2000-266 O INANCE NO
AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON AND THE WILLIAM L ABERNATHY CHARITABLE LEAD TRUST,
RELATING TO THE PURCHASE OF 0 0258 ACRES OF LAND FOR THE EXPANSION OF
U S HIGHWAY 77 (PARCEL 62), AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFORE, AND PROVIDING AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS
SECTION 1 That the City Manager is hereby authorized to execute a Real Estate
Contract between the City and the William L Abcmathy Charitable Lead Trust, in substantially
the form of the Real Estate Contract which is attached hereto and made a part of this ordinance
for all purposes, for the purchase of 0 0258 acres of land for the expansion ofU S Highway 77
(Parcel 62)
SECTION 2 That the City Manager is authorized to make the expenditures as set forth
m the attached Real Estate Contract
SECTION 3 That this ordinance shall become effective immediately upon its passage
and approval
d, yo, , ooo
EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
BY ..... ~4~-
APPI~VED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
REAL ESTATE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON
THIS CONTRACT OF SALE iS made by and between JOHN T. ARCHER,
MICHAEL J. MESSINA, JIM HUND, ~ARRY THOMAS ABE~NATHY, SIDNEY
PEYTON A~ERNATHY, TRUSTEE' S FOR THE WILLIAM L. ABERNATHY
CHARIABLE LEAD TRUST (hereinafter referred to as .Seller") end
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
rights and appurtenances pertaining to the said property,
includ~ng any right, title and interest of Seller in and to
adjacent streets, allays 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 end attached to the Property, for
the consideration and upon and subject to the terms, provisions,
and conditions hereinafter set forth. Seller shall pay all cost
for the removal, installation, construction, reinstellation,
reconstruction, labor and materials for any and/or improvements
located within the property described in Exhibit "A". Any
improvements not removed by MAy 31, 2000 shall become property of
the City of Denton, Texas.
PURCHASE PRICE
1. Amount of Purchase Price. The purchase price for the
Property shall be the sum of $12,170.00.
2. Pa~--t of Purchase Price. The full amount of the
Purchase Price shell be payable in cash et the closing.
PURCHASER ~ S OBLIGATIONS
The obligations of Purchaser hereunder to cons"""~ete the
transactions contemplated hereby are subject to the satisfaction
of each of the £011owing conditions any of which may be waived in
whole or in pert by Purchaser at or prior to the closing.
1. Preliminary Title Report. within twenty (20) days after the
date hereof, Seller, at Seller's sole cost and expense, shall
have caused the Title Co~pany (hereinafter defined) to issue a
owners policy commli~ment (the .Commi~ment") accompanied by copies
of all recorded documents relating to easements, rights-o£-way,
etc., affecting the Property. Purchaser shell give Seller
written notice on or Before the expiration of ten (10) days after
Purchaser receives the C~-~tment 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 ell 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 end 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. ~JAEY_gX. 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, end shall show the location
of all ~mprovements, 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 certl£ication 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 shell 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
satis~action 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 ell purposes and the Escrow
AEE008FE PAGE 2
Deposit shall be returned by the Title Company to Purchaser.
Purchaser.s failure to give Seller this written notice shall bo
deemed to be Purchaser's acceptance of the survey.
3. ~11er~s Comuliance. 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 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 ere no parties in possession of any portion of the
Property as lessees, tenants at sufferance, trespassers or other
2. Except for the prior actions of Purchaser, there is no
pending or threatened cond=-nation 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 Recover~ Act (RCRA), as amended,
and the Comprehensive Environmental Response Compensation and
Liability Act (CERCLA), as emended.
CLOSIN9
The closing shall be held at the office of Dentax Title
Company on or before May 31, 2000, 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").
AEE008FE PAGE
1. ~eller~s Re=uirements. At the closing Seller shall~
A. Deliver to The City of Denton a duly executed and
acknowledged Deed in the form as attached hereto as
Exhibit nB" conveying good and marketable title to ell of
the Property, free and clear of any and ell liens,
enovm~rancas, 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 payablel
2. Any exceptions approved by Purchaser
pursuant to ~haaer's Oblioations here-
o£1 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 Dentax
Title Cempany, Denton, Texas, (the "Title Company"), or
such title cempany 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 Cloeina Re~uirements 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 end 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
AEE008FE PAGE 4
be endorsed "Not Yet Due end Payable"i
and
4. The exception as to liens encumbering
the Property shall be endorsed ,'None of
Record".
C. Deliver to Purchaser possession o~ the Property on
the day of closing.
2. p~rchaser's Reauirements. Purchaser shall pay the
consideration as referenced in the "Purchase Price" section o£
this contract at Closing in immediately available funds.
3. ~. Seller shall pay ell taxes assessed by
any tax collection authority through the date of Closing. All
other costs and expenses of closing in consuav~ating the sale and
purchase of the Property not specifically allocated herein shall
be paid by Purchaser
REAL ESTATE COMMISSION
All obligations of the Seller and Purchaser for payment of
brokers' £ees are contained in separate written agreements.
BREACH BY SELLER
In the event Seller shall fail to fully end timely perform
any of its obligations hereunder or shall fail to cons,,---ate 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 fei1 to cons--~ate the purchase
o~ 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.
AEE008FE PAGE 5
MISCELLANEOUS
1. Ass~m~nt of Aareement. This Agreement may be assigned
by Purchaser without the express written consent of Seller.
2. ~urvival 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 £ollowing 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 ~eller or Purchaser, as the case may be, at the
address set forth beneath the signature of the party.
4. T~xas Law to Annlv. This Agreement shall be construed
under and in accordance with the laws of the State o£ Texas, and
all obligations of the parties created hereunder are performable
in Denton County, Texas.
5. ~1~--~. This Agreement shall be binding upon and
inure to the benefit o£ the parties and their respective heirs,
executors, administrators, legal representatives, successors and
assigns where permitted by this Agreement.
6. ~gaal Construction. In case any one or more of the pro-
visions contained in this Agreement shall £or any reason be held
to be invalid, illegal, or unenforceable in any respect, said in-
validity, illegality, or unenforceability shall not a£fect any
other provision hereof, and this Agreement shall be construed as
if the invalid, illegal, or unenforceable provision had never
been contained herein.
7. ~r~or Aareements 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 is of the essence in this
Agree~lent.
9. Gender. Words of any gender used in this Agreement shall
AEE008FE PAGE 6
be held and construed to include any other gender, and words in
the singular n~er shall be held to include the plural, and vice
versa, unless the context requires otherwise.
10. w--~=andum of Contract. Upon request of either party,
both parties shell promptly execute a memorandum o£ 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
it should be furnished with or obtain & policy of title insurance
or Purchaser should have the abstract covering the Property
examined by an attorney of Purch&ser's own selection.
12. ~_~g~. 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
Seller, Purchaser shell have the right to terminate this
Agreement upon written notice to Seller.
DATED this /~ day of ~,2000'
SELLER PURCHASER
WILLIAM L. ABERNATHY T~CITY OF DENTON, 7XAS
, TRUSTEE Z
215 /E·
MICHAEL J. MESSINA, TRUSTEE Denton, Texas 76201
JIM HUND, TRUSTEE
HARRYTHOMAS ABERNATHY, TRUSTEE
SIDNEY PEYTON ABERNATHY, TRUSTEE
AEE008FE PAGE 7
STATE OF TEXAS
COUNTY OF DBNTON
~S instr~ment is acknowledged before me, on this day of
~~__, 2000 by Michael W. Jez, City Manager, of the City
of D~2on, a m~ioipal oo~ora~ion, ~o~ to me to be the person
and officer whose n~e is s~scribed ~o the fore~oing inst~en~
and acknowledged ~o me ~ha~ 2he s~e was the ac~ of the said City
of Denton, Texas, a municipal co~oration, that he was dul~
authorized 2o perfo~ the s~e by appropriate ordinance of the
City Co,oil of the C~y o~ Denton an~tha2 he executed the
as the act of the said City ~or/p~oses and considerat~on
~herein .xpre...d, andin ~he capa~?~her~sta~ed)~~
~ [*~ ~ )"] MyComml.lon~pires ~ Che State o= Texas
~ MAYg, 2002
STATE OF ~
co~Y OF .~r~
This inet~en~ is ao~owleagea be2ore me, on thie ~ aay o2
J~n,ar~4 , 3000 b~ ~
the State of
STATS OF
COUNTY OF
This instrument is acknowledged before me, on this day of
, 2000 by MICHA~L J. M~SSINA.
Notary Public in and for
the State of
AEE008FE PAGE 8
STATE OF
COUNTY OF
This instrument is acknowledged before me, on this day of
· 2000 by~
Notary Public in and for
the State of
STATE OF
COUNTY OF
This instrument is aoknowled~ed before me, on this day of
· 2000 by ~g~ ~HOMAS ABERNATHY.
Notary Public in and for
the State of
STATE OF
COUNTY OF
This instrument is acknowledged before me, on this day of
· 2000 by ~IDN~¥ PAYTON ABERNATHY.
Notary Public in and for
the State of
STATE OF
COUNTY OF
This instrument is aoknowledged before me, on this day of
, 2000 by ,
Notary Public in and for
AEE008FE PAGE 9
the Btata o~
STATE O~
COUNTY OF
This instrument is acknowledged before me, on this day of
, 2000 by '
Notary Public in and for
the State of
STATE OF
COUNTY OF
This instrument is acknowledged be£ore me, on this day of
· 2000 by
Notary Public in and £or
the State of
AEE008FE PAGE 10
EXHIBIT "A"
County: Denton Page: ~ of ~
Highway: yrS. 77 D-15-31
Project Limits: From I.H. 35 Rev. January 13, 1995
To U.S. 38O
CSJ: ~95-02-
Account:
Legal Land Description for Parcel 62
BEING 1,126 square feet or 0.0258 acres of land, more or less,
situated in the M. Meisenheimer Survey, Abstract Number 811, the
city. of Denton, Denton County, Texas, and being a part of Lots 5,
6, 7, and 8 in the J.M. Chandler Subdivision, an addition to the
City of Denton, Texas, as recorded in Volume 144, Page 419, Deed
Records of Denton County, Texas, and being a paz= of the land
conveyed to William L. Aberna~hy by deed as recorded in Volume
2361, page 326, Deed Records of Denton County, Texas; said 1,126
square feet or 0.0258 acres of land being more partIcularly
described by metes and bounds as follows:
COMMENCING at a P.K. Nail and washer found in the most eastern
property line of a tract of land conveyed to Property Development
Associates, a California general partnership, by deed as recorded
in Volume 2926, page 0463, Deed Records of Denton County, Texas,
and being the northwest corner of a tract of land conveyed to Ann
B. Hawkins by deed as recorded in Volume 3207, Page 0421, Deed
Records of Denton County, Texas, and the southwest corner of said
Abernathy tract of land,;
THENCE South 00 degrees 48 minutes 27 seconds West along the common
property line of said Property Development Associates tract of land
and said Hawkins tract of land for a distance of 64.51 feet to the
new northern right of way line of U.S. 380;
THENCE South 89 degrees 14 minutes 37 seconds East along the new
northern right of way line of U.S. 380 for a distance of 111.98
feetlto an angle point;
THENCE North 45 degrees 45 minutes 13 seconds East along the new
northern right of way line of U.S. 380 for a distance of 48.33 feet
to the new western right of way line of Locust street;
EXHIBIT "A"
County: Denton Page ~ of ~
Highway: U.S. 77 D-15-31
Project Llmlts From I H. 3~ Rev. January 13, 1995
To U S. 380
CSJ 0195-02-
Account:
Legal Land Description for Parcel 6~2
THENCE North 01 degrees 10 minutes 58 seconds East along the new
western right of way line of Locust Street for a distance of 30 33
feet to an "X" cut in the northern property line of said Hawkins
tract of land and the most southern property line of said Abernathy
tract of land, at the POINT OF BEGINNING,
(1) THENCE North O1 degrees 10 minutes 58 seconds East along the
new western right of way l~ne of Locust Street for a d~stance
of 315.44 feet to an "x" cut in the existing southern right of
way line of Sherman Street, a public road;
(2) THENCE South 89 degrees 32 minutes 53 seconds East along the
exlstlng southern right of way line of Sherman Street for a
dlstance of 1.84 feet to the northeast corner of said
Abernathy tract of land, and in the existing western r~ght of
way line of Locust Street,
(3) THENCE South O0 degrees 33 minutes 22 seconds West along the
exlst~ng western r~ght of way l~ne of Locust Street for a
distance of 315.45 feet to the southeast corner of Abernathy
tract of land, and the northeast corner of said Hawklns tract
of land;
(4) THENCE North 89 degrees 14 minutes 33 seconds West along the
common property line of said Abernathy tract of land and said
Hawkins tract of land for a distance of 5.29 feet to the POINT
OF BEGINNING, and containing an area of 1,126 square feet or
0 0258 acres of land, more or less
of the County of , Su~ of T~as, hereinafter refiaxed to as Granmm, whether
one or more, for and in comidonuion of the sum of
Dollars ($ ) to Ora~. ~ors
which ,-, hereby acknowled~d, and for which no ll~ is renamed, earner exp~ssan or unpuea, nave
day Sold and by these presmss do Onu~, Bargain, Sell and Convey unto ~he S..~e . .
trac~ or panel of land in - County, Texas, more pamcalany ueacrmea m ~-
SAVE and F-~XC]~'I', HOWEVER, i! ia c.xpll~ly lulcle, rstood ~ agreed thai ~]ran~rs ~ retaining
title to the following improvmnenm locau~d on dm property doacnbed m smd Exinbit WA, to
Grmuors covenant and a~n~ m remove the above-deambed unpmvermmu from smd land by the
davof ,19 , subfect, however, to such extansmns of Urns as may be granted
..by'the S~ m ~ and~', for any--'~on~ Oramom fa~ or ~s~ to remove san~ wiu'tm said period
tune proscribed, then, without any ~ consideragen, the role to an or any pan of such unpmvements
no~ so removed shall pass to and ves~ m the ~a~ of Texas forever.
G..r~ntor~ reserve all of the mi, ~ and sulphur in and under die land ~ co~. veyed but waive .all..n. gh~
of regress and e~ss to dm surface ~hereof for dm purpose of e0~plo.r~, g, ~v. mopmg, .ninon. g or. av-,}g zor
same; however, nothing in this mservadon shah aff~ the ~ and nl~lus of me ~tam to ~ ana use au
Teza~ Delz~meat of TnmaeomUion
Porto D-Ii-14
TO HAYE AND TO HOLD the prem;~es harem described and hereto conveyed together with all and
fo~nregUlar tb.e.n~s and..aplm, u.u.u.u.u.~t~...ces, llaueto m any wise belcugmg unto the Stare o£Texas and ~ts assigns
vet; aha ~eantors ao neret~y bind ourselves, our heus, executors, adnanLmators, successors and a~-
t~ee~of.an~' ~ ess~sm aSau~t ~very ~ wuom~oov= lawny ~.,,r~ns or to ~.,~ ~ ,am~ or any p~
IN W1TNE$$ ~REOF~ this insu~lent is ~,~cutod on tlus the day of
,19,,
ACKNOWLEDGMENT
THE STATE OF TEXAS, } . ·
COUNTY OF
BEPOR~ M~, Ihe undelsigned, a Nouuy Public, oa this day penlo-.!:¥ appea~ed
, ~owe to me (or proved
to me on ~ o~ of . a ~ble w~m~s.) to be ~ ~on(s) whose
~e(s) ~ (~)
O~ ~ MY ~ ~ ~ OF O~ ~s ~y of__ ,19=
My Commbstm exph~ on Ihe day of .19
'Fexu Depmummt o~ ?r~nspomt~toa
Fonu D-/,.q-14
P~o3o1'3 Rev 9/91
After recordfng please return t_hi_~ instrument to:
TH OF TEXAS, CERT~'i~ATE
OF
RECORDI~'~G
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