1994-096E:\~PDOCS\ORD\fiAYS
AN ORDIN~CE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF DENTON AND JOE A. AND ELM M. MAYS TO PURCMASE
PROPERTY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; MD
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the city Manager is authorized to execute a
Real Estate Contract between the city of Denton and Joe A. and Ella
M. Mays for the purchase of property, under the terms and con-
ditions contained in said Agreement, which is attached hereto and
made a part hereof, and is authorized to execute any other document
which may be associated with the purchase of said property.
SECTION II. That the city Council hereby authorizes the
expenditure of funds in the amount of $142,500.00 for the purchase
of said property and any closing costs, including the cost of
property survey, as specified in the Agreement.
SECTION III. That this ordinance shall become effective immed-
iately upon its passage and approval.
PASSED AND APPROVED this the /7____~day of ~ , 1994.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FO~:
DEB~ A. DRAYOVITCH, CITY ATTO~EY
REAL ESTATE CONTEACT
STATE OF TEXAS
COUNTY OF DENTON
THIS CONTRACT OF SALE is made by and between JOE A. AND ELLA M.
MAYS (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, the tract of land containing ap-
proximately 4.13 acres of land situated in Denton County, Texas,
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 any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way (all of such real prop-
erty, rights, and appurtenances being hereinafter referred to as
the "Property"), together with any improvements, fixtures, and per-
sonal property situated on and attached to the Property, for the
consideration and upon and subject to the terms, provisions, and
conditions hereinafter set forth.
PURCHASE PRICE
1. Amount of Purchase Price. The purchase price for the
Property shall be the sum of ONE HUNDRED FORTY-TWO THOUSAND FIVE
HUNDRED DOLLARS ($142,500.00).
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 pre-
liminary title report (the "Title Report") 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 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 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 and the Escrow Deposit shall be forthwith
returned by the Title Company to Purchaser; otherwise, this con-
dition shall be deemed to be acceptable and any objection thereto
shall be deemed to have been waived for all purposes.
2. Survey. Upon written request by Purchaser delivered to
Seller 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. 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 comprising the Property,
together with 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 is
unacceptable, then Purchaser shall within the ten (10) day period,
give Seller written notice of this 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 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 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 OF SELLER
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:
PAGE 2
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
pending or threatened condemnation or similar proceeding or asses-
sment 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.
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 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 Environmen-
tal Response Compensation and Liability Act (CERCLA), as amended.
(b) The city of Denton assumes the risk of and agrees to
indemnify and hold Seller harmless, and to defend Seller against
and from all claims, costs, liabilities, expenses (including
without 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 per-
sonal injury to or death of persons whomsoever (including without
limitation employees, agents or contractors of the City of Denton,
Seller or any third party), or causing property damage or destruc-
tion of whatsoever nature or contamination to the environment
(including without limitation property of the City of Denton or
Seller, or property in its or their care, custody, or control, and
third party property), arising out of acts, omissions or events
occurring after Closing.
(c) Seller assumes the risk of and agrees to indemnify and
hold the city of Denton harmless, and to defend the city of Denton
against and from all claims, costs, liabilities, expenses (includ-
ing without limitation court costs and attorney 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 per-
sonal injury to or death of persons whomsoever (including without
limitation employees, agents or contractors of Seller, the city of
Denton or any third party), or causing property damage or destruc-
tion of whatsoever nature or contamination to the environment
(including without limitation property of Seller or the City 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.
PAGE 3
,,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 similar federal, state or local legislation or other rules of
law, and private causes of action of whatever nature which arise
from environmental damage, toxic wastes or other similar causes.
MISCELLANEOUS OBLIGATIONS OF PARTIES
Seller shall be allowed to occupy the property until January 1,
1995.
Seller will be allowed to remove back and front metal gates
(2), 250 gallon propane tank, bird houses with poles, window treat-
ments, and carpeting other than wall-to-wall.
Seller shall not remove the underground butane tank which may
contain butane, and Purchaser assumes all responsibility for the
removal of such tank.
Purchaser has the power of eminent domain, and Seller has
agreed to convey this property rather than face the possibility
that Purchaser's city Council might authorize condemnation of the
property conveyed hereby for landfill purposes.
CLOSING
The closing shall be held at the office of Title
Company, Denton, Texas, on or before , or at such
title company, time, date, and place as Seller and Purchaser may
mutually agree upon (which date is herein referred to as the
"closing date").
CLOSING REQUIREMENTS
1. Seller's Requirements. 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
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;
2. Any exceptions approved by Purchaser
pursuant to Purchaser's Obliqations here-
of; and
PAGE 4
3. Any exceptions approved by Purchaser
in writing.
B. Deliver to Purchaser a Texas Owner's Title Policy at
Seller's sole expense, issued by Title Company,
Denton, Texas, (the "Title Company"), or such title company
as Seller and Purchaser may mutually agree upon, in Purch-
aser'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 Closing
Requirements 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
Title Policy, 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 restrictive cove-
nants shall be endorsed "None of Record";
3. The exception as to the lien 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 Requirements. Purchaser shall pay the full
cash purchase price to Seller at Closing in immediately available
funds.
3. Closing Costs. Through the date of Closing, Purchaser
shall only be responsible for the payment of taxes assessed by the
city of Denton and, Seller shall pay all other taxes assessed by
any other tax jurisdiction through the date of Closing. Any taxes
imposed, assessed or arising because of a change of use of the
Property after closing shall be paid by Seller, save and except
taxes so imposed by the city of Denton, which taxes shall be paid
by Purchaser.
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.
PAGE 5
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 fail 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 specific performance of this Agreement or terminate this
Agreement.
BREACH BY PURCHASER
In the event Purchaser should fail 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-
ranties, 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 mail,
postage prepaid, certified mail, 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 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. 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 6
6. Leqal Construction. In case any one or more of the pro-
visions contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, said in-
validity, illegality, or unenforceability 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 AGreements 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 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.
10. Memorandum of Contract. Upon request of either party,
both parties shall promptly execute a memorandum of this Agreement
suitable for filing of record.
11. ComDliance. In accordance with the requirements of the
Texas Real Estate License Act, Purchaser is 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. Time Limit. In the event a fully executed copy of this
Agreement has not been returned to Purchaser within five (5) days
after !Purchaser executes this Agreement and delivers same to Sel-
ler, Purchaser shall have the right to terminate this Agreement
upon written notice to Seller.
DATED this ~ day of ~ , 1994.
SELLER
Rt. Box 83
Denton, Texas 76208
M. M YS ' /
Rt. 7, Box 83
Denton, Texas 76208
PAGE 7
PURCHASER
THE CITY OF DENTON, TEXAS
~ D~~.'~ELL, ~
215 E. McKinney Street
Denton, Texas 76201
STATE OF TEXAS
COUNTY OF DENTON
~Thi~ instrument was acknowledged before me on
by JOE A. MAYS.
STATE OF TEXAS
COUNTY OF DENTON
This instrument was acknowledged before me on by ELLA M. MAYS.
NOTARY PUB~ ~ A~D FOR TEXAS
STATE OF TEXAS
COUNTY OF DENTON
This instrument is acknowledged before me, on
by LLOYD V. HARRELL, City Manager, of the city of
Denton, a municipal corporation, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said city of
Denton, Texas, a municipal 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
said city for purpose and consideration therein expressed, and in
the capacity therein stated.
PAGE 8
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
A~E~ J~o LE-JL FO~,
DEBRA A. DRAYOVITCH, CITY ATTORNEY
E:\WPDOCS\K\MAYS.K
PAGE 9
THE, STATE OF TF~
cot~xzv ,,,. ~;G,~:_ .. Know ALI Men By ~ Present: 2~q2 ~ [, '
421
EXHIBIT ?'A"
TIlE S'['ATE OF TE,'Q4S, }
Kno~¥ All .\Ich By These Prescnli:
DENTON
~s hereby fully acknowledged,