07-28-22-9.5 - Resolution - 07/28/2022RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS, APPROVING A SETTLEMENT AGREEMENT AND RELEASE OF ALL
CLAIMS WITH RESPECT TO THE CITY OF COLLEGE STATION, TEXAS, V. GERRYL.
SA UM, INDIVIDUALLY, AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF
SUSAN M. WOOD, DECEASED, CAUSE NO. 17-002742-CV-361 AND CAUSE NO. 615-
CC.
WHEREAS, since 2017, the City of College Station, Texas, has been involved in ongoing
litigation as cited above concerning the sale of approximately 102.25 acres of land (the "Land") to
the City for use as a regional park; and
WHEREAS, the City has negotiated to resolve both lawsuits with the sale of the Land to the City
at a price of $35,000.00 per acre; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS:
PART 1:
That the City Council approves the Settlement Agreement and Release of
All Claims, as attached in Exhibit "A", for a total purchase price not to
exceed $3,578,750.00.
PART 3: That the City Council authorizes the Mayor to execute the Settlement
Agreement and Release of All Claims on behalf of the City of College
Station.
PART 4: That this Resolution shall take effect immediately from and after its passage.
ADOPTED this
ATTEST:
City Secretary
APPROVED:
City Attorney
day of
APPROVED:
, 2022.
EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
CAUSE NO. 17-002742-CV-361
CITY OF COLLEGE STATION,
Plaintiff
vs.
GERRY L. SAUM, INDIVIDUALLY, AND
AS INDEPENDENT EXECUTOR OF THE
ESTATE OF SUSAN M. WOOD, DECEASED,
Defendant
IN THE DISTRICT COURT
361st JUDICIAL DISTRICT
BRAZOS COUNTY, TEXAS
("Breach of Contract Lawsuit")
THE CITY OF COLLEGE STATION,
TEXAS
Plaintiff,
v.
NO. 615-CC
GERRY L. SAUM, INDIVIDUALLY,
AND AS INDEPENDENT EXECUTRIX
OF THE ESTATE OF SUSAN M.
WOOD, DECEASED
Defendant.
IN THE COUNTY COURT
AT LAW NUMBER 2
OF BRAZOS COUNTY, TEXAS
("Condemnation Lawsuit")
SETTLEMENT AGREEMENT AND
MUTUAL RELEASE OF ALL CLAIMS
THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF ALL CLAIMS (the
"Agreement") is made and entered into by and between the City of College Station, Texas
("College Station") and Olga S. Kucerak, as Independent Executrix Of The Estate Of Gerry L.
Saum, Deceased, and as Independent Administrator Of The Estate Of Susan M. Wood, Deceased
("Olga Kucerak"), all collectively referred to as the "Parties."
WHEREAS, College Station, Plaintiff, is a home -rule municipal corporation organized and
operating under the laws of the State of Texas, and having the right of eminent domain and power of
condemnation; and
WHEREAS, the Estates of Gerry L. Saum and Susan M. Wood own approximately 102.25
acres of land situated in the Childress A-95 and Yates A-248 surveys, Brazos County, Texas of which
the City of College Station, Texas seeks to acquire a fee simple title, more particularly described in
the metes and bounds description attached hereto as "Exhibit A" and incorporated herein for all
purposes (the "Property"); and
WHEREAS, on October 18, 2017, College Station filed an action in Brazos County District
Court, thereby initiating a lawsuit captioned City of College Station, Texas v. Gerry L. Saum,
Individually, and as Independent Executrix of the Estate of Susan M. Wood, Deceased, Cause No. 17-
002742-CV-361, seeking injunctive relief and specific performance of a real estate purchase contract
for the sale of the Property to College Station (the "Breach of Contract Lawsuit"); and
WHEREAS, on February 25, 2019, Ms. Saum filed a Second Amended Answer and
Counterclaims in the Breach of Contract Lawsuit, wherein Ms. Saum asserted counterclaims
including, but not limited to, claims for wrongful injunction, fraud, and negligent misrepresentation;
and
WHEREAS, on February 13, 2020, Ms. Saum filed a Third Amended Answer and
Counterclaims in the Breach of Contract Lawsuit, asserting counterclaims for fraud; and
WHEREAS, on or about September 16, 2021, an Original Petition was filed in Brazos County,
in the County Court at Law No. 2, captioned City of College Station v. Gerry L. Saum, Individually,
and as Independent Executrix of the Estate of Susan M. Wood., Deceased, Cause No.615-CC (the
"Condemnation Lawsuit"); and.
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WHEREAS, Gerry L. Saum was the Independent Executrix of the Estate of Susan M. Wood,
deceased; and
WHEREAS, Gerry L. Saum died on October 25, 2021, in San Antonio, Texas; and
WHEREAS, Olga Kucerak was appointed to serve as the Independent Executrix of the Estate
of Gerry L. Saum, deceased on January 5, 2022; and
WHEREAS, the Parties want to resolve all claims, including but not limited to, any and all
claims and causes of action relating to or arising out of any contention that could be asserted by
any of the Parties in the above styled and numbered proceedings.
NOW, THEREFORE, for and in consideration of the mutual promises set forth herein, the
Parties have agreed to the following terms:
1. Olga Kucerak, acting in her capacity of Independent Executrix of the Estate of
Gerry L. Saum, deceased, and as the Independent Administrator of the Estate of Susan M. Wood,
deceased, hereby releases and forever discharges the City of College Station, its respective
officials, agents, servants, employees, and attorneys (the "Kucerak Released Parties"), of and from
any and all claims, demands, damages (both pecuniary and non -pecuniary), actions, causes of
actions, attorneys' fees, expenses, court costs, compensation, and all consequential damages,
including diminution in value, and all costs and expenses incurred by the Estate of Gerry L. Saum
and Estate of Susan M. Wood, its agents, servants, employees, and attorneys, including attorneys'
fees and expert witness fees, purchase or construction costs, engineering, surveying, or land -
planning fees or costs, or suits in equity, of whatsoever kind or nature, whether heretofore or
hereafter accruing or whether or not now known or not known to the Parties, with respect to the
Property, the above styled and numbered Condemnation Lawsuit and Breach of Contract Lawsuit.
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2. The City of College Station releases and forever discharges Olga Kucerak,
individually and acting in her capacity of Independent Executrix of the Estate of Gerry L. Saum,
deceased, and as Independent Administrator the Estate of Susan M. Wood, deceased, along with
their respective agents, representatives, employees, heirs, devisees, beneficiaries, trustees,
successors, assigns, entities (whether or not incorporated or registered), attorneys, related persons
and entities acting by, through and under them (the "City Released Parties") of and from any and
all claims, demands, damages (both pecuniary and non -pecuniary), actions, causes of actions,
attorneys' fees, expenses, court costs, compensation, and all consequential damages, including
diminution in value, attorneys' fees and expert witness fees, purchase or construction costs,
engineering, surveying, or land -planning fees or costs, or suits in equity, of whatsoever kind or
nature, and all costs and expenses incurred and/or sustained by the City of College Station, whether
heretofore or hereafter accruing or whether or not now known or not known to the Parties, with
respect to the Property, the above styled and numbered Condemnation Lawsuit and Breach of
Contract Lawsuit.
3. Provided that the City of College Station complies with all other terms of this
Agreement, Olga Kucerak as Independent Executrix of the Estate of Gerry L. Saum, deceased and
as the Independent Administrator the Estate of Susan M. Wood, deceased, agrees to convey all of
their rights, title and interest to the Property to College Station by Special Warranty Deed attached
hereto as Exhibit "B," and incorporated herein by this reference. The City of College Station
further acknowledges by acceptance of the Special Warranty that it is accepting the Property "AS -
IS AND WITH ALL FAULTS."
3. College Station agrees to pay to the Estate of Gerry L. Saum, deceased the total
sum of $3,578,750.00 at the time of closing. Closing for the sale of the Property shall be held at
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University Title Company, College Station, Texas, within 21 days from the full execution of
this Agreement by the Parties, or at such time and date as the Parties mutually agree upon in
writing. The City of College Station warrants that the College Station City Manager has been given
authority to extend, on behalf of the City, the time for closing if both Parties agree in writing to an
extension of the Closing for the sale of the Property.
4. Olga Kucerak, acting in her capacity as Independent Executrix of the Estate of
Gerry L. Saum, deceased, and as the Independent Administrator the Estate of Susan M. Wood,
deceased, agrees that the Estate of Gerry L. Saum, deceased and the Estate of Susan M. Wood,
deceased, shall be liable for the ad valorem property taxes for 2022 until the date of the closing.
College Station, as a Texas Home -Rule Municipality, is exempt from any taxes assessed and levied
against the Property pursuant to Texas Property Code, § 11.11; however, College Station
recognizes Olga Kucerak, liability for the ad valorem property taxes terminates on the date of
closing. The City of College Station further agrees that it shall be liable and shall pay at Closing
all closing costs, including but not limited to any fees associated with any survey, title policy fees,
document preparation fees, escrow fees and any other fees associated with the closing for the sale
of the Property.
5. Each Party to this Agreement is acting voluntarily and on its or his own free will
and is in no way relying upon any promise, warranty, representation, or agreement of any kind
whatsoever, made directly or indirectly, by any agent, employee, or attorney of the Party being
released or any person or firm in privity with the Party being released; and both College Station
and Olga Kucerak, Independent Executrix of the Estate of Gerry L. Saum, deceased and as the
Independent Administrator of the Estate of Susan M. Wood, deceased, understand that this is a
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full, final and complete settlement of all claims of any kind or character whatsoever, both known
or unknown, arising out of those matters described herein.
6. This Agreement is made solely for the purpose of avoiding further costly litigation
and for making peace under the facts and circumstances of this particular case, and in entering into
this Agreement, neither Party is in any way admitting liability, but each expressly denies liability
to the opposing party in the lawsuits described herein or otherwise.
7. Olga Kucerak, Independent Executrix of the Estate of Gerry L. Saum, deceased,
and Independent Administrator of the Estate of Susan M. Wood, deceased, hereby covenants and
agrees not to sue or institute or cooperate in the institution, commencement, filing or prosecution
of any suit, administrative proceeding, demand, claim, or cause of action, whether asserted
individually or derivatively, against the City of College Station and the City Released Parties
relating to any and all matters made the subject of this Agreement, unless litigation is necessary to
enforce the terms of said Agreement. The City of College Station hereby covenants and agrees
not to sue or institute or cooperate in the institution, commencement, filing or prosecution of any
suit, administrative proceeding, demand, claim, or cause of action, whether asserted individually
or derivatively, against Olga Kucerak, individually and in her capacity as Independent Executrix
of the Estate of Gerry L. Saum, deceased, and as the Independent Administrator of the Estate of
Susan M. Wood, deceased, and the Kucerak Released Parties, relating to any and all matters made
the subject of this Agreement, unless litigation is necessary to enforce the terms of said Agreement.
8. Each Party to this Agreement warrants and represents that it or she has read the
above and foregoing Agreement, and each Party to this Agreement understands that it is a full,
final, and complete settlement and release of all claims held, owned, or possessed in any capacity
whatsoever by each releasing Party as against each released Party.
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9. Contemporaneous with the final settlement of all claims by the execution of this
Agreement, and delivery of a $3,578,750.00 payment by the City of College Station at closing as
set forth under the terms in Paragraph 3 above, all Parties shall by and through their attorneys of
record seek dismissal of the claims and counterclaims asserted with prejudice to re -filing same in
the Breach of Contract Lawsuit and Condemnation Lawsuit.
10. The Parties warrant that no claims, demands, damages, actions, causes of action or
suits in equity hereby released have been assigned to any third party, and that this Agreement is
executed without reliance on any statement or representation made by any third party that is not
contained herein.
11. The undersigned each warrant that no inducements have been made to any of them
on behalf of the Parties released hereby, and that in deciding to release its claims and to execute
this Agreement, the Parties have relied solely and only upon their own judgment, and their
attorneys' legal expertise.
12. This Agreement shall be deemed to have been jointly prepared by all Parties hereto,
and no ambiguity of this Agreement shall be construed against any Party based upon the identity
of the author of this Agreement or any portion thereof.
13. This Agreement shall be governed, construed, interpreted, and the rights of the
Parties determined, in accordance with the laws of the State of Texas without regard to the state's
conflict of law principles.
14. The statements and representations contained herein are to be considered
contractual in nature and not merely recitations of fact.
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15. In the event any one or more of the provisions of this Agreement shall for any
reason be held invalid, illegal, or unenforceable in any respect, such invalidity shall not affect any
other provision herein.
16. All references herein in the singular shall be construed to include the plural where
applicable, the masculine to include the feminine and neuter genders, and all covenants,
agreements, and obligations herein assumed by the Parties shall be deemed to be joint and several
covenants, agreements, and obligations of the several persons named herein.
17. This Agreement shall be binding on each and every Party to this Agreement, and
their successors, officers, directors, employees, assigns, heirs, executors, administrators, agents,
legal representatives, and any of the companies or entities associated with them as owners,
subsidiaries, or any other related capacity with respect to any and all of the claims that each Party
may have, or has brought against the other Party.
18. Each of the signatories signing this Agreement represents and warrants that it is
authorized to execute this Agreement and bind its or his principals to the terms and provisions
hereof. More specifically, the City of College Station warrants that the City Council of College
Station, after proper notice in compliance with applicable law, has approved the terms of this
Agreement and voted to give the Mayor of College Station, or his designee, authority to execute
this Agreement and thereby bind the City of College Station to each and every term of this
Agreement. Each Party warrants that any action required to be taken in order for this Agreement
to be binding on it has been duly and properly taken prior to the execution of this Agreement.
19. This Agreement shall be binding on and inure to the benefit of the successors and
assigns of the Parties hereto.
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20. The representations, warranties, covenants, and agreements set forth herein shall
survive the execution hereof.
21. This Agreement may be executed in multiple counterparts, each which taken
together shall constitute one and the same instrument. The Parties agree that this Agreement
contains the entire understanding of the Parties and that no prior agreements, representations,
warranties, or understandings, whether written or oral, will be enforceable.
22. The Parties hereto mutually and simultaneously by these presents authorize and
direct their respective attorneys to execute and deliver for entry such instruments as may be
necessary to obtain dismissal of the above -mentioned litigation (the Breach of Contract Lawsuit
and Condemnation Lawsuit), with prejudice, to the rights of all Parties, each Party bearing its own
attorney's fees and costs. The Parties agree that the Effective Date of this Agreement shall be the
date by which all parties have executed this Agreement.
23. Each Party hereto acknowledges that it has read and understands the effect of the
above and foregoing mutual Agreement, and executes same of its own free will and accord for the
purposes and consideration set forth.
24. Each Party hereto agrees to bear its own attorney's fees and expenses incurred in
connection with the Breach of Contract Lawsuit and Condemnation Lawsuit and all other disputes
arising between the Parties.
IN WITNESS WHEREOF, the Parties have executed this Agreement effective this'
I�
day of , 2022.
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ATTEST:
, City Secretary
CITY OF COLLEGE STATION, TEXAS
By:
THE ESTATE OF GERRY L. SAUM,
DECEASED, AND THE ESTATE OF SUSAN
M. WOOD, DECEASED
Olga Jcerak, n ent Executrix of the Estate
of Gerry L. aum, Deceased and Independent
Administrator the Estate of Susan M. Wood,
Deceased
I 0
ACKNOWLEDGMENTS
THE STATE OF TEXAS
COUNTY OF BRAZOS
BEFORE ME, the undersigned authority, on this clay personally appeared Karl Mooney,
Mayor of the City of College Station, Texas, 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, in the capacity therein stated, and as the act and deed of the City.
2022.
1 17
GIVEN 'UNDER MY HAND AND SEAL OF OFFICE on this
LISA E McC • KEN
Notary Public - State of Te
I I 13297020-3 ti
My Comm. Expl 3-11-2025
THE STATE OF TEXAS
COUNTY OF
/r7
§
s
Notary Public In and For the State orfexas
My Commission Expires:
BEFORE ME, the undersigned authority, on this day personally appeared Olga Kucerak,
Independent Executrix of the Estate of Gerry L. Saum, deceased, and as the Independent
Administrator of the Estate of Susan M. Wood, deceased, 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.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on thiske day of
2022.
RICHARD M. TAYLOR, III
(61:1 Notary Public, State of Texas
Comm. Expires 10-09-2025
Notary ID 124895471
(SEAL)
Notary Public In and Jksi the State of
My Commission Expires:
EXHIBIT A
Baseline Corporation
PROFESSIONAL SURVEYORS
Post Office Box 11979
College Station, TX 77842-1979
(979) 693-2777
TBPLS Firm no. 100302-00
102.25 acres
Part of Gerry Saum tracts
John Childress survey A-95
Brazos County, Texas
May 2022
All of that certain tract or parcel of land lying and being situated mostly within the John Childress
survey, abstract no. 95, in Brazos County, Texas, being all of that called 57.01 acre tract described in
the deed to Gerry L. Saum and Susan M. Wood recorded in volume 2027, page 236 of the Official
Public Records of Brazos County, Texas and all of that called 55.46 acre tract described in the deed
to Gerry L. Saum recorded in volume 1122, page 277 of the Official Records of Brazos County,
Texas, save and except the 1.4318 acre and 0.8709 acre tracts described in Exhibit B of Cause no.
332-CC in the District Court records of Brazos County, Texas and awarded to Brazos County by
judgement in December 1996 for North Dowling Road right-of-way, and further save and except the
northeast portions of the called 57.01 acre and 55.46 acre tracts which are located northeast of the
said 1.4318 acre and 0.8709 acre right-of-way parcels, and being more particularly described as
follows:
Beginning at a 5/8" iron rod (10" tall) found, on the southwest side of a 4" steel fence corner post,
marking the most southerly corner of the said Saum 55.46 acre tract, also being the west corner of
that 20.798 acre tract described in the deed to Robert F. Bourk recorded in volume 4815, page 209,
and being in the northeast line of that 27.77 acre tract described in the deed to Paul R. Hundl and
Joanna Hundl recorded in volume 7864, page 244, of the Official Public Records of Brazos County,
Texas, from where City of College Station GPS control monument no. 115 bears S 55° 03' 19" W —
1978.1 feet;
Thence generally along fence lines and the original survey line between the said Childress survey and
the James Hope survey, abstract no. 24 as follows:
N 43° 34' 00" W — 34.00 feet to a 1/2" iron rod found, on the north side of a 4" steel fence corner
post, at the east common corner of the said Hundl tract and that 9.93 acre tract described in the
deed to Bryan McGuire and Dee Ann McGuire recorded in volume 16113, page 186 of the
Official Public Records of Brazos County, Texas;
N 46° 56' 30" W — 7.90 feet to a 1/2" iron rod found with a yellow plastic cap stamped "KERR
4502" at the east common corner of the said McGuire tract and that 6.000 acre tract described
in the deed to Gregory S. Loe and Sharon L. Loe recorded in volume 5911, page 12 of the
Official Public Records of Brazos County, Texas;
N 44° 35' 26" W — 244.85 feet to a 5/8" iron rod found, on the southwest side of a 4" steel fence
corner post, at the east common corner of the said Loe tract and that 12.041 acre tract described
in the deed to Heath K. Phillips recorded in volume 13370, page 26 of the Official Public
Records of Brazos County, Texas;
N 47° 37' 58" W—167.51 feet to a 1/2" iron rod found on the north side of a 4" steel fence corner
post, at the east common corner of the said Phillips tract and that tract conveyed to Berner
Ventures, LLC Series 108 by deed recorded in volume 14462, page 162 of the Official Public
Records of Brazos County, Texas;
102.25 acres
part of Saum tracts page 1 of 2
EXHIBIT A
N 50° 12' 47" W - 247.45 feet to a 1/2" iron rod found marking the west common corner of the
said Saum and Wood tracts;
and N 47° 11' 29" W - 718.56 feet to a 1/2" iron rod with an orange plastic cap stamped "JOE ORR
BASELINE" set in a barbed-wire fenceline for the west corner of this described tract and the
west corner of the said Saum and Wood 57.01 acre tract, also being the south corner of that
55.46 acre tract described in the deed to Mrs. Oscar K. (LaVera) Murphy recorded in volume
281, page 173 of the Deed Records of Brazos County, Texas;
Thence N 42° 04' 55" E - 2725.50 feet, along the common line of said 57.01 acre and 55.46 acre
tracts, passing at 2175.2 feet a 1/2" iron rod found (on line) at the south corner of that 6.077 acre tract
described in the deeds to Donald Ray Murphy recorded in volume 2747, page 343 and volume 2753,
page 197, and passing at 2725.1 feet a called 80d nail found (on line) in the top of a wood fence post
at the east corner of that 1.323 acre tract described in the deed to Tim Hugghins and Shannon
Hugghins recorded in volume 15794, page 190, of the Official Public Records of Brazos County,
Texas, to a 1/2" iron rod with an orange plastic cap stamped "JOE ORR BASELINE" set for the north
corner of this described tract in the southwest right-of-way line of North Dowling Road;
Thence through the said 57.01 acre and 55.46 acre tracts, along the south right-of-way boundary of
North Dowling Road as awarded to Brazos County by said judgement, generally along a fence line
as follows:
S 48° 02' 39" E - 103.80 feet to 1/2" iron rod with an orange plastic cap stamped "JOE ORR
BASELINE" set at the beginning of a tangent curve to the left with a radius of 500.00 feet;
Along said curve through a central angle of 38° 44' 39", the chord of which bears S 67° 24' 58"
E - 331.70 feet, to a 5/8" iron rod found at the end of the curve and point tangency;
S 86° 47' 18" E - 678.60 feet, passing through a 5/8" iron rod (on line) at 449.3 feet found in the
common line of the said 57.01 acre and 55.46 acre tracts, to a 1/2" iron rod with an orange
plastic cap stamped "JOE ORR BASELINE" set at the beginning of a non -tangent curve to the
right with a radius of 715.00 feet;
Along said curve through a central angle of 34° 46' 00", the chord of which bears S 67° 38' 10"
E - 427.23 feet, to a 5/8" iron rod found at the end of the curve;
and S 47° 50' 49" E - 126.72 feet, along the northeast boundary of the said Saum 55.46 acre tract, to
its east corner and the east corner of this described tract, within a cross -tie fence corner post;
Thence S 42° 59' 21" W - 3423.69 feet, along the entire southeast line of the said 55.46 acre tract,
passing through a 1/2" iron rod (on line) at 5.0 feet found in the northwest line of the Lot 1 AND 2,
Block 1, DMR ACRES subdivision as described by plat recorded in volume 12690, page 192 of the
Official Public Records of Brazos County, Texas, passing at 787.7 feet a 5/8" iron rod found southeast
(perpendicular) 2.9 feet, marking the west corner of Lot 1 of said subdivision, and passing through a
2" steel fence corner post (on line) at 1663.9 feet, at or near the north common corner of the said
20.798 acre Bourk tract and that 16.16 acre tract described in the deed to David G. Schmitz and wife,
Rose Schmitz recorded in volume 1253, page 26 of the Official Records of Brazos County, Texas, to
the Point of Beginning and containing 102.25 acres of land more or less.
Bearings are Texas State Plane, Central Zone, NAD83 datum, based on
GPS observations referenced to the Leica SmartNet RTK network and
checked to City of College Station control monument nos. 115 and 114
(N 5° 53' 50" W).
See separate survey exhibit plat dated May 2022.
102.25 acres part of Saum tracts
EXHIBIT A
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