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1999-213AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF DENTON AND JOHN WESLEY HESTER, RELATING TO THE PURCHASE OF 0 004 ACRES OF LAND FOR THE EXPANSION OF U S HIGHWAY 77 (PARCEL 32), AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS ~ That the City Manager is hereby authorized to execute a Real Estate Contract between the City and John Wesley Hester, in substantially the form of the Real Estate Contract which is attached to and made a part of this ordinance for all purposes, for the purchase of 0 004 acres of land for the expansion ofU S Highway 77 (Parcel 32) ~_I That the City Manager is anthonzed to make the expenditures as set forth in the attached Real Estate Contract ~ That this orchnanee shall become effective immediately upon its passage and approval PASSED AND APPROVED this the /~'~ day of (~~ ,1999 JAC~M~LER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY R~AL ESTATE CONTP. ACT STATE OF TEXAS COUNTY OF DENTON THIS CONTRACT OF SALE is made by and between JON WESLEY HESTER (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 condltzons 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 w~th all rights and appurtenances pertaln~ng to the sazd property, including any right, title and interest of Seller ~n and to ad3acent streets, alleys or rmghts-of-way (all of such real prop- erty, rights, and appurtenances being hereinafter referred to as the "Property"), together with any improvements, f~xtures, and personal property situated on and attached to the Property, for the consideration and upon and sub3ect to the terms, provisions, and conditions hereznafter set forth Seller shall pay all cost for the removal, Installation, constructzon, relnstallatzon, reconstruction, labor and materials for any and/or zmprovements located within the property described in Exhibit "A" Any improvements not removed by August 1, 1999 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 $500 00 2. p~y~ent of Purchase Price The full amount of the Purchase Price shall be payable in cash at the closing PURCHASER'S OBLIGATIONS The obligations of Purchaser hereunder to consummate the transactmons contemplated hereby are subject to the satisfaction of each of the following conditions any of which may be waived zn whole or in part by Purchaser at or prior to the closing i Preliminary Title Report Within twenty (20) days after the date hereof, Seller, at Seller's sole cost and expense, shall have caused the Title Company (hereinafter defined) to issue a owners policy commitment (the "Commitment") accompanied by copies of all recorded documents relating to easements, r~ghts-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 condition of title as set forth in the Commitment is or is not satisfactory In the event Purchaser states the condition of tltle ~s not satisfactory, Seller shall, at Seller's option, promptly undertake to el~mlnate or modify all unacceptable matters to the reasonable satlsfactlon of Purchaser In the event Seller ~s unable to do so within ten (10) days after receipt of written not~ce, th~s Agreement shall thereupon be null and void for all purposes, otherwise, this cond~tlon shall be deemed to be acceptable and any objection thereto shall be deemed to have been waived for all purposes. 2 Survey Purchaser may, at Purchaser's sole cost and expense, obtain a current survey of the Property, prepared by a duly l~censed 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, creeks, or other water courses, fences, easements, and r~ghts-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 w~th a metes and bounds description thereof Purchaser wlll have ten (10) days after receipt of the survey to review and approve the survey In the event the survey 1s unacceptable, then Purchaser shall w~th~n the ten (10) day period, g~ve Seller written notlce of this fact Seller shall, at Seller's optlon, promptly undertake to eliminate or modify the unacceptable port~ons of the survey to the reasonable satisfaction of Purchaser. In the event Seller ~s unable to do so within ten (10) days after receipt of written not~ce, Purchaser may terminate thls Agreement, and the Agreement shall thereupon be null and void for all purposes and the Escrow Deposit shall be returned by the T~tle Company to Purchaser Purchaser's failure to glve Seller thls written not~ce shall be deemed to be Purchaser's acceptance of the survey ;tEE008FE PAGE 2 3 Seller's Compliance Seller shall have performed, ob- served, and complied with all of the covenants, agreements, and conditions requmred by thms Agreement to be performed, observed, and complied wmth by Seller prior to or as of the closing REPRESENTATIONS AND WARRANTIES OF SELLER Seller hereby represents and warrants to Purchaser as follows, whmch representatmons and warrant~es shall be deemed made by Seller to Purchaser also as of the closmng date 1 There are no parties in possession of any portion of the Property as lessees, tenants at sufferance, trespassers or other part~es 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 belief of Seller is any such proceeding or assessment contemplated by any governmental authority 3 Seller has complied with all applicable laws, ordinances, regulatlons, statutes, rules and restr~ctlons relating to the Property, or any part thereof 4 To the best of the seller's knowledge, there are no toxmc or hazardous wastes or materials on or wmthln the Property Such toxic or hazardous wastes or matermals ~nclude, but are not lmmlted to, hazardous matermals or wastes as same are defined by the Resource Conservation and Recovery Act (RCRA), as amended, and the Comprehensive Envmronmental Response Compensatmon and Llab~llty Act (CERCLA), as amended CLOSING The closing shall be held at the office of Dentex Title Company on or before July 30,1999, 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") AEE008PE PAGE 3 CLOSING REQUIREMENTS 1 Seller's Requirements At the closing Seller shall A Deliver to State of Texas, acting by and through the Texas Transportation Commlss~on a duly executed and acknowledged Deed in the form as attached hereto as Exhlblt ~B" conveying good and marketable t~tle 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 payable, 2 Any exceptions approved by Purchaser pursuant to Purchaser's Obl~gatlons 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 Dentex 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 l~sted in ~oslna Reaulrements 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 I The boundary and 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", AEE008FE PA~E 4 3 The exception for taxes shall be l~mlted to the year of closing and shall be endorsed "Not Yet Due and Payable", and 4 The exception as to liens encumbering the Property shall be endorsed "None of Record". C Deliver to Purchaser possession of the Property on the day of closing 2 pH~chaser's Recuirements 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 assessed by any tax collection authority through the date of Closing Ail other costs and expenses of closing ~n consummating the sale and purchase of the Property not speclflcally allocated herein shall be paid by Purchaser REAL ESTATE COMMISSION All obligations of the Seller and Purchaser for payment of brokers' fees are contained in separate written agreements BREACH BY SELLER In the event Seller shall fall to fully and timely perform any of its obllgations hereunder or shall fa~l to consummate the sale of the Property except Purchaser's default, Purchaser may either enforce specific performance of this Agreement or terminate this Agreement by written not~ce delivered to seller BREACH BY PURCHASER In the event Purchaser should fa~l to consummate the purchase of the Property, the conditions to Purchaser's obligations set forth in PURCHASER'S OBLIGATIONS having been satisfied and Purchaser being in default Seller may e~ther enforce specific performance of this Agreement, or terminate th~s Agreement by written notice delivered to purchaser AEE008FE PAGE 5 MISCELLANEOUS 1, Assianment of Aareement This Agreement may be assigned by Purchaser without the express written consent of Seller 2. Survival of Covenants Any of the representations, war- rant~es, covenants, and agreements of the part~es, as well as any r~ghts and benefits of the parties, pertaining to a per~od of t~me following the closing of the transactions contemplated hereby shall survive the closing and shall not be merged there~n 3. Not~ce Any notice required or permitted to be delivered hereunder shall be deemed received when sent by Un,ted States mail, postage prepaad, certified maal, return receapt requested, addressed to Seller or Purchaser, as the case may be, at the address set forth beneath the signature of the party 4 Texas Law to ADDlv 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 in Denton County, Texas 5 ~ This Agreement shall be binding upon and inure to the benefit of the partaes and their respective hears, executors, administrators, legal representatives, successors and assigns where permitted by this Agreement 6 Legal Construction In case any one or more of the pro- vasaons contained an this Agreement shall for any reason be held to be invalid, illegal, or unenforceable ~n any respect, sa~d ~n- validity, illegality, or unenforceab~l~ty shall not affect any other,provision hereof, and th~s Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contaaned herein 7 ~r~or A~reements Superseded. This Agreement constitutes the sole and only agreement of the partaes and supersedes any praor understandings or written or oral agreements between the parties respecting the within subject matter 8 .T~. Time ~s of the essence an thas Agreement AEE008~E PAGE 6 9 Gender Words of any gender used mn this Agreement shall be held and construed to include any other gender, and words xn the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise 10 Memorandum of Contract Upon request of elther party, both parties shall promptly execute a memorandum of this Agreement suitable for filing of record 11 ComDlxance In accordance with the requirements of the Texas Real Estate L~cense Act, Purchaser ~s hereby advised that it should be furnished with or obtain a pollcy of title ~nsurance or Purchaser should have the abstract covering the Property examined by an attorney of Purchaser's own selection 12 Time L~m~t In the event a fully executed copy of thxs Agreement has not been returned to Purchaser w~th~n ten (10) days after Purchaser executes this Agreement and delivers same to Sel- ler, Purchaser shall have the right to terminate th~s Agreement upon written notice to Seller THE CITY OF DENTON, TEXAS TZ gjZ 215 E McK~nney Denton, Texas 76201 AEE008FE PA~E 7 STATE OF TEXAS COUNTy OF DENTON /-; This instrument is acknowledged before me, on this /~day o,~ , 1999 by Michael W. Jez, City Manager, of the City of Denton, a municipal corporation, known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the eame 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 C~ty Council of the City of Denton and that he executed the eame as the act of the said City for~rposes and consideration ]~/~*~ N°~ryNpNu~oO, Rs:~TdH~xa, I tN~:~sr~tatP:b~i~e~aind for STATE OF TEXAS COUNTY OF DENTON on this ~ day of T~.~instrument is acknowledged before me, · 1999 by Jon Weslev HesteI ~ NO :y Public in and for Irate of Texas AEE008FE PAGE 8 EXHIBIT "A" County Denton Page I of 1 Htghway U.S. 77 Project Umsta' From I.H. 35 Rev September 15, 1994 To U.S. 3BO CSJ. Account: FIELD NOTES FOR PARCEL 32 BEING A PARCEL OF LAND SITUATED IN A TRACT OF LAND CONVEYED TO ELOISE T LOHMAN, RECORDED IN VOLUME 1569, PAGE 845, DEED RECORDS OF DENTON COUNTY, TEXAS (DRDCT}, AND BEING SITUATED IN THE N H MEISENHEIMER SURVEY, ABSTRACT NO. 810, CITY OF DENTON, DENTON COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING, for reference at e found 1/2-Inch iron rod for the southwest comer of Lot 4, Block 2, of the Denton North Addition Unit One rapist as recorded in Volume 7, Page 33 of the Plat Records of Denton County, Texas (PRDCT), same being a point on the east line of ~ald Lohman tract and on the existing north right of way line of U.S 77, THENCE S 00° S1' 36" W, along the east property llne of said Lohman tract, e distance of 23 09 feet to a set - -5/8-inch iron rod with an aluminum cap being the POINT OF BEGINNING, same being a point on the new north right of way line of U S 77; (1) THENCE S 00° 51' 35" W, along the east hne of said Lohman tract, a distance of 0.22 feet to e point, same being the southeast comer of said Lohman tract, and said point being on the existing north right of way line of said U.S. 77; ~ (2) THENCE N 58° 43' ES" W, along · line common to said Lohman tract and the existing north right of way line of said U.S. 77, e distance of 120.28 feet to at a found I/2-1nch iron rod for the southwest oomer of said Lohman tract, same being the southeast corner of a tract of land conveyed to Donald Edwin Gibson end wife, Gertrude Gibson, recorded in Volume 524, Page 602, ,DRDCT; (3) THENCE N 01 o 04' 56" E, along a line common to smd Lohman tract and said Gibson tract, a distance of 3,80 feet to a set 5/8-1nch iron rod with an aluminum cap, said point being on the new north right of way line of U.S. 77 and being in a non-tangent circular curve to the left hawng · radius of 2804.79 feet; (4) THENCE Southeasterly, along the new north right of way line of U S. 77, and along said curve to the left, through a delta angle of 02° 08' 08", an arc distance of 104.54 feet, and having a chord whioh bears S 570 07' 33' E, a distance of 104 53 feet to a set 5/8-inch iron rod w,th an aluminum cap, being a point of tangency; (5) THENCE S 68° 11' 36" E, along the new north right of way line of U.S 77, e distance of 17 59 feet to the POINT OF BEGINNING, end oontalning 0.004 acre, or 158 square feet of land, more or less John F Wilder, R P.L.S Date Texas No 4285