HomeMy WebLinkAboutResolution - 2007-R0159 - Comprmise Settlement - Owners Of Village West Apartments - 04_12_2007 - CopyResolution No. 2007-RO159
April 12. 2007
Item No. 6.5
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a Compromise Settlement
Agreement and Release of Claims with the owners of the Village West Apartments, being
AARON WECHTER and/or CAVALIER INVESTMENT COMPANY, INC.; IRVIN
SKIBELL, alkla Irvin Alfred Skibell, Individually and as Co -Trustee of the Shirlene and
Irvin Skibell Marital Trust, created under the Last Will and Testament of Shirlene
Skibell, Deceased, and as Co -Trustee of the Shirlene and Irvin Skibell Family Trust,
created under the Last Will and Testament of Shirlene Skibell, Deceased; BERNARD
FRANK SKIBELL, a/k/a Bernard F. Skibell; DAVID LUBIN SKIBELL, wUa David L.
Skibell; RICHARD BALK SKIBELL, a/k/a Richard B. Skibell, Individually and as Co -
Trustee of the Shirlene and Irvin Skibell Marital Trust, created under the Last Will and
Testament of Shirlene Skibell, Deceased, and as Co -Trustee of the Shirlene and Irvin
Skibell Family Trust, created under the Last Will and Testament of Shirlene Skibell,
Deceased; and NORMA ELAINE SKIBELL, Individually and as Independent Executrix
of the Estate of Albert Skibell, Deceased, and as Trustee of the Albert Skibell Marital
Trust, created under the Last Will and Testament of Albert Skibell, Deceased, and as
Trustee of the Albert Skibell Estate trust, created under the Last Will and Testament of
Albert Skibell, Deceased, (the "Property Owners") relating to the acquisition of a portion
of the property owned by the Property Owners for the widening of West 50th Street,
which is attached hereto and which shall be spread upon the minutes of the Council and
as spread upon the minutes of this Council shall constitute and be a part of this
Resolution as if fully copied herein in detail.
Passed by the City Council this 12th day of April , 2007.
David A. Miller, Mayor
ATTEST:
0,0-, . 0. -
Reb eca Garza, City Secretary
APPROVED AS TO CONTENT:
-_Dwzv2,
)ave Booher
tight of Way Agent
APPROVED AS TO FORM:
datthew L. Wade
Jatural Resources Attorney
nllccdocsNillage West -settlement res
,pril 9, 2007
COMPROMISE SETTLEMENT AGREEMENT
AND RELEASE OF CLAIMS
This Compromise Settlement Agreement and Release of Claims ("Settlement
Agreement") is entered into by, between, and among the City of Lubbock (the "City"),
and the owners of the Village West Apartments, being AARON WECHTER; IRVIN
SKIBELL, a/k/a Irvin Alfred Skibell, Individually and as Co -Trustee of the Shirlene
and Irvin Skibell Marital Trust, created under the Last Will and Testament of
Shirlene Skibell, Deceased, and as Co -Trustee of the Shirlene and Irvin Skibell
Family Trust, created under the Last Will and Testament of Shirlene Skibell,
Deceased; BERNARD FRANK SKIBELL, a/k/a Bernard F. Skibell; DAVID LUBIN
SKIBELL, a/k/a David L. Skibell; RICHARD BALK SKIBELL, a/k/a Richard B.
Skibell, Individually and as Co -Trustee of the Shirlene and Irvin Skibell Marital
Trust, created under the Last Will and Testament of Shirlene Skibell, Deceased, and
as Co -Trustee of the Shirlene and Irvin Skibell Family Trust, created under the Last
Will and Testament of Shirlene Skibell, Deceased; and NORMA ELAINE
SKIBELL, Individually and as Independent Executrix of the Estate of Albert
Skibell, Deceased, and as Trustee of the Albert Skibell Marital Trust, created under
the Last Will and Testament of Albert Skibell, Deceased, and as Trustee of the
Albert Skibell Estate trust, created under the Last Will and Testament of Albert
Skibell, Deceased, (collectively the "Property Owner").
RECITALS
WHEREAS, for the purposes of widening 50`' Street from Slide Road to West
Loop 289 the City Council of the City of Lubbock authorized, via Resolution 2005-
R0326, passed July 14, 2005, the purchase/acquisition of a portion of the real property
owned by the Property Owner and more particularly described by metes and bounds as
follows:
Being 0.115 acres (5000 Sq. Ft.) out of Lot 1, Meadows Addition to the City of
Lubbock, Lubbock County, Texas as recorded in Volume 1329, Page 497 of the
Deed Records of Lubbock County, Texas, which said 0.115 acres (5000 Sq. Ft.)
of land is more particularly described as follows:
BEGINNING at ''/z" iron rod with cap, found in the existing South right-of-way
line of 50'h Street for the Northwest corner of said Lot 1, Meadows Addition and
for the Northwest corner of this parcel;
(1) THENCE South 88104'15" East, along the existing South right-of-way
line of said 50th Street and the North line of said Lot 1, Meadows Addition,
655.00 feet to a ''/a" iron rod with cap, found for the most Northerly Northeast
corner of said Lot 1, Meadows Addition and for the most Northerly Northeast
corner of this parcel;
(2) THENCE Southeasterly along the arc of a curve to the right and along the
existing South right-of-way line of said 50'h Street and the North line of said Lot
1, Meadows Addition, an arc distance of 23.76 feet to '/2" iron rod with cap, found
in the East line of said Lot 1, Meadows Addition and the existing West right-of-
way line of Bangor Avenue for a corner of this parcel, said curve has a radius of
15.00 feet, a central angle of 90°44'57", and a chord that bears South 42°42'06"
East with a distance of 21.35 feet;
(3) THENCE South 01°46'04" West, along the existing West right-of-way
line of said Bangor Avenue and the East line of said Lot 1, Meadows Addition,
20.84 feet to a '/2" iron rod with cap, set in the proposed South right-of-way line
of said 501h Street for the Southeast corner of this parcel;
(4) THENCE North 45"29'07" West, along proposed South right-of-way line
of said 50"' Street, 26.38 feet to a magnetic nail, set for a corner of this parcel;
(5) THENCE North 85°49'18" West, along proposed South right-of-way line
of said 50`h Street, 252.00 feet to a `/2" iron rod with cap, set for a corner of this
parcel;
(6) THENCE Northwesterly along the arc of a curve to the left and along the
proposed South right-of-way line of said 50`h Street, an arc distance of 398.93 feet
to the P.O.B. of which contains an area of 0.115 acres (5000 Sq, Ft.), said curve
has a radius of 11,414.19 feet, a central angle of 02°00'09", and a chord that bears
North 86°52'47" West with a distance of 398.91 feet (the "Property");
WHEREAS, all parties are willing to settle all claims, and resolve all matters
between them in connection with the acquisition of the Property, to avoid the
inconvenience, distractions, uncertainties, and expenses attendant to eminent domain
proceedings, litigation and trial, in exchange for the consideration and releases set forth
below.
1 IN CONSIDERATION of the payment by City to the Property Owner of the sum of
FIVE HUNDRED AND FIFTEEN THOUSAND and NO/100 DOLLARS
($515,000.00), the Property Owner agrees to execute a Special Warranty Deed in the
form of Exhibit A, attached hereto and incorporated herein by reference, the purpose
of which is to convey, in fee simple, the Property described above to the City. This
conveyance is made under threat of condemnation and is being done to avoid eminent
domain proceedings and the added expenses of litigation, and the consideration
recited herein represents a settlement and compromise by all parties as to the value of
the property interests herein conveyed and damages, if any, to remaining property not
taken. This Agreement settles all claims, including, without limitation, all claims or
demands for damages, attorney's fees, costs, causes of action or suit in equity, of
whatsoever kind or nature between the City and the Property Owner and their
respective officers, employees, directors and agents as relates to the threatened
condemnation.
Settlement Agreement, Village West Apartments Page 2 of 14
2 Payment shall be made by check in the amount of FIVE HUNDRED AND FIFTEEN
THOUSAND and NO/100 DOLLARS ($515,000.00), jointly payable to Mike Barron
and Zachary Brady, Trustees. The check will be delivered to Service Title Company
(the "Closing Agent") after this Settlement Agreement is executed by all parties.
3 The Closing Agent shall deliver to the Property Owner or its duly authorized agents,
the check described above once all documents, items and instruments required of this
Settlement Agreement are completed, executed and/or delivered to the satisfaction of
the City.
4 The Property Owner further agrees, in order to convey the unencumbered fee simple
interest in and on the Property, to secure and/or execute any additional instruments
that may be required, in the sole discretion of the City and in a form and substance
acceptable to the City, to effectuate the purposes of this Settlement Agreement,
including, but not limited to, the following items:
(a) The Closing Agent be provided with sufficient proof that the U.C.C.
Financing Statement recorded in Volume 8804, Page 296 of the Official
Public Records of Lubbock County, Texas does not affect the Property;
(b) The Closing Agent be provided sufficient proof that the State Inheritance
Taxes due under the Estate of Albert Skibell, Deceased, have been paid;
(c) The Closing Agent be provided sufficient information to determine the
marital status of the record owner(s) and dispose of the interest of any
spouse; and
(d) Sufficient documentation to the Closing Agent confirming the authority of
the Property Owner to execute this Settlement Agreement and any and all
related documents.
5 This Settlement Agreement may be pled as a full and complete defense to any action,
lawsuit, or other proceeding, which may be instituted, prosecuted, or attempted for,
upon, or in respect of any of the claims released hereby in connection with the right
of way acquisition accomplished herein. The Property Owner agrees that any such
proceeding would cause irreparable injury to the party against whom it is brought,
and that any court of competent jurisdiction may enter an injunction restraining
prosecution thereof.
6 The Property Owner agrees that the damages suffered by the City by reason of any
breach of any provision of this Settlement Agreement shall include not only the
amount of any judgment that may be rendered against the City or any of its respective
officers, employees, directors and agents by reason of a breach of this Settlement
Agreement, but shall also include all damages suffered by them, including the cost of
attorney's fees and other costs and expenses of instituting, preparing, prosecuting,
defending any action or suit resulting from a breach of this Settlement Agreement,
whether taxable or otherwise, and costs to them of attorney's fees and all other costs
Settlement Agreement, Village West Apartments Page 3 of 14
and expenses of instituting, preparing, or prosecuting any counterclaim, suit, motion,
or action to recover damages resulting from the breach of this Settlement Agreement,
whether taxable or otherwise.
7 The Property Owner hereby represents and warrants that the Property Owner owns
the Property and has not transferred, conveyed, pledged, assigned, or made any other
disposition of the Property or any other rights it has under this Settlement Agreement.
The Property Owner agrees to indemnify and hold harmless the City and any of its
respective officers, employees, directors or agents from and against any and all
claims, demands, or causes of action and the reasonable and necessary costs,
including attorney" s fees, incurred in the defense of any proceeding or claim, brought
by a person claiming an ownership interest in the Property by, through or under
Property Owner, including any liens whether statutory or otherwise, or any other
matter covered by this Settlement Agreement,
8 The terms of this Settlement Agreement shall inure to the benefit of, and be binding
upon, the City and the Property Owner and their respective legal representatives,
successors, heirs or assigns.
9 All signatories to this Settlement Agreement hereby represent and warrant that they
have the authority to execute this Settlement Agreement and all related documents,
including but not limited to, the Warranty Deed attached hereto as Exhibit A, and
bind the respective parties.
10 This Settlement Agreement states the entire agreement of the parties with respect to
the matters discussed herein, and supersedes all prior or contemporaneous oral or
written understandings, agreements, statements, or promises.
11 This Settlement Agreement may not be amended or modified in any respect except by
a written instrument duly executed by all of the parties to this Settlement Agreement.
12 if this Settlement Agreement does not become effective for any reason, it shall be
deemed negotiations for settlement purposes only and will not be admissible in
evidence or usable for any purposes whatsoever.
13 This Settlement Agreement has been and shall be construed to have been drafted by
all parties to it so that the rule of construing ambiguities against the drafter shall have
no force or effect.
14 If any portion or term of this Settlement Agreement is held unenforceable by a court
of competent jurisdiction, the remainder of this Settlement Agreement shall not be
affected, and shall remain fully in force and enforceable.
15 Each party has consulted with whatever consultants, attorneys, or other advisors each
deems appropriate concerning the effect of entering into this Settlement Agreement,
and the Property Owner assume the risk arising from not seeking further or additional
consultation with such advisors.
Settlement Agreement, Village West Apartments Page 4 of 14
16 Each party assumes the risk of any mistake of fact or law with regard to any aspect of
this Settlement Agreement, the dispute described herein, or any asserted rights
released by this Settlement Agreement,
17 The Property Owner shall be solely responsible for any and all federal, state or local
income taxes, if any, associated with this Settlement Agreement.
18 The terms and conditions of this Settlement Agreement shall survive the execution of
the Warranty Deed attached hereto as Exhibit A or any other document conveying the
Property described herein to the City.
19 Each party further state that this Settlement Agreement, including the foregoing
release, has been carefully read and each party understands the contents thereof and
has signed the same as their own respective free act, and has not been influenced in
making this settlement by any representative of a party or parties released.
20 It is further understood that the provisions of this Settlement Agreement are
contractual and not mere recitals, and that the laws of the State of Texas shall govern
this Settlement Agreement and that venue for any action arising out of or related to
this Settlement Agreement and the claims associated therewith shall lie in Lubbock
County.
EXECUTED this day of , 2007.
Settlement Agreement, Village West Apartments
Page 5 of 14
PROPERTY OWNER
AARON WECHTER, Individually
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this
day of
2007, personally appeared Aaron Wechter, individually, known to me to
be the person whose name is subscribed to the foregoing instrument and acknowledged to
me that he executed the same for the purposes and consideration therein expressed.
[SEAL]
ANNE B. FLORES
Notary Fublic, State of Texas
My Commission Expires
April02, 2008
rotary vubhc for the
State of Texas
Sattl►mnnt Aornement_ Vlllaae West Anaetments Page 6 of 14
(intentionally left blank)
Settlement Agreement, Village West Apartments Page 7 of 14
PROPERTY OWNER
01
IN SKIBELL, a/k/a Irvin Alfred Skibell,
Individually and as Co -Trustee of the Shirlene and
Irvin Skibell Marital Trust, created under the Last
Will and Testament of Shirlene Skibell, Deceased,
and as Co -Trustee of the Shirlene and Irvin Skibell
Family Trust, created under the Last Will and
Testament of Shirlene Skibell, Deceased
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this _ day of
2007, personally appeared IRVIN SKIBELL, a/k/a Irvin Alfred Skibell,
Individually and as Co -Trustee of the Shirlene and Irvin Skibell Marital Trust, created
under the Last Will and Testament of Shirlene Skibell, Deceased, and as Co -Trustee of
the Shirlene and Irvin Skibell Family Trust, created under the Last Will and Testament of
Shirlene Skibell, Deceased, known to me to be the person whose name is subscribed to
the foregoing instrument and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
[S
ro*¢-0�
. pAryNA C MORRIS
Notary Public, Stale ol7exas Notary Public for the
Icy Comm. Expires 1i-08 2008 N
State of Texas
Settlement Agreement, Vitiage West Apartments Page 8 of 14
PROPERTY OWNER
f`
BERNARD FRANK SKIBELL, a/k/a Bernard F.
Skibell
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on thisday of
2007, personally appeared BERNARD FRANK SKIBELL, a/k/a Bernard
F. Skibell, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
[SEAL].�'�
otary Public for the
State of Texas
�`�v � � LORA R. BROCK
• Notary Pubic, State of TOM
��b My Commission Empires 3412010
Settlement Agreement, Village West Apartments Page 9 of 14
PROPERTY OWNER
04
DAVID LUBINi
STATE OF TEXAS §
COUNTY OF LUBBOCK §
. Before me, the undersigned authority, on this ��0 day of
2007, personally appeared DAVID LUBIN SKIBELL, a/k/a David L.
Skibell, known to me to be the person whose name is subscribed to the foregoing
instrument and acknowledged to me that he executed the same for the purposes and
consideration therein expressed.
[SEAL]
('t A% &^e-)
N ary Public for the
State of Texas
Settlement Agreement, Village West Apartments Page 10 of 14
r
Y
PROPERTY OWNER
RICHARD BALK SKIBELL, alk/a Richard B.
Skibell, Individually and as Co -Trustee of the
Shirlene and Irvin Skibell Marital Trust, created
under the Last Will and Testament of Shirlene
Skibell, Deceased, and as Co -Trustee of the
Shirlene and Irvin Skibell Family Trust, created
under the Last Will and Testament of Shirlene
Skibell, Deceased
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day of t
, 2007, personally appeared RICHARD BALK SKIBELL, wVa Richard
B. Skibell, Individually and as Co -Trustee of the Shirlene and Irvin Skibell Marital Trust,
created under the Last Will and Testament of Shirlene Skibell, Deceased, and as Co -
Trustee of the Shirlene and Irvin Skibell Family Trust, created under the Last Will and
Testament of Shirlene Skibell, Deceased, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he executed the
same for the purposes and consideration therein expressed.
r SE` ""RA A GEBHARDT r
My Commission Expires
May 14, 2009
- %A4- ,4 - APik
Notary Public for the
State of Texas
Settlement Agreement, Village West Apartments
Page 11 of 14
PROPERTY OWNER
i �`�i''7'YS �f �-�iL� Mom. ,c'!..1::�'L 4t,t_.�.•� _.
v^7
NORMA ELAINE SKIBELL, Individually and as
Independent Executrix of the Estate of Albert
Skibell, Deceased, and as Trustee of the Albert
Skibell Marital Trust, created under the Last Will
and Testament of Albert Skibell, Deceased, and as
Trustee of the Albert Skibell Estate trust, created
under the Last Will and Testament of Albert
Skibell, Deceased
STATE OF TEXAS
COUNTY OF LUBBOCK
Before me, the undersigned authority, on this o day of pfe.y
2007, personally appeared NORMA ELAINE SKIBELL, Individually
and as Independent Executrix of the Estate of Albert Skibell, Deceased, and as Trustee of
the Albert Skibell Marital Trust, created under the Last Will and Testament of Albert
Skibell, Deceased, and as Trustee of the Albert Skibell Estate trust, created under the Last
Will and Testament of Albert Skibell, Deceased, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to nie that lie executed
the same for the purposes and consideration therein expressed.
[SEAL] / `-�-
otary Public for the
State of Texas
LORA R. BROCK
i Notary Public, State of Text
o�,�►or e My Commmon Expires 3-3-2U1t)
Settlement Agreement, Village West Apartments
Page 12 of 14
CITY OF LUBBOCK
By.( -
David A. Miller
Mayor
STATE OF TEXAS
COUNTY OF LUBBOCK §
-k k.
Before me, the undersigned authority, on this _ day of
, 2007, personally appeared David A. Miller, Mayor of the City of Lubbock,
known to me to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that s/he executed the same for the purposes and consideration
therein expressed.
fa
SLALCELIA 1NEBB
Notary' Rl�bk State of Texgs
My Camrrltum ETm 03-01-2010
��� AL4
Notary -Public for the
State of Texas
Settlement Agreement, Village West Apartments
Page 13 of 14
APPROVED AS TO FORM AND CONTENT:
M THEW L. WADE
Attorney for City of Lubbock
Settlement Agreement, Village West Apartments Page 14 of 14