20-2052ORDINANCE NO.20-2052
AN ORDINANCE APPROVING A COMPROMISE SE'l-TLEMEN'I- AGRI:EMEN'r AND
RELEASE OF ALL CLAIMS BE-I-WEEN TIIE CITY OF DEN’rON, l:VERET'rE NEWI,AND.
AND JENNIFER NEWLAND, REGARDING ISSUES AND DISPUTES RELA'rED TO
ALLEGED IMPACTS OF TIIE DENTON ENERGY CENTER ON TI-IE NEWLANDS-
PROPER-l'Y; AU’i-HORiZiNG THE CITY MANAGER, OR HIS DESIGNEE, TO EXECUTI:
FHE SAME; APPROVING THE EXPENDITURE OF FUNDS TIIEREFOR; AND
DECLARING AN EFFEC'I'IVE DATE
WI-IEREAS, Everett Newland and Jennifer Newland (together. the “Newlands’-) own
approximately 46.548 acres located south and southeast of the intersection of Thomas J. Egan
Road and Jim Christal Road, in Denton. Denton County, Texas (the ''Newland Property’-); and
WHEREAS. the City of Denton (the “City”) owns property directly to the east of the
Newland Property upon which the Denton Energy Center (the “DEC’-), a quick start gas-fired
electric generation plant. was constructed in 2018; and
WHEREAS, a dispute has arisen between the Newlands and the City regarding the
operation of, and noise produced by, the DEC and its impact on the Newlands’ use and enjoyment
of their property (the “Dispute”); and
WIIEREAS, the City’s staff negotiated a settlement of the Dispute between the parties;
and
WIIEREAS, the parties have prepared a Compromise Settlement Agreement and Release
of All Claims (the “Settlement Agreement“) to completely and fully settle and release the issues
and Dispute; NOW. TIIEREFORE.
rI-IE COUNCIL OF TI-IE CITY OF DENTON HEREBY ORDAINS :
SEc’ric)N 1. The rccitations contained in the preamble of this ordinance are incorporated
herein by reference.
SE(_-TION 2. The City Council approves the Settlement Agreement between the City and
the Newlands, attached as Exhibit “A,” and authorizes the City Manager, or his designcc, and the
City’s attorneys9 to act on the City’s behalf in approving and executing the attached Settlement
Agreement and any and all documents necessary or appropriate to cffcctuate thc 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 .
rhe motion to approve this o
seconded by a>MM
by the following vote [ b_ - O ]:
'dinance was mac e by be,chl Bcicf4s and
I'his Ordinance was pasKii and approved
Aye
It
'/
Nay Abstain Absent7Mayor 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:
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I
PASSED AND APPROVED this the b+b day of Qc+obe<2020
ATTEST:
ROSA RIOS, CITY SECRETARY
Gerard Hudspeth, Mayor Pro Tem
BY: b
APPROVED AS TO LEG AI, FORM :
AARON LEAL, CITY AT'i-ORNEY
- Lab
EXHIBIT “A“
COMPROMISE SETTLEMENT AGREEIVIENT
AND RELEASE OF ALL CLAIMS
FHIS COMPROMISE SETTLEMENT AGREEMENT AND RELEASE OF Al,L
CLAIMS (''Agreement") is made by and between Everette Newland and Jennifer Newland (’'the
Newlands'’) and the City of Denton, a Texas home-rule municipal corporation ("City");
separately referred to as a "Party" and all collectively referred to as the "Parties" to this
Agreement.
1. RECITALS
A. The Newlands own approximately 46.548 acres located south and southeast of
the intersection of Thomas J. Egan Rd. and Jim Christal Rd.. in Denton. Denton County, Texas
("Newland Property"). The Newlands resided on the same from July 2008 until October 2019 ,
The legal descriptions for the Newland Property are attached as Exhibits A and B.
B. The City owns property directly to the east of the Newland Property upon which
the Denton Energy Center ("DEC"), a quick start gas-fired electric generation plant, was
constructed in 2018. The DEC has two engine halls that are each 18.400 square feet in size ( 1 84
feet by 100 feet) with each containing six (6) reciprocating internal combustion engines used for
generation of electric power (''DEC Engine l-Ialls").
C. A dispute has arisen between the Newlands and the City regarding the operation
of, and noise produced by, the DEC and its impact on the Newlands' usc and enjoyment of their
property ("Dispute").
D. The Parties understand and agree that the claims arising from the Dispute asserted
by each of them are in conflict and that both desire to settle such Dispute by compromise to avoid
the uncertainties. inconvenience, and expense of litigation and to buy peace.
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 1 of 9
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
Newlands and the City shall be settled and compromised upon all the following terms and
conditions:
A. Settlement Payment; Restriction on Reciprocating Internal Combustion Engine
Electric Generation Facilities
1 . Settlement Payment. The City shall pay to Everette Newland and Jennifer
Newland. jointly. the amount of 8300.000.00 USD in immediately available funds (the
"Settlement Payment’'). The City shall make the Settlement Payment to the Newlands within
thirty (30) days of the Effective Date of this Agreement
2. Restriction on Reciprocating Internal Combustion Engine Electric
Generation Facilities. The City agrees not to (i) operate more than six (6) engines in each of the
DEC Engine l-Ialls, or (ii) build additional reciprocating internal combustion engine electric
generation facilities for the generation of electric power at the DEC or elsewhere on the City-
owned property adjacent to the Newland Property (the "DEC Restrictions").
B. Release by Everette Newland. In exchange for the payment of the Settlement
Payment and the DEC Restrictions, Everette Newland. does RELEASE AND FOREVER
DISC IIARGE the City, its elected or appointed officials, including, expressly, members of the
City Council. represent,dives. departments. agents. servants, employees, attorneys. and
successors and assigns. jointly and severally. each and all of them. whether acting in their offlcial
or individual 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
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 2 of 9
all consequential or punitive damages. of whatever kind or nature. whcthcr heretofore or
hereafter accruing or whether now known or not known to him. including without limitation. all
causes of action, whether statutory or common law, contract or tort, which he may have against
the City personally or by virtue of any interest he may have in and to the Newland Property. in
any way directly or indirectly related to the Dispute. This release is to be construed as broadly
as possible and is binding upon Everette Newland personally and any interest he may have in
and to the Newland Property. However, this release shall not release the Parties from any
contractual obligations or violations of restrictions contained in this Agreement.
C. Release by Jennifer Newland. In exchange for the payment of the Settlement
Payment and the DEC Restrictions, Jennifer Newland, does RELEASE AND FOREVER
DISCHARGE the City. its elected or appointed officials. including. expressly. members of the
City Council, representatives, departments, agents, servants, employees, attorneys, and
successors and assigns. jointly and severally, each and all of them. whether acting in their official
or individual 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 her. including without limitation. all
causes of action, whether statutory or common law. contract or tort, which she may have agaInst
the City personally or by virtue of any interest she may have in and to the Newland Property, in
any way directly or indirectly related to the Dispute. This release is to be construed as broadly
as possible and is binding upon Jennifer Newland personally and any interest she may have in
and to the Newland Property. l-lowever, this release shall not release the Parties from any
contractual obligations or violations of restrictions contained in this Agreement.
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 3 of 9
D. The Release. Rights. and Restrictions Contained Herein is a Covenant to Run with
the Land. The Parties declare their express intent, and Everette Newland and Jennifer Newland
each expressly agrees, that the release of claims against the City as to the operation of DEC,
noise produced by DEC. and the impact of the same on the Newland Property as set forth in
Section II, paragraphs B and C in this Agreement run with the Newland Property, binding all
successors and assigns in title to the Newland Property from bringing claims similar to those
released herein. Each and every contract, deed, or other instrument hereafter executed covering
or conveying the Newland Property, or any portion or interest thereof. whether such interest is a
fee, easement. leasehold, beneficial or otherwise, is to be held conclusively to have been
executed, delivered, and accepted subject to this covenant, regardless of whether such is set forth
in such contract. deed. or other instrument. unless released from the City. The City expressly
agrees that the right to enforce the DEC Restrictions as set forth in Section II, paragraph A, 2
runs with the land and inures to the benefit of each successor and assign in title to the Newland
Property .
E Agreement to be Recorded in Real Property Records. The Newlands agree that
this Agreement may be recorded in the Real Property Records of Denton County, Texas.
F. Further Assurances. The Parties shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all such othel
dgreements7 instruments, and documents, as the other Party may reasondbly request to carry out
the intent and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby .
G. Attorney's Fees and Costs. Each Party shall bear its own attorney’s fees and costs.
H. No Reliance. Each Party to this Agreement represents that: (i) it is acting freely
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 4 of 9
and voluntarily; (ii) it in no way is relying upon any promise. warranty. representation. or
agreement of any kind whatsoever, made directly or indirectly, by any agent, employee, or
lawyer of the other Party, or 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.
1. No Admission. In entering into this Agreement, the Parties are not admitting
liability, but are expressly denying liability.
J. Ownership of Claims. The 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 suits in
equity have been assigned to any third party.
K. No Inducement. 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.
L. Joint Drafting. This Agreement shall be deemed to have been jointly prepared by
all Parties hereto, and no ambiguity of this Agreement shall be construed against any Party based
upon the identity of the author of this Agreement or any portion thereof.
M. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by.
construed and interpreted, and the rights of the Parties determined. in accordance with the laws
of the State of Texas, and venue of any dispute concerning this Agreement shall be tried in a
court of competent jurisdiction sitting in Denton County, Texas.
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 5 of 9
N. Statements and Representations Contractual in Nature. Statements and
representations contained herein are to be considered contractual in nature and not merely
recitations of fact
O. Severability. In the event any one or more of the provisions of this Agreement
shall, for any reason, be held invalid, illegal, or unenforceable in any respect, such invalidity
shall not affect any other provision herein.
P. Interpretation. 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. Further,
the captions to the various clauses of this Agreement are for informational purposes only and
shall not alter the substance of the terms and conditions of the same.
Q. Successors Bound by Agreement. 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 (i) any and all of
the claims brought or which could have been brought against any and all Parties herein released
arising out of the events herein described, and (ii) the DEC Restrictions.
R. Authority to Execute. 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 Agreement.
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 6 of 9
S. Survival; Discovery of Different Facts. The representations. warranties.
covenants, and agreements set forth herein shall survive the execution hereof. This Agreement
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.
T. Multiple Counterparts. This Agreement may be executed in multiple counterparts.
each which taken together shall constitute one and the same instrument.
U. Understanding of Agreement. Each Party to this Agreement warrants and
represents that it has read the above and foregoing Agreement, and every word of it. and each
Party to this Agreement understands the effect of the same.
THIS AGREEMENT has been signed by the Parties and is effective when signed by the
City ("Effective Date").
SIGNATURE PAGES FOLLOW -–-–----
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 7 of 9
SIGNATURE PAGE - CITY
CITY OF DENTON,
Acknowledgement
State of Texas
Denton County
§
§
Before me. the undersigned authority. on this day personally appeared Todd Hileman.
known to me to the be person whose name is subscribed to this Compromise Settlement
Agreement and Release of All Claims. and acknowledged to me that she executed the same in
his capacity as City Manager of the City of Denton. a Texas home-rule municipal corporation.
on behalf of said corporation, for the purposes and consideration therein expresscd
Gi,,, „„d„ my h,„d ,.d „,I ,n thi, # of October 2020
ATTEST:
Rosa Rios, City Secretary
._/akI/2 _ Ah,J
Compromise Settlement Agreement
and Release of All Claims (09302020)Page 9 of 9
EXHIBIT '’ A’' - CSA (City of Denton/Newland)
ALL OF THAT CERTAIN TRACT OR PARCEL OF LAND SITUATED nv THE GIBSON MYERS
SURVEy, ABSTRACT NO. &43, CITy OF DwroN, DE)fFON couPfrY, TEXAS, AND BEDqG A
PART OF A CALLED 691.64 ACRE TRACT OF LAND DESCRIBED Dq. THE DEED TO JOHN W
PORTER Hr UK AS RECORDED n+ VOLUME 3071, PAGE 158, OF THE REAL PROPERTY
RECORDS OF DnnoN COUNTy TEXAS, AND BEnqG MORE PARTICULARLY DESCREBED AS
FOLLOWS
BEGrNNnqG AT A PK NAIL SET IN JIM CFRISTAL ROAD AT THE NORTHEAST COIWER OF
DLAMOND H RANCH AS RECORDED Dq CABINET L, PAGE 167 OF THE PLAT RECORDS.
DENTON COUNTy, TEXAS AND rN THE NORTH LrNE OF SAD 691.64 ACRE TRACT;
THENCE wrrH THE NORTH LINE THEREOF, ALONG S ADD ROAD AND WITH A CURVE TO DiE
LEFr HAVnqG A RADIUS OF 553.02 FEET, A CHORD BEARING AND DISTANCE OF SOUTH 84
DEGREES 01 wqurES 42 SECONDS EAST 130.74 FEET, AN ARC DISTANCE OF 131.04 FEET TO
A PK NAE SET FOR CORNER;
THENCE NORTH 89 DEGREES ioMNurES 16 SECONDS EAST ALONG SAID ROAD AND wrrH
Tn NORTH EDgE OF SAID 69 ] .64 ACRE TRACr A DISTANCE OF 73.78 FEET TO A PK NAIL SET
FOR CORNER;
THENCE SOUTH DO DEGREE 42 MINUTES 5 1 SECONDS WEST PASSING EN ROUTE AT A
DiSTANCE OF 24.00 FEET A %" CAPPED IRON ROD SET FOR WITNESS AND CONFINUING ON
SAID COURSE SEVERnqG SAnD 691.64 ACRE TRACT A TOTAL DISTANCE OF 1712.] 8 FEn TO
A CAPPED RON ROD SHr FOR CORNER;
THENCE NORTH 87 DEGREE 47 NaNLrrES 56 SECONDS WEST SEVERING SAID 691 -64 ACRE
TRACT ALONG A FENCE A DISTANCE OF 128.06 FEET TO A WOOD FENCE CORNER POST
FOUND FOR .CORNER AT THE SOUIF£EAST CORNER OF A CALLED 1 6.241 ACRE TRACT OF
LAND DESCRIBED IN THE DBED TO ROGER HENNEN ET UX AS RECORDED IN DOCUMENT #
94-R6056821 OP SAID R&ALPROPERry R£CORDS OF DENTON COUVIYT£XAS;
TI£ENCE NORTH 00 DEGREE 42 WNUTES 51 SECONDS EAST ALONG A FENCE wrrH TFD
EAST LINE OF SAD 16.241 ACRE TracT A DISTANCE OF 1226.16 FEET TO A WOOD FENC£
CORNER POST FOUND FOR CORNER
THENCE NORTH 36 DEGRaE 56 MINUTES 41 SECONDS WEST ALONG A FENCE WITH THE
SAID EAST LINE A DrsTANCE OF 93.46 FEn TO A WOOD FENCE CORNER POST FOUND FOR
CORNER IN THE EAST LINE OF SAID DIAMOND H RANCH ;
THENCE NORTH 01 DEGREE 51 WNUTES 32 SECONDS WEST PAssnvG EN ROurE AT A
DISTANCE OF 377,89 FEHF THE NORTHE4ST CORNER OF LOT 1 > BLOCK A OF SAID DIAMOND
H. RANCH AND co)frrNUDq(, ON SAID COURSE A TOTAL DISTANCE OF 419.12 FEET TO na
PLACE OF BEGINNING AND HNCLOsnqG 5.700 ACRES OF LAND MORE OR LESS.
EXHIBIT ’'B'’ - CSA (City of Denton/Newland)
SOU\T£GHX£FUC EIIE 1:If]JHLIJLTRTAI)NORTHEAST CORNER OF SAID LOT I' DIAMOND H MWH ON THE
1). NORTH 43 O£GREES 58 MINUTES 31 S£CONOS WEST, A DISTANC€ OF 237 60 FEET.
2)- NORTH 28 DEGREES 21 MINUTES 12 SECONDS WEST. A DISTANCE OF 140.66 FEET
3>. NORTH 77 DEGREES c8 MINUTES 12 SECONOS WEST: A DISTAbrCE OF 141 41 FEgT
4)- NORTH 52 DEGREES 49 MINUTES 09 SECONOS WEST. A OISTANCE aF 184.19 IEn:
5). SOUTH 70 DEGREES 02 MINUTES 25 SECONOS WEST. A DISTmqC.E OF 114.61 FEn-'
8). SOUTH 02 DEGREES 03 MINOTES 58 SECONDS WEST. A DISTANCE OF lol.44 FEET
7). SOUTH 48 DEGREES 58 MINUTES 57 SECONDS WEST, A DISTANCE OF 2ar,92 F€Er
8)' NORTH 77 DEGREES 34 MINUTES 10 SECONDS WEST. A DISTANCE OF 156.98 FEET:
9)' NORTH 25 DEGREES 45 MINPTES 37 SECONDS WEST, A DISTANCE OF 177,67 FEET
lo>. NORTW ?5 DEGREES 38 MIraUTES 57 SECONDS EASf, A OISTANCE OF 171.m FEE+
11 ). NORTH 19 DEGREES 31 MINUTES 12 SECONDS EAST, A DISTANCE OF 135.45 FEET:
12). NORTH 10 DEGREES at MiNurES 58 SECONDS WEST. A DISTANCE OF 233.00 FEET
13)- NORTH 08 DEGREES 46 MINUTES 26 SECONDS WEST. A DISTANCE OF 169.62 FEET:
14)' NORTH 16 DEGREES 38 MtNUTES 33 SECONDS EAST, A DiSTANCE OF 221.59 FEET:
15}. NORTH 03 DEGREES 47 Mlb:UTES 03 SECONOS CAST, A DISTANCE or 318.87 FEET;
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