1998-355AN ORDINANCE APPROVING A REAL ESTATE CONTRACT BETWEEN THE CITY OF
DENTON AND DON R SWADLEY AND JANETTE M SWADLEY, RELATING TO THE
PURCHASE OF 0 178 ACRES OF LAND FOR THE EXPANSION OF U S HIGHWAY 77
(PARCEL 28), AUTHORIZING THE EXPENDITURE OF FLrNDS THEREFORE, AND
PROVIDiNG AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS
SECTION I That the City Manager is hereby authorized to execute a Real Estate
Contract between the City and Don R and Janette M Swadley, in substantially the form of the
Real Estate Contract which is attached to and made a part of this ordinance for all purposes, for
the purchase of 0 178 acres of land for the expansion ofU S Highway 77 (Parcel 28)
SECTION II That the City Manager is authorized to make the expenditures as set forth
in the attached Real Estate Contract
SECTION III That this orchnance shall become effective immediately upon its passage
and approval
PASSED AND APPROVED thls the l;7~0~'~ dayof ~~ ,1998
ATTEST
JENNIFI~R WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
REAL ESTATE CONTRACT
STATE OF TEXAS
COUNTY OF DENTON
THIS CONTRACT OF SALE is made by and between DON R. SWADLEY
AND JANETTE M. SWADLEY (hereinafter referred to as "Seller") and
CITY OF DENTON, TEXAS, a home rule municipality, of Denton,
Denton County, Texas, (hereinafter referred to as "Purchaser"),
upon the terms and conditions set forth herein.
PURCHASE AND SALE
Seller hereby sells and agrees to convey, and Purchaser
hereby purchases and agrees to pay for all that certain tract,
lot or parcel of land described in Exhibit "A" attached with all
rights and appurtenances pertaining to the said property,
including any right, title and interest of Seller in and to
adjacent streets, alleys or rights-of-way (all of such real prop-
erty, rights, and appurtenances being hereinafter referred to as
the "Property"), together with any improvements, fixtures, and
personal property situated on and attached to the Property, for
the consideration and upon and subject to the terms, provisions,
and conditions hereinafter set forth. Seller shall pay all cost
for the removal, installation, construction, relnstallatlon,
reconstruction, labor and materials for any and/or improvements
located within the property described in Exhibit "A". /Lny
improvements not removed by January 1, 1999 shall become property
of the City of Denton, Texas.
PURCHASE PRICE
1 Amount of Purchase Price The purchase price for the
Property shall be the sum of $9,989 00.
2. Payment of Purchase Price. The full amount of the
Purchase Price shall be payable in cash at the closing
PURCHASER'S OBLIGATIONS
The obligations of Purchaser hereunder to consummate the
transactions contemplated hereby are subject to the satisfaction
of each of the following conditions any of which may be waived in
whole or in part by Purchaser at or prior to the closing.
1. Preliminary Title Report. Within twenty (20) days after
the date hereof, Seller, at Seller's sole cost and expense, shall
have caused the Title Company (hereinafter defined) to issue a
owners policy commitment (the "Commitment") accompanied by copies
of all recorded documents relating to easements, rights-of-way,
etc., affecting the PrOperty. Purchaser shall give Seller
wrltte~ notice on or before the expiration of ten (10) days after
PurchaSer receives the Commitment that the condltlon of t~tle as
set forth in the Commitment is or is not satisfactory. In the
event, Purchaser states the condition of title is not
satisfactory, Seller shall, at Seller's option, promptly
undertake to eliminate or modify all unacceptable matters to the
reasonable satlsfactlon of Purchaser. In the event Seller
unable to do so within ten (10) days after receipt of written
notice, this Agreement shall thereupon be null and void for all
purposes; otherwise, this condltlon shall be deemed to be
acceptable and any objection thereto shall be deemed to have been
waived for all purposes.
2. Survey. Purchaser may, at Purchaser's sole cost and
expense, obtain a current survey of the Property, prepared by a
duly licensed Texas land surveyor acceptable to Purchaser. The
survey shall be staked on the ground, and shall show the location
of all improvements, highways, streets, roads, railroads, rivers,
creeks, or other water courses, fences, easements, and 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 ten (10) days after receipt of the survey
to review and approve the survey. In the event the survey
unacceptable, then Purchaser shall within the ten (10) day
period, give Seller written notice of this fact. Seller shall,
at Seller's option, promptly undertake to eliminate or modify the
unacceptable portions of the survey to the reasonable
satisfaction of Purchaser. In the event Seller is unable to do
so within ten (10) days after receipt of written notice,
Purchaser may terminate this Agreement, and the Agreement shall
thereupon be null and void for all purposes and the Escrow
Deposit shall be returned by the Title Company to Purchaser.
Purchaser's failure to give Seller this written not~ce shall be
deemedlto be Purchaser's acceptance of the survey.
3. Seller's Compliance. Seller shall have performed, ob-
served, and complied with all of the covenants, agreements, and
conditions reql/lred by this Agreement to be performed, observed,
and complied with by Seller prior to or as of the closing.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as
follows, whlch representations and warranties shall be deemed
AEE008FE PAGE 2
made by Seller to Purchaser also as of the closing date.
1. There are no parties in possession of any portion of the
Property as lessees, tenants at sufferance, trespassers or other
parties.
2. Except for the prior actions of Purchaser, there is no
pending or threatened condemnation or similar proceeding or
assessment or suit, affecting title to the Property, or any part
thereof, nor to the best knowledge and bellef of Seller is any
such proceeding or assessment contemplated by any governmental
authority.
3. Seller has complied w~th all applicable laws, ordinances,
regulations, statutes, rules and restrictions relating to the
Property, or any part thereof.
4. To the best of the seller's knowledge, there are no toxic
or hazardous wastes or materials on or within the Property. Such
tOXiC or hazardous wastes or materials include, but are not
limited to, hazardous materials or wastes as same are defined by
the Resource Conservation and Recovery Act (RCRA), as amended,
and the Comprehensive Envlronmental Response Compensation and
Liability Act (CERCLA), as amended.
CLOSING
The closing shall be held at the office of Dentex Title
Company on or before November 30, 1998, or at such title company,
time, date, and place as Seller and Purchaser may mutually agree
upon (which date is herein referred to as the "closing date").
CLOSING REQUIREMENTS
1. Seller's Requirements. At the closing Seller shall:
A. Deliver to State of Texas, acting by and through the
Texas Transportation Commission a duly executed and
acknowledged Deed in the form as attached hereto as
Exhibit ~B" conveying good and marketable title to all of
the Property, free and clear of any and all liens,
encumbrances, conditions, easements, assessments, and
restrictions, except for the following
1. General real estate taxes for the
year of closing and subsequent years not
yet due and payable;
2. Any exceptions approved by Purchaser
AEE008FE PAGE
pursuant to Purchaser's Obligations here-
of; and
3. Any exceptions approved by Purchaser
in wrltlng.
B. Deliver to Purchaser a Texas Owner's Policy of Title
Insurance at Purchaser's sole expense, issued by Dentex
T~tle Company, Denton, Texas, (the "Title Company"), or
such title company as Seller and Purchaser may mutually
agree upon, in Purchaser's favor in the full amount of
the purchase price, insuring fee simple title for the
State of Texas to the Property sub]ect only to those
title exceptions listed in Closing Requirements hereof,
such other exceptions as may be approved in writing by
Purchaser, and the standard printed exceptions contained
in the usual form of Texas Owner's Policy of Title
Insurance, provided, however.
1. The boundary and survey exceptions
shall be deleted ~f required by Purchaser
and if so required, the costs associated
with same shall be borne by Purchaser,
2. The exception as to restrictive cove-
nants shall be endorsed "None of Record",
3. The exception for taxes shall be
limited to the year of closing and shall
be endorsed "Not Yet Due and Payable";
and
4. The exception as to liens encumbering
the Property shall be endorsed "None of
Record".
C. Deliver to Purchaser possession of the Property on
the day of closing.
2. Purchaser's Requirements. Purchaser shall pay the
consideration as referenced in the "Purchase Price" section of
this contract at Closing in Immediately available funds.
3. Closing Costs. Seller shall pay all taxes assessed by
any tax collection authority through the date of Closing. All
other costs and expenses of closing in consummating the sale and
purchase of the Property not specifically allocated herein shall
be paid by Purchaser and Seller.
AEE008FE PAGE 4
REAL ESTATE COMMISSION
Any real estate commissions occasioned by the consummation of
this Agreement shall be the sole responsibility of Seller, and
Seller agrees to indemnify and hold harmless Purchaser from any
and all claims for these commissions
BREACH BY SELLER
In the event Seller shall fall to fully and timely perform
any of its obligations hereunder or shall fall to consummate the
sale of the Property except Purchaser's default, Purchaser may
either enforce specific performance of this Agreement or
terminate this Agreement by written notice delivered to seller.
BREACH BY PURCHASER
In the event Purchaser should fall to consummate the purchase
of the Property, the condltlons to Purchaser's oblmgat~ons set
forth in PURCHASER'S OBLIGATIONS having been satisfied and
Purchaser being in default Seller may either enforce specific
performance of this Agreement, or terminate this Agreement by
written notice delivered to purchaser.
MISCELLANEOUS
1 Assignment of Agreement. This Agreement may not be
assigned by Purchaser without the express written consent of
Seller.
2. Survival of Covenants. Any of the representations, war-
rantles, covenants, and agreements of the parties, as well as any
rights and benefits of the parties, pertaining to a period of
time following the closing of the transactions contemplated
hereby shall survive the closing and shall not be merged therein.
3. Notice. Any notice required or permitted to be delivered
hereunder shall be deemed received when sent by United States
mall, postage prepaid, certified mall, return receipt requested,
addressed to Seller or Purchaser, as the case may be, at the
addresS set forth beneath the signature of the party.
4. Texas Law to Apply. This Agreement shall be construed
under and in accordance with the laws of the State of Texas, and
all obligations of the parties created hereunder are performable
in Denton County, Texas.
AEE008FE PAGE 5
5. Parties Bound. This Agreement shall be binding upon and
· nure to the benefit of the partles and their respective hears,
executors, administrators, legal representatives, successors and
assigns where permitted by th~s Agreement.
6. Legal Construction. In case any one or more of the pro-
visions contained ~n th~s Agreement shall for any reason be held
to be lnvalld, illegal, or unenforceable in any respect, said in-
validity, ~llegal~ty, or unenforceabll~ty shall not affect any
other provision hereof, and th~s Agreement shall be construed as
if the invalid, illegal, or unenforceable provision had never
been contained herein.
7. Prior A~reements Superseded. Th~s Agreement constitutes
the sole and only agreement of the parties and supersedes any
prior understandings or written or oral agreements between the
part~es respecting the within subject matter.
8. T~me of Essence. T~me is of the essence in th~s
Agreement.
9. Gender. Words of any gender used in this Agreement shall
be held and construed to include any other gender, and words ~n
the s~n~ular nu~er shall be held to ~nclude the plural, and v~ce
versa, unless the context requires otherwise.
10. Memorandum of Contract. Upon request of either party,
both parties shall promptly execute a memorandum of th~s
Agreement suitable for filing of record.
11. Compliance. In accordance w~th the requirements of the
Texas Real Estate L~cense Act, Purchaser ~s hereby advised that
it should be furnished w~th or obtain a policy of t~tle insurance
or Purchaser should have the abstract coverlng the Property
examined by an attorney of Purchaser's own select,on.
12. Time L~m~t. In the event a fully executed copy of th~s
Agreement has not been returned to Purchaser within ten (10) days
after Purchaser executes th~s Agreement and delivers same to Sel-
ler, Purchaser shall have the right to terminate this Agreement
upon written notice to Seller.
AEE008FE PAGE 6
SELLER ~ PURCHASER
THE CITY OF DENTON, TEXAS
D°n R' Swadley ~7~ &/~/~C ~ hy a~la.~.~'/~
2C~y a~nrney
~, ~-z~.. Dent~, Texas 76201
M Swadley ~
STATE OF TE~
CO~TY OF DENTON
~ of
T~s l~tr~ent is acknowledged before me, on this ~day
~, 1998 by Mmchael W. Jez , C~ty Manager, of The City
of Denton, a Munmclpal' ~ 'kno~ to me to be the person
and officer whose n~e ms s~scrmbed to the foregoing ~nstr~ent
and acknowledged to me that the s~e was the act of the sazd C~ty
of Denton, Texas, a municipal corporation, that he was duly
authorzzed to perform the s~e by appropriate ordinance of the
Czty Council of the City of Denton and that he executed the s~e
as the act of the said Czty for purposes and consideration
thereln~ ~expressed' ANN FORS~HEand~ ~n the capac~re~np~S~
~ ~ N~ubl,~.Smte0, Te--s ~ Notary and for
~[*%~]~ MyO~ml.10nE~[res ~ the State of T~xas
M*Y ,2072
STATE OF TEXAS
COUNTY OF DENTON
T~s l~strument is acknowledged before me, on this ./~ ~ day of
Janette Swadley.
~'? , 1998 by Don R. Swadley and M.
~~~ No~q~y Public in and for
the State of Texas
AEE008FE PAGE 7
EXHIBIT 'A' -
County Dentoq Page I of 2
Highway U.S. 77
ProJect Limits: From ~H. 35 Rev November 28, 1994
To U.S. 3So
CSJ ~
Account
FIELD NOTES FOR PARCEL 28
BEING A PARCEL OF LAND SITUATED IN A CALLED 0.707-ACRE TRACT OF LAND CONVEYED TO GRADY R
McEUIN JR AND WIFE, DOROTHEA GALE McEUIN, RECORDED IN VOLUME 947, PAGE 731, DEED RECORDS
OF DENTON COUNTY, TEXAS (DRDCT), BEING A PART OF DONNA DELL ESTATES, LOT 1, BLOCK 'B",
RECORDED IN VOLUME 3, PAGE 2, MAP RECORDS OF DENTON COUNTY, TEXAS (MRDCT), AND BEING
SITUATED IN THE N H. MEISENHEIMER SURVEY, ABSTRACT NO 810, CITY OF DENTON, DENTON COUNTY,
TEXAS, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS.
COMMENCING for reference at a found 1/2-inch iron md for the northeast comer of Lot 3, Block C, of said Donna
Dell Estates, same being s point on the existing west right of way line of Donna Street,
THENCE S 01 o 05' 44" W, along the existing west right of way line of Donna Street, a distance of 613 04 feet
to a point,
THENCE S 01 o 53' 40' W, continuing along the existing west right of way of Donna Street, a distance of
122 18 feet to est 5/8-inch iron rod in the east line of Mid McEuln tract and the new north dght of way line of
U S 77, end the POINT OF BEGINNING,
(1) THENCE S 01 o 53' 40' W, along the east line of said McEum tract and the existing west r.ght
of way line of Donna Street, s dlotanca of 56 42 feet to a found l-inch iron pipe for the
southeast corner of said McEuin tract and being a point on the existing north right of way line of
U.S 77,
(2) THENCE N 58° 19' 20' W, along a line common to said McEum tract and existing north nght of
way line of said U.S 77, s distance of 264 01 feet to a found l-inch iron pipe being the
southwest comer of said McEuin tract,
(3) THENCE N 00° 40' E3' E, along a line oommon to said McEuin tract and said existing north right
of way line of U.S 77, s distance of 32.27 feet s found 5/8-inch iron md being the southeast
comer of a 1.518-ecra tract of land conveyed to Richard C. Scroggins and wlfe~ Sherry L
Scmgglns, recorded in Volume 2964, Page 803, DRDCT, being a part of Donna Doll Estates,
Lot 4R rapist, aa recorded in Cabinet H, Page 339, MRDCT,
(4) THENCE N 00° 49' 48' E, along the west line of said McEuin tract, a distance of 0 75 feet to a
Set 5/8-inch iron rod with an aluminum cap, same being a point on the new north right of way
line of U.S. 77;
(5) THENCE S 58° 11' 36" E, along the new north right of way line of U.S 77, a distance of 205 06
feet to the beginning of s circular curve to the right having s radius of 2924 79 feet;
EXHIBIT
County Denton Page 2 of 2
Highway U.S. 77
Project Umits. From LH. 35 Rev November 28, 1994
To U.S. 380
CSJ ~
Account
FIELD NOTES FOR PARCEL 28
(6) THENCE southeasterly along the new north right of way line of U S 77, and along said curve to
the right, through e delta angle of 00° 31' 31 ', an am distance of 26 82 feet, and hewng a chord
which bears S 57° 55' 50' E, e distance of 26 82 feet to a set 5/8-inch iron rod w~th an
aluminum oep,
(7) THENCE N 76e 24' 31 ' E, along the new north right of way line of U S 77, e distance of 29 95
feet the POINT OF BEGINNING, and containing 0 178 acre, or 7,755 square feet of land, more
or 1088.
John F Wilder, R P.L S Date
Texas No 4285
EXHIBIT "B"
Texas De~amnem of Trxa~m~.on .
Form D-15-14
Pase 1 of 3 Rev 9/91
DEED
~ STA~ OF ~ }
}
CO~ OF } KNOW ALL MEN BY T~E PRESENTS:
of the County of , State of Texas, hereinafter referred to as Grantors, whether
one or more, for and m consideratton of the sum of
Dollars ($ ) to Grantors
m hand paid by the State of Texas, acting by and through the Texas Transportation Comnussion, recel~pt of
wluch Is h~reby acknowledged, and for which n.o hen is retained, either expressed or nnphed, have this
day Sold and by these ~presents do Grant, Bargain, Sell and Convey unto the State of Texas all that certain
tract or p..a~., of land m County, Texas, more pamcularly described m Ex-
iUblt "A,' which ~s attached hereto and incorporated hereto for any and aH pu_,poses
SAVE and EXCEPT, HOWEVER, it ~s expressly understood and agreed that Grantors are retaining
t/fie to the following nnprovements located on the property described m smd Exlublt "A," to wit
Grantors covenant and agree to remove the above-described unpmvements from said land by the
day of ,19 , subject, however, to such extensions of tune as may be granted
by the State m writing, and ~f, for any reason, Orantors fall or refuse to remove same w~thm said period of
tune prescribed, then, without any further considerauon, the title to ail or any part of such unprovements
not so removed shall pass to and vest m the State of Texas forever
Grantors reserve aH of the off, gas and sulphur m and under the land hereto conveyed but waive ail rights
of regress and egress to the surface thereof for the propose of explonng, developing, mmmg or clnllmg for
same, however, nothing m flus reservation shall affect the t~t/e and rights of the State to take and use all
other minerals and matensls thereon, thereto and thereunder
Texas Depamnent of Tnmspo~tion
Ponn D-15-14 '
Pege2of3 Roy 9/91
TO HAVE AND TO HOLD the prenuses hereto described and hereto conveyed together w~h all and
singular the rights and appurtenances thereto tn any wise belonging unto the Stale of Texas and its as?gns
forever, and Grantors do hereby brad ourselves, our hen's, executors, adrrmusuators, successors anct as-
signs to Warrant.and Forever Defend all and singular the stud prem~es hereto conveyed unto the State of
Texas and its assigns against every person whomsoever lawfully clamung or to claun the same or any part
thereof
IN WITNESS WHEREOF, tim mstnunent is executed on th~ the day of
ACKNOWLEDGMENT
THE STATE OF TEXAS, }
COUNTY OF J
BI~OR~ ME, tho undersigned, a Notary Public, on this day persona!fy appeared
, known to me (or proved
to me on the oath of , a ct~hble witness,) to be the person(s) whose
name(s) rs (are) subscribed to the foregoing instrument and acknowledged to me that he/she/they executed the same for the
purposes and conside, n~on theism expressed,
GIVEN UNDER MY HAND AND SEAL OF OFFICE, tans day of ,19
Nota.,y Pubhc, State of Texas
My Commt#toa mqm~ cu tim dayof ,19
CORPORA~ ACKNOWLEDGMENT
THE STATE OF TE~S, J
CO~ OF I
B~O~ ~ ~ un~l~d, · Not~ ~b~c, ~ ~ ~y ~o~!~y ~ed
of , ~OW~ tO
me to ~ ~ ~on ~d o~ ~ ~me ~ ~ to ~ fo~gnmg ~ont ~ a~l~g~ to me ~ ~ ~e
w~ ~ a~ of ~e s~ , a co~omUo~ ~t h~s~ w~
d~y ~ to ~o~ ~ s~e by ~ ~hfl~ of ~ ~ of ~tom of n~ c~on ~ ~
~ ~ ~e ~ ~ a~ of ~ c~ ~ ~ ~ ~d ~ ~ e~ ~d h ~e ~p~
O~ ~ MY ~ ~ S~ ON 0~, ~ ~y of ,19
Notary Pubhc, Smto of T~ta~
My Commismon expil~ on the day of ,19
Texas Depamnont o~ Transpoflation
Form D-15-14
Page$of$ Rev g/gl
After recordfng please return thfs fnstrument to:
CERTIFICATE OF RECORDII~G
THE STATE OF TEXAS, )
COUNTY OF )
EXHIBIT
Coumy Denton Pege 2 of 2
H~ghway ~
Project Umits. From IJ-I. 35 Rev November 28, 1994
To u.s. 3ao
csJ
Account
FIELD NOTES FOR PARCEL 28
(6) THENCE southeasterly along the new north right of way line of U S 77, and along said curve to
the right, through e delta angle of O0° 31' 31 ', an arc distance of 26 82 feet, and hew~q a chord
which beers S 57° 55' 50" E, e distance of 26 82 feet to a set 5/8-inch iron r, v th an
aluminum cap,
(7) THENCE N 76o 24' 31 ' E, along the new north right of way line of U S 77, a distance of 29 99
feet the POINT OF BEGINNING, and conta.nmg 0 178 acre, or 7,755 square feet of land, more
or lee8
John F Wilder, R P L.S. Date
Texas No 4285