2001-119S:\Our Documents\Ordin=csl0l\US77Galat mWOrd.doc
ORDINANCE NO. &0/ --I / q
AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON AND GALATYN PARK CORPORATION RELATING TO THE PURCHASE OF
APPROXIMATELY 0.439 ACRES OF LAND AND 1.523 ACRES OF LAND BOTH BEING
LOCATED IN THE ALEXANDER WHITE, ABSTRACT NO. 1406 OF DENTON COUNTY,
TEXAS FOR THE US HIGHWAY 77 PROJECT, WITH TITLE VESTING IN THE STATE
OF TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE. (PARCELS 1 & 3)
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to execute a Real Estate Contract
between the City of Denton and Galatyn Park Corporation in substantially the form of the Real
Estate Contract which is attached to and made a part of this ordinance for all purposes, for the
purchase of approximately 0.439 acres of land and 1.523 acres of land for the U.S. Highway 77
Project, with title vesting in the State of Texas.
SECTION 2. The City Manager is authorized to make the expenditures as set forth in the
attached Real Estate Contract.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the a day of 12001.
&dt4~ la~CL
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
BY:
Purchase and Sale Agreement
Seller: GALATYN PARK CORPORATION
1601 Elm Street
Suite 5000
Dallas, Texas 75201
Attention: Mr. Donald Dillard, Vice President
PHONE: (214) 922-1065
FAX: (214) 922-1060
Purchaser: THE CITY OF DENTON, TEXAS
215 E. McKinney
Denton, Texas.76201
Attention: Michael W. Jez
PHONE:
FAX:
Property: Two (2) tracts of land containing approximately 1.962 acres located in
Denton, Denton County, Texas, more particularly identified as parcel 1 and
parcel 3 on Exhibit A hereto, together with all rights, privileges, easements
and other appurtenances thereto, including, without limitation, water, water
rights, and development rights related thereto.
Title Company: Texas Title Company
2215 South Loop 288
Suite 320
Denton, Texas 76205
Closing Date: On or before April 30, 2001, or on such other date as the Parties may agree.
1
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
Consideration: The consideration for the transactions contemplated hereby will be the sum
of the following: (i) $42,000.00 as payment for the Property; and (ii)
$6,517.60 as reimbursement to Seller for expenses to be incurred by Seller
in connection with the removal and reinstallation of Seller's fences.
1. Sale and Purchase. Seller agrees to sell, and Purchaser agrees to purchase, the
Property as provided in this Agreement.
2. Title, Survey and Tax Certificates. Within twenty (20) days after the date of this
Agreement, Seller, at its expense, shall deliver to Purchaser: (a) a current commitment for title
insurance for the Property, from the Title Company setting forth the state of title to the Property
together with any easements or restrictions (existing or created pursuant hereto) benefiting the
Property, together with all exceptions or conditions to such title, (b) legible copies of all documents
referenced in the title commitment, (c) a current Survey (plat and field notes) of the Property,
certified to Purchaser and Title Company, complying with the standards for a Texas Society of
Professional Surveyors Category IA, Condition Il survey, reflecting the number of square feet area
in the Property, and (d) tax statements for the current and the immediate preceding years.
3. Review of Title and Survey Purchaser shall have ten (10) days after the receipt of
all items specified in Paragraph No. 2. by which to notify Seller in writing of any objections
Purchaser has to any matters shown or referred to in the title commitment, the documents referred
to in the commitment, or on the Survey. Any title encumbrances, exceptions or other matters which
are set forth in the title commitment, the document referred to in the commitment, or on the Survey,
and to which Purchaser does not object within the Inspection Period, shall be deemed to be permitted
exceptions to the status of Seller's title (the "Permitted Exceptions").
4. Obiections to Status of Title and Survey. If Purchaser objects to any item shown
or referred to in the title commitment, or Survey within the period specified in Paragraph No. 3.,
Seller shall be given until the end of such period (the "Cure Period") to cure, at Seller's option and
sole discretion, but without any obligation to do so, any objection to the condition of title raised by
Purchaser. If Seller is either unable to cure such objections within the Cure Period, or chooses not
to do so, Purchaser may, at its option exercisable through the Closing Date either (x) accept such title
as Seller can deliver, in which case all exceptions to title set forth in the Title Commitment,
documents referred to in the commitment and Survey which are not removed shall be deemed to be
Permitted Exceptions, or (y) terminate this Agreement by notice in writing to Seller in which event
neither party shall have any further rights, duties or obligations hereunder, except as otherwise
provided in paragraph 5 hereof. In the event Purchaser fails to notify Seller prior to Closing, that
Purchaser has elected to proceed under either subpart (x) or (y) of the immediately preceding
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
sentence, Purchaser shall be deemed to have elected to proceed under subpart (x), and this
Agreement shall remain in full force and effect.
5. Closin2F. The closing of the sale of the Property shall occur at 9 a.m. on the Closing
Date therefor at the Title Company. At the closing; (a) Seller shall deliver to Purchaser (1) a special
warranty deed in the form attached hereto and made a part hereof as Exhibit "B" conveying
indefeasible title to the Property to the State of Texas subject only to such exceptions as Purchaser
approved during its examination of the title commitment and survey, and in any event free of all
liens; (2) a Texas owners policy of title insurance (or equivalent) in the amount of that portion of,
with such endorsements as Purchaser may reasonably request, insuring such title in Purchaser; (3)
a certificate complying with the Internal Revenue Code that Seller is not a foreign person; and (4)
possession of the Property, free of parties in possession and in the same condition as on the date of
this Agreement; and (b) Purchaser shall deliver to Seller the Consideration attributable to the
Property, therefor in cash or immediately available fiends, adjusted as provided below.
Ad valorem taxes, assessments, and any other charges against the Property acquired
shall be prorated at closing, based on prior years taxes, Seller being charged for the same through
the Closing Date and Purchaser being responsible thereafter. Notwithstanding the foregoing, if
Seller or Seller's predecessors in title have claimed any partial or total exemption from taxation of
the Property based upon agricultural or open space use or any other use which may affect such partial
or total exemption or if any taxes or assessments are imposed or proposed against or related to the
Property after the Closing due to the termination of an exemption or for any other reason and which
apply to or are based, calculated or assessed in some manner on periods prior to the Closing, such
taxes accruing for periods prior to the Date of Closing which would be or are occasioned by
Purchaser's development or change of use of the Property shall be paid by Seller to the Purchaser
at the time such tax is billed by the appropriate taxing authority for payment of the aforementioned
taxes. Seller's obligation to pay such additional taxes shall survive Closing.
Seller hereby agrees to pay and be responsible for the following Closing costs: (i) the
cost of all tax certificates relating to all taxes and other assessments incurred or arising in relation
to the Property; (ii) all fees and premiums for the Survey and Title Binder; (iii) one-half (1/2) of the
Title Company's escrow fees; (iv) all costs and expenses incurred by or on behalf of Seller including
Seller's attorney's fees; (v) such other incidental costs and fees customarily paid by sellers of
property in Denton County, Texas in transactions of a similar nature to the transaction contemplated
herein.
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
Purchaser hereby agrees to pay and be responsible for the following Closing costs:
(i) one-half (1/2) of the Title Company's escrow fees; (ii) all costs and expenses incurred by or on
behalf of Purchaser, including Purchaser's attorney's fees; (iii) all fees and premiums for the Owner's
Title Policy; and (iv) such other incidental costs and fees customarily paid by purchasers of property
in Denton County, Texas on transactions of a similar nature to the transaction contemplated herein.
6. Representations and Warranties of Purchaser: Purchaser and each of the persons
executing this Contract on its behalf represents and warrants to Seller as of the date hereof and as
of the Closing Date as follows (which representations and warranties shall survive the Closing):
(i) Purchaser has full right and authority to enter into this Contract and to
consummate the transactions contemplated herein;
(ii) each of the persons executing this Contract on behalf of Purchaser is
authorized to do so; and
(iii) this Contract constitutes a valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms.
7. Representations and Warranties of Seller. Seller and each of the persons
executing this Contract on its behalf represents and warrants to Purchaser as of the date hereof and
as of the Closing Date as follows (which representations and warranties shall survive the Closing)
that to the current actual knowledge of Seller:
(i) Seller is corporation duly organized and in good standing under the laws of
the State of Delaware. The execution and delivery of this Contract by the
signatories hereto on behalf of Seller and the performance of this Contract by
Seller have been duly authorized by Seller, and this Contract is binding on
Seller and enforceable against Seller in accordance with its terms;
(ii) There is no suit, action, legal or other proceeding pending, or threatened,
which affects the Property;
(iii) Seller has not received any notice whatsoever that the location, construction,
occupancy, operation or use of the Property violate any applicable law,
statute, ordinance, rule, regulation, order or determination or any
governmental authority or any board of fire underwriters (or other body
exercising similar functions), or any restrictive covenant or deed restriction
or zoning ordinance or classification affecting the Property, including,
without limitation, all applicable building codes, flood disaster laws and
health and federal and state environmental laws and regulations. Except as
4
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
set forth on Schedule One, Seller is not aware of any hazardous substances
being located at the Property or of the Property, or any part thereof, being in
violation of any federal or state environmental laws; and
(iv) Except as set forth on Schedule One, Seller has not received any notice of any
condemnation or similar proceedings having been instituted or threatened
against the Property or any part thereof nor is any such proceeding threatened
or contemplated of which Seller has not received formal notice.
The representations and warranties made by Seller in this Contract or in any
document executed in connection herewith shall survive the closing and delivery of the deed and
other closing documents by Seller to Purchaser, and shall not be deemed to have merged therewith
for a period of six (6) months. If, after the Closing, Purchaser becomes aware of any
misrepresentations or breaches of warranties of Seller contained in this Contract or in any document
executed in connection herewith, then (i) Purchaser must give written notice of such
misrepresentation or breaches of warranties to Seller on or before the expiration of six (6) months
after the Closing, such written notice to state the nature of such misrepresentations or breaches of
warranties, (ii) any suit by Purchaser for any misrepresentations or breaches of warranties by Seller
must be filed on or before one (1) year after the Closing or shall be forever barred, and iii
Purchaser's remedies for such misrepresentations or breaches of warranties shall be limited to the
actual damages incurred by Purchaser as a result of such misrepresentations or breaches of warranties
but in no event exceeding the net sales proceeds actually received by Seller as a result of the sale of
the property. Purchaser shall not be entitled to any consequential, speculative of punitive damages
as a result of any misrepresentations or breaches of warranties by Seller contained herein or any
documents executed in connection herewith.
8. NO OTHER REPRESENTATIONS OR WARRANTIES OF SELLER,
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT MADE, AND
SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR
CONCERNING, (a) THE NATURE AND CONDITION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND THE SUITABILITY
THEREOF AND OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE EXISTENCE, NATURE AND
EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR USE, LIEN,
ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF
THE PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER
AGREES TO ACCEPT THE PROPERTY AND ACKNOWLEDGES THAT THE SALE OF THE
PROPERTY AS PROVIDED FOR HEREIN IS MADE BY SELLER, ON AN "AS IS, WHERE IS,
Purchase and Sale Agreement 5
The City of Denton, Texas
April 3, 2001
AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY ACKNOWLEDGES THAT
EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN AND EXCEPT FOR ANY
WARRANTY OR TITLE CONTAINED IN THE SPECIAL WARRANTY DEED TO BE
DELIVERED BY SELLER TO PURCHASER AT CLOSING, SELLER MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, ORAL, OR WRITTEN, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTY OR CONDITION, HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR USE OR PURPOSE WITH RESPECT TO THE PROPERTY.
PURCHASER ACKNOWLEDGES THAT PURCHASER IS NOT RELYING ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER REGARDING THE
PROPERTY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF
THIS CONTRACT, SELLER HAS MADE AND MAKES NO REPRESENTATION, WARRANTY
OR GUARANTY, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY,
GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE,
WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE PROPERTY
(OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR
MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY
LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION
PERTAINING TO ENVIRONMENTAL OR SUBSTANCE REGULATION, CONTAMINATION,
CLEANUP OR DISCLOSURE (INCLUDING ASBESTOS) AND SHALL HAVE NO LIABILITY
TO PURCHASER THEREFOR. BY ACCEPTANCE OF THIS AGREEMENT AND THE
SPECIAL WARRANTY DEED TO BE DELIVERED BY SELLER AT THE CLOSING,
PURCHASER ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY FOR INSPECTION
AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY
THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER'S
OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR
BENEATH THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH
HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF
THE PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER,
HEREBY FULLY RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS
EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES AND
AGENTS, AND THEIR RESPECTIVE PERSONAL REPRESENTATIVES, HEIRS,
SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY, DAMAGE, EXPENSE,
DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO ANY
ERRORS, OMISSION, OR OTHER CONDITIONS AFFECTING THE PROPERTY.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL
BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS
Purchase and Sale Agreement 6
The City of Denton, Texas
April 3, 2001
AND PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THIS
COVENANT RELEASING SELLER SHALL BE BINDING UPON PURCHASER, ITS
PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS. THIS WAIVER
AND RELEASE OF CLAIMS SHALL SURVIVE THE CLOSING.
NOTHING HEREIN SHALL BE CONSTRUED TO RELEASE, DISCHARGE OR HOLD
HARMLESS, ANY OF SELLER'S PREDECESSORS IN TITLE.
9. Conditions to Purchaser's Obligations. Purchaser's obligation under this
Agreement to purchase the Property is subject to the fulfillment of each of the following conditions
(any or all of which may be waived by Purchaser):
(a) Seller shall be ready, willing and able to deliver title to the Property in accordance
with the terms and conditions of this contract;
(b) Seller shall have delivered all the documents and other items required pursuant to
Paragraph No. 2, and shall have performed, in all material respects, all other
covenants, undertakings and obligations, and complied with all conditions required
by this Agreement to be performed or complied with by the Seller at or prior to the
Closing;
10. Conditions to Seller's Obligations. Seller's obligations under this Agreement to sell
the Property to Purchaser is subject to the fulfillment of each of the following conditions (all or any
of which may be waived by Seller):
(a) The representations and warranties of Purchaser contained herein shall be true,
accurate and correct as of the Closing date;
(b) Purchaser shall have delivered the funds required hereunder and shall have
performed, in all material requests, all other covenants, undertakings, and obligations,
and complied with all conditions required by this agreement to be performed or
complied with by Purchaser at or prior to Closing;
11. Risk of Loss. Until the closing is consummated, risk of loss with respect to the
Property shall remain with the Seller.
12. Remedies. If Purchaser defaults, Seller's sole remedy shall be to terminate this
agreement. If Seller defaults, Purchaser may terminate this Agreement or Purchaser may enforce
specific performance of this contract.
7
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
13. Notices. Notices must be in writing to and given at the addresses stated above.
Notice may be given by receipted delivery service, U.S. mail, or fax and shall be effective upon
receipt of the notice at the address or fax number of the addressee.
14. Miscellaneous.
(a) Utilities. Seller assumes no obligation to extend or replace any utilities; however,
Seller shall provide reasonable staff assistance to Purchaser in coordinating the
provision of utilities as may be necessary to serve the land and other tracts of land
within the vicinity of the Land.
(b) Entire . This Agreement contains the entire agreement of the parties pertaining to
the Property.
(c) Modifications. This Agreement may only be modified by a written document signed
by both parties.
(d) Brokers. The parties. represent and warrant that there are no brokers or agents
involved in this transaction or brokerage commissions due and payable hereunder.
(e) Assignment. Purchaser may not assign its rights under this Agreement to any entity
with the exception of an affiliate wholly owned by Purchaser without the express
written consent of Seller.
(f) Time is of the Essence. Time is of the essence with respect to the performance by
the Parties of their respective obligations hereunder.
(g) Expiration. The offer represented hereby shall expire if not accepted by Purchaser
fails to execute this Agreement and return it to Seller on or before 4:00 p.m. Central
Time, Wednesday, April 11, 2001.
Pumbase and Sale Agreement
The City of Denton, Texas
April 3, 2001
(h) Date. The date of this Agreement shall be the date a fully executed copy hereof,
with any changes approved by both parties, is deposited with the Title Company.
(i) Non-Business Day. If the final date of any period provided herein for the
performance of an obligation or for the taking of any action falls on a Saturday,
Sunday, or holiday, then the end of such period shall be extended to the next business
day.
PURCHASER:
i
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
THE CITY OF DENTON, TEXAS
By: 'KA M AA
a,I I Uf kw-k
Name:
Title:
Date Executed:
A_, 2001
SELLER:
GALAT ARK CORPORATIO
By:
Name: onald D. illar
Title: Vice President
Date Executed: tri l , 2001
9
ACKNOWLEDGMENT
The undersigned Title Company hereby acknowledges its receipt of an executed copy of this
Agreement and, further, agrees to comply with and be bound by the terms and provisions of this
Agreement, including, without limitation, those terms relating to compliance with Section 6045(e)
of the Internal Revenue Code of 1986, as amended from time to time, and as further set forth in any
Regulations or forms promulgated thereunder.
TEXAS TITLE COMPANY
By:
Date:
10
Purchase and Sale Agreement
The City of Denton, Texas
April 3, 2001
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EXHIBIT A
SCHEDULE ONE
TO PURCHASE AND SALE AGREEMENT
HUNT PETROLEUM CORPORATION, Seller
THE CITY OF DENTON, TEXAS, Purchaser
9.(iii) Seller has been advised that pollution originating from a site owned
by a third party might have migrated to the Property. Seller installed
a monitoring well. No remediation or testing program has been ordered.
9.(iv) Seller has been advised that the City of Denton is desirous of obtaining
a twenty foot (20') wide right-of-way along and adjacent to U.S.
Highway 77. No contract for sale has been entered into and, to the
best of Seller's_ knowledge, no condemnation proceeding has been
initiated.
Purchase and Sale Agreement
The City dDenton, Texas
April 3, 2001