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2005-048-RES PURCHASE OF CITY OF PARIS PROPERTY 36 AND 40 EAST KAUFMAN ST RESOLUTION NO. 2005-048 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS, AWARDING THE BID AND AUTHORIZING THE EXECUTION OF A CONTRACT OF SALE AND A DEED FOR THE PURCHASE OF CITY OF PARIS PROPERTY BEING A PORTION OF LOT 5, CITY BLOCK 179-A, LOCATED AT 36 AND 40 EAST KAUFMAN STREET; MAKING OTHER FINDINGS AND PROVISIONS RELATED TO THE SUBJECT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Paris did heretofore, on the 8th day of November, 2004, in Resolution No. 2004-194, declare surplus and authorize the sale of a portion of Lot 5, City Block 179-A located at 36 and 40 East Kaufman Street; and, WHEREAS, bids for said property were received until 3:00 p.m., Thursday, March 17, 2005, and the highest bid by a responsible bidder was from Jeffrey Neilson and Katie Neilson in the amount of $20,000.00; and, WHEREAS, the form of the Contract of Sale and the Special Warranty Deed to Jeffrey Neilson and Katie Neilson for the conveyance of lot, attached hereto as Exhibit A, should, in all things, be approved, and the Mayor, Curtis Fendley, should be authorized to execute the same upon the date of closing, which shall occur no sooner than thirty (30) days from the date of passage of this resolution in accordance with Section 145 of the Charter of the City of Paris; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, PARIS, TEXAS: Section 1. That the fmdings set out in the preamble to this resolution are hereby in all things approved. Section 2. That the bid of Jeffrey Neilson and Katie Neilson in the amount of$20,000.00 for a portion of Lot 5, City Block 179-A, be, and the same is hereby, accepted and let. Section 3. That the Mayor be, and he is hereby, authorized and directed to execute, on behalf of the City of Paris, a Contract of Sale and a Special Warranty Deed to Jeffrey Neilson and Katie Neilson, under the terms and conditions and in the form shown in Exhibit A, attached hereto, upon the date of closing, which shall occur no sooner than thirty-one (31) days from the date of passage of this resolution in accordance with Section 145 of the Charter of the City of Paris. Section 4. That this resolution shall be effective from and after its date of passage. PASSED AND ADOPTED this 28th day of March, 2005. ATTEST: APPROVED AS TO FORM: Curtis Fendley, REAL ESTATE PURCHASE AGREEMENT STATE OF TEXAS ~ KNOW ALL MEN BY THESE PRESENTS: COUNTY OF LAMAR ~ This Real Estate Purchase Agreement ("Agreement") is made as of this _ day of 2005, by and between the City of Paris, Paris, Texas, a municipal corporation, hereinafter called SELLER, with an address for notice purposes at 135 1 ,t Street S.E., Paris, Texas 75460, Attention: City Clerk and Jeffrey Neilson and Katie Neilson, with an address for notice purposes at Rt. 13, Box 160, Paris, Texas 75462, hereinafter called PURCHASER (whether one or more, "PURCHASER"). 1. SELLER agrees to sell and PURCHASER agrees to buy the following described property, to-wit: BEING 0.0821 acres out of a 0.2734 acre tract of land in the Larkin Rattan Survey, Abstract No. 778, in the City of Paris, Lamar County, Texas; being part of Lot 2, Half Block 4 of Paris, Texas, the plat of which is recorded in Volume G, Page 299 of the Lamar County Deed Records (L.C.D.R.); and being part of that certain tract ofland described in deed dated November 3, 1989, to the City of Paris, recorded in Volume 122, Page 234 of the Lamar County Real Property Records (L.C.R.P .R.); said 0.0821 acre tract of land is more particularly described by metes and bounds as follows (all bearings cited herein are referenced to due East along the south right-of-way line of East Kaufman Street per Volume 122, Page 234 L.C.R.P.R.); BEGINNING at an "X" in concrete found in the south right-of-way line of East Kaufman Street (40 feet wide per Volume G, Page 299, L.C.D.R.) and the west right-of-way line oflst Street SE (40 feet wide per Volume G, Page 299, L.C.D.R.) for the northeast comer of said Lot 2, Half Block 4; 1.) THENCE South, along the west right-of-way line of said 1st Street SE and the east boundary line of said Half Block 4, a distance of 108.00 feet to an "X" in concrete set for the southeast comer of said Half Block 4 and the most easterly northeast comer of that certain tract ofland described in deed dated December 18, 2003, to Gibraltar Hotel, LLC, recorded in Volume 1417, Page 156 of the Lamar County Official Public Records (L.C.O.P.R.), from which a found PK nail bears North 05 deg. 34 min. East, a distance of2.34; 2.) THENCE West, along the south boundary line of said Half Block 4 and said plat of Paris, Texas and the most easterly north boundary line of said Gibraltar Hotel, LLC tract, a distance of33.10 feet to an "X" set in concrete; Page 1 of 8 EXHIBIT A- 3.) THENCE North a distance of 108.00 feet to an "X" set in concrete in the south right-of-way line of East Kaufman Street and the north boundary line of said Half Block 4; 4.) THENCE East (Reference Bearing), along the south right-of-way line of East Kaufman Street and the north boundary line of said Half Block 4, a distance of 33.10 feet to the POINT OF BEGINNING and containing 0.0821 acre ofland. This conveyance is made subject to any and all easements that are of record and not of record in the Land Records of Lamar County, Texas, that are apparent, visible and ascertainable by inspection on the ground, including any buried beneath the surface of the ground for servicing of utilities and like entities. for: $20,000.00 cash, to be paid as follows ($20,000 minimum bid): $ 500.00 $500.00 cash, submitted to SELLER with this bid document as a part of the bid, to be deposited with Stone title Company, Paris, Lamar County, Texas, as earnest money and as part payment, the receipt of which is hereby acknowledged by said deposit holder, to be delivered to SELLER at time of closing, and $19,500.00 cash to be delivered to SELLER by PURCHASER at time of closing at Stone Title Company, Paris, Lamar County, Texas, with PURCHASER receiving possession of property on date of closing or as soon thereafter as said property is vacated by all tenants. If financing will be involved, please state the terms ofthe financing: 2. At closing SELLER shall deliver to PURCHASER a Special Warranty Deed conveying title to the property, free and clear of all liens, claims, and encumbrances, except the following ("Permitted Encumbrances"): A. Real Estate Taxes and assessments net yet due and payable; B. Easements or other grants in favor of third parties that do not materially interfere with the current use of the property; C. Easements or other grants to utility companies and/or public or quasi public entities to facilitate delivery of utilities to the property, or for road, water, sewer, or other public purposes, regardless of whether they are for the benefit of the property and, Page 2 of 8 D. Those liens and encumbrances which PURCHASER waives on or before the closing date. 3. Within sixty (60) days of the execution hereof, SELLER shall obtain, at SELLER's expense a commitment from Stone Title Company, Lamar County, Texas (the "Title Company") to issue a standard policy of title insurance on the appropriate TL T A form in the amount of the purchase price, and deliver the same to PURCHASER. If any encumbrances exist on SELLER's title other than the permitted encumbrances, SELLER shall have sixty (60) days to cure or remove the same. If the encumbrances are not cured or removed within such period PURCHASER may, at its option, either a)waive such encumbrances and continue the closing; or b) terminate this Agreement and recover the deposit, it being agreed that no damages against SELLER shall be recoverable; but if the title is approved and either party hereto fails or refuses to consummate this Agreement, the other may, at such party's option, enforce specific performance of this Agreement. In the event PURCHASER is the defaulting party, SELLER shall have the right to retain such cash deposit as liquidated damages for the breach of this contract. The cost of any title insurance policy obtained by PURCHASER shall be paid by PURCHASER. All title company settlement fees shall also be paid 1/2 by PURCHASER and 1/2 by SELLER. All recording fees shall be paid by PURCHASER. 4. PURCHASER may at its own cost obtain a metes and bounds survey of the property. The description of the property contained in said survey shall be substituted for the description contained in this Agreement if the same differs in any respect from the survey description. SELLER does not guarantee the exact amount of area of the land or the building, it being agreed and understood that permitted encumbrances may reduce such area, and that PURCHASER shall solely rely on its own due diligence to determine such area. 5. SELLER agrees to deliver possession of property described above on or after date of closing, vacant of any and all tenants, such removal of tenants in the event the same becomes necessary to be at sole expense of SELLER. 6. PURCHASER hereby acknowledges that the SELLER conveying the property strictly and solely on an "as is, where is" basis, and with all faults, and that SELLER has made no material representations, disclosures, or express or implied warranties to PURCHASER or its agents respecting the status, condition, or any other aspect of the property, except for the warranty of title stated in the closing documents. PURCHASER covenants and agrees that it will solely rely on its own inspections with respect to the condition and status of the property, and not on any statements made by SELLER or its agents, and specifically the SELLER makes no warranty of condition, merchantability, or suitability or fitness for a particular purpose with respect to the property. All warranties, except the warranty oftitle on the closing documents, are hereby fully disclaimed, and PURCHASER further agrees that upon closing oftitle all of SELLER's obligations and liabilities hereunder and with respect to the property shall be deemed merged into the deed. The provisions of this section regarding the property will be included in the deed with appropriate modification of terms Page 3 of 8 as the context required. 7. After closing, as between PURCHASER and SELLER, the risk of liability or expense for environmental problems, even if arising from events before closing, will be the sole responsibility of PURCHASER, regardless of whether the environmental problems were known or unknown at closing. Once closing has occurred, PURCHASER indemnifies, holds harmless, and releases SELLER from liability from any latent defects and from any liability for environmental problems affecting the property, including liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Texas Solid Waste Disposal Act, or the Texas Water Code. PURCHASER indemnifies, holds harmless, and releases SELLER from any liability for environmental problems affecting the property arising as the result of SELLER's own negligence or the negligence of SELLER's representatives. SELLER indemnifies, holds harmless, and releases SELLER from any liability for environmental problems affecting the property arising as the result of theories of products liability and strict liability, or under new laws or changes to existing laws enacted after the date of this contract that would otherwise impose on SELLERS in this type of transaction new liabilities for environmental problems affecting the property. Specifically, these releases and indemnifications govern and apply to any asbestos, lead paint, or other similar contaminants found or existing in or on the property. The provisions of this section regarding the property will be included in the deed with appropriate modification of terms as the context requires. 8. If all or any part of the property is materially damaged or destroyed by fire, act of God, weather, or any casualty, SELLER shall promptly notify PURCHASER in writing. Then, at the option of PURCHASER (exercisable within thirty (30) days), this Agreement may be terminated in which event PURCHASER's deposit will be refunded and neither party shall have any further claim against the other. If this Agreement is not terminated by PURCHASER, the purchase price shall not be reduced and the parties shall proceed to closing of the property as set out herein. 9. PURCHASER shall be responsible for all ad valorem taxes, if any, due and payable on the property for calendar year 2005 or thereafter. 10. This property shall be sold conditioned upon and subject to a perpetual deed restriction prohibiting the use of the aforesaid property as a warehouse or storage unit. The aforesaid restrictions shall run with the land making up the property, shall be binding on PURCHASER as grantee and grantee's successors and assigns forever, and shall inure to the benefit of SELLER as grantor, grantor's successors and assigns forever. The provisions of this section regarding the property will be included in the deed with appropriate modification of terms as the context requires. 11. PURCHASER agrees to accept the property subject to its current zoning classification under the City's current Zoning Ordinance, as such zoning shall exist on the property or shall be subject to change following thirty (30) days from the date of award and passage of a Page 4 of 8 Resolution by the City Council; provided, however, that should the current or new zoning for such property be unsuitable to PURCHASER at such time as the zoning classification shall exist thirty (30) days following the date of award by the City Council, then PURCHASER may provide notice of termination and terminate this Agreement and receive full reimbursement of any and all deposits made hereunder. Should PURCHASER fail to object to the zoning for said property as specified herein in a timely manner, then PURCHASER shall accept the property subject to the then current zoning as specified herein, and any future revisions of the zoning for said property shall be the sole responsibility of PURCHASER. 12. The sale of this property shall be subject to a fee simple determinable condition, requiring PURCHASER to substantially complete a remodeling of the interior and exterior of the building structure, such remodeling to begin no later than six (6) months following transfer of title and to be completed no later than eighteen (18) months after such remodeling begins. For purposes of ascertaining the start date for such remodeling, the date of issuance of a building permit by the City of Paris for such remodeling shall be determinative. If this fee simple determinable condition is not satisfied, as provided herein, the property will automatically revert to and be owned by PURCHASER without the necessity for any further act on the part of the PURCHASER, it being SELLER's intent to convey a determinable estate to PURCHASER. Should PURCHASER satisfy this fee simple determinable condition, on a timely basis, SELLER shall execute an affidavit stating that the condition has been fulfilled, and PURCHASER may file said affidavit as PURCHASER deems appropriate. Before any such remodeling begins, PURCHASER must not only comply with the building codes of the City of Paris, but must obtain all necessary permits from the city of Paris, including but not limited to, building permits and a Certificate of Appropriateness from the Historic Preservation Commission of the City of Paris. The provisions of this section regarding the property will be included in the deed with appropriate modification of terms as the context requires. 13. The following additional provisions apply to this Agreement: A. This Agreement shall be governed by the Laws of the State of Texas, and venue for any actions under this Agreement shall lie exclusively in the Courts of Lamar County, Texas. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, such determination shall not affect the legality, validity, and enforceability of the remaining provisions of this Agreement. B. This Agreement shall be binding upon the parties' executors, personal representatives, legatees and heirs. C. Notices, demands or other communications hereunder shall be in writing and delivered in person or via telecopy, overnight delivery service or certified mail, return receipt requested, to the addresses listed in this Agreement. PageS of 8 D. This Agreement constitutes the entire agreement among the parties and supersedes any prior understandings or agreements, written or oral, that relate to the subject hereof. This Agreement may not be modified or amended unless in writing and signed by each of the parties hereto. E. If any action or proceeding is brought by any party to enforce the terms of this Agreement or to recover damages for breach of this Agreement, (i) no punitive or consequential damages may be sought or recovered, and (ii) the party prevailing on substantially all of the material issues in such action or proceeding shall be entitled to recover all of its reasonable attorneys' fees, court costs and expenses oflitigation. F. This Agreement shall be deemed to have been mutually drafted by all parties after consultation with counsel, and thus ambiguities contained herein shall not be resolved in favor of anyone party over the other. G. Notwithstanding any other provisions of this Agreement, when a period oftime is prescribed for any action to be taken by SELLER, SELLER, shall not be liable or responsible for, and there shall be excluded from the computation for any such period of time, any delays due to strikes or other labor problems, riots, acts, of God, weather, shortages of labor or materials, war, acts of aggression or terror, laws, regulations or restrictions, or any other fact or circumstance that is beyond the reasonable control of SELLER. H. The failure of the SELLER to exercise any of its respective rights hereunder or to insist upon strict performance of any ofthe terms, conditions, and covenants herein shall not be deemed a waiver of any such rights or terms, conditions, and covenants, nor deemed a waiver of any initial or subsequent breach of the terms, conditions, and covenants herein contained. I. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but together they shall constitute one and the same contract. Faxed signatures shall be deemed fully effective. J. The transactions contemplated by this Agreement are between two business entities and are intended to be commercial in nature. Accordingly, no court decision, statute, law or regulation relating to the protection of consumers or the purchase/sale of residential real estate shall be applicable to the parties dealings under or pursuant to this Agreement. K. This Agreement is not intended to benefit, and the parties hereby confirm it does not create any rights or privileges in or to, any third parties. 14. To the extent that same would apply, PURCHASER waives its rights under the Texas Deceptive Trade Practices - Consumer Protection Act, Section 17.41 et seq of the Texas Page 6 of 8 Business and Commerce Code, a law that gives consumer special rights and protections. After consultation with an attorney of its own selection, PURCHASER voluntarily consents to this waiver. 15. The sale herein described is to be closed at Stone title Company, Pris, Texas, as soon as is practicable after thirty (30) days from the date of the award and passage of a resolution by the City. EXECUTED this the _ day of ,2005. PURCHASER Jeffrey Neilson Katie Neilson THE STATE OF TEXAS ~ COUNTY OF LAMAR ~ BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Jeffrey Neilson and Katie Neilson, known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _ day of ,2005. Notary Public, State of Texas ACCEPTED: CITY OF PARIS, PARIS, TEXAS SELLER Tony N. Williams, City Manager Page 7 of 8 THESTATEOFTEXAS ~ COUNTY OF LAMAR ~ BEFORE ME, the undersigned authority, in and for said County, Texas, on this day personally appeared Tony N. Williams, City Manager of the City of Paris, 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 and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _ day of 2005. Notary Public, State of Texas Page 8 of 8