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HomeMy WebLinkAboutResolution - 2007-R0216 - Compromise Settlement Agreement - Owners Of The Dominion Apartment Complex - 05/24/2007Resolution No. 2007-80216 May 24, 2007 Item No. 5.30 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 Dominion apartment complex, McDominion, L.C., a Texas limited liability company, relating to the acquisition of a portion of the property owned by McDominion, L.C., for the widening of West 50'x' 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 24th day of May , 2007. - - -- -**e- David A. Mill r, Mayor ATTEST: (ZQ Rebcca Garza, City Secretary APPROVED AS TO CONTENT: Dave Booher Right of Way Agent APPROVED AS TO FORM: v�'/�` Matt w L. Wade Natural Resources Attorney mliccdocslsettlement resolution - Dominion May 17, 2007 Resolution No. 2007-80216 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 McDominion, L.C., a Texas limited liability company, the owners of The Dominion apartment complex located on 50th Street, (collectively the "Property Owner"). RECITALS WHEREAS, for the purposes of widening 501h Street from Slide Road to West Loop 289 the City Council of the City of Lubbock authorized, via Resolution 2005- R0399, passed August 25, 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 0.003 acres (150 Sq. Ft.) out of Tract "A", The Dominion, an addition to the City of Lubbock, Lubbock County, Texas, as recorded in Volume 6163, Page 235 Real Property Records of Lubbock County, Texas and conveyed to McDominion, L.C., a/k/a McDominion, L.C. and recorded in Volume 6763, Page 23 of the Real Property Records of Lubbock County, Texas, which said 0.003 acres (150 Sq. Ft.) of land is more particularly described as follows: BEGINNING at a 1/z" iron rod with cap, set in the North line of said Tract "A", The Dominion and in the existing South right-of-way line of 501h Street for the Northwest and beginning corner of this parcel, whence a '/2" iron rod with cap found for the Northwest corner of said Tract "A", The Dominion bears North 88°11'51" West, 687.18 feet; (1) THENCE South 88°11'51" East, along the existing South right-of-way line of said 501h Street and the North line of said Tract "A", The Dominion, 5.36 feet to a 1/2" iron with cap, found for the most Northerly Northeast corner of said Tract "A", The Dominion 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 50th Street and the North line of said Tract "A", The Dominion, an arc distance of 23.72 feet to V" iron rod with cap, found in the existing West right-of-way line of Chicago Avenue and the East line of said Tract "A", The Dominion for a cornier of this parcel, said curve has a radius of 15.00 feet, a central angle of 90°36'00", and a chord that bears South 43°28'00" East with a distance of 21.32 feet; (3) THENCE South 01°57'07" West, along the existing West right-of-way line of said Chicago Avenue and the East line of said Tract "A", The Dominion, 4.49 feet to a %Z" iron rod with cap, set in the proposed South line of said 50`x" Street for the Southeast corner of this parcel; (4) THENCE North 44°23'05" West, along the proposed South right-of-way line of said 501h Street, 28.17 feet to the P.O.B. of which contains an area of 0.003 acres (150 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. L IN CONSIDERATION of the payment by City to the Property Owner of the sum of ONE THOUSAND and NO/100 DOLLARS ($1,000.00), 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 ONE THOUSAND and NO/100 DOLLARS ($1,000), payable 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 funds 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. The funds shall be made payable to Zachary S. Brady, Trustee for McDominion, L.C. 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) That the Closing Agent be presented with sufficient documentation, proof and/or information to perform or otherwise satisfy the requirements of Settlement Agreement, McDominion Wage 2 of 7 items 6-14 of Schedule C, which is attached hereto as Exhibit B and incorporated herein as though set forth fully herein; 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 night 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 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. Settlement Agreement, McDominion Page 3 of 7 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. lb. 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 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. Settlement Agreement, McDominion Page 4 of 7 EFFECTIVE this 01-7 day of ��� , 2007. PROPERTY OWNER f du"'Printed Name AS of MCDOMMON, L.C. STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, on this Uday of 2007, personally appeared 91" He bUgW of McDominion, 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, doing so asAN �v , of McDominion, L.C., a Texas limited rY P ANGELA D. TAYLOR NOWY PUW- SWe of T"M }, JANUARY 30, 2008 Settlement Agreement, McDominion ty company, and on its behalf. Page 5of7 CITY OF LUBBOCK By. David A. Mill Mayor STATE OF TEXAS § COUNTY OF LUBBOCK § Before me, the undersigned authority, on this _ 2,5 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. CRIA. VVE-9$ [SEA11emycomnssior, Notary Pa,v Expires, -2010 �1� -X44-" Nota is for the State of Texas Settlement Agreement, McDominion Page 6 of 7 APPROVED AS TO FORM AND CONTENT: MATTHEW L. WA E Attorney for City of Lubbock Settlement Agreement, McDominion Page 7 of 7 Resolution leo, 2007—RO216 Exhibit "A " SPECIAL WARRANTY DEED THE STATE OF TEXAS § § KNOWN ALL MEN THESE PRESENTS COUNTY OF LUBBOCK § That MCDOMINION L.C., A TEXAS LIMITED LIABILITY COMPANY, a/k/a MCDOMINION, L.C. hereinafter referred to as Grantor, the owners of certain real property described herein, for and in consideration of the cash sum of ten dollars ($10.40) 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 presents 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 unto the City of Lubbock and its assigns forever; and Grantors do hereby bind ourselves, our heirs, executors, Special Warranty Deed Pagel of 3 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 2007. GRANTOR �u &� , Printed Name AS ,t�t&,,aaO-� of MCDOMINION L.C. STATE OF TEXAS COUNTY OF LUBBOCK Before me, the undersigned authority, on this day of U 2007, personally appeared 61c, of McDominion L.C., a Texas limited liability company, 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, doing so as '1J p4� !1- , of McDominion, L.C., a Texas limited liability comgaqy, and on its behalf. ANGELA D. TAYLOR ESE e = p , StM dTexas ? `_ Daly comn�nn metres 30 V t Ttb6c for the Stoxas Special Warranty Deed Page 2 of 3 Exhibit A Being 0.003 acres (150 Sq. Ft.) out of Tract "A", The Dominion, an addition to the City of Lubbock, Lubbock County, Texas, as recorded in Volume 6163, Page 235 Real Property Records of Lubbock County, Texas and conveyed to McDominion, L.C., a/k/a McDominion, L.C. and recorded in Volume 6763, Page 23 of the Real Property Records of Lubbock County, Texas, which said 0.003 acres (150 Sq. Ft.) of land is more particularly described as follows: BEGINNING at a ''/z" iron rod with cap, set in the North line of said Tract "A", The Dominion and in the existing South right-of-way line of 50th Street for the Northwest and beginning corner of this parcel, whence a %" iron rod with cap found for the Northwest corner of said Tract "A", The Dominion bears North 88°11'51" West, 687.18 feet; (1) THENCE South 88°11'51" East, along the existing South right-of-way line of said 50th Street and the North line of said Tract "A", The Dominion, 5.36 feet to a 112" iron with cap, found for the most Northerly Northeast corner of said Tract "A", The Dominion 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 50tb Street and the North line of said Tract "A", The Dominion, an arc distance of 23.72 feet to %" iron rod with cap, found in the existing West right-of-way line of Chicago Avenue and the East line of said Tract "A", The Dominion for a corner of this parcel, said curve has a radius of 15.00 feet, a central angle of 90°36'00", and a chord that bears South 43°28'00" East with a distance of 21.32 feet; (3) THENCE South 01°57'07" West, along the existing West right-of-way line of said Chicago Avenue and the East line of said Tract "A", The Dominion, 4.49 feet to a %" iron rod with cap, set in the proposed South line of said 50th Street for the Southeast corner of this parcel; (4) THENCE North 44°23'05" West, along the proposed South right-of-way line of said 50th Street, 28.17 feet to the P.O.B. of which contains an area of 0.003 acres (150 Sq. Ft.). Special Warranty Deed Page 3 of 3 Resolution No. 2007-80216 Exhibit 64B" SCHEDULE C Your Policy will not cover loss, costs, attorney's fees, and expenses resulting from the following requirements that will appear as Exceptions in Schedule B of the Policy, unless you dispose of these matters to our satisfaction, before the date the Policy is issued: Documents creating your title or interest must be approved by us and must be signed, notarized and filed for record. Satisfactory evidence must be provided that: no person occupyirg the land claims any interest in that land against the persons named in ,paragraph 3 of Schedule A, all standby fees, taxes, assessments and charges against the property have been paid, all improvements or repairs to the property are oompleted and accepted by the owner, and that all contractors, sub -contractors, laborers and suppliers have been fully paid, and that no mechanic's, laborer's or materialmen's liens have attached to the property, there is legal right of access to and from the land, on a Mortgagee 'Policy only) restrictions have not been and will not be violated that affect the validity and priority of the insured mortgage. 3. You must pay the seller or borrower the agreed amount for your property or interest. 4. Any defect, lien or other mater that may affect title to the land or interest insured, that arises or is filed after the effective date of this Commitment_ 5. Good funds in an amount equal to all disbursements must be received and deposited before any disbursement may be made. Partial disbursements, prior to the receipt and deposit of good funds, are not permitted_ "Good funds' means: a. Cash or wire transfers; b. Certified check, cashier's checks and teller's checks; c. Uncertified funds in amounts less than $1,500.00, including checks, traveler's checks, money orders, and negotiable orders of withdrawal; provided multiple items shall not be used to avoid the $1,500.00 limitation; d. Uncertified funds in amounts of $1.500.00 or more, drafts, and any other items when collected by the financial i-istitution, e. State of Texas warrants; f United States Treasury checks-, g. Checks drawn on a bank or savings and loan association insured by the FDIC and FSLIC and for which a transaction code has been issued pursuant to, and in compliance with, a fully executed immediately available funds procedure agreement (form T-37) with such bank of savings and loan association, h. Checks by city and county governments located in the State of Texas. 6. We will require that a Partial Release of Lien be filed in the Official Public Records of Lubbock County, Texas, of the Multifamily meed of Trust, Assignment of Rents and Security Agreement and Fixture Filing from MCDOMINION, LC to HOLLIDAY FENOGLIO FOWLER, dated December 11, 2006, in the original principal sum of $13,300,000.00, and recorded in Document Number 2006051368 of the Official Public Records of Lubbock County, Texas, assigned to FEDERAL HOME LOAN MORTGAGE CORPORATION, dated December 11, 2006, and recorded in Document Number 2006051369 of the Official P,ablic Records of Lubbock County, Texas, 7. We will require Partial Release of the UCC Financing Statement by and between MCDOMINION, LC, as Debtor, and FEDERAL HOME LOAN MORTGAGE CORPORATION, as Secured Party, and recorded in Document Number 2006051370 of the Offidal Public Records of Lubbock County, Texas. (SEE CONTINUATION OF SCHEDULE C, ATTACHED HERETO & MADE A PART HEREOF) 8. We will require that Service Title Company be provided with a copy of the Articles of Organization and 'Regulations, or as they are often called, Membership Agreements of Mcaominicn, L.C., and any amendments thereto, in order to determine the authority of the members andlor managers of said limited liability company_ After review of said documents, we may have additional requirements. g, if the manager or member of said Limited liability company is a corporation, we will require that Service Title Company be provided with ,Articles of Incorporation and any amendments thereto of said corporation- We will also require a Certificate of Good Standing for said oorporation indicating that all franchise taxes have been paid. 10. We will require that Service Title Company be provided with a Certificate of Organization issued by the State of Texas Secretary of State showing that McDominion, L.C., has been properly registered_ 11. We will require that Service Title Company be provided with a Certificate of Account Status from the Texas Comptroller of Public Accounts for McDominion. L.C. 12. We will require an Original Certificate of Resolution(s), in recordable form (executed before a Notary Public), certifying that the limited liability company, MGDominion, LC-, has authorized the sale of subject property, and to confirm the authority of the members and/or managers who are authorized to act en behalf of the limited liability company to execute any and all documents in regard to this transaction_ 13. We will require to be filed in the Oficial Public Records of Lubbock County, Texas, a correction of the General Warranty Deed, recorded in Volume 6763, Page 23 of the Real Property Records of Lubbock County, Texas, because the Grantor of said Deed should be shown as McDougal Construction, L -C., not McDougal Construction, Inc., as shown on Page 24 of said Volume 6763. Also, show Delbert G. McDougal as Manager of McDougal Construction, L.0 , a Texas limited liability company, in the notary acknowledgment of said correction deed.