11-15-2004 (City Council) Agenda Packet NOTICE OF MEETING
WYLIE CITY COUNCIL AGENDA
NOVEMBER 15, 2004
6:00 p.m.
Wylie Municipal Complex—Council Chambers/Council Conference Room
2000 State Highway 78 North
Wylie, Texas 75098
..................
CALL TO ORI#ER
INV'( CATION EDGE Off"AL EGIAl C
L. UTI E;SE IO
Recess into Closed Session in compliance with Section 551.001, et.seq., Texas Government
Code,to wit:
Section 551.072. To deliberate the purchase, exchange, lease or value of real property
generally located at:
• Brown and 1378
RECONVENE:1�NT�>�C11'El�i
Take any action as a result of the Executive Session, including but not limited to:
Consider and act upon authorizing the City Manager to enter into an Agreement with the Trust for
Public Land for the purchase of land generally located at Brown and 1378.
ADJOURI I LENT;.; .
In addition to any specifically identified Executive Sessions,Council may convene into Executive Session at any point during the open
meeting to discuss any item posted on this agenda. The Open Meetings Act provides specific exceptions that require that a meeting be
open. Should Council elect to convene into Executive Session, those exceptions will be specifically identified and announced. Any
subsequent action,as a result of this Executive Session,will be taken and recorded in open session.
I certify that this Notice of Meeting was posted on this 12th day of November,2004 at 5:00 p.m. as required by law in accordance
with Section 551.042 of the Texas Government Code and that the appropriate news media contacted. As a courtesy,this agenda
is also posted to the City of Wylie Website at www.ci.wylie.tx.us
Carole Ehrlich,City Secretary Date Notice Removed
The Wylie Municipal Complex is Wheelchair accessible. Sign interpretation or other special assistance for disabled attendees must be
requested 48 hours in advance by contacting the City Secretary's office at 972/442-8100 or TD 972/442-8170.
AGREEMENT OF PURCHASE AND SALE
This is an Agreement with an Effective Date as provided below between THE
TRUST FOR PUBLIC LAND, a nonprofit California public benefit corporation
authorized to do business in Texas as TPL-Texas, Inc. ("Seller") and THE CITY OF
WYLIE,TEXAS, a ("Buyer").
RECITALS:
A. The addresses and telephone numbers of the parties to this Agreement are
as follows. Telephone numbers and email addresses are included for information only.
SELLER: BUYER:
The Trust for Public Land The City of Wylie
3060 Bank One Center 2000 Highway 78 North
1717 Main Street Wylie, TX 75098
Dallas, TX 75201 Attn: Mark Roath
Attn: Paul Lehner Tel: (972) 442-8124
Tel: (214) 741-3600 Fax: (972) 442-4302
Fax: (214) 741-2108 mroath@ci.wylie.tx.us
p jl.lehner cr,tpl.org
With copies to: With copies to:
The Trust for Public Land Mr. Richard M. Abernathy, Esq.
2610 University Avenue, Suite 300 Abernathy, Roeder, Boyd&Joplin
St. Paul, MN 55114 1700 Redbud Boulevard, Suite 300
Attn: Mike Zender McKinney, Texas 75069-9003
Tel: (651)999-5319 Tel: (214) 544-4002
Fax: (651) 917-2248 Fax: (214) 544-4040
mike.zender@tpl.org RAbernathva;ABERNATHY-LAW.com
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B. Frances Bates Wells("Current Owner")is the owner of certain real property located
in the City of Wylie,County of Collin,State of Texas legally described on Exhibit A attached hereto
and made a part hereof. Said real property, together with any and all improvements, fixtures,
minerals,timber,water located thereon and any and all rights appurtenant thereto including but not
limited to timber rights,mineral rights,water rights,grazing rights and access rights shall be referred
to in this Agreement as the"Property"or the"Subject Property." Notwithstanding the foregoing,
Current Owner shall retain certain of the mineral rights, as further described in Section 31 of this
Agreement.
C. Seller has proposed to acquire the Property from Current Owner.
D. Buyer wishes to purchase the Property from Seller and Seller wishes to sell the
Property to Buyer upon Seller's acquisition of the Property from Current Owner in accordance with
the terms and conditions set forth in this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Sale. Seller agrees to sell to Buyer and Buyer agrees to buy from
Seller the Subject Property on the terms and conditions set forth herein.
2. Purchase Terms.
(a) Price. The purchase price (the "Purchase Price") for the Subject Property
shall be Six Million Thirty-Six Thousand Seven Hundred Ten and 00/100 Dollars
($6,036,710.00).
(b) Method of Payment. The Purchase Price shall be payable in cash,at Closing
(as defined below),subject to any credits,prorations and adjustments provided elsewhere in
this Agreement.
3. Buyer's Deposit. Concurrently with the execution of this Agreement,Buyer shall
deposit with Escrow Holder (as hereinafter defined) the amount of Five Thousand and 00/100
Dollars ($5,000.00) (the "Deposit"). The Deposit shall be credited toward the Purchase Price at
Closing, as defined below. In the event that this Agreement is terminated for any reason other than
(i) Seller's failure to deliver the Subject Property as agreed upon herein, or (ii) Buyer elects to
terminate this Agreement in accordance with Sections 4,6 or 24,the Deposit shall be paid to Seller,
without thereby waiving Seller's remedies provided in Section 13 of this Agreement,which shall be
Seller's sole and exclusive remedies hereunder.
4. Condition of the Subject Property.
(a) Buyer agrees that from the Effective Date through, to and including
September 30, 2004 (the"Inspection Period"), Buyer will:
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(i) make an independent investigation of the physical condition of the
Subject Property including but not limited to,the condition of the soil,the presence
of hazardous materials or contaminants, other physical characteristics, and
compliance with any statutes, ordinances or regulations;
(ii) study all aspects or circumstances of the Subject Property which
Buyer deems material or relevant; and
(iii) make all inspections and verifications which Buyer deems necessary
for the completion of Buyer's due diligence review for the transactions covered by
this Agreement.
Buyer shall be solely responsible for conducting any inspections or tests required by law at its sole
cost and expense. When available, Seller will provide Buyer with a Phase I Environmental Site
Assessment prepared by Seller's consultant(the"EA Report"). Should Buyer determine in its sole
discretion based on its investigation of the Subject Property and its review of the EA Report that the
condition of the Subject Property is unacceptable to Buyer,prior to the expiration of the Inspection
Period, Buyer shall so notify Seller in writing of its objections ("Objections"). In the event that
Seller is unable to cause Buyer's Objections to be remedied,Buyer may elect to: (a)terminate this
Agreement in which case Buyer shall have no obligation to purchase the Subject Property, and the
parties' obligations hereunder shall terminate or (b) proceed to Closing, and accept title to the
Property subject to such Objection(s) which are not remedied. Buyer's failure to make timely
Objections will constitute a waiver of its rights to raise any Objections hereunder and Buyer will
accept title to the Subject Property subject to such conditions. Buyer may not disclose any
information,including environmental assessment reports,Buyer obtains through the investigations
and inspections performed in accordance with this Section unless required to disclose such
information pursuant to a court order or as otherwise required by law.
Before entering upon the Subject Property to conduct the investigations provided for herein,Buyer
shall notify Seller and Seller shall have obtained Current Owner's permission for Buyer to enter upon
the Subject Property to conduct said investigations.
Buyer hereby waives any liability, loss, cost, claim, action and/or suit against Current Owner and
Seller which Buyer may suffer or incur as a result of Buyer's or its agents'presence on the Subject
Property for the purpose of making the investigations provided for herein. If Buyer does any
excavation, Buyer agrees to restore the Subject Property to its natural condition if Buyer's
acquisition of the Subject Property is not consummated as contemplated by this Agreement.
(b) Buyer agrees that Seller has made no representations or warranties with
respect to the Subject Property except as set forth in this Agreement.
(c) Buyer will not undertake any activity which will jeopardize Seller's efforts to
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acquire the Subject Property.
(d) Buyer agrees to accept the Subject Property"as is,"in its present condition
and/or as otherwise required pursuant to the terms of this Agreement, subject to all
reasonable use,wear and tear,and deterioration of any kind in,of,or to the Subject Property.
5. Closing. Final settlement of the obligations of the parties hereto shall occur on or
before January 31,2005(the"Closing"). In addition,the Closing shall be delayed for any period of
time that Seller is attempting to cause the cure of any objections raised by Buyer pursuant to Sections
4 or 6. This transaction shall be closed in escrow with Chicago Title Insurance Company, 5401 N.
Central Expressway,Suite 280,Dallas,Texas 75205,Attn:Craig Penfold,(Tel:214/521-2424,Fax:
214/528-3425) ("Escrow Holder") in accordance with the general provisions of the usual form of
deed and money escrow agreement then in use by Escrow Holder, with such additional special
provisions inserted in said escrow agreement as may be required to conform with the terms and
conditions of this Agreement. The cost of the escrow and closing fee shall be divided equally
between Seller and Buyer.
6. Title. Seller shall by special warranty deed convey to Buyer its interest in the Subject
Property; provided, however, Seller at its option may convey the Subject Property to Buyer by
special warranty deed directly from Current Owner to Buyer, subject only to the following:
(i) any federal, state or local laws, ordinances,regulations and/or orders whatsoever;
(ii) liens for real estate taxes not yet due and payable and other taxes and assessments of
any kind or nature assessed(not yet due and payable)with respect to the Subject Property;
(iii) such other title objections and exceptions as may be waived or deemed waived by
Buyer;
(iv) the standard printed exceptions on the form of title insurance issued pursuant to
Section 7;
(v) the Agricultural Lease described in Section 30 hereof; and
(vi) the mineral reservation in favor of Current Owner referenced in Section 31 hereof.
The foregoing shall be referred to collectively as "Permitted Exceptions". Within ten (10) days
following the Effective Date, Seller will deliver to Buyer a copy of the commitment for title
insurance issued by Escrow Holder committing the company to issue an Owner's Policy insuring title
to the Subject Property in Seller. Buyer may at its sole cost and expense obtain a title commitment
from Escrow Holder committing the company to issue an Owner's Policy insuring title to the Subject
Property in Buyer. On or before September 30, 2004, Buyer shall advise Seller in writing of any
exceptions other than the Permitted Exceptions which Buyer will require to be removed on or before
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Closing (such exceptions which are not Permitted Exceptions being hereafter referred to as
"Impermissible Exceptions"). In the event Seller is unable to cause the removal of any such
Impermissible Exceptions by Closing, Buyer may elect to: (a)terminate this Agreement in which
case Buyer shall have no obligation to purchase the Subject Property, and the parties' obligations
hereunder shall terminate, or (b) proceed with the purchase of the Subject Property and accept a
policy of title insurance with the Impermissible Exceptions. If Buyer fails to notify Seller of any
objection to exceptions in the time period provided herein,Buyer shall be deemed to have accepted
all matters set forth in the title commitment and the same shall be deemed Permitted Exceptions.
7. Title Insurance. Buyer may, at its option, and its sole cost and expense procure a
standard owner's policy of title insurance from the Escrow Holder insuring that title to the Subject
Property is vested in Buyer upon Closing,subject only to the exceptions which are acceptable or are
deemed acceptable pursuant to Section 6.
8. Seller's Promise not to Further Encumber. Seller shall not, without the prior
written consent of Buyer,make any leases,contracts,options or agreements whatsoever affecting the
Subject Property which would in any manner impede Seller's ability to perform hereunder and
deliver title as agreed herein.
9. Seller's Representations. Seller makes the following representations:
(a) At Closing, Seller will have the power to sell,transfer and convey all right,title
and interest in and to the Subject Property in accordance with the terms and conditions of this
Agreement.
(b) Seller represents and warrants that it is not a"foreign corporation"as defined in
Section 1445 of the Internal Revenue Code. Seller's United States Taxpayer Identification
Number is 23-7222333.
10. Prorations, Closing Expenses and Fees. Real property taxes on the Subject
Property shall be prorated as of the date of Closing based upon the latest available tax bill. If the
Closing shall occur before the tax rate is fixed for the then current year,subsequent to Closing,when
the tax rate is fixed for the year in which the Closing occurs, Seller and Buyer agree to adjust the
proration of taxes and, if necessary, to refund or pay (as the case may be) such sums as shall be
necessary to effect such adjustment. Special assessments, levied, pending or constituting a lien
against the Subject Property, if any, shall be assumed by Buyer. Buyer shall be responsible for
paying any additional taxes,penalties and interest,including but not limited to compensatory or roll
back taxes,on the Subject Property arising from the termination of a preferential tax classification of
the Subject Property payable as a result of the conveyance to Buyer. The escrow and closing fee(s)
charged by Escrow Holder shall be shared equally by Seller and Buyer. Buyer shall pay the premium
for any title insurance policy or endorsements required by Buyer. Other fees and charges not
otherwise allocated in this Agreement,shall be allocated in accordance with the customary practice
of Collin County, Texas.
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11. Notices. All notices pertaining to this Agreement shall be in writing delivered to the
parties hereto personally by hand,telecopier,courier service or Express Mail,or by first class mail,
postage prepaid, at the addresses set forth in Recital A. All notices shall be deemed given when
deposited in the mail,first class postage prepaid,addressed to the party to be notified;or if delivered
by hand, telecopier, courier service or Express Mail, shall be deemed given when delivered. The
parties may, by notice as provided above, designate a different address to which notice shall be
given.
12. INTENTIONALLY OMITTED.
13. Remedies Upon Default. In the event Buyer defaults in the performance of any of
Buyer's obligations under this Agreement,Seller shall,as its sole and exclusive remedies hereunder,
have the right to (a)terminate this Agreement and retain the Deposit, or(b) specific performance
against Buyer. In the event Seller defaults in the performance of any of Seller's obligations under
this Agreement, Buyer shall, as its sole and exclusive remedies hereunder, have the right to (a)
terminate this Agreement and receive a refund of the Deposit, or(b) specific performance against
Seller. In no event shall Seller or Buyer be liable to the other for any damages suffered as a result of
the breach of or default in any covenant or obligation under this Agreement.
14. No Broker's Commission. Each party represents to the other that it has not used a
real estate broker in connection with this Agreement or the transaction contemplated by this
Agreement. In the event any person asserts a claim for a broker's commission or finder's fee against
one of the parties to this Agreement,the party on account of whose conduct the claim is asserted will
hold the other party harmless from said claim.
15. Time of the Essence. Time is of the essence of this Agreement.
16. Binding on Successors. This Agreement shall be binding not only upon the parties
hereto,but also upon their heirs,personal representatives, assigns,and other successors in interest.
17. Additional Documents. Seller and Buyer agree to execute such additional
documents, including escrow instructions, as may be reasonable and necessary to carry out the
provisions of this Agreement.
18. Assignment. Neither Buyer nor Seller may assign its interests under this Agreement
without the written consent of the other party.
19. Entire Agreement; Modification; Waiver. This Agreement constitutes the entire
agreement between Buyer and Seller pertaining to the subject matter contained in it and supersedes
all prior and contemporaneous agreements, representations, and understandings. No supplement,
modification or amendment of this Agreement shall be binding unless executed in writing by all the
parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a
6
waiver of any other provision,whether or not similar,nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party making the waiver.
20. Counterparts. This Agreement maybe executed in counterparts,each of which shall
be deemed an original and which together shall constitute one and the same agreement.
21. Severability. Each provision of this Agreement is severable from any and all other
provisions of this Agreement. Should any provision(s) of this Agreement be for any reason
unenforceable,the balance shall nonetheless be of full force and effect.
22. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
23. Acceptance of Deed. The acceptance by Buyer of the deed shall be deemed to be full
performance by Seller of,and shall discharge Seller from,all obligations hereunder and Seller shall
have no further liability hereunder.
24. Risk of Loss. All risk of loss shall be with Seller until Closing. In the event the
Subject Property is destroyed or damaged prior to Closing,Buyer shall have the right at its option to
terminate this Agreement by written notice to Seller,in which case this Agreement shall terminate,
and the parties shall have no further obligation to each other hereunder.
25. Condemnation. In the event of a taking of all or any part of the Subject Property
under the power of eminent domain prior to the Closing, Buyer shall proceed to Closing with an
assignment by Seller of all Seller's right, title and interest in and to any and all such awards and
proceeds.
26. Possession. Seller shall deliver possession of the Subject Property concurrently with
Closing in accordance with Section 4(d), Section 6 and Section 30.
27. Buyer's Representation. Buyer represents that it has full power and authority to
enter into this Agreement and the person signing this Agreement for Buyer has full power and
authority to sign for Buyer and to bind it to this Agreement.
28. Miscellaneous. In the event that any of the deadlines set forth herein end on a
Saturday,Sunday or legal holiday,such deadline shall automatically be extended to the next business
day which is not a Saturday, Sunday or legal holiday. The term "business days" as may be used
herein shall mean all days which are not on a Saturday, Sunday or legal holiday.
29. Seller's Contingency. Buyer acknowledges that Seller does not presently own the
Subject Property and that Seller's duties hereunder and Buyer's rights hereunder are both expressly
contingent upon the acquisition by Seller of the Subject Property. In the event Seller does not
acquire the Subject Property from Current Owner this Agreement shall terminate,Seller shall instruct
7
Escrow Holder to return the Deposit to Buyer, and thereafter neither party shall have any further
obligations hereunder.
30. Agricultural Lease. Buyer acknowledges and Seller represents that the Property is
subject to a lease for agricultural purposes with Ben Scholz dated July 14, 1989,which is attached
hereto as Exhibit B (the "Agricultural Lease"), which Agricultural Lease can be terminated in
accordance with its terms effective on July 1,2005. At Closing,Seller shall assign and Buyer shall
assume Seller's right,title and interest as landlord under the Agricultural Lease,and the parties will
prorate any rents which are due as of the date of Closing. Seller agrees that Seller shall not modify
or amend the Agricultural Lease without Buyer's written approval. After Closing,Buyer is free to
modify,amend,revoke or terminate the Agricultural Lease in accordance with its terms,in Buyer's
sole discretion.
31. Mineral Rights. At the Closing between Seller and Current Owner,Current Owner
and Current Owner's successors in interest will reserve and retain eighty percent(80%)of the rights
to the oil,gas and other minerals associated with the Property,with Seller and Seller's successors in
interest receiving twenty percent (20%) of such rights. The deed or other conveyance documents
relating to the reservation from Current Owner shall also provide that Seller,and Seller's successors
in interest shall receive the executive rights with respect to the exploration for and mining of such
oil, gas and other minerals, which shall allow Seller and Seller's successors in interest to control
whether and to what extent such exploration and mining occurs,and the manner and timing of such
exploration and mining. At the Closing contemplated by this Agreement,Seller shall assign to Buyer
and Buyer shall assume from Seller all such mineral and executive rights conveyed to Seller by
Current Owner.
IN WITNESS of the foregoing provisions the parties have executed and delivered this
Agreement as of the date set forth below. The effective date (the "Effective Date") of this
Agreement shall be the last date of execution by either of the parties to this Agreement.
SELLER: BUYER:
THE TRUST FOR PUBLIC LAND, a THE CITY OF WYLIE, a
nonprofit California public benefit
corporation authorized to do business in
Texas as TPL-Texas, Inc.
By) By:
Name: M C. 2c..oler Name:
Title: Rea,,,-a_v.i,.,s.eic...,d Ayr. fe � Title:
Date: Sc.,' .n�e_e- Z4 zodl Date:
8
.�=Xr./i5/i ,q
PROPERTY DESCRIPTION
TRACT ONE
68. 711 ACRES
BEING a tract of land situated in 'the J. W. Curtis Survey, Abstract No.
'196, in Collin County, Texas, and being part of the called 102 acre
tract of land described as- First Tract in deed to Clarinda . Mathews,
recorded in Volume 270, Page 205 of the land records of Collin County,
Texas, and being more particularly described as follows:
BEGINNING at a 3/4" iron pipe found in the . west right-of-way line of
Farm Market Road No. 1378 (variable width right-of-way) , being the
southeast corner of a called 9. 994 acre tract 'of land described in deed
to Deborah-J. Mulcahy, recorded in Collin County Clerk 's File .No . 93-
0073282 of, the Land Records of Collin 'County, Texas:
THENCE with the west right-of-way line of said Farm Market Road No .
1378, as follows:
South 01 °20 ' 16" East, a distance of 316. 59 feet to a 5/8" iron
rod set with a. red plastic cap stamped "PBS&J" (hereinafter
called 5/8" iron rod set) for corner:
South 00 '26 '00" East, a distance of 889. 47 feet to a 5/8" iron
rod set for corner:
South 89 °34 '00" West, a distance of 10. 00 feet to a 5/8" iron rod
set for corner:
South 00 °26 '00" East, a distance of 426. 62 feet to a 5/8" iron
rod set for .corner at the beginning of a tangent curve to the
right, having a central angle of 47 '12 '00". a radius of 269. 53
feet and chord bearing and distance of South 23 '10 ' 00" West,
215.81 feet:
Southwesterly with said curve, an arc distance of 222. 04 feet to
a 5/8" iron rood set for corner;
South 46 '46 '00 " West. a distance of 864. 60 feet to a 5/8" iron
• rod set for corner;
South 43 '14 '00" East, a distance of 9. 48 feet to a 5/8" iron rod
set for corner;
South 46 '06 '00" West, a distance of '364. 64 feet to a 5/8" iron
rod set for corner at the intersection of the west right-of-way
line of said Farm Market Road No. 1378 and the north right-of-way
line of the Dallas Area Rapid Transit railroad (100 foot right-
. of-way);:
THENCE with the north right-of-way line of said Dallas Area Rapid
Transit railroad, South 86 '42 '06" West, a distance of 310. 15 feet to a
5/8" iron 'rod set for corner in the east line of a called 148 acre
' tract of land described as First Tract in deed to J. L. Brand. Jr. , and
Dorothy Si Green, recorded in Volume 4247, Page 2250 of the Land
Records of Collin County, Texas;
THENCE with the east line of said 148 acre tract, North 00 '00 '00" East.
a distance of 2719. 79 feet to a 5/8" iron rod set in the south line of
said 9. 994 acre tract;
THENCE with the south line of said 9. 994 acre tract South 89 '08 '43"
East, a distance of 1273. 51 ,feet to the POINT OF BEGINNING and
containing68. 711 ACRES of land.
•
•
PROPERTY DESCRIPTION
TRACT TWO
>65.733 ACRES
BEING a tract of land situated in the J.W. Curtis Survey, Abstract No.
196 and the M. Milliron Survey, Abstract No. 563, in Collin County.
Texas, and being part of the called 102 acre tract of land described as
First Tract and the called 210.5 acre tract described as Second Tract -
in deed to Clarinda Mathews. recorded in Volume 270. Page 205 of the
land records of Collin County, Texas, and being more particularly •
described as follows:
BEGINNING at a 5/8" iron rod set with a red plastic cap stamped "P8S6J"
(hereinafter called 5/8" iron rod set) in the south right-of-way line
of Farm Market Road No. 3412 also known as Brown Street (80 foot right-
of-way), being the northwest corner of a called 2.00 acre tract of land
described in deed to John H. Ereckson and wife Glynda G. Ereckson,
recorded in Collin County Clerk's File No. 92-0016862 of the Land
Records of Collin County, Texas, from which a 1/2" iron rod found at
the northeast corner of said 2.00 acre tract bears South 88 '02'00" East,
a distance of 87. 14 feet:
•
THENCE with the west line of said 2.00 acre tract, South 02'07'22" West.
a distance of. 762.36 feet to a fence post at the southwest corner of
said 2.00 acre tract, being the northwest corner of a called 57.81 acre
tract of land described in deed to J.R. Eaves, recorded in Volume 555.
Page 339 of the Land Records of Collin County, Texas;
THENCE with the west line of said 57.81 acre tract and with the west
line of a called 1.931 acre tract of land referenced in Deed recorded
in Volume 836, Page 200 of the Land Records of Collin County, Texas.
South -02'55'59" West. at a distance of 429.64 feet passing a fence
corner post at the northwest corner of a called 51.347 acre tract of
land described in deed to Ralph Pinkus, recorded in Volume 836, Page .
200 of the Land Records of Collin County, Texas, and continuing along
the west line of said 51.347.acre tract, a total distance of 901.66
feet to a 1/2" iron rod found at the southwest corner of said 51.347
acre tract, being the northwest corner of a called 38. 10 acre tract of
land described in deed to Wylie Realty Investments, L.L.C., recorded in
Volume 5042, Page 2944 of the Land Records of Collin County, Texas;
THENCE with the west line of said 38. 10 acre tract, South 04'00'10"
West. a distance of 1313.38 feet to a 5/8" iron rod set for corner in
the north right-of-way line of the Dallas Area Rapid Transit railroad
(100 foot right-of-way), being the southwest corner of said 38. 10 acre
tract, from which a 1/2" iron rod found bears South 04 '00'10" West. a
distance of 3.77 feet;
THENCE with the north right-of-way line of said Dallas Area Rapid
Transit railroad, as follows:
North 80 '30'21" West. a distance of 2309. 17 feet to a 5/8" iron
rod set for corner at the beginning of a tangent curve to the
left, having a central angle of 12'47'33", a radius of 3352.42
feet and chord bearing and distance of North 86'54'07" West.
746.94 feet;
Northwesterly with said curve, an arc distance of 748.56 feet to
a 5/8" iron rod set for corner;
South .86 '42'06" West. a distance of 231.93 feet to a 5/8" iron
rod set for corner at the intersection of the north right-of-way
line of said Dallas Area Rapid Transit railroad and the east
right-of-way line of Farm Market Road No. 1378 (variable width
right-of-way):
•
THENCE with the east right-of-way line of said Farm Market Road No.
1378, as follows:
North 46 '06'00" East. a distance of 270.27 feet to a 5/8" iron
rod set for corner;
South 43 '14'00" East, a distance of 10.51 feet to a 5/8" iron rod
set for corner;
North 46'46'00" East, a distance of 651.34 feet to a 5/8" iron
rod set for corner;
North 43 '14'00" West, a distance of 10.00 feet to a 5/8" iron rod
set for corner;
North 46 '46'00" East. a distance of 213.26 feet to a 5/8" iron
rod set for corner at the beginning of a tangent curve to the
left, having a central angle of 47 '12'00". a radius of 359.53
feet and chord bearing and distance of North 23'10'00" East.
287.88 feet: •
Northeasterly with said curve, an arc distance of 296. 18 feet to
5/8" iron rod set for corner;
North 00 '26'00" West, a distance of 1314.70 feet to a 5/8" iron
rod set for corner at the beginning of a non-tangent curve to the
right, having a central angle of 92'58'22", a radius of 278.29
feet and chord bearing and distance of North 45'46'00" East.
403.64 feet;
Northeasterly with said curve, an arc distance of 451.58 feet to
a 5/8' iron rod set for corner in the south right-of-way line of
said Farm Market Road No. 3412;
THENCE with the south right-of-way line of said Farm Market Road No.
3412. South 88 '02'00" East. a distance of 2204.68 feet to the POINT OF
BEGINNING and containing 165.738 ACRES of land.
/0#7eFir `,"09 - ilue' (e. 3)
PROPERTY DESCRIPTION
TRACT THREE
19.201 ACRES •
BEING a . tract of land situated in the M. MilIiron Survey, Abstract No .
563 in Collin County, Texas, and being part of the called 210. 5 acre
tract described as Second Tract in deed to Clarinda Mathews, recorded
in Volume 270, Page 205 of the land records of Collin County. Texas,
and being more particularly described as follows:
BEGINNING at a fence corner in the north right-of-way line of Farm
Market Road No. 544 (120 foot right-of-way) , in deed to the State of
Texas, recorded in Volume 1344, Page 449 of. the Land Records of Collin
County, Texas, being the southwest corner of a called 7. 585 acre tract
of land described in deed to J-8 Blakey Investments, recorded in Collin
County Clerk 's File No. 98-0005235 of the Land Records of Collin County,
Texas, being in a curve to the right, having a central angle of
5 °13 '22", a radius of 5669. 58 feet and chord bearing and distance of
North 73 '06 '49" West, 516. 64 feet;
THENCE with the north right-of-way line of said Farm Market Road No.
544, as follows:
Northwesterly with said curve, an arc distance of 516. 82 feet to
a 5/8" iron rod set with a red plastic cap stamped "PBS&J"
(hereinafter called 5/8" iron rod set) for corner;
• North 70 '30 ' 01 " West, a distance of 1150. 02 feet to a 5/8" iron
rod set at the southeast corner of a called 6. 902 acre tract of
land described in deed to R. Richard Parker, recorded in Collin
County Clerk 's File No. 93-0094954 of the Land Records of Collin
County, Texas;
THENCE with the east line of said 6. 902 acre tract, North 16 °24 '48"
West, a distance of 384. 23 feet to a 5/8" iron rod set in the southeast
line of a tract of land described in deed to Texas Power and Light,
recorded in Volume 575, Page 224 of the Land Records of Collin County,
• Texas;
THENCE with the southeast line of said Texas Power and Light tract,
North 50 '12 '02" East, a distance of 14. 07 feet to a 5/8" iron rod set
for corner in the south right-of-way line of the Dallas Area Rapid
Transit railroad (100 foot right-of-way) ; ,
THENCE with the south right-of-way line of said Dallas Area Rapid
Transit railroad, South 80 '30 '21 " East, a distance of 1745. 09
feet to a 60D nail found at the northwest corner of said 7. 585
acre tract;
THENCE with the west line of said 7. 585 acre tract, South 03 '14 '52"
West, a distance of 628. 02 feet to the POINT OF BEGINNING and
containing 19. 201 ACRES of land.
Bearing system based upon the. right-of-way lines of Farm Market Road
No. 1378 (variable width right-of-way) .
CROP-SHARE-CASH
EARS LEASE
This lease 3s entered in to this 14th day of �'uly, . 1983
k,tLbetween' Clor•insde Mathews (by Katherine power, p. S. A. :s ,
landlord, of 401 Ridge Crest Drive, Richardson, TX 75080
and Ben L. Scholz, tenant, 407 Br i erwoc:d, Wylie, TX
098.
A. PROPERTY RIGHTS-- The landlord hereby leases to tenant,
to occupy and use for agricultural and related purposes, the
following-described property, herein-after referred to as the
"farm" located in Collies County, State of Texas, and commonly
known as the Mathews-Wylie . farm, and consisting of 286 acres,
more or less, together with all buildings and improvements
thereon and all rights there to except as specified below:
1. Reservation of land and buildings- The landlord
reserves the right to use the following land and buildings
for the following purposes: to lease to above named tenant_
E. Right of entry--The landlord reserves the right of
himself/herself, his agents, his employees, or his assigns to
enter the farm at any reasonable time for purposes (a) of
consultation with the tenant ; (b) of making repairs,
improvements, and inspections; (c-) of developing mirser•aI
resources; and (d) after notice of terminations of the lease
is givers, of plowing, seeding, fertilizing and such customary
seasonal work, nc:rse of which is to interfere with the tenant
in carrying out regular farm operations.
3. Transfer .of farm--If landlord should sell or
otherwise transfer title to the farm, he will do so subject
to the provisions of this lease.
4. Heirs and successor's-- The terms of this lease shall
be binding upon the heirs, executors, administrators, and
successors of both landlord and tenant in like mariner as upon
the original parties. However, in event the lease is for
more than one year, the heirs or successors of the tenant
shall have the option to give written notice of terminations
effective at the end of the lease year in which death occurs.
5, Right to lease--The. landlord warrants that he has
the right to lease the farm, and will defend the tenant* s
possession against any and all persons whomsoever.
S. LAND USE AND LIVESTOCK PRODUCTION
1. Land use--The agreed-upon use of the land is for the
following purpose:
A. Crop production of grains.
B. Grass productions for haying or grazing.
EXHIBIT a
•
�p�yrs
2. Livestock pr'c•duction--The tenant on his own may
engage in the productions of livestock at his expense.
C. IMPROVING, CONSERVING, AND MAINTAINING THE FARM--
I. General maintenance--The tenant wiII maintains the
farm during his tenancy irs as good condition as at the
beginning,rsor'ma l wear arid. depreciations and damages from
causes beyond the tenant' s control excepted.
2. Waste--The tenant will not commit waste on or damage
to the farm and will use due care to prevent others from so
doing. The tenant will promptly notify landlord of any •
evidence of unauthorized dumping or disposal of potentially
toxic acid/or hazardous materials on the property.
3. Fire protections--The tenant will not, without
written consent of the landlord, house automobiles,
motortr'ucks, or tractors in barns, or otherwise violate
restrictions irs the landlord' s . insurance policy which
restrictions the landlord shall make known to the tenant.
4. Replace Losses--The- landlord will replace or repair
as promptly as possible the dwelling or any other building
that may be destroyed or damaged by fire, flood, or other
cause beyond the control of the tenant or make rental
adjustments in lieu of replacements.
5 Maintenance of improvements-- The tenant will keep
the buildings, fences, and other improvements. on the farm in
as good repair and condition as they are when he takes
possession and irs as good repair and condition as they may be
put during the terms of the lease, ordinary wear and tear,
loss by fire, or unavoidable depreciation or destruction
excepting.
6. Add improvements--The tenant will not, without
written consent of the landlord, (a) erect or permit to be
erected on the farm any rsonremcrvable structure or building,
or (b) incur any expense to the landlord for such purpose, or
(c) add electrical wiring, plumbing, or heating to any
buildings, and, if consent is givers, he will make such
additions meet standards and requirements of power and
insurance companies.
7. Conservation practices-- The tenant will control
• soil erosion as completely as is practicable.
5. Conservation structures--The tenant will keep in
good condition as at the beginning of this agreement, all
terraces, open ditches, and inlets and outlets of tile
drains, preserve all established water-courses or ditches
including grass waterways when seed and fertilizer are
furnished by the landlord, and refrains from any operations or
practice that will injure them.
S. Compensation for improvements-- The two parties will
carry out new conservation practices and measures and make
other improvements, and share contributions and costs
necessary for completion of such practices and improvements
as set forth below. The tenant will be reimbursed by the
landlord when the practice, measure, or improvement is
completed.
1 O. Removable improvements—Minor improvements of a
temporary or removable nature which do not mar the condition
or appearance of the farm may be made by the tenant at his
own expense. The tenant may at any time this lease is irs
effect, or within a reasonable time. thereafter, remove such
improvements, provided he .leaves in good condition that part
of the farm from which they are removed.
11. Compensation for damages--When the tenant leaves the
farm he will 'pay the landlord reasonable compensation for any
damage to the farm for which the tenant is responsible,
except ordinary wear and depreciations and damages beyond the
tenant' s. control. •
D. SHARING COSTS AND RETURNS--All costs and ret urns shall be
divided between landlord and tenant as provided below, unless
otherwise specifically stated elsewhere irs this lease:
1. Rental rates--The tenant agrees to pay as rent the
shares or quantities of crops and cash as indicated by the
following:
A. gross receipts received from sales of grain crops
will be shared 1/3 Landlord and E/3 tenant.
B. 65 acres of grassland will be cash leased.
C. balance of acres in this farm are available for
tenant use at no change with this agreement.
E. Expenses--Expenses, including investments in
• personal property, shall be supplied by tenant, except as
indicated in section C and except as follows:
A. for grains crops, fertilizers, pesticides, and their
. application costs : combine harvesting and hauling grain
costs will be shared 1/3 landlord and 2/3 tenant.
B. for grassland--all expenses incurred are those of the
tenant.
E. TERM OF LEASE
1. Term—The term of this lease shall be threet3) years
from July 1, 1989, to July 1, 139E, and this lease shall
continue in effect from year to year thereafter until written
notice of termination is given -by either party to the other
at least 3 month (s) before expirations of this lease or any.
renewal.
E. Continuous occupancy--The tenant agrees that he/she
or his agent will possess and occupy the farm continuously
during the term of the lease.
3. Surrender of possessions--The tenant agrees to
surrender possession and occupancy of the premises peaceably
at the termination of the lease.
4. Review of lease--A rsquest for general review of the
lease may be made at least ___ __days prior to the final date
for giving notice to terminate this lease. Amendments and
alterations to this lease shall be made in writing.
E. MISCELLANEOUS PROVISIONS
1. No partnership created--This lease shall not be
deemed to give rise to a partnership relation, and neither _
party shall have authority to obligate the other without
written consent, except as specifically provided in this
lease.
2. Government programs- The farm wi 11 be operated in
compliance with Government programs as follows:
• The tenant .will be given power of attorney for all
government programs pertaining to operation of the farm.
3. Debts and accidents--Each party agrees that the other
party shall in no way be responsible for the debts of, or
liabilities for accidents or damages caused by, the other
party.
4. Willful neglect--Willful l neglect, failure, or
refusal by either party to carry out any substantial
provision of this lease shall give the other party the
benefits of any proceedings provided by law.
5. Farm records--The tenant agrees to keep financial
and production records of all income and expenses of mutual
interest, which records shall be acessible to the landlrdat
all times. Accounts between the two parties shall besettled
on or about 15 days following actual date incurred.
G. flr•bitratiors of differences-- Any differences between
the parties as to their several rights_ and obligations under
this lease that are not settled by mutual agreement after
thorough discussion, shall be submitted for arbitration to a
committee of three disinterested persons, one selected by
each party hereto and the third by the two thus selected, and
the committee' s decision shall be accepted by both parties. ��;
7. Additional Agreements: . i&I'-/�' $',
fl separate lease for 65 acre parcel of grass land wi I l,�_ �'
be at $ . 5QVacre/year• due the first day of March each year.
IN WITNESS WHEREOF, the parties have signed this_ lease; on the
011
date first above written.
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La•rsdlord) Clfrinda Mathews '-' 1.(9
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