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HomeMy WebLinkAbout2000-392ORDINANCE NO AQp - -SU AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED CITY OF DENTON v SHADY SHORES I--35 JOINT VENTURE, CAUSE NO ED-00-00482, CURRENTLY PENDING IN THE PROBATE COURT OF DENTON COUNTY, TEXAS, AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS NECESSARY TO EFFECT SUCH SETTLEMENT, AND TO TAKE SUCH OTHER ACTIONS DEEMED NECESSARY TO FINALIZE THE SETTLEMENT AND RELEASE OF CLAIMS, AND DECLARING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the settlement of litigation styled City of Denton v Shady Shores I-35 Joint Venture, cause no ED-00-00482, currently pending in the Probate Court of Denton County, Texas, is hereby approved, and the City Manager is hereby authorized to execute such documentation deemed by the City Manager and the City Attorney to be necessary to the settlement of said litigation, substantially in the same form as the attached exhibit SECTION 2 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the t7,� day of 001Y o&f , 2000 I EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APP OVED AS TO LEGAL FORM 10-13-2000 02 32PM FROM CLEMENTS & ALLEN, P C TO 19403827923 P 04 SETTLEMENT AGREEMENT A$ J0M AND MUTUAL RELEASE The parties to this Settlement Agreement and Joint and Mutual Release ("AAreement'� are (i) John Dowdall and Shady Shores 1-35 Joint Venture (collectively onthe one hand, and (11) the City of Demon, Texas ("W), and (m) Marc Footlik (" ootlik"), on the other, on the date set forth hereinbelow WHEREAS, Dowdall instituted that certain litigation styledJohn Dowdall and Shady Shores I-35 Joint Venture v Marc Foodik, Cause No CC-99-09650-F, presently pending in the 116' Judicial District Court ofDallas County, Texas ("Litgaton') asserting certain claims against Footlik, WHEREAS, the City, instituted that certain litigation styled The City of Denton v John Dowdall and Sha4-Shores 1-35 Joint Venture, Cause No. ED-99-00482, presently pending in the Probate Court of Denton County, Texas (the "Denton County Suit'), and WHEREAS, Footlik answered both the Litigation and Denton County Suit and denied any and all allegations continues to deny all allegations therem, and WHEREAS, Dowdall and Footlik thereafter went to mediation and agreed to and did resolve their differences at mediation and entered into that certain Mediated Settlement Agreement dated September 21, 2000, which Mediated Settlement Agreement contemplated the preparation of more detailed settlement documents consisting of this Agreement and attachments hereto, and WHEREAS, the parties hereto wishmg to avoid the expense and risk of fiuther litigation, for and in consideration of the mutual promises, and other good and valuable consideration expressed herein, the receipt and sufficiency of which is hereby acknowledged, have decided to resolve all of their differences upon the terms stated herein, EXHIONT Y NAwx SETTLEMENT AGREEMENT AND JOINT AND MUTUAL RELEASE - PAGE 1 6203.91 10-13-2000 02 32PM FROM CLEMENTS & ALLEN, P C TO 19403827923 P 05 NOW THEREFORE, the parties hereto agree as follows 1 Pavment to Dowdall Dowdall shall receive the sum of $90,000 00 Such sum will be comprised of approximately $14,000 00 currently held in the registry of the Denton County Probate Court in conjunction with the Denton County Suit. The remaining approximately$76,000.00 shall be paid by Focthrkto Dowdall simultaneously with the final execution ofthis Agreement by both parties hereto, which shall occur no later than October 20, 2000 2 Funds Held in the Coures Regkt y The City and Dowdall hereby represent that they will diligently pursue and fully cooperate in obtaining any and all necessary Orders and/or Judgments from the Denton County Probate Court which may be required to fully effectuate the release of funds currently held in the Court's registry. 3 Dismissal of Litigation Claims The parties hereto agree to sign and deliver that certain Agreed Order of Dismissal of the claims previously asserted in the Litigation by Dowdall against Footlik. A true and correct copy of the form Agreed Order of Dismissal to be used in this regard is attached hereto and incorporated herein as Exhibit "A'. The parties further agree to sign and deliver that certain Agreed Final Judgment in the Denton County Suit, a true and correct copy of winch is attached hereto and incorporated herein as Exhibit "B". The parties hereto agree to instruct their respective attorneys -of -record in the Litigation and the Denton County Suit to present the Agreed Order of Dismissal and Agreed Judgment to the proper Court for entry within a reasonable time after the final execution of tlus Agreement by all parties hereto 4 Release of Dowdall. Except for the rights, obligations, duties, representations, and covenants ofthe parties hereto set forth in tins Agreement, and the actions contemplated herein which will survive the execution and delivery of this Agreement, and only upon full satisfwhon of the requirements set forth herem, >;ootlik and the City, and their personal representatives, heirs and SETTLEMENT AGREEMENT AND JOINT AND MUTUAL RELEASE - PAGE 2 CO3.91 10-13-2000 02 33PM FROM CLEMENTS & RLLEN, P C TO 19403827923 P 06 assigns, do hereby release, acquit, and forever discharge Dowdall, its partners, joint venturers, officers, directors, employees, shareholders, personal representatives, agents, successors, helm and assigns, as well as Dowdall's attorneys (including without limitation, Kenneth B Chaiken, and the law firm of, and members of, Chaiken & Chaiken, P C ), each and all of them, of and from any and all claims, demands, actions, lawsuits, disputes, damages, liabilities, obligations, counterclaims, objections, complaints and causes of action of any nature whatsoever, whether known or unknown, suspected or unsuspected, or whether having arisen before or after the transactions ref erred to in the Litigation and Denton County Suit, which Footlik and the City ever had, now has, or claims to have, or hereafter can, shall, or may have for any reason have, arising out of the Facts, events, circumstances, transactions, prior dealings, or claims occurring through the date of this Agreement, including without limitation, those acts, Pacts, events, circumstances, transactions and claims alleged in the Litigation or in the Denton County Suit, or which could have been asserted in the Litigation or Denton County SmL Release of Foot& and the City Except for the rights, obligations, duties, representations, and covenants of the pumas hereto as set forth in this Agreement and the actions contemplated heremwhichwill survive the execution and delivery of this Agreement, and only upon full satisficdon ofthe requirements set Rehherein, Dowdall and its partners, joint venturers, officers, directors, employees, shareholders, personal representatives, agents, successors, heirs and assigns, each and all of them, do hereby release, acquit, and forever discbarge Foothk and the City and their partners, jourt venturers. employees, personal representatives, agents, successors, heirs and assigns, and their attorneys (including, without hmitation, Timothy P Woods, and the law firm of, and members of, Clements, Allen, Fishman, Woods & Walsh, P C and Michael J Whitten, and the law firm of, and members of, Griffin, Whitten & Jones), each and all of them, of and from any and all SETT LEmENT AGREEMENT AND j0wr AND MUTUAL RtLEASt - PAGE 3 0"-)1 10-13-2000 02 33PM FROM CLEMENTS & RLLEN. P C TO 1940362?923 P 07 claims, demands, actions, lawsuits, disputes, damages, liabilities, obligations, counterclaims, objections, complaints and causes of action of any nature whatsoever, whether known or unknown, suspected or unsuspected, or whether having ansen before or after the transactions referred to in the Litigation and Denton County Suit, which Dowdall ever had, now has, or claims to have, or hereafter can, shall or may for any reason have, arising out of any of the facts, events, circumstances, transactions, pnordealmgs, or claims occurringtlimughthe date oftlus Agreement, including without limitation those acts, facts, events, circumstances, transactions and claims alleged in the Litigation and the Denton County Suit, or which could have been asserted in the Litigation or Denton County Suit. negotiations between the parties and their respective counsel, before, during, and after a mediation which resulted in a Mediated Settlement Agreement dated September 21, 2000, signed by Dowdall and Footlik, and then' respective attorneys. This Agreement is intended by the parties hereto to be construed to supercedeand replace the Mediated SettlementAgreement as the final expression ofthe agreements of the parties hereto, and the City is a direct beneficiary of tlus Agreement, and agrees to its terms as is evidenced by its signature below The fact counsel for one party or the other may have drafted this Agreement shall not effect the manner in which this Agreement is to be construed 7. All Parties Have Fall ARthority Dowdall, the City and Footlik each represent and warrant, one to the other, that the execution and delivery of this Agreement, and the performance of the duties and obligations of the parties set forth herein, have been fully and completely authorized by all of the appropriate parties. In particular, the parties represent, one to the other, that this Agreement has been duly authorized and approved for execution and delivery by all appropriate action on the part of each signatory, as may be necessary, and that the execution of this Agreement SirrMEMENT AGREEMENT AND JoWr AND MUTUAL RELEASE - PAGE 4 620391 10-13-2000 02 34PM FROM CLEMENTS & ALLEN, P C TO 19403827923 P 08 and the performance hereof does not violate any law, contract, or agreement by which any party, or any member of any party or Its properties are bound, and that the person executing this Agreement on behalf of each party is expressly authorized to sign and obhgate the entity for which he is signing 8 Fudha Rpresentations. The parties each represent and warrant one to the other that they have fully investigated the circumstances surrounding the claims made in the Litigation and the facts relating thereto. Each signatory to this Agreement has read this Agreement, and by executing this Agreement, represents to the other parties that he fully understands the terms and conditions hereof, and that he has had a full and complete opportunity to consult with such individuals as deemed appropriate, including counsel ofhis choice Furthermore, the parties hereto represent and warrant that the persons whose signatures are shown below on behalf of the respective parties are fully authorized to execute this Agreement and all exhibits hereto. Furthermore, the parties hereto represent one to the other that they have not previously transferred or assigned any portion of the claims compromised and settled by this Agreement. 9. Ownershi op fPronerty.DowdallfntherrepresentsandwarrantstoFoothkandthe City that Dowdall is the current owner of the real property at issue in the Denton County Suit, and has not transferred or assigned any portion or interest in said real property 9. Miscellaneous- This Agreement is performable in Denton County, Texas This Agreement shall be governed by and construWin accordance with the laws ofthe State of Texas, and any litigation regarding thus Agreement, the transactions discussed herem, or the claims set forth in the Litigation or the Denton County Suit, must be brought in the Courts of Denton County, Texas The parties further agree that in the event that any suit for breach of this Agreement is hereafter brought in the Courts of Denton County, Texas, as required in the foregoing sentence, the prevailing SKULEhWU AGREEMENT AND J01Wr AND MUTUAL RELEASE - PAGE 5 CO3SI 10-13-2000 02 34PM FROM CLEMENTS & RLLEN, P C TO 19403827923 P 09 party therein shall be entitled to recover reasonable attorney's fees and all costs of court, in addition to such otber and further legal and/or equitable relief as may be awarded Executed in multiple counterparts of equal dignity on the _ day of 2000 "Dowdall" JOHN DOWDALL SHADY SHORES I-35 JOINT VENTURE By Its "Tina})wI MARC FOOTLIK „CW The City of Denton, Texas By_ its - SETTLEMENT AGREEMENT AND JOINT AND MUTUAL RELEASE - PAGE 6 aw 91 OCT-17-2000 13 36 GWJR,LL :. CAUSENO 99-09650 JOHN DOWDALL AND SHADY § IN THE DISTRICT COURT SHORES I-35 JOINT VENTURE, § § Plaintiff, § v § 116"i JUDICIAL DISTRICT MARC FOOTLK § § Defendants § DALLAS COUNTY, TEXAS ORM OF DI6MI SAT, Came on the — day of 2000, and appeared before the Court John Dowdall and Shady Shores I-35 Joint Venture, Plwnuff§, and Defendant Marc I ootiik, and each appearingby and through their respective attorneys of record herein, announceto the Courtthat they have weed to a resolution of all claims set forth between them hereto. Including the entry of this Agreed Order of Dismissal, and the Court giving due consideration to same is of the opinion that this Agreed Order of Dismissal is proper and well -taken, and should be entered, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that all the claims previously set forth herein asserted by Plaintiffs John Dowdall and Shady Shores I-35 Joint Venture against Defendant Marc Footlik, be, and the same hereby are, dismissed with preludioe to their refiling, and IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs incurred herein be taxed upon the party incurring same All relief not expressly granted herein is expressly denied AGMED ORDER OF DISMISSAL - PICO I 620391 rrT-1? -?AAA Si'49 9729912GOI 98/ P 02 OCT-17-2000 13 36 GWSR,LL 940 8980196 P 03 Signed the day of 2000 JUDGE PRESIDING AGREED CHAIKEN AND CHAIKEN, P C Kenneth B Chmken, Esq Attorney for I'latnufh 7ohn Do%dall and Shady Shores I-35 Joint Venture CLEMENTS, ALLEN, FISHMAN. WOODS & WALSH. P C Tunothy P Woods, Esq Attorney for Defendant Marc Foothk 620391 AGMD ORDM OF DISMISSAL - Page Z TOTAL P 03 OCT-13-2000 12 33 GWJR,LL 940 8980196 P 02 No. ED-99-00482 THE CITY OF DENTON § IN THE PROBATE COURT VS. § OF ,JOHN DOWDALL AND SHADY § SHORES I-35 .JOINT VENTURE § DENTON COUNTY, TEXAS AGREED FINAL JUDGMENT On this the day of 2000 came on to be heard the above entitled and numbered cause and the Plainuff, the City of Denton announced ready for trial The Defendants, John Dowdall and Shady Shores I-35 Joint Venture also announce ready for trial I Prior to the commencement of trial the Defendants admitted and stipulated in open Court that the Plaintiff, the City of Denton, has the right to recover and condemn the property described in Exhibit A, attached hereto and incorporated herein for all purposes, that all steps and due processes of law were duly, legally and timely performed, that all legal prerequisites for the trial of this cause by this Court has been duly complied with, that the only issue remaining in this cause to be tried by this Court is the amount of compensation due to the Defendants as a result of the condemnation of the property described in Exhibit A, attached hereto, and that this Court has jurisdiction of such issue and this cause of action II From the papers heretofore filed in this cause, the evidence introduced upon the trial of this cause and the agreements and stipulation made by the parties upon the trial of this cause, the Court finds (1) That by its Statement or Petition for Condemnation filed with the Judge of this Court on the 25'h day of May, 1999, Plamtiff sought and prayed for the acgmsition, for use as a roadway, from the Defendants, through condemnation of the tract of land described in Exhibit A, attached hereto, locate in Denton County, Texas (2) That pursuant to said Statement or Petition for Condemnation said judge appointed three disinterested freeholders of Denton County, Texas, as special Commissioners, who subsequently met, took their oaths of office, set a date of hearing before such Commissioners and caused notice thereof to be duly served as prescribed by law, and that said Special Commissioners duly held said hearing (3) That upon said hearing, Plaintiff appeared by and through its attorneys, and that after said hearing the Special Commissioners made and rendered their decision and Award in writing, and filed said Award with the Judge of this Court on the 18'h day of August, 1999 ,AGREED FINAL JUDGMENT Page 1 OCT-13-2000 12 33 GWJR,LL 940 8980196 P 03 (4) That by said written Award, said Special Commissioners awarded to Defendants, John Dowdall and Shady Shores I-35 Joint Venture the sum of $14,000 00 (5) Defendants duly and timely filed an objection and exception to said Award of the Commissioners III Whereas all parties have agreed and reached a compromise agreement that the ;sum of $14,000 00 is the amount of damages to which the Defendants are entitled by virtue of the condemnation of the land described in Exhibit A Upon due consideration, the Court finds and determines the following 1 That all proceedings necessary to vest this Court with jurisdiction of the subject matter and the parties of this cause have been instituted, maintained anct complied with, as required by law, and that, therefore this Court has jurisdiction of the parties hereto and of the subject matter set forth in this case, 2 That John Dowdall and Shady Shores 1-35 Joint Venture, are the owners of the property described in exhibit A, attached hereto, and the City of Denton, as condemnor, is condemning and acquiring under and by virtue of these condemnation proceedings, the fee simple title in and to the property described as Exhibit A and that the State of Texas is authorized to condemn said property, 3 That from the pleadings, evidence and the agreement of the parties, the condemnees, John Dowdall and Shady Shores 1-35 Joint Venture should have and recover of and from the City of Denton, condemnor, the sum of $14,000 00, which sum has previously been deposited with the registry of this Court 4 That the City of Denton, in turn should have and recover from Defendants, as more specifically set forth in Plaintiff's Statement or Petition in Condemnation, an easement for the constructing, laying out, maintaining, repairing, operating and reconstructing of a street, highway, right-of-way, drainage improvement,, utilities and other related improvements, in the City of Denton, Denton County, Texas, in and to the property described in Exhibit A, attached hereto, 5 That the Condemnor the City of Denton, did on the 18th day of August, 1999, deposit into the registry of this Court the sum of $14,000 00, for the use and benefit of John Dowdall and Shady Shores I-35 Joint Venture Defendants John Dowdall and Shady Shores 1-35 Joint Venture acknowledge the receipt of the $14,000 00 already paid to them by the City of Denton by virtue of the deposit of said funds and acknowledge that no other funds are due to the Defendants from the City of Denton 6 That all costs of Court incurred herein should be taxed agamst the Plaintiff the City of Denton, which costs shall be paid only to the County Clerk of Denton County 7 That the Defendants are entitled to withdraw the $14,000 00 deposited into the registry of the Court and that the clerk should transmit the $14,000 00 to the Defendants OCT-13-2000 12 33 GWJR,LL 940 8980196 P 04 IV It is therefore ORDERED ADJUDGED AND DECREED that the City of Denton does have and recover from the Defendants an easement for the Plaintiff, for street nght-of-way for the constructing, laying out, maintaining, repainng, operating and reconstructing of a street, highway, nght-of-way, drainage improvements, utilities and other related improvements in the City of Denton, Denton County, Texas, and Defendants are entitled to the sum of $14,000 00 which has previously been deposited into the registry of this Court It is therefore ORDERED ADJUDGED AND DECREED that the Clerk of this Court forthwith make a check payable to the Defendants John Dowdall and Shady Shores J-35 Joint Venture for the $14,000 00 on deposit in the registry of this Court V It is finther ORDERED ADJUDGED AND DECREED that all costs of Court are adjudged against the Plaintiff the City of Denton, which costs shall only be paid to the County Clerk of Denton County, Texas Signed this day of 2000 Probate Judge AGIMED FINAL AMGM1tNT Page 3 TOTRL P 04 EXHIBIT "A" ALL THAT CERTAIN TRACT OR PARCEL OF LAND LYING AND BEING SITUATED IN THE GIDEON WALKER SURVEY, ABSTRACT No. 1330, CITY AND COUNTY OF DENTON, TEXAS, AND BEING THE SAME (CALLED) 1.619 ACRE TRACE' OF LAND DESCRIBED IN A DEED TO SHADY SHORES I-35 JOINT VENTURE, RECORDED UNDER COUNTY CLERK'S FILE No. 95-R0053704, REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID 1.619 ACRE TRACT, ALSO BEING{ THE NORTHWEST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED TO JOHN L. TUCMLLO, RECORDED IN VOLUME 33639 PAGE 9299 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, ON THE SOUTH LINE OF A TRACT OF LAND DESCRIBED IN A QUITCLAIM DEED TO THE CITY OF DENTON, RECORDED UNDER COUNTY CLERK'S FILE No. 93-110058485, OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS; THENCE SOUTH 14 DEGREES 38 MINUTES 30 SECONDS WEST WITH THE EAST LINE OF SAID 1.619 ACRE TRACT AND THE WEST LINE OF SAID TINNRELLO TRACT, A DISTANCE OF 539.49 FEET TO A CORNER AT THE BEGINNING OF A CURVE TO THE LEFT; THENCE WITH SAID CURVE TO THE LEFT, HAVING A CENTRAL ANGLE OF 01 DEGREE 25 MINUTES 05 SECONDS, A RADIUS OF 1017.00 FEET, AN ARC LENGTH OF 25.17 FEET, WITH A CHORD WHICH BEARS SOUTH 15 DEGREES 21 MINUTES 03 SECONDS WEST A DISTANCE OF 25.17 FEET TO THE SOUTHEAST CORNER OF SAID 1.619 ACRE TRACT AT THE SOUTHWEST CORNER OF SAID TINNRELLO TRACT, ON THE NORTH RIGHT-OF-WAY OF SHADY SHORES ROAD; THENCE NORTH 80 DEGREES 14 MINUTES 13 SECONDS WEST WITH THE SOUTH LINE OF SAID 1.619 ACRE TRACT AND THE NORTH RIGHT-OF-WAY OF SHADY SHORES ROAD, A DISTANCE OF 120.83 FEET TO THE SOUTHWEST CORNER OF SAID 1.619 ACRE TRACT AND THE SOUTHEAST CORNER OF A TRACT OF LAND DESCRIBED IN A DEED TO ERNEST A. TINNRELLO, RECORDED IN VOLUME 33639 PAGE 9259 OF THE REAL PROPERTY RECORDS OF DENTON COUNTY, TEXAS, AT THE BEGINNING OF A CURVE TO THE RIGHT; THENCE WITH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 02 DEGREES 15 MINUTES 52 SECONDS, A RADIUS OF 897.00 FEET, AN ARC LENGTH OF 35.45 FEET, WITH A CHORD WHICH BEARS NORTH 15 DEGREES 46 MINUTES 26 SECONDS EAST A DISTANCE OF 35.45 FEET TO A CORNER; 14 EXHIBIT "A" (cont.) THENCE NORTH 14 DEGREES 38 MINUTES 30 SECONDS EAST WITH THE WEST LINE OF SAID 1.619 ACRE TRACT AND THE EAST LINE OF SAID ERNEST A. TINNRELLO TRACT, A DISTANCE OF 573.69 FEET TO THE NORTHWEST CORNER OF SAID 1.619 ACRE TRACT AND THE NORTHEAST CORNER OF SAID ERNEST A. TINNRELLO TRACT, ON THE SOUTH LINE OF SAID CITY OF DENTON TRACT AT THE BEGINNING OF A CURVE TO THE RIGHT; THENCE WITH SAID CURVE TO THE RIGHT, HAVING A CENTRAL ANGLE OF 04 DEGREES 57 MINUTES 23 SECONDS, A RADIUS OF 1442.93 FEET, AN ARC LENGTH OF 124.82 FEET, WITH A CHORD WHICH BEARS SOUTH 59 DEGREES 27 MINUTES 06 SECONDS EAST A DISTANCE OF 124.78 FEET TO THE POINT OF BEGINNING AND CONTAINING IN ALL 70,547.80 SQUARE FEET OR 1.619 ACRES OF LAND. 15 iinmu JJIJYLAI EX�4i 6 i—r B" t otOOWAW TO S73.36 WER'D 197 29 t F F L T �•• � CALLED r% 01 6.387 AC. w e ^ isle t.O 1 _e4tep e0" • i' Y$�4 1 Cu Z 1 40 •9livi". 0.4 � V I aM _ ••348 �68•W `irnlx N A 02.15 52' � • N79 L 38 4fl '05'E CALLED 3.257 AC. ,6o�oc 2y T-17 73' CB=Si5.46'26'W CH-39.45' NS '14'13'W 1 — _ l20.83' ICH-25 17' CB-815'21'03'W 52'E 1'93'E �364'37'00'W 152 20' 919'01'30'W 61 i9' S31'08'27'W 44 83' �910 015' 47' E BB 94' 819'49'98'W 33 82' i'S7 38-E 92' (GOODWMI Seale, 1' = 20011 1 Shoot 91[$ALI. 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