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20-1406 FILE REFERENCE FORM X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Created by Ordinance No. 18-2168 12/18/18 CW Settlement Agreement and Release Ordinance No. 20-1406 07/28/20 CW ORDINANCE NO. 20-1406 AN ORDINANCE APPROVING A SETTLEMENT AGREEMENT AND RELEASE BETWEEN THE CITY OF DENTON, MARKER STONE REALTY PARTNERS I, LLC, AND MARKER STONE REALTY PARTNERS II, LLC, REGARDING ISSUES AND DISPUTES RELATED TO A DEVELOPMENT AGREEMENT APPROVED UNDER ORDINANCE NO. 18-2168 AND THE DEVELOPMENT OF SUBDIVISIONS REFERENCED THEREIN; AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE SAME; APPROVING THE EXPENDITURE OF FUNDS THEREFOR; AND DECLARING AN EFFECTIVE DATE. WHEREAS, Marker Stone Realty Partners, I, LLC, a Texas limited liability company ("MS I") owned and developed certain real property known as the Evers Way subdivision, located at the southwest corner of W. Hercules Lane and N. Locust Street within the City of Denton, Denton County, Texas, as more particularly described in a final plat recorded in the Plat Records, Official Records of Denton County, Texas as Document No. 2018-189; and WHEREAS, Marker Stone Realty Partners II, LLC, a Texas limited liability company ("MS Il," collectively with MS I as the "MS Entities") owns and is developing certain real property known as the Beall Way Addition, generally located northwest of the intersection of W. Hercules Lane and N. Locust Street within the City of Denton, Denton County, Texas, as more particularly described in a final plat recorded in the Plat Records, Official Records of Denton County, Texas as Document No. 2019-156; and WHEREAS, the MS Entities and City of Denton ("City") entered into a Development Agreement on December 18, 2018, approved by the City Council through Ordinance No. 18-2168; and WHEREAS, several disputes have arisen been the City and the MS Entities regarding the development of Evers Way subdivision and Beall Way Addition and the Development Agreement (the "Dispute"); and WHEREAS, the City's staff negotiated a settlement of Dispute between the parties; and WHEREAS, the parties have prepared a Settlement Agreement and Release of All Claims to completely and fully settle and release the issues and Dispute; and WHEREAS, the City Council finds that it is in the best interest of the public to approve the Settlement Agreement and Release of All Claims; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Council approves the Settlement Agreement and Release of All Claims between the City and the MS Entities, attached as Exhibit "A" ("Settlement Agreement"), and authorizes the City Manager, or his designee, and the City's attorneys, to act on the City's behalf in approving and executing the attached Settlement Agreement and any and all documents necessary or appropriate to effectuate the terms of the Settlement Agreement, including expenditure of budgeted funds, and to take other actions necessary to complete the Settlement Agreement. SECTION 3. This Ordinance shall become effective immediately upon its passage and approval. The motion to approve this ordinance was made by V"R- 'tH and seconded by '7se."s5 This Ordinance was passed and approved by the following vote [ ') - b ] : Mayor Chris Watts, Gerard Hudspeth, District 1: Keely G. Briggs, District 2: Jesse Davis, District 3: John Ryan, District 4: Deb Armintor, At Large Place 5: Paul Meltzer, At Large Place 6: Aye Nay Abstain Absent PASSED AND APPROVED this the?'%*> day of J 0�y , 2020. CH ATTS, A OR ATTEST: ROSA RIOS, CITY SECRETARY J a v y BY: APPROVED AS TO LEGAL FORM: AARON LEAL, CITY ATTORNEY BY: COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAINIS THIS COMPROMISE SE�TFLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS ("AgreemenC) is made by and between Marker Stone Realty Partners 1, LLC, a Texas limited liability company rixis n, Marker Stone Realty Partners, II, LLC, a Texas limited liability company (-ms In (both collectively referred to as the "MS Entities"), and the City of Denton, a Texas home -rule municipal corporation (" City"), all collectively referred to as the "Parties" to this A-reement I RECITALS A. MS I owned and developed certain real property known as the Evers Way subdivision which is located at the southwest comer of the W, Hercules Lane and N. Locust St. intersection in the City of Denton, Denton County, Texas. The Evers Way subdivision is more particularly described in a final plat recorded in the Plat Records, Official Records of Denton County, Texas, under Document No. 2018-189 (April 26, 20 18) B. MS 11 owns, and is developing. certain real property known as the Beall Way Addition which is generally located northwest of the W. Hercules Lane and N. Locust St. intersection in the City of Denton, Denton County, Texas. The Beall Way Addition is more particularly described in a final plat recorded in the Plat Records, Official Records of Denton County, Texas, under Document No. 2019-156 (April 1, 2019). C. The MS Entities and the City entered into Development Agreement on December 18, 2018 (Ordinance Ilio. 18-2168), The Development Agreement set forth certain obligations of the Parties in and around the Evers Way subdivision and the Beall Way Addition, D, Several disputes between the MS Entities and thc, City arose because of the dQvelopment of the Evi�rs Way subdivision and Beall Way Addition and the, Development Conyromise Settlement Agreement and Release of All Claims (07202020) Page I of 9 Agreement. Specifically, these disputes include (collectively referred to as the "Dispute"). How the otTsite drainage for Evers Way Subdivisions should be resolved and the cost allocation between the MS Entities and the City for the same, ii. The cost allocation between the MS Entities and the City for an oversized water line to serve the development of the area in and around the Fivers Way subdivision and the Beall Way Addition, iii, The financial responsibility for the installation of streetlights on the portion of W. Hercules Lane beint-, constructed by the MS Entities: and iv, What reimbursement the MS Entities should receive from the City under the terms of the Development Agreement_ D. The Parties understand and agree that the claims arising from the Dispute asserted by each of them are in conflict and that both they desire to settle such Dispute by compromise U) avoid the uncertainties, inconvenience and expense of litigation and to buy peace. 11, TERMS AND CONDITIONS For and in consideration of the recitals set forth above and the covenants and undertakings hereinafter contained, it is agreed by and among the Parties that the Dispute between the MS Entities and the Cita shall be settled and eomprornised upon all the following terms and conditions-. A. Except as hereinafter expressly provided to the contrary, the MS Entities do RELEASE AND FOREVER DISCHARGE the City, its elected car appointed officials, inchiding 'n' expressly, members of the City Council and the City Planning and Zoning Commission, representatives, departments, agents, servants, employees, attorneys, anti successors and assigns, jointly and severally, each and all of them, whether acting in their official or individual Comprumise Settle -meat A greenient and 1104;js c (it All Claim q (07202020) Page 2 of 9 capacities, of and from any and all claims, demands, damages, (pecuniary and non -pecuniary), actions, causes of actions attorneys' fees, expenses, court costs, compensations and all consequential or punitive damages, of whatever kind or nature, whether heretofore or hereafter accruing or whether now known or not known to the MS Entities, including without limitation, all causes of action which the MS Entities may have against the City for violation of statutoly, common law, or constitutional duties or obligations allegedly owed to, or deprivation of vested right or property rights acquired by, the MS Entitie,-, in any way directly or indirectly related to the Dispute, or the adoption of or application of its development regulations, including, but not limited to, the Zoning Regulations and the Subdivision Regulations to the Evers Way subdivision and the Beall Way Addition prior to the effective date of this Agreement. Such claims compromised and settled expressly include, but are not limited to, all those matters set forth in the recitals identified above, together,%&ith any claims for damages based upon local, state or federal law or constitutional provision, and arising out of the same events - B_ The City shall pay to the MS I-Mfities, jointly, the amount of $110,755,28 which represents the fallowing: (i)$75,000 for Evers Way Subdivision offsite draina""e, improvements - (ii) S 11.000 for the construction of the oversized water line; (iii) $20,250.00 for installation of W, Hercules Lane strectlig ,hting; and. (Iv) 54,505 28 for reimbursement under the Development Agreement. The City shall make this payment to the MS Entities within thirty days of the Effective Date of this ALY greement C. Each Party shall bear its own attorney's fees and costs - D Each Party to this Agreement represents that: (i) it is acting freely and voluntarily; (ii) it in no way is relyin,6, upon any promise, warranty, representation or agreement or any kind whatsoever, made directly or indirectly. by any agent, employee, or lawyer of the other Party, or Compromise Settlement Agminent and Release of All Claims (0720202Page 3 of 90) ?, any person or firm in privity with the Parties being released, and (iii) this is a full, final and complete settlement of all claims of any kind or character whatsoever, both known or unknown, arising out of those matters described herein. E. in entering;liability, into this Agreement, the Parties are not admitting, liability. but are expressly denying liability. F -rhe Parties warrant that this Agreement is executed without reliance on any statement or representation made by any third party which is not contained herein and that no claims, demands. damages, actions causes of action or in equity have been assigned to any 0 q third party, G, The undersigned each warrant that no inducements have been made to any of them on behalf of the other Party, and that in deciding to execute this Agreement, each has relied solely and only upon their own judgment and the advice given to them by their attorney, if any, whom they have selected. It, This Agreement shall be deemed to have been jointly prepared by all Parties hereto, and no ambiguity orthis Agrecment shall be construed against any party based upon the identity of the author of this Agreement or any portion thereof`_ t. This Agreement shall be governed by, constnied and interpreted, and the rights of the Parties determined, in accordance with the laws of the State of Texas, and venue or any dispute concerning, this Agreement shall be tried in a court or competent jurisdiction sitting in Denton county, -rexas. I Statements and representations contained herein are to be considered contractual in nature and not merely recitations of fact, including, without limitation, those contained in Part I of this Agreement. ConipromiseSLitlem eat Agr"rnent and ROcaw of All Claims (07202020) Page 4 of 9 K. In the event any one or more of the provisions of this Agreement shall, for any reason, be held invalid, ille-al or unenforceable in any respect, such invalidity shall not affect any other provision herein, L. All references herein in the singular shall be construed to include the plural where applicable, the masculine to include the feminine and neuter genders and all covenants, agreements and obligations herein assumed by the Parties shall be deemed to be joint and several covenants, agreements and obligations of the several persons named herein. M. This Agreement shall be binding on and inure to the benefit of each and every Party to this Agreement, and their shareholders, partners, successors, officers, directors, employees, assigns, heirs, executors, administrators, agents, lienholders, legal representatives, and any of the companies, individuals or entities associated with them as owners, subsidiaries or any other related capacity with respect to any and all of the claims brought or which could have been brought against any and all Parties herein released arising out orthe events herein described. N Each of the signatories to this Agreement represents and warrants that he is authorized to execute this Agreement and bind his principals to the terms and provisions hereof, Each Party warrants that any action required to be taken for this Agreement to be binding on it has been duly and properly taken prior to the execution of this At, m eent- .re 0The representations, warranties, covenants and agreements set forth herein shall survive the execution hereof. P. This Ai-,reement and the representations, warranties and agreements set forth herein shall survive the discovery of different facts and shall continue in full force and affect and be unaffected by the discovery of different or additional facts. This Agreement may be executed in multiple counterpart-,, each which taken Compromise Settlement Agreement and Relvase of All Claims (07202020) Page 5 of 9 together shall constitute one and the same instrument. R Each Party to this Agreement warrants and represents that it has read the above 25 and foregoing Agreenkent, and every word edit, and each Party to this Agreement understands the effect of the same. THIS AGREEMENT has been signed by the Parties and is efTective when signed ,ned by the City ("Effective Date') SIGNATURE PAGES FOLLOW --- -- Comprom6e Settlement Apreement and Relu-Nc (if All Claims (07202020) Page 6 of 9 SIGNATURE PACE - NIS ENTITIES MARKER STONE REALTY PARTNERS 1, LLC, a Texas limited liability company Signature Printed Namc Alal Title S14 Signed on the or -I day of 1020, .MARKER STONE REALTY PARTNERS 11, I,I,C, mi lability aTexas limit y company _gnature Printed N e Title Signed on the 61-1 day of 2020. Compromise Settlement Agreement and Release of All Claims (07202020) Page 7 of 9 SIGNATURIE PAGE -CITY CITU OF DENTON, a Texas home -rule municipal Todd Hileman, City iWnAVVr q (A Signed on thq— day of 2020. A17EST: Rosa Rios, City Secretary t . Efflu WMV"AM Compromise Settic-ment AWwrnent and Release of All Claims (07202020) Page 8 of 9 Compromise Settlement Agreement and Relic -ase of All Claims (07202020) Page 9 or 9