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2000-114AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND EVELYN BARTHOLD, ET AL, RELATING TO THE PURCHASE OF APPROX~ATELY 1 7 ACRES OF LAND AT THE NORTHWEST CORNER OF 1-35 AND LOOP 288 IN THE BBB & CRR SURVEY, ABSTRACT NO 141 FOR THE CONSTRUCTION OF A WATER STORAGE FACILITY, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS ~ That the Caty Manager is hereby authorized to execute a Real Estate Contract between the City and Evelyn Barthold, individually and as Independent Executrix of the Estate of Edward Robert Barthold, and Fred Lee Barthold, Karen Mlehelle Lyle and Glynda Ann Hmrston, I,n substantially the form of the Real Estate Contract wtuch ~s attached to and made a part of this ordinance for all purposes, for the purchase of approximately 1 7 acres of land for the purpose o~ constructing a water storage famhty ~ That the City Manager ~s luthonzed to make the expenditures as set forth in the attached Real Estate Contract ~ That this ordinance shall become effective ~mmedlately upon its passage and approval ASSED APPROVED thisthe / day or ,2000 JA~ilLLER, MAYOR ATTEST JENNIFI~ R WALTERS, CITY SECRETARY HERB~OU~ATTORNE REAL ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE ~s made by and between Evelyn Barthold, Indlmdually and as Independent Executrix of the Estate of Edward Robert Barthold, and Fred Lee Barthold, and Karen Mmhelle Lyle, and Glynda Ann Hatrston (hereanafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home role mumcapahty, of Denton, Denton County, Texas, (herematl~r referred to as "Purchaser"), upon the terms and condatmns set forth hereto 2 3 PURCHASE AND SALE Seller hereby sells and agrees to convey, and Purchaser hereby purchases and agrees to pay for all that eertmn tract, lot or parcel of land an the B B B & C R R Survey, Abstract Number 141 conmstmg of approxmmtely 1 7 acres (nominal 250' x 250' sate (Tract 1) + 30' x 300' strip(Tract 2)) as illustrated an "Exlub~t A", the specffic metes and bounds description to be calculated and derived from a formal survey yet to be performed, exact acreage amount of Tract 1 and Tract 2 combined shall be watlun the range of 1 6 acres to 1 8 acres, together w~th all nghts and appurtenances pertmmng to the smd property, ancluchng any right, t~tle and anterest of Seller ~n and to adjacent streets alleys or rights-of-way (all of such real property, nghts, and appurtenances being hereinafter referred to as the "Property"), together wath any amprovements, fixtures, and personal property situated on and attached to the Property, for the conmderat~on and upon and subject to the terms, provaslons, and conchtlons hereanafter set forth Purchaser hereby acknowledges that the access driveway for the purchase tract wall be on State H~ghway Loop 288 Seller and Purchaser hereby agree to work cooperaUvely wath sate grading msues related to the mstallaUon of the proposed pubhc nnprovements specffically as they relate to cutting the earthen ridge along the north right-of-way hne State Haghway Loop 288 to mmgate any future utdaty elevation msues an regard to potentml development of the remmnder of the Barthold parcel, whereby penmsmon to perform such actlvltaes will not be unreasonably wathheld PURCHASE PRICE Amount of Purchase Pnce The purchase price for the Property shall be $1 00 per square foot of land The 1 7 acre tract would yxeld Seventy Four Thousand and Fafty Two Dollars and No Cents ($74,052 0o) The exact dollar amount purchase price shall be calculated by umng the square footage amount derived by survey of purchase tract 2 poyment of Purchase Price. The full amount of the Purchase Pnce shall be payable an cash at the closing 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 m whole or in part by Purchaser at or pnur to the closing Prehmmary Title Renort Within twenty (20) days aRer the date hereof, Purchaser, at Purchaser's sole cost and expense, shall cause the T~tle Company (hereinafter defined) to issue an 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 Comment that the condition of title as set forth m the Commitment is or m not satisfactory In the event Purchaser states the condition of utle is not saUsfaetory, 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 obhgaUon to cure any title defects complained of by Purchaser stated in Purchaser's written notme to Seller as provided in fins paragraph In the event Seller is unable to do so within ten (10) days after receipt of wnttan nouce, Purchaser, at its option may elect to terunnate fins Agreement ( m which event fins agreement shall be null and void ), grant Seller additional time to cure, or proceed to closing 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 unprovements, highways, streets, roads, railroads, nvers, 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 descnptlon 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 mothfy 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 its option may elect to terminate this Agreement ( in which event Page 2 of 9 3 tins agreement shall be null and voad ), grant Seller additional time to cure, or proceed to closing Seller's Comnhance Seller shall have performed, observed, and complied w~th all of the covenants, agreements, and condmons reqmred by tins Agreement to be performed, observed, and comphed wath 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 ~ts current knowledge, as follows, winch representataons and warrannes shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no part,es m possession of any port, on of the Property as lessees, tenants at sufferance, or trespassers 2 3 Except for the prior actions of Purchaser, there as no pendang or threatened condenmatlon or slmder proceeding or assessment or stat, affecting title 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 Seller has comphed w~th all apphcable laws, or&nances, regulations, statutes, rules and restrictions ralatmg 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 toxxc or hazardous wastes or materials mclude, but are not llmated to, hazardous matenals or wastes as same are defined by the Resource ConservaUon and Recovery Act (RCRA), as amended, and the Comprehensive Enwronmental Response Compensatxon and Ltablhty Act (CERCLA), as amended 5 Seller hereby grants the C~ty of Denton and or xts designee formal penmsslon to enter Seller's property m order to perform such field surveyang act~vmes to estabhsh boundaries and monuments necessary to consummate the above-mentioned real property purchase transaction CLOSING The closing shall be held at the office of Texas T~tle Company (the "T~tle Company"), 2215 South Loop 288, State 320, Denton, Texas on or before March 3, 2000(winch date is herem referred to as the "closing date") The closing date may be extended by mutual agreement of the part, es Page 3 of 9 CLOSING REQUIREMENTS el er' R m em ts At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged Special Warranty Deed conveying good and marketable t~tle ~n fee s~mple to all of the Property, free and clear of any and all hens, encumbrances, conditions, assessments, and restnctlons, except for the following 2 General real estate taxes for the year of closing and subsequent years not yet due and payable, and Any exceptions approved by Purchaser pursuant to Purchaser's ~ hereof, and B 3 Any exceptions approved by Purchaser m writing 4 Seller shall reserve an regress/egress easement within the boundaries of Tract 2 (30' x 300' stop) within the body of the Special Warranty Deed thereby preserving existing access rights to their remainder parcel along State Highway Loop 288 frontage road within the parameters of current or future subdlvlaon regulations regarding access Dehver to Purchaser a Texas owner's Policy of Title Insurance at Purchaser's sole expense, ~ssued by Texas Title Company, Denton, Texas, (the "Title Company"), m Purchaser's favor in the full amount of the purchase price, msunng Purchaser's fee rumple title to the Property subject only to those title exceptions hsted in ~ hereof, such other exceptions as may be approved in writing by Purchaser, and the standard pnnted exceptions contmned m the usual form of Texas Owner's Pohcy 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 w~th same shall be borne by Seller, 2 The exception as to restnctlve covenants shall be endorsed "None of Record", The exception as to hens encumbering the Property shall be endorsed "None of Record" other than those set forth ~n "Purchaser's Obhgat~ons" Page 4 of 9 The exceptton for taxes shall be limited to thc year of closing and shall be endorsed "not yet due and payable" C Dehver to Purchaser possession of the Property on the day of closing Purchaser's Reouirements. Purchaser shall pay the consideration as referenced in the "Purchase Price" section of this contract at Closing in immediately available funds 3 ~ 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 in consummating 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 Any real estate commissions occasioned by the consummation of this Agreement shall be the sole responslbfl~ty of Seller, to the extent Seller has agreed to pay any such real estate comnussion m writing, and Seller agrees to indemnify and hold Purchaser harmless fxom any and all clauns for any such commissions BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of its obligations hereunder or shall fatl to consummate the sale of the Property except Purchaser's default, Purchaser as its sole and exclusive remedy may either enforce specific performance of this Agreement or terminate ttus Agreement by wnttan notice delivered to Seller BREACH BY PURCHASER In the event Purchaser should fall to consummate the purchase of the Property, the conditions to Purchaser's obhgatlons set forth in PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default, Seller as its sole and exclusive remedy may enforce specific performance of th~s Agreement, or terminate th~s Agreement by written notice delivered to Purchaser MISCELLANEOUS PROVISIONS 1 Ass~mment of Am'cement. Tlus Agreement may not be assigned by Purchaser without the express wnttan consent of Seller Survival of Covenants. Any of the representations, warranties, covenants, and agreements of the parties, as well as any rights and benefits of the parties, Page 5 of 9 4 6 7 10 11 pertmmng to a period of t~me following the closang of the transactaons contemplated hereby shall survive the closing and shall not be merged therein Notme. Any noUce reqmred or perrmtted to be dehvered hereunder shall be deemed received when sent by Umted States mall, postage prepatd, cerUfied marl, return recexpt requested, addressed to Seller or Purchaser, as the ease may be, at the address set forth beneath the s~gnature of the party Seller's agent for purposes ofnotace shall be ~ Thts Agreement shall be construed under and m accordance with the laws of the State of Texas, and all obhgataons of the pames created hereunder are performable m Denton County, Texas ~ This Agreement shall be binding upon and ~nure to the benefit of the pames and their respective legal representatives, successors and assigns where perrmtted by flus Agreement ~ In case any one or more of the prowmons contmnext in tins Agreement shall for any reason be held to be lnvahd, illegal, or unenforceable m any respect, smd ~nvahd~ty, illegality, or unenforceablhty shall not affect any other prows~on hereof, and tins Agreement shall be construed as if the lnvahd, illegal, or unenforceable provlsmn had never been contmned here~n Prior A~eements Sunerseded Tins Agreement constitutes the sole and only agreement of the part,es and supersedes any prior understanchngs or wntten or oral agreements between the pames respecting the w~thm subject matter ~ Time ~s of the essence m this Agreement ~ Words of any gender used ~n tbas Agreement shall be held and construed to include any other gender, and words m the singular number shall be held to include the plural, and wee versa, unless the context reqmres otherwise Comohance In accordance Wlth the requirements of the Texas Real Estate Lmense Act, Purchaser is hereby advised that ~t should be funushed w~th or obtatn a pohcy of title ~nsurance or Purchaser should have the abstract covenng the Property examined by an attorney of Purchaser's own select~on T~_klgg_~l.~h_In the event a fully executed copy of this Agreement has not been returned to Purchaser within ten (10) days after Purchaser executes tins Agreement and delivers same to Seller, Purchaser shall have the right to terminate tins Agreement upon wntten notme to Seller Page 6 of 9 DATED tins ,2000 PURCHASER THE CITY OF DENTON, TEXAS C~ty Manager 215 E McKmney Denton, Texas 76201 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY SELLER Evelyn Ma~/a Barthold, INDWIDUALLY and as Independent Execumx of the ESTATE OF EDWARD ROBERT BARTHOLD SELLER Page 7 of 9 SELLER Karen M16helle Lyle SELLER Glynd~Ann Hmrston SELLER'IADDRESS ACKNOWLEDGMENT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on ~.~_{~O~ [ ~ar' , 2000 by Evelyn B~thold, INDIVIDUALLY an~ ~ .r~.~+_~ ^c.n.t 1' ^ r~ a, o q~xJrx'r w · lxrrxtt~ mo, *c,q- and EDWARD RQ~ER~ BARTH~)LD My Commission Expires ACKNOWLEDGMENT THE STATE OF ~ § COUNTy OF ~.t'(~Ln~ § This instrument was acknowledged before me on ~n and for the/S~tate of i/~r~h, NOT~fl'~I~JO 1l MyCommlsslonExplres , 2000 by Page 8 of 9 ACKNOWLEDGMENT THE STATE OF ~ § COUNTY OF ~q/~ § This instrument was acknowledged before me on ~/~.~ ~U~g-t Karen Mlehelle Lyle ~~ ~~ / N~ Pubfic, ~n~d~tat~ Of M~ Co~lSSlon Expires ACKNOWLEDGMENT THE STATE OF OK § COUNTY OF ~ § This instrument was acknowledged before me on Glynda Ann Hmrston ~'-, Ot: ~1. ~ · IN h . Notary Pubhc, in and for the State MyComm~ssmnExp~res \~ ~- , 2000 by Page 9 of 9 EXHIBIT "A"