HomeMy WebLinkAboutRes 2010-04-09 SHG Land Investments Settlement Agreement.pdfCITY OF ANNA, TEXAS
RESOLUTION NO. 2010-04-09
A RESOLU"nON OF THE CITY OF ANNA, TEXAS, AUTHORIZING SETTLEMENT OF
THE LITIGATION STYLED SHG LAND INVESTMENTS OF ANNA FIVE, LTD. V.
LENNAR HOMES OF TEXAS LAND & CONSTRUCTION, LTD., HLL LAND
ACQUISITIONS OF TEXAS, L.P., LENNAR HOMES OF TEXAS INC., & LENNAR
TEXAS HOLDING COMPANY CAUSE NO. 366-00970-2008 FILED IN THE 366TH
DISTRICT COURT, COLLIN COUNTY, TEXAS; APPROVING THE SETrLEMENT OF
ALL CLAIMS, CAUSES OF ACTIONS AND DISPUTES IN SAID LAWSUIT;
AUTHORIZING THE CITY MANAGER'S EXECUTION OF THE SETTLEMENT
AGREEMENT; AUTHORIZING "rHE CITY MANAGER AND THE ATTORNEYS OF
WOLFE, TIDWELL & McCOY, LLP AND JAMES T. JEFFREY, JR. TO ACT ON THE
CITY'S BEHALF IN EXECUTING ANY AND ALL DOCUMENTS AND TO TAKE
OTHER ACTIONS NECESSARY TO FINALIZE THE FULL SETTLEMENT OF SAID
LAWSUIT.
WHEREAS, the City Council ("Council") of the City of Anna, Texas ("City") recognizes
that SHG Land Investments of Anna Five, Ltd. ("SHG") filed a lawsuit against the City
and other defendants for dispute over a drainage issue; and
WHEREAS, the City Council recognizes that the Parties to the above-referenced
lawsuit desire to settle the matter and have reached a Mutual Release and Settlement
Agreement ("Agreement"); and
WHEREAS, the City Council recognizes that the Agreement between the Parties
resolves all remaining claims, causes of actions and disputes in the above-referenced
lawsuit and it should be approved and the City Manager's execution of same should be
authorized and approved, as set forth herein.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ANNA, TEXAS:
Section 1. The recitals set forth above are incorporated herein by reference as if fully
set forth for all purposes.
Section 2. The Agreement settling all claims, causes of actions and disputes of the
litigation styled Anna Five, Ltd. V. Lennar Homes Of Texas Land & Construction, Ltd.,
HII Land Acquisitions Of Texas, LP., Lennar Homes Of Texas Inc., & Lennar Texas
Holding Company Cause No. 366-0097()"2008 Filed In The 366th District Court, Collin
County, Texas is hereby approved and the City Manager's execution of the Agreement
is hereby authorized and approved.
Res. 201 ().()4..()9 Settlement Agreement SHG Land Investments.doc Page 1012 04-27-10
Section 3. The City Manager and attorneys at Wolfe, Tidwell & McCoy, LLP and
..lames T. Jeffrey, ..Ir. are hereby authorized to execute all documents in a form
approved by attorneys at Wolfe, Tidwell & McCoy, LLP and to take all other actions
necessary to finalize, act under, and enforce the Agreement.
PASSED AND APPROVED by the City Council of the City of Anna, Texas this the 27th
day of April, 2010.
Res. 2010-04-09 Settlement Agreement SHG Land Investments.doc Page2of2 04-27·10
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (the "Agreement") is entered into by and
between SHG Land Investments of Anna Five, Ltd. ("SHG") and Lennar Homes of Texas Land
& Construction, Ltd., HLL Land Acquisitions of Texas, L.P., Lennar Homes of Texas, Inc.,
Lennar Texas Holding Company (the "Lennar Entities") and the City of Anna, Texas ("City")
and Tim Morris, P.E. ("Morris") for the mutual considerations and purposes herein expressed. In
this Agreement SHG, the Lennar Entities, the City and Morris may sometimes collectively be
referred to as "the Parties."
I.
RECITALS
1.01 SHG is the owner of a parcel ofland along CR 376 in the City of Anna, Collin
County, Texas ("SHG's Property").
1.02 The Lennar Entities developed a residential community on land across CR 376
from SHG's Property called North Pointe Crossing ("North Pointe").
1.03 As part ofthe development of North Pointe, the Lennar Entities constructed
certain drainage improvements along SHG's side ofCR 376 ("Drainage Improvements").
1.04 SHG subsequently sued the Lennar Entities, the City, Morris and others in a
lawsuit styled SHG Land Investments ofAnna Five, Ltd v. Lennar Homes of Texas Land &
Construction, Ltd., et al; Cause No. 366-00970-2008 in the 366th Judicial District Court, Collin
County, Texas (the "Lawsuit") claiming the construction of the Drainage Improvements caused
MUTUAL RELEASE AND SETILEMENT AGREEMENT PAGE 1
damage to SHG and alleging causes of action for trespass, private nuisance, negligence,
violations ofthe Texas Water Code, inverse condemnation and other claims (the "Claims").
1.05 Without admitting or conceding any liability, and to avoid the cost and
uncertainty of further litigation, the Parties have reached an agreement to fully and finally settle
any and all Claims and/or Disputes among them on the terms set forth herein.
1.06 Each Party represents that they are the full owners of the claims, demands, causes
of action, and rights that are being released herein and that they have not transferred, assigned, or
otherwise encumbered any such claims or any part thereof to any other person or entity.
II.
TERMS
The Parties agree to the following terms and conditions:
2.01 Settlement Payment. The Lennar Entities, the City and Morris shall pay to
SHG the total sum of $134,200.00 as follows: the Lennar Entities shall pay $119,200.00, the City
shall cause to be paid $10,000.00, and Morris shall pay $5,000.00. The settlement checks will be
payable to "SHG Land Investments of Anna Five, Ltd. and its counsel, Broude, Smith &
Jennings, P.C." and such checks will be delivered to counsel for SHG within fifteen (15) days of
the Parties' execution of this Agreement. The payments referenced herein shall constitute
compensation for the granting of an easement (see 2.02) and reimbursement of SHG' s costs and
expenses from the Lawsuit.
2.02 Easement. In exchange for the payments referenced above, SHG shall grant
an easement to the City described in the attached Exhibit "A" (the "Easement"). The Easement:
(i) shall be granted to the City in perpetuity, (ii) shall run with the land, (iii) shall be cumulative
MUTIJAL RELEASE AND SETTLEMENT AGREEMENT PAGE 2
of any existing prescriptive easement(s), and (iv) shall include access and maintenance rights and
obligations.
2.03 Additional Considerations. SHG is not obligated to use the Settlement
Payment(s) to repair, replace or otherwise modify the existing Drainage Improvements, and
future proposed development plans may incorporate the existing Drainage Improvements subject
to any required approvals or standards under law or ordinance in effect on the date following this
Agreement that a preliminary plat is submitted to the City for the development of any part of the
land referenced herein as "SHG's Property". The City will not require SHG or its successors or
assigns to perform any such modifications to the existing drainage improvements prior to such
preliminary plat being submitted to the City. In the event the City fails to abide by this covenant,
the Lennar Entities will hold SHG harmless from such required pre-development modifications.
TIl.
MUTUAL RELEASE
3.01 Subject to compliance with the terms set forth in Section II, the Parties, on behalf
of themselves, their heirs, assigns, and successors will release, acquit, and forever discharge each
other, their officers, parent companies, subsidiaries, partners, agents, employees, directors,
owners, retained experts, insurers, self-insurance funds or pools and attorneys (the "Releasees")
from all claims, demands, or causes of action of any kind or character relating to the Claims, the
Drainage Improvements, or any claims that were asserted or that might have been asserted by any
Party in the Lawsuit, subject to the exceptions in the following sentence. This will be a general
release by the Parties intended to cover all claims, cross-claims, counter-claims, causes of action,
and damages which the Parties may now have against each other or that hereinafter may arise in
MUTUAL RELEASE AND SETTLEMENT AGREEMENT PAGE 3
the future, whether known or unknown, and whether sounding in contract, tort, statute, or
common law, except for performance under this Agreement or any existing development
agreement(s) between the City and any of the Lennar Entities-or their predecessors, successors
or assigns-to the extent any such agreement(s) is not in conflict with this Agreement. Subject to
the foregoing, it is the intent of the Parties to retain no claims whatsoever against each other.
3.02 Dismissal. Upon the execution of this Agreement and the receipt of the
Settlement Payment(s), SHO will dismiss the Lawsuit with prejudice as to the Lennar Entities, the
City and Morris. SHO will dismiss the Lawsuit without prejudice as to Eric L. Davis
Engineering, Inc. and Midcrest Development, Inc.
IV.
GENERAL PROVISIONS
4.01 Effective Date. This Agreement shall not take effect nor bind the Parties until the
date that the last Party signs the Agreement, said date to be deemed the effective date upon which
this Agreement shall be binding on all parties to this Agreement.
4.02 Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Texas.
4.03 Preparation of Agreement. This Agreement is a result of substantial
negotiations between the Parties and their respective counsel. Accordingly, the fact that counsel
for one of the Parties may have drafted this Agreement shall be immaterial to the construction of
this Agreement. The Parties represent that they have at all times, including the decision to enter
into this Agreement, acted under the advice of their counsel, and that they have had the
opportunity to review this Agreement with their counsel.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT PAGE 4
4.04 Acknowledgment of Entire Agreement. The Parties acknowledge that they
have carefully read this instrument, including all documents, and exhibits to which it refers. This
instrument expresses the entire agreement between the Parties concerning the subjects it purports
to cover, with the sole exception of the agreements expressly referenced as being excepted in
Section 3.01 of this Agreement, and all prior negotiations and agreements pertaining to the
subject matter hereof are null and void and of no force and effect whatsoever. The Parties have
executed this instrument of their own accord. The terms hereof are contractual, not merely
recital, and may be enforced as such. No change, waiver, or discharge of all or any part of this
Agreement or any of the exhibits hereto shall be valid unless in writing and duly executed by the
Parties, or a duly authorized representative of such Party, against whom such change, waiver, or
discharge is sought to be enforced.
4.05 Multiple Originals. This instrument is executed in multiple originals and shall
be enforceable as if signed as one instrument.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT PAGE 5
V.
SIGNATURES
SHG, the Lennar Entities, the City and Morris have caused this Agreement to be executed
on the dates indicated below.
The remainder ofthis page intentionally left blank.
MUTIJAL RELEASE AND SETrLEMENT AGREEMENT PAGE 6
-------
SHG LAND INVESTMENTS OF ANNA FIVE, LTD.
By: Dated:
Its:
Acknowledgment
THE STATE OF TEXAS §
§
COUNTY OF §
BEFORE ME, the undersigned authority on this date personally appeared
______________" known to me to be the person who executed the
foregoing instrument and acknowledged to me that he/she executed it for the purposes and
considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of ___ 201O.
Notary Public
(Seal)
MUTUAL RELEASE AND SETTLEMENT AGREEMENT PAGE 7
------
LENNAR HOMES OF TEXAS LAND & CONSTRUCTION, LTD.
HLL LAND ACQUISITIONS OF TEXAS, L.P.
LENNAR HOMES OF TEXAS, INC.
LENNAR TEXAS HOLDING COMPANY
By: Dated:
Its:
Acknowledgment
THE STATE OF TEXAS §
§
COUNTY OF §
BEFORE ME, the undersigned authority on this date personally appeared
__-:-----:-_______-:-_' known to me to be the person who executed the
foregoing instrument and acknowledged to me that he/she executed it for the purposes and
considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of 2010.
Notary Public
(Seal)
MUTUAL RELEASE AND SETILEMENT AGREEMENT PAGES
THE CITY OF ANNA. TEXAS
Acknowledgment
THE STATE OF TEXAS §
§
COUNTY OF CD 1/,;., §
BEFORE ME. the undersigned authority on this date personally appeared Philip Sanders.
known to me to be the person who executed the foregoing instrument and acknowledged to me
that he/she executed it for the purposes and considerations therein expressed.
~
GIVEN UNDER MY HAND AND SEAL OF OFFICE this Jiaay of Aft;J 2010.
,,~w:)f..~ Natha J WilkilOl1
*i i * My CommilliOn Expires ~JIi; It/~'~o/~ 11/1312013 Not ry Public 7
(Seal)
MUTIJAL RELEASE AND SETTLEMENT AGREEMENT PAGE 9
------
TIM MORRIS, P.E.
By: Dated:
Acknowledgment
THE STATE OF TEXAS
COUNTY OF
§
§
§
BEFORE ME, the undersigned authority on this date personally appeared TIM MORRIS,
known to me to be the person who executed the foregoing instrument and acknowledged to me
that he executed it for the purposes and considerations therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _ day of 2010.
Notary Public
(Seal)
MUTIJAL RELEASE AND SETTLEMENT AGREEMENT PAGE ]0
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF COLLIN §
PERMANENT DRAINAGE EASEMENT
DATE:
GRANTOR:
GRANTOR'S MAILING ADDRESS (including County):
GRANTEE: City of Anna, Texas, a municipal corporation
GRANTEE'S MAILING ADDRESS:
City of Anna, Texas
Attn: City Manager
101 N. Powell Parkway
Anna, Texas 75409
CONSIDERATION: Ten Dollars ($10.00) and other good and valuable consideration paid by Grantee,
the receipt and sufficiency of which is hereby acknowledged by Grantor.
PERMANENT DRAINAGE EASEMENT: The real property over, across, and under which this Permanent
Drainage Easement (this "Easement") is granted-said real property being referenced herein as the
"Easement PropertyD-is more particularly described in the attached Exhibit A, said exhibit being
incorporated herein by reference as if set forth in full.
Under this Easement, Grantor-for the consideration stated herein and other good and valuable
consideration, the receipt and sufficiency of which Grantor acknowledges-hereby grants, sells, and
conveys to Grantee, an exclusive, perpetual easement for the construction, installation, reconstruction,
excavation, operation, maintenance, replacement, alteration, upgrade, repair, inspection, abandonment,
removal and other associated uses for purposes of conveying drainage over, across, and under Grantor's
property. This Easement includes but is not limited to all incidental underground and aboveground
attachments, equipment and appurtenances, including, but not limited to manholes, drainage pipelines,
junction boxes, and other drainage facilities and appurtenances. This Easement further grants rights of
ingress and egress over Grantor's adjacent property when necessary to accomplish the purposes of this
Easement. However, at all times after engaging in construction, installation, reconstruction, excavation,
operation, maintenance, replacement, alteration, upgrade, repair, inspection, abandonment, removal and
other associated uses of the Easement, Grantee will restore the surface of the Easement Property as
close to the condition in which it was found before such work was undertaken as is reasonably
practicable, except for trees, shrubs and structures within the Easement that were removed as a result of
such work.
PERMANENT DRAINAGE EASEMENT Page 1 of3
Except as set forth below, in no event shall Grantor: (1) use or permit the use of the Easement Property in
any manner which interferes in any way or is inconsistent with the rights granted hereunder; or (2) erect
or permit to be erected within the Easement Property any structure, building, or other improvements
including but not limited to obstructions, signs, billboards, fences, pipelines or walls without the written
consent of the Grantee. Further, in no event shall Grantor use or permit the use of Easement Property in
any manner which is not in compliance with applicable laws, rules, or regulations.
Grantor shall all at times retain the right to pass back and forth across the easement on foot or in
vehicles, to install drives across the easement for access to and from Grantor's property, and to cross the
easement with utilities necessary to the development of Grantor's property so long as any such use does
not interfere with Grantee's use and maintenance of the Easement.
Grantor, for the consideration stated herein and other good and valuable consideration, further conveys
and grants to Grantee the right and power to clear and keep clear all trees, roots, brush, vines,
overhanging limbs and other obstructions from the surface and subsurface of the Easement Property.
This Easement together with other provisions of this grant shall constitute a covenant running with the
land for the benefit of the Grantee, its successors, and assigns. The Grantor covenants that it is the
owner of the Easement Property and the property adjacent thereto, and that said lands are free and clear
of all encumbrances and liens except the following: mortgage liens and other encumbrances of record
(the "Liens").
This Easement is cumulative of and in no way negates, diminishes, or otherwise modifies or affects any
prescriptive easement(s) or prescriptive right(s) held by Grantee now, in the past, or in the future.
TO HAVE AND TO HOLD this Easement, together with all and singular the rights and appurtenances
thereto in any way belonging unto Grantor, and Grantor' successors and assigns forever; and subject to
the Liens, Grantor does hereby bind itself and its heirs, executors, personal representatives, successors
and assigns to warrant and forever defend all and singular this Easement unto Grantee, against every
person whomsoever lawfully claiming or to claim the same, or any part thereof by, through or under
Grantor, but not otherwise.
GRANTOR:
(name)
ACKNOWLEDGEMENT
STATE OF TEXAS
COUNTY OF COLLIN
§
§
§
BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day
personally appeared , of SHG Land Investments of Anna Five Ltd., a Texas
limited partnership, known to me to be the same person whose name is subscribed to the foregoing
instrument and acknowledged to me that he/she executed the same for the purposes and consideration
therein expressed, as the act and deed of SHG Land Investments of Anna Five Ltd., a Texas limited
partnership, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ___day of
PERMANENT DRAINAGE EASEMENT Page 2 of3
____________, 2010.
Notary Public, State of Texas
AFTER RECORDING. PLEASE RETURN TO:
City of Anna
P.O. Box 776
Anna, Texas 75409-0776
Attn: Maurice Schwanke
PERMANENT DRAINAGE EASEMENT Page 30f3
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SHG LAND ItN!S1UEN1'S
OF ANNA F'NE LTO. ~
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J.C. BRANTLEY SURVEY. ABSTRACT NO. 114! EXHIBIT A -IlBAlNAGE EASEYENT
z 0.194 ACRES
1M J.C. BRANTLEY SURVEY
~O~ ABSTRACT NO. 114
5l COLLIN COUNTY. TEXAS
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CCMMENaNG
NOTE: BASIS OF BEARINGS ARE DERIVED
FROM 1HE PLAT OF NORlHPOINlE CROSSING
PHASE ONE, AN ADDll10N TO lHE aTY OF
ANNA. COWN COUNTY. TEXAS ACCORDING TO
1HE PLAT lHEREOF RECORDED IN OmaAl
PUBUC RECORDS OF COWH COUNTY. 'tEXAS
FlU: , 2008 12080
CALLED 5.00 ACRES
OSC 1I!1..ECOI4 LP.c.c.c.F. NO. t7-0002873
ROBERT WHITAKER SURVEY. ABSTRACT NO. 1011
-POINT FOR CORNER
CCWN COUNTY Cl£RI( FIlE
VI1R£ FENCE
CHAIN UN!( FENCE
RlOHT OF WAY
S02"S4'2O.ext
EX. DITCH CL
Sean Patton
Registered Professional Land Surveyor
No. 5660
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EXHIBIT"A"
DRAINAGE EASEMENT
BEING a tract ofland located in the J.C. BRANTLEY SURVEY, ABSTRACT NO. 114. Collin
County, Texas and being part ofa tract of land described in Deed to SHG LAND
INVESTMENTS OF ANNA FIVE LTD .• COUNTY CLERK. FILE NO. 2006-000707160,
COLLIN COUNTY, TEXAS and being more particularly described as follows:
COMMENCING at the northwest corner of a tract of land called 5.00 acres DSC TELECOM.
L.P., according to the document filed of record in COUNTY CLERK FILE NO. 97-0002873,
COLLIN COUNTY, TEXAS;
THENCE South 02 degrees 54 minutes 05 seconds West, a distance of 469.25 feet to the most
northerly northwest point of the above mentioned SHG Land Investments of Anna Five Ltd. tract
for the POINT OF BEGINNING:
THENCE South 87 degrees 15 minutes 40 seconds East, with the north line of the above
mentioned tract, a distance of484.88 to a point for corner;
THENCE South 02 degrees 54 minutes 05 seconds West, leaving said north line, a distance of
20.00 feet to a point for corner;
THENCE North 86 degrees 40 minutes 01 seconds West, over and across the above mentioned
SHG Land Investments of Anna Five Ltd. tract, a distance of484.06 feet to a point for corner;
THENCE North 00 degrees 15 minutes 01 seconds West, a dis.e of 15.00 feet to the POINT
OF BEGINNING and containing 0.194 acres ofland, more or less.
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