HomeMy WebLinkAboutCity Council Resolutions (R-89-410)-03/07/1989
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RESOLUTION NO.
R-89-410
WHEREAS, there is currently pending a suit styled Builders
Association of Fort Worth and Tarrant County, Gary
Sheffield and Alan Youngblood v. City of Co11eyvi11e
in the 67th District Court of Tarrant County, Texas
bearing Cause No: 67-101203-86, wherein the
imposition of impact fees by the City of Colleyville
has been challenged; and
the parties to that suit have negotiated a settlement
which is a fair and equitable resolution of the
dispute; and
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I WHEREAS,
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WHEREAS, a written agreement which contains recitations, all
of which recitations are hereby incorporated herein
for all purposes as if fully written, and provides
for the disposition of all issues between the
parties,
11 NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF COLLEYVILLE, TEXAS:
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Sec. 1:
That the Release and Settlement Agreement which is
attached hereto as Exhibit "A" be entered into by the
City and that the Mayor is hereby authorized to
execute same by and on behalf of the City of
Colleyvil1e.
That Resolution number 88-372 prohibiting the
spending of capital recovery funds is hereby declared
to be of no further force or effect.
Sec. 2:
AND IT IS SO RESOLVED.
pass'tf}ra!clYi of </.
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on this
1-ti? day of
to
1989.
CITY OF COLLEYVILLE
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;tJ. R. Hubbard
Mayor
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21 City Secretary
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:a:;~UGA~RM:
Ro sT. (Foster ----
City Attorney
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RELEASE AND SETTLEMENT AGREEMENT
THIS AGREEMENT is made this the day of
, 1989, by and between the CITY OF
COLLEYVILLE, a home rule municipal corporation in the State of
Texas, hereinafter "City", the BUILDERS ASSOCIATION OF FORT WORTH
AND TARRANT COUNTY, a non-profit Corporation organized under the
laws of the State of Texas and consisting of members of the
building industry, hereinafter "Association", GARY SHEFFIELD, an
individual, hereinafter "Sheffield", and ALAN YOUNGBLOOD, an
individual, hereinafter "Youngblood". The Association, Sheffield
and Youngblood are sometimes collectively referred to herein as
"Plaintiffs".
WHEREAS, in November of 1986, the city enacted ordinances
requiring the payment of fees upon issuance of building permits
to finance roadway and water system improvements to the City,
("impact fees"), and
WHEREAS, said ordinances provided for adjustment procedures
to reduce impact fees based upon the installation of improvements
to the City's roadway and water distribution systems by owners of
the property subject to impact fees, and
WHEREAS, certain owners have requested and received
adjustments to impact fees under the terms of the ordinances, and
WHEREAS, the impact fees paid on the lots listed in Schedule
"A" hereto have been adjusted in accordance with the terms of the
ordinances, and
WHEREAS, substantial improvements were made to the City'S
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roadway and water distribution system by owners of other
residential property subject to impact fees without a
corresponding reduction in impact fees, and
WHEREAS, numerous builders have paid impact fees to the City
on residential lots which would have been subject to adjustment,
as the result of the installation of improvements, and
WHEREAS, the City deems it is fair and equitable to allow an
adjustment of impact fees to reflect the value of improvements
made to the City for which no adjustment has been previously
given, and
WHEREAS, the City finds that at this time it would be
impossible to compute pursuant to the City's impact fee
ordinances the exact amount of adjustment, which should be made
on each lot, and
WHEREAS, the City finds that an adjustment of the roadway
impact fee to $1,265.00 and the water distribution impact fee to
$620.25 as of December 1, 1989 for all residential lots in the
city, which have not received an adjustment, is fair, equitable
and in accordance with the intent of the City's impact fee
ordinances, and
WHEREAS, the Association, Sheffield and Youngblood have
challenged the validity of the impact fees assessed by the city
on residential lots on several basis, including the failure of
the city to make adjustments for improvements added to the City,
in a suit filed in the 67th District Court of Tarrant County,
Texas, styled Builders Association of Fort Worth and Tarrant
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County, Garv Sheffield and Alan Younqblood v. city of
Collevville, No. 67-101203-86, and
WHEREAS, subsequent to the passage of the ordinances
imposing impact fees by the City, the legislature of the State of
Texas adopted V.A.T.S. Article l269j - 4.11, which regulates the
adoption of impact fees and requires that existing impact fee
ordinances be revised to comply with said Statute, and
WHEREAS, the City, the Association, Sheffield, and
Youngblood desire to settle all matters in controversy, and
NOW, THEREFORE, for and in consideration of the mutual
covenants, conditions and promises contained herein, the parties
agree as follows:
1. Revision of Impact Fees
1.1. The City shall immediately begin the process of
revising its impact fee ordinances in compliance with the
provisions of V.A.T.S. Article l269j - 4.11, as amended.
1.2. Except for those impact fees referred to in
paragraphs 2.1 and 2.2 below, and except for those fees set out
in paragraph 3 below, the City shall not henceforth impose any
impact fee, or charge any other fee, upon issuance of a building
permit, except in accordance with V.A.T.S. Article 1269j - 4.11.
1.3. The membership of the Advisory Committee of the
City, established pursuant to section 7 of V.A.T.S. Article 1269j
- 4.11, shall be revised so that 40% of its members shall be
individuals nominated by the Association and approved and
appointed by the City Council of the City. If the Association
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fails to nominate individuals to the Advisory Committee within 10
days' written notice by the City, then the city Council may
appoint anyone it deems appropriate.
2. Interim Impact Fees
2.1. From December 1, 1988, until a roadway impact fee
is adopted by the City pursuant to V.A.T.S. Article 1269j - 4.11,
no person shall be required to pay a residential roadway impact
fee which exceeds the sum of $1,265.00.
2.2. From December 1, 1988, until a water distribution
impact fee is adopted by the City pursuant to V.A.T.S. Article
1269j - 4.11, no person shall be required to pay a residential
water distribution impact fee which exceeds the sum of $620.25.
3. Adjustment of Other Fees
3.1. The City shall immediately review all fees
charged builders, including, but not limited to, inspection fees,
tap fees, meter deposit fees, and other fees for services
supplied by the City upon the issuance of a building permit. The
City shall adjust those fees where necessary to reflect the
actual cost incurred by the City in performing the inspection,
installing the tap or meter, or performing the other services for
which the fee is charged.
4. Refunds
4.1. As to each building permit issued for a residence
and issued on or before November 30, 1988, for which an impact
fee was collected, the City shall refund the sum of $900.00 per
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lot.
4.2. As to each building permit issued on or before
November 3D, 1988, upon which an impact fee was collected for
installation of a sprinkler system on commonly owned property,
the City shall refund a sum equal to 50% of the roadway impact
fee paid and 25% of the water impact fee paid.
4.3. As to each building permit issued for a residence
and issued on or after December 1, 1988, for which an impact fee
was collected, the City shall refund the difference between the
impact fee paid and the amounts set forth in paragraphs 2.1 and
2.2 above.
4.4. The obligation of the city to pay the refunds
here provided for shall be conditioned upon compliance with parts
5.1 and 5.2 below.
5. Refund Procedure
5.1. All refunds provided for under this agreement
shall be made pursuant to the following procedure:
(a) A written application for said refund must be
made to the City within 180 days of the date of dismissal of the
above described litigation pursuant to paragraphs 7.1-7.3 below.
(b) Each written application for refund shall be
accompanied by reasonably sufficient proof that the applicant is
the original payor of the impact fee on identified lots. The
sufficiency of proof of payment shall be determined in the
reasonable discretion of the City.
(c) The identified lots or common property on
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which refund is sought shall not be listed in Schedule "A"
hereto.
(d) The applicant shall execute a Release in a
form sUbstantially the same as the document attached hereto as
Exhibit "B".
5.2. In the event the City is subjected to multiple or
disputed claims to a particular refund, the City may satisfy its
obligation hereunder by filing an interpleader action in Tarrant
County, Texas, and paying the disputed amount into the registry
of the Court to be distributed pursuant to the Order of the
Court.
5.3. The Association shall use its best efforts to
require and shall cooperate with its members in making
applications, receiving refunds and executing releases to the
City.
6. Payment to Association
6.1. Upon the execution of this Agreement and
compliance with section 7.1 hereof, the City shall pay the sum of
$112,000.00 into escrow with , as
Escrow agent.
6.2 Said escrow shall be deposited in two interest
bearing accounts, each totalling $56,000.00. Said sums shall be
held and distributed by the Escrow agent as follows:
(a) The sum of $56,000.00, plus accumulated
interest on said amount, shall be paid to the Association when
the suit is dismissed pursuant to paragraph 7.1 and 7.2 below.
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(b) The remaining funds, including accumulated
interest, shall be paid to the Association when the City has made
refunds or received releases, in accordance with paragraph 5
above, for 280 lots, other than lots located in Schedule "A"
hereto.
6.3. If the suit is not dismissed in accordance with
paragraph 7.1-7.3 below, then the Escrow agent shall return all
of said funds, with accumulated interest, to the City. If the
suit is so dismissed and in the further event that the City
ultimately does not make refunds and/or receive releases for 280
lots, in accordance with paragraph 6.2(b) above, then the Escrow
agent shall return the funds described in 6.2(b) above plus
accumulated interest, to the City.
7. Settlement Procedure
7.1. Upon the execution of this Agreement, Plaintiffs
and Defendants shall execute a Joint Motion for Severance and
Dismissal, together with an Agreed Order, in the form attached
hereto as Exhibit "C". Said Motion and Order shall be delivered
to the City's Attorney in escrow and shall not be submitted to
the Court until the City has passed the resolution herein
described. The City shall proceed to consider a resolution
adopting a general adjustment to impact fees, which results in
the imposition of the fees set out in sections 2.1 and 2.2
hereof.
7.2. Upon signing of the Agreed Order by the Court and
passage of the resolution by the City, the Escrow agent shall pay
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$56,000.00 to the Association as provided in section 6.2(a)
above.
7.3. The City shall select the members of the Advisory
Committee as provided for in paragraph 1.3 above.
8. Non-participation
8.1. The Association, Sheffield, and Youngblood shall
not in any manner cooperate or participate, whether actually or
by financial contribution, in any claim, cause of action or suit
against the City by any other person or entity arising out of
impact fees paid or assessed by the City prior to the date of
this Agreement, or any impact fee paid or assessed after the date
of this Agreement, so long as said fee complies with the terms of
this Agreement and V.A.T.S. Article 1269j - 4.11, except for
litigation to enforce this Agreement. The City shall not in any
manner challenge the validity of this Agreement.
9. Release
9.1. The Association, Sheffield and Youngblood hereby
fully, finally, and forever, release, discharge and quit-claim
the City from any and all claims or causes of action which it had
or may have had as a result of the adoption, assessment, or
collection of any impact fee prior to the execution of this
Agreement, except otherwise set forth herein. The city hereby
fully, finally, and forever, releases, discharges and quit-claims
the Association, Sheffield, and Youngblood from any claim arising
from their filing and prosecuting this suit, including attorney's
fees.
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10. Survival
10.1. In the event any covenant or obligation of the
City given hereunder is held by a Court of competent jurisdiction
to be invalid or void for any reason, such ruling shall not
affect any promise, covenant, obligation, or release herein given
or undertaken by the Association, and the Association shall
perform pursuant to the terms of this agreement, not withstanding
said ruling.
11. Miscellaneous Provisions
11.1. No admissions. This Agreement including the
Agreed Order referred to in paragraph 1 above, is made and
entered into to settle a dispute between Plaintiffs and the City.
By entering into this Agreement and by approving the Agreed Order
and by converting to the dismissal of this suit with prejudice,
no party makes any admission for any purpose whatsoever.
11.2. Governing Law. This Agreement shall be
construed in accordance with and governed by the laws of the
State of Texas. Venue for any action that may be brought in
connection with the enforcement of this Agreement shall be
Tarrant County, Texas.
11.3. The City shall pay the amounts which it is
required to pay under this Agreement from impact fees previously
collected. The City represents that the impact fees which it
has collected are and shall be sufficient to pay all amounts due
under this Agreement.
11.4. Entire Agreement. This Agreement contains the
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entire agreement between the parties with respect to the
transactions contemplated herein and supersedes all previous
written or oral negotiations, commitments and understandings. No
representations and warranties are made by any of the partes
other than those expressly contained in this Agreement.
11.5. Counterparts and Headings. This Agreement may
be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
and the same instrument. All headings are inserted for
convenience of reference only and shall no affect its meaning or
interpretation.
11.6. Severability. If and to the extent that any
court of competent jurisdiction holds any provision (or any part
thereof) of this Agreement to be invalid or unenforceable, such
holding shall in no way affect the validity of the remainder of
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
Attest:
CITY OF COLLEYVILLE
LaVada Johnson,
City Secretary
By:
Buck Hubbard, Mayor
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GARY SHEFFIELD
ALAN YOUNGBLOOD
Approved:
Frank Gilstrap,
Attorney for Association,
Sheffield and Youngblood
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BUILDERS ASSOCIATION OF FORT
WORTH AND TARRANT COUNTY
By:
President
Ross T. Foster,
Attorney for City of
colleyville
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SCHEDULE "A"
Lot/Block
Subdivision
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The Hills of Central Park
of the City of Co11eyville
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The Hills of Central Park
of the City of Co11eyvi11e
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EXHIBIT "B"
RELEASE
For and in consideration of the payment of
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), and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, I,
the undersigned, hereby fully, finally and forever RELEASE,
DISCHARGE, AND QUITCLAIM the City of Colleyville from any and all
claims or causes of action which arise out of or pertain to the
imposition or collection by the City of Colleyville of impact
fees, prior to the date of this release.
I recognize that the payment of the foregoing consideration
by the City of Colleyville is done for the purposes of settling
any claim I may have against the City, is for the purpose of the
City buying its peace, and does not constitute an admission of
anything on the part of the City.
In witness I have hereby set my hand onto this document on
the
day of
19
STATE OF TEXAS
COUNTY OF TARRANT
This instrument was acknowledged before me on the
day of
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, by
Notary's commission Expires:
Notary PUblic,
State of Texas
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EXHIBIT "c"
NO: 67-101203-86
BUILDERS ASSOCIATION OF
FORT WORTH AND TARRANT
COUNTY, GARY SHEFFIELD
AND ALAN YOUNGBLOOD
CITY OF COLLEYVILLE
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TARRANT COUNTY, TEXAS
IN THE DISTRICT COURT
VS.
67TH JUDICIAL DISTRICT
JOINT MOTION FOR SEVERANCE
AND DISMISSAL WITH PREJUDICE
NOW COMES, the Plaintiffs herein, BUILDERS ASSOCIATION OF
FORT WORTH AND TARRANT COUNTY, GARY SHEFFIELD AND ALAN
YOUNGBLOOD, and the Defendant, CITY OF COLLEYVILLE, and file this
Joint Motion for Severance and Dismissal with Prejudice and would
show unto the Court as follows:
1. This suit was originally filed by Plaintiffs
against the Defendant, challenging the validity of certain
ordinances passed and adopted by the Defendant. Subsequent to
the filing of Plaintiffs' suit, without leave of Court, Northeast
Properties, Inc., intervened in said suit and asserted rights
similar to those asserted by the Plaintiffs herein.
2. The Plaintiffs and the Defendant have settled all
matters in controversy between the parties and desire that the
original suit be dismissed with prejudice to the right of the
Plaintiffs to refile same.
WHEREFORE, PREMISES CONSIDERED, the Plaintiffs and the
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Defendant pray that the original suit of the Builders Association
of Fort Worth and Tarrant County, Gary Sheffield and Alan
Youngblood vs. the City of Colleyville, be severed from the
claims of Northeast Properties, Inc., against the City of
Colleyville. The parties further pray that after said severance
that the original suit be dismissed with prejudice to the right
of either party to refile same. The parties pray for general
relief.
Respectfully submitted,
STAPLES, FOSTER & HAMPTON
Ross T. Foster
860 Airport Freeway West
Suite 701
Hurst, Texas 76054
(817) 281-2222
State Bar No. 07295500
Attorney for Defendant
Frank Gilstrap
Attorney for Plaintiffs
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NO: 67-101203-86
BUILDERS ASSOCIATION OF
FORT WORTH AND TARRANT
COUNTY, GARY SHEFFIELD
AND ALAN YOUNGBLOOD
VS.
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67TH JUDICIAL DISTRICT
IN THE DISTRICT COURT
TARRANT COUNTY, TEXAS
CITY OF COLLEYVILLE
ORDER OF SEVERANCE AND
DISMISSAL WITH PREJUDICE
Came on to be heard on the
-A
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A6'r; L
Defendant
herein
,
1989, the joint motion of the Plaintiffs and the
for severance and dismissal with prejudice. The Court after
reviewing the pleading_ and hearing argument i. ot the opinion
that said Motion should be in all things granted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the suit
of the Builders Association of Fort Worth and Tarrant county,
Gary Sheffield and Alan Youngblood vs. the City of Colleyville be
severed from the suit of Northeast Properties, Inc., as
Intervenor, against the City of Colleyville.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the
continuing cause of action of Northeast Properties, Inc., against
the City of Colleyville be assigned Cause No:
and the severed cause of action wherein the Builders Association
of Fort Worth and Tarrant County, Gary Sheffield and Alan
Youngblood are Plaintiffs and the City of Colleyville is
Defendant, retain the original Cause Number of 67-101203-86.
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Cause
Number 67-101203-86 in the 67th District Court of Tarrant County,
Texas, wherein the 8uilders Association of Forth Worth~nd
Tarrant County, Gary Sheffield and Alan Youngblood ar, ~laintiffs
and the City of Colleyville is Defendant be and the same is in
all matters dismissed with prejUdice to the right of either party
to refile same.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs
incurred in Cause Number 67-101203-86 in the 67th District Court
of Tarrant County, Texas be assessed against the party incurring
same for which let execution issue.
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SIGNED this the j.LJ day of
~~Lng
, 19.9 ')
Approved:
Ross T. Foster,
Attorney for Defendant
Frank Gilstrap
Attorney for Plaintiffs
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STAPLES, FOSTER & HAMPTO
ATTORNEYS AT LAW
701 Texas Commerce Bank Building
860 Airport Freeway West
Hurst, Texas 76054
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George Staple., P.C.
ROil T. FOller, P,C.
Carter L. Hempton, P.C.
April 17, 1989
Mr. Larry Wood
Summit Title Company
1330 Summit Avenue
Fort Worth, Texas 76102
Re: Cause No: 67-101203-86
Builders Association of Fort Worth and Tarrant
County, et a1., vs. City of Co11eyvi11e
Dear Mr. Wood:
Please find enclosed a copy of an Order of Dismissal with
Prejudice signed by the Judge in the above referenced cause on
the 14th day of April, 1989. You are additionally advised that
the City has passed the Resolution described in section 7.1 and
7.2 of the Settlement Agreement between the parties.
RTF:dw
Enclosure
cc: Mr. Bo McDaniel, City Manager.
City of Co11eyvi11e
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NO: 67-101203-86
BUILDERS ASSOCIATION OF
FORT WORTH AND TARRANT
COUNTY, GARY SHEFFIELD
AND ALAN YOUNGBLOOD
CITY OF COLLEYVILLE
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TARRANT COUNTY, TEXAS
IN THE DISTRICT COURT
VS.
67TH JUDICIAL DISTRICT
ORDER OF SEVERANCE AND
DISMISSAL WITH PREJUDICE
Came on to be heard on the
day of
,
1989, the joint motion of the Plaintiffs and the Defendant herein
for severance and dismissal with prejudice. The Court after
reviewing the pleadings and hearing argument is of the opinion
that said Motion should be in all things granted.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the suit
of the Builders Association of Fort Worth and Tarrant County,
Gary Sheffield and Alan Youngblood vs. the City of Colleyville be
severed from the suit of Northeast properties, Inc., as
Intervenor, against the City of Colleyville.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the
continuing cause of action of Northeast Properties, Inc., against
the City of Colleyville be assigned Cause No:
and the severed cause of action wherein the Builders Association
of Fort Worth and Tarrant County, Gary Sheffield and Alan
Youngblood are Plaintiffs and the City of Colleyville is
Defendant, retain the original Cause Number of 67-101203-86.
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Cause
Number 67-101203-86 in the 67th District Court of Tarrant County,
Texas, wherein the Builders Association of Forth Worth and
Tarrant County, Gary Sheffield and Alan Youngblood are Plaintiffs
and the City of colleyville is Defendant be and the same is in
all matters dismissed with prejudice to the right of either party
to refile same.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs
incurred in Cause Number 67-101203-86 in the 67th District Court
of Tarrant County, Texas be assessed against the party incurring
same for which let execution issue.
SIGNED this the
day of
, 19
Judge presiding
Approved:
Ross T. Foster,
Attorney for Defendant
Frank Gilstrap
Attorney for Plaintiffs
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