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HomeMy WebLinkAboutLegal Documents~ ~ ;y ~ . ~, ~& ).P ~ SETTLEMENT AGREEMENT ..STATE QF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF BRAZ4S § ~~ THIS AGREEMENT IS BY AND BETWEEN the City of College Station, a Texas Home Rule. Municipal Corporation, and Juan Creixell, Trustee, (hereinafter ref erred to as "Trustee"}. WHEREAS, the City of :College Station f filed suit on the 21st day of December, 1988, .against IR.E..Texas,: Inc., QCity of College Station v. BankAtlantic Financial .Corp., et `al., ..Cause No. 32,021- 361, 361st Judicial District Court, Brazos County, Texas), alleging building code, f ire code, health, safety and welfare violations in various dwelling units within the subject property, specif ically delineated as f allows: 1. Sanitary f acilities (sinks, lavatories, tubs, showers and water closets) are damaged or missing, in violation of the City's Building Regulations Code. 2, ' Plumbing f fixtures in each dwelling unit are not connected to an operational source of hotwater, in violation of the City's Building,:Regulatons;Code. 3. Electrical outlets, f fixtures, receptacles, equipmen and wiring. are damaged or inoperable, so that they cannot be used in a saf a manner, and are not properly connected to the source of electrical power in a saf a manner, in violation of the City's Building Regulations-Code. 4, Roof s are damaged so that wind, rain, xodents and insects can enter the interior portion of the buildings, in violation of the City's Building Regulations Code. 5. Protective railings are damaged or missing f rom enclosed structures over f five f eet f rom g;round level and on steps. containing f our or more. risers, in violation of the City's Building Regulations Code. 6. Exteriorwindow and doors are damaged or destroyed, so that he buildings are not substantially weathertight, in violation of the: City's Building Regulations Code. 7. Exterior wood surf aces :are not covered with paint or other .protective covering, in violation of the City's Building Regulations Code. 8. Interior floors, walls, and ceilings are not substantially safe to use, nor. capable of supporting the. load which normal use as a dwelling unit would require, in violation of he City's Building Regulations Code. 9. Structural elements of the buildings are not sound and are not capable of carrying the loads that normal use,would cause to be placed thereon, in violation of the City's Building Regulations Code. 10. Substantial criminal activity, vagrancy and trespass has occurred at the premises over the past year, with resultant increase in susceptibility tofire damage, endangering others' property and safety, in violation of the City's Health and Sanitations Ordinances anal.Fire .Codes: 11. The swmffiing pools are partially empty and are not being maintained in a saf a manner, and the fences surrounding them are not capable of being. secured, in violation of the City's Health .and Sanitation Ordinances. 1 _ _ _ _ ___ ~ ~ J j ~ ~ 12. The road surf aces and walkways on the property contaiu~ holes and cracks which render them unsafe, in violation of the Cray's Zoning Ordinances. WHEREAS, a .default judgment has been granted in favor of the City of College Station, and a motion for new trial has been f filed by I.R.E. Texas, Inc., and is :presently pending before the court.... WHEREAS,- I.R.E. Texas, Inc., has entered into a contract f or the sale: of the property, Monaco t, Monaco II, and Posada Del Rey Apartments, more specif ically described in the a tacked Exhibit "A", hereto, to Trustee, who shall be renovating and repairing the property; , WHEREAS, the City of College Station believes that .the timely sale and renovation of the property will be in the best interest in the health, saf ery and welf are of the residents of the Ciry ~HEREA3, the City of College Station desires to enter into an agreement f or the.. rapid, prompt and timely renava ion of the major structural deterioration,which the City believeswill alleviate. the stress placed upon the Police, Fire'and Legal Departments of the City; WHEREAS, because of the time period required f or responsive repairCand replacement and the potential f financial burden placed upon Trustee f or any f ailure to make required repairs in a timely manner, the City; has identified those repairs-and .replacements it f eels are immediately necessary in order f or it to f orego f urther civil litigation; WHEREAS, the parties do not intend the repairs and replacements made under this agreement to be stiff icient f or all of the dwelling units to qualify for a certif icate of occupancy, but rather the ~ repairs and replacements required hereunder are intended to qualify some of the dwelling units f or a certif icate of occupancyand preserve and reestablish the tructural integrity of the buildings, protect lif e and ro er reduce the ros ect of criminal behavior and to serve as afinancial incentive to the owner p p ry~ p P to complete the remodeling of thedwelling unit'~'s f or occupancy; and WHEREAS, bona fide disputes and controversies exist between the LR.E. Texas,. Inc. and the Ciry of College Station both as to liability and the amount thereof, if any, and by reason of such current disputes and controversies the (.parties hereto;, desire to compromise .and settle, with exception to controversies and .disputes arising in the future, and intend that the full terms and conditions of the compromise and settlement be set f orth in this settlement agreement; .WHEREAS, this agreement ,will ;only' become effective upon purchase of the property by Trustee; NOW, THEREFORE, in consideration of he mutual promises and agreements herein contained, including the recitals set f orth hereinabove, the .parties agree as f ollows: This agreement is made and entered into by and between the Ciry of College Station, acting herein by and through its City Manager with the authorization of the City Council,. approval given on the 12th day of January,1989, the minutes of the council meeting hereby attached, and the statement of the Mayor .Pro Tem and Trustee, the purchaser of .the property described. herein, acting on behalf of I.R.E, Texas, .Inc. under the terms and conditions hereunder set out. Trustee shall pay to the City of College Station the sum of TWENTY FIVE THOUSAND ~~NE HUNDRED FQRTY-ONE AND 33/100 D®LLARS ($25,141.33) which sum shall be remitted to the City of College Station on car bef ore June 21,1989. 1.A. Trustee, simultaneously with the closing of the purchase f rom I.R.E. Texas, Inc., shall have issued on behalf of the City. of .College Station,, an irrevocable Letter of Credit or Performance :Bond acceptable to the .City in the amount of Fifty Thousand Dollars ($50,000), which Letter of Credit or 2 Bond shallassure the payment to the City of College Station a penalty of One Thousand Dollars ($1,000) per day f or each. day that the terms of Sections 1.A. and 1B, have ;not been complied with. The Letter of Credit or Bond shall be maintained until all requirements of Section lC. are completed in order to guarantee Trustee's obligations under Sections 1.A. and 1.B, herein. It isfhe intent of the parties. that .Trustee shall, with regard to the property, meet the f ollowing minimum requirements by September 30, 1989: 1. Repair or replace ail damaged or missing protective railings on all enclosed structures over five (S) f eet f rom ground level and on all steps containing f our (4) or more risers. 2. Repair or replace all damaged or missing windows and :exterior doors so that they are substantially weathertight. 3. Repair or replaceallfire-damaged interiorwalls, ceilingsfloors, and structural supports causingahem.. to be made substantially safe to use, and capable of supporting the, load - which normal use as a dwelling unit would cause to be placed, thereon. Provided, however, that Trustee shall have the right to demolish any such structure as long as the demolition work is accomplished by reasonable and lawf ul methods. 4. Drain and clean all .the swimming pools on the property, and repair or replace f ences .and gates surrounding each pool. Each gate must be kept secured. The pools must be - drained or kept in good worl~ng order. 5. Maintain landscaping and maintenance of the exterior of the buildings to ensure an :orderly appearance. b. Provide f or the extermination of .all insects, rodents or other .pests that are f ound to occur within he buildings or on the premises. Except as provided herein the implementation and interpretation of these requirements shall be controlled by current ordinances of the City of College Station pertaining to the building, restoration and repair of apartment dwelling units within the City; provided, however, that it is agreed and acknowledged by the parties hereto that the existing electrical wiring in the ninety-four (94) :units Hof the Monaco. I complex do ..not meet current code requirements. It is .agreed by the City of College Station that the certificates of occupancy .for the ninety-four (94) units of the Monaco I complex .shall be reinstated on a per building basis, upon the completion of the items 1 through b above.... 1,B. 1t is the intent of the parties that Trustee shall meet he f ollowing: requirements beginning one hundred twenty (120) days of ter the execution of this agreement. and throughout the rehabilitation jphase of the project: 1. Maintain adequate security on the premises to prevent vandalism and criminal trespass while the buildings are-unoccupied.. Buildings.that are not under repair or occupiedl shall be secured toprevent entry and vandalism. 2. Maintain landscaping and maintenance of. the :exterior of the buildings to ensure an orderly appearance. The implementation and interpretation of these requirements shah be controlled by current ordinances of the City of College Station pertaining to the building, restoration and repair of apartment dwelling units within .theeCity; 1.C. Further, it is the; intent of the parties that Trustee shall make reasonable efforts to meet the following minimum.,.requirements by September 1,1990: 3 A a '~ . y n 4 1: Repair or replace all plumbing, except that .fixtures need not be installed in dwelling units until immediately before occupancy is contemplated. 2. Repair or replace all damaged or missing electrical outlets, receptacles,. equipment and . wiring in each dwelling-:unit so that they are in good and safe .working order, andl have them capable. of being connected to the source; of -power in a safe manner., 3. Re air. all road surf aces and walkways on the property, which-shall include but not be P +. ~m~ted to f illmg holes m .the pavement with approved paving materials. 4. Repair or replace all damaged roof s so that wheyhave. no substantial defects. The im lementation and interpretation of these requirements shall be controlled by current ordinances P of the` City of College Station pertaining to the building, restoration :and repair of apartment dwelling units within the City:, including the Zoning t)rdinance of the City of .College-Station. 2. It is understood that in 'the event that .there is a dispute between Trustee and the_ Building .. ~ 'r n- m lance`with there uirements of Sections 1.~~. and official regarding Trustee s compliance o no cop q m n Tru tee shall be entitled to a eal the decision of the Buildin t~fficial to the 1.B. of this a xee a t, . s pp g g Structural Standards Board/Building Code Board of Adjustments. In the event that the Structural Standards Board f Building Code Board of Adjustments rules in f avor of the Building Cuff icial concerning -the requirements f or compliance with the terms of herein, Trustee shall be entitled to ..litigate the decision; however, it shall continue to provide the city with a valid Letter of Credit or Performance Bond P ,~ , g P ..g .. g PP a time period as acce table to Ci dur~n the ertod of the ~l~tl anon. The f ihn of an a eal shall toll th it a lies to the specif is requirement. Trustee shall, during the pendency of the appeal and Iitig;ation, PP maintain a valid Letter of Credit or Performance Bond-acceptable to the City. In any event, the City shall be entitled to draw the f unds held bye the Letter or Performance Bond, whichever is utilized,, if the Letter or Performance Bond is not renewedl and extended by :Trustee, no less than ten (10) days bef ore its ex iration date. Ci shall also be entitled to draw u on the Letter of Credit or Performance Bond P ry P for any other f allure to meet the requirements of this agreement where that f allure to comply is not litigated hereunder. 3. It is the understanding of the parties that f or the purposes of this agreement that Trustee accepts sole responsibility hereunder f or, making certain that scheduling renovation and reconstruction of the structures on the properry,is accomplished in such. a manner as to complywith the time deadlines set out , herein. 4. Presentation by the City of College Station, beneficiary of the Letter of Credit or acceptable Performance Bond, f or collection of one or more daily penalties hereunder may be made by the Director of Finance or his delegate, upon the f ollowing form: I, Bill Harrison, Director of Finance, (or his delegate) hereby demand the drawdown of the Letter of Credit, No. , or Perf ormance Bond in the amount of for the f ollowing days; to=wit.. as a penalty for failing to complete renovation. and restoration as agreed. This demand hall not constitute a waiver as: to f urther demand upon any remaining f unds encumbered by the letter or bond. '(Signature) 5. It is understood .and .agreed that this Settlement, Agreement shall be binding upon and inure to the .benefit of the parties and their respective successors and assigns. 4 1 It is understood and a reed that this:.Settlement Agreement contains the entire agreeiment 6. g between the artier and supersedes any and all prior oral or written agreements, arrangements, or P understandin s between the` artier :relating tQ the subject matter. No oral understandings, statements, g P romises or inducements contra to the terms of this Settlement Agreement exist. This Settlement P ~' Agreement cannot be changed or terminated..-orally. ~~ '~. It is understood that this Ssettlement Agreement shall be governed by, construed and enforced in accordance with and sub'ect to, the laws of the State of Texas. In the event of litigation, it is agreed J b the artier that on final 'urisdiction shall lie in a court of .competent jurisdiction in Brazos County, y P g J Texas. i reed b the artier that the Ci of College Station will f file an order of dismissal without 8. It sag y p tY re'udice in Cause No. 32 021-3b1, f filed in` the District Court:for the 3blst Judicial District of Brazos p~ Coun u on the execution of this agreement. Thee City of College Station shall f file with the Brazos tY P Count Clerk an and all documents necessary ` o ca~:cel or remove. the notice of is pendens f fled f-y the Y y Cit and ertainin to the sub ject property. It is understood by the parties that in the event that the time Y P g eriod f orrepars expires and the funds secured by the Letter of Credit or Perf ormance Bond have been P exhausted' b the Ci while the re wired repairs have not been completed, then the City of College Y tY q Station will be entitled to refileits suitwith regardto any tih existing code and ordinance violations. n he event that rain actuall dela ~s work on the structures on the: property,:Trustee will be 9. _ I t y y ~, V ven a rain da credit. in order. to qualify f or the credit, Trustee must submit a written....,request 1.o the ~ g y Buildin Off icial f or a rain delay extension within- three (3) days of the day sought to be .designated f or g the credit. The City of College Station shall have f five (5):days of ter receipt of such request to make.. a determination. The Building Official shall consult with the City Engineer. In the event that the En veer has ranted a contractor working f or the City a rain. delay credit f or actual rainfall (a delay g g credit for. construction site conditions will not qualify hereunder), he shall notify the Building Official who shall grant Tru tee a rain delay credit. In the event that the City Engineer determines that the a lication f or the rain Bela credit is, ju of fable, he shall sonotify- the Building Off icia who shall. grant PP y the credit. The decision of the City Engineer shall be f final. In he event Trustees f ail to submit a written request, any rain delay extension: will be waived. 10. No waiver of an rovision of this agreement by the City of College Station shall be valid unless YP in writin and si ned b the City Manager. Ito waiver by the City of a def cult by Trustee of any term of g g Y this Settlement A reement shall be deemed a waiver by the City of any subsequent breach or def Ault by g Trustee. '~ 11. An and all notices which ma be required under the terms of this Settlement Agreement shall Y y be mailed to the re resentative parties at the addresses indicated:-below or at such: address as either P `arty may f urnish in writing to the other party herein named. . P ~~ ' x ressl a reed that all notices shall be sent c rtif' d mail return receipt requested, and shall be It zs e p Y g deemed received when:deposited postage paid i a a horiz L1.S. Post Off ice mail box. TR TEE: J~ kEI LL , CIT OF LLE E ATI B~ RON RAGLAND, Manager S