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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 c }