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HomeMy WebLinkAboutResolution - 2008-R0170 - Partial Release Of Restrictive Easement - Odie And Joan Hood - 05/08/2008Resolution No. 2008-RO170 May 8, 2008 Item No. 5.22 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 Partial Release of Restrictive Easement, by and between the City of Lubbock and Odie A. Hood and wife, Joan C. Hood and all related documents. Said Partial Release is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Executed by the City Council this 8th day of ATTEST: RGarza, City Secretary APPROVED AS TO CONTENT: Thomas Adams, ' `Deputy City Manager/Water Utilities Director APPROVED AS TO FORM: f Richard K. Casner, First ssistant City Attorney ao/ccdocs/Partial Release -Hood. Res May 1, 2008 May 2008. or DAVID A. MILLER, MAYOR Resolution No. 2008-x0170 NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. PARTIAL RELEASE OF RESTRICTIVE EASEMENT THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF GARZA § This Partial Release of Flood Easement and Restrictive Easement (the "Partial Release") 0 is dated effective this 9�1- day of 2008, executed by the City of Lubbock, O Texas, a Texas home rule municipal corpora( ', and by Odic A. Hood and wife, Joan C. Hood 00 (the "Hoods") WITNESSETH WHEREAS, pursuant to the certain Petition for Condemnation, in Cause No. 4743, in the 106th District Court of Garza County, Texas, styled City of'Lubbock, Texas v. A. Doyle Justice et al., the City of Lubbock pleaded for condemnation of certain rights and interests, as more particularly described therein; WHEREAS, notice of the Petition for Condemnation was imparted to the public pursuant to that certain Notice of Lis Pendens, dated March 30, 1992, and filed for record in Volume 2, Page 164, Lis Pendens Records, Garza County, Texas; WHEREAS, pursuant to Judgment in Absence of Objection to the Award of Special Commissioners in this Cause, entered by the 106th District Court of Garza County, Texas on or BOOK 29 1 PAGE 29 Page 1 of 7 about September 11, 1992, and recorded in Volume 208, Page 624, Deed Records, Garza County, Texas, the City of Lubbock was awarded certain lands and interests in Garza County, Texas, including without limitation, Flood Easements and Restrictive Easements (herein so called) in, on, over and across Section 20, Block 6, H. & G.N.R.R. Co. Survey, Garza County, Texas; WHEREAS, the Flood Easements and Restrictive Easements awarded to the City; ... (a) the right to intermittently overflow, flood or cover such land, at any time with flood, slack or backwater created by construction, maintenance and operation by [City of Lubbock] of its proposed John Montford Dam and the Lake Alan Henry Reservoir and for the storage of water created by the construction of the Dam; (b) the right to enter upon said land, with due notice and without loitering, to clear, C destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any 4^ other thing which would in any way interfere with the construction, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoirs and to carry out an adequate program of pollution control; and (c) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the [Hoods] shall be at the [Hoods'] risk with regard to flooding by the [City of Lubbock's] reservoir.; WHEREAS, it has come to the attention of the City of Lubbock, Texas that it no longer requires certain rights set forth within certain portions of the Flood Easements and Restrictive Easements and in and for the consideration of the owners of the fee simple title of the land in Section 20 burdened by the Flood Easements and Restrictive Easements joining in a settlement in Cause No. 07-05-06194, 106th District Court, Garza County, Texas, now desires to partially release said rights. NOW, THEREFORE, for and in consideration of the payment of Ten and No/100 Dollars ($10.00), the promises and covenants set forth herein, and the joinder in that certain Compromise Page 2 of 7 BOOK 2 9 7i PAGE 29.4 Settlement Agreement (the "Settlement Agreement"), and all related documents, in Cause No. 07-05-06194, 106th District Court, Garza County, Texas, by the Hoods, the City of Lubbock, Texas hereby PARTIALLY RELEASES the Flood Easement and Restrictive Easement (i) INSOFAR AND ONLY INSOFAR as said easements cover and include those lands described on Exhibit "A" attached hereto and made a part hereof for all purposes (the "Partial Release Lands"); and (ii) INSOFAR AND ONLY INSOFAR as the Flood Easement and Restrictive Easement covers and include the following rights: (1) the right to enter upon said land, with due notice and without loitering, to clear, destroy or dispose of any timber, brush, obstruction, accumulation, trash, filth or any other thing which would in any way interfere with the construction, maintenance and operation of such dam and reservoir or tend to render the same unsafe or unsanitary and to prevent the drainage or dumping of refuse, sewage or other material into such reservoir and to carry out an adequate program of pollution control; and l+� (2) the right to prevent the construction of, or the removal, with due notice, of any structure or facility located or to be located on said land. Structures and facilities are defined as waterwells, septic systems, cesspools, barns, sheds, places of habitation, and boat docks, but shall not include pens, gates, fences, cattleguards or boat ramps. All structures constructed and maintained by the Defendants shall be at the Defendants' risk with regard to flooding by the Plaintiff s reservoir. Any and all rights not expressly released by the City of Lubbock, Texas herein are expressly reserved by the City of Lubbock. Without limiting the generality of the foregoing, the City of Lubbock, Texas expressly reserves (i) all rights related to lands other than the Partial Release Lands provided to it by the Flood Easements and Restrictive Easements; and (ii) the rights over, on, in and across the Partial Release Lands to intermittently overflow, flood or cover such lands at any time with flood, slack or backwater created by construction, maintenance and operation by the City of Lubbock of its John Montford Dam and the Lake Alan Henry Reservoir and for the storage of water created by the construction of the John Montford Dam. The Hoods hereby expressly acknowledge, stipulate and agree that the Partial Release Lands will at times be BOOK 2 9 7 PAGE 30-0 Page 3 of 7 overflowed, flooded and/or covered by water due to the construction, maintenance and operation of Lake Alan Henry and further acknowledge that any activity or structure of any kind constructed or placed within or on the Partial Release Lands, will, can, or may be damaged, in partial or total, by such flood, slack or backwater, and/or storage of water, and such activities are at the sole risk of the Hoods, their successors and assigns, with regard to such overflow, flooding or covering with flood, slack or backwater and/or storage of water. The City of Lubbock, Texas and the Hoods stipulate that structures and facilities shall be defined as provided in the Settlement Agreement. The Hoods, for themselves, their heirs, successors and assigns, hereby release the City of C+ Lubbock, Texas from and against any and all losses, costs, damages, liabilities, of any kind or Cb nature, whether occurring now or in the future, whether known or unknown, contingent or otherwise, caused, related to or in regard to the overflowing, flooding or covering of the Partial Release Lands, at any time or from time to time, with flood, slack or backwater and/or storage of water created by or related to the construction, maintenance and operation of Lake Alan Henry Reservoir. EXECUTED AND EFFECTIVE this L = day of.. 2008 by the City of Lubbock, Texas and Odie A. Hood and wife, Joan C. Hood. C& 111" 1� Odie A. Hood J C. ood BOOK 2 9 7 PAGE 301 Page 4 of 7 THE STATE OF TEXAS COUNTY OF § This instrument was acknowledged before me on this � day of OA�--1, 2008 by Odie A. Hood. THE STATE OF TEXAS r Notary Pub , e - T a My commission expires: COUNTY OF § This instrument was acknowledged before me on thi�C 0 day of , 2008 by Joan C. Hood. PAIGE NUGKABY • WtVry Public, Slate of Texas (;n amiss& Expires 11)-{l2 2008 Ota Pugh&teofTexas My commissiires: ATTEST;- _ ....... 4r . +t� r � Rebe a.rzity Secretary ,� w CITY OF LUBBOCK DAVID A. MILLER, MAYOR Page 5 of 7 BOOK 297PAGE 302 DAIGE HUCKABY v Public, State of Texas - 'p� Exai es 10-M-2000 THE STATE OF TEXAS r Notary Pub , e - T a My commission expires: COUNTY OF § This instrument was acknowledged before me on thi�C 0 day of , 2008 by Joan C. Hood. PAIGE NUGKABY • WtVry Public, Slate of Texas (;n amiss& Expires 11)-{l2 2008 Ota Pugh&teofTexas My commissiires: ATTEST;- _ ....... 4r . +t� r � Rebe a.rzity Secretary ,� w CITY OF LUBBOCK DAVID A. MILLER, MAYOR Page 5 of 7 BOOK 297PAGE 302 APPROVED AS TO CONTENT: omas Adams Deputy City Manager/Water Utilities Director APPROVED AS TO FORM: a Richard K. Casner First Assistant City Attorney THE STATE OF TEXAS § COUNTY OF LUBBOCK § This instrument was acknowledged before me on theday of Mq p , 2008, by David A. Miller, Mayor of the City of Lubbock, Texas, a Texas home rule municipal corporation. FM ELISASANCHEZ Notary Public, State of Texas y Commission Expires 11.072011 Richard,l.AH Odie Hood-Paxtiai Release 042?08 updated 042808 CC.t� Notary Public, State of TexaV My commission expires: �r-o7-zoij Page 6 of 7 sm 29r7PAGE 363 Resolution No. 2008-RO170 EXHIBIT "A" to Partial Release of Restrictive Easement The Partial Release Lands are defined as follows: Those lands located in Section 20, Block 6, H. & G.N.R.R. Co. Survey, Garza County, Texas, being described as: Those lands located between the outermost boundary line of the Flood and Restrictive Easement, as depicted in that certain Judgment in Absence of Objection to the Award of Special Commissioners in this Cause (the "Judgment"), Cause No. 4743, styled City of Lubbock Tetras v. A. Doyle Justice, et al., recorded in Volume 208. Page 624, Deed Records, Garza County, Texas, and contour elevation 2245 feet (NGVD 1929) above mean sea level if, when and at such points the lands below contour elevation 2245 feet (NGVD 1929) above mean sea level contain a larger area of land than is contained in the area between (i) contour elevation 2220 feet (NGVD 1929) above mean sea level, as surveyed by metes and bounds description in Exhibits 91, 92, 101 and 102 of the Judgment; and (ii) a line constructed by 300 feet radius arcs or 300 feet parallel lines as needed to remain a distance of 300 feet to any point along the said described contour elevation 2220 feet (NGVD 1929) above mean sea level boundary line. Richard/LAH Odie Hood -Partial Release EXH A April 28. 2008 Richard/LAH ©die Hood -Partial Release 043008 +kFILED FOR RECORD day of`i�GwL�201( J1M PLUMMER CpuNTY CLERK.. G/ R2A CouNfY• TtEyX�wA�S4 By Page 7 of 7 BOOK 2 9 PAGE 364 Ct" V GO