Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION UNITED STATES OF AMERICA, Plaintiff v. 1.14 ACRES OF LAND, more or less, situated in CAMERON COUNTY, STATE OF TEXAS; and SOUTH LOOP GROWERS, ET AL Defendants UNITED STATES OF AMERICA Plaintiff, v. 3.02 ACRES OF LAND, more or less, situated in CAMERON COUNTY, TEXAS; and KAY LOOP, CHARLES E. LOOP, and TIM LOOP ET AL. Defendants UNITED STATES OF AMERICA Plaintiff, v. 3.02 ACRES OF LAND, more or less, situated in CAMERON COUNTY, TEXAS; and CHARLES PAUL LOOP ET AL. Defendants § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § CASE NO. 1:08-cv-295 CASE NO. 08-CV-297 CASE NO. 08-CV-334 Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 2 of 12 UNITED STATES OF AMERICA Plaintiff, v. 3.02 ACRES OF LAND, more or less, situated in CAMERON COUNTY, TEXAS; and SOUTH LOOP GROWERS, L.P. ET AL. Defendants § § § § § § § § § § § § CASE NO. 08-CV-340 DEFENDANTS’ MOTION TO DETERMINE COMPENSABLE INTERESTS COME NOW, Defendant Landowners herein, and file this Defendants’ Motion to Determine Compensable Interests, and in support thereof would show the court the following: 1.) Early document entitled Offer to Sell executed in 2008 regarding the purchase of property sought by the federal government for its border fence project does not contain an adequate property description to support a real estate conveyance and should therefore be set aside. Exhibit 1, Offer to Sell. 2.) Landowners should be allowed to contest the amount of just compensation for the takings of all interests in their land through the litigation process now that there are actual legal descriptions and surveying available and proper title work has been completed. I. FACTUAL AND PROCEDURAL BACKGROUND The United States, acting through the Department of Homeland Security, pursuant to the Secure Fence Act, set out in 2008 to acquire property from hundreds of private landowners in the -2- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 3 of 12 Rio Grande Valley in order to construct a border barrier and related infrastructure (the “border fence”) along the Texas border with Mexico. The planned border fence within Cameron and surrounding counties was to be constructed near the existing flood control levee which sits well distant from the actual international border, the Rio Grande River. The government’s plans were not to acquire all the land in between the border fence and the river but rather just to acquire a strip of land on which to build the fence. Therefore, there would be tens of thousands of acres of privately owned land located between the border fence and the actual international border. Today, that is in fact the case. Politically speaking, the border fence project was controversial. In execution, the project was plagued with mandated expediency which led to poor information, poor communication, and poor planning. There are still hundreds of landowners with open litigation relating to the border fence project almost six years later. There have been multiple examples, many pending in this Court, of how the lack of information and background work led to missteps in the land acquisition process.1 In most circumstances, private landowners have been the unfortunate victims of the pitfalls of this “speedy” government project. When the land acquisition process began in early 2008, various representatives of the federal government (believed to have been contract workers commissioned by the U.S. Army Corps of Engineers) made personal visits to peoples’ homes and businesses, informed them the government would be condemning land from them for the border fence, and offered to buy land 1 One of the more recent examples involved a condemnation matter brought against the City of Brownsville in 2008 in which it has just recently (five plus years later) been discovered that there were approximately 230 additional landowners that should have been named as defendants. Another example involves an offer of compensation made to an irrigation district rather than to the individual landowners who actually owned the fee interest in the land to be condemned. Payment was accepted by the irrigation district that did not own the fee interest. Years later, individual landowners who actually owned the interest being condemned were brought into the case and the irrigation district had to return payment. -3- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 4 of 12 for specified amounts. The landowners were asked to sign documents agreeing to certain amounts of money for their land. Landowners were told that should they not agree to sell their land, they would have to go to court against the federal government. At the time of these personal visits (around May 2008 in this particular case), there appeared to be limited information known about the project itself. Few details regarding the actual construction or design of the fence were shared, and absolutely no operational information was shared. Exhibit 2, Declaration of Timothy Loop. Landowners were being asked to make decisions with little meaningful information, and by all accounts it appears the government was undertaking a massive land acquisition with little meaningful information.2 In this particular case, the Loop family owns hundreds of acres of land, much of it located between the flood control levee and the Rio Grande River. Id. The Loops operate a commercial farming business and their family has done so for four generations in the Rio Grande Valley. Id. The Loops’ farm office, barns, and headquarters are behind the fence as is the residence of Timothy Loop and his family. Id. The government initially sought six strips of land from the Loops for the construction of the border fence.3 The Loops were visited by government 2 Because of the deadlines set out in the empowering legislation, the federal government was under an extreme time pressure to build the border fence project. This urgency led the Secretary of the Department of Homeland Security to institute unprecedented waivers of over 30 federal laws. Unlike most any other federal land acquisition, this one went forward without completed title work or legal surveying, and no real estate appraisals were done on which to base any offers of compensation. It is Defendants’ contention that the various policies, regulations, and statutes that otherwise provide protections and procedural safeguards to landowners whose property is being condemned by the government, were dismissed, putting landowners in a compromised position unlike condemnees of any other project. 3 The government has identified these parcels as: RGV-FTB-1025, RGV-FTB-1037, RGV-FTB-1040, RGV-FTB1041, RGV-FTB-1042, and RGV-FTB-1062. The estimated acreages of these tracts range from .49 to 2.5 acres. The acreage measurements are estimates only. No legal surveying had been completed at the time offers were presented to landowners and was not completed until months or years later. -4- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 5 of 12 representatives in May, 2008. Id. The government made offers to purchase these strips of land from the Loops. During this meeting with the government representative, the Loops were told the property the government was seeking to purchase from their family consisted of various strips of land upon which the fence would be built. Id. Each of these parcels amounted to small acreage, ranging from .49 to 2.5 acres. Id. The Loops asked many questions at this early meeting regarding what exactly the government intended to build and how it would work. They learned that much was unknown and undecided at that time. They were however assured that none of their access would be denied, that any gates that might be installed at some point would be a separate issue to be dealt with later, that the land the government was now seeking to acquire was just for the footprint of the fencing and had nothing to do with gates or openings, and that the offered compensation was for only the small acreage included in the strips of land. Id. at paragraphs 8 and 11. The government representative presented forms to the Loops entitled “Offer to Sell”. The Loop family did not desire protracted litigation against the federal government and they ultimately signed the agreement at issue in this motion – the Offer to Sell regarding Parcel RGV-FTB-1040.4 See Exhibit 1. That parcel was estimated to be 1.14 acres of land. Id. This document, presumably a contract to sell real estate, contains the following “legal” description of the property being conveyed: BEING a certain tract of land containing 1.14 acres more or less of 27.34 acres more or less out of Block 33, Espiritu Santo Grant, Cameron County, Texas, being more particularly described as follows: 4 The Loop family also executed these Offer to Sell documents regarding other parcels as well. In those cases, there have been additional agreements executed which incorporate and expand on the terms in the Offer to Sell. Though Defendants do not concede the enforceability of any Offers to Sell, in this motion, only the Offer to Sell as to parcel 1040 is at issue. -5- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 6 of 12 BEING a strip of land located westerly of, and running adjacent to the existing levee, said strip being approximately 55 feet in width and approximately 910 feet in length, which severs the land of the subject owner, and contains 1.14 acres, more or less, as shown on the attached map. IT IS THE INTENT of the foregoing description to include a part of the land as that in a Deed from L&L Farms, to South Loop Growers, L.P., signed February 27, 2006, filed for record in Volume 13217, Page 229, in the records of Cameron County, Texas. Note: this tract is further referenced as Cameron County Appraisal District Identification No. 135055. Exhibit 1 at LOOP-USA-000629. It should preliminarily be noted that the Loops do not recall there being a map attached to this document. Exhibit 2 at paragraph 12. Though there were various maps presented at different times by government representatives, no one recalls an attached map specific to this Offer to Sell and in none of the Loops records is there a map that accompanies the Offer to Sell.5 Nevertheless, with or without a map, this property description has multiple fatal flaws and is inadequate to support a real estate conveyance. First, the property description fails to identify the sub-division in which the Block is located. This is fatal as there are many Block 33’s within the Espiritu Santo Land Grant in Cameron County, Texas. What should have been included in the property description is that the property is in the El Jardin subdivision. No mention at all of the El Jardin subdivision was made in the initial property description. Second, using the levee as a reference point allows for multiple interpretations of where the property starts and stops as there are different parts to the levee itself and there is a levee easement area that reaches far beyond the earthen berm as it sits. 5 It should also be noted that the very Offer to Sell document that was produced by the government in response to Defendants’ Requests for Production did not include an attached map. -6- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 7 of 12 Third, even if the location of the “levee” was certain, using the term “adjacent” rather than “adjoining” also leaves room for more than one interpretation as the definition of adjacent could encompass nearby but not next to. Finally, the initial description states the property is a strip of land 55’ wide and 910’ long, amounting to 1.14 acres. Once legally surveyed, the property is actually 60’ wide, 924.6’ long, and 1.274 acres. These errors are fatal to the property description and therefore the conveyance of land. Given these errors and the misrepresentations made to the Loops regarding what property rights were being negotiated, the Offer to Sell document should be given no effect. Defendants offer declarations from Eduardo Mejia, a certified land surveyor, and from Guy Huddleston, a Title Examiner and President of Edwards Abstract and Title Company, in support of the contention that this property description is inadequate to support a real estate conveyance. See Exhibit 3, Declaration of Ed Mejia, and Exhibit 4, Declaration of Guy Huddleston. II. ARGUMENT AND AUTHORITIES A. The Property Description Included in the Offer to Sell Fails to Provide the Means or Data by which the Land to be Conveyed can be Identified with Reasonable Certainty. The statute of frauds requires that conveyances of real property, to which the legal description is an essential element, be in writing. Tex. Bus. & Com. Code Ann. § 26.01(b)(4). If a conveyance of an interest in real property does not sufficiently describe the land to be conveyed, it is void under the statute of frauds. Pick v. Bartel, 659 S.W.2d 637 (Tex. 1983). “To be sufficient, the writing must furnish within itself, or by reference to some other existing -7- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 8 of 12 writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Id. at 539 citing Norris v. Hunt, 51 Tex. 609 (1879); Osborne v. Moore, 112 Tex. 361, 247 S.W. 498 (1923); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Hoover v. Wukasch, 152 Tex. 111, 254 S.W.2d 507 (1953); Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308 (1953); Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468 (1955). “The legal description in the conveyance must not only furnish enough information to locate the general area as in identifying it by tract survey and county, it need contain information regarding the size, shape, and boundaries.” See Reiland v. Patrick Thomas Properties, Inc., 213 S.W.3d 437 (2006) citing Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948) and Morrow, 477 S.W.2d at 539. (emphasis added). With regard to the ever important size, shape, and boundaries, the government’s first attempted property description provides only an estimate of the size, 1.14 acres. It should be noted that once a legal survey was later performed, the size was determined to actually be 1.274 acres. See Exhibit 5, Legal Description of the Property once a legal survey was performed. Also, the government’s first description states the property will be a strip of land 55 feet wide. In fact, when the government completed its survey, it ended up condemning a strip of land 60 feet wide. Id. As for the boundary, the first description states “…strip of land located westerly of, and running adjacent to the existing levee….” Again, as there are many different parts to the levee and the levee easement (not to mention that the levee might actually move over time as it is revetted and maintained), this reference does not give a definite boundary for the property. This is best explained in Mr. Mejia’s Declaration at paragraph 7: -8- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 9 of 12 I have observed the levee on the subject and other similar properties in Cameron County. The levee on the subject property and in the general area varies in width and height. The levee itself (meaning the earthen berm actually sitting in place) contains parts typically referred to as the levee boundary, the toe, the levee road, and the crown. Use of the term “adjacent” in the above description to identify the location of the 55’ strip of conveyed land is insufficient to determine the location of the property conveyed to the exclusion of other potential parcels of property because it is unclear as to what part of the levee to which you are referring. Specifically, whether upon review of the document or by review of the document while on site, it cannot be determined whether the 55 foot wide strip starts at the boundary, toe, crown, or other part of the levee. Therefore, the property purportedly conveyed cannot be determined with reasonable accuracy to the exclusion of other land. Because the term adjacent can refer to being nearby, and because the starting point for the measurement could be the toe, boundary, the crown, or otherwise, of the levee, it is insufficient to identify its location, shape, and boundaries. As such, more than one tract could fit the description referred to above and the shape, boundary, and location of the conveyed property are indeterminable. Exhibit 3, Mejia Declaration at paragraph 7. B. Nothing In, or Referenced In, the Description Would Allow an Individual to Identify the Purportedly Conveyed Tract to the Exclusion of Any Other Mr. Mejia goes on to explain that more than a single piece of property fits this property description. If you were to hire two qualified surveyors, provide to them the description at issue here, and ask them to mark this piece of property on the ground, there would be, or certainly could be, two different pieces of property marked and both surveyors could be equally correct given the property description. In other words, this property description can and does describe more than a single piece of property. It is ambiguous. Exhibit 3, paragraph 8. When, from the description given, it is reasonably possible to locate more than one tract of land fitting that description, the statute of frauds is not satisfied. See Tex.Bus. & Comm.Code Ann. s 26.01 (Vernon 1968 & Vernon Supp. 1978-1979). Insufficient descriptions have been found when an uncertain area is excepted from a more definitely described plot, Wilson v. -9- Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 10 of 12 Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945), [and] when a specific number of acres, without further description, is conveyed out of a larger, definitely described tract, E. g., Burrows v. Seale, 148 Tex. 411, 225 S.W.2d 966 (1950); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Mauro v. Wildwood Co., 426 S.W.2d 322 (Tex.Civ.App. Houston (14th Dist.) 1968, writ ref'd n. r. e.).” Mr. Huddleston, a title insurance professional, likewise offered the opinion that “this description is insufficient to identify the described property’s location, shape, or boundaries. As such, more than one tract could fit the description referred to above.” Exhibit 4 at paragraph 5. He goes on to explain that as one cannot determine the land to be conveyed with reasonable certainty, a title company would not issue title insurance on the subject property without revision of the legal description to remedy the deficiencies. Id. at paragraph 7. III. CONCLUSION AND PRAYER In its expediency, the government opted to proceed with efforts to acquire land before completing title work and legal surveying. That is a reality with which we have all been dealing in this litigation for six years. But it is without question that legal surveying and legal property descriptions are needed to complete these land conveyances (whether by eminent domain or voluntary sale), and perhaps that is best evidenced by the fact that the government followed up their initial efforts by having surveying completed in all border fence acquisitions. In this particular case however, the Loop family did not have the benefit of a proper legal description before them when the Offer to Sell was executed in May, 2008. In fact, it was not until the - 10 - Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 11 of 12 government filed an amended complaint in April, 2011, that an actual legal property description of tract RGV-FTB-1040 was provided. Defendants should not be bound by the May, 2008, Offer to Sell, and ask this Court to find that agreement unenforceable and to allow them to contest just compensation for all property interests being condemned from them. WHEREFORE, PREMISES CONSIDERED, Defendants pray this Court find that the Offer to Sell executed in May, 2008 as to tract RGV-FTB-1040 is unenforceable and that all compensation issues relating to the acquisition of all interests in said tract be left for determination in this Court, and for other relief to which they may be justly entitled. Respectfully Submitted: BARRON & ADLER, L.L.P By: __/s/ Kimberli Deagen Loessin_____ Kimberli Deagen Loessin Attorney-in-Charge Texas Bar No. 24004482 Federal Admission No. 910690 1421 Heights Boulevard Houston, Texas 77002 713-525-1500 713-526-1550 Fax Roy R. Brandys Texas Bar No. 02883550 Federal Admission No. 31963 808 Nueces Austin, Texas 78701 512-478-4995 512-478-6022 Fax Attorneys for Defendants - 11 - Case 1:08-cv-00297 Document 52 Filed in TXSD on 12/23/13 Page 12 of 12 CERTIFICATE OF SERVICE I, Kimberli Deagen Loessin, attorney for Defendants, do hereby certify that a true and correct copy of the foregoing was served on all counsels of record via the Court’s ECF system. /s/ Kimberli Deagen Loessin_____ Kimberli Deagen Loessin - 12 - Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 1 of 6 14:08 966 289 5922 P.01 DEPARMENT OF THE ARMY OFFER TO SELL REAL PROPERTY Project: PF 225 Tract No.: RGV-FTB-1040 Contract No.: . The undersigned, hereinafter called the Vendor, in consideration of the mutual covenants and agreements herein set forth, offers to sell and convey to The United States of America and its assigns, the fee simple title to the following described land, with the buildings and improvements thereon, and all rights, hereditaments, easements, and appurtenances thereunto belonging, located in the County of Cameron, State of Texas, bounded and described as set forth in Exhibit attached hereto and made a part hereof, subject to existing easements for public roads and highways public utilities railroads and pipelines, subject to the following exceptions and rights outstanding in third parties: The fee Simple estate to be conveyed and referenced above shall be as set forth in Exhibit attached hereto and made a part hereof. The Vendor reserves only the following rights and interests in the above described property: (namelyz) t?ee Paraqraph 13) The terms and conditions of this offer are as follows: (1) The vendor agrees that this offer may be accepted by the United States through any duly authorized representative, by delivering, mailing, or electronically transmitting a notice of acceptance to the Vendor at the address stated below, at any time within six (6) months from the date hereof, whereupon this offer and the acceptance thereof become a binding contract. The United States of America agrees to pay to the Vendor of the said land the sum of WW payable on wthe acceptance of this offer and approval of the Vendorktitle; provided the) .. 1 .. EXHIBIT LL mums LOOP-USA-000625 Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 2 of 6 14:08 856 288 5922 P.02 Vendor can execute and deliver a good and sufficient general warranty deed conveying said land with the hereditaments and appurtenances thereunto belonging to The United .States of America and its assigns, in fee simple, free and clear from all liens and encumbrances, except those specifically excepted or reserved, above, together with all right, title, and interest which the Vendor may have in the banks, beds, and waters of any streams bordering the said land to be conveyed, and also all interest in alleys, roads, streets, ways, strips, genes, or railroad rights-of?way abutting or adjoining said land and in any means of ingress or egress appurtenant thereto. (3) It is agreed that the United States will defray the expenses incident to the preparation and recordation of the deed to The United States and the procurement of the necessary title evidence. (4) The Vendor agrees to satisfy of record at or before the transfer of title, all encumbrances and special assessments which are a lien against the land, as the United States may require, and to pay the pro rata portion of all taxes on the property which are allocable to a period prior to and including the date of vesting title in The United States, or the effective date of possession of such real property by The United States, whichever is the earlier, and, if the Vendor fails to do so, the United States may pay any taxes, assessments, and encumbrances which are a lien against the land; that the amount of any such payments by the United States shall be deducted from the purchase price of the land; and that the Vendor will, at the request of the United States and without prior payment or tender of the purchase price, execute and deliver a general warranty deed to The United States and obtain and record such other curative evidence of title as may be required by the United States. (5) The Vendor agrees that loss or damage to the property by ?re or acts of God shall be at the risk of the Vendor until the title to the land and deed to The United States have been accepted by the United States through its duly authorized representative or until the right of occupancy and use of the land, as hereinbelow provided for, has been exercised by The United States; and, inlthe event that such loss or damage occurs before the risk of loss has passed to the United States, the United States may, without liability, refuse to accept conveyance of the title or it may elect to accept conveyance of title to such property, in which case there shall be an equitable adjustment of the purchase price. (6) The Vendor agrees that the United States may, notwithstanding the prior acceptance of this offer, acquire title to said land in the name of the United States by condemnation or other judicial proceedings. in which event the Vendor agrees to cooperate with the United States in the prosecution of such proceedings; agrees that the consideration hereinabove stated shall be the full amount of just compensation, inclusive of interest, for the taking of said land; agrees that the consideration recited in paragraph 2 hereof constitutes the full amount of the compensation for the land and shall be pro rated among all persons having an interest in this property as their respective interests may appear; and agrees that the said consideration shall be in full Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 3 of 6 14:08 9?58 289 8922 P.03 statesmemearm the (352: satisfaction of any and all claims of the Vendor for payment for the right of occupancy and use hereinafter provided for in paragraph 7. . (7) The Vendor hereby grants to The United States the right of immediate occupancy and use of the land for any purpose whatsoever'from and after the acceptance by the United States of this offer until such time as said land is conveyed to The United States and, upon demand, the Vendor will immediately vacate the property and deliver possession to The United States. (8) It is agreed that the spouse, if any, of the Vendor, by signing below, agrees to join in any deed to The United States and to execute any instrument deemed necessary to convey to The United States any separate or community estate or interest in the subject property and to relinquish and release any dower, curtesy, homestead, or other rights or interest of such spouse therein. (9) The Vendor represents and it is a condition of acceptance of this offer that no Member'of or Delegate to Congress, or Resident Commissioner, shall be admitted to or share any part of this agreement, or to any benefits that may arise therefrom; but this provision shall be not construed to extend to any agreement if made with a corporation for its general benefit. (10) The terms and conditions aforesaid are to apply to and bind the heirs, executors, administrators, successors, and assigns of the Vendor. (11) All terms and conditions with respect to this offer are expressly contained herein and the Vendor agrees that no representative or agent of the United States has-- made any representation or promise with respect to this offer not expressly contained herein. (12) The consideration amount in this Offer To Sell, whether accepted by the United States or not, will be considered null and void by the Vendor and Vendee, if, after an environmental examination, the V?endee discovers within any portion of the property any CERCLA?regulated contaminants, or other materials and objects of any kind, which Vendee determines to negatively impact the value of the property or suitability for the Project. Notice of such negative impact determination will be provided to Vendor in writing. (13) The Vendor reserves the following rights and interests in the preperty being acquired by the United States and described herein: a perpetual rightwof-way on both sides of the Federal border barrier for the purpose of gaining access to Vendor's land on the other side of the border barrier; and, the United States grants to the Vendor a perpetual right-of~way across other lands of the United States along and on both sides of the border barrier to reach and utilize the nearest border barrier gate for the purpose of crossing over the levee and accessing Vendor?s lands on the other side. This reservation and grant does not create any new rights to traverse any part of the levee, -3- Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 4 of 6 MAY-SIHZOOQ 14:09 966 289 5922 9.04 and does not change the nature of any such rights, if any, which may now exist. The purpose of this provision is to clarify that the United States is not prohibiting access to Vendor's remaining lands between the border barrier and the Rio Grande River, but is providing a permanent right-of?way to Vendor and all landowners similarly situated to access the nearest border barrier gate which allows entry to the other side of the border barrier from which unaoquired land can be accessed. SIGNED SEALED AND DELIVERED this 222% day of 277% .2068. WWAEE We; gm&/ WW - - <5 NOTICE OF ACCEPTANCE OF THIS OFFER lS TO BE SENT TO: [136439 Met/?S 572$ 5 Qk/aztama gem; gramme/? [@7557 7555?99 (Name and Address? ACCEPTANCE OF OFFER TO SELL REAL PROPERTY 32 eel/3%? a) The offer of the Vendor contained herein is hereby accepted for and on behalf of the United States of America. HEM Chie Real Estate Division- Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 5 of 6 'MAY-31~2ooa 14:09 965 289 5922 19.05 EXHIBIT A LEGAL DESCRIPTION if i Cameron County, Texas a, ii i; Tract: Owner: South Loop Growers Acres: 1.14 BEING a certain tract of land containing 1.14 acres more or less of27.34 acres more or less out of Block 33, Espiritu Santo Grant, Cameron County, Texas, being more particularly described as follows: BEING a strip of land located westerly of, and running adjacent to the existing levee, said strip being approximately 55 feet in width and approximately 910 feet in length, which severe the land of the subject owner, and contains 1.14 acres, more or less, as shown on the attached map. IT IS THE INTENT of the foregoing description to include a part of the land as that in a Deed from Farms, to South Loop Growers, L.P., signed February 27, 2006, filed for record in Volume 13217, Page 229, in the records of Cameron County, Texas. Note: this tract is ?irther referenced as Cameron County Appraisal District Identi?cation No. 135055. . Tract: WW r3 (K 691%} le?g 0 Case 1:08-cv-00297 Document 52-1 Filed in TXSD on 12/23/13 Page 6 of 6 "puma-2003 14:99 955 289 5922 race EXHIBIT A-l FEE EXCLUDING MINERALS The estate taken is fee simple, subject to existing easements for public roads and highways, public utilities, railroads and pipelines; excepting and excluding all interests in minerals and the rights appurtenant thereto. Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 1 of 6 55:31 9559313714 ANDL FARMS PAGE @1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION UNITED STATES OF AMERICA Plaintiff v. CASE NO. 1.14 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERs, L.P., ET AL, Defendant UNITED STATES OF AMERICA Plainty'j?' v. CASE NO. 3.02 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND KAY E. LOOP, 131' AL, De?mdanr. UNITED STATES OF AMERICA Plaintiff; v. CASE NO. 0.49 ACRES OF LAND, MORE OR LESS, SITUATED 1N CAMERON COUNTY, AND CHARLES PAUL LOOP, 4} ET AL, De?andant. Page I of 6 EXHIBIT 0?2. momma Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 2 of 6 11/13/2313 35:31 9553313714 ANDL FARMS PAGE 32 UNITED STATES OF AMERICA Plainlg'f? v. CASE NO. 2.47 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERS, L.P., ET AL., Defendant. DECLARATION OF TIMOTHY LOOP I hereby declare the following: 1. My name is Timothy Loop. 1 am over 18 years of age, have never been convicted of a felony, and am fully competent to make this declaration. I have personal knowledge of the facts and statements made herein and they are true and correct. 2. Paul Loop and I operate a commercial farming business in Brownsville, Texas. Collectively, Paul Loop and I, along with my parents, Charles and Kay Loop own approximately 425 acres on the east side of Brownsville that we utilize in our fanning operations. Paul Loop and I own South Loop Growers and we also lease and operate approximately another 4000 acres of land that we farm. This is our livelihood. This farming operation and this land have been in my family for four generations. 3. My uncle, Leonard Loop, and my cousins Ray and Frank Loop, collectively own another 700 plus acres in this immediate area that is also used for commercial farming. They likewise lease many hundreds of acres more in the area for their farming operation. These family members also have had many pieces of property condemned by the federal government for the construction of the border wall. Page 2 of 6 Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 3 of 6 11/1sxza13 a5: 31 9568313?14 FARMS ease as 4. In the Spring of 2008, representatives from the federal government began making in- person visits to the and my family members regarding the federal government?s plans to construct a fence across the lands of various private landowners in the Rio Grande Valley. 5. At the time representatives from the government began making them visits to my family, We were generally aware from the media that the federal government intended to build a border wall or fence throughout the area. We were sent correspondence from the regarding its intention to build this project and that our land could be impacted. We did not know details about what type of structure would be built, exactly where it would be built, how it would be utilized by border patrol or others in the government, or really how certain it even was that such a project would be completed. 6. During these visits, we learned that the government, for its project, wanted to take or ?buy? ?ve different small strips of Our land. The purpose of the visits by the government representatives seemed to be to coax me and my family into agreeing to sell them part of Our land to build the border fence. The government representative presented an ?offer? to buy certain strips of land that we understood to be across certain tracts of my family?s land. The government referred to these different strips of land by assigning numbers. The g0vernment called these different pieces Parcels RGV-FTB-1037. RGV-FTB-1040, and No surveys of these parcels were shared with us and it was our understanding that at the time of our meeting, no surveys or legal property descriptions existed. 7. Given the acreage my family owns, these strips of land that the government wanted from us seemed to be very small acreages of property. Although there were no precise Page 3 of6 Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 4 of 6 65:31 9558313?14 AHDL PQGE 54 measurements and no surveys or legal descriptions, the government approximated the strips of land to be from about .49 acres to about 2.5 acres. These of course were not precise measurements as there had been no surveying completed. I and my family understood that the general location of these strips of land was nearby the ?ood control levee that generally runs near the weatern boundary of our property. That ?ood control levee is comprised of a mound ot?ditt and is routinely maintained by or at times altered by the International Boundary and Water Commission, and it is generally located within a ?ood control levee easement that has been in place for many decades. 8. In our various conversations with the representatives from the government, we were told that the offers to buy were Speci?cally for these small strips of land. We were told that all of our access points would remain open to our farm. We were told that our access to and along the ?ood control levee road would remain intact and uninterrupted. We were told that the offers had nothing to do with any gates, that any gates that may in the future be constructed were a completely separate issue than what was being discussed in the offers to buy these strips of land. My family felt that the most significant impacts on our property arising from the government?s proposed border fence would be created by any gating of the fence, not the interrupted strips of the fence itself. It was with this understanding that we evaluated the government?s offers and negotiations. As we these offers with the government, we (my family and I) were always of the understanding based on the representations of the government that we were only talking about an interrupted strip of fence along our property that in no way altered our access. We never believed that we were discussing the purchase price for closing off any of our access points. We were told many times by representatives from the government that we Page 4 of 6 Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 5 of 6 11/1ar2a13 35:31 9558313714 aunt. FARMS PAGE as -.. . would continue at all times to have unimpeded access to all of our property. Every decision we made was with the understanding that we were only talking about small strips of our land for the construction of the fence itself, not for any closure of access points. 9. I and my family are not necessarily supportive of building a wall or fence along our country?s border with Mexico but we have always tried to be supportive of our government. It was our desire to not be an obstruction to our government?s getting a job done. 10. Further, my family and I were apprehensive about engaging in a dispute over this gowmmeut project. We wanted to do our patriotic duty and we did not want to unreasonably contest our government, but we trusted our government to treat us fairly. We trusted the representatives of the government to be honest and forthright when dealing with us. 11. Government representatives discussed with me and my family members what access points we were currently using to access our properties from public roads. It was represented to us that the project was being planned so as to preserve all of our current access. We were repeatedly assured that all of our access would be preserved and that we were not agreeing to any of our access being compromised or limited. 12. When the government representatives visited us and presented documents called ?Offers to Sell,? as is attached as Exhibit A, I do not recall any individual maps being attached to the documents. I declare under penalty of perjury that the feregoing is true and correct. Page 5 of6 Case 1:08-cv-00297 Document 52-2 Filed in TXSD on 12/23/13 Page 6 of 6 11/1322513 35:31 9553313?14 ANDL FARMS PAGE as TimothyTOOp Executed and dated on: f? 9 Page 6 of 6 Case Document 52-3 Filed in TXSD on 12/23/13 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION UNITED STATES OF AMERICA Plainti?f v. 1.14 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERS, L.P., ET AL., Defendant. CASE NO. UNITED STATES OF AMERICA Plainti?f v. 3.02 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND KAY E. LOOP, ET AL., Defendant. UNITED STATES OF AMERICA Plaintz'?f V. 0.49 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND CHARLES PAUL LOOP, ET AL., Defendant. CASE NO. CASE NO. 1 Page 1 of 5 EXHIBIT 3 Case Document 52-3 Filed in TXSD on 12/23/13 Page 2 of 11 UNITED STATES OF AMERICA V. 2.47 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERS, L.P., ET AL, Plait/my}? CASE NO. Defendant. DECLARATION OF EDUARDO MEJIA I hereby declare the following: 1. My name is Eduardo H. Mejia. I am over 18 years of age, have never been convicted ofa felony, and fully competent to make this declaration. I have personal knowledge of the facts and statements made herein and they are true and correct. I currently hold the position of President of Mejia Rose, Inc., a surveying and engineering ?rm on Brownsville, Texas. I have been a Texas State registered surveyor working primarily in Cameron County, Texas for 32 years. I. received my Bachelor of Science Degree in Technology from the University of Houston in 1971. I have taken continuing education courses in land surveying since graduation. I have surveyed thousands of parcels of land in Cameron County including agricultural, residential, commercial, and recreational tracts. As such, I am familiar with the procedures involved in completing land surveys including review, interpreting, preparing, and analyzing legal descriptions, ?eld notes, and surveys of properties. I have reviewed a document entitled Department of the Anny Offer to Sell Real Property bearing Contract No. referring to Project: PF 225, Tract Page 2 of Case Document 52-3 Filed in TXSD on 12/23/13 Page 3 of 11 No. RGV-FTB-104O executed by various members of the Loop family and Hyla Head as Chief, Real Estate Division, USA with Exhibits and a true and correct copy of which is attached hereto as Exhibit and incorporated herein by reference as if fully 10 copied and set forth at length (hereinafter referred to as ?Offer to Sell?). (1, . 6 set i -. Exhibit attached to the Offer to Sell is entitled ?Legal Description? purporting to an ?ego?: describe the property conveyed. The first paragraph of the legal description refers to a ?certain tract ofland containing 1.14 acres more or less of27.34 acres more or less out ofBlock 33, Espirita Santa Grant, Cameron County, Texas As such, the description includes the Block whereby the property is located but fails to identify in any fashion the Subdivision where the land is located. ?Espiritu Santo Grant? is not the subdivision; I therefore, the legal description is incomplete. Thus, without identifying the Subdivision where the subject property is located, it is be impossible to determine the location of the property referred to from the legal description. 6. Further, the second paragraph of the Offer to Sell states as follows: BEING a strip of land located westerly of, and running adjacent to the existing levee, said strip being approximately 55 feet in width and approximately 910 feet in length, which severs the land of the subject owner, and contains 1.14 acres, more or less, as shown on the attached map. If in fact the property referred to above is located in Share 32 of Block 33 of the El Jardin Subdivision although that cannot be determined from the document the distance between the West boundary line of Block 33, ?El Jardin Subdivision of Share 32? to the levee is over 550 feet. This means that the 55 foot strip mentioned in the above legal description could be situated anywhere within the 550 foot portion of Block 33 and be Page Case Document 52-3 Filed in TXSD on 12/23/13 Page 4 of 11 ?adjacent? to the existing levee. This is because the term ?adjacent? can be de?ned as ?near? or ?close by.? I have observed the levee on the subject and other similar preperties in Cameron County. The levee on the subject property and in the general area varies in width and height. The levee itself (meaning the earthen berm actually sitting in place) contains part typically referred to as the levee boundary, the toe, the levee road, and the crown. Use of the term ?adjacent? in the above description to identify the location of the 55? strip of conveyed land is insuf?cient to determine the location of the preperty conveyed to the exclusion of other potential parcels of property because it is unclear as to what part of the levee to which you are referring. Speci?cally, whether upon review of the document or by review of the document while on site, it cannot be determined whether the 55 foot wide strip starts at the boundary, toe, crown, or other part of the levee. Therefore, the property purportedly conveyed cannot be determined with reasonable accuracy to the exclusion of other land. Because the term adjacent can refer to being nearby, and because the starting point for the measurement could be the toe, boundary, the crown, or otherwise, of the levee, it is insuf?cient to identify its location, shape, and boundaries. As such, more than one tract could fit the description referred to above and the shape, boundary, and location of the conveyed property are indetelininable. If you were to hire two qualified surveyors, provide to them?the description at issue here, and ask them to mark this piece of property on the ground, there would be, or certainly could be, two different pieces of property marked and both surveyors could be equally correct given the property description. in other words, this property description can and does describe more than a single piece of property. It is ambiguous. Page 4 of 5 Case Document 52-3 Filed in TXSD on 12/23/13 Page 5 of 11 9. Fuither, while the above referenced legal description identi?es ?the attached map?, it is my understanding that no such map was included. 10. In light of the above, upon review of the Offer to Sell and attached Legal Description, it is my opinion as a Texas State registered surveyor with over 31 years of experience in the a r39. pg 1 ?eld, that one can determine the land to be conveyed with reasonable certainty. The 465? subject property cannot be identi?ed to the exclusion of other land and its location, shape, and boundaries cannot be suf?ciently determined. I declare under penalty of perjury that the foregoing is true and correct. Eduardo Mejia Executed and dated 0 Page 5 of 5 -r).n4 "HA-mam --.. . .- Case Document 52-3 Filed in TXSD on 12/23/13 Page 6 of 11 14:03 955 289 5922 P.01 DEPARMENT OF THE ARMY OFFER TO SELL REAL PROPERTY 323? ProjectTract No.: RGV-FTB-1040 Contract No.: "ML/?go? 5.9??25? The undersigned. hereinafter called the Vendor, in consideration of the mutual covenants and agreements herein set forth, offers to salt and convey to The United States of America and its assigns, the fee simple title to the following described land, with the buildings and improvements thereon, and all rights, hereditaments, easements, and appurtenances thereunto belonging, located in the County of Cameron, State of Texas, bounded and described as set forth in Exhibit attached hereto and made a part hereof, subject to existing easements fer public roads and highways, public utilities, railroads, and pipelines; subject to the following exceptions and rights outstanding in third parties: The fee Simple estate to be conveyed and referenced above shall be as set forth in Exhibit attached hereto and made a part hereof. The Vendor reserves only the following rights and interests in the above described property: (namelyz) (See Paragraph 13) The terms and conditions of this offer are as follows: The vendor agrees that this offer may be accepted by the United States through any duly authorized representative, by delivering, mailing, or electronically transmitting a notice of acceptance to the Vendor at the address stated below, at any time within six (6) months from the date hereof, whereupon this offer and the acceptance thereof become a binding contract. - (2) The United States of America agrees to pay to the Vendor of the said land the sum of Wb?w payable on thew acceptance of this offer and approval of the Vendori?title; provided the) .. LOOP-USA-000625 . Case 1:08-cv-00297 Document 52-3 Filed in TXSD on 12/23/13 Page 7 of 11 14:09 956 see 5322 P.02 Vendor can execute and deliver a good and sufficient general warranty deed conveying said land with the hereditaments and appurtenances thereunto belonging to The United States of America and its assigns. in fee simple, free and clear from all liens and encumbrances. except those specifically excepted or reserved. above. together with all right. title. and interest which the Vendor may have in the banks. beds. and waters of any streams bordering the said land to be conveyed. and also all interest in alleys. roads. streets, ways. strips. gores. or railroad rights-of-way abutting or adjoining said land and in any means of ingress or egress appurtenant thereto. (3) It is agreed that the United States will defray the expenses incident to the preparation and recordation of the deed to The United States and the procurement of the necessary title evidence. (4) The Vendor agrees to satisfy of record at or before the transfer of title. all encumbrances and special assessments which are a lien against the land. as the United States may require. and to pay the pro rata portion of all taxes on the property which are allocable to a period prior to and including the date of vesting title in The United States. or the effective date of possession of such real property by The United States. whichever is the earlier. and. if the Vendor fails to do so.- the United States may pay any taxes. assessments. and encumbrances which are a lien against the land; that the amount of any such payments by the United States shall be deducted from the purchase price of the land; and that the Vendor will. at the request of the United States and without prior payment or tender of the purchase price. execute and deliver a general warranty deed to The United States and obtain and record such other curative evidence of title as may be required by the United States. (5) The Vendor agrees that loss or damage to the property by ?re or acts of God shall be at the risk of the Vendor until the title to the land and deed to The United States have been accepted by the United States through its duly authorized representative or until the right of occupancy and use of the land. as hereinbelow provided for. has been exercised by The United States; and, inthe event that such loss or damage occurs before the risk of loss has passed to the United States. the United States may. without liability. refuse to accept conveyance of the title or it may elect to accept conveyance of title to such property. in which case there shall be an equitable adjustment of the purchase price. (6) The Vendor agrees that the United States may, notwithstanding the prior acceptance of this offer, acquire title to said land in the name of the United States by condemnation or other judicial proceedings. in which event the Vendor agrees to cooperate with the United States in the prosecution of such proceedings; agrees that the consideration hereinabove stated shall be the full amount of just compensation. inclusive of interest, for the taking of said land; agrees that the consideration recited in paragraph 2 hereof constitutes the full amount of the compensation for the land and shall be pro rated among all persons having an interest in this property as their respective interests may appear; and agrees that the said consideration shall be in full Case Document 52-3 Filed in TXSD on 12/23/13 Page 8 of 11 newer?zoos 14:08 955 239 6922 9.03 satisfaction of any and all claims of the Vendor for payment for the right of occupancy and use hereinafter provided for in paragraph 7. . (7) The Vendor hereby grants to The United States the right of immediate occupancy and use of the land for any purpose whatsoever'from and after the acceptance by the United States of this offer until such time as said land is conveyed to The United States and, upon demand, the Vendor will immediately vacate the property and deliver possession to The United States. (8) it is agreed that the spouse, if any, of the Vendor, by signing below, agrees to join in any deed to The United States and to execute any instrument deemed necessary to convey to The United States any separate or community estate or interest in the subject property and to relinquish and release any dower, curtesy, homestead, or other rights or interest of such spouse therein. (9) The Vendor represents and it is a condition of acceptance of this offer that no Member'of or Delegate to Congress, or Resident Commissioner, shall be admitted to or share any part of this agreement. or to any bene?ts that may arise therefrom; but this provision shall be not construed to extend to any agreement if made with a corporation for its general benefit. (10) The terms and conditions aforesaid are to apply to and bind the heirs, executors, administrators, successors, and assigns of the Vendor. - (11) All terms and conditions with respect to this offer are expressly contained herein and the Vendor agrees that no representative or agent of the United States has- made any representation or promise with respect to this offer not expressly contained herein. (12) The consideration amount in this Offer To Sell, whether accepted by the United States or not, will be considered null and void by the Vendor and Vendee, if, after an environmental examination, the V'endee discovers within any portion of the property any CERCLA?regulated contaminants, or other materials and objects of any kind, which Vendee determines to negatively impact the value of the property or suitability for the Project. Notice of such negative impact determination will be provided to Vendor in writing. (13) The Vendor reserves the following rights and interests in the property being acquired by the United States and described herein: a perpetual right-ot-way on both sides of the Federal border harder for the purpose of gaining access to Vendor?s land on the other side of the border barrier; and, the United States grants to the Vendor a perpetual right-of~way across other lands of the United States along and on both sides of the border barrier to reach and utilize the nearest border barrier gate for the purpose of crossing over the levee and accessing Vendor's iands on the other side. This reservation and grant does not create any new rights to traverse any part of the levee, -3- LOOP-USA-000627 Case Document 52-3 Filed in TXSD on 12/23/13 Page 9 of 11 14:09 956 zas 5922 P.04 and does not change the nature of any such rights, if any, which may now exist. The purpose of this provision is to clarify that the United States is not prohibiting access to Vendor's remaining lands between the border barrier and the Rio Grande River, but is providing a permanent right-chive}! to Vendor and all landowners similarly situated to access the nearest border barrier gate which allows entry to the other side of the border barrier from which unacquired land can be accessed. {h SEALED, AND DELIVERED this .22 day of 277% .2008. We; xae/ NOTICE OF ACCEPTANCE OF THIS OFFER IS TO BE SENT TO: warl?w?mw/S ZHP. 272$ fCZk/a?am Ema-a? (?g/butsu?e (Name and Address) ACCEPTANCE OF OFFER TO SELL REAL PROPERTY . 57/34/900 The offer of the Vendor contained herein is hereby accepted for and on behalf of the United States of America. Hm Ohio .Real Estate Division Date: LOOP-USA-000628 Case 1:08-cv-00297 Document 52-3 Filed in TXSD on 12/23/13 Page 10 of 11 see 239 5922 P.05 narmet-zoos 14:09 EXHIBIT A LEGAL DES PTION Cameron County, Texas a? Tract: Owner: South Loop Growers Acres: 1.14 BEING a certain tract of land containing 1.14 acres more or less of 27.34 acres more or - less out of Block 33, Espiritu Santo Grant, Cameron County, Texas, being more particularly described as follows: BEING a strip of land located westerly of, and running adjacent to the existing levee; said strip being approximately 55 feet in width and approximately 910 feet in length, which severs the land of the subject owner, and contains 1.14 acres, more? or less, as shown on the attached map. IT IS THE INTENT of the foregoing description to include a part of the land as that in a Deed from Farms, to South Loop Growers, L.P., signed February 27, 2006, ?led for record in Volume 13217, Page 229, in the records of Cameron County, Texas. Note: this tract is ?lrther referenced as Cameron County Appraisal District Identi?cation No. 135055. . Tract: RGV-FTB-1040 Case 1:08-cv-00297 Document 52-3 Filed in TXSD on 12/23/13 Page 11 of 11 a 14:09 966 289 5922 P.05 :34: {til i i? . $55 5 WW .?R?is?h EXHIBIT A-l FEE EXCLUDING MINERALS The estate taken is fee simple, subject to existing easements for public roads and highways, public utilities, railroads and pipelines; excepting and excluding all interests in minerals and the rights appurtenant thereto. Loop-USA-oowi?le-OS Case Document 52-4 Filed in TXSD on 12/23/13 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION UNITED STATES OF AMERICA Plainn? v. CASE NO. 1.14 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERS, L.P., ET AL., Defendant. UNITED STATES OF AMERICA Plaintiff v. CASE NO. 3.02 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND KAY E. LOOP, ET AL., Defendant. UNITED STATES OF AMERICA Plaintiff V. CASE NO. 0.49 ACRES OF LAND, MORE OR LESS, SITUAT ED IN CAMERON COUNTY, AND CHARLES PAUL LOOP, ET AL., Defendant. Page 1 of 4 Aimee} 55; a- M. a: Case Document 52-4 Filed in TXSD on 12/23/13 Page 2 of 10 UNITED STATES OF AMERICA V. 2.47 ACRES OF LAND, MORE OR LESS, SITUATED IN CAMERON COUNTY, AND SOUTH LOOP GROWERS, L.P., ET AL., Plaintif? CASE NO. Defendant. DECLARATION OF GUY HUDDLESTON I hereby declare the following: 1. My name is Guy Huddleston. I am over 18 years of age, have never been convicted of a felony, and am fully competent to make this declaration. I have personal knowledge of the facts and statements made herein and they are true and correct. I have been the President of Edwards Abstract and Title Company Cameron County Division in Brownsville, Texas since September of 2010. Prior to that, from 1983 to September of 2010, I served as the President of Southern Texas Title Company in Brownsville, Texas. As President of these title companies, my duties included overseeing marketing, underwriting, and issuance of title insurance policies on various types of prOperties in Cameron County. This included evaluating various risks associated with certain properties, including agricultural, commercial, residential, and mixed use for purposes of issuing title insurance policies. I have reviewed a document entitled Department of the Army Offer to Sell Real Property bearing Contract No. referring to Project: PF 225, Tract No. RGV-FTB-1040 executed by various members of the Loop family and Hyla Head as Page 2 of4 Case Document 52-4 Filed in TXSD on 12/23/13 Page 3 of 10 Chief, Real Estate Division, USA with Exhibits and a true and correct copy of which is attached hereto as Exhibit and incorporated herein by reference as if fully copied and set forth at length (hereinafter referred to as ?Offer to Sell?). Exhibit attached to the Offer to Sell is entitled ?Legal Description? purporting to describe the property conveyed. The ?rst paragraph of the legal description refers to a ?certain tract of [and containing 1.14 acres more or less of 2 7.34 acres more or less out of Block 33, Espiriz?a Santa Grant, Cameron County, Texas As such, the description includes the Block number whereby the property is located but fails to identify in any fashion the Subdivision where the land is located. ?Espiritu Santo Grant? is not the subdivision; therefore, the legal description is incomplete. Thus, without identifying the Subdivision where the subject property is located, it would be impossible to determine the exact location of the property referred to from the document. Further, the second paragraph of the Offer to Sell states as follows: BEING a strip of land located westerly of, and running adjacent to the existing levee, said strip being approximately 55 feet in width and approximately 910 feet in length, which severs the land of the subject owner, and contains 1.14 acres, more or less, as shown on the attached map. I have visited the levee on various similar properties in Cameron County and its width varies in different areas. It is an earthen berm that over time can vary in size and location to a certain degree due to erosion or other degradation or due to revetment or reinforcement. The earthen berm is not a specific, and constant, and precisely located landmark. The levee itself (talking just about the mound of dirt) in this area of Brownsville varies in width and height. Parts of the levee are typically referred to as the levee boundary, the toe, the levee road, and the levee crown. The description above Page 3 of 4 Case Document 52-4 Filed in TXSD on 12/23/13 Page 4 of 10 cit a. using the term ?adjacent? to identify the location of property conveyed is insuf?cient to determine the location of the subject to the exciusion of other potential parcels of property. Speci?cally, upon review of the document, it cannot be determined whether the 55 foot wide strip starts at the boundary, toe, crown, or some other part of the levee. Therefore, the land purportedly conveyed cannot be determined with reasonable accuracy to the exclusion of other tracts. This description is insuf?cient to identify the described property?s location, shape, or boundaries. As such, more than one tract could ?t the description referred to above. Further, while the above referenced legal description identi?es ?the attached map?, no such map was included with this document. In light of the above, upon review of the Offer to Sell and attached Legal Description, it is my opinion, as a Title Insurance professional, that one cannot determine the land to be conveyed with reasonable certainty. The subject property cannot be identi?ed to the exclusion of other land and its location, shape, and boundaries cannot be suf?ciently determined. As such, a title company would not issue title insurance on the subject property without revision of the legal description to remedy the above de?ciencies. In the alternative, the title company could possibly issue the title policy with signi?cant exceptions requiring additional assurance as to the location, size, dimensions, and shape of the preperty. uddleston Exec ted and dated on: Page 4 of 4 Case Document 52-4 Filed in TXSD on 12/23/13 Page 5 of 10 14:08 . 8?56 289 5922 P.01 DEPARMENT OF THE ARMY OFFER TO SELL REAL PROPERTY Project: PF 225 Tract No.: RGV-FTB-1040 Contract No.: The undersigned, hereinafter called the Vendor. in consideration of the mutual covenants and agreements herein set forth, offers to sell and convey to The United States of America and its assigns, the fee simple title to the following described iand, with the buildings and improvements thereon! and all rights. hereditaments, easements. and appurtenances thereunto belonging, located in the County of Cameron, State of Texas, bounded and described as set forth in Exhibit attached hereto and made a part hereof subject to existing easements for pubiic roads and highways public utilities railroads and pipelines; subject to the following exceptions and rights outstanding in third parties: The fee Simpie estate to be conveyed and referenced above shali be as set forth in Exhibit 1" attached hereto and made a part hereof. The Vendor reserves only the following rights and interests in the above described property: (namely: LSee Paragraph 13) The terms and conditions of this offer are as foliows: (1) The vendor agrees that this offer may be accepted by the United States through any duly authorized representative by delivering, mailing, or electronically transmitting a notice of acceptance to the Vendor at the address stated below at any time within six (6) months from the date hereof whereupon this offer and the acceptance thereof become a binding contract. (2) The United States of America agrees to pay to the Vendor of the said land the sum ofWW (3/7369?9; payabie on the acceptance of this offer and approval of the Vendors title; provided the a LOOP-USA-000625 ?3 Case Document 52-4 Filed in TXSD on 12/23/13 Page 6 of 10 14:08 856 289 6922 P.02 Vendor can execute and deliver a good and sufficient generai warranty deed conveying said land with the hereditarnents and appurtenances thereunto belonging to The United .States of America and its assigns, in fee simple. free and clear from liens and encumbrances. except those speci?cally excepted or reserved. above, together with all right, title, and interest which the Vendor may have in the banks, beds, and waters of any streams bordering the said land to be conveyed, and also all interest in alleys, roads. streets, ways. strips, gores, or railroad rights-of-way abutting or adjoining said land and in any means of ingress or egress appurtenant thereto. (3) It is agreed that the United States will defray the expenses incident to the preparation and recordation of the deed to The United States and the procurement of the necessary titie evidence. (4) The Vendor agrees to satisfy of record at or before the transfer of title. ail encumbrances and special assessments which are a lien against the land, as the United States may require, and to pay the pro rata portion of ail taxes on the property which are ailocable to a period prior to and inciuding the date of vesting title in The United States, or the effective date of possession of such real property by The United States. whichever is the earlier. and, if the Vendor fails to do so,- the United States may pay any taxes, assessments, and encumbrances which are a lien against the land; that the amount of any such payments by the United States shall be deducted trorn the purchase price of the land; and that the Vendor will. at the request of the United States and without prior payment or tender of the purchase price. execute and deliver a general warranty deed to The United States and obtain and record such other curative evidence ottitle as may be required by the United States. (5) The Vendor agrees that loss or damage to the prOperty by fire or acts of God shall be at the risk of the Vendor until the title to the land and deed to The United States have been accepted by the United States through its duly authorized representative or until the right of occupancy and use of the land, as hereinbeiow provided for. has been exercised by The United States; and, inthe event that such loss or damage occurs before the risk of loss has passed to the United States, the United States may. without liability, refuse to accept conveyance of the title or it may elect to accept conveyance of title to such property. in which case there shail be an equitable adjustment of the purchase price. (6) The Vendor agrees that the United States may, notwithstanding the prior acceptance of this offer, acquire title to said land in the name of the United States by condemnation or other judicial proceedings. in which event the Vendor agrees to cooperate with the United States in the prosecution of such proceedings; agrees that the consideration hereinabove stated shail be the full amount of just compensation, inclusive of interest. for the taking of said land; agrees that the consideration recited in paragraph 2 hereof the full amount of the compensation for the land and shat! be pro rated among all persons having an interest in this property as their respective interests may appear; and agrees that the said consideration shall be. in full -2..- fess; i Case Document 52-4 Filed in TXSD on 12/23/13 Page 7 of 10 14:08 856 289 5922 P.03 satisfaction of any and ail claims of the Vendor for payment for the right of occupancy and use hereinafter provided for in paragraph 7. (7) The Vendor hereby grants to The United States the right of immediate occupancy and use of the land for any purpose whatsoever from and after the acceptance by the United States of this offer until such time as said land is cenveyed to The United States and, upon demand. the Vendor immediately vacate the property and deliver possession to The United States. (8) It is agreed that the spouse, if any, of the Vendor, by signing beiow, agrees to join in any deed to The United States and to execute any instrument deemed necessary to convey to The United States any separate or community estate or interest in the subject property and to relinquish and reiease any dower. curtesy, homestead, or other rights or interest of such spouse therein. (9) The Vendor represents and it is a condition of acceptance of this offer that no Member'of or Delegate to Congress, or Resident Commissioner, shalt be admitted to or share any part of this agreement, or to any bene?ts that may arise therefrom; but this provision shall be not construed to extend to any agreement if made with a corporation for its genera! benefit. (10) The terms and conditions aforesaid are to apply to and bind the heirs, executors. administrators, successors, and assigns of the Vendor. (11) All terms and conditions with respect to this offer are expressly contained herein and the Vendor agrees that no representative or agent of the United States has- made any representation or promise with respect to this offer not expressly contained herein. (12) The consideration amount in this Offer To Sell, whether accepted by the United States or not, will be considered null and void by the Vendor and Vendee1 if, after an environmental examination. the Vendee discovers within any portion of the property any CERCLA-regulated contaminants, or other materials and objects of any kind, which Vendee determines to negatively impact the vaiue of the property or for the Project. Notice of such negative impact determination will be provided to Vendor in writing. The Vendor reserves the following rights and interests in the property being acquired by the United States and described herein: a perpetual right~of~way on both sides of the Federal border barrier for the purpose of gaining access to Vendor?s land on the other side of the border barrier; and, the United States grants to the Vendor a perpetual right?of?way across other lands of the United States along and on both sides of the border barrier to reach and utilize the nearest border barrier gate for the purpose of crossing over the levee and accessing Vendor's lands on the other side. This reservation and grant does not create any new rights to traverse any part of the levee. -3- LOOP-USA-000627 Case Document 52-4 Filed in TXSD on 12/23/13 Page 8 of 10 14:09 968 289 6822 P.04 and does not change the nature of any such rights, if any, which may now exist. The purpose of this provision is to clarify that the United States is not prohibiting access to Vendor's remaining lands between the border barrier and the Rio Grande River. but is providing a permanent right-of?way to Vendor and all landowners similarly situated to access the nearest border barrier gate which allows entry to the other side of the border barrier from which unacquired tend can be accessed SEALED AND 22% day or 277% 2068. camera; WVA ,rmv/ in Add}: :W/eew - NOTICE OF ACCEPTANCE OF THIS OFFER lS TO BE SENT TO: ?96051 Z?w?mm 5 aid/dreamt Emmgui?e, kings 7575?99 (Name and Address) ACCEPTANCE OF OFFER TO SELL REAL PROPERTY Date: 5734/0 The offer of the Vendor contained herein is hereby accepted for and on behalf of the United States of America. .HEAEY Chie Real Estate Division- 7'3?de Em Case Document 52-4 Filed in TXSD on 12/23/13 Page 9 of 10 956 289 5922 P.05 14:08 we Cameron County, Texas Tract: Owner: South Loop Growers Acres: 1.14 BEING a certain tract of land containing 1.14 acres more or less of 27.34 acres more or less out of Block 33, Espiritu Santo Grant, Cameron County, Texas, being more particularly described as follows: BEING a strip of land located westerly of, and running adjacent to the existing levee, said strip being approximately 55 feet in width and approximately 910 feet in length, which severe the land of the subject owner, and contains 1.14 acres, more or less, as shown on the attached map. IT IS THE INTENT of the foregoing description to include a part of the land as that in a Deed from Farms, to South Loop Growers, L.P., signed February 27, 2006, ?led for record in Volume 13217, Page 229, in the records of Cameron County, Texas. Note: this tract is further referenced as Cameron County Appraisal District Identi?cation No. 135055. . Tract: LOOP-USA-000629 a z. mew ak??v?f?w Case 1:08-cv-00297 Document 52-4 Filed in TXSD on 12/23/13 Page 10 of 10 14:03 966 288 5322 P.06 EXHIBIT A-l FEE EXCLUDING MINERALS The estate taken is fee simple, subject to existing easements for public roads and highways, public utilities, railroads and pipelines; excepting and excluding all interests in minerals and the rights appurtenant thereto. Case 1:08-cv-00297 Document 52-5 Filed in TXSD on 12/23/13 Pa 9 1 of 3 Case 1:08-cv-00295 Document 16-1 Filed in TXSD on 04/08/11 age 3 of 17 SCHEDULE LEGAL DESCRIPTION Cameron County, Texas Tract: RGV-FTB-1040 Owner: Charles E. Loop, Kay E. Loop, and South Loop Growers, L.P. Acres: 1.274 DESCRIPTION OF A 1.274 ACRES (55,474 SQUARE FEET) TRACT OF LAND SITUATED IN THE JOSE SALVADOR DE LA GARZA SURVEY ALSO KNOWN AS THE SANTO ABSTRACT NO. 2, CAMERON COUNTY, TEXAS, AND BEING OUT OF A CALLED 28 ACRE TRACT OF LAND REFERRED TO AS THE SOUTH 28 ACRES OF BLOCK 33 OF EL JARDIN SUBDIVISION, A SUBDIVISION OF RECORD ACCORDING TO THE MAP OR PLAT THEREOF RECORDED IN VOLUME 4, PAGE 52 OF THE CAMERON COUNTY MAP RECORDS (C.C.M.R.), SAID 28 ACRE TRACT CONVEYED BY WARRANTY DEED FROM FARMS TO SOUTH LOOP GROWERS, L.P. DATED FEBRUARY 27, 2006 AND RECORDED IN VOLUME 13217, PAGE 229 OF THE CAMERON COUNTY DEED RECORDS SAID 1.274 ACRE TRACT OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS: COMMENCING at a 1/2-inch iron rod found for the common easterly corner of said 28 acre tract and a called 6.46 acre tract conveyed by Warranty Deed from Aristeo Cisneros Jr. and wife, Maria Nora Cisneros to John Coleman and wife, Hazel Coleman dated June 7, 2000 and recorded in Volume 6343, Page 178 ofthe C.C.D.R., also being the common easterly corner of said Block 33 and Block 39 of said El Jardin Subdivision, thence as follows; 89? 03? 05? W, 690.81 feet, along the line common to said Block 33 and Block 39, to a point for the POINT OF BEGINNING (X-1352630.54, Y-16490272.64 Texas State Plane Coordinate System, South Zone NAD ?83) of the tract described herein; THENCE, 89? 03? 05? W, 60.00 feet, continuing along said common line, to a point for corner, from which a 5/8-inch iron rod with plastic cap stamped set for reference bears 00? 43? 01? W, 75.00 feet; THENCE, 00? 43? 01? W, 924.64 feet, departing said common line to a 5/8-inch iron rod with plastic cap stamped set for comer in the line common to said 28 acre tract and a called 12 acre tract described as the North 12 Acres of said Block 33 and conveyed by Warranty Deed from Jane S. Kemper, et a] to Charles Paul Loop and Linda Twells Loop dated February 18, 2000 and recorded in Volume 6330, Page 263 ofthe Amendment to Declaration of Taking - 5 EXHIBIT ?5 magma Case 1:08-cv-00297 Document 52-5 Filed in TXSD on 12/23/13 Pa 9 2 of 3 Case 1:08-cv-00295 Document 16-1 Filed in TXSD on 04/08/11 age 4 of 17 THENCE, 89? 03? 05? E, 60.00 feet, along said common line, to a point for comer; THENCE, 00? 43? 01? E, 924.64 feet, departing said common line to the POINT OF BEGINNING and containing a computed area of 1.274 acres (55,474 square feet) of land. Tract: RGV-FTB-1040 Amendment to Declaration of Taking - 6 .1 7" . .4 x2" xvg: 7' i 7. 7 Case 1:08-cv-00297 Document 52-5 Filed in TXSD on 12/23/13 Page 3 of 3 Case 1:08-cv-00295 Document 16-1 Filed in TXSD on 04/08/11 Page 9 of 17 SCHEDULE JANE s. :1 AL .- I creams LOOP we I mm NELS LOOP I (CALLED NORTH 1: ACRES w; as new a: I VOL Bgt?bgc 283 Elle/2000 I mason comm 1 I omen . VOL 55: as. I 1 c.c.o.R. Tull 3; i I JOSE SALVADOR I 'Foepar 1091,39 I mfw?qf I ..IIUSA.N AN LEVEE warm 1 ?1 . E: JARDIN suaomsrou . - . 4. . 52 I. 5: LTDFARMG 3 1 cc. 1 scum LOOP omas. LP. - . 9 (man scum 23 mass - l: a cmcnou OF BLOCK mamm 93 a: 3 VOL. 13217. PG 229 I VOL .93: PG 15 ?r 0 3.0.3. . cook 3.5; I I 1.274 ACRES - Ii I (55.474 50. FrSEE SHEET 1 I murmuImuamms-mm .- 2 ms m?mmama E2 I I 33.132:qu mmammwm Put our -- nus-m mm :3 SOUTH LOOP (SHOWERS. l. P. 60? WIDE BORDER FENCE FEE STRIP PF225 RIO GRANGE VALLEY BORDER FENCE SURVEYS SEGMENT 011 . CAMERON COUNTY. TEXAS SURVEY PLAT TO ACCOMPANY 1.2?4 ACRES {55.474 so JOSE SALVADOR da In GARZA SURVEY. NO 2 CAMERON COUNTY. TEXAS Ina-:- :ll-a .mm .9959. ., . 20f? Jun. mmo?'vw' LAND BF. Tract: Owner: Charles E. Loop, Kay E. Loop, and South Loop Growers, L.P. Acres: 1.274 Cameron County, Texas Amendment to Declaration ofTaking 8 izi