1996-090C \HPDOCS\ORD\CALLAHAH 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 ROBERT W. CALLAHAN, JAMES E CALLAHANAND ANN C. STARK;
AUTHORIZING THE EXPENDITURE OF FUNDS, AND PROVIDING AN EFFECTIVE
DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the City Manager is hereby authorized to
execute a real estate contract between the City of Denton and
Robert W Callahan, James E. Callahan and Ann C. Stark for property
being more particularly described in Exhibit "A" attached hereto
and incorporated herein by reference
SECTION II. That the City Manager hereby authorizes the
expenditure of funds in the manner and amount as specified in the
agreement.
SECTION III. That this ordinance shall become effective
~mmedlately upon its passage and approval.
PASSED AND APPROVED this the ~~ day of ~, 1996
BOB CASTLEBERRY, MAYy ~
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
NOTE CONTRACT NOT COMPLETED-OWNER WITHDREW OFFER
REAL ESTATE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON §
THIS CONTRACT OF SALE is made by and between ROBERT W.
CALLAHAN, JAMES E. CALLAHAN and ANN C. STARK (hereinafter referred
to as "Seller") and CITY OF DENTON, TEXAS, a home rule municipali-
ty, of Denton, Denton County, Texas, (hereinafter referred to as
"Purchaser" or "City"), upon the terms and conditions set forth
herein.
PURCHASE AND SALE
1. Seller hereby sells and agrees to convey, and Purchaser
hereby purchases and agrees to pay for, the tract of land
containing approximately 151.2 acres of floodplain land and 90.6
acres of non-floodplain land situated in Denton County, Texas, in
the vicinity of Denton's wastewater treatment plant, being more
particularly described in Exhibit A attached hereto and
incorporated herein by reference for all purposes together with all
and singular the rights and appurtenances pertaining to the prop-
erty, including but not limited to any right, title and interest of
Seller in and to adjacent streets, alleys or rights-of-way,
royalties and mineral rights (all of such real property, rights,
water rights or rights to water, 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.
2. Seller, for clarification purposes, agrees this contract
assigns, conveys and/or transfers to Purchaser all leases or other
legal rights Seller has including, without limitation, leases or
legal rights to wells presently being utilized by Lone Star Gas
Company on the sub3ect property
3. Seller, for clarification purposes, agrees this contract
assigns, conveys and/or transfers to Purchaser all water,
Irrigation and flowage rights Seller has in the subject property
and in particular any rights conveyed to Seller by the Texas
Natural Resource Conservation Commission.
PURCHASE PRICE
1. Amount of Purchase Price The purchase price for the
Property shall be the sum of FIVE HUNDRED SEVENTY-FIVE THOUSAND
DOLLARS ($575,000).
2. Payment of Purchase Price The full amount of the
Purchase Price shall be payable in cash at the closing.
MISCELLANEOUS OBLIGATIONS OF THE PARTIES
1. Seller may continue to occupy such port~on of the sub3ect
property for the sole purpose of moving cattle from one location on
property remaining in the ownership of Seller adjacent to the
subject tract to another location on property remaining in the
ownership of Seller adjacent to the subject tract. The method to
be utilized ~n the effectuatlon of the transfer of Seller's cattle
and the portion of the subject tract to be used to accomplish the
transfer of cattle must be approved by Purchaser's Director of
Utllltles. This rlght to occupy the subject property may be
terminated upon twelve months written notice from the Director of
Utilities or h~s/her designee, if the contlnuatlon of such right is
detrimental, in the Purchaser's sole opinion, to the "quiet
enjoyment" of the property by Purchaser
2. Seller shall be responsible for any damage or claim based
on injury or death to person and damage to property arlslng by
reason of Seller's occupancy and use of the subject tract and
Seller agrees to lndemnlfy and hold Purchaser harmless from any
claims or damages filed agalnst Purchaser by reason of Seller's
negligence.
PRELIMINARY OBLIGATIONS OF THE PARTIES
The obligations of Purchaser hereunder to consummate the
transactions contemplated hereby are subject to the satlsfactlon of
each of the following condltlons any of which may be waived in
whole or in part by Purchaser at or prior to the closing
1. Preliminary T~tle Report. Within twenty (20) days after
the date hereof, Seller, at SELLER'S SOLE COST AND EXPENSE, shall
have caused the T~tle Company (hereinafter defined) to issue a pre-
llmlnary tltle report (the "Title Report") accompanied by copies of
all recorded documents relatlng 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 re-
ceives the Title Report that the condition of title as set forth in
the title binder is or is not satisfactory, and in the event Pur-
chaser states the condition is not satisfactory, Seller shall, at
Seller's optlon, promptly undertake to eliminate or modlfy 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 and the Escrow Deposit, if any, shall be
forthwith returned by the Tltle Company to Purchaser; otherwise,
this condition shall be deemed to be acceptable and any objection
thereto shall be deemed to have been waived for all purposes.
PAGE 2
2. Survey. Contemporaneously with Purchaser's delivery of an
executed original of this Agreement, Seller shall within twenty
(20) days from the date hereof, at PURCHASER'S sole cost and
expense, deliver to Purchaser a current survey of the Property,
prepared by a duly licensed Texas land surveyor acceptable to
Purchaser and Seller. 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 adjacent 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 comprlsing the Property, together wlth a metes and
bounds description thereof.
Purchaser will have ten (10) days after receipt of the survey
to review and approve the survey. In the event the survey ~s
unacceptable, then Purchaser shall w~th~n the ten (10) day period,
give Seller written notice of thls 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 is unable to do so w~thln 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, if any, shall be returned by the Title
Company to Purchaser. Purchaser's failure to give Seller this
written notlce shall be deemed to be Purchaser's acceptance of the
survey.
3. Seller's Compliance Seller shall have performed, ob-
served, 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
Seller hereby represents and warrants to Purchaser as follows,
which representations and warranties shall be deemed made by Seller
to Purchaser also as of the closing date.
1. There are no parties in possession of any portion of the
Property as lessees, tenants at sufferance, or trespassers.
2. Except for the prior actions of Purchaser, there is no
pendlng or threatened condemnation, litigation or similar
proceeding or assessment affecting the Property, or any part
thereof, nor to the best knowledge and belief of Seller is any such
proceeding or assessment contemplated by any governmental authority
or other party
PAGE 3
3. Seller has complied with all applicable laws, ordinances,
regulations, statutes, rules and restrictions relating to the
Property, or any part thereof.
4. (a) There are no toxic or hazardous wastes or materials
on or withln 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 Environmen-
tal Response Compensation and Liability Act (CERCLA), as amended
(b) To the extent allowed by law, the City of Denton
assumes the risk of and agrees to indemnify and hold Seller
harmless, and to defend Seller agalnst and from all claims, costs,
liabilities, expenses (~ncludlng w~thout limitation court costs and
attorney's fees), or demands of whatsoever nature or source for any
defects or Environmental Problems, latent or obvious, discovered or
undiscovered, in the real and chattel property to be conveyed
hereunder, causing personal injury to or death of persons
whomsoever (lncludlng w~thout limitation employees, agents or
contractors of the C~ty of Denton, Seller or any third party), or
causing property damage or destruction of whatsoever nature or
contamination to the environment (including without limitation
property of the City of Denton or Seller, or property ~n its or
their care, custody, or control, and third party property), arlslng
out of acts, omissions or events occurring after Closing.
(c) Seller assumes the risk of and agrees to indemnify
and hold the Clty of Denton harmless, and to defend the City of
Denton against and from all claims, costs, l~abllltles, expenses
(lncludlng without limitation court costs and attorney fees), or
demands of whatsoever nature or source for any defects or Environ-
mental Problems, latent or obvious, discovered or undiscovered, in
the real and chattel property to be conveyed hereunder, causing
personal injury to or death of persons whomsoever (including
without limltatlon employees, agents or contractors of Seller, the
C~ty of Denton or any third party), or causing property damage or
destruction of whatsoever nature or contamination to the environ-
ment (including w~thout l~mltatlon property of Seller or the C~ty
of Denton, or property in its or their care, custody, or control,
and third party property), arising out of acts, omissions or events
occurring before Closing.
(d) Seller's and Purchaser's indemnification
responsibilities in § (c) above are limited to a sum not to exceed
the Purchase Price under th~s contract.
(e) Purchaser shall have 30 days from the execution of
this contract by Purchaser to inspect, excavate, and/or bore test
holes on the subject property to determine if environmental
PAGE 4
problems may exist on such property If during such 30 day period,
Purchaser's lnspection uncovers physical features or soil samples
that raise any concerns to Purchaser that an environmental problem
may exist on the subject tract, Purchaser may cancel this contract
on 24 hours written notice. Termination of this contract on the
basis set forth herein will not result ~n any l~abllity to
Purchaser for any expenses Seller has expended prior to such
termination.
(f) "Environmental Problems" means any cause or action
under the federal Comprehensive Environmental Response Compensation
and Liability Act of 1980 (as amended) and any cause or action
arising from slmllar federal, state or local legislation,
regulation or other rules of law, and private causes of action of
whatever nature which ar~se from environmental damage, toxic wastes
or other s~mllar causes.
CLOSING
The closing shall be held at the office of FIRST AMERICAN
TITLE, 222 E. McKlnney, Denton, Texas, on or before May 15, 1996,
or at such title company, time, date, and place as Seller and
Purchaser may mutually agree upon (which date is here~n 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 tltle ~n fee simple 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; and
2. Any exceptions approved by
Purchaser pursuant to Purchaser's
~ hereof, and
3. Any exceptions approved by
Purchaser in writing.
B. Deliver to Purchaser at Seller's sole cost and
expense a TEXAS OWNER'S TITLE POLICY at SELLER'S SOLE
EXPENSE, issued by First American Title Company, 222 E.
PAGE 5
McKlnney, Denton, Texas, (the "Title Company"), or such
title company as Seller and Purchaser may mutually agree
upon, In Purchaser's favor in the full amount of the
purchase price, insuring Purchaser's fee simple title to
the Property subject only to those title exceptions
listed in Clos~na Reaulrements hereof, such other
exceptions as may be approved ~n writing by Purchaser,
and the standard printed exceptions contained ~n the
usual form of Texas Owner's Title Policy, provided,
however:
1. The boundary and survey
exceptions shall be deleted
required by Purchaser and ~f so
required, the costs associated wlth
same shall be borne by Seller; and
2. The exception as to restrictive
covenants shall be endorsed "None of
Record"; and
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 possesslon of the Property on
the day of closing.
D. Seller shall pay any rollback taxes attributable to
the property and indemnifies and holds Purchaser harmless
against the payment of such rollback taxes, ~f any.
2. Purchaser's Requirements. Purchaser shall pay the full
cash purchase price to Seller at Closing in lmmedlately available
funds.
3. lo n Co ts. Through the date of Closing, Seller shall
pay all taxes assessed by any tax ]urlsdlctlon through the date of
Closing. Any taxes lmposed, assessed or arising because of a
chang~ of use of the Property after closing shall be pa~d by
Seller.
Ail 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.
PAGE 6
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 fall to consummate the sale
of the Property except Purchaser's default, Purchaser may either
enforce specific performance of this Agreement or terminate this
Agreement.
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.
MISCELLANEOUS
1. Assignment of AGreement. This Agreement may not be
assigned by Purchaser without the express written consent of
Seller.
2. Survival of Covenants. Any of the representations, war-
rantles, covenants, and agreements of the parties, as well as
any rights and benefits of the parties, pertaining to a period of
time following the closing of the transactions contemplated hereby
shall survive the closing and shall not be merged therein.
3. 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. Tex~s Law to ADD1V. Thls 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. Parties Bound. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs,
executors, administrators, legal representatives, successors and
assigns where permitted by this Agreement
PAGE 7
6 Leqal Construction. In case any one or more of the pro-
vlslons contained in thlsAgreement shall for any reason be held to
be ~nvalld, illegal, or unenforceable in any respect, said in
validity, illegality, or unenforceablllty shall not affect any
other provision hereof, and this Agreement shall be construed as if
the ~nvalid, illegal, or unenforceable provlslon had never been
contained here~n.
7. Prior Aareements Superseded Thls Agreement constitutes
the sole and only agreement of the partles and supersedes any prior
understandings or written or oral agreements between the parties
respecting the within subject matter
8. Tlme of Essence. T~me is of the essence in this
Agreement.
9. Gender. Words of any gender used ~n this Agreement shall
be held and construed to lnclude any other gender, and words in the
singular number shall be held to include the plural, and vlce
versa, unless the context requires otherwise
10. Memorandum of Contract. Upon request of either party,
both partles shall promptly execute a memorandum of this Agreement
suitable for flllng of record.
ll. Compliance. In accordance with the requirements of the
Texas Real Estate License Act, Purchaser is hereby advised that it
should be furnished wlth or obtain a policy of t~tle insurance or
Purchaser should have the abstract covering the Property examined
by an attorney of Purchaser's own selection
12. Time Llmit. In the event a fully executed copy of this
Agreement has not been returned to Seller within thirty (30) days
after Seller executes th~s Agreement and delivers same to
Purchaser, Seller shall have the right to terminate this Agreement
upon wrltten notice to Purchaser
DATED this ~ day of ~ , 1996.
SELLERS PURCHASER
Robert W. Callahan THE CITY OF DENTON, TEXAS
James E. Callahan
Ann C. Stark
By: By
Robert W. Callahan Rick Svhela
Acting C~ty Manager
215 E McKlnney
Denton, Texas 76201
PAGE 8
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY: ~~~
STATE OF TEXAS
COUNTY OF DENTON
This Instrument was acknowledged before me on this day
of , 1996 by Robert W. Callahan in behalf of
himself and James E. Callahan and Ann C. Stark.
Notary Public in and for
State of Texas
STATE OF TEXAS
COUNTY OF DENTON
This instrument is acknowledged before me, on thls day
of , 1996 by RICK SVHELA, Acting City Manager,
of the city of Denton, a municipal corporation, known to me to be
the person and officer whose name is subscrlbed to the foregoing
instrument and acknowledged to me that the same was the act of the
said city of Denton, Texas, a munlc~pal corporation, that he was
duly authorized to perform the same by appropriate ordinance of the
City Council of the city of Denton and that he executed the same as
the act of the sa~d City for purposes and conslderatlon therein
expressed, and in the capacity therein stated.
Notary Public in and for
State of Texas
J \gPDOCS\K\CALLAHAH K
PAGE 9