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HomeMy WebLinkAboutResolution - 2007-R0043 - Compromise Settlement Agreement - COL V. West 50Th Management Ltd. - 01/29/2007Resolution No. 2007-80043 January 29, 2007 - Special Item No. 2.1 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 All Claims with West 50`h Management, Ltd., relating to Cause No. 2006-822,388; City of Lubbock v. West 5e Management, Ltd, et.al filed in Lubbock County Court at Law No. 3, 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 29th ATTEST: Re ecca Garza, City Secretary APPROVED AS TO CONTENT: 344e, daw�L Dave Booher Right of Way Agent APPROVED AS TO FORM: Matthew L. Wade Natural Resources Attorney as/CCDOCSIsettlement resolution January 26, 2007 day of January , 2007. David A. filler, Mayor Resolution No. 2007-Roa43 COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Compromise Settlement Agreement and Release of All Claims ("Settlement Agreement") is entered into by, between, and among the City of Lubbock (the "City"), and West 50th Management, Ltd., a Texas Limited Partnership, acting by and through its General Partner, West 50 Real Estate, Inc. (the "Property Owner"). RECITALS WHEREAS, the City instituted a condemnation action (Cause No. 2006-822,388 City of Lubbock v. West 50'h Management Ltd., et al., in the County Court of Law No. 3 of Lubbock County, Texas) for a portion of certain real property owned by the West 50`h Management Ltd., located at the southeast corner of the intersection of 50th Street and West Loop 289, Lubbock, Lubbock County, Texas, and more particularly described by metes and bounds as follows (the "Subject Property"): Being 0.157 acres (6,839 Sq. Ft.) of land out of the Northwest '/4 of Section 28, Block E- 2, Lubbock County, Texas and being more particularly out of a tract of land as recorded and described in Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, which said 0.157 acres (6,839 Sq. Ft.) of land is more particularly described as follows: BEGINNING at a 1/2" iron rod with cap, set in the existing South right-of-way line of 50`h Street for the Northeast corner of this parcel, whence the Northeast corner of the said Northwest'/4 of Section 28, Block E-2 bears North 01°49'57" East, 34.10 feet and South 88°03'59" East, 1423.68 feet; (1) THENCE South 01'49'57" West, along the East line of this tract as described in Volume 7968, Page 234 and being the West line of a tract of land as described in Volume 7846, Page 127, both being found in the Real Property Records of Lubbock County, Texas, at 14.90 feet pass a found 1/2" iron rod, continuing for a total distance of 28.19 feet to a '/2" iron rod with cap, set in the proposed South line of said 50`h Street for the Southeast corner of this parcel; (2) THENCE Northwesterly along the arc of a curve to the right and being the proposed South right-of-way line of said 50`h Street, an are distance of 48.23 feet to a '/2" iron rod with cap, set for a corner of this parcel, said curve having a radius of 5774.58 feet and a chord of 48.23 feet; (3) THENCE North 87°47'05" West, along the proposed South right-of-way line of said 50'h Street, 197.25 feet to a 1/2" iron rod with cap, found in the existing South right- of-way line of Loop 289 as recorded in Volume 6594, Page 214 of the Real Property Records of Lubbock County, Texas, for the Southwest comer of this parcel; (4) THENCE North 01'39'12" East, along the existing East right-of-way line of Loop 289 as recorded in Volume 6594, Page 214 of the Real Property Records of Lubbock County, Texas, and being the most Northerly West line of said tract described in said Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, 26.95 feet to a 318" iron rod, found for the Northwest corner of this parcel; (5) THENCE South 88°12'23" East, along the existing South right-of-way line of said 50th Street and being the North line of said tract of land described in Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, 245.56 feet to the P.O.B. of which contains an area of 0.157 acres (6,839 Sq. Ft.). WHEREAS, C.J. Wheeler, 111, is the president of West 50`h Real Estate, Inc.; WHEREAS, West 50"' Real Estate, Inc. is the general partner of West 50th Management, Ltd., a limited partnership; WHEREAS, C.J. Wheeler, III and West 50th Management, Ltd., acting by and through its General Partner, West 50th Real Estate, Inc., entered into an "Unimproved Property Contract" ("Contract") for the sale of the entire tract of land including the Subject. Property to McDougal Companies for $16.00 a square foot and with closing for said sale being scheduled for January 31" , 2007, at 11:00 a.m. (time), at Western Title Company, 4416 74th St., Lubbock, Texas (place) (the "Closing"); WHEREAS, based on the information contained in the Unimproved Property Contract, the City is willing to pay the property owner $109,424.00 for the Subject Property; and WHEREAS, all parties are willing to settle all claims, and resolve all matters between them in connection with the Property, including the conveyance of a portion thereof, to avoid the inconvenience, distractions, uncertainties, and expenses attendant to 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 ONE HUNDRED NINE THOUSAND, FOUR HUNDRED TWENTY-FOUR and NO/100 DOLLARS ($109,424.00), the Property Owner does enter into this Settlement Agreement and does hereby release, acquit, and forever discharge the City, its respective predecessors, successors, assigns, owners, City Council, partners, members, managers, employees, directors, legal representatives, insurers, independent contractors, agents, and attorneys (the "Releasees") of and from any and all liability, claims, demands, damages, attorney's fees, costs, liens, whether statutorily provided or on authority of the Texas or United States Constitutions by reason of this taking. 2. Payment shall be made by check in the amount of ONE HUNDRED NINE THOUSAND, FOUR HUNDRED TWENTY-FOUR and NO/100 DOLLARS ($109,424.00), jointly payable to West 50th Management, Ltd. and Avant & Mitchell, P.C. The check will be delivered at the time of Closing as defined above. 3. The Property Owner agrees to execute a Right -of -Way Deed in substantially the form of Exhibit A, attached hereto and incorporated herein by reference, the purpose of which is to convey, in fee simple, the Subject Property described above to the City. The Property Settlement Agreement, West 501h Page 2 of 6 Owner further agrees to secure and/or execute any additional instruments that may be required, in the sole discretion of the City, to effectuate the purposes of this Settlement Agreement, the purpose of which is to secure the conveyance to the City the unencumbered fee simple title to the Subject Property. 4. Each party further states 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 parry or parties released. 5. 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. 6. Charles J. Wheeler, III, hereby represents and warrants that he has the authority to execute this Settlement Agreement and bind the West 50`h Management, Ltd. as the president of West 50'' Real Estate, Inc., the general partner of West 50'' Management, Ltd. 7. 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. 8. 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. Settlement Agreement, West SO'h Page 3 of 6 EXECUTED this % day of _, 2007. WEST 50TH MANAGEMENT, LTD., a Texas Limited Partnership, acting by and through its General Partner, West 50`h Real Estate, Inc. Clarence J. Wheelet,411, President ' STATE OF TEXAS § COUNTY OF LUBBOCK § f Before me, the undersigned authority, on this .>l s+ day of , 2007, personally appeared Clarence J. Wheeler, III, President of West 50th Real Estate, Inc., individually and by proper authority representing the West 50th Management, Ltd., 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. Ll�� �.'z&' Notary Public for the State of Texas Settlement Agreement, West 50i° Page 4 of 6 �Ar n�h DENISE BRADLEY C ; Notary Public, State of Texas My Commission, Expires Augat 07, 2010 Ll�� �.'z&' Notary Public for the State of Texas Settlement Agreement, West 50i° Page 4 of 6 CITY OF LUBBOCK By: David A. Miller, STATE OF TEXAS § COUNTY OF LUBBOCK § T -14t Before me, the undersigned authority, on this day of , 2007, personally appeared David A. Miller, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he execrated the same for the purposes and consideration therein expressed. [SEAL] CELIA WEBB tVatary Pubk, State of Texas 9 --my Conw"m Foes OMI -2010 c for the State of Texas Settlement Agreement, West Se Page 5 of 6 APPROVED AS TO FORM AND CONTENT: ELLIOTT WTCHELL Attorney for Property Owner APPROVED AS TO CONTENT: DAVM OOHER, Right -of -Way Agent, City of Lubbock APPROVED AS TO FORM: MATTHEW L. WADE Attorney for City of Lubbock Settlement Agreement, West SD'" Page 6 of 6 7 STATE OF TEXAS § COUNTY OF LUBBOCK Before me, the undersigned authority, on this day of 2007, personally appeared David A. Miller, 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] Notary Public for the State of Texas APPROVED AS TO FORM AND CONTENT: LLIOTT MITCHELL Attorney for Property Owner APPROVED AS TO CONTENT: DAVY BOOHER, Right -of -Way Agent, City of Lubbock APPROVED AS TO FORM: MATTHEW L. WADE Attorney for City of Lubbock Settlement Agreement, West 50`h Page 5 of 5 Return to: City of Lubbock Attn: David Booher P.O. Box 2000 Lubbock, Texas 79408 RIGHT-OF-WAY DEED THE STATE OF TEXAS Exhibit A § KNOWN ALL MEN THESE PRESENTS COUNTY OF LUBBOCK That WEST 50TH MANAGEMENT, LTD., a Texas Limited Partnership, acting herein by and through its General Partner, West 50th Real Estate, Inc., a Texas Corporation acting by and through its President, Clarence J. Wheeler, III, hereunto duly authorized to act for and on behalf of said corporation, hereinafter referred to as Grantor, for and in consideration of the cash sum of ten dollars ($10.00) in hand paid by the City of Lubbock of Lubbock County, Texas, a municipal corporation, hereinafter referred to as Grantee, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged_ and confessed, has GRANTED, SOLD and CONVEYED, and by these premises does GRANT, SELL and CONVEY unto the Grantee, its successor and assigns, all right, title and interest in and to that certain Lot, Tract, or Parcel of land situated in the County of Lubbock, State of Texas, described as follows, to wit: All that certain tract, piece or parcel of land, lying and being situated in the County of Lubbock, State of Texas, described in the attached legal description (EXHIBIT "A") attached hereto and made a part hereof for all purposes, to which reference is made for a more particular description of said property. Reservations from and Exceptions to Conveyance and Warranty: Any and all restrictions and easements of record. There is further reserved to Grantor and Grantor's heirs, executors, administrators and assigns, as the case may be, and excepted from this conveyance, the right of ingress to the remaining property of Grantor from 50th Street and the right of egress from said remaining property to 50th Street such that the remaining property from which said land in Exhibit A described is severed shall suffer no diminished right of access to or from 50`h Street by reason of this conveyance. However, nothing contained herein shall be construed to grant any greater right of ingress or egress to the remaining property of Grantor than that provided by the City of Lubbock Code of Ordinances and/or State Law, whichever is applicable. TO HAVE AND TO HOLD the above described premises unto the said Grantee, Grantee's heirs, executors, administrators, successors, or assigns, as the case may be, forever. Grantor binds Grantor and Grantor's heirs, executors, administrators, successors and assigns, as the case may be, to warrant and forever defend all and singular the property to Grantee and Grantee's heirs, executors, administrators, successors, and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof, except as to the reservations from and exceptions to conveyance and warranty. EXECUTED this S/ day of January, 2007. WEST 50' MANAGEMENT, LTD., a Texas Limited Partnership, acting by and through its General Partner, West 50th Real Estate, Inc. 121 Clarence J. Wheeler, 10, President STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, on this 31 -5+ day of 2007, personally appeared Clarence J. Wheeler, III, President of West 50th Real Estate, Inc., individually and by proper authority representing the West 50th Management, Ltd., 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. Notary Public for the State of Texas Right -of -Way Deed Page 2 of [S DENISE ORAD1EY Notary 'taxes _ ; Public, State of spy ; c My Commission Expires August 07, 2010 Notary Public for the State of Texas Right -of -Way Deed Page 2 of _ Exhibit A Right of Way Deed Being 0.157 acres (6,839 Sq. Ft.) of land out of the Northwest t/a of Section 28, Block E- 2, Lubbock County, Texas and being more particularly out of a tract of land as recorded and described in Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, which said 0.157 acres (6,839 Sq. Ft.) of land is more particularly described as follows: BEGINNING at a '/z" iron rod with cap, set in the existing South right-of-way line of 50th Street for the Northeast corner of this parcel, whence the Northeast corner of the said Northwest 1/4 of Section 28, Block E-2 bears North 01°49'57" East, 34.10 feet and South 88003'59" East, 1423.68 feet; (1) THENCE South 01°49'57" West, along the East line of this tract as described in Volume 7968, Page 234 and being the West line of a tract of land as described in Volume 7846, Page 127, both being found in the Real Property Records of Lubbock County, Texas, at 14,90 feet pass a found %Z" iron rod, continuing for a total distance of 28.19 feet to a '/z" iron rod with cap, set in the proposed South line of said 50`h Street for the Southeast corner of this parcel; (2) THENCE Northwesterly along the arc of a curve to the right and being the proposed South right-of-way line of said 50th Street, an arc distance of 48.23 feet to a 1/z" iron rod with cap, set for a corner of this parcel, said curve having a radius of 5774.58 feet and a chord of 48.23 feet; (3) THENCE North 87°47'05" West, along the proposed South right-of-way line of said 50th Street, 197.25 feet to a %" iron rod with cap, found in the existing South right- of-way line of Loop 289 as recorded in Volume 6594, Page 214 of the Real Property Records of Lubbock County, Texas, for the Southwest corner of this parcel; (4) 'THENCE North 01°39'12" East, along the existing East right-of-way line of Loop 289 as recorded in Volume 6594, Page 214 of the Real Property Records of Lubbock County, Texas, and being the most Northerly West line of said tract described in said Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, 26.95 feet to a 3/8" iron rod, found for the Northwest corner of this parcel; (5) THENCE South 88°12'23" East, along the existing South right-of-way line of said 501h Street and being the North line of said tract of land described in Volume 7968, Page 234 of the Real Property Records of Lubbock County, Texas, 245.56 feet to the P.O.B. of which contains an area of 0.157 acres (6,839 Sq. Ft.).