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2000-314 ORDINANCE NO ¢~00 -.~/¢ AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND KDRC II LIMITED PARTNERSHIP, RELATING TO THE PURCHASE OF APPROXIMATELY 04221 ACRE OF LAND LOCATED IN THE T TOBY SURVEY, ABSTRACT NO 1288, FOR USE AS A WATER STORAGE TANK EXPANSION SITE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS SECTION 1 The C~ty Manager is hereby authorized to execute a Real Estate Contract between the C~ty and KDRC II, in substantmlly the form of the Real Estate Contract which is attached hereto and made a part of thru ordinance for all purposes, for the purchase of approximately 0 4221 acre of land for use as a water storage tank expansion rote SECTION 2 The City Manager zs authorized to make the expenditures as set forth in the attached Real Estate Contract SECTION 3 Tl~s ordinance shall become effective lmmedmtely upon its passage and approval PASSED AND APPROVED this the ~'-~ day of c ~,~5~:~f ,2000 EUL1NE BROCK, MAYOR ATTEST JENNIFER WALTERSTI~Y SECRETARY ; TO LEGAL FOR~ BY - ~ REAL, ESTATE CONTRACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between KDRC II Limited Partnershtp, being the same hnuted partnershtp as K D R C II, Ltd, a Texas hm~ted parmershlp (hereinafter referred to as "Seller") and CITY OF DENTON, TEXAS, a home role mun~c~pahty, of Denton, Denton County, Texas, (hereinafter referred to as "Purchaser"), upon the terms and conditions set forth hereto PURCHASE 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 of land m the T Toby Survey, Abstract No 1288 of Denton County, Texas, consmtmg of 0 4221 acres of land as desenbed m "Exhibit A", attached herewith, together with all rights and appurtenances pertaining to the said property, including any right, title and interest of Seller m and to adjacent streets alleys or rights-of-way (all of such real property, nghts, and appurtenances being beremafter referred to as the "Property"), together wath any ~mprov~ments, fixtures, and personal property s~tuated on and attached to the Property, for the consideration and upon and subject to the terms, provisions, and condmons hereinafter set forth PURCHASE PRICE 1 Amotln~[ Of pgrchase Price. The purchase~[ance for the Property shall be Twelve Thousand Dollars and No Cents ($12,000 ~) 2 PaYment Of Purchase Price. The full amount of the Purchase Price shall be payable m cash at the closing PURCHASER'S OBLIGATIONS The obhgat~ons of Purchaser hereunder to consummate the transact~ous contemplated hereby are $ubjact to the satisfaction of each of the following conditions any of whtch may be wmved In Whole or m part by Purchaser at or pnor to the etosmg 1 prehmmarv Title Rel~ort. Within twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall cause the Title Company (hereinafter defined) to tssue an owner's pohcy comrmtment (the "Conumtment") accompamed by copses of all recorded documents relating to easements, rights-of- way, etc, affecting the Property. Purchaser shall give Seller written not,ce on or before the expiration of ten (10) days after Purchaser receives the Commitment that the condmon of title as set forth m the Commitment is or is not satisfactory In the event Purchaser states the condiUon of title is not satisfactory, Seller shall, at Seller's option, promptly undertake to chromate 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 recexpt of wnttan nonce, Purchaser, at its option may elect to terminate this Agreement (m which event this Agreement shall be null and void), grant Seller adchuonal ume to cure, or proceed to closing 2 Stlrvey, 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 tmprovements, 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 cemficauon that there are no encroachments on the Property and shall set forth the number of total acres comprising the Property, together w~th a metes and bounds descnptmn thereof Purchaser will have ten (10) days after receipt of the survey to rewew 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 satisfactions of Purchaser In the event Seller is unable to do so within ten (10) days after receipt of written noUce, Purchaser, at its option may elect to terminate this Agreement (in which event this Agreement shall be null and void), grant Seller additional time to cure, or proceed to closing 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 its current knowledge, as follows, which representations and werrenttes shall be deemed made by Seller to Purchaser also as of the closing date 1 There are no pames m possession of any pomon of the Property as lessees, tenants at sufferance, or trespassers. Page 2 of 9 2 Except for the prior actions of Purchaser, there is no pending or threatened condemnatmn or similar proceeding or assessment or stat, 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 compiled w~th 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 lnmted to, hazardous materials or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Enwronmental Response Compensation and Liability Act (CERCLA), as amended 5 Seller hereby grants the City of Denton and or its designee formal permission to enter Selleffs property m order to perform such field surveying activities to establish boundaries and monuments necessary to consummate the above- mentioned real property purchase transaction CLOSING The 9losing shall be held at the office of American Title Company, 717 N Harwood, 2610 Maxug Energy Tower, Dallas, Texas 75201 (the "Title Company") "Attn Maxle Hardin", on or befor~ September 30, 2000(wluch date is herein referred to as the "closing date") The closing date may be extended by mutual ~ment of the parties CLOSING REQUIREMENTS 1 Seller's Reqmrements At the closing Seller shall A Deliver to Purchaser a duly executed and acknowledged Special Warranty Deed conveying good and marketable title m fee simple to all of the Property, free and clear of any and all liens, encumbrances, condttions, assessments, and resmct~ons, except for the following 1 G-eneml real estate taxes for the year of closing and subsequent years not yet due and payable, and 2 Any exceptions approved by Purchaser pursuant to Purchaser's Oblmations hereof, and 3 Any exceptions approved by Purchaser m writing Page 3 of 9 Deliver to Purchaser a Texas owner's Policy of Title Insurance at Seller's sole expense, issued by American Title Company (the "Title Company"), m Purchaser's favor in the full mount of the purchase price, msunng Purchaser's fee simple title to the Property subject only to those title exceptions listed In C1Qsmg Reomrements 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 Pohcy of Title Insurance, provided, however 1 The boundary and survey excepuons shall be deleted if required by Purchaser, and if so required, the posts associated w~th same shall be borne by ~P,~r, f~c~.~, 2 The excepuon as to restrictive covenants shall be endorsed "None of Record", 3 The exception as to hens encumbering the Property shall be endorsed "None of Record" other than those set forth m "Purch0ser's Obh~ations' 4 The exception for taxes shall be hmlted to the year of closing and shall be endorsed "not yet due and payable" B. Deliver to Purchaser possession of the Property on the day of clnsmg 2 P~rch0s~r'~ Reomrements. Purchaser shall pay the consideration as referenced in the "Purchase Price" section of flus contract at Closing in immediately avmlable funds 3 Closino 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 in consummating the sale and purchase of the Property not specifically allocated hereto shall be prod by Purchaser, except for Seller's attorney fees REAL ESTATE COMMISSION Any real estate commissions occasioned by the consummataon of th~s Agreement shall be the sole responslbihty of Seller, to the extent Seller has agreed to pay any such real estate commission, in writing, and Seller agrees to lndemmfy and hold Purchaser harmless from any and all clmms for any such commissions. BREACH BY SELLER Page 4 of 9 In the event Seller shall fail to fully and timely perform any of ~ts obhgatlons hereunder or shall frei to consummate the sale of the Property except Purchaser's default, Purchaser as its sole and exclusive remedy may either enforce specific performance of th~s Agreement or terminate this Agreement by written not, ce dehvered to Seller BREACH BY PURCHASER In the event Purchaser should fml to consummate the purchase of the Property, the cond~tions to Purchaser's obhgations set forth in PURCHASER'S OBLIGATIONS hawng been satisfied and Purchaser being m default, Seller as as sole and exclusive remedy may enforce specffic performance of this Agreement, or termmate this Agreement by wntlen notice delivered to Purchaser. MISCELLANEOUS PROVISIONS 1 Assignment of Agr~ment, Tins Agreement may not be assigned by Purchaser vothout the express written consent of Seller 2 SUrmVat of Covemmts. Any of the representations, warranties, covenants, and agreements of the pames, as well as any rights and benefits of the parties, pertmmng to a period of t~me following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged thereto 3 No1~1¢¢ Any nouce reqmred or permitted to be delivered hereunder shall be deemed received when sent by Umted States mml, postage prepatd, cemfied mini, return receipt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the s~gnature of the party Seller's agent for purposes of noUce shall be Craig Ownby 4 Texas.Law to A~lv. This Agreement shall be construed under and m accordance w~th the laws of the State of Texas, and all obhgat~ons of the parties created hereunder are performable m Denton County, Texas 5 Parttes Bound. Tins Agreement shall be binding upon and mute to the benefit of the part,es and their respective legal representatives, successors and assigns where permttted by tins Agreement 6 l~e~,al ConstrucUon In case any one or more of the provts~ons contmned in tins Agreement shall for any reason be held to be mvald, illegal, or unenfomeable m any respect, smd mval~chty, filegahty, or unenforceabd~ty shall not affect any other provision hereof, and this Agreement shall be construed as ~f the mvahd, fllagal, or unenforceable proxasmn had never been contmned hereto Page 5 of 9 7 Pn0r Agr,~ments Superseded Thts Agreement constitutes the sole and only agreement of the part,es and supersedes any prior tmderstand~ngs or written or oral agreements between the parttes respecting the w~tlun subject matter 8 Ttme of Essence T~me ts of the essence m thru Agreement 9 O,nder Words of any gender used tn tins 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 wce versa, unless the context requires otharvose 10 (~0mpliance In accordance w~th the reqmrements of the Texas Real Estate Ltcense Act, Purchaser ~s hereby adwsed that xt should be furmshed vath or obtain a pohcy of t~tle mstaance or Purchaser should have the abstract covenng the Property exemmed by an attorney of Purchaser's own select~on 11, Time Ltrmt, In the event a fully executed copy of thru Agreement has not been returned to Purchaser vnthm ten (10) days at~er Purchaser executes tlus Agreement and dehvers same to Seller, Purchaser shall have the right to tenmnate flus Agreement upon written notme to Seller Page 6 of 9 PURCHASER THE CITY OF DENTON, TEXAS BY l~¢hael x~//Jez- C~ty Maffager 215 E McKmney Demon, Texas 76201 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEOAL FORM, SELLER KDRC II L~m~ted Partnexs[up, Being the same lhmt~ partners[up as K D.R C. II, Ltd By KDRC Partners[upa/k/aKDRC-1, Its General Partner By SELLER'S ADDRESS 1108 West Pioneer Parkway, State 300 Arlington, Texas 76013 ACKNOWLEDGMENT COUNTY OF"f'Et/'/~2/d~' § This instrument was acknowledged before me on ~ , 2000 by Craig Ownby, Managing General Partner of K D R C Partnership a/k/a KDRC-1, Oeneral Partner of KDRC II Limited Partnerslup, being the same hnuted partnerstup as K D R C II, Ltd, a Texas limited partnersbap, on behalf of said hmited partnersbap ]1 ,~'t'~t~, BERTHA ,tONE8 [ Notary Public, In and for the State of Texas llt.~,r~,d I~ ~-~:~mmi~lon E~t Page 8 of 9 "EXHIBIT A" All that certmn lot, tract or parcel of land lytng and being situated tn the T Toby Survey, Abstract No 1288 of Denton County, Texas, and being part of a (called) 200 acre tract as described m,a deed from 270 J V, a Joint Venture to KDRC II L~m~ted Partnerstup, dated August 23, 1994, as recorded under County Clerk's Fde No 94-R0066002 of the Real Property Records of Denton County, Texas, and being more paracularly described as follows COMMENCING from a point for comer at the southwest comer of said 200-acre tract tn the middle of Rlney Road, THENCE South 89° 09' 06" East vath the south line of smd 200-acre tract, a dastance of 411 03 feet to the POINT OF BEGINNING of the hereto-described tract, THENCE North 00° 57' 01" East, a distance of 315 04 feet to a point for comer, THENCE South 22° 46' 29" East, a d~stanee of 207 56 feet to a point for comer, THENCE South 00° 48' 37" West, a chstance of 124 87 feet to a point for comer on the south line of smd 200-acre tract, THENCE North 89° 09' 06" West v~th the south ltne of sa~d 200-acre tract, a distance of 83 82 feet to the POINT OF BEGINNING and contmmng tn all 0 4221 acres of land Page 9 of 9