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2001-347 ORDIN CENO AN ORDINANCE APPROVING A REAL ESTATE AGREEMENT BETWEEN THE CITY OF DENTON AND YMCA OF METROPOLITAN DALLAS, FOR THE PURCHASE OF AN APPROXIMATE 8 3 ACRE TRACT OF LAND BEING LOT 1, BLOCK 1, YMCA ADDITION TO THE CITY OF DENTON, DENTON COUNTY, TEXAS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION 1 The C~ty Manager, or h~s designee, ~s hereby authorized to execute a Real Estate Agreement between the C~ty of Denton and YMCA of Metropohtan Dallas ~n substantmlly the form of the Real Estate Agreement attached to and made a part of this ordmanee for all purposes and to execute any documents ~n eonneetmn therewith SECTION 2 The C~ty Manager, or h~s designee, ~s authorized to make the expend~tnres as set forth m the attached Real Estate Agreement SECTION 3 Thxs ordinance shall become effective lmmedmtely upon ~ts passage and approval PASSED AND APPROVED this the /~-~ day of (5~/9~/771/~/~ ,2001 EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY REAL ESTATE CONTRACT THE STATE OF TEXAS § COUNTY OF DENTON § THiS CONTRACT OF SALE is made by and between YMCA of Metropolitan Dallas, a non-profit organization (hereinafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home rule mummpality, of Denton, Denton County, Texas, (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth herein pLrRCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all that certmn tract, lot or parcel Being Lot 1, Block 1, YMCA Addmon, an ad&non to the city of Denton, Denton County, Texas, conmstmg of approximately 8 3271 acres of land, together w~th all rights and appurtenances pertatmng to the smd property, including any right, title and interest of Seller in and to adjacent streets alleys or rights-of-way (all of such real property, rights, and appurtenances being hereinafter referred to as the "Property"), together w~th any improvements, fixtures, and personal property situated on and attached to the Property, for the consideration and upon and sub3ect to the terms, provisions, and condmons heremafter set forth PURCHASE PRICE 1 Amount of Purchase Price The purchase price for the Property shall be Four Hundred Thousand Dollars and No Cents ($400,000 00) 2 Payment of Purchase Price The full amount of the Purchase Pnee shall be payable in cash at the dosing pURCHASER'S OBLIGATIONS The obligations of Purchaser .hereunder to consummate the transactmns contemplated hereby are sublect to the satisfaction of each of the following condmons any of wfuch may be waived m whole or in part by Purchaser at or prior to the closing 1, Prehmln Title Re orr W~thln twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall cause the T~tle Company (hereinafter defined) to issue an owner's pohcy 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 tn the Commitment ts or ts not satisfactory In the event Purchaser states the condition of title ~s not satisfactory, Seller shall, at Seller's option, promptly undertake to ehmmate or modify all unacceptable matters to the reasonable satisfaction of Purchaser Purchaser understands that Seller is under no obligation to cure any title defects complained of by Purchaser stated in Purchaser's written notice to Seller as provided m this paragraph In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser, at its option may elect to terminate th~s Agreement (in which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing If Purchaser shall not notify Seller within ten (10) days after receipt of Seller's notice that Seller will not cure an objection to a t~tle defect, Purchaser's right to terminate shall be null and void 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, nvers, creeks, or other water courses, fences, easements, and rtghts-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 Provided that the survey is completed on or before October 15, 2001, Purchaser will have ten (10) days after receipt of thc survey to review and approve the survey In the event the survey discloses conditions on the Property which are 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 ehmmate or modify the unacceptable portions of the survey to the reasonable satisfactions of Purchaser In the event Seller is unable to do so within ten (10) days after receipt of written notice, Purchaser, at ~ts option may elect to terminate th~s Agreement (m which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing If Purchaser shall not notify Seller within ten (10) days after receipt of Seller's notice that Seller will not cure an object~on to the survey, Purchaser's right to terminate shall be null and void Notwithstanding any term or provision hereof to the contrary, the closing date shall not be extended by reason of any such review or cure processes 3 Seller's Comphance Seller shall have performed, observed, 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, to the best of 1ts current knowledge, as follows, which representations and warrant~es shall be deemed made by Seller to Purchaser also as of the closing date I There are no part,es m possession of any port~on of the Property as lessees, tenants at sufferance, or trespassers, except the C~ty of Denton under Lease Agreement dated 9/1/01 2 Except for the prior actions of Purchaser, there ~s no pending or threatened condemnation or s~m~lar proceeding or assessment or stat, affecting t~tle to the Property, or any part thereof, nor to the best knowledge and behef of Seller is any such proceeding or assessment contemplated by any governmental authority 3 Seller has received no not~ce that the Property falls to comply w~th all apphcable laws, ordinances, regulations, statutes, rules and restncUons 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 w~thm the Property Such tomc or hazardous wastes or materials include, but are not hm~ted to, hazardous materials or wastes as same are defined by the Resoume Conservatmn and Recovery Act (RCRA), as amended, and the Comprehensive Environmental Response CompensaUon and L~abd~ty Act (CERCLA), as amended 5 Seller hereby grants the C~ty of Denton and or ~ts designee formal perm~ssmn to enter Seller's property ~n order to perform such field surveying act~wt~es to establish boundaries and monuments necessary to consummate the above- mentioned real property pumhase transaction 6 EXCEPT FOR THE SPECIAL WARRANTY OF TITLE TO BE CONTAINED IN SELLER'S DEED AND THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH 1N THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER "AS IS, WHERE IS, AND WITH ALL FAULTS" AND SELLER DOES NOT WARRANT OR MAKE ANY REPRESENTATION, EXPRESS OR IMPLIED, AS TO ITS FITNESS FOR A PARTICULAR PURPOSE, MARKETABILITY, FOOTAGE, PHYSICAL CONDITION, COMPLIANCE WITH SPECIFICATIONS, ABSENCE OF LATENT DEFECTS, OR THE FITNESS OF THE PROPERTY FOR BUYER'S PLANNED USE IF CLOSING SHALL OCCUR, EXCEPT FOR LIABILITY ARISING OUT OF THE INACCURACY OF THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, SELLER SHALL BE DEEMED TO BE AUTOMATICALLY RELEASED BY PURCHASER AND ITS SUCCESSORS AND ASSIGNES OF AND FROM ALL LIABILITIES, OBLIGATIONS AND CLAIMS, KNOWN OR UNKNOWN, THAT PURCHASER MAY HAVE AGAINST SELLER OR 3 THAT ARISE 1N THE FUTURE BASED ON WHOLE OR IN PART UPON THE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN THE PROPERTY (iNCLUDING, WITHOUT LIMITATION, CLAIMS ASSERTED UNDER ENVIRONMENTAL LAWS) THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE CLOSING NOTHING HEREiN SHALL BE CONSTURUED TO RELEASE ANY OF SELLER'S PREDECESSORS IN TITLE FROM ANY DUTIES OR RESPONSIBILITIES THAT EACH MAY HAVE UNDER THE LAW CLOSING The closing shall be held at the office of Repubhc Tatle Company, 2626 Howell Blvd, l0th Floor, Dallas, Texas, on or before December 31, 2001(which date is hereto referred to as the "closing date") The closing date may be extended by mutual agreement of the parties CLOSING REQUIREMENTS 1 Seller's Reqmrements At the closing Seller shall A Dehver to Purchaser a duly executed and acknowledged Specml Warranty Deed conveying good and lndefeasable t~tle ~n fee s~mple to all of the Property, free and clear of any and all liens, encumbrances, condataons, assessments, and restrmtlons, except for the following ~ 1 General real estate taxes for the year of closing and subsequent years not yet due and payable, and 2 Any exceptmns approved by Purchaser pursuant to Purchaser's Obhgat~ons hereof, and 3 Any exceptions approved by Purchaser an wntang B Deliver to Purchaser a Texas owner's Policy of T~tle Insurance at Seller's sole expense, ~ssued by Repubhc Tatle, Dallas, Texas, (the "T~tle Company"), an Purchaser's favor an the full amount of the purchase price, insuring Purchaser's fee simple role to the Property subject only to those t~tle exceptions hsted an Closing Requirements hereof, such other exceptions as may be approved an writing by Purchaser, and the standard pnnted exceptions contmned an the usual form of Texas Owner's Pohcy of T~tle Insurance, provided, however 1 Provided Purchaser shall have obtmned a statable survey for the purpose, the boundary and survey exceptions shall 4 be deleted if required by Purchaser, and ~f so required, the costs associated with same shall be borne by Purchaser, 2 The exception as to restrictive covenants shall be endorsed "None of Record", other than restrictive covenants approved by Purchaser pursuant to "Purchaser's Obligations" 3 The exception as to hens encumbering the Property shall be endorsed "None of Record" other than those set forth m "Purchaser's Obligations" 4 The exception for taxes shall be limited to the year of closing and shall be endorsed "not yet due and payable" 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 m immediately available funds 3 Closing Costs Seller shall pay all taxes and special assessments assessed by any tax jurisdiction through the date of the Closing All other costs and expenses of closing m consummating the sale and pumhase of the Property not specifically allocated herein shall be paid by Purchaser, except for Seller's attorney fees REAL ESTATE COMMISSION Seller agrees to pay Solender/Hall, Inca professional fee equal to slx percent (6%) of the Purchase Price solely upon Closing of the Contract The professional fee shall be paid to Solender/Hall out of the sale proceeds at Closing, and the Title Company is hereby authorized and directed to pay such professional fee to Solender/Hall out of the Seller's sale proceeds at Closing Solender/Hall represents Seller only Seller agrees to indemnify and hold Pumhaser harmless from any and all clmms for any such commlssmns Purchaser agrees to indemnify and hold Seller harmless from any and all claims for a real estate commission by a licensed real estate broker claiming through Purchaser BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of its obligations hereunder or shall fall to consummate the sale of the Property except Purchaser's default, Purchaser as its 5 sole and exclusive remedy may either enforce specific performance of this Agreement or tenmnate this Agreement by written not, ce delivered to Seller BREACH BY PURCHASER In the event Purchaser should fail to consummate the purchase of the Property, the condiUons to Purchaser's obhgations set forth in PURCHASER'S OBLIGATIONS having bee satisfied and Purchaser being in default, Seller as its sole and exclusive remedy may enforc~ specific performance of this Agreement, or terminate this Agreement by written not,ce delivered to Purchaser MISCELLANEOUS PROVISIONS 1 Assignment of Agreement Purchaser may not assign this Agreement without the express written consent of Seller 2 Surwval of Covenants Any of the representations, warranties, covenants, and agreements of the part, es, as well as any rights and benefits of the parties, pertaining to a period of t~me following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged therein 3 Notice Any not,ce required or permitted to be delivered hereunder shall be deemed received when sent by Umted States mail, postage prepaid, certified mall, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party Seller's agent for purposes of notice shall be Phi1 D1Casolo, Executive V~ce President, YMCA of Metropohtan Dallas, 601 North Akard Street, Dallas, TX 75201-3303 Copies of notices forwarded to Seller shall be made to Greg Khne, Carrington Coleman Solman and Blumenthal LLP, 200 Cresent Court, Suite 1500, Dallas, TX 75201 Purchaser's agent for purposes of notice shall be Paul Wilhamson, Manager, Real Estate and Capital Support, City of Denton Engineering Department, C~ty Hall East, 601 E Hickory, Suite B, Denton, Texas 76205 4 Texas Law to Apply This Agreement shall be construed under and in accordance with the laws of the State of Texas, and all obhgations of the part,es created hereunder are performable ~n Denton County, Texas 5 Parties Bound Tlns Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and assigns where permitted by this Agreement 6 Legal Construction In case any one or more of the provisions contained ~n this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, said invalidity, illegality, or unenforceabihty shall not affect any 6 other prowslon hereof, and this Agreement shall be construed as ~f the invalid, illegal, or unenfomeable provision had never been contmned herein 7 Prior Agreements Superseded Th~s 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 with~n subject matter 8 T~me of Essence T~me ~s of the essence in this Agreement 9 Gender Words of any gender used in this Agreement shall be held and construed to ~nclude any other gender, and words ~n the s~ngular number shall be held to include the plural, and wee versa, unless the context requires otherw,se 10 Compliance In accordance with the requirements of the Texas Real Estate License Act, Purchaser is hereby advised that ~t should be furnished w~th or obtmn a policy of title insurance or Purchaser should have the abstract covenng the Property examined by an attorney of Purchaser's own selection 11 T~me L~mlt 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 dehvers same to Seller, Purchaser shall have the right to tenmnate th~s Agreement upon written not~ce to Seller 12 Authority By s,gmng this agreement the City Manager of the City of Denton and the Executive Vtce President of the YMCA of Metropolitan Dallas represent and warrant that each has authority to enter into this agreement by ordinance or resolution of the governing body of the entity they represent DATED tbas /¢~--/~ dayof ( 5~.~ Z/'~/T//~ /~ ,2001 PURCHASER THE CITY OF DENTON, TEXAS Michael Conduff City Manager 215 E McKlnney Denton, Texas 76201 7 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM ED ~Y ATTORNEY SELLER YMCA OF METROPOLITAN DALLAS By Phil l~lCasolo, Execut~e ~/lce President SELLER'S ADDRESS YMCA of Metropolitan Dallas 601 N Akard Street Dallas, Texas 75201-3303 8 ACKNOWLEDGMENT THE STATE OF TEXAS § COtrt~TY OF ~ § This instrument was acknowledged before me on ~_ ~'- , 2001 by Phil D1Casolo, Executive Vice President, YMC~ of' Metropolitan Dallas, a non-profit organization, on behalf of said non-profit organization Notary Public, in and for the State of Texas My Commission Expires AC~O~EDGMENT ~ s~ OF ~XAS CO~TY OF~d~ ~ Th~s ~nst~ent was ac~owledged before me on ~{~e~ ~r /~ , 2001 by Michael Conduff, City M~ager, C~ty of Denton Texas, a home rule mumclpahty, of Denton, Denton Co~ty, Texas N~y Pubhc,~n ~d for the----State of Texas .. ' ,, , , - V. MyCommlss~onExp~res () JANE E RICHARDSON My Commission E~I~e (I '~'*~' June 27,, 200~ 9  LOCATIOH M/~,P u~ ,~ F~ER_ [Subject Prope~ SENJAMIN ~ ~ w~OR ~ ~ cTexas Wc ~-O ~UnlversRy Of No~h~e~s S~OU~ ' ~ ~