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HomeMy WebLinkAboutResolution No. 09-077 RESOLUTION NO. 09-077 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE SETTLEMENT AND RELEASE AGREEMENT BY AND BETWEEN WYNNWOOD PENINSULA PARTNERS, L.P., THE CITY OF FRISCO, TEXAS, AND THE CITY OF THE COLONY, TEXAS, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT 1; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, Wynnwood Peninsula Partners, L.P., ("WPP") are the owners of the property described as 40.29 acres of land located near Lebanon Road and Old Boyd Road in Denton County and being more particularly described in Exhibit A (the "Property") to the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1 (the "Agreement"); and WHEREAS, a dispute has arisen by and between the Parties hereto concerning whether the Property is located in the City of Frisco's ("Frisco") extraterritorial jurisdiction or the City of The Colony's (The Colony") extraterritorial jurisdiction; and WHEREAS, as a result of said dispute, on June 16, 2009, WPP filed suit against Frisco in Cause No. 2009-50183-367 in the 367th Judicial District Court of Denton County, Texas and The Colony intervened in the said suit; and WHEREAS, each of the Parties hereto desire to settle the disputes between them as set forth in the Settlement and Release Agreement ("Agreement"), which is attached hereto and incorporated herein as Exhibit 1, including all the exhibits attached thereto; and WHEREAS, the City Council hereby approves the terms and conditions of the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1, and authorizes the Mayor to execute such Agreement on behalf of the City of The Colony. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The City Council hereby approves the terms and conditions of the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1, by and between Wynnwood Peninsula Partners, L.P., the City of Frisco, Texas, and the City of The Colony, Texas and hereby authorizes the Mayor to execute the same. Section 2. This Resolution shall become effective immediately from and after its passage, as the law and charter in such cases provides. Page 1 TM 39468.76.092809 PASSED, APPROVED and EFFECTIVE this 20th day of October, 2009. G J McCo , Mayor ity of T e Colony, Texas ATTE : Vrist''e Wilson, City Secretary, City of The Colony, Texas APPR VE AS RM: Robert E. Hager, C' Attorney w City of The Colony, Texas (REH/cdb) Page 2 TM 39468.76.092809 SETTLEMENT AND RELEASE AGREEMENT THIS SETTLEMENT AGREEMENT AND RELEASE (this "Agreement") is entered into by Wynnwood Peninsula Partners, L.P. ("Owner"), the City of Frisco, Texas ("Frisco"), and the City of The Colony, Texas ("The Colony'). Owner, Frisco, and The Colony are collectively referred to herein as the "Parties" and any one of them is referred to as a WHEREAS, Owner owns two tracts of land located near Lebanon Road and Old Boyd Road in Denton County, Texas, one of which consists of approximately 40.29 acres (the "Property') and the other of which consists of approximately 4.872 acres (the "Other Property"); WHEREAS, The Property is described by metes and bounds on Exhibit A-1 WHEREAS, the Other Property is described by metes and bounds on Exhibit A-2; WHEREAS, Owner and The Colony contend that as of June 2, 2009, all of the Property was within The Colony's extraterritorial jurisdiction ("ETJ"); WHEREAS, Frisco contends that as of June 2, 2009, all of the Property was within Frisco's ETJ; WHEREAS, on June 2, 2009, Plaintiff petitioned The Colony to annex the Property into The Colony's city limits pursuant to an annexation agreement; WHEREAS, on June 2, 2009, Plaintiff submitted to The Colony a proposed Plan of Development in the form of an annexation agreement; WHEREAS, on June 16, 2009, Owner filed suit against Frisco in cause No. 2009-50183- 367 in the 367"' Judicial District Court of Denton County, Texas (the "Lawsuit") seeking, among other things, a declaration that the Property was in The Colony's ETJ and not in Frisco's ETJ, and that Frisco had no right to annex the Property; WHEREAS, The Colony intervened in the Lawsuit (the "Intervention"); WHEREAS, Frisco filed in the Lawsuit an Answer, Third Party Claims, and Counterclaims (the "Counterclaim") seeking, among other thing a temporary restraining order and preliminary injunction to prevent The Colony from annexing the Property; WHEREAS, on July 6, 2009, Owner and The Colony entered into an Annexation Agreement in the form attached as Exhibit B (the "Annexation Agreement"); WHEREAS, Frisco is not a party to the Annexation Agreement; WHEREAS, Owner and The Colony asserted that effective July 6, 2009, The Colony annexed (the "Annexation") the Property and the Other Property into the city limits of The Settlement Agreement - Page 1 DA-3054489 v14 1287522-00010 Colony by City of The Colony, Texas Ordinance No. 09-1808 and Ordinance No. 09-1809 (collectively, the "Ordinance"); WHEREAS, Frisco asserted that The Colony's purported annexation of the Property on July 6, 2009, was void and without effect; WHEREAS, the Court denied Frisco's request for a preliminary injunction in the Lawsuit; WHEREAS, there are bona fide disputes among Owner, Frisco, and The Colony concerning the claims, counterclaims, assertions, and defenses made by or against such Parties in the Lawsuit; WHEREAS, each of the Parties has made their own respective determination that it is in their best interest to settle the disputes between them as set forth in this Agreement by compromise to avoid the uncertainties, inconvenience, and expense of further litigation; NOW THEREFORE, in consideration of the recitals set forth above, the representations, agreements, and covenants contained herein, and other good and valuable consideration, the receipt, adequacy, and sufficiency of which is admitted, the Parties agree as follows: 1. This Agreement shall be effective after: (i) Frisco's City Council has approved the Agreement by a duly enacted Resolution in the form attached as Exhibit C; (ii) The Colony's City Council has approved the Agreement by a duly enacted Resolution in the form attached as Exhibit D; and (iii) the Parties exchange signatures such that each party has a fully executed copy of the Agreement and Frisco has been paid the sum set forth herein. The Parties will designate a closing date (the "Closing Date") no later than November 30, 2009. 2 Before the Closing Date, Frisco will nonsuit without prejudice all claims it has made in the Lawsuit, including the Counterclaim, and the Colony will nonsuit without prejudice all claims it has made in the Lawsuit, including the Intervention (Frisco's nonsuit and The Colony's nonsuit, collectively the "Nonsuits"). 3 After Frisco and the Colony file the Nonsuits, the only remaining claims in the Lawsuit will be Owner's claims against Frisco as set out in Owner's Original Petition and Frisco's Answer. 4. On the Closing Date, Owner shall pay to Frisco via cashier's check or wire transfer the sum of $25,000.00 (the "Settlement Payment"), and Owner and The Colony will release all claims to the cash deposit Frisco submitted to the Court in the Lawsuit and take all actions reasonably necessary to allow the cash deposit to be released to Frisco from the registry of the Court. Settlement Agreement - Page 2 DA-3054489 v141287522-00010 5. After the filing of the Nonsuits and on the Closing Date, counsel for Owner will file a Notice of Nonsuit With Prejudice in the form attached as Exhibit E and the Order of Dismissal With Prejudice in the form attached as Exhibit F. 6. As of the Closing Date, Frisco releases all jurisdictional claims to the Property and the Other Property consistent with the requirements of Texas Local Government Code Section 42.023. 7. Frisco will not challenge or seek to overturn or avoid the Annexation, the Ordinance, or any other legislative act or regulation relative to the Property or the Other Property, or encourage or assist any other person or entity in challenging or seeking to overturn the Annexation, the Ordinance, or any other legislative act or regulation relative to the Property or the Other Property. 8. The Colony acknowledges and agrees that Owner intends and has the right to develop the Property consistent with the Annexation Agreement attached as Exhibit B. 9. As of the Closing Date, Owner, Frisco, and The Colony do hereby unconditionally, fully and completely release, acquit and forever discharge one another from any and all claims, demands, actions, causes of action, suits, liabilities, damages, losses, costs and expenses whatsoever (collectively "Claims"), known or unknown, accrued or unaccrued, in law or in equity relating to the Annexation, the Ordinance and any defenses thereto, provided however, none of the Owner, Frisco, or The Colony release any rights obligations or defense created by, arising under, or reserved by this Agreement, and neither Owner nor The Colony release any rights, obligations, or defense created by, arising under, or reserved by the Annexation Agreement. The Colony and Frisco agree the Agreement does not effect in any way the Judgment awarded Frisco in the case styled, City of The Colony, Texas vs. North Texas Municipal Water District and the City of Frisco, Texas, currently pending in the Supreme Court of Texas, Cause No. 09-0069. The Parties agree that this Agreement does not affect Frisco's jurisdictional boundaries or ETJ except as specifically stated and identified in this Agreement. The Parties further agree that this Agreement does not affect the claim related to the property located within the Frisco Lakes area. 10. Owner represents and warrants that this Agreement has been approved by appropriate action of Owner, and that the individual executing this Agreement on behalf of Owner has been duly authorized to do so. 11. Frisco represents and warrants that this Agreement has been approved by the Frisco City Council in accordance with all applicable public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of Frisco has been duly authorized to do so. 12. The Colony represents and warrants that this Agreement has been approved by The Colony City Council in accordance with all applicable public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of The Colony has been duly authorized to do so. Settlement Agreement - Page 3 DA-3054489 v14 1287522-00010 13. Each party acknowledges and agrees that this Agreement is binding upon such party and enforceable against such party in accordance with its terms and conditions. Each parry warrants that any action required to be taken in order for this Agreement to be binding on it has been duly and properly taken prior to the execution of this Agreement. 14. Each party declares and represents that this Agreement contains and constitutes the entire agreement between the Parties with respect to the Claims and terminates, supersedes, and replaces any and all prior arrangements, understandings, representations, promises, inducements, or other communications, whether written or oral between the Parties related to the Claims. Each party declares and represents that no oral understandings, statements, promises, or inducements in addition to, consistent with, or contrary to the terms of this Agreement exist with respect to the Claims. This Agreement can only be amended in writing signed by all Parties hereto. 15. Each party acknowledges the contested and adversarial nature of the Lawsuit and the underlying claims in the Lawsuit, and each party acknowledges and agrees that this Agreement is being executed, and the consideration hereunder being given by each party, in settlement of disputed claims among the Parties and to avoid further trouble, litigation, hearings, discovery, expert fees, trials, costs, and expense, and that the fact of this Agreement shall not be taken in any way as an admission of fact or liability by either party. 16. The Parties agree that each will pay their own respective court costs and attorneys' fees in connection with the Lawsuit. 17 THIS SETTLEMENT AGREEMENT, ANY DISPUTES WHICH MAY ARISE IN CONNECTION WITH THE INTERPRETATION OR ENFORCEMENT OF THE SETTLEMENT AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES GENERALLY SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND WITHOUT REGARD OR REFERENCE TO CHOICE OR CONFLICT OF LAW RULES. 18. In all instances in which a party to this Agreement is required under this Agreement to do any act at a particular time or within a particular period of time, time is of the essence in the performance of such act. 19. Each party represents that such party has substantial experience in negotiating contracts, that this Agreement is the product of negotiations among the Parties, and that, therefore, no party to this Agreement shall be charged with having promulgated this Agreement. 20. This Agreement may be executed in any number of original counterparts, on separate signature pages, each and all of which shall be deemed an original for all purposes, and all of which when taken together shall constitute one instrument. The following Exhibits are attached to this Agreement and are incorporated herein for all purposes: Exhibit A-1 Metes and Bounds Legal Description of the Property Settlement Agreement - Page 4 DA-3054489 v141287522-00010 Exhibit A-2 Metes and Bounds Legal Description of the Other Property Exhibit B Annexation Agreement Exhibit C Form of Frisco Resolution Approving Agreement Exhibit D Form of The Colony Resolution Approving Agreement Exhibit E Form of Agreed Motion to Dismiss Exhibit F Form of Agreed Order of Dismissal With Prejudice Signed to be effective as of the Effective Date: Wynnwood Peninsula Partners, L.P., a Texas limited partnership By: Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company By: Matthews Holdings Southwest Inc., a Texas corporation, Sole Member and Manager By: 4-L Kristian T. Teleki Senior Vice President STATE OF TEXAS § COUNTY OF 70 § This instrument was acknowledged before me on the /_00 day of November, 2009 by Kristian T. Teleki, the Senior Vice President of Matthews Holdings Southwest Inc., the Sole Member and Manager of Wynnwood Peninsula Partners GP, LLC, the general partner of Wynnwood Peninsula Partners, L.P., on behalf of said partnership. MICHELLE L. HUN T Notary Public, State of Texas My Commission Expires Notary Public, State of Texas May 27, 2013 Settlement Agreement - Page 5 DA-3054489 v14 1287522-00010 THE CITY OF FRISCO, TEXAS By: Its: STATE OF TEXAS § § COUNTY OF COLLIN § This instrum wa acknowledged before, me on the ~ y of November, 2009 by t of The City of Frisco Texas, a Texas home rn city, on behalf o said city, .`•~`~'G~~p~ Notary Public, State of Texas 'CC ,S Q t IU'- k YP Q ' 0 cz~ ! ! I f 11 11111 H 1 ~ ~ ~ ~ \ ~ Setflenient Agreement - Page 6 DA•3054489 v141297522.MI D THE CITY OF THE COLONY, TEXAS L By Its: Q STATE OF TEXAS § COUNTY OF COLLIN § 7T-asho-me ins t wa acknole ed o e eon the// day of November, 2009 by , 7 of The City of The Colony, Texas, a rule city, on behalf f said city. Notary Public, State of Texas ~ \\\t111N1/q((, ~ a°?P"1t'ANGELA KELLY ?s yc notary Public, State of 7lexw ,,+F+0+; E~ My Commission Expires 09-08-10 Settlement Agreement - Page 7 DA-3054489 v141287522-00010 Exhibit A-1 Metes and Bounds Leal Description of the Property-40.29 Acres LEGAL DESCRIPTION - 40.29 ACRES BEING a parcel of land located in Denton County, Texas, a part of the B.B.B. & C.R.R. Survey, Abstract 179, and being a part of that tract of land conveyed to Wynmvood Peninsula Partners, L.P. recorded in Document No. 2008-5640, Deed Records Denton County, and being further described as follows: BEGINNING at a Corp of Engineer monument found for the southwest comer of that tract of land conveyed to Wynnwood Peninsula Partners, L.P. as recorded in Document No. 2008-56=40, Deed Records Denton County, said point being in the east line of the Garza-Little Elm Dam and Reservoir (Lake Lewisville); THENCE along the northwesterly boundary line of said Wynnwood tract of land and the boundary line of said Garza-Little Elm Dam and Reservoir, (Lake Lewisville) as follows: North 45 degrees 22 minutes 05 seconds East, 575.78 feet to a Corp of Engineer monument found for comer, South 66 degrees 13 minutes 05 seconds East, 550.42 feet to a Corp of Engineer monument found for corner, North 55 degrees 31 minutes 30 seconds East, 1063.30 feet to a four inch pipe post found for comer; South 53 degrees 20 minutes 23 seconds East, 99.10 feet to a four inch pipe post found for corner; North 58 degrees 49 minutes 33 seconds East, 39.21 feet to a four inch pipe post found for corn er, North 09 degrees 43 minutes 33 seconds West, 105.85 feet to a four inch pipe post found for comer; North 55 degrees 34 minutes 45 seconds East, 532.40 feet to a four inch pipe post found for corner; South 68 degrees 39 minutes 45 seconds East, 111.43 feet to a four inch pipe post found for corner; North 06 dcgrees 45 minutes 37 seconds East, 122,83 feet to a four inch pipe post found for comer; North 55 degrees 32 minutes 07 seconds East, 542.48 feet to a Corp of Engineer monument found -for corner; North 31 degrees 56 minutes 09 seconds ]Vest, 949.10 feet.to a Cotp of Engineer monument found for comer; South 78 degrees 20 minutes 38 seconds East, 400.38 feet to a Corp of Engineer monument found for corner; South 52 degrees 10. minutes 02 seconds East, 727.85 feet to a four inch pipe post found for comer, South 24 degrees 02. minutes 41 seconds West. 30.84 feet to a four inch pipe post found for comer; South 15 degrees 40 minutes 20 seconds East, 51.56 feet to a four inch pipe post found for comer; South 56 degrees 34 minutes 06 seconds East, 24.94 feet to a four inch pipe post found for corner; Settlement Agreement - Page 1 DA-3054489 v141287522-00010 North 57 degrees 44 minutes 36 seconds East, 62.09 feet to a four inch pipe post found for comer; South 52 degrees 13 minutes 08 seconds East, 775.93 feet to a Corp of Engineer monument found for corner.; North 14 degrees 14 minutes 56 seconds East, 93.27 feet to a point for corner; THENCE South 00 degrees 02 minutes 08 seconds West, 370.33 feet to a point for comer in the south line of said Wynnwood tract, said point being in. the north line of a tract of land described as Tract 2 conveyed to Wynnwood Peninsula Partners, L.P. as recorded in Document No. 2007-146787, Deed Records Denton County; THENCE along the south line of said Wynnwood Tract and the .north line of said Tract 2 as follows: South 72 degrees 49 minutes t t seconds West, 118.05 feet to a seven-eights inch iron rod found for corner; North 41 degrees 15 minutes 03 seconds West, 627.56 feet to a seven-eights inch iron rod found for comer; South 52 degrees 21 minutes 59 seconds West, 962.29 feet to a seven-eights inch iron rod found for corner; South 66 degrees 43 minutes 39 seconds West, 2028.02 feet to a seven-eights inch iron rod found for comer; North 89 degrees 45 minutes 28 seconds West, 562.78 feet to a seven-eights inch iron rod found for corner; South 36 degrees 51 minutes 46 seconds West, 64.89 feet to a point for comer in the north line of Boyd Road (a prescriptive use right-of-way); THENCE South 89 degrees 35 minutes 43 seconds West, 312.09 feet along the north line of Boyd Road to the POINT OF BEGINNING and containing 1,754;917 square feet or 40.29 acres of land. This document was prepared under 22 TAC §663.21, does not reflect the results of an on the ground survey, and is not to be used to convey or establish interests in real property except those rights and interests implied or established by the creation or reconfiguration of the boundary of the political subdivision for which it was prepared. 'fin • ,~~','g t i~.4.40..-....-.--...-'- oneaiao»nn .anNnsn'* Dao B. Ramse L.S, No. 4172 ' ng4U Rq M~ . ~.n ..n.........~ June 13,200 4~gpja772 N15- Settlement Aereement - Exhibit A-1- Page 2 DA-3054489 v141287522-00010 Exhibit A-2 Metes and Bounds Legal Description of the Property4.872 Acres BEING a parcel of land located in Denton County, Texas, a part of the J. ROBERTSON SURVEY ABSTRACT No. 1507 and a part of the RICHARD G. DUNLAP SURVEY, ABSTRACT No. 352, and also being a part of that tract of land described as Tract 2, conveyed to Wyrmwood Peninsula Partners, L. P. recorded in Document No. 2007- 146787, Deed Records Denton County, and being further described as follows: BEGH-WING at one-half inch iron rod found at the northeast corner of said Tract 2, said point being the southeast corner of a tract of land conveyed to Wynnwood Peninsula Partners, L.P. as recorded in Document No. 2008-5640, Deed Records Denton County, said point also being in the west lisle of a land described as Tract 2 conveyed to Waterston LP as recorded in Document No. 2007-139619, Deed Records Denton County; THENCE South 00 degrees 20 minutes 30 seconds East, 854.99 feet along the east line of said Tract 2 and the west line of said Waterston tract to a point for comer in the cehterline of Lebanon Road; Tl3ENCE South 89 degrees 05 minutes 25 seconds West, 219.03 feet along the center of Lebanon Road to a point for corner, THENCE North 00 degrees 26 minutes 10 seconds West, 1068.71 feet to a point for comer in the north line of said Tract 2, said point being in the south tine of said Wynnwood tract; THENCE along the north line of said Tract 2 and the south line of said Wynnwood tract as-follows: North 72 degrees 49 minutes 11 seconds East, 5.98 feet to a point for corner; South 45 degrees 34 minutes 44 seconds East, 302.88 feet to the POINT OF BEGINNING and containing 212,212 square feet or 4.872 acres of land. Settlement Agreement - Exhibit A-2 - Page 1 DA-3054489 v14 1287522-00010 Exhibit B ANNEXATION AGREEMENT This Annexation Agreement (this "moment") is executed between Wynnwood Peninsula Partners, L.P. (the "Owner") and the City of The Colony, Texas (the "!Q&") to be effective July 6, 2009 (the "Effective Date'''). ARTICLE I RECITALS WHEREAS, the City is a home rule municipality of the State of Texas; and WHEREAS, the Owner is a Texas limited partnership; and WHEREAS, the Owner and the City are sometimes individually referred to as a "E@&" and collectively as the "Parties"; and WHEREAS, the Owner is the owner of the real property located in Denton County and described by metes and bounds on Exhibit A and depicted on Exhibit B (the' and WHEREAS, at the time of the Parties' execution of this Agreement, all of the Property is located within the City's extraterritorial jurisdiction ("ETJ") and not within the corporate limits or ETJ of any other municipality; and WHEREAS, the Parties intend for the Property to be annexed into and developed within the corporate limits of the City in accordance with this Agreement, which annexation may occur immediately after the Parties execute this Agreement; and WHEREAS, the Parties intend that, pursuant to Section 212.172 of the Texas Local Government Code, the Property shall be developed in accordance with this Agreement; and WHEREAS, the Parties have the authority to enter into this Agreement pursuant to Section 212.171 et seq. of the Texas Local Government Code and pursuant to the City's general contracting authority. NOW THEREFORE, for and in consideration of the mutual covenants of the Parties set forth in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are acknowledged and agreed to by the Parties, the Parties agree as follows: ARTICLE II GOVERNING REGULATIONS 2.1 Governmg_Regulations . Development of the Property shall be governed by the following zoning, subdivision and building code regulations (collectively, the "Ooveming Regulations"): (a) the City's comprehensive zoning ordinance in effect on the Effective Date (the "Zoning Ordinance s'1; Page 1 DA-3026716v3 1287522-00010 Settlement Agreement - Exhibit B - Page 1 DA-3054489 v141287522-00010 (b) City Ordinance No. 99-1132 in effect on the Effective Date (the "Subdivision Regulations'; (c) the development regulations set forth in City Ordinance No. 09-1802, including any amendment thereto to include the Property in the legal description of the property governed by such ordinance (the "Development ite 'ons'~. No other amendments to City Ordinance No. 09-1802 shall apply to the Property unless otherwise agreed to by the Owner in writing, and (d) the following building codes adopted by the City, including local amendments thereto, as well as any future amendments to such codes adopted by the City from time to time (the "Buiftg Codes'): • 2006 International Building Code; • 2006 International Mechanical Code; • 2006 International Plumbing Code; 2006 International Residential Code; • 2006 International Fuel Gas Code; • 2006 International Fire Code; 0 2006 International Energy Conservation Code; and • 2008 National Electrical Code. No other zoning ordinances or regulations of any kind apply to the development of the Property unless otherwise agreed to by the Owner in writing. 2.2 Conflicts. The Development Regulations shall control in the event of a conflict with the Zoning Ordinance, Subdivision Regulations, or the Building Codes. 2.3 Devel t ReMiglLons. The Development Regulations represent the Owner's desired zoning regulations for the Property. The Development Regulations shall apply to the use and development of the Property regardless of whether City Ordinance No. 09-1802 is amended to include the Property after the Property is annexed into the City's corporate limits. 2.4 Cmnliance with State and Federal Law. Notwithstanding anything to the contrary in this Agreement, development of the Property shall also be subject to ordinances that the City is required to adopt, from time to time, by state or federal law, provided, however, if such state or federal laws allow the City to grant exemptions to such laws for which the property qualifies,, then the Property shall be exempt from such laws, and the City shall take all action necessary to evidence such exemptions. Notwithstanding the foregoing, however, nothing in this section constitutes a waiver of the Owner's right to claim that a city ordinance required by state or federal law: (A) does not apply to the Property based on the "vested rights" of Owner, whether such rights arise under Chapter 43, as amended, or chapter 245, as amended, Texas Local Government Code; (B) does not apply to the Property based on any other legal or equitable theory, whether based on existing or firture common-law or state or federal statutes; or (C) constitutes an illegal exaction or a "taking" without compensation. DA-3026716v3 128752240010 Page 2 Settlement Agreement - Exhibit B - Page 2 DA-3054489 v141287522-00010 ARTICLE III ZONIN AND )E3%LO-PNWNT OF THE PROPERTY Development and use of the Property shall be in accordance with the Governing Regulations. The City agrees to consider amending City Ordinance No. 09-1802 to include the Property after the Property is annexed into the City's corporate limits. Notwithstanding the foregoing, nothing in this Agreement shall be interpreted to require the city to approve zoning of the property. The Property may be developed in accordance with the terms of this Agreement notwithstanding any contrary zoning of the Property. ARTICLE IV JURISDICTIONAL STATUS 4.1 Full-Purpose Annexation Upon full execution of this Agreement, the owner consents to the City's full-purpose annexation of the Property into the City's corporate limits, which consent shall be irrevocable. The City shall have the right, but not the obligation, to full purpose annex the Property. THE OWNER AND ALL FUTURE OWNERS OF THE PROPERTY (INCLUDING END-BUYERS AS DEFINED HEREIN), AND DEVELOPERS IRREVOCABLY AND UNCONDITIONALLY CONSENT TO THE FULL PURPOSE ANNEXATION OF THE PROPERTY INTO THE CORPORATE LIMITS OF THE CITY IN ACCORDANCE WITH THIS AGREEMENT AND WAIVE ALL OBJECTIONS AND PROTESTS TO SUCH ANNEXATION. THIS AGREEMENT SHALL SERVE AS THE PETITION OF THE OWNER AND ALL FUTURE OWNERS AND DEVELOPERS TO THE FULL PURPOSE ANNEXATION OF THE PROPERTY TO THE CITY'S ANNEXATION OF THE PROPERTY IN ACCORDANCE WITH THIS AGREEMENT. THIS COVENANT SHALL RUN WITH THE LAND AND SHALL BE BINDING ON ALL PRESENT AND FUTURE OWNERS, AND DEVELOPERS. 4.2 Effect of Full- se Annexation. Development of the Property after full- Purpose annexation into the corporate limits of the City shall be in accordance with the Governing Regulations for the Term (hereinafter defined). ARTICLE V TERM OF AGREEMENT The term of this Agreement shall be 15 years after the Effective Date (the "TT=m unless extended or shortened by mutual written agreement. ARTICLE VI EVENTS OF DEFAULT: REMEDIES 6.1 Events of Default. No Party shall be in default under this Agreement until notice of the alleged failure of such Party to perform has been given (which notice shall set forth in reasonable detail the nature of the alleged failure) and until such Party has been given a reasonable time to cure the alleged failure (such reasonable time determined based on the nature of the alleged failure, but in no event less than 30 days after written notice of the alleged failure has been given). In addition, no Party shall be in default under this Agreement it within the applicable cure period, the Party to whom the notice was given begins performance and Page 3 DA-M671613 12875224MIO Settlement Agreement - Exhibit B - Page 3 DA-3054489 v141287522-00010 thereafter diligently and continuously pursues performance until the alleged failure has been cured. 6.2 Remedies. If a Party is in default, the aggrieved Parry may, at its option and without prejudice to any other right or remedy under this Agreement, seek any relief available at law or in equity, including, but not limited to, an action under the Uniform Declaratory Judgment Act, specific performance, mandamus, and injunctive relief. Notwithstanding the foregoing, however, no default under this Agreement shall: (a) entitle the aggrieved Party to terminate this Agreement; or (b) entitle the aggrieved Party to seek or recover monetary damages of any kind, or (c) limit the Term of this Agreement. 6.3 Governmental Powers: Waivers of ImmlwitX. By its execution of this Agreement, the City does not waive or surrender any of its governmental powers, immunities. Nothing in this Agreement is intended to delegate or impair the performance by the City of its governmental fimcdons. ARTICILE VII 'NNWM AND ENCUMBRANCE 7.1 Assi ent b the Owner to Successor Owners. The Owner has the right (from time to time without the consent of the City, but upon written notice to the City) to assign this Agreement, in whole or in part, and including any obligation, right, title, or interest of the Owner under this Agreement, to any person or entity (an " i ee") that is or will become an owner of any portion of the Property or that is an entity that is controlled by or under common control with the Owner. Each assignment shall be in writing executed by the Owner and the Assignee and shall obligate the Assignee to be bound by this Agreement to the extent this Agreement applies or relates to the obligations, rights, title, or interests being assigned. A copy of each assignment shall be provided to all Parties within 15 days after execution. From and after such assignment, the City agrees to look solely to the Assignee for the performance of all obligations assigned to the Assignee and agrees that the Owner shall be released from subsequently performing the assigned obligations and from any liability that results from the Assignee's failure to perform the assigned obligations; provided, however, if a copy of the assignment is not received by the City within 15 days after execution, the Owner shall not be released until the City receives such assignment. No assignment by the Owner shall release the Owner from any liability that resulted from an act or omission by the Owner that occurred prior to the effective date of the assignment unless the City approves the release in writing. The Owner shall maintain written records of all assignments made by the Owner to Assignees, including a copy of each executed assignment and the Assignee's Notice information as required by this Agreement, and, upon written request from any Party or Assignee, shall provide a copy of such records to the requesting person or entity. 7.2 As i ent b the City. The City shall not assign this Agreement. Page 4 DA-M7160 1287522-00010 Settlement Agreement - Exhibit B - Page 4 DA-3054489 v141287522-00010 7.3 Assignees @s Parties. An Assignee shall be considered a "Party" for the purposes of this Agreement. ARTICLE VIII RECORDATION RELEASES. AND ESTOPPEL CERTIFICATES 8.1 HWdLng Obliions. Pursuant to the requirements of Section 212.172(c)(4) of the Texas Local Government Code, this Agreement and all amendments hereto shall be recorded in the deed records of the county in which the Property is located. This Agreement, when recorded, shall be binding upon the Parties and their successors and assigns permitted by this Agreement and upon the Property; however, this Agreement shall not be binding upon, and shall not constitute any encumbrance to title as to, any end buyer of an improved lot that is the subject of a recorded final plat (an ` -Bu er") except for land use and development regulations that apply to specific lots. 8.2 Estoppel Certificates. From time to time upon written request of the Owner, the City shall execute a written estoppel certificate identifying any obligations of the Parties under this Agreement that are in default or, with the giving of notice or passage of time, would be in default; and stating, to the extent true, that to the best knowledge and belief of the City, the Parties are in compliance with their duties and obligations under this Agreement. ARTICLE IX ADDITIONAL PROVISIONS 9.1 Recitals. The recitals contained in this Agreement: (a) are true and correct as of the Effective Date; (b) form the basis upon which the Parties negotiated and entered into this Agreement; (c) are legislative findings of the City Council, and (d) reflect the final intent of the Parties with regard to the subject matter of this Agreement, In the event it becomes necessary to interpret any provision of this Agreement, the intent of the Parties, as evidenced by the recitals, shall be. taken into consideration and, to the maximum extent possible, given full effect. The Parties have relied upon the recitals as part of the consideration for entering into this Agreement and, but for the intent of the Parties reflected by the recitals, would not have entered into this Agreement. 9.2 Notices. All notices required or contemplated by this Agreement (or otherwise given in connection with this Agreement) (a "Notice") shall be in writing, shall be signed by or on behalf of the Party giving the Notice, and shall be effective as follows: (a) on or after the 10a' business day after being deposited with the United States mail service, Certified Mail, Retam Receipt Requested; (b) on the day delivered by a private delivery or private messenger service (such as FedEx or UPS) as evidenced by a receipt signed by any person at the delivery address (whether or not such person is the person to whom the Notice is addressed); or (c) otherwise on the day actually received by the person to whom the Notice is addressed, including, but not limited to, delivery in person and delivery by regular mail or by E-mail. Notices given pursuant to this section shall be addressed as follows: Page 5 DA-3026716v3 IMM-MIO " Settlement Agreement - Exhibit B - Page 5 DA-3054489 v141287522-00010 To the City: City Manager Attn: Dale Cheathan City of The Colony 6800 Main Street The Colony, Texas 75056 E-mail: cm@thecolonytx.gov With a copy to: City Attorney Attn: Robert E. Hager 1800 Lincoln Plaza 500 N. Akard Street Dallas, Texas 75201 E-mail: rhager@njdhs.com To Owner: Attn: Kristian T. Teleki 1660 S. Stemmons Freeway, Suite 100 Lewisville, Texas 75067 E-mail: kteleld@matthewssouthwest.com With a copy to: Attn: Misty Ventura K&L Gates 1717 Main Street, Suite 2800 Fort Worth, Texas 75201 E-mail: misty.ventrua@klgates.com 9.3 Permit. This Agreement constitutes a "permit" within the meaning of Chapter 245, Texas Local Government Code, as amended. Notwithstanding the foregoing, the Owner waives any rights it may have to claim vested rights with respect to the application of the Building Codes to the Property. 9.4 Intemretaiion. The Parties acknowledge that each of them has been actively involved in negotiating this Agreement. Accordingly, the rule of construction that any ambiguities are to be resolved against the drafting Party will not apply to interpreting this Agreement. In the event of any dispute over the meaning or application of any provision of this Agent, the provision will be interpreted fairly and reasonably and neither more strongly for or against any Party, regardless of which Party originally drafted the provision. 9.5 Ag& tvandEnforceability. The City represents and warrants that this Agreement has been duly adopted by official action of the City Council in accordance with all applicable public notice requirements (including, but not limited to, notices required by the Texas Open Meetings Act) and that the individual executing this Agreement on behalf of the City has been duly authorized to do so. The Owner represents and warrants that this Agreement has been approved by appropriate action of the Owner, that the individual executing this Agreement on behalf of the Owner has been duly authorized to do so. 9.6 Enth Am== SeverabilitX. This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, whether oral or written, covering the Page 6 " DA-3026716v3 12375M-MIO Settlement Agreement - Exhibit B - Page 6 DA-3054489 x141287522-00010 subject matter of this Agreement. This Agreement shall not be modified or amended except in writing signed by the Parties. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable for any reason, then (a) such unenforceable provision shall be deleted from this Agreement; (b) the unenforceable provision shall, to the extent possible, be rewritten to be enforceable and to give effect to the intent of the Parties; and (c) and the remainder of this Agreement shall remain in full force and effect and shall be interpreted to give effect to the intent of the Parties. Without limiting the generality of the foregoing, (a) if it is determined that, as of the Effective Date, the Owner does not own any portion of the Property, this Agreement shall remain in full force and effect with respect to all of the Property that the Owner does then own, and (b) if it is determined, on or after the Effective Date, that any portion of the Property is not within the City's ETJ, this Agreement shall remain in frill force and effect with respect to all of the Property that is then within the City's ETJ. 9.7 APRHob-la Law: Venue. This Agreement is entered into under and pursuant to, and is to be construed and enforceable in accordance with, the laws of the State of Texas, and all obligations of the Parties are performable in Denton County. Venue for any action to enforce or construe this Agreement shall be in the state courts of appropriate jurisdiction of Denton County. 9.8 Non Waiver. Any failure by a Party to insist upon strict performance by another Party of any material provision of this Agreement shall not be deemed a waiver thereof and the Party shall have the right at any time thereafter to insist upon strict performance of any and all provisions of this Agreement. No provision of this Agreement may be waived except by writing signed by the Party waiving such provision. Any waiver shall be limited to the specific purposes for which it is given. No waiver by any Party of any term or condition of this Agreement shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the some term or condition. 9.9 No Third Party Beneficiaries,. This Agreement only inures to the benefit of, and may only be enforced by, the Parties. An End-Buyer shall be considered a third-party beneficiary of this Agreement, but only for the limited purposes for which an End-Buyer is bound by this Agreement. No other person or entity shall have any right, title, or interest under this Agreement or otherwise be deemed to be a third-party beneficiary of this Agreement. 9.10 Force Majeure. Each Party shall use good faith, due diligence and reasonable care in the performance of its respective obligations under this Agreement, and time shall be of the essence in such performance; however, in the event a Party is unable, due to force majeure, to perform its obligations under this Agreement, then the obligations affected by the force majeure shall be- temporarily suspended. Within three business days after the occurrence of a force majeure, the Party claiming the right to temporarily suspend its performance, shall give Notice to all the Parties, including a detailed explanation of the force majeure and a description of the action that will be taken to remedy the force majeure and resume full performance at the earliest possible time. The term "force majeure" shall include events or circumstances that are not within the reasonable control of the Party whose performance is suspended and that could not have been avoided by such Party with the exercise of good faith, due diligence and reasonable care. Page 7 DA-3026716v3 12VSn-00010 Settlement Agreement - Exhibit B - Page 7 DA-3054489 v141287522-00010 9.11 Cou Marls. This Agreement may be executed in any number of countegxuU, each of which shall be deemed an original and constitute one and the same instrument. 9.12 Further Documents. Each Party shall, upon request of the other Party, execute and deliver such further documents and perform such further acts as may reasonably be requested to effectuate the terms of this Agreement and achieve the intent of the Parties. 9.13 Conflicts. In the event of any conflict between this Agreement and any other ordinance, rule, regulation, standard, policy, order, guideline, or other City-adopted or City- enforced requirement, whether existing on the Effective Date or hereafter adopted, this Agreement shall control. 9.14 Exhibits. The following Exhibits are attached to this Agreement and are incorporated herein for all purposes: Exhibit A Metes and Bounds Description of the Property Exhibit B Depiction of the Property [SIGNATURE PAGES TO FOLLOW] Page 8 DA 3026716 x31287522-00010 Settlement Agreement - Exhibit B - Page 8 DA-3054489 v14 1287522-00010 Executed by the Owner and the City to be effective on the Effective Date. Date: July 6, 2009 CITY OF THE COLONY, TEXAS J01- M LRY, MAYOR ATTEST:` SECRETARY APP A TO ORM: ~~-~°o t w~ •~,A ATTO STATE OF TEXAS § COUNTY OF--"_'L § i~ ' strpaezlt w aclmowledged before me on the 6th day of July, 2009 by t Cj ayor of the City of The Colony, Texas, on behalf of said city. r Notary Pu 'c, State of Texas ANGRAiM ~s~3• ' r~otarr hUYR, etabe d tk~s Page 9 DA-302671601287522-W10 Settlement Agreement - Exhibit B - Page 9 DA-3054489 04 1287522-00010 THE OWNER Wynnwood Peninsula Partners, L.P., a Texas limited partnership By: Wynnwood Peninsula Partners GP, LLC, a Texas limited liability company By: Matthews Holdings Southwest Inc., a Texas corporation,,, Stole Member and Manager By:`~ _ Kristian T. Teleki Senior Vice President STATE OF TEXAS § COUNTY OF'Vr.*-, § This instrument was acknowledged before me on the -U- day of July, 2009 by Kristian T. Teleki, the Senior Vice President of Matthews Holdings Southwest Inc., the Sole Member and Manager of Wynnwood Peninsula Partners GP, LLC, the general partner of Wynnwood Peninsula Partners, L.P., on behalf of said partnership. Notary Public, State of Texas su>r'«~+r ~d>p~Aw NOEf~O1rY1Yd Page 10 DA 3026716 V31287522-00010 - Settlement Aereement - Exhibit B - Page 10 DA-3054489 v14 1287522-00010 EXBZBrr A Metes and Bounds Description of the Property LEGAL DESCR&TION-40.20 ACRES BEING a parcel of land Wood in Dalton County, Tcxa4 a part of rye B.B.H. a CJM Survey, Abstract 173, drat being a pat of that tract of land oocwgw to Wymwood Padrrsek Pat7ttea, LP. recorded is Docangettt W. 2008-.5640. Deed Recalls Deatoa Oxwy, drat being &W w da=*bW as FoWmr. BMIN14M at a Carp of Engjaw mortttm" awd for the soadm= corner of that tract of land aorrveyed m Wymnwod Patbmth Pa:tnms, LP. a morded in Doouownt bb. 2008.5640. Deed Records Dam Cotutty. said point behtg in the eau tine of the Garza-Little Eta Dam and Raxrmr 0Av L uvillex T1EDx,E 90t8lk t dhweatetiy bowtdary Iiue ofaeid Wynnarond tract of land artd the kwdary line of Said Cams-I.Mv Ehn Dam and l wzvorr, (Lake Lewwa11c) ar kUwWw North 45 degmar 22 minutes 05 oetnnds East, 575.78 Feet to a Corp of Eaginmmoa uma food forcom er; South 66 degrees 13 minutes 05 wands East, 550.42 feet to a Corp of Engimermonuaat bur d for comer, Nash 55 deptaes 31 mottoes 30 seconds Eau, 1063.30 fed to a four inch pipe post found foroomm. South 53 dgpws 20 miwm 23 weeds East, 99.10 feet to a four inch pipe post found forcomer; North 58 dgpm 49 mimtes 33 ueomda Em 3921 foot to a foot inch pipe post fotwA foratnter, Nat 09 degtem 43 mh ates 33 seconds Wm 105.85 feet to a fan racb pipe post found forwrosr, Nortb 55 degrees 34 mimues 45 seconds East, 532.40 fed to a fora inch pipe putt lbund torcomer; South 68 depees 39 mimttas 45 tteaard, Fast, It 1.43 fed to a four inch pipe post found forward; Nash 06 dogooes45 Wnuto 37 wounds Eat, 122.83 Pte[. to a four iuchpipd post fotmd foroom er; Nath 55 4091M 32 miman 07 seconds Rest, 542.48 fed to a Corp of Engineer racnonew found for comer, North 31 degnm 56 mim ms 09 own& West, 449.10 fat b a Corp of Easnar tutmtutteru found for comer-, South 78 dogtoes 20 minima 38 swonds East, 400.38 fat to a Corp of Envocermorument found forcomer; South 52 deg oas 10 t wwo 02 seconds Eau. 727.85 feet to a four inch pipe post found for comer, South 24 dog am (12 mattes 41 seronda West, 30.84 feet to a four i- h pipe post found forcumer, South 15 dcgroes 40 minutes 20 seconds fast, 5156 fret to a four inch pipe past found forcomer, South 56 dag►m 34 mttuncs W seconds Fist, 34.94 fax to a four inch pipe post found forttrorrtrer; Exhibit A - Page 1 DA-3026716v3 1287SM-MIO Settlement Agreement - Exhibit B - Page 11 DA-3054489 v141287522-00010 North 57 doaaoa 44 minum 36 seconds East, 62.09 feet to a four inch pipe post faand forooram South 52 depe s 13 minmes 08 szommili; East, 775.93 fast to a Carp of Flooneaa monumart found foreemar, Nato 14 4e=sees 14 minutes S6 seconds Tent, 9327 Meet to a point for corner, TILENCB Satoh 00 dsgrses 02 mueesp 06 seconds West, 37033 A* to a paint fir cornr in the somb live of said Wytuswood tract, said poins bent in rho nosh Inc of a tract of lad described as Twct 2 conveyed to Wyrarwood Pieaiasala Patu wa, LP. as recorded in Document No. 2007-146787, Deed Records Denton Coway-. TMWE along the south litter of said Wyanweod Tract and due north lino of said Tract 2 at follows: 5onth 72 degttles 49 ttlittutea 11 aeW ds West.118DS feet to a savor-rights inch iron nod found for oan w, Noah 41 deg us 1 S miaates 03 seconds West, 62755"to a seven-eights htch lion rod bund hr cote, Soo& 52 degrm 21 mirmes 59 seconds West, 962.29 feet to a sem-atlas inch iron rod band for ooracr, South 65 degrees 43 minutes 39 seconds Wat, 2028.02 foes to a seveu-cights inca iron rod !Quad for owner, North 89 degrtes 45 mbutes 28 seconds West, 562.78 feet to a seven4ghts inch k on rvd band for corner, South 36 dsgrsat S 1 mitnaes 46 secatdt Wed, 64.89 feet to a point for coma in dw no ft live of Boyd Road (a piaseaip m use right-of-way); THENCE South 84 &VM 3S raw" s 43 aeeaads West, 312.09 feat gloat dm north line of Boyd Road to the PONT OF BBMNN G and eons 1,754,917 srltrare feet or 4029 acres of land. This document was prepared under 22 TAC §663.21, dam not retled the resume of an on the tmund pLNery, and is »ot to be used to convey or establish into ate in real property ompt those rights and interests implod or esmblisbed by the creedon or reconfiguration of the boundary of the political subdivision for which it was psepared. Dan B. ..L.S, No. 4172 Jwes 13. M79 Exhibit A - Page 2 DA-3026716 v31287522-00010 Settlement Agreement - Exhibit B - Page 12 DA-3054489 v14 1287522-00010 9 g t ~1'v1 ' gig - 1~ V< r E t Exhibit B DA-3926717 0 1287522-00010 Settlement AEreement - Exhibit B - Page 13 DA-3054489 v141287522-00010 CITY OF THE COLONY, TEXAS RESOLUTION NO. 09.048 A RESOLUTION OF TEE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE ANNEXATION AGREEMENT BY AND BETWEEN WYNNWOOD PENINSULA PARTNERS, L.P., AND/OR ITS AFFIIIIATES, AND THE CITY OF THE COLONY, TEXAS, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS ATTACHMENT "1"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, Wynnwood Peninsula Partners, L.P., ("WPP'D are the owners of the property described by metes and bounds in Exhibit A and depicted in Exhibit B (the "Property") to the Annexation Agreement for 40.29 acres, which is attached hereto and incorporated herein as Attachment 1(the "Agreement'); and WHEREAS, all of the Property described in the Agreement is located in Denton County and within the extraterritorial jurisdiction of the City of The Colony ("City'); and WHEREAS, WPP desires for the Property to be annexed into and developed within the corporate limits of the City under the terms and conditions provided in the Agreement; and WHEREAS, the City desires to annex. said Property under the terms and conditions of the Agreement; and WHEREAS, the City Council hereby approves the terms and conditions of the Annexation Agreement, which is attached hereto as Attachment 1, by and between the City and the WPP, and authorizes the Mayor to execute such Agreement on behalf of the City of The Colony. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: ection 1. The City Council hereby approves the terms and conditions of the Annexation Agreement, which is attached hereto and incorporated herein as Attachment 1, by and between Wynnwood Peninsula Partners, L.P., and/or its affiliates, and the City of The Colony, Texas and hereby authorizes the Mayor to execute the same. Section 2. This Resolution shall become effective immediately from and after its passage, as the law and charter in such cases provides. Settlement Agreement - Exhibit B - Page 14 DA-3054489 v141287522-00010 PASSED, APPROVED and EFFECTIVE this day of JuIL 2009, McCo ,Mayor City of Th6 Colony, Texas A T: E a Al A Christie Wilson, City Secretary, City of The Colony, Texas APPR AS TO FORM: Robert E. Hager, C' ttomey City of The Colony, Texas Settlement Amement - Exhibit B - Page 15 DA-3054489 v14 1287522-00010 Denton County Cynthia Mitchell County Clerk De ton, Tx 76202 70 2 ooaeos7 Instrument Number: 200941807 As Recorded On: July 20, 2009 Resolution Parties: CITY OF THE COLONY TEXAS Billable Pages: 16 To Number of Pages: 16 Comment: ( Parties Haled above we for Clerks referenoe only ) Examined and Charged as Follows: Resolution 71.00 TOM Recording: 71.00 DO NOT REMOVE. THIS PAGE IS PART OF THE INSTRUMENT Any provision herein which restricle ft Sale, Rental or use of the described REAL PROPERTY because of color or moo is invalid and unenforceable under federal law. File Information: Record and Return To: Document Number: 2009-88057 Receipt Number: 804974 CITY OF THE COLONY TEXAS Recorded DateMme: July 20, 2009 02:01:54P ATTN ANGIE KELLY 6800 MAIN ST User / Station: D Fahmey - Cash Station 3 THE COLONY TX 75056 1 THE STATE OF TEXAS) COUNTY OF DENTON ) I edr wtey "MOO Ifln4fanwdl FAAD In th s FN Hu nOwrgwnp on the dd td m pMYd haven, eM wa tluly aeDORDED M fir OIIIe1nF Rtrmrdr of Dnnloel Coungr, Tes. + 296 County Clerk Denton County, Texas Settlement AEreement - Exhibit B - Page 16 DA-3054489 v141287522-00010 Exhibit C CITY OF FRISCO, TEXAS RESOLUTION NO. 09-11-213R A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FRISCO, TEXAS, HEREBY AUTHORIZING THE CITY MANAGER OF THE CITY OF FRISCO, TEXAS TO EXECUTE THE SETTLEMENT AGREEMENT AND RELEASE IN CAUSE NO. 2009-50183-367 IN THE CASE STYLED WYNNWOOD PENINSULA PARTNERS, L.P. V. CITY OF FRISCO, TEXAS, PENDING IN THE 367TH JUDICIAL DISTRICT COURT. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FRISCO, TEXAS: Section 1, The City Manager of the City of Frisco, Texas is hereby authorized to execute, on behalf of the City County of the City of Frisco, Texas the Settlement Agreement and release in Cause No. 2009-50183-367 in the Case styled Wynnwood Peninsula Partners, L.P w: City of Frisco, Texas pending in the 367th Judicial District Court, a copy of which is attached hereto and incorporated herein for all purposes. Section 2. That this resolution is effective immediately upon its passage. RESOLVED THIS THE 06th day of OCTOBER 12009. 2~4 Maher Maso, Mayor I~ca, ATTEST: Je P e, Ci Secretary Settlement Agreement - Exhibit C - Page 1 DA-3054489 v14 1287522-00010 Exhibit D RESOLUTION NO. 09-077 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, APPROVING THE TERMS AND CONDITIONS OF THE SETTLEMENT AND RELEASE AGREEMENT BY AND BETWEEN WYNNWOOD PENINSULA PARTNERS, L.P., THE CITY OF FRISCO, TEXAS, AND THE CITY OF THE COLONY, TEXAS, WHICH IS ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT 1; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AND PROVIDING AN EFFECTIVE DATE WHEREAS, Wynnwood Peninsula Partners, L.P., ("WPP") are the owners of the property described as 40.29 acres of land located near Lebanon Road and Old Boyd Road in Denton County and being more particularly described in Exhibit A (the "Property") to the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1 (the "Agreement"); and WHEREAS, a dispute has arisen by and between the Parties hereto concerning whether the Property is located in the City of Frisco's ("Frisco") extraterritorial jurisdiction or the City of The Colony's (The Colony") extraterritorial jurisdiction; and WHEREAS, as a result of said dispute, on June 16, 2009, WPP filed suit against Frisco in Cause No. 2009-50183-367 in the 367x' Judicial District Court of Denton County, Texas and The Colony intervened in the said suit; and. WHEREAS, each of the Parties hereto desire to settle the disputes between them as set forth in the Settlement and Release Agreement ("Agreement"), which is attached hereto and incorporated herein as Exhibit 1, including all the exhibits attached thereto; and WHEREAS, the City Council hereby approves the terms and conditions of the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1, and authorizes the Mayor to execute such Agreement on behalf of the City of The Colony. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS THAT: Section 1. The City Council hereby approves the terms and conditions of the Settlement and Release Agreement, which is attached hereto and incorporated herein as Exhibit 1, by and between Wynnwood Peninsula Partners, L.P;, the City of Frisco, Texas, and the City of The Colony, Texas and hereby authorizes the Mayor to execute the same. Section 2. This Resolution shall become effective immediately from and after its passage, as the law and charter in such cases provides. Page 1 TM 39468.76.092809 Settlement Agreement - Exhibit D - Page 1 DA-3054489 v14 1287522-00010 PASSED, APPROVED and EFFECTIVE this 20`h day of October, 2009. v G J McCo ry, Mayor ity of Tffe Colony, Texas ATTE : she Wilson, City Secretary, City of The Colony, Texas APPR VE AS RM: j ~ Ro ert E. Hager, C' Attorney City of The Colony, Texas (UWcdb) Page 2 P T„ nn,nn Tr. nnnnnn Settlement Agreement - Exhibit D - Page 2 DA-3054489 v14 1287522-00010 Exhibit E Form of Motion to Dismiss CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P. § Plaintiff, § § V. § THE CITY OF FRISCO, TEXAS, § OF DENTON COUNTY, TEXAS Defendant. § § § § § 367TH JUDICIAL DISTRICT COURT MOTION TO DISMISS CLAIMS, WITH PREJUDICE Wynnwood Peninsula Partners, L.P. ("Plaintiff') files this Motion to Dismiss all of Plaintiffs claims in this action, with prejudice to it refiling, and in support of this Motion show as follows: 1. The parties to this case have settled the matters in dispute between them in this action pursuant to a written Settlement Agreement approved by Frisco's City Council on October 6, 2009, and approved by The Colony's City Council on October 20, 2009 (the "Settlement Agreement"). 2. Prior to the filing of this Motion, Intervenor, the City of The Colony, has nounsuited, without prejudice, all of its claims in this action, and Frisco has nonsuited, without prejudice, all of its claims in.this case, including its Counterclaim. Accordingly, as of the date of this Motion, the only remaining claims in this action are the claims Plaintiff asserted in Plaintiff's Original Petition against Frisco. Settlement Aereement - Exhibit E - Page 1 DA-3054489 04 1287522-00010 3. In accordance with the Settlement Agreement, Plaintiff requests that the Court dismiss all of Plaintiff's claims in this action, with prejudice to their refiling. WHEREFORE, premises, considered, Plaintiff requests that the Court dismiss all of Plaintiff's claims in this action, with prejudice to it refiling pursuant to the form of Order submitted with this Motion. Respectfully submitted, Matthew Molash State Bar No. 14255300 Misty Ventura State Bar No. 00795843 John R. Hardin State Bar No. 24012784 of K&L GATES LLP 1717 Main Street, Suite 2800 Dallas, Texas 75201 Telephone: 214-939-5500 Facsimile: 214-939-5849 ATTORNEYS FOR WYNNWOOD PENINSULA PARTNERS, L.P. Settlement Agreement - Exhibit E - Page 2 DA-3054489 v141287522-00010 Exhibit F Form of Order of Dismissal With Prejudice CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P. § Plaintiff, § V. § THE CITY OF FRISCO, TEXAS, § OF DENTON COUNTY, TEXAS Defendant. § § § 367TH JUDICIAL DISTRICT COURT ORDER OF DISMISSAL WITH PREJUDICE Came on for consideration the Motion to Dismiss Claims With Prejudice filed by Wynnwood Peninsula Partners, L.P. ("Plaintiff'). The Court, having considered the Motion, finds that it should be granted. It is, therefore, ORDERED that all of Plaintiffs claims in this action are dismissed with prejudice to their refiling. It is further ORDERED that all costs are taxed against the party incurring those costs. This Order finally disposes of all claims and parties and is appealable. SIGNED this day of November, 2009. JUDGE PRESIDING Settlement Agreement - Exhibit F - Page 1 DA-3054489 v14 1287522-00010 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P., § Plaintiff, § VS. § Q r § W .n THE CITY OF FRISCO, TEXAS, § DENTON C N> .JE iS Defendant, Cross-Plaintiff, § and Third-Party Plaintiff, § N n Vs. § ' { ' 9 THE CITY OF THE COLONY, TEXAS, § 367TH JUDICIAdvig CTco~', j Intervenor, Third-Party § Plaintiff, Cross-Defendant. § and Third-Party Defendant. § NOTICE OF NONSUIT The City of The Colony, Texas ("The Colony"), pursuant to Texas Rule of Civil Procedure 162 hereby provides notice to all parties and the court that it is non-suiting without prejudice to refiling the claims asserted in its Second Amended Original Petition in Intervention and First Amended Original Petition against the City of Frisco. The Colony respectfully requests that the Court sign the attached proposed Order of Nonsuit, approving The Colony's Nonsuit of all its claims against the City of Frisco, Texas without prejudice. Respectfully submitted, NICHOLS, JACKSON, DILLARD, HAGER ITH, L.L.P. By: Robert E. Hager Texas State Bar No. 8689500 Kimberly R. Lafferty Texas State Bar No. 00796915 1800 Lincoln Plaza 500 North Akard Dallas, Texas 75201 (214) 965-9900 (214) 965-0010 FAX ATTORNEYSFOR THE CITY OF THE COLONY, TEXAS TM 40138 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRIC LOUT PARTNERS, L.P., § t>:. y Plaintiff, § va VS. § CO THE CITY OF FRISCO, TEXAS, § DENTON C(*NTY, TEXAS Defendant, Cross-Plaintiff, § and Third-Party Plaintiff, § VS. § THE CITY OF THE COLONY, TEXAS, § Intervenor, Cross-Defendant § and Third-Party Defendant. § 367TH JUDICIAL DISTRICT NOTICE OF NONSUIT The City of Frisco, Texas ("Frisco"), pursuant to Texas Rule of Civil Procedure 162, hereby provides notice to all parties and the Court that it is non-suiting without prejudice to refiling the claims asserted in its Original Answer and Third-Party Petition and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction and in its Original Counterclaim, Crossclaim, and Application for Temporary Restraining Order, Temporary Injunction, and Permanent Injunction. Frisco respectfully requests that the Court sign the attached proposed Order of Nonsuit, approving Frisco's Nonsuit of all its claims against Wynnwood Peninsula Partners, L.P. and the City of The Colony, Texas without prejudice. NOTICE OF NONSUIT - Page 1 ARBJ #562453 Respectfully submitted, ABERNATHY, ROEDER, BOYD & JOPLIN, P.C. Richard M. Abernathy State Bar No. 00809500 Ross Wells State Bar No. 24047087 1700 Redbud Boulevard, Suite 300 McKinney, Texas 75069 Telephone: (214) 544-4000 Telecopier: (214) 544-4040 ATTORNEYS FOR THE CITY OF FRISCO, TEXAS CERTIFICATE OF SERVICE This is to certify that the foregoing Notice ofNonsuit was served upon the following this 12th day of November 2009 by certified mail, return receipt requested or by hand delivery: R. Matthew Molash Robert E. Hager Misty Ventura Nichols Jackson Dillard Hager & Smith L.L.P. K&L Gates LLP 1800 Lincoln Plaza 1717 Main Street, Suite 2800 500 North Akard Dallas, Texas 75201 Dallas, Texas 75201 A"-- Richard M. Abernathy NOTICE OF NONSUIT - Page 2 ARBJ #562453 CAUSE NO. 2009-50183-367 VVYNNWOOD PENINSULA § IN THE DISTRICT COURT-.. PARTNERS, L.P., § Plaintiff, °D § ° o VS. -t 7=- § N ,-n THE CITY OF FRISCO, TEXAS, ? § DENTON 60L' &TY, TXXAS Defendant Cross-Plaintiff and Third-Party Plaintiff, § -4 VS. § THE CITY OF THE COLONY, TEXAS, § Intervenor, Cross-Defendant § and Third-Party Defendant. § 367TH JUDICIAL DISTRICT AGREED MOTION TO RELEASE MONEY FROM REGISTRY OF THE COURT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, the City of Frisco, Texas, Defendant, Cross-Plaintiff, and Third-Party Plaintiff ("Frisco"), and hereby moves the Court for release of the bond money previously posted in the Registry of the Court in the amount of Two Thousand Five Hundred and No/100 Dollars ($2,500.00) and in support of such motion would show the following: I. Frisco, through its attorney of record, Richard M. Abernathy, deposited a Cash Bond for Temporary Restraining Order in the amount of Two Thousand Five Hundred and No/100 Dollars ($2,500.00) with the District Clerk of Denton County, Texas on July 6, 2009. AGREED MOTION TO RELEASE FUNDS - Page 1 560738 II. The parties have entered into a Settlement Agreement regarding this matter and a Motion to Dismiss has been filed with this Honorable Court. III. As of the date of the filing of this Motion, the money previously deposited by Frisco has not been released and Frisco is entitled to these monies. The parties, as evidenced by the signatures of their respective attorneys, agree to the return of the bond monies to Frisco. WHEREFORE, PREMISES CONSIDERED, Defendant/Cross-Plaintiff, and Third-Parry Plaintiff, the City of Frisco, Texas, prays that the District Clerk be ordered to pay to Frisco, through its attorneys, Abernathy, Roeder, Boyd & Joplin, P.C., the sum of Two Thousand Five Hundred No/ 100 Dollars ($2,500.00) previously deposited into the Registry of the Court by Frisco and for all such other and further relief, both general and specific, at law and in equity, which the Court deems just and appropriate. Respectfully submitted, ABERNATHY, ROEDER, BOYD & JOPLIN, P.C. - 4~~ Richard M. Abernathy State Bar No. 00809500 Ross Wells State Bar No. 24047087 1700 Redbud Boulevard, Suite 300 McKinney, Texas 75069 Telephone: (214) 544-4000 Telecopier: (214) 544-4040 ATTORNEYS FOR THE CITY OF FRISCO, TEXAS AGREED MOTION TO RELEASE FUNDS - Page 2 560738 AGREED Misty Ventu*ynnwood Attorney for Peninsula Partners, L.P. CERTIFICATE OF SERVICE This is to certify that the foregoing Agreed Motion to Release Bond Money was served upon the following this (2- m day of November 2009 by certified mail, return receipt requested u~- R. Matthew Molash Robert E. Hager Misty Ventura Nichols Jackson Dillard Hager & Smith L.L.P. K&L Gates LLP 1800 Lincoln Plaza 1717 Main Street, Suite 2800 500 North Akard Dallas, Texas 75201 Dallas, Texas 75201 Richard M. Abernathy AGREED MOTION TO RELEASE FUNDS - Page 3 560738 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P. § Plaintiff, § V. § t~` .c s THE CITY OF FRISCO, TEXAS, § OF DENTON COUN , TJAS Defendant. § § § .4 § § 367TH JUDICIAL DISTRICT COURT MOTION TO DISMISS CLAIMS, WITH PREJUDICE Wynnwood Peninsula Partners, L.P. ("Plaintiff') files this Motion to Dismiss all of Plaintiffs claims in this action, with prejudice to it refiling, and in support of this Motion show as follows: 1. The parties to this case have settled the matters in dispute between them in this action pursuant to a written Settlement Agreement approved by Frisco's City Council on October 6, 2009, and approved by The Colony's City Council on October 20, 2009 (the "Settlement Agreement"). 2. Prior to the filing of this Motion, Intervenor, the City of The Colony, has nounsuited, without prejudice, all of its claims in this action, and Frisco has nonsuited, without prejudice, all of its claims in this case, including its Counterclaim. Accordingly, as of the date of this Motion, the only remaining claims in this action are the claims Plaintiff asserted in Plaintiff s Original Petition against Frisco. 3. In accordance with the Settlement Agreement, Plaintiff requests that the Court dismiss all of Plaintiffs claims in this action, with prejudice to their refiling. _MOTION TO DISMISS CLAIMS, WITH PREJUDICE - Page 1 DA-3067794 v1 WHEREFORE, premises, considered, Plaintiff requests that the Court dismiss all of Plaintiff's claims in this action, with prejudice to it refiling pursuant to the form of Order submitted with this Motion. Respectfully submitted, kr-~ Matthew Molash State Bar No. 14255300 Misty Ventura State Bar No. 00795843 John R. Hardin State Bar No. 24012784 of K&L GATES LLP 1717 Main Street, Suite 2800 Dallas, Texas 75201 Telephone: 214-939-5500 Facsimile: 214-939-5849 ATTORNEYS FOR WYNNWOOD PENINSULA PARTNERS, L.P. CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing was served upon all attorneys of record in the above cause in accordance with the Texas Rules of Civil Procedure on the 12th day of November, 2009, as follows: Richard M. Abernathy Abernathy, Roeder, Boyd & Joplin 1700 Redbud Blvd., Suite 300 McKinney, Texas 75069 Matthew Molash MOTION TO DISMISS CLAIMS, WITH PREJUDICE - Paae 2 DA-3067794 vl CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P., § Plaintiff, § vs. § THE CITY OF FRISCO, TEXAS, § DENTON COUNTY, TEXAS Defendant, Cross-Plaintiff, § and Third-Party Plaintiff, § vs. § THE CITY OF THE COLONY, TEXAS, § 367TH JUDI AL DISIWCT,~ Intervenor, Third-Party § Q a= T Plaintiff, Cross-Defendant. - and Third-Party Defendant. § ORDER GRANTING THE CITY OF THE COLONY'S NOTICE-,O' V NffTIT -_4 r : c, On 2009, came to be considered the City of The Colony's Notiot of Nonsuit. After examining the pleadings and considering the merits, it is accordingly ORDERED, ADJUDGED, AND DECREED that the City of The Colony's Nonsuit is GRANTED and that all claims made by the City of The Colony against the City of Frisco, Texas are hereby DISMISSED without prejudice to the refiling of same and with all costs to be borne by the party incurring same. SIGNED this 1Z day of 52009. LEE GABRIEL, PRESIDING JUDGE APPROV AS TO FORM: Richard Abernathy, Counsel for City of Frisco, Texas TM 40138 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P., § Plaintiff, § VS. § THE CITY OF FRISCO, TEXAS, § o C5 § DENTON NCO &4_ b X Defendant, Cross-Plaintiff, §p=„ and Third-Party Plaintiff, § VS. THE CITY OF THE COLONY, TEXAS, § Intervenor, Cross-Defendant § and Third-Party Defendant. § 367TH JUDICIAL DISTRICT ORDER ON THE CITY OF FRISCO, TEXAS' NOTICE OF NONSUIT On November 12, 2009, came to be considered the City of Frisco, Texas' Notice of Nonsuit. After examining the pleadings and considering the merits, it is accordingly ORDERED, ADJUDGED, AND DECREED that the City of Frisco, Texas' Nonsuit is GRANTED and that all claims made by the City of Frisco, Texas against Wynnwood Peninsula Partners, L.P. and the City of The Colony, Texas are hereby DISMISSED without prejudice to the refiling of same and with all costs to be borne by the party incurring same. SIGNED this JZ_ day of November 2009. JUDGE PRESIDING ORDER ON NONSUIT - Page Solo ARBJ #562454 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P., § Plaintiff, § VS. § THE CITY OF FRISCO, TEXAS, § x § DENTON d~bUNTY, TE . W1_ Defendant, Cross-Plaintiff, § - ma y;;, c~ - and Third-Party Plaintiff, § I rl VS. § § - , THE CITY OF THE COLONY, TEXAS, O Intervenor, Cross-Defendant § and Third-Party Defendant. § 367TH JUDICIAL DISTRICT AGREED ORDER GRANTING THE CITY OF FRISCO'S MOTION TO RELEASE MONEY FROM REGISTRY OF THE COURT After considering Defendant, Cross-Plaintiff, Third-Party Plaintiff, City of Frisco, Texas', Motion to Release Money From the Registry of the Court and the pleadings, the Court GRANTS the City of Frisco, Texas' Motion to Release Money From Registry of the Court in its entirety. The District Clerk is ORDERED to release the Two Thousand Five Hundred and No/ 100 Dollars ($2,500.00) previously deposited by the City of Frisco, Texas to the City of Frisco, Texas' attorneys, Abernathy, Roeder, Boyd & Joplin, P.C. SIGNED on November 1,) 2009. JUDGE PRESID G ORDER GRANTING MOTION TO RELEASE FUNDS - Page 1 560749 AGREED: Richard M. Abernathy Attorney for the City of Frisco, Texas Misty Vent #6 Attorney for Wynnwood Peninsula Partners, L.P. ORDER GRANTING MOTION TO RELEASE FUNDS - Page 2 560749 CAUSE NO. 2009-50183-367 WYNNWOOD PENINSULA § IN THE DISTRICT COURT PARTNERS, L.P. § Plaintiff, § V. § § w THE CITY OF FRISCO, TEXAS, § OF DENTON COUITY,~Al Defendant. § § 367TH JUDICIAL DISTRT COURT ORDER OF DISMISSAL WITH PREJUDICE Came on for consideration the Motion to Dismiss Claims With Prejudice filed by Wynnwood Peninsula Partners, L.P. ("Plaintiff'). The Court, having considered the Motion, finds that it should be granted. It is, therefore, ORDERED that all of Plaintiff's claims in this action are dismissed with prejudice to their refiling. It is further ORDERED that all costs are taxed against the party incurring those costs. This Order finally disposes of all claims and parties and is appealable. SIGNED this 12r day of November, 2009. JUDGE PRESIDING ORDER OF DISMISSAL WITH PREJUDICE - Page Solo DA-3067779 v1