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1997-221C \DOCS\ORD\HICKORY ORD ORDINANCE NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND HICKORY CREEK DEVELOPMENT PARTNERS, LTD , A TEXAS LIMITED PARTNERSHIP, AUTHORIZING THE CITY MANAGER TO EXECUTE ANY AND ALL DOCUMENTS NECESSARY TO CONSUMMATE THE PURCHASE OF REAL PROPERTY IN ACCORDANCE WITH SAID CONTRACT, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING FOR ANEFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS S~CTION I. That the C~ty Manager ~s hereby authorized to execute a Real Estate Contract by and between the C~ty of Denton as purchaser and H~ckory Creek Development Partners, LTD , A Texas L~m~ted Partnership as seller, a copy of which Contract ~s attached hereto and lncorporated by reference here~n SECTION II. That the City Manager is hereby authorized to execute any and all documents necessary to consummate the purchase of real property in accordance w~th sa~d Contract ~ That the C~ty Council hereby authorizes the expenditure of funds as provided in the Contract SECTION IV. That this ordinance shall become effective immediately upon ~ts passage and approval PASSED AND APPROVED this the~~-~ day of ~, 1997 GAC~:~t~ILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between Hickory Creek Development Partners, LTD, a Texas limited partnership (hereinafter referred to as "Seller") and the CITY OF DENTON, TEXAS, a home rule municipality, of Denton County, Texas (hereinaf- ter 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 consisting of 2 909 acres of land, more or less, as described in Exhibit "A" attached hereto, together 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 sub3ect to the terms, provisions, and conditions hereinaf- ter set forth PURCHASE PRICE 1 Amount of Purchase Price The purchase price for the Property shall be the sum of $200,000 00 2 PaYment 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 trans- actions 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 owner' s 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 not~ce 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 is 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 Purchaser understands that Seller is under no obligation to cure any title defects complazned of by Purchaser stated ~n Purchaser's wrltte~ notice to Seller as provided in th~s paragraph 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 al~l purposes, otherwise, th~s condition shall be deemed to be acceptlable and any ob]ectzon thereto shall be deemed to have been wa~ve~ for all purposes 2 S~rvev Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly lzcensed Texas land surveyor acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all improvements, h~ghways, streets, roads, railroads, r~vers, creekS, or other water courses, fences, easements, and rights-of- way o~ or adjacent to the Property, ~f any, and shall contain the surveyor's certzfmcatlon that there are no encroachments on the Property and shall set forth the number of total acres comprising the P~operty, together with a metes and bounds description thereof Purchaser w~ll have ten (10) days after receipt of the survey to review and approve the survey In the event the survey zs unacceptable, then Purchaser shall within the ten (10) day perzod, gzve Seller written notice of this fact Seller shall, at Seller's option, promptly undertake to eliminate or modify the unacceptable port~6ns of the survey to the reasonable satzsfactlon of Purchaser In the event Seller is unable to do so w~thln ten (10) days after recezpt of written not~ce, Purchaser may terminate this Agreement, and the Agreement shall thereupon be null and void for all purposes. Purchaser's failure to gmve Seller thzs written notzce shall be deemed to be Purchaser's acceptance of the survey 3. Seller's Compliance Seller shall have performed, ob- serve~, and complied wmth all of the covenants, a~reements, and condltzons required by this Agreement to be performed, observed, and complied w~th by Seller prior to or as of the closzng 4. Purchaser's Construction of Fence Purchaser shall construct approximately 760' of 6' minimum and 8' maxzmum h~gh screening fence composed of wood or plastic mater~al, or such other fence material as is reasonably approved by Seller, along the common boundary l~ne between lot 4 and lots 1, 3, and 5 of the proposed Shore Haven Addition ~n the C~ty of Hickory Creek Denton Count~, Texas Th~s fence shall extend south and west from the building line south of ~he right-of-way of the proposed Wood Lake Road ~o the Corp of Engzneers boundary l~ne for Lake Lew~sv~lle as illustrated by Exhibit "B" attached hereto The fence shall be completed within 180 days from the date of closzng The fence shall be malntazned and kept ~n good cond~tzon and repair by Purchaser so long as Purchaser owns the Property This covenant shallI survive closing AEE008F8 PAGE 2 5 Relocation of Entry Gate to Purchaser's Property. The existing entry gate to the Property shall be relocated by Purchaser to a location to the south which is mutually agreeable to Seller and Purchaser The relocation of the gate is for the purpose of allowing access to the Purchaser to the Property without obstruct- lng exlstlng and proposed roads and r~ght-of-way The gate shall be relocated w~thln 180 days from the date of closing This covenant shall survive closing REPRESENTATIONS AI~D WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser, to the best of 1ts current knowledge, as follows, which representations and warranties shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no part~es 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 asses- sment or suit, affecting t~tle to the Property, or any part thereof, nor to the best knowledge and belief of Seller ~s any such proceeding or assessment contemplated by any governmental authori- ty 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 Republic Title Company, 300 Crescent Court, Suite 100, Dallas, Texas 75201 (Attn D Lansing) on or before September 30, 1997 (which date is herein referred to as the "closing date") CLOSING REQUIREMENTS 1 Seller's Reau~rements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged General Warranty Deed conveying good and marketable title in fee simple to all of the Property, free and clear of any AEE008F8 PA~E 3 and all liens, encumbrances, conditions, 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, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obllaatlons here- of, and 3 Any exceptions approved by Purchaser in writing B Deliver to Purchaser a Texas Owner's Policy of Title Insurance at Seller's sole expense, issued by Republic Title Company, Dallas, Texas (the "Title Company"), in Purchaser's favor in the full amount of the purchase price, insuring Purchaser's fee simple title to the Property sub]ect only to those title exceptions listed in Closln~ ~ hereof, such other exceptions as may be approved in writing by Purchaser, and the standard printed exceptions contained in the usual form of Texas Owner's Policy of Title Insurance, provided, however 1 The boundary and survey exceptions shall be deleted if required by Purchaser, and if so required, the costs associated with same shall be borne by Purchaser, 2 The exception as to restrictive cove- nants shall be endorsed "None of Record", 3 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 Reaulrements Purchaser shall pay the consideration as referenced in the "Purchase Price" section of this contract at Closing in immediately available funds 3. ~ Seller shall pay all taxes assessed by any tax collection authority through the date of Closing All other costs and expenses of closing in consummating the sale and purchase of the Property not specifically allocated herein shall be equally shared by Purchaser and Seller AEE008F8 PA(}E 4 REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummation of this A~reement shall be the sole responslbzllty of Seller, to the extent, Seller has agreed to pay any such real estate commission in writing, and Seller agrees to lndemnzfy and hold Purchaser harmless from any and all claims for any such commissions BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of its obligations hereunder or shall fall to consummate the sale of the Property except Purchaser's default, Purchaser as its sole and exclusive remedy may either enforce specific performance of this Agreement or terminate this Agreement by written notice delzvered to Seller BREACH BY PURCHASER In the event Purchaser should fall to consummate the purchase of the Property, the condztlons to Purchaser's obllgatzons set forth in PURCHASER'S OBLIGATIONS having been satzsfled and Purchaser being in default Seller as its sole and exclusive remedy may ezther enforce specific performance of this Agreement, or terminate this Agreement by written notice delivered to Purchaser MISCELLANEOUS PROVISIONS 1 Asszanment of Aareement This Agreement may not be asszgned by Purchaser w~thout the express written consent of Seller 2 Survival of Covenants Any of the representations, war- rantles, covenants, and agreements of the partzes, as well as any r%ghts and benefits of the parties, pertaining to a perzod of time following the closing of the transactions contemplated hereby shall'survive the closing and shall not be merged there~n 3. Notice Any notice required or permitted to be delivered hereunder shall be deemed received when sent by United States mall, postage prepaid, certified mall, return receipt requested, addres- sed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party 4. Texas Law to Aoolv 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 respectzve legal representatives, successors and assigns where permitted by this Agreement AEE008F8 PAGE 5 6 Leqal Construction. In case any one or more of the pro- vlslonls contained ~n this Agreement shall for any reason be held to be invalid, ~llegal, or unenforceable in any respect, said validity, illegality, or unenforceablllty shall not affect any other provision hereof, and this Agreement shall be construed as ~f the invalid, illegal, or unenforceable provision had never been contained herein 7 ~ Pr%or Aareements Superseded Th~s Agreement constitutes the so~e and only agreement of the parties and supersedes any prior understandings or written or oral agreements between the parties respec'ting the within subject matter 8 Time of Essence 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 lQ ~ In accordance with the requirements of the Texas,Real Estate Lmcense Act, Purchaser is hereby advised that ~t should be furnished with or obtaln a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection i1 ~ 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 del~vers same to Sel- ler, purchaser shall have the right to terminate this Agreement upon Written notice to Seller DATED this ~'~zZ day of /~g~/~/~ , 1997 &, PURCHASER THE CITY OF DENTON, TEXAS Ted Benavldes City Manager 215 E McKlnney Denton, Texas 76201 AEE008F8 PA(~E 6 ATTEST JE~I~ER WALTERS, CITY SECRETLY APPR~ED AS TO LEGAL FO~. HERBERT L PROUTY, CITY ATTO~EY SELLER Hickory Creek Development Partners, LTD, a Texas Limited Partnershzp BY HSM Development, Inc a Texas Corporation, its General Partner Don R Plunk, President ATTEST AEE008F8 PAGE 7 "EXHIBIT A' ALL that certain lot, tract or parcel of land lying and being situated in the City of Hi .,kory Creek and the County of Denton, State of Texas, in the S. Jones Surv~ ;y, Abstract No. 1S98 and being part of a 32.936 acre tract conveyed to Hick Dry Creek Development Partners, Ltd by deed recorded as 96-R0068064 in th~ Real Property Records of Denton County, Texas and being more particularly described as follows: BEGINNING at the southeast corner of said 32.936 acre tract, same being the southeast corner of said Jones Survey; THENCE North 89° 38' 16" West a distance of 319.42 feet to a paint for coFneF; THENCE North 4S° 54' 28" West a distance of 137.83 feet to a point for corner;, THENCE North 44° 30' S2" East a distance of 92.88 feet to a point for corner; THENCE North 89° 0S' 00" East a distance of 12S.68 feet to a point for corner; THENCE North 22° 01' 44" East a distance of 538.10 feet to a point for coro r; THENCE North 00° 21' 44" East a distance of 10.32 feet to a point for corner; THENCE South 89° 38~ 16" East a distance of 30.00 feet to a point for corner; THENCE South 00° 21' 44" West a distance of 675.12 feet to the POINT OF BEGINNING and containing 2.909 acres of land. - SHORE HA YEN ADDITION ...... e~a~.~ OF BI~GINNING