HomeMy WebLinkAboutResolution - 1077 - Agreement, Etc. - Resthaven - Improvements, Frankford Ave - 04/08/1982�EGlS'�R�
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RESOLUTION
RESOLUTION 1077 — 4/8/82
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 di-
rected to execute for and on behalf of the City of Lubbock a Paving,. Curb and
Gutter, Street Dedication, Mechanic's and Materialmen's Lien, and Deed of Trust
Lien and Agreement between said City of Lubbock and Resthaven of Lubbock, Inc.
attached herewith 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 8th day of April 1982.
Seat BILL cALISTER, MAYOR
ATTEST:
Evelyn Gaffga, Cit tary-Treasurer
APPROVED AS TO CONTENT:
Don Jofnings,ity Engineer
N0478i Pace 169
RESOLUTION 1077 -.4/8/82
SzCh,FTAR T '' ' �2ER
vOL PAGE 170
PAVING, CURB AND GUTTER, STREET DEDICATION, MECHANIC'S AND
MATERIALMEN'S LIEN, AND DEED OF TRUST LIEN AND AGREEMENT
STATE OF TEXAS § f
COUNTY OF LUBBOCK Zc §
Be it known that on the day of c , 19 7-. in con-
sideration of the mutual agreements and covenantb made by the undersigned
parties hereto, the City of Lubbock, a home rule municipality located in Lubbock
County, Texas, herein called "City" and Resthaven of Lubbock, Inc., a corporation,
herein called "Resthaven" do hereby contract and agree as follows:
I.
In order to accomplish the widening, paving, and installation of curb and
gutter improvements on a portion of Frankford Avenue, Resthaven does hereby
dedicate to the public for the public use forever a twenty feet wide strip of
land for street purposes, said twenty feet strip of land being described as the
West 20 feet of Section 4, Block E-2, Lubbock County, Texas, which lies between
the South right-of-way line of State of Texas Highway Loop 289 and a point
which is 140 feet North of the South line of said section 4, Block E-2, Lubbock
County, Texas, so long as said street is used for public street purposes.
II.
The City has caused a notice to bidders to be published in accordance with
Article 2368A, V.A.C.S., for such proposed public improvements, and bids for
such public works improvements contract have been considered, and the contract
for the paving and curb and gutter improvements of the East half (E1/2) of
Frankford Avenue from the South right-of-way line of said Loop 289 to a point
140 feet North of the South line of said Section 4, Block E-2, Lubbock County,
Texas, has been awarded to the lowest and best bidder by the City Council of
the City;
Resthaven shall obtain (at its expense) the subordination of the herein-
after named lienholders to the dedication of said twenty feet wide strip of
land for public street purposes and the mechanic's and materialmen's lien
granted or to be granted to the City by Resthaven as hereinafter set forth,
such lienholders being named as follows:
(1) First Federal Savings and Loan Association of Lubbock, Texas.
(2) Lillian Ruth Brown, individually and as independent executrix and
trustee under the will and estate of R. P. Brown, deceased.
(3) Ethelyn Campbell, individually and as independent executrix and
trustee under the will and estate of Crayton 0. Campbell, deceased.
Said subordinations shall be in a form satisfactory to the City Attorney of the
City, and in proper form for recordation in the public records of the County
Clerk of Lubbock County, Texas, and shall be delivered to the City contemporaneously
with this contract duly executed by Resthaven for acceptance and execution by
City.
IV.
City shall pay to the contractor
Kerr Construction Company
(who was successful lowest and best bidder) the sum of $ 47,920.31
upon satisfactory completion of the paving and curb and gutter improvements on
Frankford-Avenue as hereinabove set forth (all to the satisfaction of the City).
Resthaven agrees to reimburse the City for the cost of 76.2 percent of the
paving costs in the amount of $ 26,164.70 , and Resthaven agrees to reimburse
the City for the complete costs of all curb and gutter improvements in the
amount of $ 13,583.43 . Payment of such reimbursement by Resthaven for 76.2
percent of paving costs and all of curb and gutter costs shall be in six (6)
equal installments together with interest thereon on the unpaid balance at
the rate of 6% per annum, the first installment in the principal amount of
$ 6,624.68 (which is 1/6 of the total amount due) being due and payable
to the City at City Hall, Lubbock, Texas as a down payment within 30 days after
the date of formal acceptance of the said street improvements by City Council
of the City by action of said City Council thereon, and the remaining five (5)
installments, each in the principal amount of $ 6,624.69 plus accrued interest
at the rate of 6 percent per annum payable with each such principal installment,
the second installment and interest thereon shall be due and payable on or
before one year from the date of said formal acceptance of paving improvements
by the City Council of the City, and successive annual installments of principal
and interest thereafter shall be due and payable respectively on or before
two, three, four, and five years from the date of said formal acceptance of
paving improvements by City Council of the City, and further provided that all
principal and interest due hereunder not sooner paid shall be due and payable
five years from date of formal acceptance of paving improvements by action of
City Council of the City. In the event of default of any payment by Resthaven
to City, the City may declare the whole remaining balance due hereunder. Rest -
haven waives demand, presentment, notice of dishonor, diligence in collection,
and notice of protest and agree to all extensions and partial payments before
or after maturity without prejudice to the City.
V.
The payment of this obligation is secured by a mechanic's and materialmen's
lien given and herewith granted to City by Resthaven to secure the City for
advances made by City in payment for material and labor used in the construction
of the paving and curb and gutter improvements as hereinabove set forth. The
improvements herein contemplated enhance the value of the following described
real estate, and said lien is hereby against and covers the real estate de-
scribed on "Exhibit A" hereto attached and made a part hereof for all purposes.
Said real estate is not a dedicated cemetery at the time of execution of this
instrument, and Resthaven hereby waives any exemptions it may have with respect
to cemetery exemptions under Texas law to assure validity of liens herein
granted to City.
VI.
Said indebtedness as above-described is hereby further secured by a deed
of trust lien hereby granted by Resthaven to the City against said real
estate, and for such pruposes Resthaven hereby sells, conveys and grants said
real estate as above-described unto Evelyn Gaffga, City Secretary of the
City of Lubbock or her successor in office as Trustee, with all improvements
thereon to have and hold said real estate together with all rights, privileges,
appurtenances, rents, royalties and income to Trustee and his substitutes,
successors and their assigns forever in trust to secure the indebtedness as
hereinabove set forth.
Should Resthaven fail or refuse to make prompt payment of the above described
indebtedness as the same shall become due and payable or fail or refuse to
perform any of the acts, conditions, obligations and covenants herein provided,
then this DEED OF TRUST shall remain in force and effect and City shall be
entitled, without being under legal obligation to do so, to exercise the option
of:
(a) Declaring the whole of the note secured by this DEED OF TRUST,
including principal interest and all sums and expenses expended by City for and
in behalf of Resthaven as herein provided, immediately due and payable and
instituting suit for the collection of same, and for the foreclosure of this
deed of trust lien.
(b) Declaring the whole of the indebtedness secured by this DEED OF
TRUST, including principal, interest and all sums and expenses expended by City
for and in behalf of Resthaven as herein provided, immediately due and payable,
with or without notice to Resthaven and without presenting for payment any
matured part of the indebtedness secured by this DEED OF TRUST, and cause
trustee sale to be made.
vaL 1781 PAGE
� VOL 1781 .172
(c) Performing or causing to be performed for and in behalf of Resthaven
any acts, conditions, obligations and .covenants which Resthaven has failed or
refused to perform and all sums so expended, including attorney's fees, court
costs, agent's fees or commissions, or any other cost or expense of any type or
nature, shall bear interest from the date of payment at the rate of 10% per
annum, and shall be payable at the place designated in the above described note
and shall be secured by the lien or liens securing the payment of the above
described note and payable on demand.
Should City elect to exercise the option on enforcing this trust by
trustee's sale as above provided, it shall be the duty of TRUSTEE upon request
to do so by City, to sell the above described property, or any part thereof, at
public vendue to the highest bidder for cash at the door of the courthouse of
the county in which said property is situated, first giving.21 days public
notice of the time, terms, an place of said sale and of the property to be
sold, by notice given in the manner at such date required by the laws of the
State of Texas for sale of real estate under deeds of trust, and upon such sale
said TRUSTEE shall execute and deliver a deed or deeds conveying in fee simple
the property sold to the purchaser or purchasers thereof, with full covenants
of warranty, conveying all the title which GRANTOR has in said premises at the
date of said sale or had at the date of execution thereof, and shall receive
the proceeds of said sale, out of which shall be paid, first, the cost and
expenses of executing this trust; next, to the payment of all sums of money
that may have been expended by City for and in behalf of Resthaven as herein
provided; next, to the full payment of principal, interest and attorney's fees
due and unpaid on the note secured by this DEED OF TRUST, and the remainder, if
any, shall be paid to Resthaven. It is agreed that the recitals in the conveyance
to the purchaser, or purchasers, shall be full and conclusive evidence of the
truth of the matters therein stated, and all prerequisites to said sale shall
be presumed to have been performed, and such sale and conveyance shall be
conclusive against GRANTOR, his heirs and assigns.
City shall have the right to become the purchaser at all sales to enforce
this trust, being the highest bidder, and to have the amount for which such
property is sold credited on the debt then owing.
If the above named TRUSTEE should die, resign, remove from the State of
Texas, become disqualified from acting, or fail or refuse to act when requested
by City to do so, City shall have full power to appoint, without notice to
Resthaven, by an instrument in writing, a substitute trustee, and, the right
to appoint a substitute trustee shall exist as often and whenever from any of
said causes, any trustee, original or substitute cannot or will not act, and
said substitute trustee shall succeed to all the estates, rights, powers, and
duties of the above named TRUSTEE.
VII.
If this indebtedness is placed in an attorney's hands for collection, or
collected by a suit or through a bankruptcy, or probate, or any other court,
either before or after maturity, then in any of said events, 10% of its amount
shall be added and collected as attorney and collection fees, which upon accrual
shall bear the same rate of interest at the rate of 10% per annum.
VIII.
It is understood that this instrument may be recorded by any undersigned
party hereto in any appropriate public record of the County Clerk of Lubbock
County, Texas deemed necessary by any such undersigned party to protect its
respective interest in the premises.
M
It is hereby agreed and stipulated that any release by the City of the
mechanic's and materialmen's lien or deed of trust lien as hereinabove set
forth which may or shall be hereafter made, given, or granted by City shall in
no way affect or release the street dedication granted herein to the City by
Resthaven covering the twenty feet strip of land (as hereinabove set forth)
described as the West 20 feet of Section 4, Block E-2, Lubbock County, Texas,
which lies between the South right-of-way line of State of Texas Highway Loop
289 and a point which is 145 feet North of the South line of said Section 4,
Block E-2, Lubbock County, Texas..
In addition to the notice of any proposed trustee's sale notice required
by law, notice by certified United States mail of any such proposed trustee's
sale shall be given to the following named lienholders at their respective
addresses as shown below or to last known address of such lienholder, 21 days
before the date of such proposed sale, such notice shall be deemed served the
day such notice is deposited in the United States mail, such lienholders being
namely:
(1) First Federal Savings and Loan Association ,of Lubbock, Texas, whose
address is: 1300 Broadway, Lubbock, Texas, 79401
(2) Lillian Ruth Brown, individually and as independent executrix and
trustee under the will and estate of R. P. Brown, deceased whose
address is: 2536 Lindenwood, San Angelo, Texas, 76901
(3) Ethelyn Campbell, individually and as independent executrix under the
will and estate of Crayton 0. Campbell, whose address is: 2330 58th
Street, Lubbock, Texas, 79412
Executed by the undersigned parties as of the date first above -written in
the City of Lubbock, Lubbock County, Texas, in duplicate originals.
Resthaven of Lubbock, I
BY:
President
City of Lubbo k
BY:
ill McAli ter, Mayor
A LTESTI:
elyn Ga fga, City Tecll,e y -Treasurer
APPROVED AS TO CONTENT:
e e Iu o
Denzel Per ull, Dire tor of
Public Se es
APPROVED AS TO FORM:
J orth Fulling m,
sistant :City Attorney
THE STATE OF.TEXAS §
COUNTY OF LUBBOCK §
BEFORE ME, the undersigned authority, a Notary Public in and for Lubbock
County, Texas, on this day personally appeared BILL McALISTER, known to me to
be the person whose name is subscribed to the foregoing instrument and acknow-
ledged to me that he executed the same as the act and deed of the City of
Lubbock and as Mayor, for the purposes and consideration therein expressed, and
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS day of ,
19$2.
Notar Public, Lubbock County, Texas
}� My Commission Expires:%
VOA781 PACE 173
y• I '*VOL178 . PACE 174
THE STATE OF TEXAS §
COUNTY OF LUBBOCK §
BEFORE ME, the undersigned authority, a Notary Public in and for Lubbock
County, Texas, on this day personally appeared EaWA`(a \Q, , SM1T,h President of
Resthaven of Lubbock, Inc., a corporation, known to me to be the person whose
name is subscribed to the foregoing instrument and acknowledged to me that he
executed the same as the act and deed of said corporation, and as its President,
for the purposes and consideration therein expressed, and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS day of P oyl'L
, 1982.
Notary Public, Lubbock County, lexas
My Commission Expires:
`J Seat
My )N EXPIRES
Gam, 398
BRYCE
EXHIBIT "A"
PAVING, CURB AND GUTTER, STREET DEDICATION, MECHANIC'S AND
MATERLALMEN'S LIEN, AND DEED OF TRUST LIEN AND AGREEMENT
The property which is encumbered under Paragraph V and that which follows
of the attached agreement is all of that property described in Deed of Trust
dated September 1, 1964 and recorded in Volume 413 at Page 154, Deed of Trust
Records of Lubbock County, Texas, reference to which is hereby made for a more
complete description, and wherein the following described property was conveyed
in trust, to -wit:
TRACT 1: The West Sixty (W-60) Acres of the Southwest One -Fourth (SW/4)
of Section Four (4), Block E-2, B & B Survey, Certificate No. 62, Lubbock
County, Texas, described by metes and bounds as follows:
BEGINNING at the Southwest corner of said Section 4, Block E-2;
THENCE North 950.4 varas;
THENCE East 356.4 varas;
THENCE South 950.4 varas;
THENCE West 356.4 varas and being the same land conveyed by Warranty Deed
dated March 19, 1923, by Louis Schroeder, et al, to N. A. Payne, said Deed
being shown of record in Volume 79, Page 555, Deed Records of Lubbock
County, Texas; and
TRACT 2: A tract of land out of the Northwest One -Fourth (NW/4) of Section
4, Block E-2, Lubbock County, Texas, and being that portion of Tract 2 of
the Isham Tubbs Estate (plat of which is recorded in Volume 351, Page 227,
of the Deed Records of Lubbock County, Texas) which lies South of a proposed
State Highway Freeway known as Loop 289, the tract herein conveyed being
more particularly described by metes and bounds as follows:
BEGINNING at the Southeast corner of said Tract No. 2;
THENCE North along the East line of said Tract No. 2 distance of 1,458.9
feet to a point in the Southeasterly Right-of-way line of said proposed
freeway;
THENCE South 53°03' West, along the said Right-of-way line, a distance of
819.9 feet to the beginning of a curve;
THENCE Southwesterly continuing along the said Right-of-way line and along
the arc of a circular curve to the left, the radius of which is 5,579.65
feet, a distance of 1,386.7 feet to a point in the South line of the said
Tract No. 2, from which the Southwest corner of the said Tract No. 2 bears
West 54.8 feet;
THENCE East, along the South line of said Tract No. 2, a distance of
1,653.2 feet to the PLACE OF BEGINNING, containing 30.228 acres of land,
more or less; and including all land in the said Tract No. 2, Isham Tubbs
Estate land lying South of the tract of land described in a Deed dated
March 20, 1948, from Olive Fluke and husband, to the State of Texas, which
is recorded in Volume 687, Page 307, Deed Records of Lubbock County,
Texas.
Save and except the following:
A tract of land out of the Southwest Quarter (SW 1/4) of Section 4, Block
E-2, Lubbock County, Texas, and being more particularly described as
follows:
BEGINNING at a point 60.0 feet North and 81.7 feet East of the Southwest
corner of said Section 4, for the Southwest and beginning corner of this
tract;
THENCE North 3°30' East 99.4 feet to a nail set for the West -Northwest
corner of this tract;
' VOL. 1 81 PAGE 175
VDL 1781 F 76
A6E
THENCE North 45°29' East, 93.8 feet to a nail set for the North -Northwest
corner of this tract;
THENCE East 302.9 feet to a nail set for the Northeast corner of this
tract;
THENCE South 165.0 feet to a point for the Southeast corner of this tract;
THENCE West 375.9 feet to the place of beginning, together with all improve-
ments thereon.
And Save and Except further all of such land which has heretofore been dedicated
for public right of way or utility easement or cemetery purposes as reflected
by the records of the County Clerk of Lubbock, County, Texas.
�IAiE OF TEXAS
COUNTY OF LUBBOCK
,,few st
I he eby artily that thb IF was FILED an dM
• L_,t dato sad et the time stamped hereon by mo and was
RECORDED in the Volume and F000 of the RECORD11 a:
p� Lubbock County. Taxes as stamped hereon by mo. L` '
!! 3 1` p R? RPR 15 1982