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Home My WebLink AboutContract 39889NO. 2008-066199-3 CITY OF FORT WORTH § CONDEMNATION PROCEEDINGS V. § ATHLETIC VILLAGE OF KELLER, LTD., § LAMAR ADVANTAGE HOLDINGS § COMPANY; BUILDERS FIRSTSOURCE § IN THE COUNTY COURT —TEXAS GROUP, L.P.; FIRST UNITED § BANK & TRUST COMPANY; § SOUTHWESTERN BELL, TLC § PROPERTIES, INC.; CITY OF FORT § WORTH; FORT WORTH INDEPENDENT § AT LAW NO, 3 SCHOOL DISTRICT; TARRANT § COUNTY, TEXAS; TARRANT COUNTY § REGIONAL WATER DISTRICT; JPS § HOSPITAL DISTRICT, AND TARRANT § COUNTY COLLEGE DISTRICT § TARRANT COUNTY, TEXAS NEGOTIATED SETTLEMENT AGREEMENT This agreement ("Agreement" or "Settlement Agreement") is made between the City of Fort Worth ("City"), by its authorized Assistant City Manager, and Athletic Village of Keller, Ltd., a Texas Limited Partnership ("Athletic Village"). WHEREAS, the City is a home rule municipality of the State of Texas; and WHEREAS, the City and Athletic Village are sometimes individually referred to as a "Party" and collectively as the "Parties"; and WHEREAS, the City filed suit against Athletic Village in Cause Number 2008-066199-3, to condemn and acquire the tracts and parcels of land described in the City's petition; and WHEREAS, three special commissioners were subsequently appointed to preside over and to hear the parties in this proceeding to determine the fair market value of the land to be taken and the damages, if any, to the remainder; and OFFICIAL I�E�ORD C1T1( S�C�2E�ARY T. WORTH, TX Negotiated Settlement Agreement P ge 1 DA-3078382 v4 WHEREAS, the City and Athletic Village agree that bonafide disputes and controversies exist between them; and WHEREAS, the City and Athletic Village desire to compromise and settle any and all claims and/or causes of action between the Parties; and WHEREAS, the City has agreed to settle all disputes between it and Athletic Village for the land described in the special warranty deed attached as Exhibit D by: (1) payment to Athletic Village of $45750.00; and (2) constructing a "hooded left turn lane" as part of the Golden Triangle Boulevard improvements as depicted on Exhibit "A" (the "Hooded Left Turn Lane"); and WHEREAS, Athletic Village would not have entered into this Agreement but for the City's covenant to make the payment and construct the Hooded Left Turn Lane; WHEREAS, this Agreement supersedes any previous agreements and contracts, and any such previously executed agreements or contracts, whether or not executed, are null and void. NOW, THEREFORE, in consideration of the recitals set forth above, the mutual promises and agreements made herein, and other valuable consideration, the receipt and sufficiency of which is acknowledged, the City and Athletic Village agree: l . Recitals. The recitals contained in this Agreement: (a) are true and correct as of its effective date; (b) form the basis upon which the Parties negotiated and entered into this Agreement; and (c) reflect the final intent of the Parties with regard to the subject matter of this Agreement. In the event it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall be taken into consideration and, to the maximum extent possible, given full effect. The Parties have relied upon the recitals as part of Negotiated Settlement Agreement Page 2 the consideration for entering into this Agreement and, but for the intent of the Parties reflected by the recitals, would not have entered into this Agreement. 2. Release by Athletic Village. For and in consideration of the recitals set forth above and the actions to be taken under the terms of this Settlement Agreement as described below, Athletic Village does hereby RELEASE, ACQUIT, and FOREVER DISCHARGE the Cityy agents, servants, employees, executors, heirs, and assigns, and all persons, natural or corporate, in privity with it or any of said persons from any and all claims, demands, or causes of action of any kind whatsoever, at common law, statutory, or otherwise, which Athletic Village has now, known or unknown, existing, directly or indirectly attributable to the circumstances made the basis of the above entitled and numbered cause of action, it being intended by the Settlement Agreement to RELEASE, ACQUIT, and FOREVER DISCHARGE all claims of any kind which Athletic Village might have against the City, whether asserted in the above entitled and numbered cause of action, or not. Each Party understands that this release includes any attorneys fees or expenses and that no such fees or expenses shall be available. Each Party also understands that this release does not include any claims and/or causes of action that may arise by reason of the City's failure to comply with this Agreement. 3. Dismissal of Case. The City and Athletic Village agree that a motion to dismiss this case (in the form of the attached Exhibit "B") will be presented to the Court, dismissing all causes of action asserted by the City in the above cause and acknowledging that Athletic Village is relinquishing any and all claims and/or causes of action that Athletic Village might assert against the City because of this condemnation action other than claims and/or causes of action that may arise by reason of the City's failure to comply with this Agreement. Further, the City Negotiated Settlement Agreement Page 3 and Athletic Village agree that an order of dismissal (in the form of the attached Exhibit "C") will be presented to the Court to dismiss this case, taxing court costs against the City. 4. Consideration. For and in consideration of the recitals and releases set forth above and other provisions set forth below, the City agrees to pay Athletic Village the total amount of four thousand seven hundred fifty dollars and no cents° ($45750.00) and to construct or cause to be constructed the Hooded Left Turn Lane to fully and finally settle this lawsuit and to obtain the property described in the Special Warranty Deed that is attached as Exhibit "D" 5. �ecial Warranty Deed. Athletic Village, at the signing of this Agreement, will execute and deliver to the City a special warranty deed in the form attached as Exhibit "D". The document includes as an exhibit a survey and metes and bounds description for the property that Athletic Village is deeding to the City in fee. 6. Parties Bound. This Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their heirs, executors, administrators, legal representatives, successors, and assignees. 7. Prior Agreements Superseded. This Agreement constitutes the only agreement of the City and Athletic Village for settlement of any and all claims arising from the condemnation action against Athletic Village; and it supersedes any prior understandings and written or oral agreements between the Parties respecting the settlement of this case. 8. Texas Law to Apply. This Agreement shall be construed under, and in accordance with, the laws of the State of Texas, and all obligations of the Parties created by this Agreement are performable in Tarrant County, Texas, Negotiated Settlement Agreement Page 4 9. Governmental Powers• Waivers of Immunity. By its execution of this Agreement, the City does not waive or surrender any of its governmental powers, immunities, or rights except as follows: (a) The City waives its governmental immunity from suit and immunity from liability as to any action brought by Athletic Village or its heirs, executors, administrators, legal representatives, successors, and assignees to pursue the remedies available under this Agreement, but only to the extent necessary to pursue such remedies. Nothing in this section shall waive any claims, defenses, or immunities that the City has with respect to suits against the City by persons or entities other than Athletic Village or its heirs, executors, administrators, legal representatives, successors, and assignees. (b) Nothing in this Agreement is intended to delegate or impair the performance by the City of its governmental functions, and the City waives any claim or defense that any provision of this Agreement is unenforceable on the grounds that it constitutes an impermissible delegation or impairment of the City's performance of its governmental functions. (c) The Parties acknowledge and agree that this Agreement was entered into for the express purpose of settling a lawsuit between the Parties, and that this Agreement constitutes a settlement agreement within the meaning of Texas A & M UniversitKingsville v. Lawson, 87 S.All .3d 518 (Tex. 2002)(holding that a governmental entity that agrees to settle a lawsuit from which it is not immune cannot claim immunity from suit for breach of the settlement agreement). 10. Legal Construction. If any of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable, the invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall Negotiated Settlement Agreement Page 5 be construed as if the invalid, illegal, or unenforceable provision had not been included in the Agreement. 11. Remedies. If either Party commits a breach of this Agreement, the non -breaching Party may, in its sole discretion, and without prejudIce, to any other right under this Agreement, law, or equity, seek any relief available at law or in equity, including, but not limited to, an action under the Uniform Declaratory Judgment Act, specific performance, mandamus, and injunctive relief; provided, however, that the non -breaching Party shall not be entitled to terminate this Agreement. The Parties specifically waive any right that they have or in the future may have to terminate this Agreement. In addition, the prevailing party in any such action shall be entitled to reasonable attorneys fees and costs of litigation as determined in a final, non - appealable order in a court of competent jurisdiction. 12. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless it is in writing, dated subsequent to the date of this Agreement, and duly executed by the City and Athletic Village. 13. Payment. Payment shall be made to Athletic Village within twenty-one (21) days of the execution of this Agreement by all Parties. 14. Construction of Hooded Left Turn Lane. The City shall cause the Hooded Left Turn Lane, as depicted in Exhibit "A", to be constructed and operational on or before the date that the center median is constructed or a reasonable time thereafter on the portion of Golden Triangle Boulevard depicted in Exhibit "A". If the City defaults in the timely performance of its obligation under this paragraph, then the City shall pay Athletic Village the sum of five thousand dollars and no cents ($5,000.00) as liquidated damages, which is in addition to the remedies available to Athletic Village set forth above, including the remedy of specific performance. The Negotiated Settlement Agreement Page 6 Parties acknowledge and agree that the damages that would be suffered by Athletic Village in the event of such default by the City would be impracticable or extremely difficult to determine, and that such sum represents the reasonable estimate of the Parties of the amount of damages that would be suffered by Athletic Village as a result of such default by the City. Executed and effective on the ZS' day of February, 2010, at Fort Worth, Tarrant County, Texas. ATHLETIC VILLAGE OF KELLER, LTD. BY: ATHLETIC VILLAGE, INC., ITS GENERAL PARTNER Ke�c�in!�one� >Yesident Athletic Village, Inc. 1362 West North Carrier Parkway Grand Prairie, Texas 75050 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, Notary Public in and for the State of Texas, on this day personally appeared Kevin Jones, 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, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 25�' day of February, `*: *` MY COMMISSION EXPIRES �r:` August 11, 2011 Ne;?otiated Settlement As�eement APPROVED AS FORM AND LEGALITY: `istopher B. Mosley Senior Assistant City Attorney State Bar No. 00789505 City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Tel: (817) 392-7600 Fax: (817) 3924359 Attorney for Petitioner Mark L. Br Attorney at State Bar No. 03283400 Tr T 0 T T ShvPG 1/"a,.wra. LKd�(ov✓� OISOn� P�t.G i -7�-r ain Stree+, gttit . Bona 00 h4cun curet, JrU�G 800 Rrf WorN, TcxaS 76 i o'2� Tel: ( (817) 40S— t935, Fax: (214) 999-6+ 32q- g2S8 Attorney for Defendant ATTEST: THE CITY OF FORT WORTH '�"FF®RAC p.0op0000po ,0 A po_ By: Fernando Costa Assistant City Manager City Secretary Negotiated Settlement Agreement r STATE OF TEXAS § COUNTY OF TARRANT § This instrument was acknowledged before me on February �p my Fernando Costa, Assistant City Manager for the City of Fort Worth, Texas, on behalf of the City. Negotiated Settlement Agreement otary Public in and for the State of Texas EVONIA DANIELS MY COMMISSION EXPIPES July 10, 2013 Page 9 EXHIBIT "A" r No } o � g71 I It IN, It +IN le ;. • �n f,j got „ No �e n » a r W oef .' i g SON zero S { S I r" Allgoo, 0 *+ im �.. COS AD J Y Ni nW +p Q of dJ LL�C a" , ! _ r 7 y 1 IN ? L71 g NtN, w,a o, jr,N I3iTs 2IVyVv I'— �t 1O �.� r- _ v> all ® O 11. v osroal�tra ��91�va NOINn Q �o;Za $ 3z u .4 1 +oy >.,. ZV 3 O tft W Ix cc No NI LLJ m It If CC No m r Q LL — _ NN yj 2G W W art; Do o o N - i �j s� r ; e Ing WUZ �- Hj C s o L` IN IN IN Nr " - 4 t `�gn+:ava siaods .� I- - IN eoN 1VO -, rvwz�Ny � r �ti) : •g a '. " nnOw s �avwrs ,ce +� � � t _ ._ . � Ned ._. i + ` r j NoN NN c �a NrN- !&�1 i �7 NU EX�IIBIT "B" U. 2008-066199-3 CITY OF FORT WORTH § CONDEMNATION PROCEEDINGS V. § ATHLETIC VILLAGE OF KELLER, LTD.; § LAMAR ADVANTAGE HOLDING § COMPANY; BUILDERS FIRSTSOURCE § IN THE COUNTY COURT —TEXAS GROUP, L.P.; FIRST UNITED § BANK & TRUST COMPANY, § SOUTHWESTERN BELL; TLC § PROPERTIES, INC.; CITY OF FORT § WORTH; FORT WORTH INDEPENDENT § AT LAW NO. 3 SCHOOL DISTRICT; TARRANT § COUNTY, TEXAS; TARRANT COUNTY § REGIONAL WATER DISTRICT; JPS § HOSPITAL DISTRICT; AND TARRANT § COUNTY COLLEGE DISTRICT § TARRANT COUNTY, TEXAS MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: The City of Fort Worth, petitioner, moves the Court for an order dismissing the case against Athletic Village of Keller, Ltd.; Lamar Advantage Holding Company; Builders Firstsource —Texas Group, L.P.; First United Bank &Trust Company; Southwestern Bell; TLC Properties, Inc.; City of Fort Worth; Fort Worth Independent School District; Tarrant County, Texas; Tarrant County Regional Water District; JPS Hospital District; and Tarrant County College District, defendants in this lawsuit. The parties show that all matters at controversy have been fully and finally agreed upon and settled. The parties have entered into a negotiated settlement agreement. A true and correct copy of the fully executed settlement agreement will be filed with the court. Therefore, petitioner and defendants request the Court to render an order dismissing petitioner's suit at petitioner's costs. Respectfully submitted, CHRISTOPHER B. MOSLEY Senior Assistant City Attorney State Bar No. 00789505 THEODORE P. GORSKI, JR. Senior Assistant City Attorney State Bar No. 08221000 Attorneys for Petitioner CITY OF FORT WORTH 1000 Throckmorton Street Fort Worth, Texas 76102 (817) 392J600 (817) 392-8359 (fax) CERTIFICATE OF SERVICE I certify that on the day of February, 2010, I sent a copy of this instrument by messenger, by United States mail, return receipt requested, by private delivery service, or by telecopier to the individual(z) listed below. Mark L. Bry�a Attorney at Law Shupe Ventura Lindelow & Olson, PLLC 500 Main Street, Suite 800 Fort Worth, TX 76102 Lamar Advantage Holding Company c/o Capitol Corporate Services, Inc. 800 Brazos, Suite 400 Austin, Texas 78701 MOTION TO DISMISS PAGE 2 Builders Firstsource—Texas Group, L.P. c/o Donald F. McAleenan 2001 Bryan Street, Suite 1600 Dallas, Texas 75201 First United Bank &Trust Company c/o Mickey Faulooner 1700 Redbud Boulevard McKinney, Texas 75069 Southwestern Bell Telephone Company c/o Timothy Whitley AT&T Legal Department 6500 West Loop S, Room 5.5 Bellaire, Texas 77401 TLC Properties, Inc. c/o Capitol Corporate Services, Inc. 800 Brazos, Suite 400 Austin, Texas 78701 Stephen T. Meeks Linebarger, Goggan, Blair & Sampson, L.L.P 100 Throckmorton Street, Suite 300 Fort Worth, Texas 76102-5113 Elizabeth Parmer Perdue, Brackett, Flores, Utt &Burns 307 West 7th Street, Suite 1225 Fort Worth, Texas 76102 Christopher B. Mosley MOTION TO DISMISS PAGE 3 EXHIBIT "C" U. 2008mubblu9-3 CITY OF FORT WORTH § CONDEMNATION PROCEEDINGS V. § ATHLETIC VILLAGE OF KELLER, LTD.; § LAMAR ADVANTAGE HOLDING § COMPANY; BUILDERS FIRSTSOURCE § IN THE COUNTY COURT —TEXAS GROUP, L.P.; FIRST UNITED § BANK & TRUST COMPANY; § SOUTHWESTERN BELL; TLC § PROPERTIES, INC.; CITY OF FORT § WORTH; FORT WORTH INDEPENDENT § AT LAW NO. 3 SCHOOL DISTRICT; TARRANT § COUNTY, TEXAS; TARRANT COUNTY § REGIONAL WATER DISTRICT; JPS § HOSPITAL DISTRICT; AND TARRANT § COUNTY COLLEGE DISTRICT § TARRANT COUNTY, TEXAS ORDER OF DISMISSAL On this date, the court considered the Agreed Motion to Dismiss and is of the opinion and finds that it should be granted. Therefore, it is ordered that the motion be granted and that the case be and it is hereby dismissed; that it is removed from the docket of the court; and that all costs incurred be taxed against the petitioner for which let execution issue. Signed the day of February, 2010. JUDGE PRESIDING EXHIBIT "D" GF# AT0000008260 LSK SPECIAL WARRANTY DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM ANY INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE lT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER, Date: Grantor: ATHLETIC VILLAGE OF i{ELLER, LTD, A TEXAS LIMITED PARTNERSHIP Grantor's Mailing Address: 1362 WEST NORTH CARRIER PARiCWAX, GRAND PRAIRIE, TEXAS 75050 Grantee: CITY OF FORT WORTH, A MUNICIPAL CORPORATION Grantee's Mailing Address: 1000 THROCKMORTON ,FORT WORTH, TARI2ANT COUNTY, TEXAS 76102 Consideration: TEN AND NO/100-------($10.00)-------DOLLARS and other good and valuable consideration, the receipt of which is hereby acknowledged and confessed; Property (including any improvements); BEING THAT CERTAIN LOT, TRACT OR PARCEL OF LAND SITUATED IN THE CITY OF KELLER, TARRANT COUNTY, TEXAS, AND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PURPOSES. Reservations from aad Exceptions to Conveyance and Warranty: THIS CONVEYANCE IS EXECUTED, DELIVERED AND ACCEPTED SUBJECT TO AD VALOREM TAXES FOR THE CURRENT YEAR, ROLLBACK TAXES DUE TO THIS CONVEYANCE OR GRANTEE'S USE OF THE SUBJECT PROPERTY, MAINTENANCE FUND LIENS, ZONING ORDINANCES, UTILITY DISTRICT ASSESSMENTS AND STANDBY FEES, IF ANY, ANY AND ALL VALID UTILITY EASEMENTS CREATED BY THE DEDICATION DEED OR PLAT OF THE SUBDIVISION IN WHICH SAID REAL PROPERTY IS LOCATED, RECORDED EASEMENTS, MINERAL RESERVATIONS AND LEASES, RESTRICTIONS, COVENANTS, CONDITIONS, RIGHTS OF WAY EASEMENTS, IF ANY, AFFECTING THE HEREIN DESCRIBED PROPERTY BUT ONLY TO THE EXTENT THE SAME ARE VALID AND SUBSISTING. THIS CONVEYANCE IS MADE SUBJECT TO AND THERE IS EXCEPTED HEREFROM, ALL OIL, GAS AND OTHER MINERALS AND ROYALTIES HERETOFORE RESERVED OR CONVEYED TO OTHERS AND GRANTOR HEREBY EXCEPTS AND RESERVES UNTO GRANTOR, GRANTOR'S HEI12S SUCCESSORS AND ASSIGNS FOREVER, ALL REMAINING OIL, GAS AND OTHER MINERALS IN AND UNDER AND THATMAY BE PRODUCED FROM THE LANDS DESCRIBED HEREIN. IF THE MINERAL ESTATE IS SUBJECT TO EXISTING PRODUCTION OR AN EXISTING LEASE, THIS RESERVATION INCLUDES THE PRODUCTION, THE LEASE AND ALL BENEFITS FROM IT. GRANTORDOES HEREBY EXPRESSLY RELEASE AND WANE, ON BEHALF OF THE GRANTORAND THE GRANTOR'S HER2S, SUCCESSORS, AND ASSIGNS, ALL RIGHTS OF INGRESS AND EGRESS, AND ANY AND ALL OTHER RIGHTS OF EVERY KIND AND CHARACTER WHATSOEVER, TO ENTER UPON AND USE ANY PART OF THE SURFACE OF THE SUBJECT PROPERTY, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO ENTER UPON AND USE ANY PART OF THE SURFACE OF THE SUBJECT PROPERTY FOR ANY PURPOSE INCIDENT TO EXPLORING FOR DEVELOPING, DRILLING FOR PRODUCING, TRANSPORTING, MINING, TREATING, OR STORING THE OIL, GAS AND OTHER MINERALS IN, ON, AND UNDER THE SUBJECT PROPERTY, NOTHING HEREIN CONTAINED SHALL EVER BE CONSTRUED TO PREVENT THE GRANTOR, OR THE GRANTOR' S HEIRS, SUCCESSORS, OR ASSIGNS, FROM DEVELOPIIV'G OR PRODUCING THE OIL, GAS AND OTHER MINERALS IN AND UNDER THE SUBJECT PROPERTY BY POOLING OR BY DIRECTIONAL Warranty Deed(WDvi) Page i AT01 009742 DRILLING UNDER THE SUBJECT PROPERTY FROM WELL SITES LOCATED ON TRACTS OUTSIDE THE SUBJECT PROPERTY. Grantor, for the consideration and subject to the reservations from and exceptions to conveyance and warranty, grants, sells, and conveys to Grantee the property, together with all and singular the rights and appurtenances thereto in any wise belonging, to have and hold it to Grantee, Grantee's heirs, executors, administrators, successors, or assigns forever. Grantor hereby binds Grantor and Grantor's heirs, executors, administrators, and successors 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 Conveyance and the Exceptions to Conveyance and Warranty, when the claim is by, through, or under Grantor, but not otherwise. When the context requires, singular nouns and pronouns include the plural. ATHLETIC VILLAGE OF KELLER, LTD. BY: ATHLETIC VILLAGE, INC., ITS GENERAL PARTNER BY: ACCEPTED AND AGREED TO: CITY OF FORT WORTH le3'fl FERNANDO COSTA, ASSISTANT CITY MANAGER KEVIN JONES, PRESIDENT (Acknowledgment) THE STATE OF TEXAS COUNTY OF This instrument was acknowledged before me on the day of , by KEVIN JOKES, PRESIDENT OF ATHLETIC VILLAGE, INC., GENERAL PARTNER OF ATHLETIC VILLAGE OF KELLER, LTD, A TEXAS LMTED PARTNERSHIP, ON BEHALF OF SAID LIMITED PARTNERSHIP. Notary Public, State of Texas Notary's Name (printed): Notary's commission expires: NOTICE: This document affects your legal rights. Read it carefully before signing. AFTER RECORDING RETURN TO: CITY OF FORT WORTH, A MW[C[PAL CORPORATION 1000 THROCKMORTON , FORT WORTH, TARRANT COUNTY, TEXAS 76102 PREPARED IN THE LAW OFFICE OF: BEADLES, NEWMAN &LAWLER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 3500 HULEN STREET FORT WORTH, TEXAS 76107 Warranty Deed (WDvI) AT01_009742 Page 2