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HomeMy WebLinkAboutRes 2013-04-03 Purchase of Land on FM 455 (James & Marjorie Mann)CITY OF ANNA, TEXAS RESOLUTION NO. 2013-04-03 A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A PURCHASE AND SALE AGREEMENT WITH JAMES ALLEN MANN, JR. AND MARJORIE DIANNE MANN, INC. FOR THE PURCHASE OF LAND OF FM 455. WHEREAS, the City of Anna, Texas (the City) has negotiated an agreement for the purchase of a 1.119 acre tract of land located adjacent to Natural Springs Park on FM 455 (the Property), and; WHEREAS, the City Council of the City of Anna, Texas finds that the purchase of the Property will benefit the City and is in the best interests of the citizens of Anna; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT. Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval of Land Purchase and Sale Agreement. The City Council hereby approves the Purchase and Sale Agreement attached hereto as Exhibit 1; and authorizes, ratifies and approves the City Manager's execution of same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize, act under, and enforce the Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 9th day of April, 2013. ATTEST: ,.. Nafia Wilkison, City Secretary Mayor, Mike Crist f `0\1 Ii II It I I u,,/,/ 0 F P � P RES. 2013-04-03 Purchase Mann Property -FM 455 PAGE 1 OF 1 04-09-13 PURCHASE AND SALE AGREEMENT This Purchase and Sale Agreement (this "Agreement") is entered into as of the date set forth below between James Allen Mann, Jr. and Marjorie Dianne Mann (collectively referenced herein as "Seller"), and the City of Anna, Texas (referenced herein as "Purchaser"). In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows: Section 1. Sale and Purchase. On and subject to the terms and conditions set forth in this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase and accept from Seller, for the Purchase Price (defined below) that certain tract of land described in the attached Exhibit A, said conveyance to vest in Purchaser good, marketable, and indefeasible title in fee simple to said tract of land described in Exhibit A, together with all rights, title and appurtenances. Said tract of land described in Exhibit A, together with all rights and appurtenances, is referred to as the "Property." Section 2. Purchase Price and Donation. The purchase price ("Purchase Price") to be paid by Purchaser to Seller for the Property will be in the amount of $268,103. The Purchase Price will be payable at the Closing (defined below) as follows: $268,103 will be paid at Closing in cash or by check as specified in Section 5(b)(2). Section 3. Title and Survey. (a) Within 20 days after the Effective Date (defined below), Seller, at a reasonable and customary cost to be divided equally between Seller and Purchaser, will deliver or cause to be delivered to Purchaser the following: (1) Commitment for title insurance ("Title Commitment") from Red River Title Company, 805 W. White Street, Suite 300, Anna, Texas 75069, telephone number (972) 924-8777 ("Title Company"), setting forth the status of the title of the Property and showing all liens, claims, encumbrances, reservations, restrictions, outstanding mineral interests, UCC filings, and other matters, if any, relating to the Property; and (2) A true, complete, and legible copy of all documents referred to in the Title Commitment, including without limitation UCC filings, plats, deeds, zoning ordinances, restrictions, and easements. (b) Purchaser has obtained a survey of the Property, attached as Exhibit B ("Survey"). Within 10 days after the Effective Date, Purchaser shall deliver the Survey to the Title Company. Purchaser has inspected the Survey and believes that the Survey: MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 1 of 11 04-09-13 (1) reflects the actual dimensions of the Property, the net area of the Property (to the nearest square foot), the location of any easements, rights-of-way, setback lines, encroachments, or overlaps and the outside boundary lines of any improvements; (2) includes the surveyor's registered number and seal, the date of the Survey, and a certificate satisfactory to Purchaser; (3) reflects that the Property has access to and from a publicly dedicated street, road, or highway; (4) is, based on a representation by the Title Company, sufficient to cause the Title Company to delete, except for "shortages in area," the printed exception for "discrepancies, conflicts or shortages in area or boundary lines, or encroachments, or any overlapping of improvements" in the Owner's Title Policy to be delivered to Purchaser pursuant to Section 5(b)(1)(ii); (5) reflects any area within the Property that has been designated by the Federal Insurance Administration, the Army Corps of Engineers or any other governmental agency or body as being subject to special or increased flooding hazards; and (6) complies with the applicable requirements of the Texas Society of Professional Surveyors as to the 2005 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys as adopted by American Land Title Association and National Society of Professional Surveyors, as amended. For purposes of the Property description to be included in the general warranty deed to be delivered pursuant to Section 5(b)(i), the field notes prepared by the surveyor will control any conflicts or inconsistencies with Exhibit A and such field notes will be incorporated in this Agreement by this reference on their completion. (c) Purchaser will have 10 days from the receipt of all of the information referred to in Sections 3(a) and (b) in which to examine and notify Seller of those items, which Purchaser will accept title to the Property to (the "Permitted Encumbrances") and those matters which Purchaser finds objectionable (the "Encumbrances"); if such notice is not given it will be deemed that all matters reflected by the Title Commitment and Survey are "Permitted Encumbrances." Provided Seller is not obligated to incur any expense, Seller will use reasonable efforts to cure or remove all encumbrances within 10 days after Seller receives notice of the encumbrances from Purchaser. Any liens affecting the Property will be considered "Encumbrances," and Seller will cause the same to be fully released of record at or prior to the Closing. (d) If Seller fails to timely cause all of the Encumbrances to be removed or cured, and timely written notice to be given to Purchaser, Purchaser will have the following rights: MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 2 of 11 04-09-13 (1) Purchaser may unilaterally extend the date for Closing a reasonable time to afford Seller additional time within which to cure such Encumbrances without prejudice to Purchaser's rights under Sections 3(d)(2) or (3); (2) Purchaser may terminate this Agreement by giving Seller written notice, in which event the Earnest Money (defined below) will be returned to Purchaser, and neither party will have any further rights, duties, or obligations under this Agreement; or (3) Purchaser may elect to purchase the Property subject to the Encumbrances not so removed or cured. (e) Seller agrees not to enter into any agreement or instrument or take any action after the Effective Date without the prior consent of Purchaser which would constitute or create an Encumbrance or which would bind Purchaser or the Property after the Closing. Section 4. Earnest Money. Concurrently with the execution of this Agreement, Purchaser has delivered to Title Company a check payable to the order of Title Company in the amount of $1,000. As used in this Agreement, the term "Earnest Money" will mean the amount so deposited. All Earnest Money will be held in escrow and delivered by Title Company in accordance with the provisions of this Agreement. Section 5. Closing. (a) The closing ("Closing") of the sale of the Property by Seller to Purchaser will occur on or before April 18, 2013 in the offices of Title Company. (b) At the Closing, the events set forth in this Section 5(b) will occur, it being understood that the performance or tender of performance of all matters set forth in this Section 5(b) are mutually concurrent conditions: (1) Seller, at Seller's expense, provided such expense is reasonable and customary, will deliver or cause to be delivered to Purchaser: i) General Warranty Deed in form and substance reasonably satisfactory to Purchaser and Seller, fully executed and acknowledged by Seller, conveying to Purchaser the Property; ii) Texas Form Owner Policy of Title Insurance ("Title Policy") issued by Title Company in the amount of the Purchase Price, naming Purchaser as the insured, subject only to those matters to which the General Warranty Deed will be subject, and the standard printed exceptions contained in the Title Policy; provided, however, that the standard exception pertaining to discrepancies, conflicts, or shortages in area will be deleted, at Purchaser's expense, except for "shortages in area," such policy will have "None of Record" endorsed regarding restrictions (except for restrictions MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 3 of 11 04.09-13 that are Permitted Encumbrances), there will be no exception for rights of parties in possession and the standard exception for taxes will be limited to the year in which the Closing occurs and subsequent assessments for prior years due to changes in land usage or ownership; iii) Certificate executed by Seller confirming that all warranties and representations set forth in Section 11 of this Agreement are true and correct as of the date of Closing; iv) Certificate that (A) confirms the Seller's United States taxpayer number and (B) states that Seller is not a "foreign person" within the meaning of 26 U.S.C. § 1445 of the Internal Revenue Code of the United States of America of 1954, as amended (the "Code"), and otherwise in complies with the regulations promulgated under that Code section; and v) Physical possession of the Property free and clear of all tenancies of every kind and parties in possession with all parts of the Property in substantially the same condition as on the Effective Date. (2) Purchaser, at its sole cost and expense, will deliver or cause to be delivered to Seller a cashier's or certified check, or a check of the Title Company, payable to the order of Seller in the amount equal to the Purchase Price, adjusted as provided in this Agreement, due credit being given for the Earnest Money. (3) Ad valorem and similar taxes and assessments relating to the Property will be the responsibility of Seller through the end of year 2012 and the responsibility of Buyer on and after January 1, 2013. Seller will be responsible for and will indemnify Purchaser against any and all costs and expenses (including, without limitation, attorney fees) incurred by Purchaser as a result of taxes assessed against the Property for periods of time before January 1, 2013. The provisions of this Section 5(b)(3) will survive the Closing. (4) Purchaser and Seller will, if requested, furnish satisfactory evidence of their authority to execute the Closing documents and consummate the sale and purchase contemplated in this Agreement, and will execute such other documents and take such other action as may be reasonably necessary or appropriate to effect such consummation. Section 6. Remedies. (a) If Purchaser refuses to consummate the purchase of the Property pursuant to this Agreement for any reason other than termination pursuant to a right granted Purchaser to do so, then Seller, at its sole and exclusive remedy, may terminate this Agreement by notifying Purchaser thereof, in which event neither party will have any further rights, duties, or obligations under this Agreement, and Title Company will deliver to Seller, as liquidated damages, the Earnest Money. MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 4 of 11 04-09-13 (b) If Purchaser terminates this Agreement pursuant to a right granted Purchaser under this Agreement, then neither party will have any further rights, duties, or obligations hereunder, and Title Company will return the Earnest Money to Purchaser. (c) If Seller fails to perform any of its agreements or obligations under this Agreement, or should any of Seller's representations and warranties made be not true and accurate, Purchaser may: (1) terminate this Agreement by notifying Seller; (2) enforce specific performance of the obligations of Seller; and/or (3) seek any other rights, recourses, or remedies available to Purchaser, all remedies being cumulative. Section 7. Notices. Any notice provided or permitted to be given under this Agreement must be in writing and may be served by depositing same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested or by facsimile. Notice given in accordance with this section will be effective on receipt at the address of the addressee. For purposes of notice, the addresses of the parties will be as follows: If to Seller, to: James Allen Mann, Jr. 830 Anderson County Rd 4034 Palestine, Texas 75803 903-729-4440 With a copy to: Tohnie Hynds Hynds & Gordon, P. C. 500 N. Sam Rayburn Fwy, Ste 200 Sherman, Texas 75090 903-893-2015 (facsimile) If to Purchaser, to: City Manager, City of Anna 111 N. Powell Parkway Anna, Texas 75409 Collin County, Texas 972-924-2620 Facsimile With a copy to: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 205 Frisco, Texas 75034 Collin County, Texas 972-712-3540 Facsimile MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 6 of 11 04-09-13 Section 8. No Commissions. Neither Seller nor Purchaser have engaged the services of a real estate broker or other person that has or would have the right to any commission in any amount as relates to the consummation of this Agreement, as relates to the Closing, or as relates to the Property. Seller agrees to defend, indemnify, and hold harmless Purchaser, and Purchaser agrees to defend, indemnify, and hold harmless Seller, from and against any claim by third parties for brokerage, commission, finder's, or other fees relative to this Agreement or the sale of the Property, and any court costs, attorney fees, or other costs or expenses arising from such claim, and alleged to be due by authorization of the indemnifying party. Section 9. Condition to Purchaser's Obligations. Purchaser will have a period of 20 days from the Effective Date in which to go on the Property and make inspections, environmental studies, surveys, test borings, and soil analysis, and in which to conduct a feasibility study of the drainage, utilities availability, environmental conditions and other matters to determine if the Property is suitable for Purchaser's proposed use or development. If within such 20 -day time period Purchaser does not notify Seller in writing if Purchaser has found the Property unsuitable for Purchaser's use or development, then Purchaser will be deemed to have waived the provisions of this Section 9 and Purchaser may not thereafter terminate this Agreement for that reason. At any time prior to the end of such 20 day time period, however, Purchaser may notify Seller that Purchaser, in its sole discretion, has determined that the Property is not suitable for its proposed development, in which event this Agreement will terminate as provided for in Section 6(b). Purchaser's inspection of the Property will not, in any event, extinguish, reduce, or otherwise affect the warranties and representations made by Seller. Section 10. Condemnation. If prior to the Closing all or any part of the Property should be taken by eminent domain or condemnation or should any notice be given that any entity with the power of eminent domain desires to take all or any portion of the Property, Seller will immediately notify Purchaser in writing. Purchaser will have five days from receipt of such notice in which to elect to either terminate this Agreement or proceed to Closing. If within such five-day time period Purchaser elects to terminate this Agreement, then the same will be terminated as provided for in Section 6(b). If Purchaser does not notify Seller that it wishes to terminate this Agreement within such time period, then Closing will occur as otherwise provided, but Seller will assign to Purchaser at Closing all of Seller's rights to any condemnation awards or other proceeds payable in respect of the taking in question. Section 11. Seller's Representations and Warranties. Seller warrants and represents to Purchaser that: MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 6 of 11 04-09-13 (a) Seller now has and will have at Closing good, marketable, and indefeasible title, in fee simple, to the Property, and no party, except as set forth in this Agreement, has any rights in, or rights to acquire the Property; (b) There are no (and on the date of Closing, there will not be any) actions, suits, or proceedings pending, or, to the knowledge of Seller, threatened against Seller or the Property which could materially adversely affect the Property; (c) Seller has full right, power, and authority to execute, deliver, and perform this Agreement without the necessity of obtaining any consents or approvals of, or the taking of any other action with regard to any third parties (or if any such consents, approvals, or other action are required, the same will be accomplished at or prior to the Closing), and this Agreement, when executed and delivered by Seller and Purchaser, will constitute the valid and binding agreement of Seller, enforceable against Seller in accordance with its terms; and (d) Seller has no actual knowledge of any law, regulation, fact, or condition relative to the Property which would materially adversely affect Purchaser's proposed use for development for public park purposes. Section 12. Survival. All warranties, representations, and covenants made by Seller in this Agreement and in any document, instrument, or certificate executed and delivered pursuant to this Agreement will survive, and not be merged or extinguished by, the Closing or any investigation made by or on behalf of either party. Section 13. Foreign Person. In the event that: (a) Seller is a "foreign person" (as defined in 26 U.S.C. § 1445(f)(3) of the Code and its regulations); (b) Seller fails or refuses to deliver the non -foreign certificate required in Section 5b 1 iv;or (c) Purchaser receives notice from any Seller -transferee's agent or Purchaser -transferee's agent (each as defined in 26 U.S.C. § 1445(d) of the Code and its regulations) that, or Purchaser has actual knowledge that, such certificate is false, and the transaction is not otherwise exempted from the withholding requirements of Section 1445 of the Code and its regulations, then Purchaser will be entitled to deduct and withhold from the Purchase Price a tax equal to the highest amount required or permitted by Section 1445 of the Code. In the event of any such withholding, Seller's obligations under this Agreement will not be excused or otherwise affected, Purchaser will remit such amount to and file the required form with the Internal Revenue Service, and Seller in the MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 7 of 11 04-09-13 event of any claimed over -withholding will be limited solely to an action against the Internal Revenue Service for refund under the Code, and waives any right of action against Purchaser on account of such withholding. Section 14. Assigns. This Agreement will inure to the benefit of and be binding on the parties and their respective successors and assigns. Seller agrees that if Purchaser assigns its rights under this Agreement to a party who fully assumes Purchaser's obligations and liabilities, Purchaser will be fully released from all of its obligations and liabilities under this Agreement. Section 15. Purchaser's Costs as Liens. All sums paid by Purchaser on account of this Agreement, and the reasonable expenses of the examination of the title to the Property and to the survey made in connection with it are made liens on the Property. However, such liens will not continue after a default by Purchaser under this Agreement. If Seller fails to convey title in accordance with the terms of this Agreement, the sole liability of Seller will be to refund to Purchaser the amount paid on account of the Purchase Price, including the Earnest Money, and to pay the net cost of examining the title, which cost will not to exceed the charges fixed by the Title Company, and the net cost of any survey made in connection with examining title incurred by Purchaser. On the making of such refund and payment, this Agreement will be considered cancelled, and all the respective rights and obligations under it will cease and become null and void. Section 16. Exhibits. All exhibits are fully incorporated in this Agreement by this reference for all purposes. Section 17. Entire Agreement. This Agreement sets forth all agreements between Seller and Purchaser relative to the Property, and all prior negotiations or agreements are merged in this Agreement. No modification of this Agreement or subsequent agreement relative to the subject matter of this Agreement will be binding unless reduced to a writing signed by the party to be bound. Section 18. Applicable Law. This Agreement will in all respects be governed by, and construed in accordance with, the substantive federal laws of the United States and the laws of the State of Texas. Section 19. Headings. MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 8 of 11 04-09-13 The section and subsection headings appearing in this Agreement are for convenience of reference only and are not intended, to any extent and for any purpose, to limit or define the text of any section or subsection. Section 20. Amendment and Waiver. This Agreement may be amended or changed only by written document duly executed by Seller and Purchaser, and any alleged amendment or change, which is not so documented will not be effective as to either party. Provisions of this Agreement may be waived by the party, which is entitled to the benefit by evidencing such waiver in writing, executed by such party. Section 21. Expiration of Offer; Effective Date. The offer represented by this Agreement will expire if not accepted by Seller, as hereafter provided, on or before 5:00 p.m. on April 15, 2013. Seller will accept this Agreement by executing a counterpart and delivering the same to Purchaser prior to the date and time stated in this section. For all purposes, the "Effective Date" of this Agreement will be the date upon which this Agreement has been executed by Seller, as indicated below, and delivered to the Purchaser. Section 22. Special Provisions: At closing Purchaser and Seller shall execute a Cross Access Easement agreement under which Purchaser shall agree to permit Seller and Seller's heirs, assigns and invitees ("Seller") access for automobiles and other motor vehicles over and across any paved surface within the area labeled "Proposed Cross Access Easement" as shown in the attached Exhibit C that may be constructed by the City or constructed with the City's approval. The Cross Access Easement shall be for the benefit of Seller's remainder tract (the "remainder tract") which adjoins the Property. Seller shall have the right to extend water and sewer main lines across the Property as may be necessary for Seller to service its remainder tract; provided, however, that any such extension shall be in accordance with applicable City ordinances and regulations governing the extension and construction of water and sewer main lines. To the extent not already constructed at the time that Seller desires such extensions, Seller will be responsible for the cost of laying and extending water and sewer main lines across the Property to connect to the remainder tract. [Remainder of page left blank intentionally.] MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 9 of 11 04-09-13 SIGNATURES: SELLER (James Allen Mann, Jr. and Marjorie Dianne Mann) Date executed by Seller: James Allen Mann, Jr. State of Texas County of Collin Before me, on this day personally appeared James Allen Mann, Jr., known to me 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. Given under my hand and seal of office this day of Notary — State of Texas Date executed by Seller: Marjorie Dianne Mann State of Texas County of Collin 2013. Before me, on this day personally appeared James Allen Mann, Jr., known to me 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. Given under my hand and seal of office this day of Notary — State of Texas [Remainder of page left blank intentionally.] 2013. MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 10 of 11 04-09-13 PURCHASER (City of Anna, Texas) Date executed by Purchaser: By: Philip Sanders, City Manager State of Texas County of Collin Before me, on this day personally appeared Philip Sanders, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed same for the purposes and consideration therein expressed. Given under my hand and seal of office this day of Notary — State of Texas 2013. MANN PROPERTY FM 455 PURCHASE AND SALE AGREEMENT - Page 11 of 11 04-09-13 EXHIBIT C F.M. 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