HomeMy WebLinkAboutResolution - 2007-R0185 - Compromise Settlement Agreement - Owners Of Apen Village Apartments - 05/11/2007Resolution N0. 2007-RO185
May 11, 2007
Item No. 5.29
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 Aspen Village Apartments,
being Texas Jumpin Jack, L.L.C., Star Associates, L.L.C., and Pine Ridge Associates,
L.L.C., (the "Property Owners") relating to the acquisition of a portion of the property
owned by the Property Owners for the widening of West 50t` 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 11th
ATTEST:
Re ecca Garza, City Secretary
APPROVED AS TO CONTENT:
&0Z 'gel�
Dave Booher
Right of Way Agent
APPROVED AS TO FORM:
4Mahew L. Wade
Natural Resources Attorney
day of may , 2007.
David A. Miller, Mayor
Resolution No.2007-80185
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 Aspen Village Apartments, being Texas Jumpin Jack, L.L.C.,
Star Associates, L.L.C., and Pine Ridge Associates, L.L.C., (collectively the "Property
Owner").
RECITALS
WHEREAS, for the purposes of widening 50`h Street from Slide Road to West
Loop 289 the City Council of the City of Lubbock authorized, via Resolution 2005-
R0325, 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 0.119 acres (5196 Sq. Ft.) of Lot 614, Richland Hills Addition to the city of
Lubbock, Lubbock County, Texas, as conveyed to Texas Jumpin .lack, L.L.C.,
Star Assoc., L.L.C. & Pine Ridge Assoc., L.L.C. and recorded in Volume 8390,
Page 119 of the Real Property Records of Lubbock County, Texas, which said
0.119 acres (5196 Sq. Ft.) of land is more particularly described as follows:
BEGINNING at an "X" in concrete, set in the existing North right-of-way line of
50`h Street for the Southwest comer of said Lot 614, Richland Hills Addition and
for the Southwest corner of this parcel;
(1) THENCE North 01°52'44" East, along the West line of said Lot 614,
Richland Hills Addition, 20.19 feet to a'/2" iron rod with cap, set in the proposed
North right-of-way line of said 50'h Street for the Northwest comer of this parcel;
(2) THENCE South 85'49'18" East, along the proposed North right-of-way
line of said 501h Street, 388.99 feet to a %" iron rod with cap, set for a comer of
this parcel;
(3) THENCE Southeasterly along the arc of a curve to the left and along the
proposed North right-of-way line of said 50th Street, an arc distance of 37.63 feet
to a %" iron rod with cap, set for a corner of this parcel, said curve has a radius of
4,538.75 feet, a central angel of 00°28'30", and a chord that bears South
86°03'33" East with a distance of 37.63 feet;
(4) THENCE North 45°18'54" East, along the proposed North right-of-way
line of said 50`h Street, 24.18 feet to a %" iron rod with cap, set in the East line of
said Lot 614, Richland Hills Addition and the existing West right-of-way line of
Bangor Avenue for the Northeast comer of this parcel;
(5) THENCE South 01°56'53" West, along the East line of said Lot 614,
Richland Hills Addition and the existing West right-of-way line of Bangor
Avenue, 6.17 feet to %" iron rod, found in the existing North right-of-way line of
said 501h Street, for a corner of this parcel;
(6) THENCE Southwesterly along the are of a curve to the right and along
the existing North night -of -way line of said 50th Street, an arc distance of 23.56
feet to a crow's foot in concrete, found for the most Southerly Southeast corner of
said Lot 614, Richland Hills Addition and for the most Southerly Southeast corner
of this parcel, said curve has a radius of 15.00 feet, a central angel of 89°59'40",
and a chord that bears South 46°55"55" West with a distance of 21.21 feet;
(7) THENCE north 88°04'20" West, along the South line of said Lot 614,
Richland Hills Addition and the existing North right-of-way line of said 50th
Street, 427.88 feet (call 428.00 feet) to the P.O.B. of which contains an area of
0.119 acres (5196 Sq. Ft.) (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.
IN CONSIDERATION of the payment by City to the Property Owner of the sum of
FOUR HUNDRED AND EIGHTY THOUSAND and NO/100 DOLLARS
($480,000.00), 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.
2 Payment shall be made by check in the amount of FOUR HUNDRED AND EIGHTY
THOUSAND and NO/100 DOLLARS ($480,000.00), payable to Service Title
Company. 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.
Settlement Agreement, Aspen Village Apartments Page 2 of 10
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 there are no
rights or claims of tenants and parties in possession under any unrecorded
lease together with any security interests in fixtures given by Tenant(s) of
the Property;
(b) (Left Blank Intentionally)
(c) That a Release of Lien be filed in the Real Property Records of Lubbock
County, Texas, of the Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing from the Property Owner to Matrix
Capital Bank, dated August 16, 2004, in the original principal sum of
$2,560,000.00, and recorded in Volume 9352, Page 260 of the Real
Property Records of Lubbock County, Texas;
(d) A termination of the Financing Statement from Property Owner to Matrix
Capital Bank as evidenced by that UCC -1, filed for record under Cleric's
instrument No. 36797 in Volume 9352, Page 311 of the Real Property
Records of Lubbock County, Texas;
(e) Submit to the Closing Agent for review a copy of the Articles of
Organization and Regulations, or as they are often called, Membership
Agreements, of Texas Jumpin Jack, L.L.C., Star Associates, LLC, and
Pine Ridge Associates, LLC, and any amendments thereto, in order to
determine the authority of the members and/or managers of said limited
liability companies;
(f) If the manager or member of said limited liability companies is a
corporation, the City will require that the Closing Agent be provided with
Articles of Incorporation and any amendments thereto of said corporation.
The City will also require a Certificate of Good Standing for said
corporation indicating that all franchise taxes have been paid;
(g) Submit to the Closing Agent for review a Certificate of Organization
issued by the State of Texas Secretary of State showing that Texas Jumpin
Jack, L.L.C. and Star Associates, LLC, have been properly registered;
(h) Submit to the Closing Agent for review a Certificate of Account Status
from the Texas Comptroller of Public Accounts for Texas Jumpin Jack,
L.L.C. and Star Associates, LLC;
Settlement Agreement, Aspen Village Apartments Page 3 of 10
(i) Submit to the Closing Agent for review a Certificate of Organization
issued by the State of North Carolina Secretary of State showing that Pine
Ridge Associates, has been properly registered;
(j) Submit to the Closing Agent a Certificate of Authority to Transact
Business in the State of Texas for Pine Ridge Associates, a North Carolina
limited liability company, issued by the office of the Secretary of State,
State of Texas;
(k) Submit to the Closing Agent for review a Certificate of Account Status
from the North Carolina Comptroller of Public Accounts for Pine Ridge
Associates, L.L.C.;
(1) The City will require an Original Certificate of Resolution(s), in
recordable form (executed before a Notary Public), certifying that the
limited liability companies, Texas Jumpin Jack, L.L.C., Star Associates,
L.L.C., and Pine Ridge Associates, L.L.C., have authorized the sale of
subject property, and to confirm the authority of the members and/or
managers who are authorized to act on behalf of the limited liability
companies to execute any and all documents in regard to this transaction.
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
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
Settlement Agreement, Aspen Village Apartments Page 4 of 10
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 1f 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.
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.
Settlement Agreement, Aspen Village Apartments Page 5 of 10
18 The terms and conditions of this Settlement Agreement shall survive the execution of
the Special Warranty Deed attached hereto as Exhibit A or any other document
conveying the Property described herein to the City.
19 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 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.
EFFECTIVE this day of `� �"� 12007.
PROPERTY OWNER
TEXAS JUMPIN JACK, L.L.C.
By: — � WV -4 �— R��
J h R. Staib
Its: Vidnber
STATE OF C_dlo radv §
COUNTY OF §
This instrument was acknowledged before me on this r' day of Pune,
2007, by Joseph R. Staib, Member of Texas Jumpin Jack, L.L.C., a Texas Limited
Liability Company, on behalf of said limited liability company.
4-t. ' _ Notary Public for the
4L ,State of Co 4r,-,4.
cs lav"�.y --1 pY
Settlement Agreement, Aspen Village Apartments
My Commission Expires 07105/2010
i
Rage 6 of 10
PROPERTY OWNER
STAR ASSOCIATES, L.L.C.
By:
Robert L. Heister
Its: Member
STATE OF t/IYJ60IWIA'
COUNTY OF Awe §
This instrument was acknowledged before me on this 1-3 day of June,
2007, by Robert L. Heister, Member of Star Associates, L.L.C., a Texas Limited Liability
Company, on behalf of said limited liability company.
[SEAL]
Nota u is for the
State of %if
JIM BALAAM
COMM. #1537558 0
0 NOTARY PUBLIC . CALIFORNIA —1
m ORANGE COUNTY O
My Comm. Expires January 19. 2009
Settlement Agreement, Aspen Village Apartments Page 7 Of 10
PROPERTY OWNER
PINE RIDGE ASSOCIATES, L.L.C.
By
L es F. Peedin
Its: Member
STATE OF
COUNTY OF §
This instrument was acknowledged before me on this Cc ' day of June,
2047, by lames F. Peedin, Member of Pine Ridge Associates, L.L.C., a North Carolina
Limited Liability Company, on behalf of said limited liability company.
[SEAL] 1k .
Notary Public for the
State of fq % - f �D6_aopS
fill;' `
Settlement Agreement, Aspen Village Apartments Pape 8 Of 10
CITY OF LUBBOCK
By:
David A. Mille
Mayor
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day of
� 1 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.
CELIA WEBB
[SEAL](Smy Notary public, Stale of Texas
Commission Expires 03.01-2010
Nota ublic for the
State of Texas
Settlement Agreement, Aspen Village Apartments Page 9 of 10
APPROVED AS TO FORM AND CONTENT:
MATTHEW L. WADE
Attorney for City of Lubbock
Settlement Agreement, Aspen Village Apartments Pagel 0 of 10
Exhibit A
SPECIAL WARRANTY DEED
THE STATE OF TEXAS §
§ KNOWN ALL MEN THESE PRESENTS
COUNTY OF LUBBOCK §
That TEXAS JUMPIN JACK, L.L.C., STAB; ASSOCIATES, L.L.C., AND PINE
RIDGE ASSOCIATES, L.L.C., hereinafter referred to as Grantor, the owners of Aspen Village
Apartments, for and in consideration of the cash sum of ten dollars ($10.00) and other good and
valuable consideration in hand paid by the City of Lubbock of Lubbock County, Texas, a
municipal corporation, hereinafter referred to as Grantee, 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.
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 to
remaining property not taken.
Reservations from and Exceptions to Conveyance and Warranty:
This conveyance is made by Grantors and accepted by the City of Lubbock
subject to the following:
1. Visible and apparent easements not appearing of record.
2. Any discrepancies, conflicts, or shortages in area or boundary lines or any
encroachments or any overlapping of improvements which a current
survey would show.
3. Matters presently of record in the Official Public Records of Lubbock
County, Texas, that affect the property, including but not limited to
easements, leases, restrictions, reservations, covenants, conditions, oil and
gas leases, mineral severances, and encumbrances for taxes and
assessments (other than liens and conveyances), but only to the extent that
said items are still valid and in force and effect at this time.
TO HAVE AND TO HOLD, the premises herein described and herein conveyed together
with all and singular the rights and appurtenances thereto in any wise belonging onto the City of
Lubbock and its assigns forever; and Grantors do hereby bind ourselves, our heirs, executors,
Special Warranty Deed Page] of S
administrators, successors and assigns to Warrant and Forever Defend all and singular the said
premises herein conveyed unto the City of Lubbock and its assigns against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by through or under
Grantors, but not otherwise.
EXECUTED this the day of May, 2007.
GRANTOR
, Printed Name
TEXAS JUMPIN JACK, L.L.C.
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day of
, 2007, personally appeared , of Texas Jumpin
Jack, L.L.C., 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
Special Warranty Deed Page 2 of 5
GRANTOR
Printed Name
STAR ASSOCIATES, L.L.C.
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day of
_, 2007, personally appeared of Star Associates,
L.L.C., 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
Special Warranty Deed Page 3 of 5
GRANTOR
, Panted Name
PINE RIDGE ASSOCIATES, L.L.C.
STATE OF TEXAS §
COUNTY OF LUBBOCK §
Before me, the undersigned authority, on this day of
, 2447, personally appeared , of Pine Ridge Associates,
L.L.C., 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
Special Warranty Deed
i
I
Page 4 of 5
Exhibit A
Being 0.119 acres (5196 Sq. Ft.) of Lot 614, Richland Hills Addition to the city of Lubbock,
Lubbock County, Texas, as conveyed to Texas Jumpin Jack, L.L.C., Star Assoc., L.L.C. & Pine
Ridge Assoc., L.L.C. and recorded in Volume 8390, Page 119 of the Real Property Records of
Lubbock County, Texas, which said 0.119 acres (5196 Sq. Ft.) of land is more particularly
described as follows:
BEGINNING at an "X" in concrete, set in the existing North right-of-way line of 501i Street for
the Southwest corner of said Lot 614, Richland Hills Addition and for the Southwest corner of
this parcel;
(1) THENCE North 01 °52'44" East, along the West line of said Lot 614, Richland
Hills Addition, 20.19 feet to a %2" iron rod with cap, set in the proposed North right-of-
way line of said 50th Street for the Northwest corner of this parcel;
(2) THENCE South 8549'18" East, along the proposed North right-of-way line of said 50th
Street, 3 88.99 feet to a Y2" iron rod with cap, set for a corner of this parcel;
(3) THENCE Southeasterly along the are of a curve to the left and along the proposed North
right-of-way line of said 50th Street, an arc distance of 37.63 feet to a'/2" iron rod with cap, set
for a corner of this parcel, said curve has a radius of 4,538.75 feet, a central angel of 00°28'30",
and a chord that bears South 86103'33" East with a distance of 37.63 feet;
(4) THENCE North 45°18'54" East, along the proposed North right-of-way lime of said 50'x'
Street, 24.18 feet to a %2" iron rod with cap, set in the East line of said Lot 614, Richland Hills
Addition and the existing West right-of-way line of Bangor Avenue for the Northeast corner of
this parcel;
(5) THENCE South 01°56'53" West, along the East line of said Lot 614, Richland Hills
Addition and the existing West right-of-way line of Bangor Avenue, 6.17 feet to /2" iron rod,
found in the existing North right-of-way line of said 501i Street, for a corner of this parcel;
(6) THENCE Southwesterly along the arc of a curve to the right and along the existing
North right-of-way line of said 501h Street, an arc distance of 23.56 feet to a crow's foot in
concrete, found for the most Southerly Southeast comer of said Lot 614, Richland Hills Addition
and for the most Southerly Southeast comer of this parcel, said curve has a radius of 15.00 feet, a
central angel of 89°59'40", and a chord that bears South 46°55"55" West with a distance of 21.21
feet;
(7) THENCE north 88°04'20" West, along the South line of said Lot 614, Richland Hills
Addition and the existing North right-of-way line of said 501i Street, 427.88 feet (call 428.00
feet) to the P.O.B. of which contains an area of 0.119 acres (5196 Sq. Ft.).
Special Warranty Deed Page 5 of 5