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HomeMy WebLinkAboutRES 98-126 RESOLUTION NO. WHEREAS, the City Council specifically finds that the Recitals set forth in the Agreement of even date herewith by and between: (1) John Frederic Simon, Individually And As Trustee Under the Will of Juliet Perlstein Simon, Deceased, And As Independent Executor Of The Estate of Juliet Perlstein Simon, Deceased; (2) Charles H. Weinbaum, Jr., Individually And As Independent Executor Of The Estate Of Eleanor Perlstein Weinbaum, Deceased; (3) Muriel Selber Phillips, acting by and through her agent and attorney-in- fact, John Frederic Simon; and, (1) The City of Beaumont, Texas, acting by and through its City Manager, Ray A. Riley; and (2) The State of Texas, acting by and through its attorney of record; substantially in the form attached hereto as Exhibit "1" are true. WHEREAS, notwithstanding Article XVII, Section 17, of the City Charter, this Resolution shall become effective immediately inasmuch as such Agreement providing for the conveyance of land is made subject to the outcome of an election submitting the question of whether the conveyance shall be consummated. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT- THAT the City Manager be and he is hereby authorized and directed to execute the above described Agreement on behalf of the City. PASSED BY THE CITY COUNCIL of the City of Beaumont this the day of 11998. - Mayor - NO. 0-151=855 JIIL2ET P. sIMoN, ET AL, 5 IN THE DISTRICT C=T OF Plaintiffs S S JEFFERSON COUNTY, TEXAS VS. S THE CITY OF BEAUMONT, ET AL, § Defendants § 172nd JUDICIAL DISTRICT AGR� THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF JEFFERSON S PARTIES: 1. This Agreement is made by and between: (A) The Plaintiffs in the above styled and numbered cause: (1) John Frederic Simon, Individually And As Trustee Under The will of Juliet Perlstein Simon, Deceased, And As Independent Executor Of The Estate Of Juliet Perlstein Simon, Deceased; (2) Charles H. Weinbaum, Jr_, Individually And As Independent Executor Of The Estate Of Eleanor Perlstein Weinbaum, Deceased; and (3) Muriel Selber Phillips, acting herein by and through her agent and attorney-in-fact, John Frederic Simon; all collectively herein called "PerlsteinaTI; and, (B) The Defendants in the above styled and numbered cause, (1) The City Of Beaumont, Texas (herein called "City") , acting herein by and through its City Manager, Ray A. Riley, duly authorized by the resolution attached as Exhibit "AR; and, Exhibit "1" (2) The State of Texas (herein called "state") , acting herein by and through its attorney of record in this cause. Z. RTZC?TArS' (A) The Perlsteins' predecessor in title platted Laurel Heights Addition and filed said plat of record in Volume 7, Page 19 of the Hap Records of Jefferson County, Texas, and dedicated to the public by said plat: (1) Laurel Heights Park and Playground shown thereon to the use and benefit of the public for park and playground purposes; and, (2) Liberty Avenue shown thereon to the use and benefit of the public for street purposes. (B) Thereafter the Beaumont, Sour Lake & western Railway Co_ (B.S.L. & W.R.R.) abandoned its railroad easement and right of way as shown on said plat. (c) Thereafter the Peristeins' predecessor in title quitclaimed to the City an Q.state in the East half of the former railroad right of way of the same quality as that held by the City in Laurel Heights Park and Playground. (D) Thereafter the Perlsteinsf predecessor in title conveyed to the City a 27,245 square foot tract of land abutting and adjacent on the West to said East half of said former railroad right of way. (E) By ordinance, the City abandoned that portion of Liberty 2 Avenue abutting and adjacent to the tract of land referred to in 2(D) above. (F) By ordinance, the City abandoned that portion of Liberty Avenue abutting and adjacent to the Laurel Heights Park and Playground referred to in 2(A) (1) above and the East half of the former railroad right of way referred to in 2(C) above. (G) The City used all of the above described property for a park and playground naming it ^Perl.stein Park". (H) In 1992, after notice pursuant to § 26.002 of Texas Parks and Wildlife Code, the City determined pursuant to § 26.002 of Texas Parks and wildlife Code that there was no feasible and prudent alternative to the use of Perlstein Park for Liberty-Laurel III Project and the project includes all reasonable planning to minimize harm to the land as a park from the use. (I) Thereafter, pursuant to a contract between the State and the City, the state constructed the Liberty-Laurel II2 Project Public street on a portion of the platted Laurel Heights Park And Playground. (7i) The Perlsteins sued the City and the State for the inverse condemnation of the land upon which the Liberty-Laurel III Project public street is built in Cause No. D-151.855 In The District Court of Jefferson County, Texas, styled: JuIi.et P. Simon, Et Al, Plaintiffs vs. The City of Beaumont, Et Al, Defendants. (g) The City has determined that additional land in Perlstein Park is required to complete its street improvements. 3 (L) The City has determined that the remainder of Perlstein Park, after reduction by land required for street improvements, is not large enough to be used efficiently as a park and playground_ (M) The City submitted to the qualified voters of the municipality at the City general election on the first Saturday in May, 1998, the following issue: "Shall approximately 1.4487 acres of Perlstein Park, the same being that portion not used or needed for street and utility purposes, be sold or otherwise conveyed? Any monies acquired from said sale are to be used to provide park lands or facilities." (N) The returns of said election have been canvassed and said Issue was approved by a majority of the votes received at said election. (o) Inasmuch as the City owns only an easement for park and playground purposes in the real property referred to in 2(A) (1) and 2(C) , above, after deduction of the land upon which the Liberty-Laurel III Project public street is built, it cannot sell that property without joinder of the Perlsteins and the remaining real property in Perlstein Park has no access to public streets and, under current City development control ordinances, could not be developed or used independently without such access. (P) Such remaining property as a unit, after street improvements, would have value to the Perlsteins. (Q) Placing that remaining property on ad valorem tax rolls in private ownership would benefit the City. 4 3_ .AGREEMENT Now, Therefore, the parties agree as follows. (A) On or before May 29, 1998, the city shall: (1) Adopt the ordinance set forth on Exhibit "B" and convey to the Perlsteins, or to the person, corporation or entity they nominate in writing, on or before May 21, 1998, the real property described on Exhibit "D" (by special warranty deed in the form set forth on Exhibit "c") ; and (2) Furnish an Owner Policy of Title Insurance to the Perlsteins, or their nominee as above set forth, in accordance with the following: (a) The Policy shall be issued by Stewart Title Guaranty Company in the standard Texas form. (b) The Perlsteins shall pay the premium for said Policy. (c) The Policy shall insure fee title in the real Property described on Exhibit °D" vested in the Perlsteins, or their nominee as above set forth. (d) The Policy shall have no exceptions other than as set forth on Exhibit "E" to the extent required by law regarding title insurance. Section 14 (the .Arbitration Section) of the conditions and stipulations of the Policy shall be deleted_ (e) They Policy shall insure to the insured the following specific easement or right of access: the right of access and ingress and egress to and from the Liberty-Laurel III Project public street for the benefit of the real property described on Exhibit °"D" including at least two (2) twenty foot (20') wide curb cuts for vehicular driveways; subject to the provisions of the easement set forth in (B) (1) below. (f) The Policy shall contain the endorsement for future construction, in the standard Texas form, if required by the Perlsteins, or their nominee as above set forth. (g) The Policy shall be in the amount of insurance set in writing by the Perlsteins, or their nominee as above set forth, up to the highest amount that Stewart Title Guaranty Company will insure according to its underwriting rules. (h) The City will use its best efforts to comply with all reasonable requirements of stewart Titles Guaranty Company for the issuance of said Policy. (B) Upon the conveyance of the land and issuance of the title 6 insurance policy, as get forth in 3(A) , above, and in exchange for the real property described on Exhibit "D", the Perlsteins shall immediately: (1) Execute and deliver to the City the easement for street purposes upon and over the real property described on Exhibit "G" (by instrument in the form set forth on Exhibit "F") ; and (2) Approve entry of a take nothing judgment in the lawsuit described in 2(3) , above, (in the form set forth on Exhibit "H") . (C) Negotiations concerning this Agreement are intended to be compromise negotiations and the Agreement is intended to be a compromise and pursuant to TEX.R.CIV..EVID. 408, evidence concerning these matters shall not be admissible in the case referred to in 2 (J) above, except to enforce this agreement if executed by the parties. The Agreement is not binding until executed by the pa=tios. (D) This Agreement is meant. to be contractual and to be an agreement under TEX.R.CIV.p. 11 and shall be filed with the papers as part of the record in the case referred to in 2 (J) above, if signed by all of the parties. EXECUTED this day of May, 1998. 4t .Tq#h Frederic Simon, Individually And A,s Trustee Under The will Of Juliet Perlstein Simon, Deceased, And As Independent Executor of 7 The Estate Of Juliet Perlstein Simon, Deceased Charles H. 4AWSaum, Jr. , individually And As Independent Executor Of The Estate Of Eleanor Perlstein Weinbaum, D"cm,g4 /Muriel Selber Phillips, acting by and through her agent and attorney-in- fact, John Frederic Simon The City of Beaumont, Texas acting by and through its City Manager, Ray A. Riley The State of Texas, acting by and through its attorney of record APPROVED: TYRONE E. COOPER attorney of record for Defendant The City of Beaumont 00 ,Oijp G. BROCATO, attorney of record for Plaintiffs RESOLUTION WHEREAS, the City Council specifically finds that the Recitals set forth in the Agreement of even date herewith by and between: (1) John Frederic Simon, Individually And As Trustee Under the Will of Juliet Perlstein Simon, Deceased, And As Independent Executor Of The Estate of Juliet Perlstein Simon, Deceased; (2) Charles H. Weinbaum, Jr. , Individually And As Independent Executor Of The Estate of Eleanor Perlstein Weinbaum, Deceased; (3) Muriel Selber Phillips, acting by and through her agent and attorney-in-fact, John Frederic Simon; and, (1) The City of Beaumont, Texas, acting by and through its City Manager, Ray A. Riley; and (2) The State of Texas, acting by and through its attorney of record; attached hereto, are true. WHEREAS, notwithstanding Article XVII, Section 17, of the City Charter, this Resolution shall become effective immediately inasmuch as such Agreement providing for the conveyance of land is made subject to the outcome of an election submitting the question of whether the conveyance shall be consummated. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: That Ray A. Riley, City Manager, be and he is hereby authorized and directed to execute the above described Agreement on behalf of the City. Passed this day of 1998 . Mayor --T A ORDINANCE NO. ENTITLED AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND DELIVER THE DEED TO CONVEYING THE REAL PROPERTY THEREIN DESCRIBED AND THE CITY CLERK IS DIRECTED TO ATTEST SAME. WHEREAS, the City submitted to the qualified voters of the municipality at the City general election on the first Saturday in May, 1998 , the following issue: "Shall approximately 1.4487 acres of Perlstein Park, the same being that portion not used or needed for street and utility purposes, be sold or otherwise conveyed? Any monies acquired from said sale are to be used to provide park lands or facilities. " and the issue was approved by a majority of the votes received at said election; Now therefore: BE IT ORDAINED BY THE CITY OF BEAUMONT: SECTION 1 That the Mayor, David Moore, be and he is hereby authorized and directed to execute and deliver the deed a copy of which is attached hereto as Exhibit "C" to: conveying the real property described on the attached Exhibit "D" and the City Clerk is directed to attest to same. SECTION 2 The City is authorized to accept the street easement a copy of which is attached hereto as Exhibit "F" upon and over the real property described on Exhibit "G" attached hereto. ADOPTED this the day of 1998 . Mayor SPECIAL WARRANTY DEED DATE: , 1998 GRANTOR'S NAME AND MAILING ADDRESS: The City of Beaumont, Texas, a municipal corporation of Jefferson County, Texas, acting herein by and through its Mayor, David Moore, duly authorized by ordinance, a certified copy of which is attached hereto, and attested by its City Clerk. P.O. Box 3827 Beaumont, Texas 77705 GRANTEE: GRANTEE'S MAILING ADDRESS: CONSIDERATION: TEN AND N0 1100 ($10. 00) DOLLARS in hand paid plus other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. PROPERTY: That certain tract of land in Jefferson County, Texas, described on Exhibit "D" attached hereto and made a part hereof by reference. RESERVATIONS FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY: None. Grantor, for the consideration, 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 binds Grantor and Grantor's 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, by, through, or under Grantor but not otherwise. Attest: The City of Beaumont, Texas City Clerk By David Moore, Mayor EXHIBIT 110„ STATE OF TEXAS § COUNTY OF JEFFERSON § This instrument was acknowledged before me on the _ day of , 1998 by David Moore, Mayor of The City of Beaumont, Texas, a municipal corporation of Jefferson County, Texas, on behalf of said City. NOTARY PUBLIC, STATE OF TEXAS My commission expires: NO. D-151 . 855 JULIET P. SIMON, ET AL, § IN THE DISTRICT COURT OF Plaintiffs § § JEFFERSON COUNTY, TEXAS VS. § § THE CITY OF BEAUMONT, ET AL, § Defendants § 172nd JUDICIAL DISTRICT FINAL JUDGMENT On , 1998, came on to be heard the above entitled and numbered cause wherein (1) John Frederic Simon, Individually And As Trustee Under the Will of Juliet Perlstein Simon, Deceased, And As Independent Executor Of The Estate of Juliet Perlstein Simon, Deceased; (2) Charles H. Weinbaum, Jr. , Individually And As Independent Executor Of The Estate of Eleanor Perlstein Weinbaum, Deceased; and, (3) Muriel Selber Phillips, acting by and through her agent and attorney-in-fact, John Frederic Simon; are Plaintiffs; and, (1) The City of Beaumont, Texas; and, (2) The State of Texas; are Defendants. And the parties herein appeared by and through their attorneys of record and announced to the Court that all matters in dispute between them had been compromised and settled and requested the Court to enter a judgment in favor of Defendants and against Plaintiffs. Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that Plaintiffs, (1) John Frederic Simon, Individually And As Trustee Under the Will of Juliet Perlstein Simon, Deceased, And As Independent Executor Of The Estate of Juliet Perlstein Simon, Deceased; -EXHIBIT �� '., (2) Charles H. Weinbaum, Jr.-, Individually And As Independent Executor Of The Estate of Eleanor Perlstein Weinbaum, Deceased; and (3) Muriel Selber Phillips, acting by and through her agent and attorney-in-fact, John Frederic Simon, take nothing from Defendants, The City of Beaumont, Texas, and The State of Texas. All costs are adjudged against the party accruing same, for which the officers of this Court may have their execution. SIGNED this day of , 1998 . JUDGE PRESIDING APPROVED BOTH AS TO FORM AND AS TO SUBSTANCE: ANTHONY G. BROCATO Attorney for Plaintiffs TYRONE E. COOPER Attorney for Defendants The City of Beaumont JACK A. MCGAFFEY Attorney for Defendants The State of Texas 2 MAW INTER-OFFICE MEMORANDUM E City of Beaumont, Texas City Attorneys office Date: May 22, 1998 To: Mayor and City Council From: Tyrone E. Cooper, First Assistant City Attorney Subject: Perlstein Park Resolution COMMENTS In 1992, the City of Beaumont determined that a portion of Perlstein Park in the City of Beaumont was required for the construction of the Liberty-Laurel 111 Street-widening Project. It was also determined that there was no feasible and prudent alternative to the use of such park land and that the project included all reasonable planning to minimize harm to the land as a park for said use. Thereafter the City of Beaumont, in conjunction with the State of Texas, constructed the Liberty-Laurel III Street-widening Project using a portion of Perlstein Park. The heirs of the Perlstein Estate disagreed with the ability of the City of Beaumont to use Perlstein Park for any purpose other than as a park and filed suit seeking monetary damages to compensate them for the City's use of the park for street purposes. In an effort to compromise and settle this lawsuit, we have explored the option of conveying the remainder of the park to the Perlstein heirs. In order to accomplish this, it was necessary for a proposition to be placed on the May 2, 1998 election ballot seeking citizen approval to sell or otherwise convey the remaining acreage of Perlstein Park. The proposition authorizing such sale was approved by the qualified voters of the City of Beaumont at the general election in May, 1998. The two attached resolutions: (1) authorizes the City Manager to execute an agreement on behalf of the City of Beaumont setting forth the terms of the conveyance of 1.4487 acres of Perlstein Park to the Perlstein heirs or to the person, corporation or entity they nominate in writing to be the recipient of said-remaining park land. To approve this resolution will allow the agreement to convey the property to be effectuated. (2) authorizes the City Manager to execute and deliver a deed to Weingarten Realty Investors, the entity the Perlstein heirs have nominated as the recipient of the remaining park land. In return, the City of Beaumont will receive a street easement for that portion of Perlstein Park which is included in the Liberty-Laurel III Improvement Project. It is recommended that these resolutions be approved. Tyrone E. Cooper Attachment