2002-380O INANCENO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A REAL ESTATE
AGREEMENT BETWEEN THE CITY OF DENTON AND DALE IRWIN AND CRAIG
IRWIN, RELATING TO THE EXCHANGE OF AN APPROXIMATE 0.3238 ACRE PARCEL
OF LAND BEING A PART OF THE WM. LOVING SURVEY A-759 OWNED BY THE CITY
OF DENTON FOR AN APPROXIMATE 0.2939 ACRE PARCEL OF LAND BEING A PART
OF THE M.E.P. & P. RR. SURVEY A-927 OWNED BY DALE IRWIN AND CRAIG IRWIN,
FOR USE AS RIGHT-OF-WAY REQUIRED FOR FUTURE ROAD IMPROVEMENTS TO
DUCHESS DRIVE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS:
SECTION 1. The City Manager, or his designee is hereby authorized to execute a Real
Estate Agreement between the City and Dale Irwin and Craig Irwin in substantially the form of
the Real Estate Agreement which is attached hereto and made a part of this Ordinance for all
purposes, for the exchange of approximately 0.3238 acre for 0.2939 acre for use as a right-of-
way for future road improvements to Duchess Drive.
SECTION 2. The City Manager is authorized to make the expenditures as set forth in
the attached Real Estate Agreement.
SECTION 3. This ordinance shall become effective immediately upon its passage and
approval.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
REAL ESTATE EXCHANGE AGREEMENT
THIS AGREEMENT is made by and between Dale I/win and Craig Irwin (hereinafter
referred to as "Irwins") and the City of Denton, a home rule municipality located in Denton
County, Texas, (hereinafter referred to as "City"), upon the terms and conditions set forth heroin.
Whereas, the Irwins are the owners of that certain tract or parcel of land in the City of
Denton, Texas which is more particularly described in Exhibit "A" attached hereto and made a
part hereof by reference (the "Irwin Tract") which is needed for street right-of-way; and
Whereas, the City is the owner of that certain tract or pamel of land in the City of Denton,
Texas which is more particularly described in Exhibit "B" attached hereto and made a part hereof
by reference (the "City Tract") which was originally acquired by the City for street fight-of-way
purposes; and
Whereas, the City desires to exchange the City Tract for the Irwin Tract upon the terms
and conditioris contained in this agreement; and
Whereas, in compliance with Chapter 272 of the Texas Local Government Code, based
on an appraisal obtained by the City the fair market value of the Irwin Tract is equal to the fair
market value of the City Tract;
Now, Therefore, for good and valuable consideration, including the covenants contained
herein, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
1) EXCHANGE OF TRACTS.
a)At Closing, and subject to the terms and conditions contained herein, the Irwins shall
convey to the City the Irwin Tract with all rights and appurtenances pertaining to the
Irwin Tract, including any right, title, and interest of the Irwins in and to adjacent streets,
alleys, or rights-of-way, and together with any improvements fixtures, and personal
property situated on and attached to the Irwin Tract (hereinafter called the "Irwin
Property"). The Irwin Property shall be conveyed by a "Street Right-of-Way Deed" in
substantially the same form as the Street Right-of-Way Deed attached hereto and made a
part hereof as Exhibit "C" (the "Irwin Deed"). The Irwins' sole consideration for the
conveyance of the Ir~vin Property to the City is the City's quitclaiming of the City
Property to the Irwins.
b)At Closing, and subject to the terms and conditions contained herein, the City shall
quitclaim all of its right, title and interest to the Irwins in the City Tract with all rights
and appurtenances pertaining to the City Tract, together with any improvements fixtures,
and personal property situated on and attached to the City Tract (hereinafter called the
"City Property"). The City Property shall be granted by a "Quit Claim Deed" in
substantially the same form as the Quit Claim Deed attached hereto and made a part
hereof as Exhibit "D" (the "City Deed"). The City's sole consideration for the
quitclaiming of the City Property to the Irwins is the conveyance of the Irwin Property to
the City.
2) CONDITIONS PRECEDENT TO CLOSING
a)On or before fifteen days after the Effective Date of this agreement, the Irwins at their
expense shall obtain a current commitment hereinafter called the ("Title Conunitment")
for the Irwin Property for the issuance of an Owner's Policy of Title Insurance from the
Title Company, together with legible copies of all documents constituting exceptions to
title as reflected in the Title Commitment.
b)City shall have a period of ten days following the receipt of the Title Commitment, and
legible copies of title exception documents to review such items and to deliver to the
Irwins in writing such objections as the City may have to anything set forth in the Title
Commitment. Any items to which the City does not object within the ten day period
shall 'be deemed to be "Permitted Exceptions". In the event the City timely objects to
any matter in the Title Commitment, the Irwins shall have the right, but not the
obligation, for a period of thirty days to cure any such matters objected to by the City, to
the City's satisfaction. Should the Irwins fail to cure such matters to the satisfaction of
the City, the City in its sole discretion, by a written notice to Irwins within fifteen days
following the expiration of the thirty day period either (a) terminate this agreement and
the parties hereto shall have no further obligation one to the other, or (b) City may waive
any such defects and consummate this agreement with such uncured objections being
deemed additional Permitted Exceptions.
c)The Closing, and the parties' obligations to consummate this agreement, is subject to the
City Property being rezoned from DR-1 to DC-G. It is also subject to the property being
platted to allow construction of a small office building and any applicable variances
issued if required. If the rezoning, platting, and applicable variances are not approved
this agreement will become null and void and of no further effect. Except for the
rezoning, platting, and applicable variances the City Property is being conveyed "AS IS"
and the Irwins will pursue development of the City Property at their own risk and expense
subject to any and all federal, state, and local laws, ordinances, regulations, restrictions,
reservations, or any other stipulations in effect by any jurisdiction. C,~oX~'llx
3) CLOSING
a)The closing shall be held at the office of Reunion Title Compa~, 2925 Country Club
Road, Suit 104, Denton, Texas 76210 on or before March 31, 2003, or within ten days
after the title cure period provided above, which ever occurs first, or at such time, date,
and place as the Irwins and City may mutually agree upon (which is herein referred to as
the "Closing").
2
b)At Closing the Irwins shall deliver the Irwin Deed to the City and the City shall deliver the
City Deed to the Irwins.
c)At Closing the Irwins shall deliver a Title Policy to the City issued by the Title Company
in the amount of $45,000.00, insuring good and indefeasible fee simple title to the Irwin
Property, subject to the standard printed exceptions and subject to such other exceptions
to title that are agreed to by the Irwins and the City as a result of the title cure period.
d)The Irwins and the City agree to pay closing costs as outlined below:
i) The Irwins and the City will bear the cost of any expenses other than those outlined
herein and directly incurred by each, including their own attorney's fees, if any.
ii) The Escrow Fees, Doctunent Preparation Fees, and other related fees charged by the
Title Company to complete this transaction will be shared equally between the
parties.
iii) A'll Costs to obtain, deliver, and record releases of all liens to be released at closing, if
any, will be shared equally between the parties.
iv) All costs to obtain, deliver, and record all documents to cure title objections, as set
forth above will be shared equally between the parties.
v) All costs to obtain and deliver reports or certificates of ad valorem taxes will be
shared equally between the parties.
vi) The cost of the Restricted Appraisal Report to determine the fair market value of the
properties will be shared equally between the parties. The invoice from the Appraiser
for these services shall be included in the settlement statements and paid by the Title
Company at Closing. The total amount due for these services is Six Hundred Dollars
and No Cents ($600.°°).
vii)Ad valorem taxes for the Irwin Property shall be prorated as of the date of closing.
The tax rates and values shall be based upon the most current tax appraisal and rates
available. In the event that additional taxes are due and owning as a result of a new
tax appraisal or rates, the Irwins agree to pay the City additional sums due within
Thirty (30) days of being billed for same. The City shall provide and pay for current
tax certificates upon which the adjustments for taxes shall be based. This section
shall survive the closing of this agreement.
4) REAL ESTATE COMMISSION
The Irwins and the City represent and warrant to each other that neither has retained a broker for
this transaction and that there are no broker or real estate fees due as a result of the
consummation of this contract.
5) BREACH
If the Irwins fail to fully and timely perform any of their obligations under this agreement or fails
to consummate the exchange of the properties for any reason, except the City's default, City may
enforce specific performance of this agreement, as its sole and exclusive remedy under this
agreement. If the City fails to fully and timely perform any of its obligations under this
agreement or fails to consummate the exchange of the properties for any reason, except the
Irwins' default, the Irwins may enforce specific performance of this agreement, as its sole and
exclusive remedy under this agreement.
6) MISCELLANEOUS
i) Assignment of Agreement. This agreement may not be assigned without the written
consent of the other party.
ii)
Survival of Covenants. Any of the representations, warranties, 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.
iii)
Sole Agreement. This agreement constitutes the sole and only agreement of the
parties and supersedes any prior understandings or written or oral agreements between
the parties respecting the within subject matter.
iv) __
Notice. Any notice required or permitted to be delivered hereunder shall be deemed
received when sent by United States mail, postage prepaid, certified mail, return
receipt requested, addressed to the Irwins or City, as the case may be, at the address
set forth below or when sent via fax to the fax number set forth below.
To Irwins:
Dale Irwin
525 South Carroll
Suite 100
Denton, Texas 76201
To City:
City Attorney
City Hall
215 E. McKirmey
Denton, Texas 76201
Fax No. 940.382.7923
v) Texas Law to Apply. This Agreement shall be construed under and in accordance
4
with the laws of the State of Texas. All obligations of the parties created hereunder
are fully performable in Denton County, Texas.
vi) Parties Bound. This agreement shall be binding upon and inure to the benefit of the
parties and their respective heirs, executors, administrators, legal representatives,
successors and assigns where permitted by this agreement.
vii)Legal Construction. In case any one or more of the provisions contained in this
agreement shall for any reason be held to be invalid, illegal, or unenforceable in any
respect, said invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this agreement shall be construed as if the invalid, illegal, or
unenforceable provision had never been contained herein.
viii)Time of Essence. Time is of the essence in this agreement.
ix) __
Gender. Words of any gender used in this agreement shall be held and construed to
include any other gender, and words in the singular number shall be held to include
the plural, and vice versa, unless the context requires otherwise.
x) Memorandum of Contract. Upon request of either party, both parties shall promptly
execute a memorandum of this Agreement suitable for filing of record.
xi)
Compliance. In accordance with the requirements of the Texas Real Estate License
Act, each party advises the other that it should obtain a policy of title insurance or
have the abstract covering the property examined by an attorney of its own selection.
xii)Effective Date. The term "Effective Date" means the latter of the dates on which this
agreement is signed by either the Irwins or the City, as indicated by their signature
below. If the last party to execute this agreement fails to complete the date of
execution below that party's signature, the date the Title Company acknowledges
receipt of a copy of this fully executed contract is the Effective Date.
IN WITNESS.,...)WH~arties have executed this agreement as follows:
Date:
Dale Irwin
ge ~-~ - Date:
Craig I~in
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
CITY O
Michael ,~. C~o u~'~ g
Date:
TITLE COMPANY ACCEPTANCE AND ACKNOWLEDGEMENT
The Title Company acknowledges receipt of the fully executed Agreement on [~ day of__
[{Off, ,2002.
TITLE COMPANY:
Name: Texas Title Company
Address: 2215 South Loop 288
Denton, Texas 76205
Telephone: 940-382-8251
By: ~3. [ ~'~.~..~~'
Printed Name:
Title:
DENTON
EXHIBIT A
1OF 2
lEGAl DE$£RIPTIOIV for the
DUCtlESS DRIVE
Right.of-Way Expansion
Denton, Denton County, Texas
Being ali that certain tract, parcel or str/# of/and out of the M.E.P. & P. BR. Survey A.927 in the City of Denton
Records, Benton County, Texas and a port/on of that tract described by deed recorded at County Clerks' £//e /VD. £5.
Rf185Ei4,~, Rea/Property Records, Denton County, Texas and more particularly described as fo/lows:
BEEItIIIVI/IB et a one-half inch iron rod found at the south corner of J.B. ADDfflO/I, an add/t/on to the City of Denton,
Denton County, Texas according to the p/at thereof recorded in Cab/net "~ '; Si/de !£1, Plat £ecord$ Denton County, Texas
and in the northwest center#ne of Duchess Drive, said iron rod being I£L5 feet, $ 28 °§7' W from a one-barf inch iron rod
found in the southwest line of East Mc/(/nney Street and the east corner of the said J.B. ADBfflO~I;
THE/lEE: with the said northwest//ne of PEBBLE BROOK ADB/T/OIl, S 31 °££' 37" ~, a d/stance of 433.81 feet to a
three-fourths inch iron rod found for the south corner of the tract described by deed recorded at County Clerks file 95-
ROOSO144 and the east corner of the tract described by deed recorded in Volume 3373, Page 10, Deed Records, Denton
County, Texas;
THENCE: w/th the said common//ne, N 37 °12' 40" ~ e d/stance of 32.31 feet to a f/ve-e/#hts inch iron rod set for a
corflDf;
THENCE: N 3! °§0'37''E, a distance of 41g. E3 feet to a five-eights inch iron rod set for comer at the south corner of lot
l, Block L J.B. ADD/T/Oil;
T/tE/V£E: with the southwest line of the said additmn; S ~2 47 53 E, a d/stonce of 30.07 feet to the P/ace of Beginning
and containing §.2£3E acres of/and more or/ess es surveyed by john na//jr rp/s #~$7g during the month of April 20§2.
Corners set and/or found are/dent/f/ed.
ISeu survey sl~etch jn/L.OO2$)
"Dedicated to Quality Service"
www. cityofdenton.com
DENTON
EXHIBIT B
1OF 2
lEGAl DESCRIPTION for a
0.3238 acre tract out of the
Wm. LOVING SURVEYA.789
Denton, Denton County, Texas
Being ail that certain tract, parcel or lot of/and out of the Wm. LOVING SORV£Y A-789 in the City of Denton, Denton
County, Texas that is the east remainder parcels out of tracts described by deeds recorded in Volume 5£5, Page/28,
Volume 775, Page 02 and Volume 7S£, Page 873, Deed Records, Denton County, Texas and more particularly described as
follows:
R£G/NN/NO at a five.eights inch iron and found for the southwest corner of Lot l, 8lock A, CARROLL PAR/( PLACE
TWO, an addition to the City of Denton, Denton County, Texas accord/nE to the p/at thereof recorded in Cah/net /, Si/de
~4£, P/at Records Denton County, Texas and further heine in the east right-of-way//ne of CarrolI Bou/evard;
THENCE: leaving the said east right.of-way//ne of Carroll Boulevard and with the south//ne of Lot L 8iDek A, CARROLL
PAR/( PIACE TWO, N 89°/9'21"£ a d/stance of 2£.48 feet to an angle po/nC
THENCE: continuing with the said south//ne of lot L Block A, N 88° [0' 02" E; passing the southeast corner of the said
lot at 45. !8 feet; in ail e d/stance of 55. ~ £ feet to a five-eights inch iron red set for corner in the west//ne of Pacific;
THENCE: with the west line of Pacific, S 0/° 38' 45'E, a d/stance of 200.00 feet to a five eights inch iron rod set for
corner in the north//ne of the tract #ascribed by deed recorded in Volume 766, Page 783, £ee# Records of Denton County,
Texas;
THENCE: with the said//ne, S 88° 37' 4/, W, a distance of 00.08 feet to a five-eights inch iron rod set for corner in the
east right-of-way//ne of Carroll 8ou/evar# an#in e tangent curve to the/eft baying a central angle of 05° 81' 33~ a radius
of 1971.62 feet, end whose center bears S 84°18'14' W;
THENCE: with the said right-of-way curve, an arc #istance of 201.62 feet to the P/ace of Beginning and contain/nE 0.3238
acres of/anti more or/ess as surveyed hyjohn na//jr rp/s # !970 during the month of June 2002. Corners set end/or found
are identified.
(See attached survay sketch je~S.O0§5/
"Dedicated to Quality Service"
www. cityofdenton.com
· MAPLE DRIVE
EXHIBIT B
2 OF 2
~~ \\\'°" I
~ N88°10'O2"E 55.19'
N89°19'21"E 29.48"
05°5153"
= 1971.62'
=201.62'
0
0
0.3238 Ac.
60.06'[
I
EAGLE DRIVE
EXHIBIT "C"
THE IRWIN DEED
STREET RIGHT-OF-WAY DEED
STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS:
THAT Dale Irwin and Craig Irwin, hereinafter called "Grantors," for and in
consideration of the sum of TEN DOLLARS ($10.00) and other good and valuable
consideration to Grantor in hand paid by the CITY OF DENTON, TEXAS, a home rule
municipal corporation, hereinafter called "Grantee," the receipt and sufficiency of which is
hereby acknowledged, and for which no lien is retained, express or implied, do hereby GRANT,
BARGAIN, SELL and CONVEY unto the Grantee all of that certain tract or parcel of land
containing approximately 0.3238 acre of land, siB. tated in the City of Denton, Denton County,
Texas, as more particularly described in Exhibit "A" and as illustrated in Exhibit "B", both of
which are attached hereto and made a part hereof for all purposes, together with all
improvements situated thereon and all singularly the rights and appurtenances thereto and any
and all right, title and interest of Grantors in and to any adjacent streets, alleys or rights-of-way,
hereinafter collectively called the "Property."
It is acknowledged and agreed that Grantee is acquiring the Property for the purpose of
permitting Grantee or its agents or assigns to construct, maintain, repair and operate thereon
street, highway, right-of-way, drainage improvements, utilities and other related improvements.
This provision shall not be construed as any restraint on the right of Grantee to convey fee simple
title to the Property. Grantor represents and warrants that the consideration paid by Grantee for
this conveyance constitutes full and final compensation for the property interests conveyed to
Grantee hereunder, including without limitation, the right or claim to severance damages, or any
damages to, or diminution in value of, other lands belonging to Grantors, that may be claimed or
asserted by virtue of such acquisition of the Property by Grantee. Notwithstanding the area and
shape of the Property, this Deed shall be construed as conveying all rights and appurtenances
incident to any ordinary conveyance of land.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto said Grantee, its successors and
assigns, forever. Grantors do hereby bind Grantors and Grantor's heirs, successors, executors
and assigns, to warrant and forever defend, all and singular the Property unto the Grantee and
Grantee's successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through, or under Grantors, but not otherwise.
SIGNED this __ day of
.,2002.
Dale Irwin
Craig Irwin
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me this __
,2002, by Dale Irwin.
day of
Notary Public, State of Tennessee
Print Name:
My commission expires
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF DENTON §
This instrument was acknowledged before me this __
,2002, by Craig Irwin.
day of
Notary Public, State of Tennessee
Print Name:
My commission expires
10
EXHIBIT "D"
THE CITY DEED
QUIT CLAIM DEED
THE STATE OF TEXAS §
COUNTY OF DENTON §
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Denton, Texas, a municipal corporation of the County of Denton, State
of Texas (the "Grantor"), in consideration of the sum of Ten Dollars and No Cents ($10.00) and
other good and valuable consideration in hand paid by the Dale Irwin and Craig Irwin of the
County of Denton, State of Texas (the "Grantee"), the receipt of which is hereby acknowledged,
does by these presents, QUIT CLAIM unto Grantee, its successors and assigns, all its right title
and interest in and to that certain tract or parcel of land lying .in the City of Denton, County of
Denton and State of Texas, described in Exhibit "A" and illustrated in Exhibit "B" attached
hereto and made a part by reference (called the "Property").
TO HAVE AND TO HOLD all of Grantor's right, title and interest in and to the Property
unto the Grantee, its successors and assigns forever, so that neither Grantor nor its successors or
assigns shall have, claim or demand any right or title to the Property or appurtenances or any part
thereof.
Witness my hand, this the day of
,2002.
CITY OF DENTON, TEXAS
By:
Michael A. Conduff
City Manager
THE STATE OF TEXAS
COUNTY OF DENTON
ACKNOWLEDGMENT
This instrument was acknowledged before me on
Michael A. Conduff, City Manager, City of Denton.
,2002 by
Notary Public, in and for the State of Texas.
My Commission Expires:
ll