insurance, provided, however:
1. The boundary and survey exceptions shall be mended,
except for "shortages in area" if required by Purchaser and if
so required, the costs associated with it shall be borne by
Purchaser;
2. The exception as to restrictive covenants shall be endorsed
'2q0ne of Record";
3. The exception for taxes shall be linaited to the year of
closing and shall be endorsed "Not Yet Due and Payable";
and
4. The exception as to liens encumbering the Property shall
be endorsed ''None of Record".
C. Deliver to Purchaser possession of the Property.
D. Escrow Agreement. Seller shall pay for all of the design, construction costs, and
offsite easements required for the Construction Project described in Article V
herein, except for the fixed sum of Thirty Two Thousand Dollars .and No Cents
· ($32,000.°°) which is the "Purchaser's Participation". To ensure completion of the
Seller's Construction Project as outlined in Article V herein, at dosing the Seller
shall deposit the full amount of the estimated construction costs (other than the
Purchaser's Share for over sizing if applicable) from the proceeds of this
transaction in escrow with the "EsCrow Agent". Purchaser will provide funds for
Purchaser's Participation at dosing which are in addition to the purchase price of
the property described in Article 1I herein. Purchaser's Participation will be paid
at closing in i,~ediately available funds and be included in the esCrow account
deposit. Which escrow shall thereatier be disbursed in accordance with an
agreement (the '~Escrow Agreement"), which shall be in a form approved by the
City Attorney, or his designee. The EsCrow Agreement shall include the
provisions as outlined in Article V herein. The provisions of this paragraph and
the Escrow Agreement shall survive closing.
2. Purchaser's Requirements. Purchaser shall pay the Purchase Price, with the Earnest
Money being applied thereto, Purchaser's Partioipati0n~ and reimbursement for the. Roark Branch
easement(s) approved by Purchaser, at closing in h~unediately available funds. ·
3. Closing Costs. Taxes will be prorated as of the date' of Closing in accordance with
Section 26.11 of the Texas Tax Code. In this regard, the Title Company will be responsible for
paying directly to the applicable taxing units the Seller's tax liability for the year of closing out of
the Purchase Price. All other customary and standard costs and expenses of closing in
consuxmt~ating the sale and purchase of the Property not specifically allocated herein shall be paid
equally by the Purchaser and Seller herein, except each party will be resp0ns~le for its own
attorne3, fees. At closing Seller and Purchaser shall cooperate in segregating the Property fi.om the
tax parcels which also include portions of Seller's Remaining Undeveloped Property.
4. Purchaser hereby represents and warrants that the Donated Property will be used
for no purposes other than "public purposes", as required by Section 170(c)(1) of the Internal
Revenue Code of 1986, as amended (the "Code").
Seller and Purchaser hereby agree to execute, .acknowledge and deliver such
additional documents, and take such further actions, as are reasonably necessary in order to
effectuate the intentions and agreements expressed in this Agreement; including, but not limited
to, an IRS Form 8283 '2qoncash Charitable .Contributions" and a contemporaneous written
acknowledgment of the contribution oftbe Donated Property, as required by Section 170(0(8) of
the Code and the regulations promulgated there under.
REAL ESTATE COMMISSION
Seller and Purchaser represent and warrant to each other that neither has retained a broker
for this transaction and that there are no broker or real estate fees due as a result of the
consmm~ation of this Agreement. ·
BREACH BY SELLER
If Seller fails to fully and timely perform any of its obligations under this Agreement or
fails to consummate the sale and donation of the Property for any reason, except Purchaser's
default, Purchaser may enforce specific performance of this Agreement or a refund of the Earnest
Money, as Purchaser's sole remedies.
13
BREACH BY PURCHASER
In the event Buyer fails to consm,,,uate the purchase of the Property, if Seller is not in
default under this Contract, Seller will have the right to enforce specific, performance of this
Agreement or retain the Earnest Money, as liquidated damages? as Seller's sole remedies.
MISCELLANEOUS
1. Assignment of Agreement. Purchaser mxy not assign this Agreement without the
express written consent of Seller.
2. Survival of Covenants. Except as otherwise provided herein, any of the representations,
warranties, covenants, and agreements of the parties, as well as any rights and benefits of the
parties, pertaining to a period of time following the closing of the transactions contemplated
hereby shall survive the closing and shall not be merged therein.
3. Purchaser will be responsible for the sole cost and expense of any per/meter paving
required by the City of Denton Development Code for the development of Purchasers Property.
4. Law and Venue. This Agreement shall be construed under and in accordance with the
laws of the State of Texas, and all obligations of the parties created hereunder are performable in '
Denton County, Texas. Exclusive venue for the enforcement or interpretation of this Agreement
shall be a court of competent jurisdiction in Denton County, Texas.
· 5. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives, successors and
assigns where permitted by this Agreement.
6. Legal Construction. In case any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said
invalidity, illegality, or unenforceability shall not ·affect any other provision .hereof, and this
Agreement shall be construed as if the invalid, .illegal, or unenforceable provision had never been
contained herein.
7. Prior Agreements Superseded: This Agreement'constitutes the sole and only agreement
of the parties and supersedes any prior understandings or written or oral agreements between the
parties respecting the within subject matter, except for any agreements in regard to the Roark
Branch Sewer Line.
8. Time of Essence. Time is of the essence in this Agreement.
14
9. Gender. Words of any gender used in this Agreement shall be held and construed to
include any other gender, and words in the singular number shall be held tO include the plural, and
vice versa, unless the context requires otherwise.
10. Memorandum of Contract. Upon request of either party, both parties shall promptly
execute a memorandum of this Agreement suitable for filing of record.
11. Compliance. In accordance with the ~-equirements of the Texas Real Estate License
Act, Purchaser is hereby advised that it should be furnished with or obtains a policy of title
insurance or Purchaser.should have the abstract covering the Property examined by an attorney of
Purchaser's own selection.
12. Effective Date. The term "Effective Date" means the latter of the dates on which this
Agreement is signed by either Seller or Purchaser, as indicated by their signature below. If the
· last party to execute this Agreement fails to complete the date of execution below that party's
signature, the date the Title Company acknowledges receipt ora copy of this fully executed
contract is the Effective Date.
IN WITNESS WHEREOF} Seller and Purchaser have executed this contract as follows:
SELLER:
Denton CJW Partners Ltd.
Title Manager, Denton-CJW
Management, L.L.C.
CITY OF DENTON, TEXAS
By:
Michael A. C0nduff- J//)
City Manager
215 E. McKinney
Denton, Texas.76201
15
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
HERBERT L. PROUTY, CITY ATTORNEY
'TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT
The Title comPany acknowledges receipt of the fully executed Contract on
__, 2004.
day of
TITLE .COMPANY:
Nanle:
By:
Printed Name:
Title:
Alamo Title Company
Arlington, Texas
16
SrJ~f 1'=200'
88.56 +/- ACRES
PURCHASE PROPERTY
VINTAGE' BLVD '
O0
34.89 +/- ACRES
DONATED PROPERTY
EXHIBIT C
Rcviscd November 25~h~ 2003
4.
5.
6.
10.
EXHIBIT E
DEVELOPMENT CONTRACT/BOND'
INSTRUCTIONS
11.
All construction ofpubl~c improvements (i.e., streets, sidewalk, utilitieS, drainage) reqmres development
contracts to be executed prior to construction of those improvements and/or filing a plat.
A performance bond is required in all cases except whe~ the total amount of the public improvements is
less than $~5,000. When improvements wiil be le~s than $15,000, an escrow agreement may be
substituted for the performance bond. When public improvements will exceed $25,000, a payment bond
is also reqUired.
An affidavit of paymant is required on all public improvement construction projects that are no[ covered
by a Payment Bond prior to completion and acceptance of/he improvements.
A ~opy of the contractors bid or an engineer's estimate must be attached to the bond or escrow to
document that the bond or escrow is for a sufficient amount.
Co-obligee bonds are not acceptable. The bond forms provided bind the principal and the surety to the
City of Denton only. Do not attach co-obligee riders.
Please date the documents prior to submitting the documents to the City2 Bonds or escrows are to
be dated on the same day or later than the development contract. Also, in the case of Performance or
Payment Bonds, the Power of Attorney is to be dated the same day as the bonds..The simplest thing to
do is to use the same date in all blanks.
Bonds are to be issued by a treasury listed security licensed to do business in the State of Texas. The
amount of the bonds must be within the underwriting lirrfits stated in the treasury list for that security.
Three-Way development contracts apply when the owner and contractor are separate entities. A Two-
Way development contract is used when the owner is also the ge'neral contractor.
The development contract, and bond or escrow must be filled out in triplicate. Ali copies of each
document must have original signatures. You will want to copy the documents prior to filling them out.
Do not make copies after they are filled out and signed.
Submit a copy of the contractor's insurance certificate naming the City of Denton as Certificate
Holder and listing the City of Denton as an additional insured. The wording in the cancellation
section of the certificate must sia~e that said policy shall not be cancelled~ non-renewed~ or. materially
changed without 30 days advance written notice being given to the Owner~ except when the policy
is being cancelled for non-payment of premium~ in which case 10 days advance written notice is
· required. "Endeavoring" to mail written notice is not acceptable. The statement that "failure to mail
such notice shall pose no obligation or liability upon the company, its agents, or representative" i~ not to
be included on the certificate. Coverage requirements are listed on the last page of this packet. If
insurance documents are sent separatel¥~ they must have the TRAKIT ID on the certificate.
Submit filled out documents (and four sets of construction plans) to Kevin Roberts, Development
Review Engineer, in the Engineering Department of the City of Denton. The address is 221 'N. Elm St.,
Denton, TX 76201, phone (940) 349-8350. Once the documents have been processed through the City
of Denton Legal Department, a pre-construction meeting may be scheduled.
Effective December I~, 2003 '
THE STATE OF TEXAS §
COUNTY OF DENTON §
PROJECT NO.
CONTRAC~ TYPE
DEVELOPMENT CONTRACT
: WHEREAs,.
Hereinafter referred to as "Owner", whose business address is
is the oWner of real property located in the corporate limits of the City of Denton, or its extraterdto'dal
jurisdiction; and.
WHEREAS, Owner wishes tO develOP the prOperty and such development must be
performed in accordance with the applicable ordinances of the City of Denton, hereafter referred to as.
"City"; and
WI-LEREAS, as a condition to the beginning of construction of said development, a
development contract in accordance with Section 212:071 of the Local Government Code is required
to ensure that all streets, water and sewer lines, drainage facilities and other improvements which are
to be dedicated to the public, hereafter referred to as "Improvements", are constructed in accordance
with the City's specifications, standards and ordinances; and [select applicable provision as follows]
WHEREAS, the Owner elects to construct the Improvements without contracting wiffi
another party as prhue contractor, in which case the provisions of this contract which refer to "Owner"
or "Contractor" shall mean the Owner as named above; or
Page 1 of 8
DEVELOPMENT CONTRACT
WHEREAS,'the Owner elects to make such h~pmvements hereinafter set forth by
contracting with ,
whose b(~siness address is ,
hereafter referred to as "Contractor', and
WHEREAS, Owner and ContraCtor recognize that the City has an interest in ensuring that the
hU'provements subject to this agreement, which will, upon completion and acceptance by the City;
become public property, are properly constructed in accordance with the City's specifications and that
payment is made therefor;
WITNESSETH
AS to the improvements to be dedicated to the public, as specified in Exhibit A, attached
hereto and incorporated by reference, to be installed and constructed at
the Owner, Contractor and City, in'consideration of their mutual promises and covenants contained
herein, agree as foilows:'
1. Covenants of Contractor.: Conh-actor agrees as follows:.
(a) Specifications. To construct and install the Improvements in
accordance with the procedures, specifications and standards contained in
Division II and HI of the City's Standard Specifications for Public Works
Construction, North Central Texas, as amended, and all addendum's thereto
and all other regulations, ordinances or specifications applicable to such
Improvements, such specifications, standards, regulations and ordinances
Page 2 of 8
(_
· DEVELOPMENT CONTRACT
being expressly incorporated h.'erein by reference and being made a part of the
agreement as though written herein.
Authority of City Engineer~ Inspectlons~ Tests and Orders Owner and
Contractors Warranty. That all work on the Improvements shall be
performed in a good and Workmanlike manner and to the satisfaction of the
City Engineer or his representative. The City Engineer shall decide 'all
· questions, which atise as to the quality and acceptability of materials
furnished, work performed, and the interpretation of specifications. Guarantee
for a period of two years bom the date of final acceptance all work as called
for in the speqification and contract documents to be free from defects in
materials and workmanship. Owner, contractor and their surety as the case
may be shall remedy any such defe~ts in materials and workmanship and pay
for any damage to the work or to other ~vork guarantee for a period of two
years from the date of frnal acceptance all work as called for in the
specification and contract doctnnents to be free bom defects in materials
and/or facilities which shall appear within two years bom the date of final
completion and acceptance by' the City.
The Contractor st/all fnmish the City Engineer or his representative with every
reasonable facility for ascertaining whether or not the work performed was in
accordance with the specifications applicable thereto. Any work done or
materials used without suitable inspection by the' City may be ordered
removed and replaced at Contractor's expense. The Owner, the Contractor
and their surety on the performance bond shall and do hereby warrant and
Page 3 of 8
DEVELOPMENT CONTRACT
(c)
guarantee fro' a period of two years from the date of final acceptance all work
· as called for in the specification and contract documents to be free from
defects in materials and workmanship. OWner Contractor and their surety a~
the ·case may be shall remedy any such defects in materials and workmanship
and pay·for any damage to the work or to other work or facilities, which shall
appear within two years from the date of final acceptance by the City.
The City Engineer or his designee shall perform periodic inspections of the
work and shall perform a final inspection prior to the work being turned over
to the City and an inspection 30 days prior to the expiration of two years from
the date of final completion and acceptance of the work by the City. Upon
failttre of the Contractor to allow for inspection, to test mat6rials furnished, to
satisfactorily repair, remove or replade,:if so.directed, rejected, unauthorized or
kondemned work or materials, or to follow any other request or order of the
City Engineer or his representative, the City Engineer shall notify the Owner
of kuch failure and may suspend ingpections of such work until such failure is
remedied, If such failure is not remedied to the satisfaction of the City
Engineer, the City shall have no obligation under this agreement to approve or
accept the improvements.
Insurance TO provide for insurance in accordance with th~ insurance
· reqnirements applicable to contractors as pi:ovided for in Item 1.26 of Division
I of the Standard Specifications for Public Works Construction, NoAh Central
Texas, as amended, the provisions of which are expressly incorporated herein
Page 4 of 8
DEVELOPMENT CONTRACT
by reference; provided,.bowev, er, for purPose of this provision only, "Owner",
as used therein, shall mean {he city of Denton.
(d) Means and Methods of Construction.
That the means and
methods of construction shall'be such as Contractor may choose; subject,
however, to the City's right to reject any Improvements for which the means
or method of construction does not, in the judgment oft he City Engineer,
assure that the Improvements were constructed in accordance with City
specifications.
(e) Books and RecOrds. All of the Owner's and the Contractor's books and.
other records related to the project shall be available for inspection by the
municipality.
Mutual Covenants of Owner and Contractor, Owner and Contractor
mutually agree as follows:
(a)
Performance Bonds. That if building permits are to be issued for the
development prior to completion and acceptance of ail improvements that are
to be dedicated to the public, the following security requirements shall apply:
(i) The Owner or Developer shall provide a performance bond in an amount
not less than the amount necessary to complete the improvements, as
determined by the City Engineer, shall be submitted guaranteeing the full
and faithful completion of the Improvements meeting the specifications of
the City, shall be in favor of the City, and shall be executed by a surety
company authorized to do business in the State of Texas in accordance
with Chapter 2253 of the Texas Government Code. The Owner and his
Contractor shall assign any and all rights in the bond to the City at the time
the improvements are transferred to and accepted by the City.
(ii)
If the cost of completing the improvements at the time building
permits are issued is an amotmt of $15,000 or less, as determined by
the City Engineer, cash money in the amount necessary to complete
Page 5 of 8
DEVELOPMENT CONTRACT
(b)
(c)
the improvements, as determined by the City Engineer, may be
deposited with a bank'or escrow agent pursuant to an escrow
agreement ensuring completion of the improvements without
exception, the City's escrow agreement form shall be used and the
· escrow agreement shall remain in effect for 2'years from the date of
· final completion and acceptance of the work by the City.
Retainage: Final Pavements. [This provision (c) applies only where the.
Owner and Contractor are not the same party.] That as security for the faithful
completion of the Improvements, Contractor and Owner agrees that the Owner
shall retain ten (10) pement of the total dollar amount of the contract price '
until after fmal approval or acceptance of the improvements by the City. The
Owner shal} thereafier pay the Contractor the retainage, only a~er Contractor
has furnished to the Owner satisfactory evidence including Owners affidavit
that all indebtedness has been paid, that all indebtedness connected With the
work and all sums of money due for labor, materials, apparatus, fixtures or
machinery furnished for and used in the performance of the work have been
paid or otherwise satisfied.
Encumbrances. That upon completion and approval or acceptance of
the Improvements of the City, the improvements shall become the property of
the City free and clear of all liens, claims, charges or encumbrances of any
kind. If, ai'ce~' acceptance of the Improvements, any claimi lien, charge or
enctnnbrance is made, or found to exist, against the Improvements, or land
dedicated to the City, to which they are affLxed, the Owner and Contractor
shall upon notice by the City promptly cause such claim lien, charge Or
encumbrance to be satisfied and released or promptly post a bond with the
Page 6 of 8
DEVELOPMENT CONTRACT
City in the amount of such claim, lien, charge or encumbrance, in favor of the
City, to ensure payment of such claim, lien, charge or encumbrance.
(d) Indemnification. The Owner shall and hereby does indemnify, defend
and save harmless, the City, its officers, agents and employees from all suits,
actions or claims of any character, name and description brought for or on
account of any injude~ or damages received as sustained.by any person,
persons or property on account of the operations of the Contractor, his agents,
employees or subcontractors; or on account 0fany negligent act of fanlt of the
Contractor, his agents, employees or subcontractors in construction of the
improvements; and shall pay any judgment, with 6osts, which may be
obtained against the City growing out of such injury or damage.
(e) Agreement Controlling. That the provision of. this agreement shall
control 0vei- any conflicting provision'of any contract between the Owner and
Contractor as to the construction of the Improvement~.
Covenants of City of Denton. That, upon proper completion of the
Improvements in accordance with this agreement, the City agrees to accept the
Improvements.
Venue and Governing Law. The parties herein agree that this contract shall be
enforceable in Denton County, Texas, and if legal action is necessary in connection
therewith, exclusive venue shall lie in Denton County, Texas. The terms and
provisions of this contract shall be construed in accordance with the laws and court
decisions of the State of Texas.
Page 7 of 8
DEVELOPMENT CONTRACT
Successor and Assigns. This comract shall be binding upon and inure to the
benefit of the panics hereto, their respective successors and assigns.
Executed in triplicate this,
day of ,20
OWNER
BY:
TITLE:
ADDRESS:
CONTRACTOR
BY:
TITLE:
ADDRESS:
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
CITY OF DENTON, TEXAS
BY:
CITY MANAGER
Page 8 of 8
Effective December I~, 2003
PROJECT NO.
CONTRACT TYPE
THE STATE OF TEXAS
COUNTY OF DENTON
That
PERFORMANCE BOND
of
KNOW ALL MEN BY THBSE PRESENTS:
County, TexaS, hereinafter called Principal and
a corPoration organ/zed under the laws of the State of and authorized to do
business in the State of Texas, hereinafter called "Snrety", are held and firmly bound unto the City of
Denton, Texas, a Municipal Corporation, in Denton County, Texas, hereinafter called "City'.' in the
penal sum of ($ ) dollars, lawful money
of the Un/ted S~ates, for the payment of which sum well.and truly tO be made we bind ourselves, our
heirs, executors, administrators, and successors, jointly and severally, and firmly by these presents:
THE Condition of this Obligation is such that:
WHEREAS, the Principal entered into a certain contract with Owner, dated the
day of ,20 , in the proper performance of
which the City of Denton, Texas, has an interest, a copy of which is hereto attached and made a part
hereof, for the construction of.'
Page I of 3
PEILFOP,.MANCE BOND
NOW, THEREFORE, if the Principal shall well, truly, and faithfully cause to be performed
and fulfilled all of the undertakings, covenants, terms, conditions, and agreements of said Contract in
accordance with the Plans, Specifications, and Contract Doctunents during the original term thereof,
arid any extension thereof which may be granted, with or Without notice to the suretyl and during the
life of any guaranty required under the Contract, which is incorporated, as if Written word for word
herein, and'shall also well and truly cause to be performed and fulfilled all the covenants, terms and
conditions and agreements of any and all author/zed modifications of said Contract that may hereafter
)e made including, without limitation, to remedy and pay for any defects in material' and
worlonanship or damage to other work or facilities which shall appear within two ,/ears from the date
of fmai completion notice of which modifications to the surety being hereby waived; then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, furtherl that if any legal action be filed on th/s bond, venue shall lie in Denton
.County.
AND, that said Surety, for value received, hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the con,'act, orto tt~e work performed
thereunder, or the Plans, Specifications, Drawings, etc., accompanying the same shall in anywise
affect its obligation on this bond, and it does hereby waive notice of any such Change, extension of
time, alteration or addition to the ten-ns of the Contract, or to the work to be performed thereunder.
Page 2 of 3
PERFORMANCE BOND
IN WITNESS WHEREOF, this instrument is executed in triplicate, each one of which shall
be deemed an original, this the day of ,20
pRINcIPAL SURETY
BY: BY:
ATTORNEY-IN-FACT
ATTEST:
SECRETARY
NOTE:
POWER OF ATTORNEY OF SURETY MUST BE ATTACHED. DATE OF
BOND MUST NOT BE PRIOR TO DATE OF CONTRACT DATE OF
POWER OF ATTORNEY. CERTIFICATION MUST NOT BE PRIOR TO
DATE OF CONTRACTOR BOND.
Page 3 of 3
~ffecfive December I', 2003
PAYMENT BOND
THE STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS:
of the City of
County of , and the State of
as principal, and
PROJECT NO.
CONTRACT TYPE
That
atithorized under the laws of the State of Texas to act as surety on bonds for principa!s, are held
and firmly bound unto The City of Denton, OWNER, in the penal sum of
dollars ($ · ) for the payment whereof, the
said Principal and Surety bind themselves and their heirs, administrators, executors, successors
and assigns, jointly and severally, by these presents:
WHEREAS, the Principal has entered into.a certain written contract with the Owner,
dated the day of 20 __
to which contract is hereby referred to and made a part hereo£as fully and to the same extent as
if copied at length herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that
· i'f the said Principal shall pay all claimants supplying labor and material to him or a subcontractor
PAYMENT BOND
in the prosecution of the work provided for in Said contract then this obligation shall be void,
other~vise to remain in fi. all force and effect;
PROViDED~ HOWEVER, that this bond is executed pursuant to the provisions of the
Texas Government Code, Chapter 2253 (Vernon, a~ currently amended), and all liabilities on this
bond shall be determined in accordance with said provisions to the same extent as if they were
copied at length herein.
Surety, for value received, stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the contract, or to the work performed thereunder, or the
plans, specifications, or drawings accompanying the same, shall in any way affect its obligation
on this bond, and it does hereby waive notice of any such change, extension of time, alteration or
addition to tt/e terms of the contract, or to the work to be' performed thereunder.
Page 2 of 3
PAYMENT BOND
IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this
instrument this day of 20
PRiNCIPAL SURETY
BY: BY:
TITLE: TITLE:
ADDRESS: ADDRESS:
(SEAL) (SEAL)
The name and address of the Resident Agent of Surety is:
Page 3 of 3
Effc~tlvc Dcccmbcr I~, 2003
PROJECT NO.
cONTRACT TYPE
THE STATE OF TEXAS
ESCROW AGREEMENT
IN LIEU OF PERFORMANCE BOND
Development Contract
(Improvements of $15,000 or Less)
CITY OF DENTON §
WHEtLEAS, hereafter referred to as
O , has undertaken to develop property within the City of Denton, Texas, Or it's
extraterritorial jurisdiction; and
WHEREAS, Owner has, pursuant to the ordinances of the City of Denton, Texas,
hereafter referred tO as "City", executed a development contract to insure that any and all streets,
water and sewer lines, drainage facilities or other improvements which are to be dedicated to the
public, hereafter referred to as "Improvements", are constructed and completed in accordance
with the specifications, standards and ordinances of the City; and
WHEREAS, Owner wishes to receive building permits for said property prior to the
completion and approval or acceptance of the Improvements by the City; and
WHEREAS, in order to receive such building permits Owner may, where the cost of the
Improvements is $15,000 or less, instead of p0sting a performance bond, escrow cash money
with a bank as escrow agent in an amount not less than the amount necessary to insure
Completion of said Improvements, and to fi.~lly protect the City against defects in materials and
workmanship;
ESCROW AGREEMENT IN LIEU OF PERFORMANCE BOND .
NOW, THEREFORE, oWNER, City and
follows:
located at
, hereafter called "Escrow Agent", agree as
Amount.
Owner, as a condition to receiving building permits for property
shall deposit the sum of
($ ),'in cash money, with Escrow Agent, said sum being in an
amount~ as.determined by the City, necessary to insure completion of all improvements which
are to be dedicated to the public, and to fully protect the City against defects in materials and
worh-nanship; said improvements being more particularly described in that certain development
contract dated the day of ,20 , between
the City, Owner and Owner's Contractor, to which reference is made herein.
2. Notice of Deposit. No building permits shall be issued by City for the property
herein described until Escrow Agent notifies City, in writing, that cash money, in the amount
specified herein, has been depo§ited in an escrow account with Escrow Agent.
3. Release Of Funds. Escrow Agent shall not release any or all of the escrowed
funds until the City Engineer authorizes the Escrow Agent, in writing, to release such funds' as
provided'for herein as follows:
(a) the City Engineer shall authorize the release of all the escrowed funds when all
improvements are completed and approved in accordance with provisions of the
development contract and after 2 years has expired from the date of final
completion and acceptance of the work by the City and no defects in materials
Page 2 of 5
ESCROW AGREEMENT 1N LIEU OF PERFORMANCE BOND
and workmanship have been discovered; the determination, of which shail be
made by the City Engineer whose judgment shall be binding on all parties hereto.
(b) The City Enginee~ shall infunn the escrow agent, in writing, with a copy to the
owner, that the owner is in default under his Development Contract with the City
by either failing to complete the improvements in accordance with the terms and
conditions of the Development Contract or that the City Engineer has determined
that there are defects in materials and workmanship in the improvements.
Whereupon, the escrow agent will immediately, without further demand, claim, or
notice, release to the City through the City Engineer, the amount necessary, as
specified by 'the City Engineer, to remedy the default.
3.' Notices. Any notice to be sent, or required to be sent or given under this agreement
shall be sent to the address of the parties hereto, as follows:
CITY:
OWNER:
Engineering Administrator
City of Denton ~ City Hall East
601 E. Hickory, Suite B
Denton, TX 76205
ESCROW AGENT:
Page 3 of 5
ESCROW AGREEMENT IN LIEU OF PERFORMANCE BOND
4. · .Fees. Owner agrees to pay any and 'all fees or Costs charged by the Escrow Agent in
connection with this agreement..
5. Nonliabilitv of Escrow Agent. The Escrow Agent shall have no responsibility
except for the safekeeping and delivery of the amounts deposited in the Escrow Account in
accordance with this agreement. The Escrow Agent shall not be liable for any act done or
omitted to be done under this agreement or in connection with the amounts deposited in ~he
Escrow Account except as a result of the Escrow Agent's gross negligence or willful
misconduct. If any question, dispute or disagreement arises among any one or more of the
parties hereto and/or any other party with respect to the fi. rods deposited in ~he Escrow Account,
the p~-oper interpretation of this agreement, the duties of the Escrow Agent hereunder or the
~ rights or. the parties to this agreement, the Escrow Agent shall not be required to act and shall not
be held liable for refusal to act until the question.or dispute is settled, and the Escrow Agent has
the absolute right at its discretion to do either or both of the following:
(a) withhold and/or stop all further perfon'nance under this agreement until the
Escrow Agent is sat[stied, by receipt of a written .document in form and substance
satisfactory ~o the Escrow Agent and executed and binding upon all interested
· . pai-ties hereto (who may include the subscribers), that the question, dispute, or
disagreement has been`resolved; o~
(b) file a suit in interpleader and obtain by final judgment rendered by a court of
competent jurisdiction, an order binding all parties interested in the mat~er.
6. Successors and Assigns. This agreement shall be binding upon the successors and
assigns of the parties hereto.
Page 4 of 5
ESCKOVv' AGREEMENT IN LIEU OF PERFORMANCE BOND
7. Venue. The parties hereto agree that if any legal action is necessary in Connection
with this agreement exclusive venue shall lie in Denton County,.Texas.
IN WITNESS WHEREOF, the said City, Owner, and Escr?w Agent have signed this
instrument this day of ., 20
BY: BY:
Owner . ESCROW AGENT
BY:
City Representative
Page 5 of 5
ITEM'1.26.
INSURANCE:'
1.26.1 CONTRACTOR'S INSURANCE: Without limiting any of the other obligations or liabilities
of thc CONTRACTOK, during the term of the contract the CONTRACTOK and each subcontractor at their own
expense shall purchase and maintain the herein stipulated minimum imurance with companies duly approved to
do business in the State of Texas and satisfactory to the OWNER. Certificates of each'policy shall be delivered
to the OWNER, before any work is started, along with a written statement fxom the issuing company stating that
said policy !hall not be cancelled, nonrenewed or materially changed without 30 days advance wrkten nodce
being given to the OWNER, except when the policy ii being cancelled for nonpayment of premium, in which
case 10 days advance written notice is requlr~. Prior to the effective date of cancellation, CONTRA. CTOK must
deliver to the OWNER a replacement certificate of insurance or proof of reinstatement. A model Certificate of
Insurance is illustrated in Appendix A.2. Coverage shall be of the following types and not less than the specified
amounts:
(a)
(h)
worker's compensation as required by Texas law, with the policy endorsed to provide a waiver
0f subrogation as to the OWNER,; employer's liabilily i~aurance of not less than $100,000 for
each accident, $100,000 disease-each employee, $500,000 disease-policy limit.
Commercial general liability insurance, including independent contractor's liability, Completed
operations and contractual liability, covering, but not limited to, the hability assumed under the
indemnification provisions of this codtract, fully inaurlng CONTRACTOR`'S (or
subcontractor's) liability for injury to or death of OWNEK'S employees and third parties,
extended to include personal injury liability coverage with d~mage tO property of third parties,
with minimum limits as set forth below:
General Aggregate $1,000,000
Products - Components/Operations Aggregate $1,000,000
Personal and Advertising Injury $ 600,000
Each Occurrance $ 600,000
Fire Damage (any one fire) $ 50,000
Medical Expense (any one pers6n) $ 5,000
The policy shall include coverage extended to apply to completed operations, asbestos b~'~ards
(if this project involves work with asbestos) and XCU (explosion, collapse and underground)
hazards. The completed operations coverage must be maintained for a minimum of one (1)
year after fma[ completion and acceptance oftha win'k, with evidence of same filed with
OWNER..
(c)
Comprehensive automobile and track liability insurance, coveting owned, hired and non-
owned vehicles; with a combined bodily injury and property damage minimum limit of
$600,000 per ocem'rence; or separate limits of $250,000 for bodily injury (per person),
$500,000 bodily injury (per accident) and $100,000 for property damage. Such insurance shall
include coverage for loading and unloading hazards.
1.26.2.
OWNER'S PROTECTIVE LIABILITY INSURANCE: CONTP,~CTOP, shall obtain,
pay for and maintain at all times during the prosecution of the work under this contract, an OWNER'S
protective liability insurance policy naming the OWNER and the Engineer as instireds for property
damage and bodily injury, which may arise in the prosecution of the work or CONTRACTOR'S
operations under this conixact. Coverage shall be on an "occutrance" basis, and the policy shall be
issued by the same insurance company that carries the CONTRACTOR'S liability insurance with a
combined bodily injury and property damage.minimum limit of $600,000 per occurrence and
$1,000,000 aggregate.
1.26.3.
"UMBRELLA" LIABILITY INSURANCE: If required by OWNER,
CONTRACTOR shall obtain, pay for and maintain umbrella liability insurance during the contract
term, insuring CONTRACTOR for an amount of not less than $1,000,000 per occurrence combined
limit for bodily injury and property damage that follows form and applies in excess of the primary
liability coverage's required hereinabove. The policy shall provide "drop down" coverage where
underlying primary insurance coverage limits are insufficient or exhausted. OWNER and Engineer shall
be named as additional insureds.
1.26.4.
1.26.5.
RAILROAD PROTECTIVE INSURANCE:' When required in the Special Provisions,
CONTRACTOR shall obtain, maintain and present evidence of railroad protectiye insurance (RP[). The
policy shall be.in.the name of the Railroad Company having jurisdiction over the right-ot'-',vay involved'.
The minimum limit of coverage shall meet the specifications provided by the Railroad Company. The
OWNER shall specify the amount of RPI necessary.
pOLICY ENDORSEMENTS AND SPECIAL CONDITIONS':
(a) Each insurance policy to be ~mished by CONTRACTOR shall include the following
conditions by endorsement to the policy:
(1) name the OWNER as an additional insured as to all applicable coverage;
(2) ' each policy shall require that 30 days prior to the cancellation, 'nonrenewal or any
material change in coverage, a notice thereof shall be given to. OWNER by certified
mail. If the policy is cancelled for nonpayment of premium, 0nly 10 days written
notice to OWNER is req!iired;
(3) the term "Owner" shall include all authorities, boards, bureaus, commissions,
divisions, departments and Offices of the OWNER and individual members,
employees and agents thereof ih their official capacities, and/or while acting on behalf
of the OWNER;
(4) the policy phrase "other insurance" shall not apply to the OWNER where the
OWNER is an additional insured on the policy; and
(5) all provisions of the contract concerning liability, duty and standard of care together
with the indemnificatio~ provision shall be underwritten by contractual liability
coverage sufficient to include such obligations within applicable policies.
(b) Insurance furnished by the CONTRACTOR shall be in accordance with the following
requirements:
(I) any policy submitted shall not be subject to limitations, conditions or restrictions
deemed inconsistent with .the intent of the insurance .requirements to be fulfilled by
CONTRACTOR. The OWNER'S decision thereon shill be final;
(2) all policies are to be written through companies duly licensed to transact that class of
insurance in the STATE OF TEXAS; and
(3) ail liability policies required herein shall be written with an "occurrence" basis
coverage trigger.
(c) CONTRACTOR agrees to the following:
(1) CONTRACTOR hereby Waives snbrogation rights £or loss or damage to the extent
same are covered by insurance. Insurers shall have no right of recovery or subrogation
against the OWNER, it being the intention that the insurance policies shall protect all
parties to the contract and be primary coverage for all losses covered by the policies;
(2) Companies issuing the insurance policies and CONTRACTOR shall have no recourse
against the OWNER for payment of any premiums or assessments for any
deductibles, as all such premiums and deductibles are the sole responsibility and risk
of the cONTRACTOR;
(3) approval, disapproval or failure to act by the OWNER regarding any insurance
supplied by the CONTRACTOR (or any subcontractors) shall not relieve the
CONTRACTOR of full responsibility or liability for damages and accidents as set
'forth in the contract documents. Neither shall the bankruptcy, insolvency or denial of
liability by the insurance company exonerate the CONTRACTOR from liability; and.
(4) no special payments shall be made for any insurance that the CONTKA. CTOR and
subcontractors are required to carry; all are included in the contract price and the
contract unit prices.
Any of such insurance policies required under this section may be written in combination with any of
the others, where legally permitted, but none of the specified limits may be lowered thereby.
C RA~~~o
Casey Realty Advisors, Inc.
Apri130, 2008
George C. Campbell, City Manager
Edwin Snyder, City Manager
Pamela England
City of Denton, Texas
601 East Hickory Street, Suite B
Denton, Texas 76201
RE: $150,000.00 Deposit into Escrow Account No. 113003362, State Bank and Trust,
Dallas, TX (the Escrow Account)
Dear Ms. England and Gentlemen:
Pursuant to our meeting in early April, an agreement was reached to deposit an additional
$150,000.00 into the Escrow Account for the completion of the Construction Project as set forth
in the Escrow Agreement by and between Denton CJW Partners, Ltd., ("Seller"), the City of
Denton, Texas, a home rule municipality ("Purchaser"), and Alamo Title Insurance Company,
("Escrow Agent"), dated May 9, 2005, hereinafter referred to as "the Escrow Agreement."
We hereby confirm that the $150,000.00 was deposited on April 16, 2008 into the
Escrow Account as shown on the attached deposit ticket.
This letter shall serve as the agreement between the parties to the Escrow Agreement that
the additional $150,000.00 deposited into the Escrow Account shall be maintained in the Escrow
Account and shall not be disbursed without written approval from the City of Denton, Texas.
Vp~~s~
ichael A. Casey, Preside
Casey Realty Advisors, Inc.
General Partner, Denton-CJW Partners, Ltd.
1170 Corporate Drive West, Suite 101 ~ Arlington, Texas 76006-6813 • (817)649-8611 • Fax (817) 649-1636
(Acknowledgment)
STATE OF TEXAS
COUNTY OF TARRANT
Subscribed and sworn to before me on this 3~ day of April, 2008, by Michael A.
Casey, President of Casey Realty Advisors, Inc., General Partner, Denton-CJW Partners, Ltd., a
Texas limited partnership, on behalf of said limited partnership.
~°'""~ TERRY REYNOLDS
s~®e Notary PubUc
State of Texas
« Comm. Expires 10.2.6-2Qpg
--~-,~-...Y.~_,_,~.
Notary u ic, Sta of Texas
CITY OF DENTON, TEXAS
By: G
George C. Campbell, City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN SNYDER, CITY~T'ORNE
By:
r~.~~V~U~l3 ~' ~3 ~"~ "~rxq~~ ~'i ] s. `. ,tom ~ ~ _s-~ .~`--~ ~~ .-
~ .! ~_ z-~. x * - .$ ~ ~~ v } ~r MEMBER FDIC F---~ a.AY ~raiL s r....a.~ "~
.. K _ _ ~~, ~» . ~.~--~ r ~K,r^sl , ~TiHIS~IS~YO~~R~RECEIP~T /
F- -•' r
_~ ~ '_ + Q` -- L ~ -; ; WHEN MAIM7G A DEPOSR AT A;TELLERS,WWODW ALWAYS OBTAW AN OFFI(' L RECEIPT -
.' ~- .. ~ :-` _- ~ ~ - ~~- . Chads-end ahaz darie an re[dredtor.dea~l ?mumP~?a
:the UnEorm CoeimeKdal coca or erry appdrade aohectlm epreemenl
~` ~RECEIQT •1lraaer '302 4/16/08
Duplica#e TransN:~ ' 3 12:19:42
• 113003362
0
' Deposit- ~ - #150000.00
a
W
0
0
DEPOSITS MAY NOT BE AVAILABLE FOR IMMEDIATE WITHDRAWAL BANK SYMBOL, TRANSACTION NUMBER AND AMOUNT OF DEPOSIT ARE SHOWN ABOVE.
Name Michael A. Casey, Escrow Acct.
1170 Corporate Dr.W., ~~101
Arlington, TX 76006
O
STATE BAND &TRI.lST
DALLAS
(2Ta)987-7400
CURRENCY -
COIN -
LIST CHECKS SINGLY OR ATTACH LIST
DEPOSIT TICKET USE OTHER SIDE FOR jrS~o ODO ~7
ADDITIONAL LISTING. CHECKS -
BE SURE EACH ITEM IS
4 / 16 / 2008 PROPERLY ENDORSED.
DATE TOTAL ITEMS
CHECKS AND OTHER fTEAtS ARE RECENED FOR DEPOSIT SUBJECT TO THE PROVISIONS 1
OF THE UNIFORM COMMERCIAL CODE OR ANY APPLICABLE COLLECTK7N AGREEA/EM.
DEPOSTfS MAY NOT BE AVAAABLE FOR IMMEDIATE WITHDRAWAL
TOTAL FROM -
OTHER SIDE
-~
~:ia,ioa,s~~,a~:
II'LL300 3 3 6 211' 4l
~~d v dd,d~d
1446
DENTON-CJW PARTNERS, LTD.
722 NORTH FIELDER ROAD
ARLINGTON, TEXAS 76012-4635
(817) 548-8727 88-9314-3119
. .'.'. DATE April 16, 2008
PAY _'
ORDER OF Michael~A. Casey, Escrow Account ~ $ 150,000.00
~'1~~~,~~t:,i %:`'~ 1•:, r~lti €~'-i 5~~' •~S'e`s~~~~ DOLLARS f~~
w _ ~.
FIRST SAVINGS BANK FSB
ARLINGTON, TX 76004-1959
FOR Transfer -Denton-CJW/City•of Denton _ I~
11'00.144611' -~:3 L L9-93 ~49~: 0 L L i84