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12-67 - RTOWN OF PROSPER, TEXAS RESOLUTION NO. ( )' ( A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS, AUTHORIZING THE MAYOR OF THE TOWN OF PROSPER, TEXAS, OR HIS DESIGNEE, TO SIMULTANEOUSLY: (A) TERMINATE THAT CERTAIN REAL ESTATE PURCHASE CONTRACT, DATED JULY 13, 2012, BY AND BETWEEN THE TOWN OF PROSPER, TEXAS AND SEXTON FARMS, LTD., A TEXAS LIMITED PARTNERSHIP, AND TO TAKE ANY AND ALL ACTIONS NECESSARY TO EFFECTUATE THE SAME, INCLUDING WITHOUT LIMITATION, THE EXECUTION OF ANY AND ALL OTHER DOCUMENTS RELATED THERETO; AND (B) EXECUTE THE NEWLY NEGOTIATED REAL ESTATE PURCHASE CONTRACT, BY AND BETWEEN THE TOWN OF PROSPER, TEXAS AND SEXTON FARMS, LTD., A TEXAS LIMITED PARTNERSHIP, AND TO TAKE ANY AND ALL ACTIONS NECESSARY TO EFFECTUATE THE SAME, INCLUDING WITHOUT LIMITATION, THE EXECUTION OF ANY AND ALL OTHER DOCUMENTS RELATED THERETO; BOTH (A) AND (B) PERTAINING TO THE SAME REAL PROPERTY; AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS: SECTION 1. The Mayor of the Town of Prosper, Texas ("Town"), or his designee, is hereby authorized to simultaneously: (a) terminate that certain Real Estate Purchase Contract, dated July 13, 2012, by and between the Town and Sexton Farms, Ltd., a Texas limited partnership, (Sexton") and to take any and all actions necessary to effectuate the same, including without limitation, the execution of any and all other documents related thereto; and (b) execute the newly negotiated Real Estate Purchase Contract, by and between the Town and Sexton Farms, a copy of which is attached hereto as Exhibit "A" and incorporated herein for all purposes, and to take all actions necessary to effectuate the same, including without limitation, the execution of any and all other documents related thereto; both (a) and (b) pertaining to the same real property. SECTION 2. This Resolution is effective immediately upon its passage DULY PASSED AND APPROVED BY THE TOWN COUNCIL OF THE TOWN OF PROSPER, TEXAS on this �.�day of September, 2012. 0 RAY SMI H, Mayor Resolution — Sexton Real Estate Purchase Contract Page 1 of 36 615300 ATTEST TO: Amy Piukainqetok Secretary Resolution — Sexton Real Estate Purchase Contract Page 2 of 36 61530D REAL ESTATE PURCHASE CONTRACT STATE OF TEXAS COUNTY OF COLLIN THIS REAL ESTATE PURCHASE CONTRACT (this "Contract") is made by and between SEXTON FARMS, LTD., a Texas limited partnership, of 350 Equestrian Way, Prosper, Texas 75078, Attn: Wilson B. Sexton, Jr., Fax No.: ("Seller") and the TOWN OF PROSPER, TEXAS, a Texas home rule municipality, of P.O. Box 307,121 W. Broadway, Prosper, Texas 75078, Attn: Ray Smith, Mayor, Fax No.: (972) 346-9335 ("Purchaser"), upon the terms and conditions set forth herein. By executing this Contract, Seller and Purchaser hereby terminate that certain Real Estate Purchase Contract dated effective July 13, 2012 (the "Previous Contract"), which was entered into by and between Seller and Purchaser with respect to the Property described below. The parties agree that the "Escrow Deposit" under the Previous Contract (as that term is defined in the Previous Contract) shall be returned to Purchaser, and the parties will execute the Cancellation of Contract attached hereto as Exhibit "E" upon execution of this Contract and will promptly hereafter deliver the same to the escrow agent holding such escrow deposit, together with such other documentation as shall be required to cause the escrow agent to return the escrow deposit to Purchaser. ARTICLE I Property 1.01. Seller hereby agrees to sell and to convey by a special warranty deed (the "Deed"), and Purchaser hereby agrees to purchase and to pay for, that certain real estate, and any improvements located thereon that are owned by Seller, being approximately 71.889 acres of land located at the REAL ESTATE PURCHASE CONTRACT - Page 1 #610780 northwest corner of the intersection of First Street and Coit Road in Prosper, Texas in the William Butler Survey, Abstract No. 112, Collin County, Texas, as more particularly described or depicted in Exhibit A, attached hereto and incorporated herein for all purposes (the "Real Property"). The legal description set forth in the Survey (defined below) approved by Purchaser will be automatically incorporated in this Contract as the legal description of the Real Property upon Purchaser's approval thereof or upon expiration of the Feasibility Period, whichever comes first. Except as otherwise provided in this Contract, Seller also agrees to sell and to convey, and Purchaser hereby agrees to purchase and pay for, all and singular, the rights and appurtenances pertaining to the Real 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 owned by Seller which is situated on and attached to the Real Property, and including a one half interest in all of Seller's rights to all of the Property's oil, gas, and other minerals, (all of such real property described above and the rights and appurtenances described herein being herein collectively referred to as the "Property"), for the consideration and upon the terms and conditions hereinafter set forth. The Property will be conveyed to Purchaser at the Closing free and clear of all liens, claims, easements, right-of-way, restrictions, encroachments, mineral reservations and leases, and encumbrances, except those that either are not objected to or are objected to and not cured and that are subsequently waived pursuant to the Contract or are deemed to be permitted (the "Permitted Exceptions"); provided, however, that Seller may reserve unto itself a one-half (1 /2) interest in the Property's oil, gas, and other minerals so long as the Deed contains the following proviso: "PROVIDED, HOWEVER, in conducting operations of whatsoever nature with respect to the exploration for, exploitation of, mining and production, processing, transporting, and marketing of oil, gas and/or other minerals from the Property or in connection with the conduct of other REAL ESTATE PURCHASE CONTRACT - Page 2 #610780 activities associated with its ownership of the oil, gas and mineral interests in the Property, Grantor, and Grantor's successors and assigns, agree not to use, enter upon, or occupy any portion of the surface of the Property and not to place any fixtures, equipment, buildings or structures thereon; provided, however, nothing hereby contained shall be constructed as waiving, releasing or relinquishing any right, title or interest of Grantor in and to the oil, gas and other minerals in and under and that may be produced from said Property. Additionally, this waiver of surface rights shall not be construed as a waiver of the right of Grantor to exploit, explore for, develop, mine, or produce such oil, gas and/or other minerals with wells drilled on the surface of lands other than the Property, including, but not limited to, directional wells bottomed beneath or drilled through any part (other than the surface) of the Property or by pooling its oil, gas and mineral interests with lands adjoining the Property in accordance with the laws and regulations of the State of Texas." ARTICLE II PURCHASE PRICE Amount of Purchase Price 2.01. The purchase price (herein called the "Purchase Price") for said Property shall be $55,000.00 per acre multiplied by the gross acreage contained in the Property as shown in the Survey (defined below). The total Purchase Price is estimated by the parties to be $$3,822,665.00 based on the Property containing 69.503 gross acres. The Purchase Price shall be adjusted at Closing (as defined below) for any closing costs and prorations. Payment of Purchase Price 2.02. The full Purchase Price shall be paid by Purchaser in cash at Closing. ARTICLE III TITLE/SURVEY REVIEW; PURCHASER'S DUE DILIGENCE AND FEASIBILITY PERIOD 3.01. The obligation of Purchaser hereunder to consummate the transaction contemplated hereby is subject to the satisfaction of each of the following conditions (any of which may be waived in writing in whole or in part by Purchaser at or prior to the closing). REAL ESTATE PURCHASE CONTRAC-[ - Page 3 #610780 Preliminary Title Commitment 3.02. On or before ten (10) days after the Effective Date, Seller, at Seller's sole cost and expense, shall have caused Reunion Title, 1700 Redbud Blvd., Ste. 300, McKinney, Texas 75069, Attention: Loretta Boddy (tel. no.: 214-544-4025, email: lboddy@reuniontitle.com) (the "Title Company") to issue a preliminary title commitment (the "Title Commitment"), accompanied by true, correct and legible copies of all recorded documents relating to easements, rights -of -way, and any instruments referred to in the Title Commitment as constituting exceptions or restrictions upon the title of Seller (the "Title Documents") Surma 3.03. On or before twenty (20) days after the Effective Date, Seller shall cause a plat of survey ("Survey") of the Property to be prepared by a duly licensed Texas land surveyor, at Seller's sole cost and expense, and delivered to the Purchaser, Seller, and the Title Company. The Survey shall be in a form reasonably acceptable to Purchaser and shall be in a form acceptable to the Title Company in order to allow the Title Company to delete the survey exception (except as to "shortages in area") from the Owner's Title Policy to be issued by the Title Company. The Survey shall be staked on the ground, and the plat shall show the legal description, boundary lines and the location of all improvements, highways, streets and roads (including the right-of-way and pavement widths of each), signal lights, median breaks, curbcuts, railroads, rivers, creeks, or other water courses, fences, flood plain as defined by the Federal Insurance Administration, easements, and rights -of -way on or adjacent to the Property and shall set forth the number of total of square feet comprising the Property. Review Period REAL ESTATE PURCHASE CONTRACT - Page 4 #610780 3.04. Purchaser shall have until 10 days after Purchaser's receipt of the Title Documents and the Survey to review the Title Documents and Survey and to deliver in writing to Seller such reasonable objections as Purchaser may have to anything contained in them (the "Objection Notice"), and in the event Purchaser states that the condition is not satisfactory, Seller shall undertake commercially reasonable efforts to eliminate or modify all such unacceptable matters to the reasonable satisfaction of Purchaser, but shall be under no obligation to incur any cost in so doing. Purchaser hereby agrees zoning ordinances, the lien for current taxes, and any items not objected to timely by Purchaser shall hereinafter be deemed to be permitted exceptions (the "Permitted Exceptions") and Purchaser shall not be entitled to object to the status of title or the survey, or avoid the Closing on account of such Permitted Exceptions. In the event Seller is unable to cure any objections contained in the Objection Notice on or before the expiration of the Feasibility Period, Purchaser may, by written notice delivered on or before the third (3`d) business day following the expiration of the Feasibility Period, terminate this Contract and the Escrow Deposit (hereafter defined), less the Option Fee (hereafter defined) and Seller's Survey Expenses and Attorney's Fees (hereafter defined), shall be forthwith returned by the Title Company to Purchaser, and the Option Fee and Seller's Survey Expenses and Attorney's Fees shall be forthwith paid by the Title Company to Seller. Notwithstanding anything contained herein to the contrary, if Purchaser does not terminate this Contract prior to the third (3`d) business day following the expiration of the Feasibility Period, then any objections made by Purchaser pursuant to the Objection Notice that Seller has not cured and which are shown on the Survey or the Title Commitment, as same may have been updated as of the expiration of the Feasibility Period, shall be deemed to be waived and Purchaser shall be deemed to have accepted the Property subject to the objections, and all such objections and other matters shown on the Title Commitment and/or Survey shall be deemed to be Permitted Exceptions. R1 AL ESTATE PURCHASE CONTRACT- Page 5 #610780 Due Diligence Materials 3.05. On or before ten (10) days after the Effective Date, Seller shall deliver to Purchaser any leases or easements in Seller's possession that are not recorded in the official real estate records of the County Clerk of Collin County, Texas, and any updated or new due diligence materials which Seller might have in its possession or control that relate to the Real Property (the "Due Diligence Materials"), including, without limitation, the following: (a) copies of any environmental assessments; (b) copies of any site topographical map and existing reports, studies, or investigations regarding engineering, soils, geotechnical matters, or environmental matters; (c) ad valorem property tax bills and/or statements for 2008, 2009, 2010, and 2011 (and future years upon receipt); (d) any covenants, conditions, and restrictions and related architectural guidelines affecting the subject tract; and (e) any other written agreements impacting the operation and maintenance of the Property. If the Property is purchased by Purchaser, all Due Diligence Materials shall thereupon be and become the property of Purchaser without the payment of any additional consideration therefor. If this Contract is terminated before the Closing, Purchaser will return the Due Diligence Materials to Seller. Feasibility Period 3.06. Purchaser shall have a period from the Effective Date until forty (40) days following the Effective Date, within which to inspect the Property and determine if the same is suitable for Purchaser's intended use (the "Feasibility Period"). Purchaser shall have until the third (P) business READ. ESTATE PURCHASE CONTRACT - Page 6 #610780 day following the end of the Feasibility Period in which to notify Seller in writing that Purchaser has elected to not proceed to Closing, such determination to be made in Purchaser's sole and absolute discretion, in which case this Contract shall terminate and the Escrow Deposit heretofore delivered by Purchaser to Title Company, save and except the sum of $100.00 which shall be considered non- refundable option money (the "Option Fee") and Seller's expenses in procuring the Survey and in securing legal advice from Seller's attorney concerning this Contract and the Previous Contract (hereinafter collectively referred to as "Seller's Survey Expenses and Attorney's Fees"), shall be returned to Purchaser, and the Option Fee and Seller's Survey Expenses and Attorney's Fees shall be paid to Seller. Seller's Survey Expenses and Attorney's Fees, which shall be deducted from the Escrow Deposit and returned to Seller under the foregoing provision or any other provision of this Contract, shall not exceed the sum of the Escrow Deposit less the Option Fee. Any survey expenses or attorney's fees that Seller incurs in excess of the sum of the Escrow Deposit less the Option Fee shall be Seller's sole responsibility. In the event Purchaser notifies Seller that Purchaser has elected to proceed to Closing, this Contract shall continue in full force and effect. Seller hereby grants to Purchaser during the Feasibility Period the right to enter upon the Property and conduct such tests as Purchaser deems necessary; provided that Purchaser shall indemnify and hold harmless Seller from all claims, actions or causes of action which might occur by virtue of Purchaser's entry upon or testing of the Property; provided, further, that Purchaser shall be responsible for all damages occasioned to the Property arising out of Purchaser's occupation; and provided, further, that Purchaser shall indemnify, defend, and hold harmless Seller and the Property from and against any mechanic's liens or other claims of any nature that may be filed or asserted against the Property or Seller by the contractors, subcontractors, or materialmen performing such work for the Purchaser. Subject to open records laws, all information provided by Seller to Purchaser or obtained by REAL ESTATE PURCHASE CONTRACT - Page 7 #610780 Purchaser relating to the Property in the course of Purchaser's inspection and review of the Property shall be treated as confidential information by Purchaser. Town Council Approval 3.07. Purchaser's obligation to close is contingent upon approval by the Purchaser's Town Council (the "Council Approval") of this Contract. If Purchaser is unable to obtain Council Approval on or before September 26, 2012, then this Contract shall terminate, in which event the Title Company shall return the Escrow Deposit (less the Option Fee and Seller's Survey Expenses and Attorney's Fees) to Purchaser, and the Title Company shall pay the Option Fee and Seller's Survey Expenses and Attorney's Fees to Seller, and neither party thereafter shall have any further obligation to the other hereunder except as expressly provided herein. ARTICLE IV CLOSING 4.01. The Closing (herein so called) of the purchase and sale contemplated by this Contract shall be at the offices of the Title Company on or before October 31, 2012 (the "Closing Date"). 4.02. At the Closing, Seller shall: (a) Deliver to Purchaser a duly executed and acknowledged Special Warranty Deed conveying good and indefeasible title in fee simple to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, restrictions, mineral reservations and leases, except for the following: (1) General real estate taxes for the year of Closing and subsequent years not yet due and payable; (2) One-half (1/2) of the minerals as provided in Section 1.01 of this Contract; and READ, ESTATE PURCHASE CONTRACT - Page 8 #610780 (3) The Permitted Exceptions; (b) Deliver to Purchaser, at Seller's sole cost and expense, a Texas Owner's Title Policy issued by the Title Company, in Purchaser's favor in the full amount of the Purchase Price, insuring Purchaser's fee simple title to the Property, subject only to the Permitted Exceptions and the standard printed exceptions contained in the usual form of Texas Owner's Title Policy containing a survey exception deletion, except as to shortages in area (such survey exception deletion to be at Purchaser's expense); below); (c) Deliver to Purchaser possession of the Property; subject to the Leaseback (defined (d) Deliver to Purchaser the Leaseback, duly executed by Seller; and (e) Deliver to Purchaser the Shared Water Use Agreement (defined below), duly executed and acknowledged by Seller. 4.03. At the Closing, Purchaser shall: (a) Deliver to Seller the full Purchase Price in cash or other immediately available funds acceptable to Seller; (b) Deliver to Seller the Leaseback, duly executed by Purchaser; and (c) Deliver to Seller the Shared Water Use Agreement, duly executed and acknowledged by Purchaser. 4.04. All state, county, and municipal taxes and assessments, if any, for the then current year relating to the Property shall be prorated as of the Closing Date and shall be adjusted at the Closing, Seller being charged and credited for the same up to and on such date and Purchaser being charged and credited for the same after such date. If the actual amounts to be prorated are not known at Closing, the prorations shall be computed on the basis of the best evidence then available. Because REAL Es'rxm PURCHASE CONTRAM - Page 9 #610780 Purchaser is a public entity, all state, county, and municipal taxes for the then current year relating to the Property shall be calculated as of the Closing Date and Seller's share shall be collected by Title Company at the Closing and remitted to the appropriate taxing jurisdictions in accordance with Section 26.11 of the Texas Tax Code. The provisions of this Section shall survive the Closing. NOTICE REGARDING POSSIBLE LIABILITY FOR ADDITIONAL TAXES: IF FOR THE CURRENT AD VALOREM TAX YEAR THE TAXABLE VALUE OF THE LAND THAT IS THE SUBJECT OF THIS CONTRACT IS DETERMINED BY A SPECIAL APPRAISAL METHOD THAT ALLOWS FOR APPRAISAL OF THE LAND AT LESS THAN ITS MARKET VALUE, THE PERSON TO WHOM THE LAND IS TRANSFERRED MAY NOT BE ALLOWED TO QUALIFY THE LAND FOR THAT SPECIAL APPRAISAL IN A SUBSEQUENT TAX YEAR AND THE LAND MAY THEN BE APPRAISED AT ITS FULL MARKET VALUE. IN ADDITION, THE TRANSFER OF THE LAND OR A SUBSEQUENT CHANGE IN THE USE OF THE LAND MAY RESULT IN THE IMPOSITION OF AN ADDITIONAL TAX PLUS INTEREST AS A PENALTY FOR THE TRANSFER OR THE CHANGE IN THE USE OF THE LAND. THE TAXABLE VALUE OF THE LAND AND THE APPLICABLE METHOD OF APPRAISAL FOR THE CURRENT TAX YEAR IS PUBLIC INFORMATION AND MAY BE OBTAINED FROM THE TAX APPRAISAL DISTRICT ESTABLISHED FOR THE COUNTY IN WHICH THE LAND IS LOCATED. 4.05. Each party shall pay any attorney's fees incurred by such party. All other costs and expenses of closing the sale and purchase shall be borne and paid as provided in this Contract, or if this Contract is silent, as is usual and customary for real estate transactions in Collin County, Texas. ARTICLE V REAL ESTATE COMMISSIONS REAL. ES`f'AIT PURCHASE CONTRACT - Page 10 #610780 5.01. Seller and Purchaser each represent to the other that the representing party has not involved any brokers in the negotiation and consummation of this Contract, and to the extent allowed by law, agree to indemnify, defend, and hold the other parry harmless from any breach of this representation. The provisions of this Section shall survive the Closing or the termination of this Contract, as applicable. ARTICLE VI ESCROW DEPOSIT 6.01. Within three (3) business days after the full execution of this Contract by all parties and for the purpose of securing the performance of Purchaser under the terms and provisions of this Contract, Purchaser shall deliver to the Title Company, a check in the amount of Thirty Thousand Dollars ($30,000.00) as the Escrow Deposit (herein so called) which shall apply toward the Purchase Price at Closing. In the event Purchaser fails to timely deliver the Escrow Deposit to Title Company, this Contract may be terminated by Seller until such time as Purchaser delivers the Escrow Deposit to the Title Company. In the event that the Purchaser properly and timely terminates this Contract pursuant to the provisions of Sections 3.04, 3.06, or 3.07 hereof, then the Title Company shall immediately return the Escrow Deposit, less the Option Fee and Seller's Survey Expenses and Attorney's Fees, together with interest accrued on the Escrow Deposit, to Purchaser, and the Title Company shall immediately pay the Option Fee and Seller's Survey Expenses and Attorney's Fees to Seller. In the event that the Purchaser properly and timely terminates this Contract pursuant to the provisions of Section 8.01 hereof, then the Title Company shall immediately return the Escrow Deposit, less the Option Fee, together with interest accrued on the Escrow Deposit, to Purchaser, and the Title Company shall immediately pay the Option Fee to Seller. Seller and Purchaser hereby agree to indemnify and hold harmless Title Company from and against all costs, expenses, claims, REAL ESTATE PURCHASE CONTRACT - Page 11 4610780 liabilities or obligations incurred by the Title Company due to the release to Purchaser by Title Company of the Escrow Deposit (less the Option Fee Seller's Survey Expenses and Attorney's Fees, if applicable) without the consent or authorization of Seller in the event that Purchaser properly and timely terminates this Contract pursuant to the provisions of Sections 3.04, 3.06, 3.07, or 8.01 hereof. ARTICLE VII REPRESENTATIONS 7.01. As a material inducement to the Purchaser to execute and perform its obligations under this Contract, the Seller hereby represents and warrants to the Purchaser as of the date of execution of this Contract and through the date of the Closing as follows: (a) Seller has not received any written notice of, and Seller does not have any knowledge of, any pending or threatened condemnation, litigation, suit, assessment, or similar proceeding affecting the Property or any part thereof, (b) Seller has not received any written notice of, and has no knowledge of, any violation of any restrictive covenant, or any ordinance, regulation, law or statute of any governmental agency, pertaining to the Property, and to Seller's knowledge, Seller is not in default with respect to any order or decree of any court or of any governmental agency or instrumentality; (c) Seller is fully authorized to sell the Property without the joinder of any other person or entity and at Closing will have good and indefeasible fee simple title to the Property free of any liens, security interests, exceptions, conditions, mineral reservations or leases, or encumbrances except as will be disclosed in the Title Commitment; (d) To Seller's knowledge, there are no parties in possession of any portion of the Property; REAL ESTATE PURCHASE CONTRACT - Page 12 #610780 (e) To Seller's knowledge, Seller's execution, delivery, and performance of, and compliance with, this Contract will not result in the violation of or constitute a default under any agreement to which the Seller is a party; and (f) Seller is not aware of the presence or disposal of, on, or with respect to, the Property or any improvements thereon, of any underground storage tank, or of any hazardous or toxic waste or substances, as defined in or regulated by Federal, State, or local law, rule, regulation, ordinance, or other requirement, including, without limitation, any material, waste or substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated biphenyls. Seller further states that it has no knowledge of any contamination of the Property from such substances as may have been disposed of or stored on neighboring tracts, and Seller has no reason to believe that such use or disposal has occurred, either during or prior to its ownership of the Property. 7.02 Notwithstanding anything contained in this Contract to the contrary, except for the warranties of Seller set forth in the Deed from Seller to Purchaser, the representations and warranties of Seller shall survive the Closing for a period of one year, and Seller shall indemnify, defend, and hold Purchaser harmless from any breach of such representations or warranties, including those set forth in the Deed. ARTICLE VIII BREACH BY SELLER 8.01. In the event Seller shall fail to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property for any reason, except Purchaser's default and Seller not being in default hereunder or except for a termination of this Contract by Seller or Purchaser pursuant to a right to do so expressly provided for in this Contract, Purchaser may, as REAL ESTATE PURCHASE CONTRACT - Page 13 #610780 Purchaser's sole and exclusive remedies, either elect to terminate this Contract and obtain the return of the Escrow Deposit and receive an additional sum from Seller equal to the Escrow Deposit, or pursue specific performance of this Contract. The amount of the Escrow Deposit is agreed upon by and between Seller and Purchaser as liquidated damages, due to the difficulty and inconvenience of ascertaining and measuring actual damages, and the uncertainty thereof. The provisions of this Article shall survive the termination of this Contract. UNDER NO CIRCUMSTANCES MAY PURCHASER SEEK OR OBTAIN ACTUAL, PUNITIVE, SPECULATIVE, CONSEQUENTIAL OR OTHER DAMAGES FROM SELLER. ARTICLE IX BREACH BY PURCHASER 9.01. In the event Purchaser should fail to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in this Contract having been satisfied, and Purchaser being in default and Seller not being in default hereunder, Seller may elect to terminate this Contract and receive and retain the Escrow Deposit as liquidated damages for breach of this Contract as its sole and exclusive remedy. The amount of the Escrow Deposit is agreed upon by and between Seller and Purchaser as liquidated damages, due to the difficulty and inconvenience of ascertaining and measuring actual damages, and the uncertainty thereof. The provisions of this Article shall survive the termination of this Contract. UNDER NO CIRCUMSTANCES MAY SELLER SEEK OR OBTAIN ACTUAL, PUNITIVE, SPECULATIVE, CONSEQUENTIAL OR OTHER DAMAGES FROM PURCHASER. ARTICLE X MISCELLANEOUS Survival of Covenants REAL ESTATE PURCHASE CONTRACT - Page 14 #610780 (a) The representations, warranties, covenants and agreements of the parties, as well as any rights and benefits of the parties with respect to such representations, warranties, covenants, and agreements, shall survive the Closing and shall not be merged therein. (b) Notice (i) Any notice required or permitted to be delivered hereunder shall be deemed received upon the earlier to occur of: (A) receipt, if hand delivered, delivered by express delivery service or courier, or delivered by facsimile transmission (with proof of transmission) or (B) two (2) days following the deposit of such written notice in registered or certified mail, return receipt requested, postage prepaid, addressed as first set forth above in this Contract. (ii) No notice to the Purchaser shall be deemed received by the Purchaser unless, in addition to the requirements of subsection (i) above, a copy of the notice is delivered to Purchaser's legal counsel in the same manner as described in subsection (i) above to the following address: Abernathy, Roeder, Boyd & Joplin P.C. Attn: Rebecca Brewer 1700 Redbud Blvd., Suite 300 McKinney, Texas 75069 Fax No.: (214) 544-4044 (iii) No notice to the Seller shall be deemed received by the Seller unless, in addition to the requirements of subsection (i) above, a copy of the notice is delivered to Purchaser's legal counsel in the same manner as described in subsection (i) above to the following address: REAL, ESTATE PURCHASE CONTRACT - Page 15 #610780 J. Wade Campbell Attorney at Law 100 N. Central Expressway, Suite 409 Richardson, Texas 75080 Fax No.: (972) 680-8033 Texas Law to Appjy (c) This Contract 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 Collin County, Texas. Parties Bound (d) This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. Nondisclosure (e) Subject to open records laws, neither party shall disclose to any person or entity (other than Seller's and Purchaser's respective attorneys, accountants and employees who have a need to know) the terms of this Contract or the identity of the parties (except as required to fulfill its obligations hereunder) and shall not issue any press or other informational releases without the express written consent of each party. Legal Construction (f) In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Integration REAL ESTATE PURCHASE CONTRACT - Page 16 #610780 (g) This Contract constitutes the sole and only agreement of the parties hereto and supersedes any prior understanding or written or oral agreements between the parties respecting the within subject matter. This Contract cannot be modified or changed except by the written consent of all of the parties. Time of Essence (h) Time is of the essence of this Contract. Attorneys' Fees (i) Any party to this Contract which is the prevailing party in any legal proceeding against any other party to this Contract brought under or with relation to this Contract or transaction shall be additionally entitled to recover court costs and reasonable attorneys' fees from the non -prevailing party. Gender and Number 0) Words of any gender used in this Contract 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. Com 1 (k) In accordance with the requirements of Section 28 of the Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtain an Owner's Policy. Effective Date of Contract (1) The terms "effective date of this Contract" and "Effective Date" as used herein shall mean the later of the two (2) dates on which this Contract is fully signed by Seller or Purchaser, as indicated by their signatures below, which later date shall be the date of final execution and agreement by the parties. REAL ESTATE PURCHASE CONTRACT - Page 17 #610780 Counterpart Execution (m) To facilitate execution, this Contract may be executed in as many counterparts as may be required; and it shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of all persons required to bind any party, appear on each counterpart; but it shall be sufficient that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on one or more of the counterparts. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Contract to produce or account for more than a number of counterparts containing the respective signatures of, or on behalf of, all of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages. A facsimile, telecopy, or other reproduction of this Contract may be executed by one or more parties hereto and an executed copy of this Contract may be delivered by facsimile, and such execution and delivery shall be considered valid, binding, and effective for all purposes. Internal Revenue Code Section 6045 (n) Seller and Purchaser hereby acknowledge that the Tax Reform Act of 1986 requires the entity closing the transaction to report the terms of any real estate transaction to the Internal Revenue Service. Seller and Purchaser agree that they will request the escrow agent to be the closer of the transaction for purposes of Internal Revenue Code Section 6045. Seller hereby agrees to execute and deliver to the escrow agent at Closing any certificates or other documentation required by the escrow agent in order to comply with these requirements. Agricultural Leaseback REAL ESTATE PURCHASE CONTRACT - Page 18 #610780 (o) Seller and Purchaser hereby agree that immediately upon Closing, Seller shall lease the Property from Purchaser. The written lease agreement evidencing such lease (the "Leaseback") shall be in the form attached hereto and incorporated herein as Exhibit B. Shared Water Use Agreement (p) Seller and Purchaser acknowledge that Seller owns real estate adjacent to the Property (referred to herein as "Seller's Adjacent Property"), and the Property and Seller's Adjacent Property share a boundary line which crosses certain pond areas and traverses along the center of a creek. At Closing, Seller and Purchaser shall execute and deliver to each other an agreement concerning the use of such water in the form attached hereto as Exhibit C (the "Shared Water Use Agreement") Fifty Foot Buffer (q) Seller agrees that following Closing, Seller will not install any ball field improvements including parking lots, but excluding pedestrian bike trails and paths, within the Buffer described on Exhibit D. attached hereto and incorporated herein. Notice of Purchaser's Design Work (r) Purchaser agrees that when Purchaser commences design work for the Property following Closing, Purchaser will give notice thereof to Seller. [the remainder of this page is intentionally left blank; signature page to follow] REAL ESTATE PURCHASE CONTRACT - Page 19 #610780 Exeul4ted on the dates set forth at the signatures of the parties hereto_ SELLER: SEXTON FARMS. L rD- a Texas limited pattaerskuip Wilson A. exton, J ., de uKe'artner Date of Execution: 5--- 1,L=L_ PURCHASER_ TOWN OF PROSPER, TEXAS, a Texas home rule inunicipalit.Y By:_ Itay Smith, M- or Data of Eacecution: E 1 Pago 20 (iAS IRC, TITLE COMPANY ACCEPTANCE: The Title Company acknowledges receipt of the Escrow Deposit on _ at (a.m./p.m.) and accepts the Escrow Deposit subject to the terms and conditions set forth in this Contract. TITLE COMPANY: REUNION TITLE ADDRESS: 1700 Redbud Blvd., Ste. 300 McKinney, TX 75069 Attn: Loretta Boddy Tel. No.: 214-544-4025 Fax No.: 214-544-4044 lboddy@reuniontitle.com REAL. ESTATE PURCHASE CONTRACT - Page 21 #610780 PYAIRIT A DESCRIPTION OF PROPERTY SITUATED in the State of Texas, County of Collin, and City of Prosper, being part of the W. Butler Survey, Abstract No. 112, and being part of a 161.579 acre tract with said premises being more particularly described as follows: COMMENCING at a Spiars capped iron rod found in the west right-of-way line of Coit Road marking the northwest corner of a called 3.051 acre right-of-way dedication tract as recorded under Document No. 20101119001270280 of the Collin County Land Records, being in the north line of said 161.579 acre tract, and from the which the northeast corner of said 161.579 acre tract bears North 89' 37' 55" East, 60.00 feet; THENCE with the west right-of-way line of Coit Road and the west line of said 3.051 acre tract, South 00' 14' 05" East, 343.75 feet to a point in the approximate center of a creek marking the POINT OF BEGINNING for the herein described premises; THENCE with the west right-of-way line of Coit Road, the east line of said premises, the west line of said 3.051 acre tract and the west line of a called 0.6892 acre right-of-way dedication tract as recorded under Document No. 20101119001270290 of the Collin County Land Records as follows: South 00' 14' 05" East, 1,921.03 feet to a Roome capped iron rod set; South 03' 34' 45" West, 150.33 feet to a Roome capped iron rod set; South 00' 14' 05" East, 175.00 feet to a pipe fence corner post; South 44' 53' 01" West, 35.28 feet to a pipe fence corner post in the north right-of-way line of First Street marking the most southerly southeast corner of said premises; THENCE with the north right-of-way line of First Street, the south line of said premises, the north line of said 0.6892 acre tract, and the north line of a called 1.78 acre right-of-way dedication tract as recorded in Volume 5196, Page 1057 of the Collin County Land Records as follows: North 89' 59' 52" West, 125.00 feet to a Roome capped iron rod set; South 86' 26' 22" West, 150.33 feet to a Roome capped iron rod set; North 89' 59' 51" West, 1,521.52 feet to a Roome capped iron rod set marking the southwest corner of said premises; THENCE with the west line of said premises as follows: North 00' 28' 46" East, 687.75 feet to a Roome capped iron rod set at an angle break in a wire fence; North 14' 24' 26" East, 510.21 feet to a Roome capped iron rod set at an angle break in a wire fence; North 20' 22' 42" East, 172.60 feet to a pipe fence corner post marking the northwest corner of said premises; THENCE with the north line of said premises as follows: North 65' 28' 57" East, 519.50 feet to a point for corner in the approximate center of a pond; North 70' 39' 00" East, 208.61 feet to a point for corner in the approximate center of a pond; South 88' 52' 29" East, 210.35 feet to a REAL ESTATE PURCHASE CONTRACT - Page 22 #610780 point for corner in the approximate center of a pond; North 43' 08' 43" East, 299.87 feet to a Roome capped iron rod set in the approximate center of a dam; THENCE with the north line of said premises and the approximate center of a creek as follows: North 42' 38' 34" East, 288.92 feet to a point for corner in the approximate center of said creek; South 78' 41' 48" East, 148.41 feet to a point for corner in the approximate center of said creek; North 20' 20' 56" East, 230.47 feet to a point for corner in the approximate center of said creek; North 72' 58' 01" East, 128.85 feet to the point of beginning and containing 69.503 acres of land. REAL ESTATE PURCHASE CONTRACT - Page 23 #610780 EXHIBIT B FORM OF LEASEBACK AGRICULTURAL LEASE Effective Date: .2012 Landlord: TOWN OF PROSPER Landlord's Address: P.O. Box 307 121 W. Broadway Prosper, Texas 75078 Attn: Ray Smith, Mayor Fax No.: (972) 346-9335 Tenant: SEXTON FARMS, LTD., a Texas limited partnership Tenant's Address: 350 Equestrian Way Prosper, Texas 75078 Attn: Wilson B. Sexton, Jr. Fax No.: Premises: SURFACE ONLY of acres of land located in the City of Prosper, in Collin County, Texas, more particularly outlined and/or described on Exhibit A attached hereto. Notwithstanding anything herein to the contrary, Landlord shall be permitted to do any of the following at any time (and from time to time, as applicable) so long as Landlord gives Tenant at least thirty (30) days advanced written notice thereof. (1) reduce the acreage of the Premises leased to Seller under this Lease (in which event the Rent shall not be reduced); or (2) terminate this Lease (in which event any Rent already paid to Landlord shall not be refunded to Tenant). Rent: One Dollar ($1.00) per year total payable in advance and other good and valuable consideration. Term: This Lease shall be for a term beginning on .2012 and shall end on the day immediately prior to the one year REAL ESTATE PURCHASE CONTRACT" - Page 24 #610780 anniversary thereof. Renewals: Notwithstanding the foregoing, this Lease shall automatically renew for additional one-year terms upon each expiration of the then current term if neither party gives written notice of non - renewal to the other party at least thirty (30) days in advance of the expiration of the then current term. Uses: The Premises shall be used for farming and agricultural purposes and/or livestock grazing purposes. The Premises shall not be used for any other use or purpose whatsoever. Tenant agrees to: 1. Lease the Premises for the entire term beginning on the commencement date and ending on the termination date for the Uses defined above which Uses shall establish and maintain the Premises as an "agricultural use" under Article 8, section 1-d or 1-d-1 of the Texas Constitution or the Texas Tax Code, Section 23.41 to 23.57. 2. Accept the Premises in their present condition "as is," the Premises being currently suitable for Tenant's intended use. 3. Obey all laws, ordinances, orders, rules, and regulations applicable to the use, condition, and occupancy of the Premises. 4. Pay the Rent, in advance, on or before the commencement of each one-year term of this Lease. 5. Allow Landlord or its agents or invitees to enter the Premises to perform Landlord's obligations, inspect the Premises, to show the Premises to prospective purchasers or tenants and other purposes as specifically described and permitted herein. Landlord hereby reserves the right to enter the Premises, or any part thereof, at any time without notice to Tenant. Landlord, its agents or invitees, also hereby retain the right to enter upon the Premises in order to conduct engineering, planning, soils, geotechnical, environmental, surveying, and other studies of the Premises (or portions thereof). To the extent allowed by law, Landlord agrees to pay and indemnify, defend and hold harmless Tenant from and against any loss, attorney's fees, expenses, or claims arising out of the entry of Landlord, its agent or invitees upon the Premises. Notwithstanding anything herein to the contrary, this indemnification shall survive termination of this Lease. 6. Repair, replace, and maintain any part of the Premises damaged by Tenant, its agents, employees, invitees, licensees or visitors. REAL ESTATE PURCHASE CONTRACT - Page 25 #610780 7. Maintain public liability insurance for the Premises in an amount of not less than $500,000 naming Landlord as an additional insured and deliver evidence of same to Landlord prior to the commencement date of this Lease and thereafter when requested. 8. Indemnify, defend and hold harmless Landlord from and against any loss, attorney's fees, expenses, or claims arising out of Tenant's use of the Premises. Notwithstanding anything herein to the contrary, this indemnification shall survive termination of this Lease. 9. Immediately vacate the Premises on termination of this Lease of any portion thereof which may be removed from the Lease. 10. Keep all of the Premises free of trash and debris. Tenant agrees not to: Use the Premises for any purpose other than those stated in the Lease. 2. Allow a lien to be placed on the Premises. 3. Assign this Lease or sublease any portion of the Premises, without the prior written consent of Landlord, which may be withheld for any or no reason; provided, however, Landlord shall not withhold its consent to a sublease from Tenant to James Bradley so long as: (a) the terms of such sublease are agreed upon by Tenant and James Bradley and set forth in writing, (b) such written agreement is provided to Landlord, (c) such sublease is a month to month lease that can be terminated by Tenant with no more than one month's advance written notice to the sublessee, (d) such sublease prohibits any assignment or sublease thereof by the sublessee without Landlord's written consent, and (e) so long as such sublease prohibits the sublessee from causing a breach under this Lease. 4. Litter or leave trash or debris on the Premises or dump or allow dumping of any materials of any kind on any portion of the Premises. In the event of a default hereunder by Tenant, Landlord's remedies shall include termination of the Lease, retaining the Rent (if any), and the right to sue for damages. If this Lease or any term or provision hereof becomes the subject of litigation, the prevailing party in such litigation shall be entitled to recover from the non -prevailing party court costs and reasonable attorney's fees. This Lease, together with the attached exhibits is the entire agreement of the parties and there are no other agreements than those expressly incorporated in this Lease. Any notice required to be given under this Lease shall be deemed delivered when deposited in the United States Postal Service, postage prepaid, certified mail, return receipt requested, addressed to Landlord or Tenant at the addresses set forth herein or to such other address as either party may REAL ESTATE PURCHASE CONTRACT- Page 26 #610780 hereafter provide to the other parry or when sent by fax transmittal to Landlord or Tenant at the fax numbers set forth above. EXECUTED on the dates set forth below, but effective as of the Effective Date set forth above. TENANT: SEXTON FARMS, LTD., a Texas limited partnership Wilson B. Sexton, Jr., General Partner Date of Execution: LANDLORD: TOWN OF PROSPER, TEXAS, a Texas home rule municipality Ray Smith, Mayor Date of Execution: REAL ESTATE PURCHASE CONTRACT - Page 27 #610780 EXHIBIT A TO AGRICULTURAL LEASE SITUATED in the State of Texas, County of Collin, and City of Prosper, being part of the W. Butler Survey, Abstract No. 112, and being part of a 161.579 acre tract with said premises being more particularly described as follows: COMMENCING at a Spiars capped iron rod found in the west right-of-way line of Coit Road marking the northwest corner of a called 3.051 acre right-of-way dedication tract as recorded under Document No. 20101119001270280 of the Collin County Land Records, being in the north line of said 161.579 acre tract, and from the which the northeast corner of said 161.579 acre tract bears North 89' 37' 55" East, 60.00 feet; THENCE with the west right-of-way line of Coit Road and the west line of said 3.051 acre tract, South 00' 14' 05" East, 343.75 feet to a point in the approximate center of a creek marking the POINT OF BEGINNING for the herein described premises; THENCE with the west right-of-way line of Coit Road, the east line of said premises, the west line of said 3.051 acre tract and the west line of a called 0.6892 acre right-of-way dedication tract as recorded under Document No. 20101119001270290 of the Collin County Land Records as follows: South 00' 14' 05" East, 1,921.03 feet to a Roome capped iron rod set; South 03' 34' 45" West, 150.33 feet to a Roome capped iron rod set; South 00' 14' 05" East, 175.00 feet to a pipe fence corner post; South 44' 53' 01" West, 35.28 feet to a pipe fence corner post in the north right-of-way line of First Street marking the most southerly southeast corner of said premises; THENCE with the north right-of-way line of First Street, the south line of said premises, the north line of said 0.6892 acre tract, and the north line of a called 1.78 acre right-of-way dedication tract as recorded in Volume 5196, Page 1057 of the Collin County Land Records as follows: North 89' 59' 52" West, 125.00 feet to a Roome capped iron rod set; South 86' 26' 22" West, 150.33 feet to a Roome capped iron rod set; North 89' 59' 51" West, 1,521.52 feet to a Roome capped iron rod set marking the southwest corner of said premises; THENCE with the west line of said premises as follows: North 00' 28' 46" East, 687.75 feet to a Roome capped iron rod set at an angle break in a wire fence; North 14' 24' 26" East, 510.21 feet to a Roome capped iron rod set at an angle break in a wire fence; North 20' 22' 42" East, 172.60 feet to a pipe fence corner post marking the northwest corner of said premises; THENCE with the north line of said premises as follows: North 65' 28' 57" East, 519.50 feet to a point for corner in the approximate center of a pond; North 70' 39' 00" East, 208.61 feet to a point for corner in the approximate center of a pond; South 88' 52' 29" East, 210.35 feet to a point for corner in the approximate center of a pond; North 43' 08' 43" East, 299.87 feet to a Roome capped iron rod set in the approximate center of a dam; REAL ESTATE PURCHASE CONTRACT - Page 28 #610780 THENCE with the north line of said premises and the approximate center of a creek as follows: North 42' 38' 34" East, 288.92 feet to a point for corner in the approximate center of said creek; South 78' 41' 48" East, 148.41 feet to a point for corner in the approximate center of said creek; North 20' 20' 56" East, 230.47 feet to a point for corner in the approximate center of said creek; North 72' 58' 01" East, 128.85 feet to the point of beginning and containing 69.503 acres of land. REAL ESTATE PURCHASE CONTRACT - Page 29 #610780 FXHTRTT C FORM OF SHARED WATER USE AGREEMENT SHARED WATER USE AGREEMENT STATE OF TEXAS COUNTY OF COLLIN WHEREAS, SEXTON FARMS, LTD, as Seller, hereafter referred to as "SEXTON," and the TOWN OF PROSPER, TEXAS, as Purchaser, hereafter referred to as "PROSPER," have executed an agreement for the sale and purchase of a tract of land being approximately 71,889 acres of land located at the northwest corner of the intersection of First Street and Colt Road in Prosper, Texas, in the William Butler Survey, Abstract No. 112, Collin County, Texas, as more particularly described or depicted in ExhlbitA . attached hereto and incorporated herein for all purposes (the "real property"); and, WHEREAS, the boundary between the real property to be sold to PROSPER and the property to be retained by SEXTON, is a creek including a small lake; and WHEREAS, the property to be retained by SEXTON is described on Exhibit B, attached hereto and incorporated herein for all purposes (the "retained property") WHEREAS, SEXTON, uses the water provided by the creek and the lake to maintain the water table for its water well which supplies the home located on the retained property, and also uses the water for its livestock, to clean its barns and to irrigate its grounds and wishes to secure to itself a superior right to the use of the water after the sale is completed. NOW, THEREFORE THE PARTIES AGREE AS FOLLOWS: SEXTON shall have the use of said water at any time with the right to remove such amounts as it needs for the use of the home, for the watering of its livestock, the cleaning of its barns and the irrigating of its grounds. So long as the creek is flowing, PROSPER may remove water from the creeks and lake provided that after such removal the creek continues to flow. Shared Water Use Agreement Page 1 REAL ESTATE PURCHASE CONTRACT - Page 30 #610780 If the creek is not flowing, PROSPER will not remove any water from the lake unless it replenishes the lake with a sufficient amount of water to raise the level of the lake to the bottom of the overflow pipe of the lake within twenty-four hours of said removal. The parties shall be entitled to damages and injunctive remedies to secure their rights under this agreement. This agreement shall run with the land and inure to the benefit of the successors in title of SEXTON and PROSPER. EXECUTED this day of . 2012. SEXTON FARMS, LTD., a Texas limited partnership By Printed Name: WILSON B. SEXTON, JR. Title: General Partner TOWN OF PROSPER, TEXAS, a Texas home rule municipality By Printed Name: RAY SMITH Its: Mayor Shared Water Use Agreement Page 2 REAL ESTATE PURCHASE CONTRACT - Page 31 #610780 STATE OF TEXAS COUNTY OF COLLIN This instrument was acknowledged before me on , 2012, by WILSON B. SEXTON, JR., general partner, on behalf of SEXTON FARMS, LTD., a Texas limited partnership. Notary Public, State of Texas My commission expires: STATE OF TEXAS COUNTY OF COLLIN This instrument was acknowledged before me on . 2012, by RAY SMITH, Mayor, on behalf of the TOWN OF PROSPER, a Texas home rule municipality. Notary Public, State of Texas My commission expires: Shared Water Use Agreement Page 3 REAL ESTATE PURCHASE CONTRACT - Page 32 #610780 DESCRIPTION OF BUFFER Ks REAL ESTATE PURCHASE CONTRACT - Page 33 #610780