2001-348 NO
AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON' AND WALNUT ACRES, LLC, RELATING TO THE PURCHASE OF
APPROXlh4ATELY 0 4269 ACRE PARCEL 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 C~ty Manager, or Ns designee, ~s hereby authorized to execute a Real
Estate Agreement between the Cay of Denton and Walnut Acres, LLC m substantmlly the form
of the Real Estate Agreement attached to and made a part of thru ordinance for all purposes and
to execute any documents ~n connection therewith
SECTION 2 The C~ty Manager, or Ns designee, ~s authorized to make the expen&tures
as set forth m the attached Real Estate Agreement
SECTION 3 TNs ordinance shall become effective ~mmed~ately upon ~ts passage and
approval
PASSED AND APPROVED tlus the /~0 dayof (~E)~m~// ,2001
EULINE BROCK, MAYOR
ATTEST'
JENNIFER WALTERS, CITY SECRETARY
API~i(OVED AS TO LEGAL FORM
HERBERTBy ~~45L PROUTY, C~RNEY, rTi
REAL ESTATE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON
THIS CONTRACT OF SALE is made by WALNDT ACRES, LLC
(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
r~ghts and appurtenances pertaining to the said property,
~ncluding any right, title and ~nterest 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 Any improvements not
removed by September 28, 2001 shall become property of the City
of Denton, Texas
pURCHASE PRICE
1. Amount of Purchase Price. The total purchase price for
the Property shall be the sum of $18,705 00 (the
,,Purchase Price") . The Property Ks being acquired by
Purchaser to be used by the State of Texas as right~of-
way for the widening of U S. Highway 77
2. Additional Consideration. In addition to the purchase
price stipulated above for the Property, the Purchaser
shall pay $8,000.00 as participation in the Change Order
costs associated with the engineering design fees and
material costs for upsizing the current Texas Department
of Transportation dralnage pipe design (24" Reinforced
Concrete Pipe (RCP)) from TxDOT plan ranging from
Station 15+70 to Station 20+50 (480 lineal feet) along
DISK 5
Seller's frontage to a 30" RCP. Seller shall, solely at
Seller's discretion and expense, take action to initiate
engineering plans for the design change within the
pending widening project and pay the Change Order
construction costs effectuated by the change. The City
of Denton shall actively facilitate the Change Order for
upsizing the drainage pipe as described above within the
administrative p&ra~eters asserted by the Texas
Department of Transportation for such design changes.
3. Pa~v~t of Purchase Price The full ar~ount of the
Purchase Price and Additional Consideration shall be
payable in cash at the closing.
PURCHASER'S OBLIGATIONS
The obligations of Purchaser hereunder to consummate the
transactions contemplated hereby are subject to the sat=sfaction
of each of the following conditions any of which may be wa=red in
whole or in part by Purchaser ~t or prior to the closing.
i ~reli~rv 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
=ssue a owner's policy commitment (the .Con~nitment") 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 Con~nitment 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. ~LT_V_~. 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,
PAGE 2
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
sat=sfaction 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
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 recruited 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 belmef of Seller is any
such proceeding or assessment contemplated by any governmental
authority
3. To the best of Seller's knowledge, Seller has complied
PAGE 3
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 sh&ll be held at the office of Texas Title
Company, 2215 S. Loop 288, Suite 320, Denton, Texas 76205 on or
before September 28, 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").
CLOSING REQUIREMENTS
1. Seller.s Requirements. At the closing Seller shall~
A. Deliver to State of Texas, acting by and through the
Texas Transportation Comm=ss=on 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 p&yable~
2. Any exceptions approved by Purchaser
pursuant to ~r~-ser~s Obli=ations 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 Texas
PAGE 4
Title Company, 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 Closina 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 requmred by Purchaser
and mf 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
A. The exception as to liens encumbering
the Property shall be endorsed "None of
Record".
C. Deliver to Purchaser possessmon of the Property on
the day of closing.
2. Purchaser's Re_o~xirements. Purchaser shall pay the
consideration as referenced in the ,,Purchase Price" section of
this contract at Closing in immediately ava=lable funds.
3. ~-~. Seller shall pay all taxes assessed by
any tax collection authority through the date of Closing All
other costs and expenses of closing in consununating the sale and
purchase of the Property not specifically allocated herein shall
be paid by Purchaser, 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 transactxon and that there
PAGE 5
are no broker or real estate fees due as a result of the
consummation of this contract.
BREACH BY SELLER
In the event Seller shall fail to fully and timely perform
any of its obligations hereunder or shall fail to consun~nate the
sale of the Property except Purchaser's default, Purchaser may
either enforce specific performance of this Agreement or
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 satisfaed and
Purchaser being in default Seller may either enforce specific
performance of this Agreement, or terminate this Agreement by
wratten notice delivered to purchaser.
MISCELLANEOUS
1. Assi~t of Agreement. Thas Agreement may not be
assmgned by Purchaser without the express written consent of
Seller.
2. Survival of Covenants. A~y of the representations, war-
rantaes, covenants, and agreements of the parties, as well as any
raghts and benefits of the parties, pertaaning to a period of
tame following the closing of the transactions contemplated
hereby shall survive the closing and shall not be merged therein.
3. ~. Any notice required or permitted to be delivered
hereunder shall be deemed received when sent by United States
maal, 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. T~as Law to Ap~l~. 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
an Denton County, Texas.
5. ~9~. This Agreement shall be banding upon and
anure to the benefit of the parties and their respective hears,
executors, aclministrators, legal representataves, successors and
PAaE 6
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 ~nenforceability 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 Aareements 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 respecting the within subject matter.
8. ~. Time is of the essence in this
Agreement.
9 Gender. Words of any gender used an this Agreement shall
be held and construed to include any other gender, and words in
the s~ngular number shall he held to include the plural, and vice
versa, unless the context requzres 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. ~]~. In accordance with the requirements of the
Texas Real Estate License Act, Purchaser is hereby advised that
· t 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 ~__~. 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. ~~--~. The term "Effective Date" means the latter
of the dates on which this Contract is signed by either Sellers
or Purchaser, as ~ndicated 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
PAGE 7
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
samd 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 Drivew&~s. The Project will be constructed in such
a manner that Seller's existing driveway opening or openings will
remamn open at no cost to Seller.
IN WITNESS WHEREOF, Seller and Purchaser have executed this
contract as follows,
SELLER: PURCHASER,
WALNUT Acres, LLC
Name. U
Tmtle. ~W._ City Manager
Date: ~-~o, 215 E McKinney
Denton, Texas 76201
Date, 9-1~-~1
?PROVED AS TO FORM /
~w AWORN~F..V~ //
STATE OF TEXAS
COUNTY OF DENTON
This instrument is acknowledged before me, on this /~tday of
~9.~m~6f , 2001 by ~ichael A. Cond~f, City ~anager, of the
City of Denton, a municipal corporation, known to me to be the
person and officer whose name is subscribed to the foregoing
PAGE 8
~nstrument 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.
Public an and for
NotaryPubt~c SteteofTexaa the State of Texas
My ~0mmlssk~ Ex~lms
June 27, 2000,
STATE OF NEBRASKA
COUNTY OF
Th~s instrument is acknowledged ,~efore me, on this
day
of
2001 by , of
wa~lnut Acres, LLC.
TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT
The Title Company acknowledges receipt of the fully executed
Contract on__ day of , 2001.
TITLE COMPANY:
Name: Texas Title Company
Address: 2215 S Loop 288, Suite 320
Denton, Texas 76205
Telephone. 940-382-8251
Printed Name:
T~tle:
PAGE 9
EXIBIT A
PAGE 1 OF 3
N 00' 45 ~8 E [
~5 27
, S 32' 18 56 w
30 74
N 58' 12 52 W '
591 85 ' -.
LOT 1 ~LOCK A
~ARUCH ADDITION
CAS PPG 173
PRDCT J'
1 ~ ~ N 32' 18 56
~~C~c~ ~C~ ~% W~NUT ACPES L C C
0~9 'e~ ' g~ OROCT
~ GARY h KmRCHOFF TRUSTEE OF T~:
~ W~SLEY CLA~K & JOSEPHIN~ C CLA~K
~ REPLACEMENT PROPERTY tRR[VOC~LE TPUST
~ (CALL 8 431 AC
o CC g8 ~0h6072
~z DRDCT
POC
DEVELOPMENT COMPANY
(C~LED 78 865 AC )
VOL 2695 PO 465
OROCT
C~H~C SC~[ A PLAT Or A SURVEY OF A
~ ~ ~oo, O 4269 AC [18,594 SO FT ] TRACT OF
IN THE ~[X~D[R WHITE SURVEY
~STRACT NO 1406 PARCEL 5A
CSJNo 0195 02 CITY OF DENTON
ACCOUNT DENTON, COUNTY, TEXAS SHEET
EXIBIT A
PAGE 2 OF 3
H~ghwat I I ~, 77
Prolect bm~ts From I H 35
CSJ otq'~ 02
FIELD NOTES FOR PARCEL
BEING A 04269ACRE PARCEL OF LAND SITUATED THE ALEXANDER WHITE SURVEY, ABSTRACT NO 1406
CITY OF DENTON TEXAS AND BEING A PORTION OF LOT 1 BLOCK A OF THE BARUCH ADDITION AN
ADDITION RECORDED IN CABINET P PAGE 173 OF THE PLAT RECORDS OF DENTON COUNTY TEXAS AND
BEING DESCRIBED IN INSTRUMENT TO WALNUT ACRES LLC Ar,ID RECORDED IN COUNTY CLERK,
CONVEYANCE NUMBER 98 R0112744 DEED RECORDS OF DENTON COUNTY TEXAS (DRDCT) AND BEING
MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS
COMMENCING for reference at a 1/2 tach ~ron rod found for the southeast corner of Lot 1 same being the
southwest corner of a called 8 431 acre tract of land descnbed ~n ~nstrument to Gary H K~rchoff trustee of the
Wesley Clark and Josephine C Clark Replacement Property irrevocable Trust recorded m County Clerk
Conveyance Number 98 R0116072 DRDCT,
THENCE N 00° 43 13 E, along theeast hneof Lot 1 and the ,,/est hne of sa~d 843t acretract ad,stance of
542 73 feet to an angle point
THENCE N 32° 18 56 E conbnu~ng along sad common hne a d~sraqce of 82 51 fee to an X cut ~n
concrete sar rathe new southerly right of wayhne of U S 77 and the POINT OF BEGINNING
(1) THENCE N58° 12 52 W, along the new southerly nght o' waylneof US 77 ad,stance of
591 85 feet to a 5/8 tach ~ron tod w~th an aluminum d sk set m tqe wes' hne of Lot 1 same
being an east hne m a celled 78 865 acre tract of land (Loop Trac Tract One) descnbed ~n
instrument to Rancho Vista Development Company recorded m Volume 2695 Page 465
DRDCT,
(2) THENCE N OD° 43 18 E along the west hne of Lot 1 a~d an eas Irne O' sa~d Loop Tract and
the ne,,',, southerly mght of way hneof U S 77 passing a, 11 67 fee a 5/8 tach ~ron rod w~th aq
aluminum d~sk set Jn the new soLtherly right of way hne o' U S 77 aqd passing at 24 94 feet a
5/8~nch iron rod found m the northerly hne ct smd Loop Tract ma" a total d~stance of 36 32
feet to the northwest corner of Lot 1 and the ex~st~ng southerly mght of way hne of U S 77 as
dedicated by smd addmon,
(3) THENCE S 58° 10 46 E along the north hne of Lot 1 and the exsrng southerly right of ,,Jay
hne of U S 77, a d~stance of 610 87 feet to the northeas, corner of Lot 1 and the west hne of
smd 8 431 acre tract,
(4) THENCES32° 18 56 W, along the east hne of Lot 1 and a west lme of sa~d8431 acreTract
a distance of 30 74 feet to the POINT OF BEGINNING and containing 0 4269 acres or 18 594.
square feet of land
EXIBIT A
PAGE 3 OF 3
County
H~ghway H ~ 77
Proiect Limits From
To
FIELO NOTES FOR PARCEL
Surveyed May 2001
PBS&J Inc
Thomas Wdham Mauk R P L S
Texas Reg,strabon No 5119 ~