20-1406 FILE REFERENCE FORM
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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
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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.
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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
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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
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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 --- --
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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
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and Release of All Claims (07202020) Page 8 of 9
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and Relic -ase of All Claims (07202020) Page 9 or 9