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1998-209 ORDINANCE NO q~-~OE~ AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A REAL ESTATE CONTRACT WITH CRAIG D JOHNSON AND WIFE, TERRI JOHNSON FOR THE PURCHASE OF APPROXIMATELY 0 181 ACRE TRACT OF LAND KNOWN AS PARCEL NO 17, US HIGHWAY 77, DENTON, DENTON COUNTY, TEXAS FOR THE US HIGI-BVAY WIDENING PROJECT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager ~s hereby authorized to execute a Real Estate Contract with chug D Johnson and wife, Tern Johnson, for the purchase of approximately 0 181 acre of land known as Pared No 17, U S Highway 77, Denton, Denton County, Texas for the U S Htghway W~denmg Project, a copy of wbach ~s attached hereto and ~ncorporated by reference herein SECTION II That the C~ty Council hereby anthonzes the expen&ture of funds ~n the manner and amount as speeffied m the agreement SECTION III That tl~s or&nanee shall become effective ~mme&ately upon ~ts passage and approval PASSED AND APPROVED tins the O~} ~]- day of (~, .~-d-" ,1998 ATTEST JENNIFER WALTERS, CITY SECRETARY ~PROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY l~ndAng ~K:-4 DEaAnage l'ro~loot REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between Craig D. Johnson and wife, Terrl Johnson (hereinafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home rule municipality, of Denton, Denton County, Texas, (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein. PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all that certain tract, lot or parcel of land described in Exhibit "A" attached with all rights and appurtenances pertaining to the said property, including any right, title and interest of Seller in and to adjacent streets, alleys or rights-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together with any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and conditions hereinafter set forth. Seller shall pay all cost for the removal, installation, construction, relnstallatlon, reconstruction, labor and materials for any and/or improvements located within the property described in Exhibit "A". Any improvements not removed by January 1, 1999 shall become property of the City of Denton, Texas. PURCHASE PRICE 1. Amount of Purchase Price. The purchase price for the Property shall be the sum of $3982.00. 2. Pa_vment of Purchase Price. The full amount of the Purchase Price shall be payable in cash at the closing. PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived in whole or in part by Purchaser at or prior to the closing. 1. Preliminary Title Report. Within twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a owners policy commitment (the "Commitment") accompanied by copies of all recorded documents relating to easements, rights-of-way, etc., affecting the Property. Purchaser shall give Seller written notice on or before the expiration of ten (10) days after Purchaser receives the Commitment that the condition of title as set forth in the Commitment is or Ks not satisfactory. In the event Purchaser states the condition of title is not satisfactory, Seller shall, at Seller's option, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser. In the event Seller is unable to do so within ten (10) days after receipt of written notice, this Agreement shall thereupon be null and void for all purposes, otherwise, this condition shall be deemed to be acceptable and any ob3ectlon thereto shall be deemed to have been waived for all purposes. 2. ~/lr_v_~. Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey shall be staked on the ground, and shall show the location of all improvements, highways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of-way on or ad]acent to the Property, if any, and shall contain the surveyor's certification that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together with a metes and bounds description thereof. Purchaser wall have ten (10) days after receipt of the survey to review and approve the survey. In the event the survey is unacceptable, then Purchaser shall within the ten (1,0) day period, give Seller written notice of th~s fact. Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable portions of the survey to the reasonable satisfaction of Purchaser. In the event Seller Ks unable to do so within ten (10) days after receipt of written notice, Purchaser may terminate this Agreement, and the Agreement shall thereupon be null and void for all purposes and the Escrow Deposit shall be returned by the Title Company to Purchaser Purchaser's failure to give Seller this written notice shall be deemed to be Purchaser's acceptance of the survey. 3. Seller's Compllanc~. Seller shall have performed, observed, and complied with all of the covenants, agreements, and conditions required by this Agreement to be performed, observed, and complied with by Seller prior to or as of the closing. REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representations and warranties shall AEE008FE PAGE 2 be deemed made by Seller to Purchaser also as of the closing date' 1. There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, trespassers or other parties. 2. Except for the prior actions of Purchaser, there is no pending or threatened condemnation or similar proceeding or assessment or suit, affecting title to the Property, or any part thereof, nor to the best knowledge and belief of Seller is any such proceeding or assessment contemplated by any goverrumental authority. 3. Seller has complied with all applicable laws, ordinances, regulations, statutes, rules and restrictions relating to the Property, or any part thereof. 4. To the best of the seller's knowledge, there are no toxic or hazardous wastes or materials on or within the Property. Such toxic or hazardous wastes or materials include, but are not limited to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), as amended. CLOSING The closing shall be held at the office of Dentex Tltle Company on Or before August 31, 1998, or at such title Company, t~me, date, and place as Seller and Purchaser may mutually agree upon (which date ~s herein referred to as the "closing date"). CLOSING REQUIREMENTS 1. S~ller's Requirements. At the closing Seller shall. A. Deliver to State of Texas, acting by and through the Texas Transportation Commission a duly executed and acknowledged General Warranty Deed conveying good and marketable title to all of the Property, free and clear of any and all liens, encumbrances, conditions, easements, assessments, and restrictions, except for the following: 1. General real estate taxes for the year of closing and subsequent years not yet due and payable, AEE008FE PAGE 3 2. Any exceptions approved by Purchaser pursuant to Q~ hereof, and 3. Any exceptions approved by Purchaser in wrmting. B. Delmver to Purchaser a Texas Owner's Policy of Title Insurance at Purchaser's sole expense, issued by Dentex Title Company, Denton, Texas, (the "Tmtle Company"), or such title company as Seller and Purchaser may mutually agree upon, mn Purchaser's favor mn the full amount of the purchase price, insuring fee simple title for the State of Texas to the Property subject only to those title exceptlons listed mn ~ hereof, such other exceptions as may be approved in writing by Purchaser, and the standard prxnted exceptions contained in the usual form of Texas Owner's Policy of Title Insurance, provided, however: 1. The boundary and survey exceptions shall be deleted if required by Purchaser and if so required, the costs associated with same shall be borne by Seller; 2. The exception as to restrlctmve covenants shall be endorsed "None of Record"; 3. The exception for taxes shall be limited to the year of closing and shall be endorsed "Not Yet Due and Payable", and 4. The exception as to liens encumbering the Property shall be endorsed "None of Record". C. Deliver to Purchaser possession of the Property on the day of closing. 2. Purchaser's Requlr~m~mts. Purchaser shall pay the consideration as referenced ~n the "Purchase Prmce" section of this contract at Closing in immediately avamlable funds. 3. ~ Seller shall pay all taxes assessed by any tax collectmon authormty through the date of Closing. AEE008FE PAGE 4 Ail other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be paid by Purchaser and Seller. REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of this Agreement shall be the sole responsibility of Seller, and Seller agrees to indemnIfy and hold harmless Purchaser from any and all claims for these commissions. BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of its obligations hereunder or shall fail to consummate the sale of the Property except Purchaser's default, Purchaser may either enforce speclflc performance of this Agreement or terminate this Agreement by written notice delivered to seller. BREACH BY PURCHASER In the event Purchaser should fall to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default Seller may either enforce specific performance of this Agreement, or terminate this Agreement by written notice delivered to purchaser. MISCELLANEOUS 1. As~lqnm~t ~f Aqreement. Thls Agreement may not be assigned by Purchaser without the express written consent of Seller. 2. Survival of Covenants. Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a per~od of tame following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein. 3. Notice. Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mail, postage prepaid, certified mall, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party. AEE008FE PAGE 5 4. Texas Law to Apply. This Agreement shall be construed under and in accordance with the laws of the State of TeXas, and all obligations of the parties created hereunder are performable in Denton County, Texas. 5. ~. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement. 6. L~qal Construction. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be Invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceabllity shall not affect any other provision hereof, and this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 7. Prior Aqre~ments Superseded. This Agreement constitutes the sole and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respecting the within sub3ect matter. 8. ~. Time is of the essence in this Agreement 9. Gender. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 10. Memorandttm of Contract. Upon request of either party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record. 11. ~. In accordance with the requirements of the Texas Real Estate License Act, Purchaser ~s hereby advised that it should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. 12. ~. In the event a fully executed copy of this Agreement has not been returned to Purchaser within ten (10) days after Purchaser executes this Agreement and delivers same to Seller, Purchaser shall have the right to terminate this Agreement upon written notice to Seller. AEE008FE PAGE 6 SELLER PURCHASER ~alg ~.~nson T~oa Benavldes ~_A ~ ~ City Manager ~'~ ~ 215 E. McKinney To'ri jo~n Denton, Texas 76201 STATE OF TEXAS COUNTY OF DENTON ThlA instrument is acknowledged before me, on this o~/%~/,day of k_b~,~/~_~ _ , 1998 by Ted Benavldes, City Manager, of the Clt~ ~f ~ton, a munlc~pal corporation, kno~ to me to be the person and officer whose n~e is s~scr~bed to the foregoing lnstr~ent and acknowledged to me that the s~e was the act of the said C~ty of Denton, Texas, a municipal corporation, that he was duly authorized to perfo~ the s~e by appropriate ordinance of the City Council of the City of Denton and that he executed the s~e as the act of the said C~ty for purposes and conslderatlon therein expressed, and in the capacity there~n stated. ................................. _ _ ~/ ~y Comm~ssmn Exmres 12 19~8 ~ ~ot ary P~l~c in and for ~.,.,':~?.:'.~: ............ .~..... ............. ~ the State of Texas STATE OF TEXAS COUNTY OF DENTON This instrument is acknowledged Before me, on this [~-%k day of ~ , 1998 by ~,Aj%~. ~ ,,% T~% ~'o~ld~p4 . ,~ ,,I . /,I. ~ULH Wlffi~ Notary P~i~c ~n and for ~/~B[IC,~ ~ the State of Texas AEE008FE PAGE 7 EXHIBIT "A" Page 1 of 1 County ~ .. Highway ~ Rev. October 27, 1994 ProjeCt Umlts: From 1,14. 35 To CS J: ~ Account: . FIELD NOTES FOR PARCEL 17 BEING A PARCEL OF LAND SITUATED IN A TRACT CONVEYED TO KENNETH L. DAVIDSON AND WIFE, HELEN L. DAVIDSON, RECORDED IN VOLUME 684, PAGE 326, DEED RECORDS OF DENTON COUNTY, TEXAS {DRDCT), AND BEING SITUATED IN THE N.H. MEISENHEIMER SURVEY, ABSTRACT NO. 810, CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS' COMMENCING for reference at a found 618-inch Iron md for the northeast comer of caid Devidaon traCt, same being the northwest comer of a 0.E20-aere tract of land conveyed to Re=a Sabri, recorded In Volume 1700, Page 648, DRDCT; 155.62 THENCE t~ 35 = 38' 17" W, along a line cominco to said David.on tract and said Sabri tmct~ a distance of feet to a Sat E/8-1n~h Iron md with an aluminum cap bein_g_th._e POINT OF BEGINNING and being a point on ~e new north Hght of way line of U.S. 77; (1) THENCE S 36= 38' 17" W, along said common line, passing at 27.51 fast a found 1/2-~nch iron rod, in all a distance of 61.51 feet to · point for the southeast comer of said Davldson traCt, ~e southwest comer of said Sabri treat, and being a point on the existing north right of way line of U.S. 77; _ _ (2} THENCE N 57= 25' 30" W, along a line common to said Devidann traCt and the existing north right of way line of U.S. 77, a distance of 130.31 feet to · point being the southwest comer of said Davldaon ~act and the southeast comer of · 0.52B-sere tract of land conveyed to Mane Elizabeth Basso, recorded in Volume 2249, Page 600, DRDCT; (3} THENCE N 350 42' 49" E, along a line common to said Oavideon tract and said Sa,ac traCt. psaalng st 34.00 feet, a 1/2-inch Iron md, In all a distance of 59.76 feet to a net 5/8-inch iron md with an aluminum cap and cald point being on the new north right of way line of U.S 77. -= ~-ht of way line of U.S. 77, a distance of 130.34 (4l THENCE B 58° 11' 36" E, along the new norm .,u feet to the POINT OF BEGINNING, and containing 0.181 care, or 7,888 .;lUere feet of land, more or la"a, of which 4,407 ~guam feet reside in a preser~ptive right of way for U.S. 77. ,~)hn-I~: W~ider, R.P.L.S. Texas No. 4285