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N.P.9/21/2000
This is a double appeal from summary judgment in a declaratory judgment action. N.P., Inc. ("N.P.") appeals summary judgment holding that Jerald A. Turboff, Trustee and Julius Glickman ("Turboff") are entitled to receive proceeds from Harris County Municipal Utility District No. 36 ("MUD 36") for Turboff's construction of utility facilities now owned by N.P. In the second appeal, Turboff appeals the denial of its request to compel N.P. to convey the facilities to MUD 36, so that MUD 36 could pay the proceeds to Turboff. We affirm.
FACTS
On February 29, 1984, Turboff entered into a Utility Development Agreement with MUD 36 to develop a certain tract of land (approximately 137 acres) and construct certain water, sewer, and drainage facilities, and for MUD 36 to reimburse Turboff for the construction through the issuance of bonds.
The agreement provided that upon completion of the construction, the developer was obligated to sell and MUD 36 was obligated to purchase the facilities for a purchase price. The obligation to purchase, however, only arose when the construction was completed and approved, MUD 36 had issued sufficient bonds to pay the purchase price, and the Texas Water Commission had approved the purchase. In addition, Turboff agreed to lease the facilities to the District during the period of time between the completion of the facilities and the purchase by the District.
The agreement further provided for the assignment of district proceeds as follows: "It is expressly agreed and understood that to aid and assist the Developer in the financing of its development and the improvements to be constructed hereunder, the Developer shall have the right, power and authority to negotiate, assign, pledge or hypothecate any sums due it or to become due it from the District, or the Developer's contract right to receive any such sums arising out of and by virtue of this Agreement." In addition, the agreement stated, " ll representations, warranties and agreements of the District and the Developer shall survive the conveyance of the facilities."
To finance the construction, Turboff obtained a loan from First Texas Savings Association ("First Texas") with a promissory note for $26,000,000. He spent approximately $2 million constructing water, drainage, and sewage facilities. Turboff purportedly defaulted on the note, however, and in June 1986, the lender foreclosed on the property.
On December 27, 1988, Turboff entered into an "Agreement and Release" with First Texas to settle the pending lawsuit and disputed claims between them and to constitute full satisfaction of Turboff's obligations under the loan agreement and promissory note. Their agreement specifically provided for the release of any claim by First Texas to receivables under the 1984 utility agreement and for the assignment of the receivables to Turboff. It further acknowledged an assignment of interest in the receivables to Glickman, for the payment of attorney's fees. First Texas agreed to undertake all necessary and reasonable action to confirm ownership in Turboff to the receivables. Finally, the execution and delivery of the agreement constituted a binding obligation of First Texas, and its successors and assigns.
First Texas also executed a "Stipulation of Interest" specifically referencing the 1984 MUD 36 agreement. For a sufficient consideration received, First Texas and its successors and assigns stipulated and agreed that all proceeds payable to the developer under the MUD agreement were payable to Turboff and Glickman. In the stipulation, First Texas transferred, assigned, and conveyed to Turboff and Glickman "such interest in the 'M.U.D. Receivable'
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