HomeMy WebLinkAboutResolution - 2018-R0386 - Settlement Agreement - Nanci Realty And John F. Masso - 11/01/2018Resolution No. 2018-RO386
Item No. 6.4
November 1, 2018
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock 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
Nanci Realty Corporation and John F. Masso ("Property Owners"), relating to the acquisition of
a portion of the property owned by the Property Owners for the widening of Erskine Avenue
from Indiana Avenue to Quaker Avenue, Said Compromise Settlement Agreement and Release
of Claims is attached hereto and incorporated in this resolution as if fully set forth herein and
shall be included in the minutes of the City Council.
Passed by the City Council on November 1, 2018
DANIEL M. POPE, MAYOR
ATTEST:
0 Jtpt"�,, ' )\/-
RebelVa Garza, City Secretary �)
APPROVED AS TO CONTENT:
Dave Booher, Right of Way Agent
APPROVED AS TO FORM:
Ry B oke, Assistant City Attorney
RES.Comp Settlement Agreement -Nand Realty Corp.
9.24.18
Resolution No. 2018-RO386
COMPROMISE SETTLEMENT AGREEMENT
AND RELEASE OF CLAIMS
This Compromise Agreement and Release of Claims ("Agreement") is entered
into by, between, and among the City of Lubbock (the "City"), and hlanci Realty
Corporation and John F. Masso, (collectively the "Property Owners").
RECITALS
WHEREAS, for the purposes of widening Erskine Avenue from Indiana Avenue
to Quaker Avenue, the City Council of the City of Lubbock authorized, via Resolution
No. 2017-R0083, duly passed on February 23, 2017, the purchase/acquisition of a portion
of the real property owned by the Property Owners and more particularly described by
metes and bounds as follows:
METES AND BOUNDS DESCRIPTION of a 0.8648 acre tract of land located in
Section 18, Block A, Lubbock County, Texas, being a portion of that 15.9708
acre tract described in County Clerk File Number 2009000609, Official Property
Records of Lubbock County, Texas, described in said deed as a 15.642 acre tract,
said 0.8648 acre tract being further described as follows:
BEGINNING at a railroad spike found in the South line of said Section 18 at the
Southwest corner of this tract which bears S. 88°05'47" E. a distance of 467.95
feet from the Southwest corner of Section 18, Block A, Lubbock County, Texas;
THENCE N. 01 °5713 " E. a distance of 55.00 feet to a 1 /2" iron rod with cap
found at the Southeast comer of TC Addition to the City of Lubbock, Lubbock
County, Texas, according to the map, plat and/or dedication deed thereof recorded
in Volume 5395, Page 234 of the Real Property Records of Lubbock County,
Texas and the Northwest corner of this tract;
THENCE S. 85014'01" E. a distance of 200.25 feet to a 1/2" iron rod with cap
marked "HUGO REED ASSOC." found at a point of intersection;
THENCE S. 88005'47" E. a distance of 614.85 feet to a 1 /2" iron rod with cap
found at the Southwest corner of Tract A, The Retreat an addition to the City of
Lubbock, Lubbock County, "Texas, according to the map, plat and/or dedication.
deed thereof recorded under County Clerk File No. 2010015871 of the Official
Public Records of Lubbock County, Texas and the Northeast corner of this tract;
THENCE S. 01 °49'58" W. a distance of 45.00 feet to a cotton spindle found in the
South line of Section 18 at the Southeast corner of this tract;
THENCE N. 88005'47" W., along the South line of said Section 18, a distance of
814.90 feet to the Point of Beginning, containing 37,670 square feet (the
"Property");
WHEREAS, prior to initiating eminent domain proceedings, the parties were
unable to reach an agreement regarding the value of the Property;
WHEREAS, the City filed its Original Petition in Condemnation, styled City of
Lubbock v. Nanci Realty Corporation and .Iohn F Masso, Cause No. 2017-822,408 in
County Court at Law No. 3 seeking fee simple title to the Property for the public
purposes stated therein;
WHEREAS, the City and the Property Owners agreed to and executed a
Possession and Use Agreement, for Transportation Purposes on September 20, 2017, (the
"Possession and Use Agreement") where the Property Owners authorized the City to
enter upon and begin widening Erskine Avenue in exchange for the City paying to the
Property Owners One Hundred Twenty -Nine Thousand Five Hundred Eighty -Four and
NO/100 Dollars ($129,584.00) eighty percent (80%) of the City's appraised value as of
September 20, 2017; and
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 Owners of the sum of
Two Hundred and Eight -Two Thousand Five Hundred and Twenty -Five and NO/100
Dollars ($282,525.00), the City and Property Owners agree to filing the attached
Agreed Final Judgment in the form attached hereto as Exhibit A and incorporated
herein by reference, the purpose of which is to convey, in fee simple, the Property
described above to the City.
2. This Agreement is made under threat of condemnation and is being done to avoid
continuing 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
Owners and their respective officers, employees, directors and agents as relates to the
threatened condemnation.
3. The City has already paid to the Property Owners One Hundred Twenty -Nine
Thousand Five Hundred Eighty -Four and NO/100 Dollars ($129,584.00) which shall
be credited towards the final payment for the Property as agreed to by the parties in
the Possession and Use Agreement. The final payment by the City to the Property
Owners shall be One Hundred fifty -Two Thousand Nine Hundred Forty -One
and NO/100 Dollars ($152,941.00) (the "Final Payment").
Agreement, Nand Realty/.John Masso— Erskine Avenue Page 2 oi'G
4. The City shall deliver to the Property Owners or its duly authorized agents, the funds
described above for the Final Payment within thirty (30) days after this Agreement is
frilly executed by all parties and the Agreed Final Judgment is fully executed and
filed in the Lubbock County District Clerk's office.
S. This 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 Owners agree 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 parties agree that the damages suffered by either party by reason of any breach of
any provision of this Agreement shall include not only the amount of any judgment
that may be rendered against such party or any of its respective officers, employees,
directors and agents by reason of a breach of this 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 Agreement, whether taxable or otherwise, and costs to them of
attorney's fees and all other costs and expenses of instituting, preparing, or
prosecuting any counterclaim, suit, motion, or action to recover damages resulting
from the breach of this Agreement, whether taxable or otherwise.
7. The Property Owners hereby represent and warrant that the Property Owners 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 Agreement. It is
further understood by the parties that while the Property is being conveyed to the City
by means of an Agreed Final Judgment in Cause No. 2017-822,408, in the event of'
any claim, demand, loss, injury or damage sustained by the City resulting from an
attack or threatened attack on City's title to the Property by any person or entity
claiming an adverse interest therein, the Property Owners agree to transfer and assign
to the City such right and authority as reasonably necessary for the City to have
standing to defend the City's title and recover from any such person or entity any loss
it may sustain; provided, however, that any such transfer or assignment shall be at no
cost to the Property Owners and shall not prejudice any of the Property Owner's
rights.
8. The terms of this Agreement shall inure to the benefit of, and be binding upon, the
City and the Property Owners and their respective legal representatives, successors,
heirs or assigns.
9. All signatories to this Agreement hereby represent and warrant that they have the
authority to execute this Agreement and all related documents and bind the respective
parties.
Agreement, Nanci Realty/.John Masso — Erskine Avenue Page 3 of 6
10. This 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 Agreement may not be amended or modified in any respect except by a written
instrument duly executed by all of the parties to this Agreement.
12. If this Agreement or the Agreed Final Judgment 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 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.
1.4.If any portion or term of this Agreement is held unenforceable by a court of
competent jurisdiction, the remainder of this 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 Agreement, and the
Property Owners assume the risk arising from not seeking further or additional
consultation with such advisors.
16. Each party assumes the risk of any mistake of fact or law with regard to any aspect of
this Agreement, the dispute described herein, or any asserted rights released by this
Agreement.
17. The Property Owners shall be solely responsible for any and all federal, state or local
income taxes, if any, associated with this Agreement.
18. The terms and conditions of this Agreement shall survive the execution and filing of
the Agreed Final Judgment attached hereto as Exhibit A or any other document
conveying the Property described herein to the City.
19. Each party further states that this 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 Agreement are contractual and not
mere recitals, and that the laws of the State of Texas shall govern this Agreement and
that venue for any action arising out of or related to this Agreement and the claims
associated therewith shall lie in Lubbock County.
EXECUTED this lst day of November 2018.
Agreement, Nand Realty/.John Masso— Frskine Avenue Page 4 of G
PROPERTY OWNER
NANCI REALTY CORPORATION
By: :Z�
Name: Ke� P�aSSo
Title: Fresi�eW
STATE OF Okjg ew-0--
COUNTY OF�u S a
This instrument was acknowledged before me on the l5t"_da-y of
, 2018, by Ki,tr Hwy,fo
of Nanci Realty Corporation on behalf of said corporation, in the capacity and for
the purposes and consideration recited herein.
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STATE OF
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Notary Public, State of i:== Gkl
JOHHN F. MASSO
3 F. Masso
This instrument was acknowledged before me on the dayofJIJ
2018, by John F. Masso, in the capacity and for the purposes and consideration r
herein.
SAHOLIZAH WALSH
T `r ti NOTARY PUBLIC '
STATE OF NEVADA Notary Pub (c, State of Texas
m�f My Commission Expires: 07-25-22
i Certificate No: 071709-1
Agreement, Nand Realty/John Masso— Erskine Avenue Page 5 of t
CITY OF LUBBOCK, 'TEXAS
By:
Name: Daniel M. Pope
Title: Mayor,y of Lubbock
STATE OF TEXAS
COUNT' OF LUBBOCK
ThA instrument wK acknowledged before me on the �"� day ofix/
2018, by of City of Lubbock,
Texas, a home rule muni ipality and political subdivision of the State of Texas, on behalf
of said municipality.
ANIFER SOWDER CLEMENTS
Notary Public, State of Texas
Notary IN 12497068.3
oFI My Commission Expires OC-28-2020
No Vy
Public, State o exas
APPROVED AS TO FORM AND CONTENT:
Matt ew L. Wade
Attorney for City of Lubbock
Agreement, Nand Realty/John Masso — Erskine Avenue Page G of fi
CAUSE NO.2017-822-408
CITY OF LUBBOCK, TEXAS § IN THE COUNTY COURT
§ AT LAW NO.3
Petitioner, §
§ IN AND FOR
NANCI REALTY CORPORATION §
AND JOHN F. MASSO, §
Respondents. § LUBBOCK COUNTY, TEXAS
AGREED FINAL JUDGMENT
After having reviewed the file in this cause this Court finds:
1. Petitioner, the CITY OF LUBBOCK, is a municipal corporation situated in
Lubbock County, Texas, chartered and operated as a home -rule city under the Constitution and
laws of the State of Texas having the right of eminent domain and power of condemnation.
2. Respondent, Nanci Realty Corporation and John F. Masso, is represented by its
attorney of record, Tyler Topper of Burdett, Morgan, Williamson & Boykin, LLP, 701 S. Taylor,
Suite 440, Amarillo, TX 79101.
3. That in its Original Petition in Condemnation filed with this Court, Petitioner City
of Lubbock sought and prayed for the acquisition through condemnation of the fee simple title in
and to the surface estate of the real property herein described, for the public purpose of widening
Erskine Avenue from Indiana Avenue to Quaker Avenue, a public street in Lubbock County,
Texas.
4. That the Petitioner and Respondent have reached an agreement regarding
Respondent's interest in the property described herein and that, as good and valuable
consideration for acquiring the fee simple title to the surface estate of the property described
herein, Petitioner agrees to pay to Respondent a sum of Two Hundred and Eighty -Two Thousand
Five Hundred and Twenty -Five and NO/100 Dollars ($282,525.00) for Respondent's interest for
the property being condemned and as described herein, and for damages, if any, to the remainder
of property. All other matters of fact and things in controversy have been fully and finally
compromised and settled by and between the Petitioner and Respondent.
5. That the Petitioner and Respondent have submitted this Agreed Final Judgment
agreeing to the value of the property taken, including damages to the remainder, at the sum of
Two Hundred and Eighty -Two Thousand Five Hundred and Twenty -Five and no/100 Dollars
($282,525.00).
II.
6. It is therefore, ORDERED, AJUDGED and DECREED that Petitioner, City of
Lubbock, Texas, have and recover of and from Respondent fee simple title in and to the surface
estate, and that such title is decreed to vest with and awarded to the Petitioner, of the property
described as follows (the "Subject Property"):
METES AND BOUNDS DESCRIPTION of a 0.8648 acre tract of land located in Section
18, Block A, Lubbock County, Texas, being a portion of that 15.9708 acre tract described
in County Clerk File Number 2009000609, Official Property Records of Lubbock
County, Texas, described in said deed as a 15.642 acre tract, said 0.8648 acre tract being
further described as follows:
BEGINNING at a railroad spike found in the South line of said Section 18 at the
Southwest corner of this tract which bears S. 88°05'47" E. a distance of 467.95 feet from
the Southwest corner of Section 18, Block A, Lubbock County, Texas;
THENCE N. 0105713 " E. a distance of 55.00 feet to a 1/2" iron rod with cap found at
the Southeast comer of TC Addition to the City of Lubbock, Lubbock County, Texas,
according to the map, plat and/or dedication deed thereof recorded in Volume 5395, Page
234 of the Real Property Records of Lubbock County, Texas and the Northwest corner of
this tract;
THENCE S. 85014'01" E. a distance of 200.25 feet to a 1/2" iron rod with cap marked
"HUGO REED ASSOC." found at a point of intersection;
THENCE S. 88005'47" E. a distance of 614.85 feet to a 1 /2" iron rod with cap found at
the Southwest corner of Tract A, The Retreat an addition to the City of Lubbock,
Lubbock County, Texas, according to the map, plat and/or dedication deed thereof
recorded under County Clerk File No. 2010015871 of the Official Public Records of
Lubbock County, Texas and the Northeast corner of this tract;
THENCE S. 01049'58" W. a distance of 45.00 feet to a cotton spindle found in the South
line of Section 18 at the Southeast corner of this tract;
THENCE N. 88005'47" W., along the South line of said Section 18, a distance of 814.90
feet to the Point of Beginning, containing 37,670 square feet.
7. It is further ORDERED, ADJUDGED and DECREED and that Respondent,
Nanci Realty Corporation and John F. Masso, is entitled to a judgment from the City of
Lubbock, Texas, in the sum of Two Hundred and Eighty -Two Thousand Five Hundred and
Twenty -Five and no/100 Dollars ($282,525.00) for their interest in the Subject Property
condemned, and for damages, if any, to the remainder of property which said sum shall be paid
by Petitioner to Respondent.
8. It is further ORDERED, ADJUDGED and DECREED that excluded from the real
property awarded to Petitioner is any right to the oil, gas and other minerals which can be
removed from beneath the said property without any right whatsoever of ingress to or egress
from the surface of said tract of land for the purpose of exploring, developing, drilling or mining
of the same.
9. It is further, ORDERED, ADJUDGED and DECREED that all costs of this
proceeding, including fees of the clerk for disbursing the payments from the registry of this
Court, be and they are hereby taxed against Petitioner, City of Lubbock, Texas, which costs shall
be paid to the County Clerk of Lubbock County, Texas.
IV.
10. It is further, ORDERED, ADJUDGED and DECREED that this is a final
judgment disposing of all issues and matters related to the above numbered and styled cause and
that any and all other relief not herein granted is denied.
SIGNED this day of
JUDGE PRESIDING
2018.
APPROVED AS TO FORM AND SUBSTANCE:
CITY OF LUBBOCK, TEXAS
UNDERWOOD LAW FIRM, P.C.
Matthew L. Wade
State Bar No. 00794803
matt.wade@uwlaw.com
P. O. Box 16197
Lubbock, Texas 79490
(806)793-1711
FAX (806) 793-1723
Mattbew L. Wade
ATTORNEYS FOR PETITIONER
NANCI REALTY CORPORATION AND JOHN F. MASSO
BURDETT, MORGAN, WILLIAMSON & BOYKIN. LLP
Tyler Topper
State Bar No. 24059263
ttopper@bmwb-law.com
701 S. Taylor
Suite 440
Amarillo, TX 79101
806-358-8116
FAX 806-3SO-7642
ATTORNEYS -FOR RESPONDENT
VICINITY MAP
MSKINE STREET PARCEL SURVEY
No. 11000
0.8648 ACRES
LOCATED IN
SECTION 18, BLOCK A
LUBBOCK COUNTY, TEXAS
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