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HomeMy WebLinkAbout1988-0752292L NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS, APPROVING A SETTLEMENT AND COMPROMISE AGREEMENT FOR PENDING LITIGATION BETWEEN THE CITY OF DENTON AND JOE W SHERRILL, ET UX, AND PROVIDING FOR AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the attached Settlement and Compromise Agreement between the City of Denton and Joe W Sherrill, et ux, providing for the settlement and compromise of the litigation now pending between the parties before the Court of Appeals for the Second Appellate District of Texas in Cause No 2-88-013-CV, is approved in accordance with its terms, and the City Manager is authorized to execute the agreement and all other documents and make the payments and take such action as is necessary to comply with the terms of said agreement SECTION II That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the A? day of - 1988 RAy4E➢ S, MA OR ATTEST APPROVED AS TO LEGAL FORM DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY O 2291L THE STATE OF TEXAS § COUNTY OF DENTON § COMPROMISE SETTLEMENT AGREEMENT THIS AGREEMENT is by and between JOE W SHERRILL and wife MARY LAJEAN SHERRILL, herein referred to jointly as Plaintiffs, and the CITY OF DENTON, TEXAS, a municipal corporation of the State of Texas, herein referred to as Defendant RECITALS A On or about December 10 1982, Defendant entered upon Plaintiffs' land for the purpose of making certain drainage improvements in conjunction with the construction of street improvements fronting upon Plaintiffs' land B On or about January 24, 1984, Plaintiffs instituted an action for trespass to try title, declaratory relief, and for damages against Defendant in Cause Number 84-449-C, filed in the 211th Judicial District Court of Denton County, Texas, based upon such entry and use of Plaintiffs' land C On or about February 20, 1984, Defendant filed its answer to said cause of action and its Counterclaim for Condemnation seeking the acquisition of a permanent drainage easement on and across 0 2704 acres of Plaintiffs land as more particularly described in Exhibit "A", attached hereto and incorporated herein by reference D Pursuant to Defendant's counterclaim for condemnation, and in accordance with an Agreed Motion to Set Security Deposit in Condemnation Proceedings, Defendant deposited $15,000 00 into the registry of the Court, which was withdrawn by Plaintiffs, and Defendant thereafter lawfully entered and took possession of the property condemned E On or about October 19, 1987, said cause was called to be tried before a jury on Plaintiffs' claim of trespass and Defen- dant's counterclaim for condemnation, and after the presentation of evidence, the jury reached a verdict thereon F On or about November 14, 1987, the Court entered a final judgment upon the jury's verdict, awarding Plaintiffs money damages for trespass and compensation for Defendant's counter- claim for condemnation and awarded Defendant a permanent drainage easement on and across the 0 2704 acres of land condemned G On or about January 14, 1988, Defendant gave notice of its appeal from the final judgment of the trial court entered in said cause, to the Court of Appeals for the Second Appellate District of Texas H The parties to this agreement recognize and agree that said suit, the appeal from the final judgment, and the proceedings in connection therewith have been time consuming and expensive and the parties agree that it would be in the best interest of said parties that all matters be compromised and settled without proceeding further with the appeal of the judgment entered in said cause NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained, including the recitals set forth hereinabove, the parties agree as follows 1 Defendant agrees to pay to Plaintiffs, in addition to the Fifteen Thousand Dollars ($15,000 00) previously paid into the registry of the Court and withdrawn by Plaintiffs, receipt of which is hereby acknowledged by Plaintiffs, Twenty-five Thousand Dollars ($25,000 00), within thirty days of the approval and execution of this agreement by both parties 2 Plaintiffs agree, within ten days of payment of the additional Twenty-five Thousand ($25,000 00 by Defendant to Plaintiffs, to transfer and convey to Defendant a drainage easement for the 0 2704 acres of land The drainage easement to be conveyed by Plaintiffs to Defendant shall be accomplished by execution and delivery of an easement deed for a drainage ease- ment for 0 2704 acres of land, in accordance with the easement deed shown in Exhibit "A", attached hereto and incorporated by reference 3 The parties agree that upon payment of the $25,000 00 to Plaintiffs by Defendant and the execution and delivery of the easement deed by Plaintiffs to Defendant as provided herein, the attorneys for the respective parties will execute and present an Agreed Motion to Dismiss the cause now pending before the Court of Appeals for the Second Appellate District of Texas, in Cause No 02-88-00013-CV, so as to vacate the final judgment previously entered in the trial court 4 The parties agree that neither party shall be liable to the other for any other payments or costs, including any court COMPROMISE SETTLEMENT AGREEMENT -PAGE 2 costs or attorney's fees, which have not been already been paid prior to the date of this agreement, and each party shall here- after pay any court reporter's fees, attorney's fees, or other costs of appeal which it has incurred, provided however, that Defendant shall pay any filing fees or court costs for filing and presenting the Agreed Motion to Dismiss as provided herein, and Defendant shall pay and any costs of recording the easement to be conveyed by Plaintiffs to Defendant 5 That by execution of this agreement and upon payment by Defendant to Plaintiffs of the sum as provided herein, Plaintiff's do hereby release and discharge the Defendant, its officers, agents, and employees, from any and all claims or causes of action of any kind whatsoever Plaintiffs has or might have as a result of or attributable to the above -described events or those events described in Plaintiff's Original Petition in Trespass to Try Title filed in Cause No 84-449-C in the District Court of Denton County, Texas, 211th Judicial District 6 This agreement shall be binding upon and inure to the bene- fit of the parties and their respective heirs, representatives, successors, and assigns 7 This agreement contains the entire agreement between the parties and supersedes any and all prior agreements, arrange- ments, or understandings, statements, promises or inducements contrary to the terms of this compromise settlement agreement 8 This agreement shall be governed by, construed and enforced in accordance with, and subject to, the laws of the State of Texas IN WITNESS WHEREOF, the parties have executed this agreement on the day of 1988 PLAINTIFFS JOE W SH RRIL COMPROMISE SETTLEMENT AGREEMENT -PAGE 3 DEFENDANT LLOYD V HARRELL, CITY MANAGER CITY OF DENTON, TEXAS APPROVED AS TO FORM SON ATTORNEY FOR PLAINTIFFS KEN WRIGHT ATTORNEY FOR PLAINTIFFS .O.. TORNEY FOR DEFENDANT THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on 1988, by Joe W Sherrill and Mary LaJean Sherrill NOTARY PUBLIC, STATE OF TEXAS COMPROMISE SETTLEMENT AGREEMENT -PAGE 4 THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on 1988 by Lloyd V Harrell, City Manager of the City o Denton, Texas, a municipal corporation, on behalf of said corporation NOTARY P BLIC, ST E S COMPROMISE SETTLEMENT AGREEMENT -PAGE 5 2293L EXHIBIT "A" THE STATE OF TEXAS § KNOW ALL MEN BY THESE PRESENTS COUNTY OF DENTON EASEMENT THAT JOE W SHERRILL AND WIFE MARY LAJEAN SHERRILL, of Denton County, Texas, ("Grantors"), in consideration of the sum of One and No/100 ($1 00) Dollars, and other good and valuable consideration in hand paid by the CITY OF DENTON, Denton, Texas, receipt of which is hereby acknowledged, do by these presents, grant, bargain, sell and convey unto the CITY OF DENTON, Denton, Texas, ("Grantee"), an easement for the purpose of locating, constructing, reconstructing, repairing and maintaining drainage ditches, channels, pipes, and any necessary appurtenances thereto, as may be necessary for collecting and channelling storm runoff water into the storm sewage system of the Grantee, over, across, and through the following described tract of land as follows All that certain lot, tract or parcel of land, lying and being situated in the City and County of Denton, State of Texas, and being part of the T Toby Survey, Abstract No 1288, and also being part of a tract of land as conveyed to Joe W Sherrill and wife Mary LaJean Sherrill by Deed recorded on Volume 433, Page 198 of the Deed Records of Denton County, Texas and more particularly described as follows COMMENCING at the southwest corner of said Sherrill tract, said point lying in Sanger Road, THENCE north 10 13' 03" east along the west boundary line of said tract, a distance of 18 5 feet to the point of beginning, THENCE north 10 13' 03" east along the west boundary line of said tract, a distance of 230 feet to a point for a corner, THENCE south 880 46' 57" east a distance of 30 0 feet to a point for a corner, THENCE south 180 30' east a distance of 74 10 feet to a point for a corner THENCE south 10 13' 03" west a distance of 160 25 feet to a point for a corner, THENCE north 880 46' 57" west a distance of 55 0 feet to the place of beginning and containing 0 2704 acres of land, more or less In order to insure the efficient operation and maintenance of said drainage easement and to secure landowners such reasonable use of the land subject to said drainage easement to the greatest extent possible without unreasonable interference with the Grantee's use of said easement for the purposes stated, the following rights, limitations and restrictions as to said easement and use thereof are hereby specified as follows 1 Grantee's easement rights shall include the right to clear and keep clear the surface of the easement of all trees, bushes and roots that might interfere with the operation of said drainage easement 2 Grantee shall have the right of ingress and egress to the easement for purposes of repairs, reconstruction and maintenance only by way of land covered by the easement 3 Grantee shall not fence or otherwise enclose the easement, but landowners may fence along the boundaries of said easement strip, but are not bound to do so 4 Landowners, and all subsequent owners of the land covered by the easement shall have the right to lay out, construct, reconstruct, repair, and maintain streets, roads, alleys, parking lots, sidewalks, walkways, and driveways within, on, and across the easement area so long as such structures and facilities are constructed and installed so as not to unreasonable interfere with Grantee's use of the easement for the drainage purposes herein specified 5 Landowners and subsequent owners of land covered by said easement shall have the right to lay out, construct, reconstruct, repair and maintain water, electrical, gas or telecommunication lines and facilities under, over and across said drainage facilities so long as such lines and facilities are constructed and installed so as not to impair or interfere with the use, operation, or maintenance of such drainage easement TO HAVE AND TO HOLD unto the said CITY OF DENTON, Denton, Texas, as aforesaid for the purposes aforesaid the premises described hereinabove WITNESS OUR HANDS, this day of , 1988 THE STATE OF TEXAS § COUNTY OF DENTON § This instrument was acknowledged before me on 1988, by Joe W Sherrill and Mary LaJean Sherrill 061#1*311TiUli 11-14 - 6 1