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HomeMy WebLinkAboutRes 2012-09-12 Walmat Post Judgement Agreement to Finalize the Settlement and Release of ClaimsCITY OF ANNA, TEXAS RESOLUTION NO. 2012-09-12 A RESOLUTION OF THE CITY OF ANNA, TEXAS AUTHORIZING SETTLEMENT OF LITIGATION STYLED CITY OF ANNA V. WALMAT INC. ET AL., CAUSE NO. 429- 00288-2009, IN THE 429TH DISTRICT COURT OF COLLIN COUNTY, TEXAS, FILED IN THE 429TH DISTRICT COURT OF COLLIN COUNTY, TEXAS; AUTHORIZING THE CITY MANAGER'S EXECUTION OF THE SETTLEMENT AGREEMENT; AUTHORIZING THE CITY MANAGER AND THE CITY ATTORNEY TO ACT ON THE CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS AND TO TAKE OTHER ACTIONS NECESSARY TO FINALIZE THE SETTLEMENT AND RELEASE OF CLAIMS. WHEREAS, the City Council recognizes that the City denies any liability in the above - referenced lawsuit; and WHEREAS, the City Council recognizes that the parties to the settlement agreement involving the above -referenced lawsuit desire to settle all matters to avoid the inconvenience and expense of continued litigation and to buy peace; and WHEREAS, the City Council recognizes that an instrument entitled Post -Judgment Settlement and Release Agreement, has been proposed and upon the City Attorney's approval of same, the City Manager's execution of said Agreement should be authorized, ratified, and approved; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS: Section 1. Recitals Incorporated The above -stated recitals are found to be true and correct and are incorporated by reference as if stated in full. Section 2. Authorization to Execute Agreement and Other Actions to Conclude Litigation That certain instrument entitled Post -Judgment Settlement and Release Agreement ("Agreement") settling the litigation styled City of Anna v. Walmat Inc. et a1., Cause No. 429-00288-2009, in the 429th District Court of Collin County, Texas, a lawsuit filed in the 429th District Court of Collin County, Texas, is hereby approved by the City Council and the City Manager's execution of the Agreement is hereby authorized, ratified, and approved, subject to approval of the Agreement by the City Attorney. The City Council further authorizes the City Manager and the City Attorney to execute any additional Res. 2012-09-12 Walmat Post Judgment Agreement Page 1 of 2 09-25-12 instruments or documents or to take any other reasonable and necessary action to accomplish the dismissal of the lawsuit. PASSED AND APPROVED by the City Council of the City of Anna, Texas this the 25th day of September, 2012. ATTEST: 4 Na Aa Wilkison, difySecretary II I,;;;� F Res. 2012-09-12 Walmat Post Judgment Agreement Page 2 of 2 09-25-12 CAUSE NO. 429-00288-2009 CITY OF ANNA, TEXAS Plaintiff, V. WALMAT, INC.; 170 SWEETWATER CROSSING, LP; CENTURION AMERICAN CUSTOM HOMES, INC. d/b/a CENTURION AMERICAN DEVELOPMENT GROUP; and JAMES M. BONEY, Individually, Defendants. V. MGP ACQUISITIONS, LP, Intervenor IN THE DISTRICT COURT 429T" JUDICIAL DISTRICT COLLIN COUNTY, TEXAS POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT This Post -Judgment Settlement and Release Agreement is entered into between and among the City of Ama, Texas, 170 Sweetwater Crossing, L.P., Centurion American Custom Homes, Inc., and MGP Acquisitions, L.P. ARTICLE 1. DEFINITIONS 170 Sweetyyater means 170 Sweetwater Crossing, LP, a Texas limited partnership. Amreenaen means this Post -Judgment Settlement and Release Agreement by and among the Parties. Centurion means Cenwrion American Custom Homes, Inc. d/b/a Centurion American Development Group, a Texas corporation. 2y means the City of Anna, Texas, a Texas home -rule municipality. Court means the 429th Judicial District Court, Collin County, Texas, Der-ivative Claimant mean any Person or entity acting by, through, or under a Party or any of the Entities of the Parties. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 1 of 17 0 Entities mean those Persons (whether now in existence or not) which are or were formerly owned or controlled, in whole or in part, directly or indirectly, by a party to this Agreement, or any Derivative Claimant, and their respective entities, employers, employees, directors, shareholders, officers, assigns, predecessors, successors, attorneys, representatives, or agents of such persons and/or entities. Facilities Agreement means that certain written instrument memorializing an agreement executed by the City and Wa1Mat, bearing instrument number 20080606000686290 as filed in the property records of Collin County, Texas on or about June 6, 2008. Jzcdkinent shall mean the Order Granting Movants' Motion for Summary Judgment, entered by the Court in the Lawsuit on or about July 16, 2012, a true and collect copy of which is attached to this Agreement as Exhibit "A" which is incorporated herein by reference. Lawsuit shall mean the above -entitled and numbered cause, as pertains to the .Interpleader claims made by the City and any other claims or interventions made by MGP, 170 Sweetwater, and/or Centurion. MGP means MGP Acquisitions, L.P., a Texas limited partnership. MGP Lots mean the one hundred four (104) single-family residential lots located within the Subdivision, and identified as BLOCK A, LOTS 26-27; BLOCK D, LOTS 9-17; BLOCK F, LOTS 35-37; AND BLOCK A, LOTS 1-20; BLOCK B, LOTS 1-7; BLOCK C, LOTS 1-7, 21- 31; BLOCK D, LOTS 1-3; BLOCK F, LOTS 8-34; and BLOCK G, LOTS 1-15. Parties means, collectively: the City, 170 Sweetwater, Centurion, and MGP, all of whom are parties to the Lawsuit. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 2of17 person—means_any_indi_vadual,_partnership,association,—f_ii--n , trust,—estate,—public—or private corporation, or any other legal entity whatsoever. Representatives shall mean and include all of a Person's past or present principals, agents, servants, employees, attorneys, consultants, experts, partners (both general and/or limited), equity participants, officers, directors, shareholders, parent companies, subsidiaries, affiliates, predecessors, successors, assigns, family members, estates, beneficiaries, heirs, devisees, legatees, trustees, and personal representatives. Road Capital linproveinent Fees mean the $500 per -lot fee referenced and described in the Facilities Agreement, Section 1(c) and Section 4(a) of the Facilities Agreement. Subdivision means the real property including a total of approximately 192 platted residential lots, known as the Sweetwater Crossing development, as depicted in a final plat bearing instillment number 20051208001724030 as filed in the property records of Collin County, Texas on or about December 8, 2005 (also referred to as "Sweetwater Crossing"). WalMat means Wa1Mat, Inc., a Texas corporation. ARTICLE 2. CONTRACTUAL RECITALS AND STATEMENT OF PURPOSE 2.01. The City initiated the Lawsuit in interpleader naining multiple defendants with respect to Road Capital Improvement Fees that the City had collected at the time of issuance of building permits for certain lots in the Subdivision, but to which the City claimed no interest. 2.02 Subsequent to the filing of this lawsuit and the discharge of the City, but prior to final resolution of the Lawsuit, MGP intervened and asserted its claim to the Road Capital Improvement Fees. POSTJUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 3 of 17 2.03 The City was discharged from, all liability in this suit by the Courtand had entered into a Full and Final Settlement and Release Agreement with WalMat, 170 Sweetwater, and Centurion, prior to MGP's intervention. 2.04 The Court has entered the Judgment, which, in part, directs that MGP is entitled to the funds in the registry of the court. 2.05 The Parties desire to avoid any dispute over any potential or alleged ambiguity(ies) in the Judgment or the interpretation thereof, and to reach an enforceable agreement as to the Parties' respective rights and obligations under the Facilities Agreement and Judgment, including but not limited to the disposition of the Road Capital Improvements Fees collected by the City and the Road Capital Improvement Fees to be collected after the Effective Date of this Agreement, 2.06 All provisions of this Agreement are contractual in nature, and not mere recitals. 2.07 The purpose of this Agreement is to set forth and embody a negotiated compromise, settlement, and release, as set forth herein. NOW THEREFORE, in consideration of the covenants and conditions herein contained, and the incorporation of the above Definitions and Recitals into this Agreement, the Parties hereto agree as follows: ARTICLE 3. REPRESENTATIONS AND WARRANTIES 3.01 170 Sweetwater, Centurion, and MGP warrant and represent that none of them have any awareness of the existence of any actual or potential claim, demand, suit, cause of action, charge, or grievance possessed by any of them or their respective Representatives or Entities as against the City that concerns or relates in any way, directly or indirectly, to the POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 4 of 17 I Lawsuit and which is: (1) not subject to and fully released by this Agreement; or 2} expressly preserved by this Agreement. 3.02 170 Sweetwater and Centurion warrant and represent that, except for the claims that they have expressly assigned to MGP relating to the MGP Lots, neither of there have assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, or grievances of any kind or character—which Centurion or 170 Sweetwater or their respective Representatives or Entities had or may have had prior to and including the Effective Date—as against the City. 3.03 MGP warrants and represents that it has not assigned, authorized or transferred (in any way, whether directly or indirectly) any claims, demands, suits, causes of action, charges, judgments, or grievances of any kind or character—which it or its Representatives or Entities had or may have had prior to and including the Effective Date—as against the City. 3.04 The City warrants and represents that as of the Effective Date, it has deposited all Road Capital Improvement Fees thus far collected by the City and due to be reimbursed to the Developer under Facilities Agreement, ARTICLE 4. THE JUDGMENT 4.01 The Parties agree that the rights and obligations of the Parties—as between and among the Parties, but not as to any Person(s) not a parity to this Agreement—as relates to the Facilities Agreement and the Lawsuit shall be as stated in the Judgment, except that as to the Parties and their respective Representatives, Entities, and Derivative Claimants, the Judgment shall be deemed to have been modified as follows: (a) Last line of the first paragraph on page 1 of the Judgment: the phrase "in all respects" shall be changed to "as set forth herein"; POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 5 of 17 (b)-L-ast-l-ine of tiro second-par-agr-aph--on-page—1-of the �tidgnlent: ii -n- nediateily-after-the word "GRANTED" shall be added "as set forth herein"; (c) Fourth and fifth lines of the paragraph numbered "(2)" on page 2 of the Judgment: replace "the respective grantee, run with the subject property, and inure to the benefit of the respective grantee" with "MGP as relates to said 104 single-family lots"; (d) The paragraph numbered "(3)" on page 2 of the Judgment is renumbered "(2)" and in that same paragraph the phrase "the only lots located within the Sweetwater Crossing Development which were finished -out, and, consequently, the only lofts upon which `Development Fees' have been and will be collected by the Plaintiff City of Anna, Texas" is struck and after the last word of that same paragraph, but before the period, is added: "as relates to said 104 single-family lots"; (e) Second line of the last paragraph starting on page 2 of the Judgment: the phrase "associated with" shall be replaced with the phrase "associated with the above - referenced 104 single-family lots located within''; (f) Last line of the paragraph starting on page 2 and ending on page 3 of the Judgment, before the period shall be added "; provided, however, Plaintiff City of Anna shall never be required to pay the $500 Road Capital Irnprovement Fee more times than once per any given lot"; and (g) Throughout the entirety of the Judgment—t6 the extent not already struck from the Judgment in accordance with the foregoing subsections (a) ---(i), the phrase "Development .Fee" shall be changed to "Road Capital Improvement Fee"' and the phrase "Development Fees" shall be changed to "Road Capital Improvement Fees". POST -JUDGMENT SETTLEMENT." AND RELEASE AGREEMENT Page 6 of 17 4.02 The Parties further agree that neither the Judgment, the Facilities Agreement, nor this Agreement shall be interpreted to require the City to make duplicative or redundant reimbursements of Road Capital Improvements Fees. Thus, the City has fully satisfied its obligation to pay the Road Capital Improvement Free under the Facilities Agreement as relates to all MGP Lots that correspond to the deposits made by the City into the Court's registry as of the Effective Date. As relates to any MGP Lot for which the City has not yet collected the Road Capital hnprovement Fee as of the Effective Date, the maximum Road Capital Improvement Fee for any such lot shall continue to be $500, and all such fees, once collected, shall be paid by the City a single time to as to each said respective lot in accordance with the terms of this Agreement. 4.03 As to the Parties, the Judgment shall otherwise remain as entered by the Court on July 16, 2012. 4.04 As to any third Parties, the Judgment shall remain as originally entered by the Court oars July 16, 2012, notwithstanding any providing in this Agreement. ARTICLE 5. NOTICE OF ASSIGNMENT 5.01 Notwithstanding anything to the contrary in the Judgment, the Facilities Agreement, or this Agreement, the following requirements shall apply in the event that MGP sells, assigns, transfers, or otherwise conveys any of its rights or benefits under the Judgment, the Facilities Agreement, or tlus Agreement: (a) within ten (10) days after the effective date of any such sale, assignment, transfer, or other conveyance, MGP must provide written notice of same to the City; POST -JUDGMENT SETTLEMENT AND RELEASE AGREEIv1ENT Page 7 of 17 (b)-the-notice-m-Li-st-describe-the-e-xtent to which-any z-igl-it"i benefits tindez- the Facilities Agreement, the Judgment, or this Agreement have been sold, assigned, transferred, or otherwise conveyed; (c) the notice must state the name, mailing address, and telephone contact information of the Person(s) acquiring any rights or benefits as a result of any such sale, assignment, transfer or other conveyance; (d) the notice must be signed by a duly authorized Person representing MGP and a duly authorized Person acquiring any rights or benefits as a result of the sale, assignment, transfer or other conveyance; and (c) the instrument evidencing such sale, assignment, transfer, or other conveyance shall include a provision that conspicuously states that such sale, assignment, transfer, or other conveyance shall be deemed to be null and void if there is a faihure to provide the City with notice of such sale, assignment, transfer, or other conveyance in accordance with this Section 5.01: 5.02 The failure by MGP to provide notice in compliance with Section 5.01 of this Agreement shall: (a) toll the time period within which the City would otherwise be required to snake payment to any Person of collected Road Capital Improvement Fees for any of the MGP Lots, with such tolling lasting until 20 days after MGP actually provides written notice in accordance with Section 5.01(b), (c), and (d) of this Agreement; and (b) obligate MGP to fully indenmify and hold harmless the City and its elected officials, officers, employees, agents, and representatives, from and against any POSTJUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 8 of 17 including reasonable attorney's fees and other costs and expenses of litigation, which may be asserted against or incurred by the City or for which the City may be held liable, which arise from MGP's failure to timely provide written notice in accordance with Section 5.01 of this Agreement. ARTICLE 6. ADDITIONAL OBLIGATIONS AND LIMITATIONS 6.01 The City shall not oppose or otherwise interfere with MGP's pursuit of the Road Capital Improvement Fees deposited by the City into the registry of the Court as of the Effective Date; provided, however, the Parties understand and agree that the City shall not be liable—or otherwise be responsible in any manner whatsoever—for any such sums that have already been withdrawn from or otherwise released by said registry of the Court, 6.02 As between and among the Parties, the Parties agree to be solely responsible for the payment of their respective attorney fees, court costs, expert witness fees, court reporter's fees, and all other expenses incurred on said party's behalf as a result of, or in connection with, the Judgment and/or this Agreement. MGP shall bear any administrative, court expense(s), or other fees related to the release or withdraw of the funds on deposit with the registry of the Court. ARTICLE 7. RELEASE OF CLAIMS 7.01 The releases set forth in this article are iii addition to and cumulative of the releases set forth in any part of this Agreement; 7.02 The City hereby fully and finally RELEASES, ACQUITS, AND FOREVER DISCHARGES 170 Sweetwater, Centurion, and MGP, and the City further covenants not to assert in any manner against any of such Persons, any and all actual or potential claims held by POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 9 of 17 the-Cit-y-agaiiist-any-of them;-ant-1/or-any-suits,-de—mandsrcauses-o-f-aetian�char-ges�ai-grievances of any kind or character whatsoever, known or unknown, accruing prior to the signing of this Agreement for or because of any matter done, omitted, or suffered to be done by any such party hereto prior to and including the Effective Date, and in any manner (whether directly or indirectly) arising from or related to the Lawsuit. 7.03 170 Sweetwater, Centurion, and MGP, (collectively, "Releasing Parties"), hereby fully and finally, jointly and separately, RELEASE, ACQUIT, AND FOREVER DISCHARGE the City and its Representatives and Entities, and each of said Releasing Parties further covenants not to assert in any manner against the City or its Representatives or Entities released hereby, any and all actual or potential claims held by any of said Releasing Parties against the City, and/or any suits, demands, causes of action, charges, or grievances of any kind or character whatsoever, known or unknown, accreting prior to the Effective Date for or because of any matter done, omitted, or suffered to be done by any such party hereto prior to and including the Effective Date, and in any manner (whether directly or indirectly) arising from or related to the Lawsuit. ARTICLE 8. DELIVERY OF NOTICE 8.01 Unless modified in a subsequent duly -authorized and signed writing from a Party changing their own delivery address and delivering said change of address in accordance with this article to all other Parties, the respective addresses for delivery of any notices, documents, or items required under this Agreement to be delivered by one party to another are as follows: if to the City: Attn: City Manager City ofAntia 111 N. Powell Parkway P.O. Box 776 Aima, TX 75409 POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 10 of 17 with a copy to: Attn: Clark McCoy Wolfe, Tidwell & McCoy, LLP 2591 Dallas Parkway, Suite 205 Dallas, Texas Frisco, Texas 75034 Zf to Centurion, 170 Sweetwater, or MGP: Attn: Mebrdad Moayedi Centurion American Custom Homes, Inc. / 170 Sweetwater Crossing, LP 1221 N. 1H 35-E Suite 200 Carrollton, TX 75006 with a copy to; Attn: C. Gregory Shamoun Shamoun & Norman, LLP Four Hickory Centre 1755 Wittington Place Suite 200, LB25 Dallas, Texas 75234 8.02 All deliveries required under this Agreement must be sent either by certified U.S. mail, return receipt requested or by overnight delivery by a nationally recognized overnight delivery company, and the date of delivery shall be deemed to be: (1) if mailed, three days after deposit of the item with proper postage with the United States Postal Service; or (2) if sent overnight delivery, upon actual receipt. ARTICLE 9. MEDIATION 9.01 Any and all controversies arising out of or relating to the validity, interpretation, enforceability, or performance of this Agreement shall first be submitted to non-binding mediation, except that this requirement shall become null and void if any Party seeks mediation by giving all of the other Party(ics) written notice requesting cooperation in scheduling same and POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 11 of 17 i the_mediation-doesnot-occu"uithin--60_days-of-such_wntten reciuest-lue_to no fault_oLthe Party I seeking mediation. Parties. 9.02 All mediation fees and related expenses shall be borne equally amongst the ARTICLE 10. CONFLICTS 10.01 The Parties agree that in the event of any conflict between the terms of the Judgment, and the terms of the Facilities Agreement, the terms of the Judgment shall control the rights and obligations as between the Parties and their respective Representatives, Entities and Derivative Claimants, 10.02 The Parties finther agree that in the event of any conflict between the terms of this Agreement and the terms of the Judgment, the terms of this Agreement shall control the rights and obligations as between the Parties and their respective Representatives, Entities and Derivative Claimants. ARTICLE 11. MISCELLANEOUS 11.01 Express Denial of Liabilities. The City and Centurion Defendants understand mud agree that by entering into this Agreement, they do not admit, expressly or impliedly, liability to the other party with any and all such liability expressly dewed. 11.02 Severability. If any one or more of the provisions of this Agreement, or the application of any such provision to any person, entity, or set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent at any time, the remainder of. this Agreement, and the application of such provision to persons, Entities, or circumstances other than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected, and shall continue to be enforceable to the fullest extent permitted by law. Any invalid, POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 12 of 17 11 valid, lawful, and enforceable in a manner consistent with the intentions of the Parties hereto regarding such provision. 11.03 Entire Aareement of the Parties. This Agreement constitutes the entire agreement and understanding of the Parties with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and understandings related to the subject matter hereof, that notwithstanding this article or anything to the contrary in this Agreement or the Judgment, it is the intent of the City and Centurion Defendants that this Agreement only modifies the terns of the Facilities Agreement to the minimum extent necessary to effect the express terms herein providing for the disposition of past and future Road Capital Improvements Fees, and the remainder of the provisions of the Facilities Agreement shall be unaltered by this Agreement. Otherwise, no representations, warranties, recitals, covenants, or statements of intention have been made by, or on behalf of, any party hereto which is not embodied in this Agreement, and no party hereto shall be bound by, or liable for, any alleged representation, warranty, recital, covenant, or statement of intention not so set forth. All the terms, provisions, conditions, covenants, warranties, recitals, and statements of intention in this Agreernent shall be binding upon, inure to the benefit of, and be enforceable by the Parties. This Agreement shall not be construed in favor of or against any of the Parties hereto, regardless of which party initially drafted it. This Agreement was reached through arms -length negotiations by the Parties and their respective counsel and it represents a fugal, mutually -agreeable compromise. To the extent that this article and Article 10 are in conflict, Article 10 shall govern. POST -JUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 13 of 17 11.04 Governing Law and Venue, This Agreement shall be construed in accordance with the governing laws of the State of Texas. The obligations of the Parties are performable and venue for any legal action arising out of this Agreement shall lie in Collin County, Texas, 11.05 Binding Agreement, Each of the Parties understands and agrees that by their respective execution hereof, the terms of this Agreement are binding upon them and upon all of their respective Representatives and Entities. Each of the Parties executing this Agreement further represents and warrants to each and all of the other Parties that their execution of this Agreement evidences that they have approved of all of the terms, conditions and covenants of this Agreement, 11.06 FULL UNDERSTANDING, EACH PARTY WARRANTS THAT SUCH PARTY HAS READ THIS AGREEMENT AND RELEASE AGREEMENT AND FULLY UNDERSTANDS IT. EACH PARTY WARRANTS THAT SUCH PARTY IS OF LEGAL COMPETENCE OR LEGAL CAPACITY, AND IS FREE, WITHOUT DURESS, TO EXECUTE THIS AGREEMENT AND RELEASE AGREEMENT, AND THAT SUCH PARTY HAS DONE SO OF FREE WILL AND ACCORD, WITHOUT RELIANCE ON ANY REPRESENTATION OF ANY KIND OR CHARACTER NOT EXPRESSLY SET FORTH HEREIN. 11.07 Execution and Effective Date, This Agreement may be signed in counterparts, and each counterpart shall constitute an original and all of which together shall be deemed to be one and the same instrument, The Parties hereto have executed this Agreement on the dates set forth under their names, This Agreement shall not be effective until it has been fully executed by each of the Parties and said executed document has been delivered to the City, the date upon which the City receives the last executed signature being the "Effective Date." POST-FMG114ENT SETTLEMENT AND RELEASE AGREEMENT Page 14 of 17 i C Y OF ANNA TEXAS By:Philip S de s, City Manager, as Jauthorized representat• e o to City of Anna, Texas Dated: , 2012 i r BEFORE ME, the undersigned authority, on this day personally appeared PHILIP SANDERS, City Manager, on behalf of City of Anna, Texas, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Philip Sanders. I have read the foregoing instrument, and I fully understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS THE DAY OF 2012. 4prtY PUS 1 G Natha J Wilkison *i My Commission Expires 11113/2013 No ry Public — � tate of Texas POST RMGMENT SET MEMENT AND RELEASE AGREEMENT Page 15 of 17 r MGP ACQUISITIONS, L.P. By: MMM VENTURES, LLC, its general partner, By: 2M Moldings, LP, its member, By: 2M Ventures, LLC By: Mehrdad Moayedi,��its nnmanaging member Dated: 92012 )3EFORE the ndersigned authority, on this day personally appeared on behalf of MGP ACQUISITIONS, LP, known to me to be the person whose name is ubsexibed to the foregoing instrument, and acknowledged to me that: "My name is Mehrdad Moayedi. I have read the foregoing instrument, and I frilly understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIVEN UNDER MY HAND AND SEAL OF OF ICE THIS THE° DAY OF S� at 2012. Nota(,y P blic — Sta e of TexaU Y PtLg�� LAURA L 1NAYLAND My Commission Expires July 14, 2016 9 POSTJUDGMENT SETTLEMENT AND RELEASE AGREEMENT Page 16 of 17 CENTURION AMERICAN CUSTOM HOMES, INC. By: Mohrdad Moayedi, its President Dated: , 2012 BEFORE ME, the undersigned authority, on this day personally appeared Mehrdad Moayedi, on behalf of Centurion American Custom Homes, Inc. d/b/a Centurion American Development Group, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Mehrdad Moayedi. I have read the foregoing instrument, and I fully understand its content. I represent it to be a fact that the statements contained therein are tike and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIVEN UNDER MY HAND AND SEAL OF ICE THIS THE -(Z) DAY OF 012. LAURA L WAYLAN I Notary P iblic — State of Toxa My Commission Expires July 14, 2016 �A t F O IE Fy _o .- �►-'"�`� "170 SWEETWATER CROSSING, LP By: 170 Sweetwater Crossing, GP, LLC By: Mehrdad Moayedi, its managing member Dated: , 2010 BEFORE ME, the undersigned authority, on this day personally appeared Mehrdad Moayedi on behalf of 170 Sweetwater Crossing, LP, loiown to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that: "My name is Meludad Moayedi. I have read the foregoing instrument, and I folly understand its content. I represent it to be a fact that the statements contained therein are true and correct, and that I have signed the same freely and voluntarily, and execute the same for the purposes and consideration therein expressed and none other." GIN ER MY HAND AND SEAL OF 0 ' E THIS THE DA OF 2012, VF LAURA L WAYLAND (klllol� P My Commission Expires Notar Pu lic — State of TexasU July 14, 2016 GMENT SETTLEMENT AND RELEASE AGREEMENT Page 17 of 17 r CITY OF ANNA, TEXAS, Plaintiff, VA 71 d7139VA1 S A11 -Ry I ;L CAUSE NO. 00288-2009 WALMAT, INC., 170 SWEETWATER CROSSINQ LP, CENTURION AMERICAN CUSTOM HOMES, INC, d/b/a CENTURION AMERICAN DEV. GROUP, and JAMES M. BONEY, Individually, Defendants, V. MGP ACQUISITIONS, LP, Intervenor. M IN THE DISTRICT COURT OF COLLIN COUNTY, TEXAS 429`x' JUDICIAL DISTRICT ORDER GRANTING MOVANTS' MOTION FOR SUMMARY JUDGMENT On this &day of July, 2012, came for consideration Defendants 170 Sweetwater Crossing, L.R's ("170 Sweetwater") and Centurion American Custom Homes, Inc.'s ("Centurion"), and Intervenor MGP Acquisitions, LP's ("MGP") (collectively, as "Movants") evidentiary and no -evidence Motion For Summary Judgment (the "Motion") in the above -styled and numbered cause. The Court has considered the foregoing Motion, the papers submitted in favor of and in opposition to the Motion, the pleadings on file, the arguments of counsel, and the applicable authorities, Being so informed, the Court is of the opinion that Movants' Motion for Summary Judgment should be, and hereby is, GRANTED, in all respects. IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Movants' evidentiary Motion for Summary Judgment is hereby GRANTED, IT IS THEREFORE ORDERED, ADJUDGED, DECREED and (1) Walmat sold and conveyed the 192 single-family Sweetwater Crossing Development, City of Anna, Te Walmat's rights to and interests in that certain Facilities the above -styled and numbered cause; GRANTING MOVANTS' MOTION FOR SUMMARY JUDGMENT PAGE I OF 3 ".11:1111 (2) All rights to and interests in that certain Facilities Agreement the subject of the above -styled and numbered cause, including any "Development Fees," as defined therein, that have been or will be collected by Plaintiff City of Anna, Texas, have been assigned to the respective grantee, run with the subject property, and inure to the benefit of the respective grantee; and (3) MGP, as ultimate grantee and owner of the 104 single-family lots located within the Sweetwater Crossing Development, specifically, BLOCK A, LOTS 26-27; BLOCK D, LOTS 9-17; BLOCK F, LOTS 35-37; and BLOCK A, LOTS 1-20; BLOCK B, LOTS 1-7; BLOCK C, LOTS 1-7, 21-31; BLOCK D, LOTS 1-3; BLOCK F, LOTS 8-34; BLOCK G, LOTS 1-15, the only lots located within the Sweetwater Crossing Development which were finished -out, and, consequently, the only lots upon which "Development Fees" have been and will be collected by the Plaintiff City of Anna, Texas, is alone entitled to any "Development Fees" that have been or will be collected by Plaintiff City of Anna, Texas. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that MGP is entitled to and shall recover all "Development Fee" funds which have been deposited by Plaintiff City of Anna, Texas into the registry of the Court in the above -styled and numbered cause. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Collin County iK w'^l' a wi 6w�- �u r,•t(� e Kl sS� District Clerk shall release the funds, . , previously deposited by Plaintiff City of Anna, Texas into the registry of the Court in the above -styled and numbered cause, to be payable in full to MGP Acquisitions, LP. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above-described funds shall be delivered by the Collin County District Clerk to MGP Acquisitions, LP as soon as reasonably practicable. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that all "Development Fees" associated with the Sweetwater Crossing Development, City of Anna, Texas, which will be collected by the Plaintiff City of Anna, Texas, shall be tendered and made payable to MGP Acquisitions, LP, or to its assignees, at 1221 North I-35 East, Suite 200, Carrollton, Texas 75006, ORDER GRANTING MOVANTS' MOTION roR SUMMARY JUDGMENT PAGE 2 or 3 or at different location as designated by MGP Acquisitions, LP in writing to Plaintiff City of Anna, Texas. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Intervenor MGP Acquisitions, LP shall have and recover from Defendant Wal -Mat, Inc,, the total amount of FIFTY ONE THOUSAND THREE HUNDRED EIGHTY FIVE DOLLARS AND 55/100 ($51,385.55), representing the reasonable and necessary attorneys' fees and costs incurred by MGP in this matter through the date of judgment, IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants Walmat, Inc, take nothing by way of any of its claims, counterclaims, or cross-claims asserted in the above -styled and numbered cause, and all such claims are hereby DISMISSED, with prejudice. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Intervenor MGP Acquisitions, LP shall have and recover against Wal -Mat, Inc, all costs, fees, and expenses, including attorneys' :Fees, incurred by MGP in the enforcement of this Order. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Order finally disposes of all parties and all claims in the above -styled and numbered cause, and is a final appealable judgment. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all relief requested in this case not expressly granted is DENIED. SIGNED on this day of July, 2012, PRESIDI JUDGERw��'=tC`�' Cpddd STATE OF TEXAS ) 3' COUNTY OF COLL(N) 1, Andrea Stroh Thompson ' :'ret Clerk in and for Collin County r doM by :e ;fr,n tt r .i •• ;a+ti} is a true and comet copy, ori n c ner rs "I , a„ .m • �c a file to the Diitrict { 4 Col in ', nt.. ;r' s r �: nd seat of said Court, this the y ' r1t , �'�'•..Il ..•ril�i�� y4�� ORDER GRANTINO MOVANTS' MOTION FOR SUMMARY JUDGMENT rr+ r i a yr r Y a r AG OP