2001-170S \O r OocumeMCOrdInwM01\UBTNnmoduml]UN do
ORDINANCE NO OWN _ IV
AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON AND CHARLIE M CUNNINGHAM AND JANIS A CUNNINGHAM TRUSTEES
OF THE CUNNINGHAM FAMILY TRUST RELATING TO THE PURCHASE OF
APPROXIMATELY 0 055 ACRES OF LAND BEING LOCATED IN THE N H
MEISENHEIMER, ABSTRACT NO 810 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 27)
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 Charlie M Cunningham and Janis A Cunningham Trustees of
the Cunningham Family Trust 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
0 055 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 n
PASSED AND APPROVED this the ~ day of/1 2001
EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
BY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
BY
{
REAL ESTATE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON
THIS CONTRACT OF SALE is made by and CHARLIE M. CUNNINGHAM
AND JANIS A. CUNNINGHAM TRUSTEES OF THE CUNNINGHAM FAMILY
TRUST (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 all that certain tract,
lot or parcel of land described in Exhibit "A" attached with all
rights and appurtenances pertaining to the said property,
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
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. e er ay a cos
or remove., a .a on, cone ucta.on, rein allation,
recon ruction, labor nd materials for ny and/or imp vements
located ithin the pro arty described i Exhibit "A" Any
limprovemen not removed b April 30, 2001 s 11 become pro erty
bf the City o enton, Texas.
PURCHASE PRICE
1. Amount of Purchase Price The total purchase prase for
the Property shall be the sum of $17,300.00 (the "Purchase
Price") The Property is being acquired by Purchaser to be used
by the State of Texas as right-of-way for the widening of U.S.
Highway 77. The Purchase Price represents settlement of any and
all claims, causes of action and damages that Seller may have
against Purchaser and the State of Texas as a result of the
acquisition of the Property including damages for the Property
itself and any damages to Seller's remaining property.
2. Payment of Purchase Price The full amount of the
Purchase Price shall be payable in cash at the closing
DISK 5
PURCHASER'S OBLIGATIONS
The obligations of Purchaser hereunder to consummate the
transactions 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 Purchaser's sole cost and expense,
shall have caused the Title Company (hereinafter defined) to
issue a owner's policy commitment (the "Commitment") 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 receives the Commitment that the
condition of title as set forth in the Commitment is or is not
satisfactory. in the event Purchaser states the condition of
title 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; otherwise, this condition shall be
deemed to be acceptable and any objection thereto shall be deemed
to have been waived for all purposes
2. Survey. Purchaser may, at Purchaser's sole cost and
expense, obtain 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
PAGE 2
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
1. There are no parties in possession of any portion of the
property as lessees, tenants at sufferance, trespassers or other
parties.
2. Except for the prior actions of Purchaser, there is no
pending or threatened condemnation or similar proceeding or
assessment or suit, affecting title to 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. To the best of the seller's knowledge, 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 Environmental Response Compensation and
Liability Act (CERCLA), as amended
CLOSING
The closing shall be held at the office of First American
Title Insurance Company of Texas, 1100 Dallas Drive, Suite 112,
Denton, Texas 76205 on or before April 30, 2001, 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").
PAGE 3
CLOSING REQUIREMENTS
1. Seller's Requirements. At the closing Seller shall:
A. Deliver to State of Texas, acting by and through the
Texas Transportation Commission a duly executed and
acknowledged Deed in the form as attached hereto as
Exhibit "B" conveying good and marketable title 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 Obligations here-
of; and
3. Any exceptions approved by Purchaser
in writing.
B. Deliver to Purchaser a Texas Owner's Policy of Title
insurance at Purchaser's sole expense, issued by First
American Title Insurance Company of Texas, 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
fee simple title for the State of Texas 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 Policy of Title insurance, 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 Purchaser,
2. The exception as to restrictive cove-
nants shall be endorsed "None of Record";
3 The exception for taxes shall be
limited to the year of closing and shall
be endorsed "Not Yet Due and Payable";
and
PAGE 4
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
consideration as referenced in the "Purchase Price" section of
this contract at Closing in immediately available funds
3. Closing Costs. Seller shall pay all taxes assessed by
any tax collection authority through the date of Closing. All
other costs and expenses of closing in consummating the sale and
purchase of the Property not specifically allocated herein shall
be paid by Purchaser and Seller, except for Seller's attorney
fees.
REAL ESTATE COMMISSION
Seller and Purchaser represent and warrant to each other that
neither has retained a broker for this transaction and that there
are no broker or real estate fees due as a result of the me},s4
consummation of this contract. Seu<r A s rgtA,,,d rie La✓i2,~64'
WIN1K*~w~
+e5 t'm fePre54e/1 ~M Iu {~t1t ,fine ftC Caeca A t czo5.Np Sx
( BREACH BY SELLER CfArL.f A, cuNN.u~;Am aNd Je4N,s A
UU C",e. C i4k"'NC Anm tvjg,e5 O,~ th ¢ Curr,Yr~
In the event Seller shall fail to fully and t3.mely perform
any of its obligations hereunder or shall fail to consummate the ANV,
sale of the Property except Purchaser's default, Purchaser may pq-f,,c~ey_
either enforce specific performance of this Agreement or wr~,i<A<`
terminate this Agreement by written notice delivered to seller.
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 by
written notice delivered to purchaser.
MISCELLANEOUS
1. Assignment of Agreement. This Agreement may be assigned
by Purchaser without the express written consent of Seller.
PAGE 5
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,
addressed 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 Sound. 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.
6 Legal 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. Compliance In accordance with the requirements of the
Texas Real Estate License Act, Purchaser is hereby advised that
PAGE 6
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 ten (10) 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
13. Effective Date. The term "Effective Date" means the
latter of the dates on which this Contract is signed by either
Sellers or Purchaser, as indicated by their signature below. If
the last party to execute this Contract fails to complete the
date of execution below that party's signature, the date the
Title Company acknowledges receipt of a copy of this fully
executed contract is the Effective Date.
14. No Special Assessments The U.S 77 Highway Project
for which the Property is being acquired consists of the widening
of said roadway to a four lane divided concrete thoroughfare (the
"Project") adjacent to Seller's remaining property. As
additional consideration, Purchaser agrees that it will not
assess Seller or its remaining property for any of the costs
associated with the Project.
15. Existing Driveways The Project will be constructed in
such a manner that Seller's existing driveway opening or openings
will remain open at no cost to Seller
PAGE 7
IN WITNESS WHEREOF, Seller and Purchaser have executed this
contract as follows:
SELLER:
CHARLIE M. CUNNINGHAM
AND JANIS A. CUNNINGHAM
TRUSTEES OF THE CUNNINGHAM
FAMILY TRUST
PURCHASER:
CITY OF DENTON, TEXAS
BY: G/rau:.. M-"
CHARLIE M. CUNNING HAM,
TRUSTEE
Date
By _qaN& a Q44VMd~
JAN 10S A.CUNNINGHAM,
TRUSTEE
Date ` -/.b -a 00
Acting City Manager
215 E. McKinney
Denton, T ~sj/6201
Date
BY. &MA
Howard Martin
I'r'0k ~9 AS T11 rf'P e
ITY HF,G,44W ~
' TY 0rr~
STATE OF TEXAS
COUNTY OF DENTON r
T trumant is acknowledged before m on this 17-day of_
2001 by Howard Martin, Acting City Manager, of the
1 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 purposes and
consideration therein expressed, an n the capacity t erein
stated.
XM YTHE ateofTexae Notary Public i n an for
n E~yrlres the State of Texas
002
PAGE 8
I
STATE OF t-502-0
COUNTY OF p(Ly&, 4
This instrument,.is acknowledged before me, on this ~2 "43 day of
2001 by CHARLIE MELVIN CUNNINGHAM AND JANIS
CUNNINGHAMI -rA"wt2eo joy IAA O ~~'•r.
i '
•g•• h,• CHARLES J. WINIKATES, JR.
MV COMMISSION EXPIRES
ce&A
February 3, 2002 Notary P lic in and fo
the State of 1114,
TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT
The Title Com any ackno1 dg receipt of the fully executed
Contract onp day ofL, 2001.
TITLE COMPANY:
Name: First American Title Insurance of Texas
Address: 1100 Dallas Drive, Suite 112
Denton, Texas 76205
Tel phone: 940-383-2357
By:
Prin a ~a,~C po~~es cA~~~S
Title;
~~o
PAGE 9
EXHIBIT "A"
County Denton Page 1 of 1
Parcel 27 D-15-
Project U.S. 77 Revised June 11, 1999
Project Umlts:from I H 35
to U.S 380
CSJ: 0195-02-
Account
FIELD NOTES FOR PARCEL 27
BEING A PARCEL OF LAND SITUATED IN A TRACT OF LAND CONVEYED TO CHARLIE MELVIN
CUNNINGHAM AND WIFE, JANIS CUNNINGHAM RECORDED IN VOLUME 632, PAGE 217,
DEED RECORDS OF DENTON COUNTY, TEXAS (DRDCT), AND BEING SITUATED IN THE N H
MEISENHEIMER SURVEY, ABSTRACT NO 810, CITY OF DENTON, DENTON COUNTY, TEXAS,
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS
COMMENCING at a found 1/2-inch Iron rod for the most westerly corner of said Cunningham
tract, same being the most the most southerly corner of the second tract of land conveyed to
David A Coggin, Trustee, as recorded in Volume 2614, Page 845, DRDCT, and said point being
on the existing north right of way line of Riney Road,
THENCE N 48011'52' E, along the common property line of said Cunningham tract and said
Coggin tract two, a distance of 98 61 feet to a set 5/8-inch iron rod with an aluminum cap, on
the new south right of way line of U S 77 for the POINT OF BEGINNING,
(1) THENCE N 48011'52" E, continuing along same common line, a distance of 27 90 feet
to a found 5/8-inch iron rod for the most northerly corner of said Cunningham tract and
the most easterly corner of said Coggin tract, and being on the existing south right of
way line of U S 77,
(2) THENCE S 58012'48" E , along a line common to said Cunningham tract one and the
existing south right of way line of said U S 77, a distance of 90 07 feet to a found 1 /2
inch iron rod for the most easterly corner of said Cunningham, same being the most
northerly corner of the first tract of land described in the instrument to David A Coggin,
Trustee, in the aforementioned Volume 2614, Page 845,
(3) THENCE S 48000'55" W, along a line common to said Cunningham tract and said
Coggin tract one, a distance of 27 91 feet to a set 5/8-inch iron rod'with an aluminum
cap on the new south right of way line of U S 77,
(4) THENCE N 58011'36 W, along the new south right of way line of U S 77, a distance
of 90 15 feet to the POINT OF BEGINNING, and containing 0 055 acres of land, or
2,413 square feet of land, more or less
4. C6 0-4
6 /q 4
B Glenn Crouch, PR L S a
Texas Registration No 5255 Date
OF
~~ST
5255
FND 2450 REV
U