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2001-298 O CENO AN ORDINANCE APPROViNG A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND WESLEY CLARK AND JOSEPHINE C CLARK RELATING TO THE PURCHASE OF APPROXIMATELY 0 9213 ACRE OF LAND BEING LOCATED IN THE ALEXANDER WHITE SURVEY, 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 (PARCEL 5B) 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 Wesley Clark and Josephine C Clark 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 9213 acres of land for the U S Highway 77 Project, with title vesting m 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 P^SSED PROVEDthls,he /¢tdayof ,2ooi EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APffOVE; AS~S TO LE;AL FORM HERBERT L PROUTY, CITY ATTORNEY BY REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE ~S made by WESLEY CLARK AND JOSEPHINE C CLARK (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 cond~taons set forth herean PURCHASE ANDSALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all that certaan tract, lot or parcel of land descrabed ~n Exhab~t "A" attached w~th all r~ghts and appurtenances pertaining to the sa=d property, · nclud~ng any r~ght, t~tle and anterest of Seller ~n and to adjacent streets, alleys or rights-of-way (all of such real prop- erty, r~ghts, and appurtenances beang hereanafter referred to as the "Property"), together w~th any improvements, f~xtures, and personal property s~tuated on and attached to the Property, for the consideration and upon and subject to the terms, prov=s~ons, and cond~tlons hereinafter set forth Seller shall pay all cost for the removal, ~nstallat~on, construction, re~nstallat~on, reconstructaon, labor and materials for any and/or amprovements located w~th~n the property described ~n Exhabat "A" Any ~mprovements not removed by September 28, 2001 shall become proper~y of the C=ty of Denton, Texas PURCHASE PRICE I Amount of Purchase Price The total purchase price for the Property shall be the sum of $65,000 00 (the "Purchase Price") The Property as being acquired by Purchaser to be used by the State of Texas as r~ght-of-way for the w~den~ng of U S H~ghway 77 2 Payment of Purchase Price The full amount of the Purchase Prace shall be payable an cash at the closing pURCHASER'S OBLIGATIONS The obl=gataons of Purchaser hereunder to consummate the transactions contemplated hereby are subject to the satisfact=on of each of the follow~ng condat=ons any of which may be waaved an DISK 5 whole or an part by Purchaser at or prior to the closing I Prelim~nar~ T~tle Report Wathan twenty (20) days after the date hereof, Seller, at Purchaser's sole cost and expense, shall have caused the Tatle Company (hereanafter deflned) to assue a owner's policy commitment (the "Commitment") accompanied by cop=es of all recorded documents relatang to easements, raghts-of-way, etc , affectang the Property Purchaser shall gave Seller wratten not~ce on or before the exp~rataon of ten (10) days after Purchaser receives the Commitment that the condat~on of tatle as set forth an the Commitment as or is not satisfactory In the event Purchaser states the cond~tlon of tatle ~s not satisfactory, Seller shall, at Seller's optaon, promptly undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of Purchaser In the event Seller Ks unable to do so w~than ten (10) days after receapt of wratten notace, thas Agreement shall thereupon be null and void for all purposes, otherwase, thas condatlon shall be deemed to be acceptable and any ob3ectlon thereto shall be deemed to have been waaved 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 l~censed Texas land surveyor acceptable to Purchaser The survey shall be staked on the ground, and shall show the location of all amprovements, haghways, streets, roads, railroads, rivers, creeks, or other water courses, fences, easements, and rights-of- way on or ad3acent to the Property, ~f any, and shall contain the surveyor's certafacataon 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 wall have ten (10) days after receipt of the survey to revlew and approve the survey In the event the survey as unacceptable, then Purchaser shall w~th~n the ten (10) day peraod, gave Seller wratten notace of thas fact Seller shall, at Seller's optaon, promptly undertake to el~mlnate or modify the unacceptable portxons of the survey to the reasonable sat~sf&ct=on of Purchaser In the event Seller is unable to do so wathan ten (10) days after receapt of written not~ce, Purchaser may termanate th~s Agreement, and the Agreement shall thereupon be null and voad for all purposes and the Escrow Deposxt shall be returned by the T~tle Company to Purchaser Purchaser's faalure to gave Seller thas written notice shall be deemed to be Purchaser's acceptance of the survey PAGE 2 3 Seller's Compliance Seller shall have performed, ob- served, and complied w=th all of the covenants, agreements, and condltlons required by this Agreement to be performed, observed, and compl=ed w=th by Seller pr=or to or as of the clos=ng REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, which representat=ons and warrant~es shall be deemed made by Seller to Purchaser also as of the closing date i There are no part=es ~n possess=on of any port=on of the Property as lessees, tenants at sufferance, trespassers or other part~es 2 Except for the pr=or actions of Purchaser, there =s no pending or threatened con~mnat=on or s~m~lar proceedlng or assessment or su~t, affecting t~tle to the Property, or any part thereof, nor to the best knowledge and belief of Seller ~s any such proceeding or assessment contemplated by any governmental authority 3 Seller has complied w~th all applicable laws, ordinances, regulations, statutes, rules and restr~ct=ons relat=ng 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 w=th~n the Property Such tox=c or hazardous wastes or materials =nclude, but are not l~m~ted to, hazardous materials or wastes as same are defined by the Resource Conservat=on and Recovery Act (RCRA), as amended, and the Comprehensive Env=ronmental Response Compensat=on and L~ab~l~ty Act (CERCLA), as amended CLOSING The clos=ng shall be held at the off~ce of Texas T~tle Company, 2215 S Loop 288, Su=te 320, Denton, Texas 76205 on or before September 28, 2001, or at such t~tle company, time, date, and place as Seller and Purchaser may mutually agree upon (which date =s here~n referred to as the "clos=ng date") CLOSING REQUIREMENTS I Seller,s Re~u=rements At the closing Seller shall A Del~ver to State of Texas, act=ng by and through the Texas Transportation Commission a duly executed and PAGE 3 acknowledged Deed an the form as attached hereto as Exhlbat "B" conveyang good and marketable title to all of the Property, free and clear of any and all laens, encumbrances, condataons, easements, assessments, and restractaons, except for the followang I General real estate taxes for the year of closang and subsequent years not yet due and payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Oblagataons here- of, and 3 Any exceptaons approved by Purchaser an wrat~ng B Delayer to Purchaser a Texas Owner's Policy of Tatle Insurance at Purchaser's sole expense, assued by Texas Title Company, Denton, Texas, (the "Tatle Company"), or such tatle company as Seller and Purchaser may mutually agree upon, an Purchaser's favor ~n the full amount of the purchase price, ansurang fee sample tatle for the State of Texas to the Property subject only to those title exceptaons lasted ~n Closan~ Re~uarements hereof, such other exceptions as may be approved an wratang by Purchaser, and the standard pranted exceptaons contaaned ~n the usual form of Texas Owner's Polacy of Tatle insurance, provaded, however I The boundary and survey exceptaons shall be deleted af requared by Purchaser and af so requared, the costs assocaated wath same shall be borne by Purchaser, 2 The except=on as to restractave cove- nants shall be endorsed "None of Record", 3 The exception for taxes shall be llmated to the year of closang and shall be endorsed "Not Yet Due and Payable", and 4 The exception as to laens encumberang the Property shall be endorsed "None of Record" PAGE 4 C Deliver to Purchaser possession of the Property on the day of closang 2 Purchaser's Re~/irements Purchaser shall pay the cons~derataon as referenced ~n the "Purchase Price" section of thas contract at Closang an =mmedaately avaalable funds 3 Closang Costs Seller shall pay all taxes assessed by any tax collectaon authoraty through the date of Closang Ail other costs and expenses of closang ~n consummatang the sale and purchase of the Property not specafacally allocated herean shall be pa~d 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 retaaned a broker for thas transactaon and that there are no broker or real estate fees due as a result of the consummataon of thas contract BREACH BY SELLER In the event Seller shall faal to fully and tamely perform any of ~ts oblagataons hereunder or shall fa~l to cons~--~ate the sale of the Property except Purchaser's default, Purchaser may e~ther enforce specafac performance of thas Agreement or terman&te th~s Agreement by wratten notace delavered to seller BREACH BY PURCHASER In the event Purchaser should fa~l to consummate the purchase of the Property, the conditions to Purchaser's oblagataons set forth ~n PURCHASER'S OBLIGATIONS havang been satasfaed and Purchaser be=ng an default Seller may e~ther enforce spec~f=c performance of thas Agreement, or te=m~nate th~s Agreement by written not=ce delavered to purchaser MISCELLANEOUS i Assl~[nment of Agreement Thas Agreement may be assigned by Purchaser wathout the express written consent of Seller 2 Survaval of Covenants Any of the representations, war- rant~es, covenants, and agreements of the part~es, as well as any r~ghts and benefats of the partaes, pertaan~ng to a peraod of tame following the closang of the transactions contemplated hereby shall surv=ve the closing and shall not be merged therean PAGE 5 3 Not~ce Any not~ce required or permitted to be delivered hereunder shall be deemed received when sent by Un~ted States ma=l, postage prepa=d, cert=f~ed ma~l, 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 Th~s Agreement shall be construed under and ~n accordance w=th the laws of the State of Texas, and all obl~gatlons of the part~es created hereunder are performable =n Denton County, Texas 5 Part~es Bound Th~s Agreement shall be b~nd~ng upon and · nure to the benef=t of the parties and their respective he.rs, executors, administrators, legal representatives, successors and assigns where permitted by th~s Agreement 6 Legal Construction In case any one or more of the pro- visions contained ~n th~s Agreement shall for any reason be held to be ~nval~d, ~llegal, or unenforceable an any respect, sa~d ~n- validity, ~llegal~ty, or unenforceabll~ty shall not affect any other prov=s~on hereof, and th~s Agreement shall be construed as · f the invalid, ~llegal, or unenforceable provls~on had never been conta=ned here~n 7 Prior Agreements Superseded Th=s Agreement constitutes the sole and only agreement of the part~es and supersedes any prior understandings or written or oral agreements between the part~es respect=ng the w~th~n sub3ect matter 8 T~me of Essence Tame ~s of the essence =n th~s Agreement 9 Gender Words of any gender used ~n th~s Agreement shall be held and construed to ~nclude any other gender, and words ~n the s~ngular number shall be held to =nclude the plural, and v~ce versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of elther party, both part~es shall promptly execute a memorandum of th~s Agreement suitable for f~l=ng of record 11 Compliance In accordance w~th the requirements of the Texas Real Estate L~cense Act, Purchaser ~s here~y advised that · t should be furnished w~th or obta=n a policy of t~tle insurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser~s own selection PAGE 6 12 T=me Lam~t In the event a fully executed copy of th~s Agreement has not been returned to Purchaser wathan ten (10) days after Purchaser executes th~s Agreement and delivers same to Sel- ler, Purchaser shall have the r~ght to termanate thas Agreement upon written not=ce to Seller 13 Effective Date The term "Effective Date" means the latter of the dates on wh=ch th~s Contract ~s s~gned by eather Sellers or Purchaser, as and~cated by their sagnature below If the last party to execute th~s Contract faals to complete the date of execution below that party's sagnature, the date the T~tle Company acknowledges receapt of a copy of thas fully executed contract ~s the Effectlve Date 14 No S~ecaal Assessments The U S 77 H~ghway Project for which the Property as being acquared consists of the wadenang of saad roadway to a four lane d~vlded concrete thoroughfare (the ~Pro]ect") ad3acent to Seller's remaining property As addat~onal cons~derataon, Purchaser agrees that ~t wall not assess Seller or ats rema~nang property for any of the costs assocaated w~th the Project 15 Existln~ Drlvewa~s The Pro3ect will be constructed an such a manner that Seller's ex~stang draveway openang or openings wall remaan open at no cost to Seller IN WITNESS WHEREOF, Seller and Purchaser have executed thas contra©t as follows SELLER PURCHASER C~ty Manager ~~ 215 E McKanney Texas 76201 Denton .ZZ_ O  E~H~ C C~ Date ~PPROV[D AS TO FORM~ ClW A~ORN~ // PAGE 7 ( STATE OF TEXAS COUNTY OF DENTON ~s ~nstr~/~nt ~s acknowledged before me, on th~s ~ day of ~ 2001 by M:~ke Conduff, C=ty Manager, of the C~ty of D~nton~, a municipal corporation, known to me to be the person and officer whose name ~s subscribed to the foregoing ~nstrument and acknowledged to me that the same was the act of the sa~d C~ty of Denton, Texas, a municipal corporation, that he was duly authorized to perform the same by appropriate ordinance of the C~ty Council of the C~ty of Denton and that he executed the same as the act of the sa~d C~ty for purposes and consideration there=n expressed, and an the capac~t~/~here~n stated // ~ '~'~ Nut~ypublto,$~e01Tex~ ~ Notary Public ln//nd for ~1 \~W/ MAYg, 2002 ~ the State of Tex~s STATE OF CO~Y OF Thls ~gstr~ent =s acknowledged before me, on thzs ~ ~ day of ~, 2001 by ~SLEY C~ ~C~;;;ii~ C [.~) N0m~PublIc State of rexas ~ ~Ot~ P~11C in and for ~ay Commlssto~ ~plres~-Z~-~ the S~ate of TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT The T~tle Company acknowledges receipt of the fully executed Contract on day of , 2001 TITLE COMPANY Name Texas T~tle Company Address 2215 S Loop 288, Suite 320 Denton, Texas 76205 Telephone 940-382-8251 By Printed Name Tztle PAGE 8 STATE OF COUNTY OF Th~s ~nstrument ~s acknowledged before me. on th~s I ~ day of ~w~ , 2001 by JOSEPHINE C CLARK ~..A,,~ .,,,...o~., ~ Notary ~ubllc ~n and for PAGE 9 EXHIBIT A County n~t~ Page 1 o¢ 1 H~ghway H ,g 77 Project L~m~ts From IH % Rev June 2001 To [J g 3~ CSJ f)19~ ~? Account FIELD NOTES FOR PARCEL 5B BEING A O 9213 ACRE PARCEL OF LAND SITUATED THE ALEXANDER WHITE SURVEY, ABSTRACT NO 1406 CITY OF DENTON, TEXAS AND BEING A PORTION OF A CALLED 8 431 ACRE TRACT OF LAND DESCRIBED IN INSTRUMENT TO GARY H KIRCHOFF, TRUSTEE OF THE WESLEY CLARK AND JOSEPHINE C CLARK REPLACEMENT PROPERTY IRREVOCABLE TRUST AND RECORDED IN COUNTY CLERK CONVEYANCE NUMBER 98 ROl16072, DEED RECORDS OF DENTON COUNTY, TEXAS (DRDCT), AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS COMMENCING for reference at a fence corner found for the southeast corner of sa~d 8431 acre tract same being an ell corner of a called 78 865 acre tract of land (Loop Tract Tract One) descnbed m instrument to Rancho Vista Development Company, recorded ~n Volume 2695, Page 465, DRDCT THENCE N 00° 27' 33' E, along the east hne of sa~d 8 431 acre tract and a west hne of said 78 865 acre tract a d~stance of 131 97 feet to a 5/8*nch~ronrod w~th an aluminum d~sk found m the new southerly nght of way hneof U S 77 and the POINT OF BEGINNING, (1) THENCE N 58° 12 52 W, along the new southerly right of way hne of U S 77, a distance of 947 06 feet to an 'X' cut set in the west hne of sa~d 8431 acre tract, same being m the east hne of Lot 1, Block A Baruch Addmon an addition recorded m Cabinet P Page 173 of the Plat Records of Denton County Texas and described m instrument to Walnut Acres LLC and recorded in County Clerk Conveyance Number 98 ROl12744 DRDCT (2) THENCE N 32° 18 56 E, along the west line of sa~d 8431 acre tract and the east hne of sa~d addmon, passing at 30 74 feet the northeast corner of Lot I and the ex~stmg nght of way hne of U S 77 dedicated by sa~d add~t*on, in all, a total d~stance of 47 21 feet to the northwest corner of said 8 431 acre tract (3) THENCE S 57° 41 20" E along the north hneofsa~d 8 431 acre tract and theex~sUng southerly right of way hne of US 77, a d~stance of 923 09 feet to a found 1/2 inch iron rod for the northeast corner of sa~d 8 431 acre tract (4) THENCE SOO° 27 33' W, along the east hne of said 8 431 acre tract passing at 22 54 feet a northwest corner of sa~d 78 865 acre tract, m all, a total d~stance of 45 35 feet to the POINT OF BEGINNING and conta~mng 0 9213 acres or 40,131 square feet of land Surveyed May 2001 ~ PBS&J Inc /'/~/// ~ Thomas Wilham Mauk R P L S ~~,... / / Date Texas Registration No 5119 32"18 56 E N 32° 18 56 E ,, 47 21 LOT 1, BLOCK A DARUCH ADDITION CAD P, PG 173 s 00°2733" w PRDCT 45 35 ~ 00° 27 33 50 ESMT 22 54 WALNUT ACRES, L L C CC · 98'R0112744 i DRDCT GARY H KIRCHOFF TRUSTEE OF THE WESLEY CLARK 8, JOSEPHINE C CLARK REPLACEMENT PROPERTY IRREVOCABLE TRUST (CALL 8 4.31 AC ) CC * 98 R0116072 FNO DRDCT ~0£ F~NCE CORNER ~ ~AD~ ~ RANCHO VISTA ~ ~ ,, ,,~<~,1~)? LOOP TRACT TRACT ONE (CALLED 78 865 AC ) VOL 2695, PG 465 DRDCT N O0° 27 3,,3 E 131 97 PROPERTY LINE CONTROL OF ACCESS LINE JJ~-- THOMAS WILLIAM MAUK OATE SURVEY LINE ---~ .... R P L S NO 5119 GRAPHIC SCALE A PLAT OF A SURVEY OF A o ,oo 2,00 0 9213 AC [40,1,31 SO FT ] TRACT OF LAND ~,~u~ IN THE ALEXANDER WHITE SURVEY ABSTRACT NO 1406 PARCEL 5B CSJ No 0~95-02- CITY OF DENTON ACCOUNT DENTON, COUNTY, TEXAS SHEET 1 OF 1 o