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HomeMy WebLinkAboutLegal DocumentSETTLEMENT AGREEMENT THE STATE OF TEXAS ) COUNTY OF BRAZOS ) THIS AGREEMENT IS BY AND BETWEEN the City of College Station, hereinafter referred to as the "CITY" a Texas Home Rule Municipal Corporation and RAY MART a Corporation duly formed under the laws of the state of Texas. WHEREAS, RAY MART has been operating its business at its present location for more than twenty years; WHEREAS, CITY annexedthe area which RAY MART is located in 1971; WHEREAS, since the annexation RAY MART .has. been operating in a non- conforming structure; WHEREAS, in October of 1992, the non-conforming structure that was not in compliance with Ordinance No. 1638 was enlarged, extended, reconstructed, substituted, or structurally altered by the .following actions: tearing down. the wall between., the retail area and the warehouse area; adding five air conditioning units to the warehouse area; adding extensive lighting capabilities through the warehouse area; and opening,the warehouse area to the general public thus making it into a retail area. WHEREAS, the structure should be brought into compliance with Ordinance No. 1638; WHEREAS, the Zoning Official determined that RAY MART has. changed .its use from warehouse to retail; WHEREAS, Ordinance No. 1638 requires 124 parking .spaces for the square footage. of RAY MART's facilities; WHEREAS, the Building Official has determined that the structure needs to be completely protected by an approved sprinkler system according to the local amendment to the Standard Building Code Section 901..8.7; rrw/c/litigaiton/raymart WHEREAS,. the Building Official determined that another fire hydrant needs to be provided for the .protection of the structure; WHEREAS, RAY MART was denied a .variance request .for its property to be excluded from providing an approved sprinkler .system by the Structural Standards. Board; WHEREAS, RAY MART was denied a ..variance request for its parking requirements by the. Zoning Board of Adjustments; WHEREAS, RAY MART can only provide 41 parking spaces at its location; WHEREAS,. RAY MART's majority of customers are home builders or contractors for home renovations; WHEREAS, RAY MART's inventory contains large durable goods such as stoves, refrigerators, washing machines, bathtubs, custom designed glass doors, plywood and light fixtures; WHEREAS, RAY MART's business does not demand a high traffic volume parking. lot; WHEREAS, Ordinance Na 1 fi38 does not distinguish between high volume and low volume retail' businesses; WHEREAS, CITY desires to enforce its ordinance both criminally and civilly.; WHEREAS, CITY believes that the improvement of the parking lot, installing an approved sprinkler .system, and installing a fire hydrant will be in the best interest of the health, safety, and welfare of the residents of the City; WHEREAS, CITY. has agreed to allow RAY MART to operate in its non- conforming status so long as the terms and conditions of this agreement are met; WHEREAS,. the parties intend that the additions and improvements made under this agreement be sufficient for RAY MART to not be in violation of RAY MART's Certificate of Occupancy, and non-conforming status; _2_ rrw/c/litigaiton/raymart WHEREAS, RAY MART shall improve its parking lot according to the site plan attached as Exhibit B, provide an .approved sprinkler system for is structure, and provide a fire hydrant for its structure by August 31, 1993; WHEREAS., CITY does not, want to place such a financial burden on RAY MART that RAY MART would not be allowed #o operate within the city limits of College Station; WHEREAS,. bonafide .disputes and controversies exist between RAY MART and CITY both as to the .type of business and the reasonableness of Ordinance No. 1638, and by reason of such current disputes and controversies the parties desire to compromise. and settle, with exceptions to controversies and disputes .arising in the future, and intend that the full terms and conditionsof the compromising settlement be forth in thin settlement agreement; NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, including the recitals set forth here and above, the parties agree to as follows: this agreement is made and entered into by and between CITY of College Station. acting herein by and through:. its. City: Manager. with the authorization of CITY Council,:.. approval given on the 24th day of June, 1993, the minutes of the Council Meeting hereby attached as Exhibit A, and RAY MART shall provide proof of its authorization to execute this agreement, which proof of authorization to sign is attached as Exhibit C. 1. (a) RAY MART shall enter into contract and complete the installation of an approved sprinkler system for the structure; (b) RAY MART shall enter into contract and complete the installation of afire hydrant located to the east of the structure; (c) RAY MART shall improve and complete the parking lot according to its site plans submitted to the Planning Office attached as Exhibit B. This includes the planting. and maintenance of all shrubs, trees, and landscaping Ghat were indicated on the site plan to ensure an orderly appearance; -3- rrw/c/litigaiton/raymart (d) Intent of the parties #hat RAY 'MART shall meet the conditions 1 (a), (b), and (c) by August 31, 1993. 2. RAY MART shall issue' on behalf of :CITY an irrevocable letter of credit acceptable to CITY in the .amount of $10,000, which letter of credit shall ensure that conditions 1 (a), (b), and (c) have been complied. with. The letter of credit shall be maintained until all requirements of Section i (a), (b), and (c) are completed. 3. It is the .understanding of the parties. that for the purposes of this agreement that RAY MART accepts sole responsibility herein for making. the contracts for the parking improvements and the improvement to the building and grounds at RAY MART and that they are accomplished in such a .manner as to comply with the. time deadlines. set out herein. 4. In .the event than .there is a dispute between RAY MART and CITY's designated Planning Official. regarding RAY MART's compliance or non-compliance with the requirements of Section 1 (a), (b), and (c) of this agreement, RAY MART shat( be entitled to appeal the. decision of the Planning Official to the Zoning Board of Adjustments. In the event .the Zoning Board of Adjustments rules. in favor of the .Planning Official concerning the requirements for compliance with the terms herein, RAY MART shall. be entitled to litigate the decision; however, RAY MART shall continue to provide CITY with a valid letter of creditacceptable to CITY during the period of the litigation. The filing of an appeal shall toll the time: period as it applies to thee. specific requirement. RAY MART, shall during the pendancy of the appeal and litigation, maintain a .valid letter of credit acceptable to CITY. In any event, CITY shall be entitled to draw the funds held by the letter of credit if the letter of credit. is not renewed and extended by RAY MART no less than ten days before its expiration date. CITY shall also be entitled to draw upon a letter of credit for any other failure to meet the. requirements of this agreement where the failure to comply is not litigated hereunder or otherwise becomes a final decision. -4- rrw/c/litigaiton/raymart 5. Presentation by C1TY, beneficiary of the. letter of ..credit,. for collection may be made by the Director of Finance or his delegate,. upon the following form: I, Glenn Schroeder, Director of Finance, (or his delegate) hereby demand the. drawdown of the letter of credit, .number in the amount of $ for the following days to wit; as a penalty. for. failing to complete .renovation .and restoration as agreed. This demand shall not constitute a waiver as to further demand upon any remaining .funds encumbered by the letter of credit. ignature 6. It is understood and agreed that RAY MART may maintain its non- conforming use as long as it operates: in its `current status. If RAY MART: were to expand its business .and/or structure and change its market to include a high. volume traffic. retail, this. agreement is no .longer valid and RAY MART must` immediately bring its use, structure and property into compliance with all of the City of .College Station ordinances. If at that time, .RAY MART does. not meet ordinance compliance requirements, then CITY may pursue the enforcement of its ordinance both criminally and civilly. 7. It is understood and agreed that from time to time the Planning Official may investigate the .structure and use of RAY MART. The Planning Official or his delegate may enforce this agreement, and if the Planning Official determines that RAY MART is in non-compliance with this agreement,: RAY. MART may appeal his. decision pursuant to Paragraph 4. 8. In the event that rain actually delays work on the property of RAY MART, RAY MART will be given a rain day credit.. In order to qualify for the credit, RAY MART -5- rrw/c/litigaiton/raymart must submit a written request to the Planning Official for a rain delay extension within three days of the day sought to be designated for the credit. CITY shall have five days after receipt of such request to make a determination. The Planning Official shall consult with the .City Engineer. In the event. the City Engineer has granted one of its contractors a rain delay credit for. actual rainfall (a delay credit> for construction site conditions will not qualify hereunder) he shall .notify the Planning Official who shall grant RAY MART a rain delay credit. 'This decision of the City Engineer shall be final. In the event" RAY MART fails to submit a written request, any rain delay extension will be waived. 9. It is understood and agreed that. the settlement agreement is binding between RAY MART .and the City of College Station only for RAY MART's operation located at 3800 Texas Avenue South. This agreement shall not inure to the. benefits of any other .parties which may occupy the property. after RAY MART or RAY MART's respective successors and assigns. 10. It is understood that the. settlement agreement .shall be governed by, construed and enforced in accordance with and subject to the laws of the state of Texas, It is understood that the performance of this agreement is in Brazos County. 11. In the event CITY is damaged due to the act, omission, mistake, fault or default of RAY MART, then RAY MART shall indemnify and hold CITY harmless for such damage. RAY MART shall indemnify and hold CITY harmless from any and all injuries to or claims of adjacent property owners caused by RAY MART, its agents, employees, and representatives. RAY MART agrees to and shall indemnify and hold harmless CITY, its officers, agents and employees, from and against any and all claims, losses, damages causes of action, suit, and liability of every. kind, including all expenses of litigation, court .costs, and attorney's fees, for injury to or death of any person, or for damage to any .property, arising out of or in connection with the work done by RAY MART under this agreement, regardless of whether such injuries, death or damages are -6- rrw/cllitigaitoNraymart caused in whole or in part by the negligence, including but not limited to the contractual comparative negligence, concurrent negligence or gross negligence, of CITY. 12. RAY MART assumes full responsibility for the. work to be performed hereunder, and hereby releases, relinquishes and discharges CITY, its officers, agents and employees, from all claims, demands, and causes of action of every kind and character including the cost of defense thereof, for any injury. to, including death of, person (whether they be third persons, contractors, or employees of either of the parties hereto) and any .loss of or damage. to property (whether he same be that either of the parties hereto or of third parties) caused by or alleged to be caused, arising out of, or in connection with RAY MART's work to be performed hereunder whether or not .said claims, demands and causes of action in whole or in part are covered by insurance. 13. It is understood. and agreed that this settlement agreement contains the entire agreement between. the parties and supersedes any and all prior oral or written agreements, arrangements, or understandings between the parties relating to the. subject matter. No oral understandings, statements, promises. or inducements. contrary to the terms of the settlement agreement exist. This settlement agreement cannot be changed or terminated orally.. 14. No waiver of any provision of this agreement by the City of College Station shall be valid unless in writing and signed by the City .Manager. No waiver by the City of a default by RAY MART of any term of this settlement agreement: shall be deemed a waiver by CITY of any subsequent breach of default by RAY MART. 15. Any and all notices which may be required under the terms of this settlement agreement shalt be mailed to the representative parties at the addresses indicated below or at such address as either party may furnish in writing. to the .other party herein named. It is expressly agreed that all notices shall be sent certified mail, -7- rrw/c/litigaiton/raymart returned receipt requested, and- shall. be deemed received when deposited postage paid in an authorized U.S. Post Office mailbox. SIGNED this the day of , 1993. RAY MART CITY OF COLLEGE STATION y epresentative on ag an , ity anager -8- rrw/c/litigaiton/raymart STATE OF TEXAS ACKNOWLEDGEMENT COUNTY OF BRAZOS ) This instrument was acknowledged on the day of , 1993, by , in his capacitTy alas of Ray art, a exas orporation on ehalf of said corporation. otary u lic in and or the State of Texas STATE OF TEXAS } ACKNOWLEDGEMENT COUNTY OF BRAZOS ) This instrument was acknowledged on the day of , 1993, by Ron Ragland, in his capacity as City Manager o the. City o o ege tation, a Texas Home Rule Municipality, on .behalf of said municipality. Notary u is in an or the State of Texas -9- rrw/c/litigaiton/raymart