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HomeMy WebLinkAboutResolution No. 99-15 CITY OF THE COLONY, TEXAS A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS APPROVING A REAL ESTATE SALES CONTRACT (A TRUE AND CORRECT COPY OF WHICH IS ATTACHED HERETO) FOR THE PURCHASE BY THE CITY OF 80.52 ACRES OF LAND, MORE OR LESS, FROM JNC PROPERTIES, LLC, FOR MUNICIPAL PURPOSES; AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAID CONTRACT; PROVIDING AN EFFECTIVE DATE. WHEREAS, JNC Properties, LLC ("JNC") is the owner of certain land comprising approximately 80.52 acres (the "Real Property") and described in Exhibit A to that document entitled Real Estate Sales Contract (the "Sales Contract"), which Sales Contract is attached to this Resolution as Exhibit 1; and WHEREAS, the City of The Colony, Texas (the "City") desires to purchase the Real Property fi.om JNC under the terms and conditions set forth in the Sales Contract (wherein JNC is the Seller and the City is the Purchaser), and to use and utilize the Real Property for any lawful public purposes including, without limitation, community facilities, libraries, open space, park and recreational purposes, and all attendant and accompanying public infrastructure and facilities in connection with any of such public purposes. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. The above and foregoing premises are tree and correct and are incorporated herein and made a part hereof for all purposes. Section 2. The Real Estate Sales Contract attached hereto as Exhibit 1, wherein JNC Properties, LLC is the Seller and the City of The Colony, Texas is the Purchaser of the Real Property, is hereby approved. The City Manager is authorized to execute the Sales Contract on behalf of the City. Section 3. This Resolution shall take effect fi.om and after its date of adoption. PAt$S~ED AND AP~qPROVED by the City Council of the City of The Colony, Texas this the !d,'-~ day of /Y ~'F~ P'-~ z- ,1999. William Manning, Mayor ~ ATTEST: ff'~~" ".?~Hicks, City ~ecretary ff~7 ~__ ~.,~fTheColony, Texas ~ '"-.....~?~.s ~o ~om: ~y~~~ Ci~ttomey REAL ESTATE SALES CONTRACT This REAL ESTATE SALES CONTRACT (hereinafter referred to as the "Contract") is entered into by and between JNC PROPERTIES, LLC, a Texas Limited Liability Company (hereinafter referred to as "Seller"), and TI-EE CITY OF THE COLONY, TEXAS, a Texas municipality (hereinafter referred to as "Purchaser"). PREMISES: WHEREAS, Seller is the owner of approximately 131.006 acres of land, more or less, which real estate is situated in The City of The Colony, Denton County, Texas; and WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller all of Seller's right, title and interest in and to the real property described herein and any improvements thereon. :~iiii,...i--. A G R E E M E N T: NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants, agreements and obligations set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged and confirmed, Seller and Purchaser do hereby agree as follows: ARTICLE I SALE AND PURCHASE 1.1 Property.. Upon and subject to the terms and conditions hereinafter set forth, Purchaser agrees to purchase from Seller, and Seller agrees to sell to Purchaser real property containing approximately 80.52 acres, more or less, out of the BBB & CRR Survey, Abstract No. 173, the T. Wilson Survey, Abstract No. 1352 and the J.B. Shipps Survey, Abstract No. 1227, the City of the Colony, Denton County, Texas; which tract is more particularly depicted on ~ "A" attached hereto, and incorporated herein, together with all rights, ways, privileges and appurtenances pertaining thereto, including any right, title and interest of Seller in and to any streets, alleys or rights-of-way adjoining said real property (hereinafter collectively referred to as the "Property"). ARTICLE II PURCHASE PRICE 2.1 PtmCH^SE I:~CE. The Purchase Price for the Property (hereinafter referred to as the "Purchase Price") shall be approximately the sum of Two Million and No/100s Dollars ($2,000,000.00), which sum shall be paid in cash at the Closing. REAL ESTATE SALES CONTRACT - Page 1 ARTICLE HI EARNEST MONEY 3.1 EARNEST MONEY DEposrr. Upon execution of this Contract, Purchaser shall deposit with Texas Title Company, 2901 North Dallas Parkway, Suite 130, Plano, Texas 75093, Attn: Eva Horton, Senior Commercial Vice President (hereinafter referred to as the "Title Company"), a cashier's check in the amount of Twenty Five Thousand and No/100s Dollars ($25,000.00) to assure prompt observance of this Contract by Purchaser (hereinafter referred to as the "Earnest Money Deposit"). At the end of the Inspection Period, as defined in Earagra~ 6. l(a) herein, the Earnest Money Deposit shall be non-refundable to the Purchaser in any case or circumstance, except as otherwise provided in this Contract. 3.2 INTEREST BEARING ACCOUNT. The term "Earnest Money Deposit" shall include the Earnest Money Deposit, as described above, plus any interest thereon. The Title Company shall be instructed to invest the Earnest Money Deposit in an interest bearing account. The Earnest Money Deposit shall apply to the Purchase Price at Closing, or be returned to the party so designated in this Contract~.::~.:~ 3.3 ~. Upon expiration of the Inspection Period (as hereinafter defined in Paragraph 6.1 (a), all of the Earnest Money Deposit, plus all accrued interest thereon, shall be deemed nonr.e,.fm~lal~ to Purchaser, except as otherwise provided in this Contract. ARTICLE IV TITLE COMMITMENT 4.1 TrrLE COMMrrM~r. Within fifteen (15) days from the Effective Date hereof, the Title Company shall issue a current title commitment of the Property, in the standard Texas form (hereinafter referred to as the "Commitment"). Copies of all instruments and documents referred to therein as exceptions to title covering the Property, shall be delivered to the Purchaser within five (5) days after receipt of this Contract, with a title commitment issued in the amount of the Purchase Price, in favor of Purchaser, pursuant to which the Title Company agrees, subject to the provisions thereof, to issue at Closing an Owner Policy of Title Insurance (hereinafter referred to as the "Owner Policy") to Purchaser. 4.2 CONVEYANCE }~Y DEEr>. Seller shall deliver to Purchaser, at Closing, a Special Warranty Deed (hereinafter referred to as the "Deed") conveying fee simple title to the Property to Purchaser, subject to the exceptions to title contained in the Commitment approved, or waived, by Purchaser pursuant to .~ hereof. 4.3 Title O~ecfions. Within ten (10) days after Purchaser's receipt of the last of the Survey, as hereinafter defined, Title Commitment and exceptions referred to in the Title Commitment, Purchaser shall provide Seller with written notice of any items which Purchaser finds objectionable in such Survey or Title Commitment. Any matters contained in the Title Commitment and Survey to which the Purchaser does not object to within such time shall be REAL ESTATE SALES CONTRACT - Page 2 acceptable to the Purchaser and shall be called Permitted Exceptions. Seller, may, prior to the " Closing, attempt to remedy any matters which are objected to by the Purchaser, but shall not be required to incur any costs to do so. If Seller is unable or unwilling to remove any such exceptions, Seller shall either (i) notify Purchaser in writing of this fact, or (ii) if no notice is given to Purchaser, within ten (10 days after the date of Purchaser's notice then it shall be deemed that Seller is unwilling to remove such exceptions, and in either such event, then Purchaser shall have ten (10) days after receiving such notice or the deemed notice of Seller unwillingness to remove such exceptions to either (a) to waive such objections and accept the title to the Property subject to such exceptions (which shall thereupon become Permitted Exceptions), without reduction of the Purchase Price, or (b) to terminate this Contract and receive a refund of the Earnest Money Deposit, in which case the parties shall have no further obligations under this Contract. Failure by Purchaser to make either election within the time provided shall be deemed an election to waive any Title Commitment and Survey objections by the Purchaser. ARTICLE V 5.1 DESCRIPTION'0E: SURVEY. Purchaser acknowledges receipt of a survey of the Property, dated September 9i~ 1997, as prepared by Carter and Burgess, William C. Boden, RPLS No. 1932 ("Surveyor"). This survey shall be called the "Survey". The Survey shall be in form and content sufficient to delete the standard survey exception from the Owner Policy. Within two (2) days after the Contract Date, Seller, at Seller's expense, shall order an update of the Survey of the Property (the "Updated Survey") fi.om a Registered Land Surveyor reasonably acceptable to the Purchaser and the Seller. The Updated Survey is intended to be delivered to the Purchaser and the Title Company no later than fit~een (15) days after the Contract Date. Delivery of the Updated Survey to the Purchaser shall be a condition to Closing. The Updated Survey shall meet the requirements of a current Category lA (Land Title Survey), Condition II (Urban) Survey, as specified by the Texas Surveyor's Association. The Updated Survey shall be certified in favor of Seller, Purchaser, Title Company, and the existing and proposed lender on the Property, and shall include the Surveyor's registered number and seal, and shall set forth the total area of the Property, including the Streets and Public Utilities, and encroachments onto the Property, expressed in square feet calculated to the nearest square foot, or acres calculated to the nearest 1/1000th of an acre. The Updated Survey shall also: (a) locate and show the size of any portion of the Property which is currently located in a flood plain/flood hazard area according to the flood insurance rate maps or the flood hazard boundary maps, issued by the Federal Emergency Management Agency; (b) locate all existing improvements, parking areas (including, in the Surveyor's Certificate), easements, conflicts, streets, fights-of-way (with applicable recording data), encroachments, and protrusions affecting the Property, with improvements and significant matters observed by the Surveyor, whether or not of record; (c) reflect the location and size of all known existing above/underground gas, electrical, water, sanitary sewer and storm sewer facilities, wires and cable crossings, anchors or guy wires located on the Property; (d) show the location of all required building set-back lines; (e) show the location of abutting dedicated public streets providing access to the Property, and all sidewalks, curbs, and driveways, if any; (f) show the location of and amount of square footage contained within all streets, alleys, or rights-of-way contained within the Property, if any; and (g) show the location and type offences and other improvements along the boundaries which may encroach on any portion of the Property. The Surveyor's Certificate shall be in a form reasonably acceptable to the Purchaser, REAL ESTATE SALES CONTRACT - Page 3 and Lender that will advance all or a portion of the Purchase Price to Purchaser, and the Title Company, so that the Title Company may limit the exception for areas and boundaries in the owner's title policy to read "shortages in area" only. The legal description of the Property contained in the Updated Survey, if different fi:om the description contained herein, shall be substituted for the description of the Property contained herein, and this Contract shall be deemed amended by the substitution of the legal description of the Property contained in the Updated Survey for the description of the Property contained herein. Seller shall pay for the cost of the Updated Survey. Additionally, Purchaser shall pay for the cost of the deletion of the boundary exception from the Title Policy (as defined below) at the closing, unless the Purchaser rejects such additional coverage in writing prior to the closing. If the Purchaser does not acquire the Property at the Closing, then the Purchaser shall be responsible to pay for the cost of the Updated Survey. ARTICLE VI INSPECTION AND EXAMINATION 6.1 INSPECTION I:~RtOD. The inspection and examination of the Property shall be governed by the following: .: ~ (a) ~, For and in consideration of $100.00 referred to in Paragraph 15.11, Purchaser shall have a period of thirty (30) calendar days (hereinafter referred to as the "Inspection Period"), from the Effective Date of this Contract hereof, to examine (i) the Commitment; (ii) the legible copies of all exception matters referenced in the Commitment; (iii) the Survey; (iv) the Property and (v) any other aspects about the Property or its intended use by Purchaser; and during such time, Purchaser, or Purchaser's authorized agent or representative, shall be entitled to enter upon the Property for the purpose of inspecting, examining and making tests upon the Property. Co) Access/Liability. Purchaser and its agents and representatives shall be entitled to enter upon the Property for inspection, soil tests, examination and land use planning. Purchaser will restore any disturbance to the Property caused by its acts. (c) Tg, Imimli~n. If Purchaser, in Purchaser's sole discretion, is dissatisfied with the results of Purchaser's inspection of the Property, Purchaser may, by written notice delivered to Seller prior to the expiration of the Inspection Period, terminate this Contract in which event the Earnest Money Deposit shall be returned to Purchaser on demand, and neither Seller nor Purchaser shall have any further obligations hereunder. If Purchaser does not terminate this Contract by delivery of such written notice prior to the expiration of the Inspection Period, Purchaser shall be conclusively deemed to have accepted the Property in its present condition. (d) Seller's Documents. Seller shall make available to the Purchaser for the Purchaser to review and copy, within ten (10) days of the Effective Date hereof, copies of any available documents or information describing the Property, but Seller makes no warranty or representation as to the accuracy or reliability of these documents. REAL ESTATE SALES CONTRACT - Page 4 (e) I?dflzaz[Lm~. Notwithstanding the foregoing, Seller agrees that it will bear the risk of loss relative to the Property until the date of Closing, except that Seller will bear no risk of loss with regard to matters which arise from acts performed by Purchaser prior to Closing. 6.2 ENVIRONMENTAI. StmvEY. The inspection and examination of the Property relative to environmental condition of the Property shall be governed by the following: (a) Examination Authority.. Purchaser shall have the right to conduct a "Phase One" environmental survey, at Purchaser's sole expense (the "Environmental Survey") of the Property, which environmental study must be completed prior to the expiration of the Inspection Period. If an Environmental Survey is conducted, then Purchaser shall cause a written report setting forth the findings obtained in that Environmental Survey to be delivered to Seller within five (5) days after receipt by Purchaser. (b)Remediation/Termination. If during the Inspection Period, and as a result of the Environmental Survey, or by any other means, Purchaser or Seller become aware of the existence of toxic 0~..hazardous wastes (including asbestos), or other environmental contamination, on or Within the Property, then Purchaser shall immediately terminate this Contract unless Purchas~i has made arrangements satisfactory to Seller to completely abate or remove the existing toxic or hazardous wastes or other environmental contamination in a manner that is reasonably acceptable to Seller and in compliance with applicable law; provided, however, nothing contained herein shall obligate Purchaser to undertake any such abatement or removal. If Purchaser terminates this Contract pursuant to this P..~, then all of the Earnest Money Deposit. shall be returned to Purchaser and the parties shall have no further obligations under this Contract. 6.3 CONDrnON OF T~ PROPERTY. Purchaser acknowledges that neither Seller nor any agent, employee or representative of Seller has made any representation or warranty, expressed or implied, as to the Property or any matter relating thereto, including without limitation thereto the adequacy, completeness and accuracy of any plans, specifications, drawings, documents or other data or information relating to the Property which may have been or may be supplied to or made available to Purchaser. Purchaser is purchasing the Property in an "AS IS, WHERE IS" physical condition and in an "AS IS, WHERE IS" state of repair, which language shall be placed into the Warranty Deed hereof. Purchaser does hereby waive, and Seller does hereby disclaim, all warranties of any type or kind whatsoever, except for warranty of title, with respect to the Property, express or implied, including, by way of description but not limitation, those of fitness for a particular purpose, habitability and use. Purchaser represents and warrants that in making this Contract Purchaser has considered and assumed the risks that unforeseen conditions or events that may be encountered, not anticipated at the time of the execution of this Contract. Purchaser releases Seller and hereby waives any and all claims it may have now or in the future against Seller, which claims arise or are in any way connected with the condition of the Property. This release shall apply to any unknown or unsuspected injury, losses, damages or consequences. 6.4 Restrictions. Purchaser agrees that Seller shall be permitted to place restrictive covenants upon the Property limiting the use of the Property to park and other similar recreational USES. REAL ESTATE SALES CONTRACT - Page 5 ARTICLE VII CLOSING 7.1 ~. The date of closing (hereinafter referred to as the "Closing Date") shall be, and the event of closing (hereinafter referred to as the "Closing"), shall occur on or before Friday October 15, 1999, which Closing shall be held in the offices of the Title Company, at such hour as Seller and Purchaser may mutually agree, but otherwise at 10:30 a.m., local time. Upon the agreement in writing of both parties, then the Closing may be extended up to two ten (10) day periods to resolve title and Survey objections. 7.2 ~. All recordation fees and closing cost shall be borne by Seller and Purchaser in accordance with custom in the area in which the Property is situated, provided, however, Seller shall pay for the Owner Policy. 7.3 TAX PRORATION. Real and personal property taxes for the current tax year shall be prorated to the Closing Date. In the event that the Closing Date shall occur before the tax rate is established for the year in which Closing occurs, the apportionment of taxes shall be upon the basis of taxes levied upon the Property for the preceding year, and any necessary adjustments shall be made in cash between the parties within fifteen (15) days of the date the tax bills for such year are received. Purchaser shall pay all roll-back taxes assessed against the Property for changes in use occurring after the date of Closing. Purchaser does not waive any applicable exception or exemption from rollback taxes. 7.4 SELLER'S OBLIGATIONS AT CLOSING. At Closing, Seller shall deliver to Purchaser the following documents which shall be duly executed and, where appropriate, acknowledged, together with any and all items or instruments necessary or appropriate thereto: (a) Deed. The Deed; and (b)Owner's Policy. The Owner's Policy for the Property, containing no exception to title other than (i) the standard printed exceptions in Schedule B to the Commitment, the tax exception shall refer to taxes for the year 1999 and subsequent years, and subsequent assessments for prior years due to change in land usage or ownership and (ii) those exceptions to title contained in Schedule B to the Commitment which are approved by Purchaser or waived by Purchaser pursuant to P_ax. agZallh_42 hereof. (c)Non-foreign Affidavit. An Affidavit required pursuant to Section 1445 of the Internal Revenue Code stating, under penalties of perjury, that Seller nor any other party so swearing, is a foreign person within the meaning of Section 1445 of The Internal Revenue Code. (d) Evidence of Authority. Seller shall provide the Title Company with any documents reasonably requested by the Title Company or required by this Agreement to confirm that this transaction and the parties executing such documents are fully authorized and empowered to so act. REAL ESTATE SALES CONTRACT - Page 6 7.5 PURCHASER'S OBLIGATIONS AT CLOSING. At Closing, Purchaser shall deliver to the Title Company: (a)C,a~]l_F22a~. The Cash funds relative to such Closing as more specifically outlined in EaxagtaglL2~ hereof; and (b)Evidence of Authority. Purchaser shall provide the Title Company with any documents reasonably requested by the Title Company or required by this Agreement to confirm that this transaction and the parties executing such documents are fully authorized and empowered to so act. 7.6 DELWERY OF POSSESSION. Possession of the Property shall be delivered to Purchaser at Closing and funding of the purchase. ARTICLE VIII REPRESENTATIONS, WARRANTIES AND COVENANTS 8.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to Purchaser the following: (a)Title to Property. Seller will deliver at Closing good, indefeasible, and fee simple title to the Property, free and clear of all mortgages, liens, encumbrances, leases, tenancies, security interest, covenants, conditions restrictions, easements, judgments or other matters affecting title other than those shown on Schedule B of the Commitment and otherwise permitted herein. (b)Authority. Seller has full power and authority to execute this Contract and perform all of its obligations hereunder. (c)Governmental Requirements. Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions pertaining to and affecting the Property. Performance of this Contract will not result in any breach of, or constitute any default under, or result in imposition of, any lien or encumbrance upon the Property under any agreement or other instrument to which Seller is a party or by which Seller or the Property might be bound. (d)Continued Operation. Seller will operate and manage the Property in substantially the same manner it has been operated and managed and will maintain the physical condition of the Property in the same or better condition as it presently exists to the date of Closing, reasonable wear and tear excepted. 8.2 CORRECTION OF REPRESENTATION OR WARRANTY. Notwithstanding the provisions of Eaxagrap32~, if prior to the Closing, Seller gives written notice to Purchaser or the Purchaser discovers that any representation or warranty contained in this ~ is materially incorrect and such adversely affects the Property or Purchaser, then Seller will not be bound by such representation or warranty; however, within two (2) days after Seller's delivery of such REAL ESTATE SALES CONTRACT - Page 7 notice or Purchaser or Purchaser's discovery, Purchaser may terminate this Contract (in which event the Earnest Money Deposit shall be immediately returned to Purchaser). 8.3 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents and warrants to Seller that Purchaser has full power and authority to execute this Contract and perform all of its obligations hereunder. 8.4 Lender Approval. As a condition to Closing, the Seller's lender, Centex Development Corporation ("Lender"), needs to review this Contract. Seller's performance hereunder is contingent upon the Seller's Lender's approval of this Contract. Specifically, Seller's performance hereunder is contingent upon the Seller's Lender's approval of the following: 1. The legal description of the Property conveyed hereby; 2. The configuration of the Property conveyed hereby; 3. The terms and price of the partial release; and 4 Seller's ability to reserve utility and access easements as it deems reasonably necessary, which shall not unreasonably hinder Purchaser's use. 5. The terms and conditions of the Contract; 6. Lender's portion of the construction and development expenses of the roadway, drainageway, and other improvements across the property or adjacent thereto, including engineering, hydrologic, accounting, legal and other such related expenses, as determined by the Seller to Seller's sole determination and satisfaction. If Seller obtains a rejection from Seller's Lender for any of the foregoing items, or any new or related matter which the Seller or the Lender may raise, within twenty (20) calendar days of the Effective Date of this Contract, or later if so mutually extended by the parties, or if Seller does not accept the Lender's partial release terms and conditions or any other Lender terms and conditions, in Seller's sole determination and decision, Seller may either (i) terminate this Contract, in which case (a) the Earnest Money, shall be returned to Purchaser, and (b) all fights, interests, duties, obligations, indemnities, liabilities and promises of Purchaser and Seller hereunder, shall be revoked, canceled, and null and void, except the provisions of this Contract which shall specifically survive Closing or termination of this Contract as stated herein, or (ii) extend the time for Lender approval for a period of time up to two fifteen (15) calendar day periods. Notwithstanding the foregoing; however, if Lender fails to give either an approval or a rejection to the Contract, the Seller shall be expressly permitted to elect to proceed to Closing, at Seller's sole determination and election. 8.5 Development of the Property.. As an express condition to Closing, Purchaser and Seller agree that Purchaser and Seller, its successors and assigns, shall each be obligated to bear one-half the costs of, and cause to be constructed, any and all street, underground storm drainage, underground utilities, right-of-way landscape, irrigation, street lighting, signage and other necessary related improvements located within the right-of-way of future Memorial Drive adjoining the Property. Additionally, it is expressly agreed that Purchaser and Seller will each be obligated to pay a pro-rata cost of the open drainage channel improvements to be located within a 110 foot wide (or wider if necessary) drainage and utility easement to be located north of the proposed Memorial Drive, to include the cost of drainage crossing structures at Paige Road and Blair Oaks Drive, as shown on the Updated Survey. The pro-rata share of drainage channel REAL ESTATE SALES CONTRACT - Page 8 improvements costs allocated to each party shall be determined by a ..... t:,~ ,.. ....... c,~ts a!ic, cate~ te ' ' ea cost- sharing agreement (the "Agreement") to be mutually agreed upon by the Purchaser and Seller during the Inspection Period, which Agreement shall provide that improvement costs ("Improvement Costs") shall include, but not be limited to, all planning, engineering (including hydrologic and hydraulic studies/analysis), surveying, construction plans and specifications, bidding, construction supervision, construction, accounting, legal and other such similar services and expenses to properly design and construct all improvements in accordance both with good engineering practice and the City requirements. If no understanding can be reached as to the language for this Agreement before the end of the Inspection Period, then either party shall have the option to terminate this Contract. If the Contract is terminated pursuant to this Paragraph 8.5, then the Earnest Money deposit will be refunded to Purchaser and the parties shall have no further obligations to each other under this Contract. ARTICLE IX ENVIRONMENTAL DISCLAIMER 9.1 HAZARDOUS SUBSTANCES. As used herein, "Hazardous Substances" shall mean and include all hazardous and toxic substances, waste or other materials, any pollutants or contaminants as defmed in Section 101 (14) of the Comprehensive Environmental Response Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 (14) (including, without limitation, asbestos and raw materials which include hazardous constituents), or other similar substances, or materials which are included under or regulated by any local, state, or federal law, rule, or regulation pertaining to environmental regulation, contamination or clean-up, including, without limitation, "CERCLA", "RCRA", or state superlien or environmental clean-up statutes (all such laws, rules and regulations being referred to collectively as "environmental laws"). Any other terms mentioned in this ~ which are defined in state or federal statutes and/or regulations promulgated in relation thereto shall have the meaning subscribed to such terms in said statutes and regulations. 9.2 USES. To the best of Seller's knowledge, the Property has not ever been used by previous owners and/or operators, Seller, or any tenant of Seller to generate, manufacture, refine, transport, treat, store, handle, or dispose of Hazardous Substances and Seller does not intend to use, or permit any tenant of Seller to use, its real property, including, but not limited to the Property for such purposes. 9.3 STO~AC,~. Seller has no knowledge that the Property has ever contained or now contains either asbestos, PCB, or other toxic materials, whether used in construction or stored on the Property. 9.4 GOVERNMENTAL ACTION. Seller has not received a summons, citation, directive, letter or other cormnunication, written or oral, from any agency or Department of the State of Texas or the U.S. Government concerning any intentional or unintentional action or omission on Seller's part which has resulted in the releasing, spilling, leaking, pumping, pouring, emitting, emptying, or dumping of Hazardous Substances into waters or onto lands of the State of Texas, or into waters or onto lands outside the jurisdiction of the State of Texas where damage may have REAL ESTATE SALES CONTRACT - Page 9 resulted in the lands, waters, fish, shellfish, wildlife, biota, air or other resources owned, managed, held in trust or otherwise controlled by the State of Texas, Seller or any person or party. ARTICLE X TAXES/CASUALTY 10.1 CASUAI.TY LOSS. If prior tO the date of the Closing, all or any material portion of the Property is either destroyed, damaged by fn'e or other casualty, Purchaser shall not have the right to cancel this Contract. ARTICLE XI 11.1 PURCI-IASER'S DEFAIILT. In the event that Purchaser shall fail to purchase the Property in accordance with the terms and conditions of this Contract, or otherwise default in the performance of Purchaser's oblig.ations pursuant to this Contract, for any reason whatsoever other than Seller's default or as otherwise permitted hereunder, Seller shall be paid and shall retain the Earnest Money Deposit, as li~qfild'ated damages as Seller's sole remedy hereunder (it being agreed that actual damages would be difficult to determine, vague and speculative in nature). Seller hereby waives any and all other of its rights or remedies at law or in equity, for breach of this Contract by Purchaser, including; but not limited to, a suit to enforce specific performance and a suit for damages. 11.2 SELLER'S DEFAULT. In the event that Seller shall default in the performance of Seller's obligation to sell the subject Property to the Purchaser hereunder, for any reason whatsoever other than Purchaser's default, as Purchaser's only remedies hereunder, Purchaser may, at Purchaser's option, (i) enforce specific performance of this Contract, or (ii) purchase the Property notwithstanding such default pursuant to the remaining terms and provisions of this Contract, in which event such default shall be deemed waived, or (iii) terminate this Contract, in which event, Purchaser shall be entitled to return of the Earnest Money Deposit, and neither Seller nor Purchaser shall have any further obligation hereunder. Purchaser hereby waives any and all other of its rights or remedies at law or in equity, for breach of this Contract by Seller, including, but not limited to, a suit for damages, costs, expenses, lost profits or other such damages. ARTICLE XII BROKER FEES AND COMMISSIONS 12.1 OBLIGATION TO PAY. Seller and Purchaser each hereby warrant and represent to the other that all claims for brokerage fees, commissions or finders' or other similar fees in connection with the transactions contemplated in this Contract, insofar as such claims shall be based on agreements made by either of the parties, shall be paid by the party making such agreements. REAL ESTATE SALES CONTRACT - Page i0 12.2 COMMISSION DESIGNATION. Seller shall pay a commission in cash equal to Six Percent (6.0 %) of the fn'st $500,00.00 of the Purchase Price and Three Percent (3 %) for all Portions of the Purchase Price above $500,000.00 as follows: All to JNC Properties, LLC (hereinafter referred to as the "Realtor"); provided however, that such commission shall be payable only in the event that the sale of the Property as contemplated in this Contract is consummated. Both parties represent to the other party that no other real estate agent has been involved in this transaction in any manner. ARTICLE XIII 13.1 NOTICE DESIGNATION. All notices, objections and approvals referred to in this Contract must be given in writing and will be effective on the day the notice is (i) actually received by the addressee thereof after being sent by overnight delivery such as Federal Express or having been personally hand delivered by the sender, (ii) deposited in the United States Mail, postage prepaid, registered or certified mail, return receipt requested, and properly addressed to the party to receive said notice, or (iii) sent to the addressee by telecopier, facsimile or similar transmitting machine, as the case may be. Tl~.,e. notice addresses of the parties will be those specified below until further notice: "' ~"' SELLER: Mr. John Lau JNC Properties, LLC 2050 No. Piano Parkway, Suite 100 Richardson, Texas 75082 Telephone (972) 231-9791 Facsimile (972) 690-0479 Mr. Lanny Lambert City Manager The City of The Colony 5151 North Colony Blvd. The Colony, Texas 75028 Telephone (972) 625-2743 Facsimile (972) 624-2298 ARTICLE XIV WAIVER OF THE DTPA 14.1 W~dVER OF TT-m DECEPTIVE TRADE PRACTICES ACT. Both parties hereby waive any rights they may have under the protections and provisions of the Texas Deceptive and Consumer Protection Act (the "DTPA" or the "Act"), being Subchapter E of Title 2 of the Texas Business and Commerce Code, Section 17.41, et. seq., Save and Except the provisions of Section 17.555 REAL ESTATE SALES CONTRACT - Page 11 of the Texas Business and Commerce Code. Purchaser hereby expressly warrants, represents and certifies to Seller that (A) Purchaser is not in a significantly disparate bargaining position as to any Provision of this Contract or as to any matter contained therein; (B) Purchaser is represented by legal counsel of Purchaser's own choosing in seeking this Contract, purchasing the Property and in negotiating the terms of the Contract. ARTICLE XV MISCELLANEOUS 15.1 DASEF, I?~2LS,~LE. The execution of this Contract by the Purchaser constitutes an offer by the Seller to sell the Property. Unless this Contract is signed by Purchaser by 5:30 p.m. on August 20, 1999, and an executed copy, with initialed changes made by the Purchaser, is delivered to the Seller by the Purchaser, the offer of this Contract shall be automatically revoked and terminated. 15.2 BrNDr~C, AGREEMi~NT. This Contract and all of the terms, provisions and covenants contained herein shall apply tO, b~ binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. 15.3 ~. The captions employed in this Contract are for convenience only and are not intended in any way to limit or amplify the terms and provisions of this Contract. 15.4 TIME OE THE ESSENCE. TIME IS OF THE ESSENCE of this Contract. 15.5 .CHOIGF.~E_L3~. This Contract shall be construed in accordance with the laws of the State of Texas. 15.6 ENTIRE AGREEMENT. This Contract contains the emire agreement of the parties with respect to the subject matter hereof, and shall not be varied, amended, or superseded except by written agreement between the parties hereto. 15.7 COUNTERPART EXECUTION. This Contract may be executed in counterparts, each of which shall constitute an original and all which taken together shall constitute an original and all which taken together shall constitute a single agreement. 15.8 REALTOR DISCLOSURE. The Purchaser hereby acknowledges that, at the time of the execution of this Contract, Purchaser was by this writing that the Purchaser should have the abstract covering the real estate which is the subject of this Contract examined by an attorney of the Purchaser's own selection or that the Purchaser should be furnished with or obtain a policy of title insurance. 15.9 DUAL CAPACITy. The Realtor, its agents and/or employee's may act in the dual capacity of broker and undisclosed principal in the transaction described hereunder. REAL ESTATE SALES CONTRACT - Page 12 15.10 DAT~ COM~'~rrAT~ON. If any date of significance hereunder falls upon a Saturday, Sunday or recognized Federal holiday, such date will be deemed moved forward to the next day Which is not a Saturday, Sunday or recognized Federal holiday. The terms "working day" shall mean days elapsed exclusive of Saturday, Sunday or recognized Federal holidays. 15.11 CONTRACT CONSIDERATION. In addition to the Earnest Money Deposit, Purchaser shall pay to Seller the sum of $100.00 as independent contract consideration for Seller's execution and delivery of this Contract and all provisions of the Contract, including Purchaser's right to terminate this Contract during the Inspection Period. This independent contract consideration is in addition to and independent of any other consideration or payment provided in this Contract and is non-refundable to Purchaser. 15.12 CONFIDENTIALITy. Seller and Purchaser shall not disclose the content or substance of the terms, conditions and provisions of the Contract to any person or entity without the prior written consent of the other. Notwithstanding the above, nothing in this Paragraph shall be construed to prohibit the ability of Purchaser to disclose the terms of this Contract to Purchaser's lenders, engineers and partners. 15.13 RELATED PARTI~§ OF SEI.I.I~.R. Mactronix, Inc., a Texas corporation, and John Lau, Individually, are not a parties'~ this Contract, and Purchaser acknowledges and agrees that Mactronix, Inc. and John Lau, Individually, will have no obligation or liability hereunder. 15.14 CONTRACT CONT~NT. This Contract shall constitute escrow instructions to the Escrow Agent, together with such modifications thereto as may be made by supplementary escrow instructions. Any modifications to escrow instructions shall be in writing and signed by both parties. 15.15 MULTrPLE ORm~N~,TS. This Contract may be executed in several original counterparts, each of which and all together will constitute this Contract in its entirety. 15.16 ~. The headings contained in this Contract are for reference purposes only and shall not in any way affect the meaning or interpretation hereof. 15.17 PARTY RELAT~ONSmP. Nothing contained herein and no act by Purchaser or Seller in the performance of, or in any way related to, this Contract will be construed to create or evidence in any manner any employment, partnership, agency or joint venture relationship between the parties hereto. Purchaser and Seller represent and acknowledge that it is their mutual intention that the sole relationship created between them by this Contract is that of vendor and vendee, Seller and purchaser. 15.18 AUTHORITY. Each individual signing this Contract hereby represents and warrants to the other party that she or he is fully authorized and empowered to sign this contact on behalf of the party for whom he or she is signing, and that this Contract will be fully binding on such party. 15.19 N_F2t~. Venue for any dispute under this Contract shall be in Dallas County, Texas. REAL ESTATE SALES CONTRACT - Page 13 15.20 ASSIGNMENT. (a) Purchaser Assignment. Purchaser may not assign this Contract without Seller's prior written consent, which consent shall not be unreasonably withheld. (b) Seller Assignment. Nothing herein shall be construed to restrict or prohibit the right of Seller to assign or pledge this Contract to a lender or third party. 15.21 EFFECTrVE D^TF.. This Contract (or a counterpart hereof) must be executed by Purchaser and Seller and a fully executed copy hereof (or executed counterparts) deposited with the Title Company not later than three (3) days after execution hereof by the latter of Purchaser or Seller, or this Contract shall become null, void and of no effect whatsoever and shall terminate. The actual date of the signature of the later of the Seller and the Purchaser to this Contract and the initialing to any changes hereto shall herein be referred to as the "Effective Date". IN WITNESS WHEREOF, the parties hereunto set their hands and seals as of the date hereof. · ' :'~:' SELLER: JNC PROPERTIE._$, LLC By: ~-~--J John Lan, Manager Dated: August ]__~ ,1999 PURCHASER: THE CITY OF TttE COLONY, TEXAS Name: _,J~ ~. Z.,~/)/,~7' Title: ~,~Tbe ,~q,,V',~'~ Dated: Aug~ust ~t~ ,1999 REAL ESTATE SALES CONTRACT - Page 14 ACCEPTANCE BY TITLE COMPANY The undersigned Title Company, Texas Title Company, referred to in the foregoing Contract as the "Title Company", hereby acknowledges receipt of a fully executed copy (or executed counterparts) of the foregoing Contract and the Earnest Money Deposit referred to therein, and accepts the obligations of the Title Company as set forth therein. By: Name: Eva Horton, Senior Commercial Vice President Address: 2901 North Dallas Parkway, Suite 130, Piano, Texas 75093 Date: August , 1999 REAL ESTATE SALES CONTRACT - Page 15 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY A tract containing 80.52 acres, more or less, in The Colony, Denton County, Texas,such tracts being more particularly described on the following pages attached hereto for all purposes. REAL ESTATE SALES CONTRACT - Page 16 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY A tract containing 80.523 acres, more or less, in the City of The Colony, Denton CoUnty, Texas, - said tract being more particularly described in the following pages attached hereto.for all purposes. I FIELD .NOTES TRACT 1 BEING A 80.523 ACRE TRACT OF LAND SITUATED IN THE T. WILSON SURVEY, ABSTRACT NO. 1352 AND-'rile B.B.B. &: C.P,.R SURVEY,.' ABSTRACT NO. 173, DENTON COUNTY, TEXAS AND BEING OUT OF THAT.CERTAIN TRACT OF LAND DESCRIBED IN DEED TO JNC PROPERTIES, LLC. AS RECORDED IN COUNTY CLERK'S FILE NO. 97-R0091615 OF THE REAL PROPER'PC RECORDS OF DENTON COUNTY, TEXAS (R.P.R.D.C.T.). BEARING BASIS IS THE SOUTH UNE OF THE FINAL PLAT OF RIDGEPOINTE PHASE 1-A ADDITION AN.' ADDITION TO THE CITY OF THE COLONY, DENTON COUNTY, TEXAS AS RECORDED IN CABINET K, PAGE 151 R.P.R.D.C.T. SAID 80.523 ACRE TRACT BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING AT A TEXAS DEPARTMENT OF .TI~SPORTATION MONUMENT FOUND FOR THE MOST WESTERLY CORNER OF A 5.3505 ACRE TRACT OF LAND DESCRIBED IN DEED TO THE STATE 'OF TEXAS AND RECORDED IN VOLUME 2792, PAGE 8.0:.?REAL PROPERTY RECORDS DENTON COUNTY, TEXAS (R.P.R.D.C.T.), AND B~ING' IN THE EASTERLY LINE OF BLAIR OAKS ROAD (60' R.O.W.) AS RECOEDE,~i!ti~!,, .C.~INE-I' K, PAGE 278 R.P.R.D.C.T.; THENCE ALONG THE ~;SAID EASTERLY RIGHT-,OF-WAY OF BLAIR OAKS ROAD THE FOLLOWING COURSES:" ' N 28'40'02" W, A DISTANCE OF 778.22 FEET TO A 5/8' IRON ROD CAPPED "CARTER &: BURGESS" SET FOR THE POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT; N 28'40'02" W, A DISTANCE OF 469.86 FEET TO-A 1/2' IRON ROD FOUND FOR THE BEGINNING OF A TANGENT CURVE TO THE 'RIGHT; NORTHWESTERLY, ALONG SAID TANGENT CURVE TO THE. RIGHT I-~AVING A RADIUS OF 470.00 'FEET, A DELTA ANGLE OF 29'15'59", A LONG CHORD THAT BEARS N 15'58'28" W, A DISTANCE OF 237.47 FEET AND AN ARC 'DISTANCE OF 240.07 FEET TO A 1/2" IRON ROD, FOUND; N 00-40'24' E, A DISTANCE OF 257.4-0 FEET TO'A ;1/2' IRON ROD FOUND FOR THE BEGINNING OF A TANGENT CURVE TO TH~:.!RI.GHT; NORTHD~STERLY, ALONG SAID' TANGENT CURVE TO 'I:HE RIGHT HAVING A RADIUS OF 470.00 FEET, A DELTA ANGLE OF 28'55'05', A LONG CHORD THAT BEARS N 15'12'32"' E. A DISTANCE OF 234.71 FEET AND AN ARC · DISTANCE OF 237.21 FEET TO A 1/2" IRON ROD FOUND; , N 29'38'41' E, A DIST,N~ICE OF 820.84' FEET TO A 1/2' IRON ROD FOUND CAPPED "D.E.C." FOR THE BEGINNING OF. A TANGENT CURVE TO THE LEFT; NORTHEASTERLY, ALONG SAID TANGENT CURVE TO THE LEI'i' HAVING A RADIUS OF 530.00 FEET, A DELTA ANGLE OF 29'33'23', A LONG CHORD THAT BEARS N 14'49'4-5" E, A DISTANCE OF 270.38 FEET AND AN ARC DISTANCE OF 273,40 FEEl' TO 1/2" IRON ROD FOUND CAPPED "D.E.C.' ; N 00'03'06' W, A DISTANCE OF 122.08 FEET'TO A 1/2' IRON ROD FOUND CAPPED "DEC" IN THE SOUTH LINE OF THE COLONY NO. 2, AN ADDITION TO THE Cl'r;Y OF THE COLONY, RECORDED IN VOLUME 11, PAGE 16 OF THE PLAT RECORDS 'OF DENTON COUNTY, TEXAS (P.R.D.C.T.) REAL ESTATE SALES CONTRACT- 16 THENCE WITH THE SOUTH LINE 'OF THE COLONY'NO. 2 AND THE SOUTH LINE OF -- SECTION C, THE COLONY NO. 5, AN ADDITION TO THE CITY OF THE COLONY, RECORDED IN VOLUME 11, PAGE 46 P.R.D.C.T., THE FOLLOWING COURSES: S 89'59'44" E, A DISTANCE OF 65.33 FEET TO A 1/2" IRON ROD FOUND CAPPED 'DEC'; N 47'23'25" E, A DISTANCE OF 22.59 FEET TO A 1/2" IRON ROD FOUND CAPPED "DEC'; S 89'41'18" E, A' DISTANCE OF, 167'9.63 FEET TO A 1/2" IRON ROD FOUND' CAPPED "DEC' MARKING THE NORTHWEST CORNER OF THE COLONY NO. 32, AN ADDITION TO THE CITY' OF THE COLONY, RECORDED IN CABINET C, PAGE 77, R.P.R.D.C.T., ALSO' BEING THE BEGINNING OF A TANGENT CURVE TO THE RIGHT; THENCE WITH THE WEST AND SOUTH LINES OF THE COLONY NO..32 THE FOLLOWING COURSES: SOUTHEASTERLY, ALONG SAID TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 4.0.09 FEET, A DELTA ANGLE OF 89'56'47", A LONG CHORD THAT BEARS S 44'45'28" E, A DISTANCE'OF 56.67, FEET AND AN ARC DISTANCE OF 62.94- FEET TO A 1/2' IRON ROD FOUND CAPPED. 'DEC'; THENCE S 00'15~07' W, A DISTANCE OF 120.00 FEET ¥0 AN "X' CUT FOUND IN CON:..C:.~E; · . .. ~...-..~.?... THENCE: S 89.4.:3~5. 'Eo A DISTANCE OF. 15.7g FEET TO A 5/8' IRON ROD CAPPED 'CARTER & BURGESS' FOUND; THENCE S 00'16'07' W, A DISTANCE OF 125.00 FEET TO A "X' CUT FOUND IN CONCRETE; THENCE S 89'43'53' E, A DISTANCE OF 517.76 FEET TO A 1/2" IRON ROD FOUND; THENCE N 71'39'05" E, A DISTANCE OF 2.3.19 F"EET TO A 5/8' IRON ROD CAPPED "CARTER &: BURGESS" FOUND IN THE WEST LINE OF PAIGE ROAD (100' ROW) AS RECORDED IN VOLUME 977, PAGE 188, DEED.RECORDS DENTON COUNTY, TEXAS, ALSO BEING THE BEGINNING OF A NON-TANGENT CURVE TO THE LEFT; THENCE WITH THE WEST LINE OF SAID PAIGE ROAD THE FOL.LOWING COURSES: .. SOUTHEASTERLY, ALONG SAID NON-TANGENT CURVE'.~T(~ THE LEFT HAVING A RADIUS OF 870.00' FEET, A DELTA ANGER'.OF 00'30'00', 'A LONG CHORD THAT BEARS S 18'55'24" E, A DISTAIn'CE OF 7.59. FEET AND AN ARC DISTANCE OF 7.59 FEET TO A 5/8" IRON ROD CAPPED 'CARTER &: BURGESS' FOUND FOR THE BEGINNING OF A REVERSE CURVE TO THE RIGHT; SOUTHEASTERLY, ALONG SAID REVERSE CURVE TO THE RIGHT HAvING A RADIUS OF 770.00 FEET, A DELTA ANGLE OF 19'09'41", A LONG CHORD THAT BEARS S 09'.35'34" E, A DISTANCE OF 256..31 FEET AND AN ARC '' DISTANCE OF 257.51 FEET TO A 5/8". IRON ROD CAPPED "CARTER &: BURGESS" FOUND; S 00'00'47"' W, A DISTANCE OF 40.97 FEET TO .A 5/8' IRON ROD CAPPED- ;CARTER &: BURGESS' 'SET; REAL ESTATE SALES CONTRACT - 17 Exhibit "A", page 2 80.523 Acres, The ~olony, Texas TltENCE O'~ER AND ACROSS THE SAID JNC PROPERTIES, L. LC. TRACT, THE FOLLOWING· COURSES: S §0'00'00" W, A DISTANCE OF 559.90 FEET TO A 5/0" IRON ROD CAPPED "CARTER & BURGESS" SET FOR THE BEGINNING OF A TANGENT CURVE.TO THE LEFT; SOUTHWESTERLY, ALONG SAID TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 935.00 FEET, A' DELTA ANGLE OF 56'49'24", A LONG CHORD THAT BEARS S 51'55'1~]" W, A DISTANCE OF 889.75 FEET AND AN ARC DISTANCE 0F.927.29 FEET TO A 5/8" IRON ROD CAPPED "CARTER & BURGESS" SET FOR THE BEGINNING OF A REVERSE CURVE TO THE RIGHT; · SOUTHWESTERLY, ALONG SAID REVERSE CURVE TO THE RIGHT HAVING A .. 'RADIUS Of 9.35.00 FEET, A DELTA ANGLE OF 3~09'25", A LONG CHORD THAT BEARS S 42'15'1~]" W, A DISTANCE OF 61.1.24 FEET AND AN ARC DISTANCE OF 622.68 FEET TO A 5/8" IRON ROD CAPPED "CARTER & BURGESS" SET; S 61'20'01" W, A DISTANCE 'OF 11.37.79 FEET THE POINT OF BEGINNINGi AND CONTAINING 80.525 ACRES OF LAND, MORE OR LESS. REAL ESTATE SALES CONTRACT- 18 Exhibit "A", page 3 80.523 Acres, The Colony, Texas