Loading...
2002-188S:\Our Documents\Ordinances\02\Condemnation Ordinance Parcel 6.doc AN ORDINANCE DECLARING A PUBLIC NECESSITY EXISTS AND FINDING THAT PUBLIC WELFARE AND CONVENIENCE REQUIRES THE TAKING AND ACQUIRING OF AN APPROXIMATE 0.352 ACRE TRACT OR PARCEL OF LAND IN FEE SIMPLE FOR STREET PURPOSES SUCH TITLE TO BE IN THE NAME OF THE CITY OF DENTON AND SAID PROPERTY BEING LOCATED IN THE ELI PICKETT SURVEY, ABSTRACT NO. 1018 IN THE CITY OF DENTON, DENTON COUNTY TEXAS AND BEING A PORTION OF A TRACT OF LAND CONVEYED TO THE MLM FAMII.y TRUST BY DEED RECORDED UNDER COUNTY CLERK'S FILE NUMBER 96-0059630, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO MAKE AN OFFER TO PURCHASE THE PROPERTY FOR ITS FAIR MARKET VALUE AND 1F SUCH OFFER IS REFUSED, AUTHORIZING THE CITY ATTORNEY, OR HIS DESIGNEE, TO INSTITUTE THE NECESSARY PROCEEDINGS IN CONDEMNATION IN ORDER TO ACQUIRE THE PROPERTY NECESSARY FOR THE PUBLIC PURPOSE OF CONSTRUCTING STREET, DRAINAGE, UTILITY AND RELATED IMPROVEMENTS; AND DECLARING AN EFFECTIVE DATE. WHEREAS, it is hereby determined that a public necessity exists and that public welfare and convenience hereby require the acquisition of fee simple title for street purposes, with such fee simple title vesting in the City of Denton in the hereinafter described land for the public purpose of constructing street, drainage, utility and related improvements; and WHEREAS, the hereinafter described property is believed to be owned by MLM Family Trust ("Owner"); NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. Public necessity exists and public welfare and convenience require the acquisition of the following: fee simple title for street purposes, with such fee simple title vesting in the City of Denton in that certain tract or parcel of land containing approximately 0.352 acre, together with improvements thereon and appurtenances thereto as more particularly described in Exhibit "A" and illustrated in Exhibit "B", attached hereto and made a part hereof by reference (the "Right-of-Way Property"). SECTION 2. The City Council finds that there is a public necessity and public need to acquire Property in the size, scope, width, and dimensions of the Property and for the purposes stated in this ordinance. SECTION 3. The City Manager or his designee is hereby authorized and directed to make an offer for the Property in the amount of the fair market value, including damages to the remainder, if any, as determined by an independent appraisal obtained by the City. SECTION 4. In the event the offer as described in Section 3 is refused by the Owner of the Property, the City Attorney or his designee is hereby authorized and directed to file the necessary condemnation proceedings or suit and take whatever action that may be necessary against the Owner and any other parties having an interest in the Property to acquire fee simple title for street purposes in the Property, with such fee simple title vesting in the City of Denton. SECTION 5. If it should be subsequently determined that additional parties other than those named herein have an interest in said property, then in that event, the City Attorney or his designee is authorized and directed to join said parties as Defendants in said condemnation. SECTION 6. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the /~ day of ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY BY: ~~ Page 2 EXtHRIT A RIGHT-OF-WAY ACQUISITION PARCEL 6 : · · BEING a .trip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under county clerk's file number 96-0059630, Real Property Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at the southeast comer of said MLM Tract, also being the southwest comer of Parcel 2, Conveyance Plat Lexington Park South, recorded in Cabinet S, Page 299, Plat Records of Dunton County, Texas, said point being in Hickory Creek Road; THENCE S 89052'43'' W, a distance of 306.91 feet to the southwest comer of said MLM Tract; THENCE N 0009'54'' W, passing a found 1/2 inch iron md at 37.22 feet, in all a distance of 49.92 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of- way line of Hickory Creek Road; THENCE N 89°51'30'' B, with said line, a distance of 306.91 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said MLM Tract and said Parcel 2; THENCE S 0009'54" E, with said line, passing a found 1/2 inch iron rod at 12.52 feet, in all a distance of 50.02 feet to the Point of Be~nning and containing 0.352 acre of land of which 0.263 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.089 acre of land more or less. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). See F~xhih~B ....... EXh,ibit B MAp sHOWING PROPOSED RIGHT-OF'WAY ACOUI$fTION City,of Denton, Denton County, TexOs CITY OF'OENTON ~ 4847, I~ 345~ AL ~IV £. M£REOITM I 0 200 40O ~00 Oote: iI Denton County Cynthia Mitchell County Clerk Denton, TX 76202 Instrument Number: 2003-2075t7 As Recorded On: December 30, 2003 Deed Parties: MLM FAMILY TRUST OF DALLAS COUNTY To Billable Pages: 7 Number of Pages: 7 Comment: Deed Total Recording: 26.00 26.00 ** Examined and Charged as Follows: ** ************ THiS PAGE IS PART OF THE INSTRUMENT ************ Any provision herein which restrict~ the Sale, Renta~ or use of the described REAL PROPERTY because of color or race is invalid and unenforceable under federal law. File Information: Document Number: 2003-207517 Receipt Number: 77633 Recorded Date/Time: December 30, 2003 02:24P User/Station: B Smithers - Cash Station 3 Record and Return To: CITY OF DENTON 601 E HICKORY STE B DENTON TX 76205 THE STATE OF TEXAS } COUNTY OF DENTON } I hereby cerd fy that this Instrument was FILED In the File Number sequence on the date/time printed heron, and was duly RECORDED In the Official Records of Denton County, Texas. County Clerk Denton County, Texas STREET RIGHT-OF-WAY DEED STATE OF TEXAS COUNTY OF DENTON KNOW A~L MEN BY THESE PRESENTS: THAT the MLM Family Trust, of Dallas County, Texas, hereinafter called '~Grantor" whether one or more, 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 municipal corporation, which is located in Denton County, Texas, and whose mailing address is 215 E. McKinney, Denton, Texas 76201, hereinafter called ~Grantee", the receipt and sufficiency of which is hereby acknowledged, and for which no lien is retained, expressed or implied, does GRANT, GIVE and CONVEY unto the Grantee all of that certain tract or parcel of land, owned by Grantor and situated in Denton County, Texas, in the Eli Pickett Survey, Abstract No. 1018, and being 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 Grantor in and to any adjacent streets, alleys or rights-of-way, hereinafter collectively called the ~Property." It is further 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 hereby waives S:\Real Est\Projects\ROW Shared\Projects\Hickory Creek Road I~prov~ment Project\Parcel 6 MLM Family Trust\MLM ROW Deed.doc any and all right for 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 Grantor, 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. Grantor reserves all oil, gas, and other minerals in and under the Property; provided the Grantor shall have no right to enter Property to explore for, produce, extract or mine such minerals. 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. Grantor does hereby bind Grantor 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 or under to claim the same or any part thereof, by, through, Grantor, but not otherwise. EXECUTED this~ ~. day of ~, 2003. ~ne McD~niel- -~ Trustee ? S:\Real Est\Projects\ROW Shared\Pro~ects\Hickory Creek Road Improvement Project\Parcel 6 MLM AC~OWLEDGMENT STATE OF TEXAS COUNTY OF DENTON This instrument was acknowledged before me this ~ day of ~~ , 2003, by Lane McDaniel, Trustee, for the MLM Family Trust, on behalf of said trust. Notary Public, State of Texas My commission e~ires ~'l~-~-r~ Accepted this ~O~ day of 2003 for the City of Denton, Texas (Resolution No. 91-073). Paul Williamson Manager, Real Estate and Capital Support S: \Real Est\Projects\ROW Shared\Projects\Hickory Creek Road Improvement Project\Parcel 6 MLM Family Trust\MLM ROW Deed.doc EXHIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 6 BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion ora tract &land conveyed to the MLM Family Trust by deed recorded under county clerk's file number 96-0059630, Real Property Records of Denton County, Texas, said strip of land being more particularly described by metes and bounds as follows: BEGINNING at the southeast comer of said MLM Tract, also being the southwest comer of Parcel 2, Conveyance Plat Lexington Park South, recorded in Cabinet S, Page 299, Plat Records of Denton County, Texas, said point being in Hickory Creek Road; THENCE S 89052'43" W, a distance of 306.91 feet to the southwest comer of said MLM Tract; THENCE N 0009'54'' W, passing a found 1/2 inch iron rod at 37.22 feet, in ail a distance of 49.92 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of- way line of Hickory Creek Road; THENCE N 89051'30'' E, with said line, a distance of 306.91 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said MLM Tract and said Parcel 2; THENCE S 0009'54'' E, with said line, passing a found 1/2 inch iron rod at 12.52 feet, in all a distance of 50.02 feet to the Point of Beginning and containing 0.352 acre of land of which 0.263 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.089 acre of land more or less. Bearings are based the Texas State Coordinate System, North Central Zone (NAD 83). See Exhibit B for map. .... AP SHOWING PROPOSE[, RIGHr-OF-~A Y ACOUI$1rlON City of Denton, Denton Count~ Texas' r PARCEL M. LAU CAB. P, PG. 75 PHA~ II I CC ~ 96-00~96J0 i PARCEL 2 CAB. S, P~ 274 ~ R.P.R.D.C.~ --;~-- ~i~ ~ ~ : PARCEL 6 ',~X/NGTm PARK SOUm .... [~ ~ ~ ~ GEORGE ~ CONNELL, JR. . o.~¢~sr~oeo, ~ CAB. S. PG. 299, P.R.D.C[ ~ CITY OF DENTON 33/ __ GARY JAY MADRIGAL , . I ~. 429, PG. 4~ (LEGAL DESC.-REK DEED,) '~ CAB. S, PC 24t, P.R.D.C.Z .~ ALaN E. MEREDI~ ET i. Beorlng~ a~e based on the Texas Stole Coordinate ~ ~L. 829, PG, 474, D.R.D.C.~ 2. Integral parts of this surve~ ~' EXHIBIT B " PARCEL 6 o 2oo ~oo 6oo ~ Fort Worth, Texa~ 76 fO2 Dote: TEXAS OWNER POLZCY OF i z i LE ZNSURANCE SCHEDULE A Issued simultar~eous with Policy No. NONE Polic No. 0 47354 GF No. TXO3-201835-FVV06 Amount of Insurance $5,850.00 Premium $254.00 DATE OF POLICY 12/30/2003 at PM 1. Name of Insured: City of Denton, Texas 2. The estate or interest in the land that is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is insured as vested in: City of Denton, Texas 4. The land referred to in this policy is described as follows: BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under County Clerk's File Number 96-R0059630, Real Property Records of Denton County, Texas, said strip, said strip of land being more particularly described by metes and bounds as follows'. BEGINNING at the southeast corner of said MLM tract, also being the southwest corner of Parcel 2, Conveyance Plat Lexington Park South, recorded in Cabinet S, Page 299, Plat Records of Denton County, Texas, said point being in Hickory Creek Road; THENCE South 89 degrees 52 minutes 43 seconds West, a distance of 306.91 feet to the southwest corner of said MLM Tract; THENCE North 00 degrees 09 minutes 54 seconds West, passing a found 1/2-inch iron rod at 37.22 feet, in all a distance of 49.92 feet to a 5/8-inch capped iron rod (TNP) set on the proposed new north right- of-way line of Hickory Creek Road; THENCE North 89 degrees 51 minutes 30 seconds East, with said line, a distance of 306.91 feet to a 5/8- inch capped iron rod (TNP) set on the common line between said NLM Tract and said Parcel 2; THENCE South 00 degrees 09 minutes 54 seconds East, with said line, passing a found 1/2-inch iron red at 12.52 feet, in all a distance of 50.02 feet to the POINT OF BEGiNNiNG and containing 0.352 acre of land of which 0.263 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.089 acre of land, more or less. First American Title Insurance Company Texas Owner T-1 (Rev. 12-30-99) First American Title Insurance Company Valid Only if Schedule A, B and Cover are attached SCHEDULE B GF No. TX03-201835-FW06 Policy No. 0 47354 This policy does not insure against loss or damage (and the Company will not pay costs, attorney's fees or expenses) that arise by reason of the terms and conditions of the leases or easements insured, if any, shown in Schedule A and the following matters: The following restrictive covenants of record itemized below (the Company must either insert specific recording data or delete this exception): See Item 6(a) below. Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping of improvements. 3. Homestead or community property or survivorship rights, if any, of any spouse of any insured. o Any titles or rights asserted by anyone, including but not limited to, persons, the public, corporations, governments or other entities, to tidelands, or land comprising the shores or beds of navigable or perennial rivers and streams, lakes, bays, gulfs, or oceans, or to lands beyond the line of the harbor or bulkhead lines as established or changed by any government, or c. to filled-in lands, or artificial islands, or d. to statutory water rights, including riparian rights, or to the area extending from the line of mean Iow tide to the line of vegetation or the right of access to that area or easement along and across that area. Standby fees, taxes and assessments by any taxing authority for the year 2004, and subsequent years, and subsequent taxes and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or assessments for prior years because of an exemption granted to a previous owner of the property under Section 11.13, Texas Tax£ode, or because of improvements not assessed for a previous tax year. The following matters and all terms of the documents creating or offering evidence of the matters (the Company must insert matters or delete this exception): Item No. 1, Schedule B, is hereby deleted. Visible and apparent easements on or across property described in Schedule A. Rights of Parties in Possession. First American Title Znsurance Company Texas Owner T-1 (Rev. 12-30-99) First American Title Insurance Company Valid Only if Schedule A, B and Cover are attached do Easement: To: Recorded: Purpose: Location: Texas Power and Light Company February 1, 1937 in Volume 267, Page 353, of the Deed records, of Denton County, Texas. Oil, Gas and Mineral Lease, and all terms, conditions and stipulations therein: Recorded: August 15, 2002 in Volume 5150, Page 1530, of the Real Property records, of Denton County, Texas. Lessor: NLM Family Trust, Nominee Lessee: NationsGas Partners, L. L. C. Title to said interest has not been investigated subsequent to the date of the aforesaid instrument. First American Title Znsurance Company Authorized Countersignature (/ad22) First American Title Znsurance Company Texas Owner T-! (Rev. 12-30-99) First American Title Insurance Company Valid Only if Schedule A, B and Cover are aU~ched 047354 OWNER POLZCY OF TZTLE ZNSURANCE Issued by First American Title insurance Company SUB]ECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, FIRST AMERICAN TITLE iNSURANCE COMPANY, a California corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the Amount of Insurance stated in Schedule A, sustained or incurred by the insured by reason of: 1. Title to the estate or ~nterest~descrlbed in Schedule A being ve~ted~oth,erthan as stated therein; 2. Any defect in or lien~J 3. Any statuto~ li~h~for labor or material haviRg its inception on or Lack of a rigl . ~.,.,, Lack of good and indefeasible title. The Company also will pay title, as insured, but only to the extent provided in the IN WITNESS HEREOF, the FIRST AMERICAN~TITFE"INSURA'_/~I;E COHPANY has caused this policy to be executed by its President under the seal of the Company, but this polic-~'i'~-t6tb6'~'alid only when it bears an authorized countersignature, as of the date set forth in Schedule A. Flrst z[meHcan Title Insurance Company FORH T-1 CA: OWNER POLICY OF TITLE INSURANCE (4-4-02) Page 1 of 5 EXCLUSIONS FRON COVERAGE The following matters are expressiy excluded from the coverage of this policy and the Company will not pay loss or damage, ces~, attorneys' fees or expenses which adse by reason of: 1. (a) Any lawt ordinance or governmental regulation (including but not limited to building and zoning laws, ordinances, or regulations) restri~ng, regulating, prohibiting or relating to (0 the oecupancy~ ase, or enjoyment of the land; (ii) the character, dimensions or location of any improvement now or hereafter erected on the land; (iii) a separation in ownership or a change in the dimensions or area of the land or any parcel of which the land is or was a part; or (iv) environmental proteddon, or the effect of any violation of these laws, ordinances or govemmentol regulations, except to the extent that a notice of the enforcement thereof or a notice of a defect, lien or encumbrance resulting from a violation or alleged violation affe~Ydng the land has been recorded in the public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent thet a notice of the exercise thereof or a notice of a defect, lien or encumbrance resulting fi'om a violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Data of Policy, but not excluding from coverage any taking that has occurred pdor to Date of Policy which would be binding on the dghts of a purchaser for value without knowledge. 3. Defects, liens, encumbrances, adverse claims or other matters: (a) created, suffered, assumed or egreed to by the insured claimant; (b) not known to the Company, not recorded in the public records at Data of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Data of Policy; (e) resulting in loss or damage that would not have been sustained if the insured claimant had paid value for the estate or intarest insured by this policy. 4. The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule A because of unmarketability of the title. 5. Any claim which arises out of the transaction vesting in the person named in paragraph 3 of Schedule A the estate or intarest insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or other state or federal creditors' rights laws that is based on either (i) the transection creating the estate or interest Insured by this Policy being deemed a fraudulent conveyance or fraudulent transfer or a voidable distribution or voidable dividend, (ii) the subordination or recharacterization of the estate or intarest insured by this Policy as a result of the application of the doctrine of equitable subordination or (iii) the transection creating the estate or intamst insured by this Policy being deemed a preferential transfer except where the preferential transfer results from the failure of the Company or its issuing agent to timely file for record the instrument of transfer to the insured after delivery or the failure of such recordation to impart notice to a purchaser for value or a judgment or lien creditor. COND~r~ONS AND ~'r~PULAI'[ONS 1. DEF'[NTTZON OF TERNS. The following terms when used in this policy mean: (a) ~insured": the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the intarest of the named insured by operation of law as distinguished from purchase including, but not limited to, heirs, distributoes, devisees, survivors, personal representatives, next of kin, or corporate, partnership or fiducia~ successors, and spedfically, without limitation, the following: (i) the successors in intarest to a corporation, limitad liability company or limited liability partnership resulting from merger or consolidation or conversion or the distribution of the assets of the corporation or limitad liability company or limited liability partnership upon partial or complete liquidation; (ii) the successors in interest to a general or limited partnership or limited liability company or limited liability partnership which dissolves but does not terminate; (iii) the successors in interest to a general or limited partnership resulting from the distribution of the assets of the general or limited partnership upon partial or complete liquidation; (iv) the successors in intarest to a joint venture resulting from the distribution of the assets of the joint ventore upon partial or complete liquidation; (v) the successor or substituta trustee(s) of a trustee named in a written trust instrument; or (vi) the successors in interest to a trustee or bust resulting from the distribution of all or part of the assets of the trust to the beneficiaries thereof. (b) "insured claimant": an iesumd claiming loss or damage. (c) "knowledge" or "known": actual knowledge, not constructive knowledge or notice that may be imputed to an insured by reason of the public records as defined in this policy or any other records which impart construclJve notice of matters affecting the land. (d) "land": the land described or mi=erred to in Schedule A, and improvements affixed thereto that by law constitute real properly. The term "land" dces not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage": mortgage, deed of trust, trust deed, or other security instrument. (f~ "public records": records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge. With respect to Section l(a)(iv) of the Exclusions From Coverage, "public records" also shall include environmental protection liens filed in the records of the clerk of the United States district court for the district in which the land is located. (g) "access": legai dght of access to the land and not the physical condition of access. Tne coverage provided as to access does not assure the adequacy of access for the use intended. 2. CONTINUATION OF iNSURANCE AFTER CONVEYANCE OF TITLE. The coverage of this policy shall continue in force as of Date of Policy in favor of an insured only so long as the insured retains an estate or interest in FORM T-1 CA: OWNER POLICY OF TTFLE INSURANCE (4-4-02) Page 2 of 5 the land, or hoJ~s an indebtedness secured by a purchase money mortgage given by a purchaser from the insured, or only so long as the insured shall have liability by mason of covenants of warranty made by the insured in any transfer or conveyance of the estate or interest. This policy shall not continue in force in favor of any purchaser from the insured of either (i) an estate or interest in the land, or (ii) an indebtedness secured by a purchase money mortgage given to the insumcl. 3. NOT[CE OF C!_A[M TO BE G]VEN BY INSURED CLAIMANT. The insured shall notify the Company promptly in wdting (i) in case of any litigation as set forth in Section 4(a) below, or (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest that is adverse to the title to the estate or interest, as insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy. If prompt notice shall not be given to the Company, then as to the insured all liability of the Company shall terminate with regard to the ma~er or matters for which prompt notice is required; provided, however, that failure to notify the Company shall in no case prejudice the rights of any insured under this policy unless the Company shall be prejudiced by the failure and then only to the extent of the prejudice. When, after the date of the policy, the insured notifies the Company as required herein of a lien, encumbrance, adverse claim or other def~ct in title to the estate or interest in the land insured by this policy that is not excluded or excepted from the coverage of this policy, the Company shall promptly investigate the charge to determine whether the lien, encumbrance, adverse claim or defect is valid and not barred by law or statute. The Company shall notify the insured in writing, within a reasonable time, of its determination as to the validity or invalidity of the insured's claim or charge under the policy. If the Company concludes that the lien, encumbrance, adverse claim or defect is not covered by this policy, or was otherwise addressed in the closing of the transaction in connection with which this policy was issued, the Company shall specifically advise the insured of the reasons for its determination. If the Company concludes that the lien, encumbrance, adverse claim or defec~ is valid, the Company shall take one of the following actions: (i) institute the necessary proceedings to clear the lien, encumbrance, adveme claim or defect from the title to the estate as insu~d; (ii) indemnify the insured as provided in this policy; (iii) upon payment of appropriate premium and charges therefor, issue to the insured claimant or to a subsequent owner, mortgagee or holder of the estate or interest in the land insured by this policy, a policy of title insurance without exception for the lien, encumbrenca, adverse claim or defect, said policy to be in an amount equal to the current value of the property or, if a mortgagee policy, the amount of the loan; (iv) indemnify another title insurance company in connection with its issuance of a policy(les) of title insurance without exception for the lien, encumbrance, adverse claim or defect; (v) secure a release or other document discharging the lien, encumbrance, adverse claim or defect; or (vi) undertake a combination of (i) through (v) herein. 4. DEFENSE AND PROSECUTION OF ACT'[ONS: DUTY OF INSURED C!_A[MANT TO COOPERATE. (a) Upon wdtten request by the insured and subject to the options contained in Section 6 of these Conditions and Stipulations, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured, but only as to those stated causes of astion alleging a defect, lien or encumbrance or other matter insured against by this policy. The Company shall have the right to seledc counsel of its choice (subject to the dght of the insured to object for reasonable cause) to represent the insured as to those stated causes of action and shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs or expenses incurred by the insured in the defense of those causes of action that allege mattere not insured against by this policy. (b) The Company shall have the right, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desireble to establish the title to the estate or interest, as insured, or to prevent or reduce loss or damage to the insured. The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable hereunder, and shall not thereby concede liability or waive any provision of this policy. If the Company shall exercise its dghts under this paragraph, it shall do so diligenUy. (c) Whenever the Company shall have brought an action or interposed a defense as required or permitted by the provisions of this policy, the Company may pursue any litigation to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (d) In ali cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insemd shall secure to the Company the dght to so prosecute or provide defense in the action or proceeding, and alt appeals therein, and permit the Company to use, at its option, the name of the insured for this purpose. Whenever requested by the Company, the insumcl, at the Company's expanse, shall give the Company all reasonable aid (i) in any action or proceeding, secudng evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act that in the opinion of the Company may be necessary or desirable to es~blish the title to the estate or interest as insured. If the Company is prejudiced by the failure of the insured to furnish the required cooperation, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or continue any litigaUon, with regard to the matter or matters requiring such cooperation. 5. PROOF OF LOSS OR DANAGE. In addition to and after the notices required under Section 3 of these Conditions and Stipulations have been provided the Company, a proof of loss or damage signed and sworn to by the insured claimant shall be fumished to the Company within 91 days after the insured claimant shall ascertain the facts giving rise to the loss or damage. The proof of loss or damage shall describe the defect in~ or lien or encumbrance on the flue, or other matter insured against by this policy that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. If the Company is prejudiced by the failure of the insured claimant to provide the required proof of loss or damage, the Company's obligations to the insured under the policy shall terminate, including any liability or obligation to defend, prosecute, or cooUnue any litigation, with regard to the matter or matters requiring such proof of lose or damage. In addition, the insured claimant may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and copying, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books, ledgers, chocks, correspondence and memoranda, whether bearing a date before or after Date of Policy, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the insured claimant shall grant its permission, in writing, for any authorized representaUve of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda in the custody or control of a third party, which reasonably pertain to the loss or damage. All information designated as confidential by the insured claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, FORM T-1 CA: OWNER POLICY OF TTFLE iNSURANCE (4-4-02) Page 3 of 5 in the reasonL'ble Judgment of the Company, it ~s necessary in the adminis'oation of the daim. Failure of the insured claimant to submit for examination under o~th, produce other reasonably requested information or grant permission to secure reaSOnably necessary Jnformatioe from third pardee as required in this paragraph shall terminate any liability of the Company under this policy as to that claim. 6. OPTIoNs TO PAY OR OF LIAB[LJTy. OTHERWISE SETTLE CLAIMS: TERMINA'I'JON In Case of a claim under this policy, the Compeey shall have the following additional options: la) T° Pay °r Tender Payment of the Amount of insurance. To pay or tender payment of the amount of insurence under Policy, together with any costs, attorneys, fees a - this no expenses incurred by the insured claimant, which Were au~odzed by the Company, up to the time of payment or tender of payment and which the Company is obligated to pay. Upon the exercise by the Company of this option, all I/ability and obligations to the insured under this policy, Other than to make the payment required, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation, and the policy shall be surrendered to the COmpany for ceeeellation. lb) To Pay or Otherwise SetiJe With Parties Other than or With the Znsured Claimant. the Insured (i) to pay or otherwise settle with other part/es for or in the name of an inSUred claimant any claim insured against under this Policy, together with any co~s, attorneys' fees and expenses incurred by the insured claimant which were authorized by the Company up to the time of PaYment and which the COmpany is obligated to pay; or (ii) to pay or otherwise settle with the insured claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees and expenses mcorred by the insured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in paragraphs lb)ti) or (ii), the under this policy for the claimed Company,s obligations to the insured loss or damage, Other than the payments required to be made, shall terminate, including any I/ability or obligation to defend, prosecute, or continue any litigation. 7. DETERMZNA'f~ON, EXTENT OF L~BZLJ-Ty AND COZNSURANCE. This policy is a COntract of ,ndemnity against actual monetary oss or damage sustained or incurred by the insured cia meet who has suffered loss or damage by reason of mattere insured against by this policy and only to the extent herein described. la) The liability of the Company Under this policy shall not exceed the leest of: (J) the Amount of Insurance stated in Schedule A; (ii) the difference between the value of the insured estate or interest as insured and the value of the insured estate or interest subject to the defect, lien er encumbrance insured against by this policy at the date the insured Claimant is required to fUrnish to Company a proof of Joss or damage in accordance with Sectien 5 of these Conditions end Stipulations. lb) In the event the Amount of Insurance stated in Schedule A at the Date of Policy is less than 80 percent of the value of the insured estate or interest or the frill Consideration paid for the land, whichever is less, or if subsequent to the Date of Policy an improvement is erected on the land which increases the value of the insured estate or interest by at least 20 Percent OVer the Amount of Insurance Schedule A, then this Policy is subject to the following: stated in (i) where partial loss, no subsequent improvement has been made, as to a the Company shall only pay the loss pro rata in the Proportk .that the amount of insurance at Date of Policy bears to the total value of tt insured estate or interest at Date of Policy; or (ii) where a subsequent improvement has been made, as to an partial Joss, the Company shall only pay the loss pro rate in the proPortio that 120 Percent of the Amount of InSurance stated in Schedule A bears b the sum of the Amount of Insurance stated in Schedule A and the amoun expended for the improvement. The Previsions of this paragraph shall not apply to costs, attorney's fees and expenses for which the Company is liable under this POlicy, and shall only apply to that portion of any loss which exceeds, in the aggregate, 10 percent of the Amount of Insurance stated in Schedule A. lc) The Company will pay only those costs, attorneys' fees and expenses incorrad in accordance with Section 4 of these Conditions and Stipulations. 8. APPORT~ONHENT. If the land desedbed Jn Schedule A consists of two or more parcels that are not used as a single site, and a loss is established affecting one or more of the pa.r, ceis but not all, .the loss shall be co~npoted and settled on a pro rata basis as ~f the amount of insurance under thts policy was divid-~ to the value on Date of Policy of each separate parcel ~ pro rata as of any improvements made subsequent to Date of to the whole, exclusive Po/icy, unless a liability or Value has Otherwise been agreed Upon as to each parcel by the Company and the insured at the time of the iSSuance of this policy and shown by an express statement or by an endorsement attached to this Policy. 9. LIH1TA'I'[ON OF L[ABILt~y. la) If the Company establishes the tiUe, or removes the alleged · defect, lien or encumbrance, or cures the lack of a right of access to or from the ~inand, all as Insured, or takes action in accordance with Sect/on 3 or Sectioe 6, a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have folly performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. lb) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no I/ability for loss or damage until there has been a final determination by Jurisdiction, and disposition of all appeals a court of competent insured, therefrom, adverse to the tiUe as lc) The Company shall not be liable for loss or damage to any insured for liability voluntarily assumed by the insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF I'NSURANCE: Ri=DUCT[oN OR TERMZNA'rJON OF All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the lento, insurance pro 11. LIABILITY NONCU H ULATWE. It is expressly understood that the amount of insurance under this shall be reduced by any amount the Company may Policy !eeuriog a mortgage to which exception is taken pay under any Policy in Schedule B or to which the Insured has agreed, assumed or taken subject, or which is hereafter executed by an insured and which is a charge or lien on the estate or intere~ described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy to the insured OWner. FORM T-1 CA: OWNER POLICy OF '/TrLE INSURANCE 12. PAYMEN'J; OF LOSS. (a) No payment shall be made without producing thi~ policy for endorsement of the payment unless the policy has been lost or destroyed, in which case proof of loss or destruction shall be furnished to the satisfaction of the Company. (b) When liabilib/ and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or ~damage shall be payable within 30 days thereafter. 13. SUBROGATION UPON PAYMENT OR SETTLEMENT. (a) The Company's Right of Subrogation. I Whenever the Company shall have settled and paid a claim under this po!icy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all rights and remedies that the insumcl claimant would have had against any person or property in respect to the claim had this policy not been issued. If requested by the Company, the insured claimant shall transfer to the Compa:ny all rights and remedies against any person or property necessary in order to perf,*ct this right of subrogation. The insured claimant shall permitlthe Company to sue, compromise or settle in the name of the insured claimant and to use the name of the insured claimant in any transaction or litigation involving these rights or remedies. Iq a payment on account of a claim does not fully cover the loss of the insured claimant, the Company shall be subrogated to these rights and remedies in the proportion that the Company's payment bears to the whole amount of the loss. Ii loss should result from any act of the insured dmmant, as stated above,/that act shall not void this policy, but the Company, in that event, shall b~ required to pay only that part of any losses insured against by this policy that shall exceed the amount, if any, lost to the Company by reason of the impairment by the insured claimant of the Company's right of subrogation. (b) The Company's Rights Against Non-insured Obligors. The Company's right of subrogation against non-insured obligors shall exist -md shall include, without limitation, the rights of the insured to indemnities, guaranties, other policies of insurance or bonds, notwithstanding any terms or conditions contained in those instruments that provide for subrogabon rights by reason of this policy. 14. ARBITRATION. Un ess proh bited by app cab e aw or unless th~s arbitration section is dele~cI by specific provision in Schedule B of this policy, either the Company or the [nsured may demand arbitration pursuant to the Tnsuralnce Arbitration Rules of the Amedcan Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the [osumd arising out of or relating to this P~licy, and service of the Company in connection with its issuance or the br~ach of a policy provision or other obligation. All arbitrable matters Owner Policy TSSUED BY: when the Amount of Insurance is $1,000,000 or less shall be arbiti-ated at the request of either the Company or the Insured, unless the insured is an individual person (as distinguished from a corporation, trust, partnership, association or other legal entity). All arbitrable matters when the Amount of insurance is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the insured. Arbitration pursuant to this Policy and under the Rules in effect on the date the demand for arbitration is made or, at the option of the insured, the Rules in effect at the Date of Policy shah be binding upon the parties. The award may include attorneys' fees only if the laws of the state in which the land is located permit a court to award attorneys' fees to a prevailing party, ludgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The Law of the situs of the land shall apply to any arbitration under the Title Tnsurance Arbitration Rules. A Copy of the Rules may be obtained from the Company upon request. 15. UABILTTY LIMITED TO THIS POLICY: POLICY ENTIRE CONTRACT. (a) This policy together with all endorsements, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage, whether or not based on negligence, and which arises out of the status of the title to the estate or interest covered hereby or by any action asserting such claim, shall be restricted to this policy. (c) No amendment of or endorsement to this policy can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 16. SEVERABILtTY. In the event any provision of the policy is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision and all other provisions shall remain in full force and effect. 17. NOTICES, WHERE SENT· All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the number of this policy and shall be addressed to the Company at: First Amedcan Title Insurance Company, 1500 S. Dairy Ashford, Suite 300, Houston TX 77077. COMPLAINT NO~CE. Should any dispute arise about your premium or about a claim that you have filed, contact the agent or write to the Company that issued the policy. If the probtem is not resolved, you also may write the Texas Department of Insurance, P. O. Box 149091, Aus'dn, TX 78714-9091, Fax No. (512) 305- 7426. This notice of complaint procedure is for information only and does not become a part or condition of this policy. First American Title Insurance Company 1500 South Dairy Ashford, Suite 300 Houston, Texas (77077) National: 1-800-347-7826 FOR INFORMATION, OR TO MAKE A COMPLAINT, CALL: 1-800-347-7826 FORM T-1 CA: OWNER POLICY OF TITLE INSURANCE (4-4-02) Page 5 of 5 70 2D03 DO184768 Denton County Cynthia Mitchell County Clerk Denton, TX 76202 Recorded On: November 10, 2003 Parties: FLATT PAUL To Instrument Number: 2003-184768 As Partial Release Billable Pages: 5 Number of Pages: 5 Comment: Partial Release 22.00 Total Recording: 22.00 ** Examined and Charged as Follows: ** ************ THIS PAGE IS PART OF THE INSTRUMENT ************ Any provision herein which restricts the Sale, Rental or use of the described REAL PROPERTY because of color or race is invalid and unenforceable under federal law. File Information: Document Number: 2003-184768 Receipt Number: 68076 Recorded Date/Time: November 10, 2003 01:59P User / Station: J Morris ~ Cash Station 1 Record and Return To: CITY OF DENTON 601 E HICKORY STE B DENTON TX 76205 THE STATE OF TEXAS } COUNTY OF DENTON } I hereby certify that this Instrument was FILED In the File N umber sequence on the date/time printed heron, and was duly RECORDED in the Offlclel Records of Denton County, Texas. County Clerk Denton County, Texas PARTIAL RELEASE OF LIEN STATE OF TEXAS COUNTY OF DENTON KNOW ALL MEN BY THESE PRESENTS: The undersi~m~ed is the present legal and equitable owner and holder of the following note: Date: July 12, 1996 Original Amount: FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) Maker: MLM Family Trust Payee: Paul Flatt and wife, Eleanor Flatt Final Maturity Date: Terms of Payment: Holder of Note and Lien: Holder's Mailing Address: Paul Flatt and wife, Eleanor Flatt 3104 Windy Hill Denton, Texas 76201 Denton County Note and Lien are described in the following documents: Warranty Deed With Vendor's Lien, recorded August 27, 1996 in County Clerks File No. 96- R0059630, of the Real Property Records of Denton County, Texas. Deed of Trust, recorded August 27, 1996 in County Clerk's File No. 96-R0059631, of the Real Property Records of Denton County, Texas. Agreement for Partial Release of Liens, recorded August 27, 1996 in County Clerks File No. 96- R0059633, of the Real Property Records of Denton County, Texas. (The above described documents and liens are whether one or more, hereinafter called the "Lien"). For good and valuable consideration paid to the undersigned, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby releases and discharges the Lien from the property located in the City of Denton, Denton County, Texas, fully described in the attached Exhibit "A" and illustrated in the attached Exhibit "B" which is made a part hereof by reference. Page 1 S:\Real Esth°rojccts~R. OW Sharedh°rojccts\HickoB, Creek Road Improvement Projecth°arcel 6 MLM Family Trust~Partial Release of Liens.doc This Partial Release of Lien only affects a release of the Lien as against the property described in Exhibit "A" and illustrated Exhibit "B". It does not affect any other lien or liens that the undersigned may have against any other property. This Partial Release of Lien also affects the release of any other interest, if any, that the undersigned may have in property described in Exhibit "A" and illustrated in Exhibit "B". SIGNED this / day of /~/O~/4g ~ A~./, 2003. Paul Flatt Eleanor O. Flatt ACKNOWLEDGMENT STATE OF TEXAS COUNTY OFDENTON This instrument was acknowledged before me this __ by Paul Flatt. day of /~o'O/, j~'r~, 2003, No{ary~Public, State ~f'Texas My commission expires ~ /~! /O '9 - ! / This instrument was acknowledged before me this by Eleanor O. Flatt. .-~,.......~*. ROBERT E, BELL [q~..'. '~.'. · ~- Notm'y Public, State of TOXSS [',~ ~-g;g,~ My Commission Exp, 03-21-2007 / day of/~+~ dt'~--' , 2003, Notary Public, Stat~rof Tex~s / e~'- / My commission expires _5/2--9/,~ 7 Page 2 S:\Real Es6Projeets~OW Shared\Projects\Hickory Creek Road Improvement Project\Parcel 6 MLM Family Tmst~Partial Release of Liens.doc P. 08/20 EXI-IIBIT A RIGHT-OF-WAY ACQUISITION PARCEL 6 BEING a strip of land located in the Eli Pickett Survey, Abstract No. 1018, Denton County, Texas and being a portion of a tract of land conveyed to the MLM Family Trust by deed recorded under county clerk's file number 96-0059630, Real Property Records of Denton Cotmty, Texas, said strip of land being more particularly described by metes and bounds as follows: BEOINNING at the southeast corner of said MLM Tract, also being the southwest comer of Paxcel 2, Conveyance Plat Lexingxon Park South, recorded in Cabinet S, Page 299, Plat Records of Denton County, Texas, said point being in Hickory Creek Road; THENCE S 89052'43'' W, a distance of 306.91 feet to the southwest comer of said MLM Tract; THENCE N 0°09'54" W, passing a found 1/2 inch iron rod at 37.22 feet, in all a distance of 49.92 feet to a 5/8 inch capped iron rod (TNP) set on the proposed new north right-of- way line of Hickory Creek Road; THENCE N 89°51 '30" E, w/th said line, a distance of 306.91 feet to a 5/8 inch capped iron rod (TNP) set on the common line between said MLM Tract and said Parcel 2; THENCE S 0009'54'' E, with said line, passing a found 1/2 inch iron rod at 12.52 feet, in all a distance of 50.02 feet to the Point of Beginning and containing 0.352 acre of land of which 0.263 acre is included in the existing prescriptive right-of-way, leaving a remainder of 0.089 acre of land more or less. Bearings are based the Texas State Coordinate System, North Central Zone (~. See Exhibit B for map. Exhibit B MAP SHO~f~.~2 PROPOSED RIGHT-OF-I~ Y ACQUISITION City of Denton, Denton County, Texos CHAUCER ESTATES PHASE II I LAUE~ TiNA M, · ~'~ 1,? ~o~ PARCEL CONNELL ADDITION MLM FAMILY TRUSD CC ~ 96-0059630 43---[~--'"~3' GEORGE T. CONNELL, JR . · ~--I.~~ .....~ -~5/ ~ ~ GARY JAY MADRIGAL ) I I ~sE' NOTES: CA& S, PG. 241, P.R.D.C.[ ,,~ S~tem, NotLh Cenlrol Zone (Nod EXHIBIT B PARCEL 6 PARCEL 2 ~ CONVEYANCE PLAT PARCEL 6 ~ LEXINGTON PARK SOUTH CITY OF DENTON AL VIN E, MEREDITH ET UX. VOL, 829, PG, 474, D.R.O.C.T. ~.. ~./ 200 400 600 I I r Dote: TEAGUE NALL AND PERKINS (940)