Loading...
Ord 76-2009 10/20/2009 ORDINANCE NO. 7�O `� Ordinance Of The City Council Of The City Of Wichita Falls, Texas, Authorizing The City Manager To Execute All Necessary Documents To Settle City of Wichita Falls v. Gary Mehan, dba GM Properties, Civil Action No. C-307-A, And Appropriating Necessary Funds From General Fund Reserves For Settlement Of Said Case. WHEREAS, City of Wichita Falls v. Gary Mehan, dba GM Properties, Civil Action No. C-307-A, is filed in the District Court of Wichita County, Texas, 30 Judicial District; and, WHEREAS, the parties in this lawsuit have reached a settlement of all pending matters in the litigation. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is authorized to execute all necessary documents to settle City of Wichita Falls v. Gary Mehan, dba GM Properties, with the terms generally in accordance with the attached General Release and Indemnity Agreement, in a form to be approved by the City Attorney, and funds are appropriated from General Fund reserves in a sum sufficient to settle said lawsuit for said settlement thereof. � M YOR ATTEST: 'ty Clerk GENERAL RELEASE AND INDEMNITY AGREEMENT THIS GENERAL RELEASE AND INDEMNITY AGREEMENT is made and entered into as of , 2009, by Gary Mehan, dba GM Properties ("Mehan). Recitals 1. The City of Wichita Falls ("City") sought fee title to the hereinafter described tracts or parcels of land for the Maplewood Extension Reliever Project, which is a public purpose: Being a 0.117 acre tract of land out of Lot 1, Block 8, Burlington Call Field Industrial District, as described in deed to Gary Mehan and recorded in Volume 2343, Page 600, official public records Wichita County, Wichita Falls, Texas, and also out of a 0.29 acre tract as recorded in Volume 1807, Page 495 of the Wichita County Deed Records and being more specifically described by metes and bounds as follows: BEGINNING at a'/2 inch iron rod, said iron rod being the Northwest corner of said Lot 1, Block 8, and being the point of intersection of the South right-of- way line of Tarry Street (a previously dedicated street) and the East right-of- way line of Lawrence Road (a previously dedicated street) for the Northwest corner and Place of Beginning of this tract; THENCE leaving said East right-of-way line of Lawrence Road, South 89° 56' 02" East 15.00 feet along the North line of said Lot 1, Block 8, and said South right-of-way line of Tarry Street to a'/2 inch iron rod for the Northeast corner of this tract; THENCE leaving said South right-of-way line and along a line parallel to and 15.00 feet East of said East right-of-way line of Lawrence Road, South 00° 43' 45" West 340.02 feet to a'/z inch iron rod lying in the North property line of Lot 1, Block 1, Quail Creek Crossing for the Southeast corner of this tract; THENCE along said North line of Lot 1, Block 1, North 89° 56' 02" West 15.00 feet to a`/z inch iron rod in said East right-of-way line of Lawrence Road for the Southwest corner of this tract; THENCE along said East right-of-way line of Lawrence Road, North 00° 43' 45" East 340.02 feet to the Place of Beginning and containing 0.117 acres, more or less. 2. The City of Wichita Falls and the owner of the referenced property, Gary Mehan, dba GM Properties, were unable to agree upon the value of said land or the damages, if any. The City therefore brought proceedings in eminent domain to acquire fee title to said land as it is entitled to do under existing law, with title to said land vesting in the City of Wichita Falls, Texas (City of Wichita Falls v. Gary Mehan, dba GMProperties, Civil Action No. C-307-A). 3. Three Special Commissioners were appointed to determine the value of the taking. The Commissioners awarded the sum of $128,500 to Mehan. The City deposited the $128,500 award into the registry of the Court. Mehan filed his objection to said award. Mehan previously withdrew this sum of money from the Court registry. The City took title to the land. 4. To resolve this dispute without continuing the further expense of litigation, the parties agreed to mediation. Mediation was held October 5, 2009, and the parties agreed to the sum of $152,500 as the value of the taking and the damages to the remainder. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises contained in this agreement, 4. Pa�ment. Releaser has agreed to accept the following payment, by check or draft, in full and sufficient consideration for this General Release and Indemnity Agreement: a check or draft from the City of Wichita Falls in the sum of $24,000.00 payable to Gary Mehan, dba GM Properties and his attorney, Gene Douglass. Releaser acknowledges the receipt and sufficiency of the sum described in this paragraph. Releaser agrees to pay, from said sum (including the $128,500 award previously paid), all attorneys' fees and all other costs and expenses resulting to him or incurred by him or on his behalf in connection with the claims and the settlement set forth herein. 5. Release and dischar�e. In consideration of all of the foregoing, Releaser hereby releases and forever discharges the City of Wichita Falls, together with all of its respective owners, officers, directors, council members, employees, agents, servants, adjusters, attorneys, heirs, successors, and assigns, from any and all claims, demands and causes of action of every conceivable kind or character, without limitation. It is intended that this Release is comprehensive and general. This Release includes, but is not limited to, any claim, demand, or cause of action related in any way to any alleged impropriety, misrepresentation, negligence, intentional act, deceptive trade practice, insurance code violation, and/or breach of the duty of good faith and fair dealing in the investigation, defense, adjustment, settlement and/or handling of the subject claims, and further includes any claims and causes of action for personal injuries, pain and suffering, mental anguish, loss of wages or earning capacity, medical expenses, attorneys' fees, punitive or exemplary damages, treble damages, violation of any law, rule, regulation, statute or administrative order, pre- or post judgment interest, statutory damages, penalties, court costs, and claims for all other non-property damages or consequential losses of every conceivable character, without limitation. 6. General Release. Releaser hereby acknowledges and agrees that the Release set forth in paragraph 5 is a general release of all claims he has or might have against the City of Wichita Falls, and Releaser further expressly waives and assumes the risk of any and all claims against the City of Wichita Falls, for damages which exist as of this date but of which Releaser does not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect his decision to enter into this General Release and Indemnity Agreement. Releaser further agrees that he has accepted payment of the sum specified herein as a compromise of matters involving disputed issues of law and fact and that he fully assumes the risk that the facts or law may be otherwise than he believes. 7. Ownership of Claims and Indemnitv. Releaser warrants and represents that he possesses the complete authority to settle and receive payment for the value of said land that is the subject of this eminent domain proceeding. Releaser hereby agrees to indemnify the City of Wichita Falls and hold it harmless from any and all claims, demands, causes of action, liabilities and expenses (including reasonable attorneys' fees and litigation expenses) of whatever kind or nature arising from any claim by any person or entity which holds or claims to hold any interest in the land that is the subject of this eminent domain proceeding, should any claim, demand or suit be made on the City of Wichita Falls regarding the eminent domain proceeding at any time hereafter. 8. Representations and Warranties. Releaser agrees and acknowledges that: i) Releaser is fully competent to make this Agreement; ii) The parties have entered into this settlement for the sole purpose of avoiding the further effort, expense and uncertainties of litigation; iii)This General Release and Indemnity Agreement is entered into upon Releaser's own free will and upon advice of counsel, and Releaser has not been influenced or relied upon any statement, promise or representation by the parties being released, or by any person representing or claiming to represent them, other than as expressly set forth above; iv) In signing this General Release and Indemnity Agreement, Releaser has read it, has had its terms explained to his by counsel, and understands that it is a final settlement of all claims which he now or will ever have with regard to the litigation in question, and such litigation cannot be reopened in the future; and, v) The consideration for this Agreement is contractual, and not a mere recital. 9. Additional Documents. All parties agree to cooperate fully to execute any and all supplementary documents, and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this General Release and Indemnity Agreement. 10. Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties. Any and all prior or contemporaneous agreements, understandings, promises, representations, warranties, and covenants, whether written or oral, or whether expressed, implied, or apparent, are hereby deemed merged into and made a part of this Agreement. 1L Multiple Counterparts. This Agreement may be signed in multiple counterparts, each of which shall constitute an original. ENTERED INTO THIS DAY OF , 2009. Gary Mehan, dba GM Properties Approved: Approved by the City of Wichita Falls: By: GENE DOUGLASS DARRON J. LEIKER Attorney at Law City Manager State Bar No. 06055000 1811 Tenth Street Wichita Falls, Texas 76301 Telephone: (940) 761-5595 Telecopier: (940) 761-1233 ATTORNEY FOR CLAIMANT VERIFICATION STATE OF TEXAS § COUNTY OF WICHITA § BEFORE ME, the undersigned authority, on this day personally appeared Gary Mehan, dba GM Properties, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same in the capacity, and for the purposes and consideration, therein stated. GIVEN LTNDER MY HAND AND SEAL OF OFFICE this day of , 2009. Notary Public, State of Texas