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Francis Throop Survey, Abstract No. 1511 - Supplemental Compromise Settlement Agreement ORIGINAL DOCUMENT CITY OF SOUTH41.13 Council Actio Ord./Res.No. SUPPLEMENTAL COMPROMISE SETTLEMENT AGREELNI , vedf-)1—/ (n ARTICLE I. RECITALS 1. Gerald C. and Barbara Graham ("the Grahams") own certain property located at 1380 North Kimball Avenue, in Southlake, Tarrant County, Texas, further described as Tracts 2a2 and 2E, Abstract 1511, in the Francis Throop Survey (the "Property"). The City of Southlake, Texas, ("the City") previously filed an Original Petition for Condemnation against Gerald C. and Barbara Graham ("the Grahams") seeking to acquire certain property and property interests from Grahams by virtue of Plaintiff's eminent domain power, as Cause Number 2012- 004229-3, in County Court at Law No. 3 of Tarrant County, Texas (the "Condemnation Action"). 2. The parties subsequently settled and compromised the issues arising out of that Condemnation Action through the execution of a Compromise Settlement Agreement and Release (the "Original Settlement Agreement"), a Special Warranty Deed in Settlement of Condemnation (the "ROW Deed"), a Non-Exclusive Utility, Drainage, and Wall Easement Agreement In Settlement Of Condemnation (the "Permanent Easement Agreement"), a Temporary Construction Easement In Settlement Of Condemnation (the "Temporary Construction Easement Agreement"), and a Temporary Easement In Settlement of Condemnation (Removal of Structure) (the "Removal of Structure Temporary Easement Agreement") to remove a residence previously located on the Property (all of which documents are collectively referred to herein as the "Original Settlement Documents"). 3. Subsequent to the execution of the Original Settlement Documents, the Grahams asserted claims relating to the City's actions following the execution of the Original Settlement Documents, specifically including the following allegations, all of which, other than subparagraph a., the City denies: a. The City continued use of the Temporary Easement Area after the City failed to elect to extend the Temporary Easement Agreement at the conclusion of the Initial Temporary Easement Term by giving Grahams the required Extension Notice no later than ninety (90) days before the expiration of the Initial Temporary Easement Term and paying to Grahams at that time the sum of Five Thousand Dollars ($5000.00), as required by Section 4.03 of the Original Settlement Agreement; b. The City failed to restore the "Temporary House Removal Easement Area" to the same or better condition in which it was prior to the City's use, with the exception of the structures to be demolished by the City pursuant to the Original Settlement Agreement as required by Paragraph 9 of the Removal of Structure Temporary Easement Agreement; c. The City failed to cover all of "the Temporary House Removal Easement Area with St. Augustine grass sod of a good quality," as required by Paragraph 5 of the Removal of Structure Temporary Easement Agreement; SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 1 55936.6 d. The City failed to restore all of the Temporary Easement Area to the same or better condition in which it was prior to the City's use, with the exception of: i) the structures to be demolished by the City pursuant to the Original Settlement Agreement; and ii) the portion of the Temporary Easement Area upon which the City constructed a new driveway for the Grahams pursuant to Paragraph 5.01 (g) of the Original Settlement Agreement, as required by paragraph 9 of the Temporary Construction Easement Agreement; e. The City failed to cover all of the Temporary Easement Area with St. Augustine grass sod of a good quality, as required by paragraph 5 of the Temporary Construction Easement Agreement; f. As to other portions of the Grahams' property outside the Permanent Easement Property that were damaged as a result of Grantee's activities, the City failed to repair and restore such damaged area to its pre-damage condition, as required by paragraph 7 of the Permanent Easement Agreement; g. The City exceeded its rights under the Temporary Construction Easement Agreement by working outside the Temporary Easement Area and by making nonpermitted uses of the Temporary Easement Area, including subsurface uses, which, among other things, had the effect of altering the drainage on the Grahams' property in a way that has and will damage the property; h. The City exceeded its rights under the Original Settlement Documents by removing an approximately 85 foot tall pine tree from the Grahams' property; which tree was approximately 78 inches in circumference and is estimated to be at least 60 years in age; i. The City exceeded its rights under the Original Settlement Documents by removing, and then refusing to replace a wooden fence located on the Grahams' property near the southern boundary line of the Grahams' property; j. The City exceeded its rights under the Original Settlement Documents by excavating dirt from the Temporary Easement Area Agreement; k. The City exceeded its rights under the Original Settlement Documents by replacing clean dirt excavated from the Grahams' property with dirt filled with rock, asphalt chunks, concrete, wire, cable, and other construction debris; 1. The City failed to mow the Permanent Easement Area; and m. The City has allowed pooling of water at the base of the retaining wall and also allowed water to run across the City installed sidewalk. These allegations, any other alleged breaches of the Original Settlement Documents prior to the Effective Date (as defined below), and any other claims of the Grahams against the City relating to the City's actions or inactions in connection with the Property which arose prior to the SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 2t �ACJJ� 55936.6 Effective Date (as defined below), whether specifically described herein or not, and whether previously asserted or not, are referred to herein as the "Controversy." 4. The parties wish to avoid the potential uncertainty and expense of protracted litigation and have reached an agreement to settle the Controversy on the terms set forth in this Supplemental Compromise Settlement Agreement and Release (the "Supplemental Settlement Agreement"). 5. The terms and conditions of this Supplemental Settlement Agreement are a compromise and settlement of disputed claims, the validity, existence, or occurrence of which are expressly denied by the City. It is understood and agreed by the parties that neither the execution of this Supplemental Settlement Agreement nor the payment of any consideration constitutes an admission by the City of any fault, liability, culpability or wrongdoing, of the validity of any claim of the Grahams, or of any violation of any rights of the Grahams under any contract, federal, state, or local statute, constitution, law, ordinance, regulation or common law, or of any harm to the Grahams, all of which the City expressly denies. ARTICLE II. DEFINITIONS 1. The Terms defined in the Original Settlement Documents will have the meanings provided therein. All other capitalized terms will have the meaning given them in the Original Settlement Documents and/or in this Supplemental Settlement Agreement. 2. This Supplemental Settlement Agreement will be effective as of August 10016 (the "Effective Date"). ARTICLE III. PAYMENT OF ADDITIONAL MONETARY CONSIDERATION 1. Within ten (10) calendar days of the Effective Date, the City will pay the Grahams a one-time, lump sum payment of Twenty-Five Thousand Dollars ($25,000.00) in consideration for the compromise and settlement of the Controversy on the terms set forth in in this Agreement. 2. Contemporaneously with the execution of this Supplemental Settlement Agreement, The City and the Grahams will execute the First Amendment to the Permanent Easement Agreement attached hereto as Exhibit 1. ARTICLE IV. CITY ACKNOWLEDGEMENTS 1. The City confirms and ratifies its obligations and the Grahams' rights under the Permanent Easement Agreement, as amended in the First Amendment to Permanent Easement Agreement attached hereto as Exhibit 1, which the City has signed contemporaneously with the execution of this Supplemental Settlement Agreement. SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 3 �/(JJy, 55936.6 AMENDED BY THIS SUPPLEMENTAL SETTLEMENT AGREEMENT, AND BOTH PARTIES CONFIRM, ACKNOWLEDGE AND AGREE THAT THEY ARE NOT RELYING ON ANY REPRESENTATIONS, STATEMENTS, OR WARRANTIES OTHER THAN THOSE EXPRESSED, RATIFIED OR CONFIRMED IN THE ORGINAL SETTLEMENT DOCUMENTS AND THIS SUPPLEMENTAL SETTLEMENT AGREEMENT. 3. This Supplemental Settlement Agreement binds, benefits, and may be enforced by the parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. 4. In case any one or more of the provisions contained in this Supplemental Settlement Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, this invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Supplemental Settlement Agreement shall be construed as if the invalid, illegal, or unenforceable provision had never been contained herein. 5. Words of any gender used in this Supplemental Settlement Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 6. Any notice required or permitted to be delivered under this Supplemental Settlement Agreement shall be deemed received when sent by certified United States mail, postage prepaid, return receipt requested, addressed to the Grahams or the City, as the case may be, at the address set forth below the signature of the party hereunder or such other address as the Grahams or the City may provide by written notice to the other party. Further, any notice to the Grahams will also be given to the Grahams' attorney, R. Matthew Molash, Shupe Ventura Lindelow & Olson, PLLC, 500 Main Street, Suite 800, Fort Worth, Texas 76102, or such other address as the Grahams' attorney may provide by written notice to the City, and any notice to the City will also be given to the City's attorney, Tim G. Sralla, Taylor, Olson, Adkins, Sralla & Elam, LLP, 6000 Western Place, Suite 200, Fort Worth, Texas 76107, or such other address as the City's attorney may provide by written notice to the Grahams. 7. This Supplemental Settlement Agreement may be amended only by an instrument in writing signed by all the parties. 8. If this Supplemental Settlement Agreement is executed in multiple counterparts, all counterparts taken together constitute this Supplemental Settlement Agreement. Copies of signatures to this Supplemental Settlement Agreement are effective as original signatures. 9. This Supplemental Settlement Agreement is binding on City and enforceable under Texas A&M University-Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002) and City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App.--Fort Worth 2007, pet. denied) as clarified by any subsequent decisions of the Texas Supreme Court or the Fort Worth Court of Appeals. In the event of a suit by Grahams against the City for breach of this Supplemental Settlement Agreement, City will not assert immunity from any such claim for breach of this Supplemental SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Pa4._ 55936.6 Settlement Agreement asserted as part of such suit, pursuant to the law as set out in the cases cited above, but the City does not waive its right to assert governmental immunity for any other claims or causes of action, regardless whether such other claims or causes of action are related to or arise out of the same or different facts, and the City does not waive its right to assert governmental immunity and/or statutory protections against recovery of any types of damages other than actual damages, including punitive or exemplary damages. 10. The prevailing party in any adjudication of any proceeding relating to this Supplemental Settlement Agreement or any documents executed in connection with this Supplemental Settlement Agreement may recover its reasonable and necessary attorney's fees. [END OF TERMS—SIGNATURES TO FOLLOW ON NEXT PAGE] SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 7 55936.6 Executed this /„A day of August, 2016. GERALD AND BARBARA GRAHAM P.O Box 1512 Grapevine, Texas 76099-1512 eral C. Graham %RI. A.jatirN :ar•ara Gr. am ACKNOWLEDGMENT—GERALD C. GRAHAM Before me, the undersigned authority in and for the State of Texas, on this day personally appeared erald C. Graham, known to me (or proved to me on the oath of or� through j Q,� [description of identity card or other document]) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office, this the l,al day of August, 2016. �''ti!• Pus�� Elsie Rice :•=o.•• sem:Notary Public.State of Texas 7...,!.'.. 14.2:i Comm.Expires 10-16-2016 Notary Public in and for The State of Texas -%' OF���� Notary ID 125011609 . nu,°�a My Cbmmission�,xprres: 5/e. AIC `6' /d -/6 ^ /` Typed or Printed Name of Notary ACKNOWLEDGMENT—BARBARA GRAHAM Before me, the undersigned authority in and for the State of Texas, on this day personally appeared arbara Grahj known to me (or proved to me on the oath of or through )Q � r [description of identity card or other document]) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office, this the day of August, 2016. ,,,"g•o'a," Elsie Rice -------Q.--A1--.4 kt,(% - .`o4, •.p - :; �+:Notary Public,State of Texas • Comm.Expires 10-16-2016 Notary Public in and for The State of Texas C°: of,,,,, Notary ID 125011609 // C p Wicse j0 /6- Typed or Printed Name of Notary SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 8 55936.6 Executed this /O*day of August, 2016. CITY OF SOUTHLAKE, TEXAS By: 3' 4 ,,,,,,,,l„lllt,,, Mayor Attest: : 4. .•° °;Cts -g F'^• 1 -z..., are— i City Secretary �'i,„s,�lllliric ,,,,,,, ACKNOWLEDGMENT—CITY OF SOUTHLAKE Before me, the undersigned authority in and for the State of Texas, on this day personally appeared t4 L r& (4 i (( , known to me (or proved to me on the oath of or through [description of identity card or other document]) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that she/he executed the same for the purposes and consideration therein expressed. I Given under my hand and seal of office, this the I L-• day of August, 2016. w,°,�� 4, , laFl Payne , .:; :Notary Public,State of Texas ;';�. , +p Comm.Expires 10-27-2017 °`` ,' Notary ID 11019863 Notary Public in or The State of Texas My Commission Expires: Lertad/' ki e.Typed or Printed NNane of Notary SUPPLEMENTAL COMPROMISE SETTLEMENT AGREEMENT Page 9 55936.6