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1991-023expro THIS ORDINANCE REPEALED BY ORDINANCE 91-047 ORDINANCE NO 0 3 AN ORDINANCE APPROVING A CONTRACT PROVIDING FOR THE EXCHANGE OF CERTAIN REAL PROPERTY OWNED BY NCNB AND THE CITY, AUTHORIZING THE ACCEPTANCE OF AN ACCESS EASEMENT FROM NCNB, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City, in accordance with the requirements of TEX LOC GOVT CODE ANN §272 001 (Vernon 1988), has advertised that for the exchange of a certain tract of real property for another tract of real property located at the intersection of Lillian Miller Road and Teasley Lane, and WHEREAS, the City Manager having recommended to the City Council that the said exchange of land be approved, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Council of the City of Denton, Texas, approves the contract between the City and NCNB providing for the exchange of the real property described in the contract, a copy of which is attached hereto as Exhibit "A" and incorporated by reference herein SECTION II That the City Council authorizes the Mayor and City Manager to execute any and all documents necessary to consummate the purchase of real property in accordance with the contract SECTION III That the City Manager is authorized to accept an access easement from NCNB, a copy of which is attached hereto SECTION IV That this ordinance shall become effective immedi- ately upon its passage and approval PASSED AND APPROVED this the day of 1991 BOB CASTLEBERRY, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY (I) APPROVED AS TO LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY ~l BY 16Z& -i~,) PAGE 2 CONTRACT FOR EXCHANGE OF REAL PROPERTY This agreement is made on the 6f day of 1991, by and between the City of Denton, Texas, a municipal co oration, hereinafter referred to as "City", and NCNB Texas Nati al Bank, Trustee, (formerly First National Bank of Dallas), hereinafter re- ferred to as "Bank" It is agreed as follows: 1 NCNB agrees to convey to City, by general warranty deed, upon the terms and for the consideration not forth herein, all that certain real property, situated in the City of Denton, County of Denton, State of Texas and described as follows All that certain lot, tract, or parcel of land situated in Denton County, Texas in the C Poulallier Survey, A-1006 and being part of a tract shown by deed to First National Bank, Trustee, recorded in Volume 718, Page 57 Deed Records of Denton County, Texas and being more particularly de- scribed as follows BEGINNING at the southeast corner of said First National Bank tract; THENCE south 88. 49' 55" west with the south line of said First State Bank tract 493 17' to its southwest corner, THENCE north 1. 10' 05" west a distance of 250 0 feet to a point for a corner; THENCE 880 49' 55" east a distance of 493 17' to a point in the westerly right-of-way line of F M 2181, THENCE south 1. 10' 05" east a distance of 250 Of to the Point of Beginning and containing 2 8304 acres of land 2 City agrees to convey to NCNB, by special warranty deed, upon too terms and for the consideration set forth herein, all that certain real property situated in the City of Denton, County of Denton, State of Texas and more particularly described as follows All that certain lot, tract, or parcel of land lying and being situated in the City and County of Denton, State of Texas, and being part of the C Poulallier Survey, Abstract No. 1006 and being part of tract conveyed to the City of Denton by deed recorded in Volume 2423, Page 154 Real Property Records and also being part of two tracts conveyed to the State of Texas by deeds recorded in Volume 400, Page 341 and Volume 400, Page 334, Deed Records, Denton County, Texas and being more particularly described as follows BEGINNING at the northeast corner of the herein described tract, said point lying in the south line of F M 2181 (Teasley Lane), a public roadway with a right-of-way of 90.0 feet and the west line of Lillian Miller Parkway, a public roadway with a right-of-way of 90 0 feet, THENCE south 10 04' 17" east along the east boundary line of the herein described tract, same being the west line of F M. 2181 (Teasley Lane), passing at 285 79 feet the northeast line of the old curve portion of F M 2181 (Teasley Lane) right-of-way and continuing a total distance of 575 43 feet to a point for corner, said point lying in the southwest right-of-way line of the old curve portion of F.M 2181 (Teasley Lane), same being the northeast boundary line of a tract conveyed to First National Bank by deed recorded in Volume 718, Page 57, Deed Records of Denton County, Texas, said point also being the beginning of a curve to the left having a radius of 671 20 feet, a central angle of 660 33' 54" and a chord bearing and distance of north 41' 00' 11" west, 736 66 feet, THENCE northeasterly along said curve and lines an arc length of 779 78 feet to a point for a corner; THENCE north 700 12' 43" east along the south line of F M 2181 (Teasley Lane) a distance of 62 74 feet to a point for corner; THENCE South 89. 44' 37" east continuing along the south line of F M 2181 (Teasley Lane) passing at 126 36 feet the northeast line of the old curve portion of F M. 2181 (Teasley Lane) right-of-way and continuing a total distance of 413 54 feet to the place of beginning and containing 1.962 acres of land, more or less. City shall deliver said deed to NCNB upon receipt of (a) a general warranty deed from NCNB to city conveying the property described in paragraph 1; and (b) a sum of money equal to the estimated 1991 taxes on said property, prorated from January 1, 1991 through the date of delivery of the deed, at a rate of $3 86 per day 4. Possession of all property, real or personal, covered by this agreement shall be delivered by each party to the other upon exchange of deeds CONTRACT FOR PURCHASE OF REAL PROPERTY/ PAGE 2 5 Closing Date. The transactions shall be closed on or be- fore one hundred eighty (180) calendar days from the date of execu- tion of this agreement by the City and NCNB, or at such other time as the parties may mutually agree, at the office of the escrow agent or at such other location as is mutually agreeable to the parties herein. 6. Integration This agreement constitutes the entire agree- ment between the parties and neither party relies upon any warrants or representation not contained herein. In witness whereof, the parties have executed this agreement on the date first above written. CITY OF DENTON BY ATTEST JENNIFER WALTERS, CITY SECRETARY BY 11 APPROVED AS TO LEGAL FORM DEBRA A. DRAYOVITCH, CITY ATTORNEY BY• NCNB BY TITLE CONTRACT FOR PURCHASE OF REAL PROPERTY/ PAGE 3 i THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on the ylf~ day of u , 1991 by Bob Castleberry, Mayor of the city of Denton, Te3Pas, a Municipal Corporation, on behalf of said Municipal corporation - - - ELP.ASM J VALUAMS N" A&M STATE Of TEXAS a My Oennn. Eta. Mry 16,1989 THE STATE OF TEXAS § COUNTY OF DENTON § T Y PUB - , STATE OF TEXAS This instrument was acknowledge before me on the , 1991 by NOTARY PUBLIC, STATE OF TEXAS ncr.bk day of CONTRACT FOR PURCHASE OF REAL PROPERTY/ PAGE 4 exo ORDINANCE NO AN ORDINANCE APPROVING A CONTRACT PROVIDING FOR THE EXCHANGE OF CERTAIN REAL PROPERTY OWNED BY NCNB AND THE CITY, AUTHORIZING THE ACCEPTANCE OF AN ACCESS EASEMENT FROM NCNB, REPEALING ORDINANCE 91- 023, AND PROVIDING FOR AN EFFECTIVE DATE WHEREAS, the City, in accordance with the requirements of TEX LOC GOVT CODE ANN §272 001 (Vernon 1988), has advertised that for the exchange of a certain tract of real property for another tract of real property located at the intersection of Lillian Miller Road and Teasley Lane, and WHEREAS, the City Manager having recommended to the City Coun- cil that the said exchange of land be approved, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Council of the City of Denton, Texas, approves the contract between the City and NCNB providing for the exchange of the real property described in the contract, a copy of which is attached hereto as Exhibit "A" and incorporated by refer- ence herein SECTION II That the City Council authorizes the Mayor and City Manager to execute any and all documents necessary to con- summate the purchase of real property in accordance with the con- tract SECTION III That the Mayor is authorized to accept an access easement from NCNB, a copy of which is attached hereto as Exhibit "B" SECTION IV That ordinance no 91-023 is hereby repealed That the City Secretary is hereby directed to note on the face of ordinance 91-023 the fact that said ordinance is repealed and superseded by this ordinance SECTION V That this ordinance shall become effective immedi- ately upon its passage and approval PASSED AND APPROVED this the day of , 1991 CASTLEBERRY, MA ATTEST JENNIFER WALTERS, CITY BY APPROV AS 'O LEGAL FORM DEBRA A DRAYOVITCH, CITY ATTORNEY BY PAGE 2 This Exchange Contract ("Contract") is made and entered into as of the Effective Date between NCNB TEXAS NATIONAL BANK, (ASSIGNEE OF THE FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER OF FIRST REPUBLICBANK DALLAS, N A , SUCCESSOR BY MERGER TO REPUBLICBANK DALLAS, N A , FORMERLY KNOWN AS REPUBLIC BANK OF DALLAS), TRUSTEE, and the City of Denton ("City"), a municipal corporation and political subdivision of the State of Texas, acting by and through its duly authorized officers WHEREAS, Bank owns that certain tract of land situated in Denton County, Texas and being more particularly described in Exhibit A ("Tract A") attached hereto and incorporated herein for all purposes, and WHEREAS, City owns that certain tract of land situated in Denton County, Texas and being more particularly described in Exhibit B ("Tract B") attached hereto and incorporated herein for all purposes, and WHEREAS, City wishes to acquire Tract A, and WHEREAS, Bank is willing to convey Tract A to City in exchange for City conveying Tract B to Bank, upon the terms and conditions contained herein, NOW, THEREFORE, for and in consideration of the sum of Ten and N01100 Dollars ($10 00) in cash to each paid in hand by the other, the receipt and sufficiency of which is hereby acknowledged and confessed, and of the mutual agreements contained herein, Bank and city hereby agree as follows 1 Exchange Aareement Upon the terms and conditions contained herein, Bank agrees to convey Tract A to City, and City agrees to convey Tract B to Bank 2 No Creation of Additional Encumbrances by Affirmative Actions A Between the Effective Date and the Closing Date, Bank agrees that Bank will not through affirmative actions taken after the Effective Date create any additional encumbrance affecting Tract A without the express prior written consent of City City agrees that City will not withhold consent to a proposed additional encumbrance affecting Tract A if such proposed additional encumbrance has no material, adverse effect upon the value, development or use of Tract A If Bank through affirmative actions taken after the Effective Date does create any additional encumbrance affecting Tract A without the express prior written consent of City, Bank shall be required to remove any such additional encumbrance at Bank's sole cost and expense prior to or at the Closing B Between the Effective Date and the Closing Date, City agrees that City will not through affirmative actions taken after the Effective Date create any additional encumbrance affecting Tract B without the express prior written consent of Bank Bank agrees that Bank will not withhold consent to a proposed additional encumbrance affecting Tract B if such proposed additional encumbrance has no material, adverse effect upon the value, development or use of Tract B If City through affirmative actions taken after the Effective Date does create any additional encumbrance affecting Tract B without the express prior written consent of Bank, City shall be required to remove any such additional encumbrance at City's sole cost and expense prior to or at the closing 3 Closing Date The transactions contemplated in this Contract shall be closed (the "Closing") on or before one hundred eighty (180) calendar days from the Effective Date, or at a time, on a date and at a place agreeable to both Bank and City 4 A At the Closing, Bank shall (i) execute, acknowledge and deliver to City a General Warranty Deed conveying Tract A to City (the "Bank Deed"), and (ii) deliver possession of Tract A to City B. At the Closing, City shall (i) execute, acknowledge and deliver to Bank a Special Warranty Deed conveying Tract B to Bank (the "City Deed"), and (ii) deliver possession of Tract B to Bank C. At the Closings, Bank and City shall execute, acknowledge and deliver, each to the other, that certain Easement Agreement (herein so called) whereby Bank grants to - 2 - City an easement over and across land owned by Bank, such easement to be for the benefit of Tract A 5 ProRerty Tax Liability A Bank hereby agrees that Bank will pay all estimated 1991 property taxes levied or assessed against Tract A, prorated from January 1, 1991 through Closing, at a rate of $3 86 per day B The provisions of this paragraph 5 shall survive the closing and the delivery of the Bank Deed and the City Deed A Bank will pay the filing fees for the City Deed, and City will pay the filing fees for the Bank Deed B If Bank desires to obtain a title insurance policy covering Tract B, Bank shall pay the premium therefor if City wishes to obtain a title insurance policy covering Tract A, city shall pay the premium therefor If only one party desires such title insurance, that party may select the title company If both parties desire title insurance, then it is agreed that the title insurance company shall be Commonwealth Title Company C If there are any closing costs not allocated to Bank or City herein, such closing costs shall be paid by the party incurring same A For a period of thirty (30) days after the Effective Date, Bank agrees to allow City to enter upon Tract A for the purpose of inspecting same, and for the purpose of conducting such environmental tests, feasibility studies and other tests or studies as City deems advisable If City, in City's sole discretion, is not satisfied with such inspections, tests or studies, City may terminate this Contract by giving written notice of termination to Bank on or before thirty (30) days after the Effective Date In the event City terminates this Contract pursuant to this paragraph 7, City agrees to restore Tract A substantially to its condition prior to City's entry B For a period of thirty (30) days after the Effective Date, City agrees to allow Bank to enter upon Tract B for the - 3 - purpose of inspecting same, and for the purpose of conducting such environmental tests, feasibility studies and other tests or studies as Bank deems advisable If Bank, in Bank's sole discretion, is not satisfied with such inspections, tests or studies, Bank may terminate this Contract by giving written notice of termination to City on or before thirty (30) days after the Effective Date In the event Bank terminates this Contract pursuant to this paragraph 7, Bank agrees to restore Tract B substantially to its condition prior to Bank's entry 8 Authority A Within fifteen (15) days after the Effective Date, City agrees to furnish to Bank, and if necessary, Bank's Title Company, written evidence of the authority of the party(s) executing this Contract on behalf of City City agrees to furnish to Bank, and if necessary, Bank's Title Company, at or prior to the Closing written evidence of the authority of the party(s) executing the City Deed on behalf of City B Within fifteen (15) days after the Effective Date, Bank agrees to furnish to city, and if necessary, City's Title Company, written evidence of the authority of the party(s) executing this Contract on behalf of Bank Bank agrees to furnish to City, and if necessary, City's Title Company, at or prior to the Closing written evidence of the authority of the party(s) executing the Bank Deed on behalf of Bank 9 No Commissions, Bank and city warrant and represent to each other that no real estate brokers', agents' or finders' fees or commissions are due arising in connection with the exchange of Tract A for Tract B, from the execution of this Contract or from the consummation of the transactions contemplated herein, and each party hereto hereby agrees to indemnify and hold the other party harmless from claims made by any person for any such fees, commissions or like compensation claiming to have dealt with the party so indemnifying the other 10 Remedies If Bank breaches any of the agreements of Bank contained in this Contract and such breach is not cured within fifteen (15) days after City has delivered written notice thereof to Bank, City at City's election may either terminate this Contract, or seek all other remedies set forth in this Contract or available at law, in equity or by statute, including specific performance, provided, however, if Bank is unable to deliver title to Tract A free and clear of any encumbrances, City's only remedy - 4 - shall be termination of this Contract unless the encumbrance in question is an encumbrance created after the Effective Date by the affirmative actions of Bank to which City did not consent in writing, in which event City shall be entitled to exercise all of the remedies set forth hereinabove If City breaches any of the agreements of City contained in this Contract and such breach is not cured within fifteen (15) days after Bank has delivered written notice thereof to City, Bank at Bank's election may either terminate this Contract, or seek all other remedies set forth in this Contract or available at law, in equity or by statute, including specific performance, provided, however, if City is unable to deliver title to Tract B free and clear of any encumbrance, Bank's only remedy shall be termination of this Contract unless the encumbrance in question is an encumbrance created after the Effective Date by the affirmative actions of City, in which event Bank shall be entitled to exercise all of the remedies set forth hereinabove li Attorneys' Fees Should either party to this Contract commence legal proceedings against the other to enforce the terms and provisions of this Contract, the party losing in such legal proceedings shall pay the attorneys' fees and expenses of the party prevailing in such legal proceedings 12 Time of Essence Time is important to both Bank and City in the performance of this Contract and they have agreed that strict compliance is required as to any date set forth herein if the final date of any period which is set forth in any term or provision of this Contract falls upon a Saturday, Sunday or legal holiday under the laws of the United States or the State of Texas, then, and in such event, the time of such period shall be extended to the next day which is not a Saturday, Sunday or legal holiday 13 Notices Any notice required or desired to be given to either party hereto shall be deemed to be delivered (i) on the date of delivery, if hand delivered, (ii) one (1) day after sending, if sent by overnight courier, or (iii) if sent by mail, the day the same is posted in a U.S mail receptacle, postage prepaid, certified mail, return receipt requested, to the address of the applicable party set out below such party's signature hereinbelow Either party hereto may change such party's address for notice, but until written notice of such change of address is actually received by the other party, the last address of such party designated for notice shall remain such party's address for notice 14 Severability If any term or provision of this Contract is held to be illegal, invalid or unenforceable, the legality, - 5 - validity and enforceability of the remaining terms and provisions of this Contract shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term or provision there shall be added automatically to this Contract a legal, valid and enforceable term or provision as similar as possible to the term or provision declared illegal, invalid and unenforceable 15 Waiver Either Bank or City shall have the right to waive any requirement contained in this Contract, which is intended for the waiving party's benefit, but, except as otherwise specifically provided herein, such waiver shall be effective only if in writing executed by the party for whose benefit such requirement is intended 16 Cumulative Rights and Remedies Except as specifically limited herein, no right or remedy set forth in this Contract is intended to be exclusive of any other right or remedy set forth in this Contract or by law provided, but each shall be cumulative and in addition to every other right or remedy set forth in this Contract or now or hereafter existing at law or in equity or by statute 17 Captions The captions used in connection with the articles and sections of this Contract are for convenience only and shall not be deemed to expand or limit the meaning of the language of this Contract 18 UAM of Lan age Words of any gender used in this Contract shall be held and construed to include any other gender, and words in the singular shall be held to include the plural, unless the context otherwise requires 19 Exhibits All exhibits, attachments, annexed instruments and addenda referred to herein shall be considered a part hereof for all purposes with the same force and effect as if copied verbatim wherever reference is made to the same 20 No Representations or Warranties A. Except for the special warranty of title contained in the City Deed, Bank hereby acknowledges that City has not made any representations or warranties to Bank with respect to the suitability of Tract B for any intended use, the condition of Tract B (including soil and sub-soil conditions), the appreciation or income potential of Tract B, the zoning of Tract B, the platting of Tract B, availability of utilities to Tract B, access to Tract B, requirements in connection with - 6 - any development of Tract B or any other matter whatsoever Bank further acknowledges and agrees that Bank has investigated all matters of concern to Bank with respect to Tract B prior to the Effective Date and that Bank is not relying on any representation or warranty from City with respect to such matters except for the special warranty of title contained in the City Deed B Except for the general warranty of title contained in the Bank Deed, City hereby acknowledges that Bank has not made any representations or warranties to City with respect to the suitability of Tract A for any intended use, the condition of Tract A (including soil and sub-soil conditions), the appreciation or income potential of Tract A, the zoning of Tract A, the platting of Tract A, availability of utilities to Tract A, access to Tract A, requirements in connection with any development of Tract A or any other matter whatsoever City further acknowledges and agrees that City has investigated all matters of concern to city with respect to Tract A prior to the Effective Date and that City is not relying on any representation or warranty from Bank with respect to such matters except for the special warranty of title contained in the Bank Deed Bank is executing this Contract in a representative capacity only, and it is hereby specifically understood and agreed that such party will not incur any personal liability for breach of warranty or of any other condition, obligation, or representation made herein whether expressly or by implication, and that in the event of such a breach, such party shall be liable only to the extent to which such party holds assets and properties for the specific entity on behalf of which this Contract is executed Notwithstanding the preceding sentence, Bank hereby represents unto City that Bank has the full power and authority to enter into this Contract and all related instruments that may be executed and delivered as required by the Contract, including, but not limited to, the Bank Deed and an access easement agreement the Easement Agreement, and the exculpation provision of the preceding sentence shall not apply to the representation contained in this sentence 21 Entire Attreeme . This Contract embodies the entire agreement between Bank and City with respect to the subject matter hereof and supersedes all prior agreements whether written or oral 22 Amendment. Except as otherwise specifically provided herein, this Contract may not be amended, varied or terminated except by an agreement in writing executed by both Bank and City - 7 - 23 Binding Effect Except as otherwise provided herein, this Contract shall be binding upon and inure to the benefit of Bank and City and their respective successors and assigns 24 Effective Date The effective date of this Contract (the "Effective Date,') shall be the latest date either party signs this Contract EXECUTED by Bank and city as of the Effective Date BAND: CITYi NCNB TEXAS NATIONAL BANXj TRUSTEE CITY OF DENTON By Title rC~3 r $ / f: By Title y,c-p_ ADDRESS FOR NOTICE Howard A Compton, Jr NCNB Texas National Bank 901 Main Street 20th Floor P O Box 831500 Dallas County Dallas, Texas 75283-1500 Date of Execution by Bank 129153/D Municipal Building 215 East McKinney Denton County Denton, Texas 76201 Date of Execution by City /99/ - 8 - ADDRESS FOR NOTICE All that certain lot, tract, or parcel of land situated in Denton County, Texas, in the C Poulallier Survey, A-1006 and being part of a tract shown by deed to First National Bank, Trustee, recorded in Volume 718, Page 57, Deed Records of Denton County, Texas, and being more particularly described as follows BEGINNING at the southeast corner of said First National Bank tract, THENCE south 88 491 55" west with the south line of said First State Bank tract 493 17' to its southwest corner, THENCE north 1 10' 05" west a distance of 250 0 feet to a point for a corner, THENCE north 88 49' 55" east a distance of 493 171 to a point in the westerly right-of-way line of F M 2181, THENCE south 1 10' 05" east a distance of 250 0' to the Point of Beginning and containing 2 8304 acres of land 120768/D - 9 - All that certain lot, tract or parcel of land lying and being situated in the City and County of Denton, State of Texas, and being part of the C Poulallier Survey, Abstract No 1006 and being part of tract conveyed to the City of Denton by deed recorded in Volume 2423, Page 154, Real Property Records and also being part of two tracts conveyed to the State of Texas by deeds recorded in Volume 400, Page 341 and Volume 400, Page 334, Deed Records, Denton County, Texas and being more particularly described as follows BEGINNING at the northeast corner of the herein described tract, said point lying in the south line of F M 2181 (Teasley Lane), a public roadway with a right-of-way of 90 0 feet and the west line of Lillian Miller Parkway, a public roadway with a right-of-way of 90 0 feet, THENCE south 1' 04' 17" east along the east boundary line of the herein described tract, same being the west line of F M. 2181 (Teasley Lane), passing at 285 79 feet the northeast line of the old curve portion of F M 2181 (Teasley Lane) right-of-way and continuing a total distance of 575 43 feet to a point for corner, said point lying in the southwest right-of-way line of the old curve portion of F M 2181 (Teasley Lane), same being the northeast boundary line of a tract conveyed to First National Bank by deed recorded in volume 718, Page 57, Deed Records of Denton County, Texas, said point also being the beginning of a curve to the left having a radius of 671 20 feet, a central angle of 66 33' 54" and a chord bearing and distance of north 41 00' 1110 west, 736 66 feet, THENCE northeasterly along said curve and lines an arc length of 779 78 feet to a point for a corner, THENCE north 70' 121 43" east along the south line of F M 2181 (Teasley Lane) a distance of 62 74 feet to a point for corner, - 10 - THENCE south 89 44' 37" east continuing along the south line of F M 2181 (Teasley Lane) passing at 126 36 feet the northeast line of the old curve portion of F M 2181 (Teasley Lane) right-of-way and continuing a total distance of 413 54 feet to the place of beginning and containing 1 962 acres of land, more or less 120768/D - 11 -