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2001-120SA0ur Documcub%Ordinanccs\01\7JS77Galalyn40rd.doc ORDINANCE NO. QS D AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND GALATYN PARK CORPORATION RELATING TO THE PURCHASE OF APPROXIMATELY 0.056 ACRES OF LAND BEING LOCATED IN THE ALEXANDER WHITE, ABSTRACT NO. 1406 AND APPROXIMATEY AND 0.200 ACRES OF LAND BEING LOCATED IN THE ALEXANDER WHITE, ABSTRACT NO. 1406 AND THE NATHAN WADE SURVEY, ABSTRACT NO. 1407 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. (PARCEL 4, PARTS 1 & 2) 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 0.056 acres of land and 0.200 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 / ~fc day of~ Ml , 2001. (jd:~4 - ~v' EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: L~ 6 1 )AI APPR ED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY.6,TTORNEY 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.256 acres located in Denton, Denton County, Texas, more particularly identified as parcel 4 part 1 and parcel 4 part 2 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) $6,800.00 as payment for the Property; and (ii) $1,567.30 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 1A, Condition H 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. Closing. 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 funds, 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 dDenton, 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 4 Purchase and Sale Agreement The City of Denton, Texas April 3, 2001 health and federal and state environmental laws and regulations. Except as 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 or 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 5 Purchase and Sale Agreement The City of Denton, Texas April 3, 2001 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, 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 Purchase and Sale Agreement The City of Denton, Texas April 3, 2001 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 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. 7 Purchase and Sale Agreement The City dDenton, Texas April 3, 2001 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. 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. Purchase 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: .".7,eR('iVED AS TO FOPIM, '7- Purchase and Sale Agreement The City of Denton, Texas April 3, 2001 THE CITY OF DENTON, TEXAS By: IV t v Name: Title: ( Date Executed: 411(a , 2001 SELLER: GALATY PARK CORPORATION By: Name: Donald DTitle: Vice President Date Executed: ,i~ 1 , 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 11 a.e~ . vin a: we ~ /-~o~rcel 5•3e (Ac.) 1 0.439 3 s23 $ D. 256 1 o- -711 r . J7- - JL~ 4.s.77 ROW 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 of Denton, Texas Apri13, 2001