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2001-171S OurW McMeW ngK INUSVGI wOIl loo ORDINANCE NO 6400/ - /'7/ AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND GERTRUDE HELEN GIBSON INDIVIDUALLY AND AS INDEPENDENT THE EXECUTRIX OF THE ESTATE PURCHASE OF APPROXIMATELY 0 02 06 ACRES OF AND BEING LOCATED TO 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 31) 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 Gertrude Helen Gibson Individually and as Independent Executrix of the Estate of Donald Edwin Gibson 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 0 026 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 day of 2001 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPRO ED AS TO LEGAL FORM HERBERT L PROVTY, CITY ATTORNEY BY REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and GERTRUTE HELEN GIBSON INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DONALD EDWIN GIBSON (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 o all cothat certain nvey, and Purchaser hereby purchases and agrees to pay f 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 Aroviaions, and conditions hereinafter set forth ~Selle shall p all coat for t e rem vaa i atallation, constructio reins allation, recon truction, labor nd material for any an /or imp ovement locate within he pro erty deacr ed in Exh it "A' An improy eats not moved b April 30, 001 shall come p pert f the C ty of Dent n, Texas. PURCHASE PRICE 1. Amount of Purchase Price. The total purchase price for the Property shall be the sum of $10,400 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. ! W 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 'a 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 follows, which representations made by seller to Purchaser also and warrants to Purchaser as and warranties shall be deemed 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 Title Insurance Company of Texas, Denton, Texas 76205 on or before A company, time, date, and place mutually agree upon (which date "closing date"). the office of First American 1100 Dallas Drive, Suite 112, pril 30, 2001, or at such title as Seller and Purchaser may is herein referred to as the 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 tap[ 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 tPs~ consummation of this contract. 9eGG¢r X-s I-erc sea W141 k.9 !¢~!!¢Sa✓t f!¢m t.✓fW 54le toe Che ,yt C<ori.~b r'/a LL 62 ~wR 0ui t19 n«y , BREACH BY SELLER Oeetru,7a Nccp,/ (sr@scN, ZNdivdu A✓d 141 t14 t~++~le✓t 27, u 4 ov' taC 65ILWae oP ,paNf4lD EAwjs✓ b,Bso. , Awd In the event Seller shall fail to fully and timely perform ,i~o s any of its obligations hereunder or shall fail to consummate the k9ros sale of the Property except Purchaser's default, Purchaser may either enforce specific performance of this Agreement orAw,kyOps 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 Avply. This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Denton County, Texas. 5 Parties Bound. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement 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. lo. 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 PAGE 6 Texas Real Estate License Act, Purchaser is hereby advised that it should be furnished with or obtain a policy of title insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection. 12. Time Limit. In the event a fully executed copy of this Agreement has not been returned to Purchaser within 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 16. Existing Fencing Purchaser shall relocate existing 4' chain link fence currently situated along existing frontage property line to the new U.S. Highway 77 right-of-way line at Purchaser's sole cost and expense. Purchaser shall have fence relocated within 90 days after closing date. Purchaser may, at its discretion, deposit with the Title Company the dollar amount stipulated by Purchaser's fence contractor for fence relocation payment. The fence relocation funds are to be released by the Title Company to the fence contractor upon the sole authorization by the Purchaser. PAGE 7 IN WITNESS WHEREOF, Seller and Purchaser have executed this contract as follows: SELLER: PURCHASER: GERTRUTE HELEN GIBSON INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DONALD EDWIN GfI~BSON f B : lJ.~sy ~Y GERTRUTE HELEN GIBS IN AS TO FORM CITY STATE OF TEXAS y COUNTY OF DENTON Howard Martin Acting City Manager 215 E. McKinney l Denton, Texas Date Th s in rument is acknowledged before me, on this day of 2001 by Howard Martin, Acting City Manager, of the Cit 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, and in the capacity therein stated. ANN FORSYTHE Notary Publio, State of Texas No to Pub c and f or gJ~7~ / My C.'aslon Expires MAY®,2002 the State of Te as STATE OF f SyOo COUNTY OF DeAdVt✓ This instrument is acknowledged before me, on this /Z f'#` day of gyp, 2001 by GERTRUTE HELEN GIBSON INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF DONALD EDWIN GIBSON. ~'tyy CHARLE8 J WINIKATES, JR C61 A • V f r Pu] lic in and 1-1 MY COMMISSION EXPIRES Notary ~~pft February 9, 2002 the State of 'f 1SCab PAGE 8 TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT The Title Company ackno edges receipt of the fully executed Contract on c3J day of 2001. TITLE COMPANY: Name: First American Title Insurance of Texas Address: 1100 Dallas Drive, Suite 112 Denton, Texas 76205 Telephone: 940-383-2357 g4it PN T~SC~ u~ 1 \v 'At f,' 7W PAGE 9 County Denton Highway U.S. 77 Project Limits From I.H. 35 To 0 CSJ• 0195.02- Account: EXHIBIT 'A' FIELD NOTES FOR PARCEL 31 Page 1 of 1 Rev. October 27, 1994 BEING A PARCEL OF LAND SITUATED IN A TRACT OF LAND CONVEYED TO DONALD EDWIN GIBSON AND WIFE, GERTRUDE GIBSON, RECORDED IN VOLUME 524, PAGE 602, 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 for reference at a found fence comer post at the northwest corner of said Gibson Tract and the northeast corner of a 0 688-acre tract of land conveyed to Chipng Lee and wife, Pay Betty Lee, as recorded in Volume 1345, Page 920, DRDCT; THENCE S 010 14' 06' W, along the west property line of said Gibson tract and east property line of said Lee tract, a distance of 198.20 feet to a 518-inch Iran rod with an aluminum cap set for the POINT OF BEGINNING, said point being on the new north right of way line of U.S. 77 and being on a non-tangent circular curve to the left having a radius of 2804 79 feet; (1) through Ea dsoutheasterly, along the elta angle of 030 05' 33% an arc distance ) of 151 39 feet, and having a chord which bears S 540 30' 43' E, a distance of 151.37 feet to a set 5/8-inch iron rod with an aluminum cap, said point being on the east line of said Gibson tract and west line of a tract of land conveyed to Eloise T Lohman, recorded in Volume 1569, Page 845, DRDCT, (2) THENCE S 010 04' 56' W, along a line common to said Gibson tract and said Lohman tract, a distance of 3.80 feet to a found 1/2-inch iron rod for the southeast comer of said Gibson tract, same being the southwest comer of said Lohman tract, and said point being on the existing north right of way line of U.S 77, (3) THENCE N 580 32' 05' W, along a line common to said Gibson tract and existing north right of way line of said U S 77, a distance of 144.82 feet to a found 1/2-inch iron rod for the southwest comer of said Gibson tract, same being the southeast corner of said Lee tract, (4) of THENCE 16.09 lfee010 14' 06w E t to he PO N,TIOF BEGINNING, and containing 0.026 acre, 1,141 square feet of land, more or less John F Wilder, R P L.S Texas No 4285 Date 8 624"JUV