2007-019OFFICIAL RECORD
RESOLUTION NO. 07-019
A RESOLUTION OF THE CITY OF SOUTHLAKE, TEXAS
AUTHORIZING THE CITY ATTORNEY TO BRING A
CONDEMNATION ACTION FOR THE PURPOSE OF
OBTAINING FEE SIMPLE ABSOLUTE TTITLE IN AND TO
CERTAIN LAND, SPECIFICALLY, 11.2 ACRES, TRACT 6, R.D.
PRICE SURVEY, AND 6.546 ACRES, TRACT 4, H.O. THROOP
SURVEY, TRACTS 7 AND 8, R.D. PRICE SURVEY FOR PARK
PURPOSES OR FOR OTHER PURPOSES AS PERMITTED BY
LAW.
WHEREAS, the City of Southlake currently owns and leases property which is
being utilized for park purposes, said premises being known as Bob Jones Park; and
WHEREAS, the City of Southlake has determined that it would be in the best
interest of the public to acquire certain tracts of land adjacent to Bob Jones Park and the
United States Army Corps of Engineers property for future expansion of the park or, in
the alternative, for utilization for other public purposes; and
WHEREAS, the City and owners of said properties, Marylyn Elizabeth Miles
and Carl Q. Fretwell, have been unable to reach an agreement on the acquisition of said
properties; and
WHEREAS, the City Council now deems it necessary to authorize the city
attorney to initiate condemnation proceedings in order to acquire fee simple title to such
property.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SOUTHLAKE, TEXAS:
SECTION 1
The City Attorney is hereby authorized to bring condemnation lawsuits for the
purpose of acquiring fee simple title in and to 11.2 acres, Tract 6 of the R.D. Price Survey
and 6.546 acres, Tract 4, of the H.O. Throop Survey, Tracts 7 and 8 of the R.D. Price
Survey, said property, being more particularly described as:
1. Approximately 11.2 acres, part of the R.D. Price Survey Abstract 1003-D,
Tract 6, City of Southlake
2. Approximately 6.546 acres, Tract 4, H.O. Throop Survey, Abstract No.
1273D and Tracts 7 and 8, R.D. Price Survey Abstract No. 1003D, City of
Southlake
SECTION 2
The City Council finds that such acquisition in this condemnation action is
necessary in order to serve the public interests including health, safety, and welfare.
PASSED, APPROVED, and EFFECTIVE this 17th
day of April, 2007.
Mayor, City of outhlake
pau»tr eq
ATTEST:=o.•' ~`"•TF •
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City Secretary
APP OVED AS TO AND LEGALITY:
Tim -walla, y Attorney
CONTRACT OF SALE
STATE OF TEXAS §
COUNTY OF TARRANT §
THIS CONTRACT OF SALE is made by and between Marylyn Elizabeth Miles of
Cedar Hill, Texas, (referred to in this Contract as "Seller") and the City of Southlake, a
home rule municipal corporation in Tarrant County, Texas, (referred to in this Contract as
Purchaser").
ARTICLE I
PURCHASE AND SALE
By this Contract, Seller sells and agrees to convey, and Purchaser purchases and
agrees to pay for, certain property situated in Tarrant County, Texas, being more
particularly described as , part of the R.D. Price Survey Abstract 1003-D, Tract 6, City of
Southlake, Texas 76092 and being approximately 11.2 acres shown on Exhibit "A"
attached hereto, together with all and singular the rights and appurtenances pertaining to
the Property, including any right, title and interest of Seller in and to adjacent streets, alleys
or rights-of-way (all of such real property, rights, and appurtenances being referred to in
this Contact as the 'Property"), together with any improvements and fixtures, situated on
and attached to the Property, for the consideration and upon and subject to the terms,
provisions, and conditions set forth below.
ARTICLE II
PURCHASE PRICE
The purchase price for the Property shall be One Million and Fifty Thousand Dollars
1,050,000), to be paid by Buyer at closing.
ARTICLE III
EARNEST MONEY
2,000 has been tendered by Purchaser to the Seller with this Contract. Purchaser
shall deliver this amount (the Escrow Deposit) to Hexter Fair Title Company, 601 East
Southlake Blvd., Suite 500, Southlake, Texas 76092. The Escrow Deposit shall be credited
towards the cash portion of the sales price at Closing; provided, however, that in the event
the Purchaser shall have given written notice to the title company that one or more of the
conditions to its obligations set forth in Article VI have not been met, or, in the opinion of
Purchaser, cannot be satisfied, in the manner and as provided for in Article IV, then the
escrow agent shall return the Escrow Deposit to Purchaser.
Page 1
ARTICLE IV
PURCHASER'S RIGHTS AND OBLIGATIONS
4.01 Preliminary Title Report. Within 30 days after the date hereof, Purchaser, at
Purchaser's sole cost and expense, shall have a title company issue a preliminary title
report (the "Title Report") 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 twenty (20) days after Purchaser receives the Title
Report that the condition of title as set forth in the title binder is or is not satisfactory, and in
the event Purchaser states that any conditions are not satisfactory, Seller shall promptly
undertake to eliminate or modify all unacceptable matters to the reasonable satisfaction of
Purchaser. In the event Seller chooses not or is unable to do so within twenty (20) days
after receipt of written notice, this Contract shall thereupon be null and void for all
purposes. If written notice is not received by Seller within the 20 day period, all conditions
shall be deemed to be acceptable and any objection thereto shall be deemed to have been
waived for all purposes.
4.02 Survey. Within 30 days after the date of execution, Purchaser, at Purchaser's sole
cost and expense, may cause to be prepared a current plat or survey of the Property,
prepared by a duly licensed Texas land surveyor acceptable to Purchaser. The survey
shall be staked on the ground, and the plat shall show the location of all improvements,
streets, roads, rivers, creeks, or otherwater 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 description thereof.
Purchaser will have twenty (20) days after receipt of the survey to review and
approve same. In the event any portion of the survey is unacceptable to Purchaser, then
Purchaser shall within the twenty (20) day period, give Seller written notice of this fact.
Seller shall, at Seller's option, promptly undertake to eliminate or modify all the
unacceptable portions of the survey to the reasonable satisfaction of Purchaser. In the
event Seller chooses not or is unable to do so within fifteen (15) days after receipt of
written notice, Purchaser may terminate this Contract, and the Contract shall thereupon be
null and void for all purposes. Purchaser's failure to give Seller this written notice shall be
deemed to be Purchaser's acceptance of the survey.
4.03 New Surveys and Tests. Within ten (10) days after the date of execution, Seller
shall provide to Purchaser a copy of any environmental site assessment that Seller has
caused to be prepared for the Property, or that Seller has received. Within thirty (30) days
after the date of execution, Purchaser is granted the right to conduct an environmental and
engineering survey and feasibility study of the Property at Purchaser's sole cost and
expense, and in this connection Purchaser or Purchaser's designated agents may enter
upon the Property for purposes of soil analysis, core drilling, or other tests which may be
deemed necessary to Purchaser or Purchaser's engineer. If Purchaser determines, in
Purchaser's sole judgment, that the Property is not suitable for the intended purposes, then
and in this event, Purchaser may, on written notice to Seller received 45 days from the date
of execution, terminate this Contract and it shall be null and void for all purposes. If the
Page 2
written notice is not received within this 45 day period, the condition shall be deemed to be
acceptable and any objection thereto shall be deemed to have been waived for all
purposes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER,
AND AGREEMENT OF PURCHASER,
5.01 Seller Warranties. 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) Seller is the sole owner of the Property and has the right and ability to convey
good and marketable title in fee simple to the Propertyto Purchaser without the approval or
participation of any other person and free and clear of any and all liens, encumbrances,
conditions, assessments and restrictions.
2) No excavation of the Property has occurred, no landfill was deposited on or
taken from the Property, no construction debris or other debris (including, without limitation,
rocks, stumps, and concrete) was buried upon the Property, and no toxic waste or
hazardous substances" as that term is defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1988, or petroleum products and derivatives
thereof, have been deposited on the Property.
3) That there are no estate brokers', agents' or finders' fees or commissions due
arising in connection with the execution of this Contract or from the consummation of the
sale contemplated herein.
4) Seller represents now and at Closing that no person, firm, or corporation has
any title, interest or right to possession in the Property or any portion thereof as a lessee,
tenant, or concessionaire of Seller.
5.02 Seller's Status. Purchaser agrees that Seller shall be treated as having Southlake
resident status for the purposes of making reservations and use of Bob Jones Park for her
lifetime.
ARTICLE VI
CLOSING
6.01 Closing Date. The closing shall be held on May 17, 2007, at 10:30 a.m., or at such
time and place as Seller and Purchaser may agree upon (which date is herein referred to
as the "Closing Date").
6.02 Conditions at Closing. The closing and Purchaser's obligations under this
Agreement to purchase the Property are expressly conditioned on:
Page 3
1) Seller's delivery to Purchaser a duly executed and acknowledged General
Warranty Deed conveying good and marketable title in fee simple to all of the Property,
free and clear of any and all liens, encumbrances, conditions, assessments, and
restrictions other than as provided in this Contract.
2) Delivery to Purchaser, at Purchaser's sole expense, a Texas Owners Title
Policy, issued by Hexter Fair Title Company, Southlake, Tarrant County, Texas in the full
amount of the purchase price, insuring Purchasers fee simple title to the Property, subject
only to those title exceptions listed in this Article VI, if any, such other exceptions as may be
approved in writing by Purchaser, and the standard printed exceptions contained in the
usual form of Texas Owners Title Policy, provided, however:
a) The boundary and survey exceptions shall be deleted;
b) The exception as to restrictive covenants shall be endorsed "None of
Record"; and
c) The exception as to the lien for taxes shall be limited to the year of
closing and shall be endorsed "Not Yet Due and Payable."
3) Seller's execution of such documents and instruments reasonably requested
by the title company to consummate the transactions contemplated herein.
4) Sellers payment of all commissions due and arising in connection with the
execution of this Contract or from the consummation of the sale of the Property.
5) Seller shall convey surface rights only and shall include the following
language in the deed:
Grantor hereby reserves and excepts from this conveyance,
and retains for Grantor and Grantor's heir, successors, and
assigns forever, all oil, gas, and other minerals in and under
and that may be produced from the property (the "Mineral
Interests"). If the Mineral Interest is subject to existing
production or an existing lease, this reservation includes the
production, lease, and all benefits from it.
Grantor hereby waives and releases any and all rights, title,
interests, easements, rights-of-way and privileges, of every
kind and character, which Grantor has or may have to use or
utilize, or to permit others to use or utilize, in any manner the
surface of the Property, or any part thereof, including, without
limitation, the right to use the surface of the Property or any
part thereof for investigating, exploring by geological,
geophysical and other methods, prospecting, drilling, mining,
operating, producing, saving, transporting, storing or treating
oil, gas and all other minerals, of every kind and character,
Page 4
whether similar or dissimilar, known or unknown, in, on, under
and which may be discovered, mined, produced or recovered
from the Property or any portion thereof. Grantor waives and
releases its right of ingress and egress to the Property, its
right to conduct any type of investigation on the surface,
including, without limitation, any type of seismic operations, its
right to use any portion of the surface of the Property for the
drilling of any well, or for the storage or transportation of oil,
gas or other minerals of any kind, and its right to lay pipeline
across the Property or any portion thereof. Nothing herein,
however, restricts or prohibits the pooling or unitization of the
Mineral Interest with land other than the Property; or the
exploration or production of the oil, gas, and other minerals by
means of wells that are drilled or mines that are opened on
land other than the Property that enter or bottom under the
Property, provided that these operations in no manner
interfere with the surface or subsurface support of any
improvements constructed or to be constructed on the
Property.
At the Closing, Purchaser shall pay Seller One Million and Fifty
Thousand Dollars ($1,050,000).
6.03 Failure of Conditions. Should any of the conditions specified in Paragraph 6.02 of
this Contract fail to occur within 10 days after the establishment of Closing as provided in
Paragraph 6.01 of this Contract, Purchaser shall have the power, exercisable by written
notice to Seller, to cancel the closing, terminate this Contract, and recover any amounts
paid by Purchaser to Seller on account of the purchase price of the Property. The exercise
of this power by Purchaser shall not, however, constitute a waiver of any other rights
Purchaser may have against Seller for breach of this Agreement. Hexter Fair Title
Company (Escrow Agent) shall be and is hereby irrevocably instructed by Seller on any
such failure of condition and receipt of such notice from Purchaser by it to immediately
refund to Purchaser all monies and instruments deposited by Purchaser pursuant to this
Contract.
6.04 Prorations. Any assessments against the Property as of the Closing Date shall be
paid by Seller on or before the closing. General real estate taxes for the then current year
relating to the Property, interest on any existing indebtedness, and rents if any, shall be
prorated as of the closing date and shall be adjusted in cash at the closing. In the event
there exists any roll back or other deferred taxes which are retroactive to the period of
Seller's ownership of the Property or any time prior thereto pursuant to a change in zoning,
use, ownership or otherwise, such retroactive taxes shall remain the obligation of Seller.
This provision shall survive the closing.
6.05 Closing Costs. All costs and expenses of closing in consummating the sale and
purchase of the Property shall be borne and paid as follows:
Page 5
Owner's Title Policy paid by Purchaser
Survey paid by Purchaser
Environmental and Engineering Survey paid by Purchaser
Inspection Reports paid by Purchaser
Filing fees paid by Purchaser
Attorney's fees for the services of the City Attorney paid by the City
ARTICLE VII
REAL ESTATE COMMISSIONS
Seller shall pay, at Seller's sole cost and expense, any commissions or brokerage
fees associated with this Contract. Seller agrees to indemnify and hold the City
harmless from claims made by any person for any such fees, commission or like
compensation claiming to have dealt with the Seller.
ARTICLE Vill
BREACH BY SELLER
In the event Seller shall fail to fully and timely perform any of its obligations
hereunder or shall fail to consummate the sale of the Property for any reason, except
because of Purchaser's termination of this Contract or because of Purchaser's default,
Purchaser may either terminate the Contract, enforce specific performance of this
Contract, or seek other remedies available at law, in equity, or by statute. Seller's failure to
satisfy Purchaser's objections under Article VI shall constitute a default by Seller.
ARTICLE IX
BREACH BY PURCHASER
If Purchaser shall fail to consummate this Contract for any reason, except Seller's
default or the termination of this Contract pursuant to a right to terminate given herein,
Purchaser shall be in default and Seller may at its sole and exclusive remedy have the
Escrow Deposit paid to Seller as liquidated damages for the breach of Contract thereby
releasing Purchaser from this Contract.
ARTICLE X
MISCELLANEOUS
10.01 Effective Date. The effective date of this Contract will be the date the last party
executes the contract.
10.02 Survival of Covenants. Any of the representations, warranties, covenants, and
contracts of the parties, as well as any rights and benefits of the parties, pertaining to a
period of time following the closing date of the transactions contemplated hereby shall
survive the closing.
10.03 Notices. Any notice required or permitted to be delivered hereunder shall be
deemed received when sent by certified United States mail, postage prepaid, return receipt
Page 6
requested, addressed to Seller or Purchaser, as the case may be, at the address set forth
below the signature of the party hereunder.
10.04 Texas Law to Apply. This Contract 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 Tarrant County, Texas.
10.05 Parties Bound. This Contract shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns where permitted by this Contract.
10.06 Legal Construction. In case any one or more of the provisions contained in this
Contract shall for any reason be held to be invalid, illegal, or unenforceable in any respect,
this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and
this Contract shall be construed as if the invalid, illegal, or unenforceable provision had
never been contained herein.
10.07 Prior Contracts Superseded. This Contract constitutes the sole and only contract
of the parties and supersedes any prior understandings or written or oral contracts between
the parties respecting the Property or the subject matter of this Contract. This Contract is
valid only when approved by the Southlake Parks Development Corporation (SPDC) and
the City Council of the City of Southlake.
10.08 Gender. Words of any gender used in this Contract shall be held and construed to
include any other gender, and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise.
10.09 Time. In this Contract, time is of the essence and compliance with the times for
performance is required.
10.10 Attorney's Fees. The prevailing party in any legal proceeding brought under or with
respect to the transaction described in this Contract is entitled to recover from the non -
prevailing party all costs of such proceeding and reasonable attorney's fees.
EXECUTED this day of M , 2007.
SELLER:
5 a1v1. l.38
ADDRESS:
Page 7
F
PURCHASER:
CITY OF SOUTHLAKE, TEXAS
By: Andy Wa bsganss, Mayor
ADDRESS: 1400 Main Street
Southlake, Texas 76092
Page 8
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority in and for said County, Texas, on this day personally appeared
known to me (or proved to me on the oath of or through
description of identity card or other document) to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes
and consideration therein expressed.
GIVkN UNDER MY HAND AND SEAL OF OFFICE, this the day of
2007.
0
My Commission Expires: Nota Public in and for
The State of Texas
OL ---
A -1
LiNtiNCARPENTER Typed or Printed Na f Notary
NOTARY PUBLIC
State of Texas
omm. Exp. 03-22-2009
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me the undersigned authority in and for said County, Texas, on this day personally appeared
A,r,t4j 1::;S 961 M66, known to me (or proved to me on the oath of or through
description of identity card or other document) to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes
and consideration therein expressed.
IVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
2007.
f "aV A R,
j's
My Commission Expires: Notary Public in dnd for 1 . .......... W;
1Z
The State of Texas 9. W
10
i u. ro3 e
Typed or Printed Name of Notary k *%. 0*
1%..10-
Page 9
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF TARRANT §
Before me, the undersigned authority in and for said County, Texas, on this day personally appeared
Andy Wambsganss, known to me (or proved to me on the oath of or through
description of identity card or other document) to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he is the Mayor of the City of Southlake,
Texas and is duly authorized to execute this Contract for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
2007.
My Commission Expires: Notary Public in and for
The State of Texas
Typed or Printed Name of Notary
Page 10
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Page 11
76092