HomeMy WebLinkAboutContract 45400 CITY SIIIRET4!1,,,!
CT W L
CONT now
COMPROMISE AND SETTLEMENT AGREEMENT
COMPROMISE AND ETT I..,E l 'ENT AGRE EM-ENT (this "Agreement"' as of
this, nth day of September,, 2002 arnong
1. The City of Fort Worth, I"Iexas "City l)j
(2) James S. DuBose, individwC.111y, anal as the Trustee of the James S. DuBose
Family Trust ("DUBose"),
3 Colonial Savings ..., .,
(4) JSD/Jl...,.D Deal Estate, Ltd., a Texas limited partnership anal..
(5) GD J LL Real Estate, Ltd.,, a Teas li i rni to l partnership.
Collectively these entities will be referred to herein as the Parties."'
WHEREAS, , n ose owns the DuBose Property as defined bellow and related
entities (herein the Du Bose Affiliates as defined below) Dawn properties adjacent to or,
near the DuBoosc .Property, such entities and properties noted on Exhibit "A"' attached
hereto and incorporated herein by reference (herein the D!uB,ose Affiliates Properties)-,
WHEREAS, Cooloxli l savings F.A., SD J LD Real Estate, Ltd., GDKIJED Real
and Du ose have alleged that Materials of
state, Ltd., `thy, .� s A.��. i llate;s�� , `�
Environmental Con er- as defined below), particularly rnetha e, are present at, can, in,
A.
under, Undeflying anal/or have l-nign-L to l to the DU use Property and the Du Bose
Affiliates Property prom the City Property as defined below) r'SUITOLInding Property as
defined, below), or are otherwise caused b the actions or inactions of the pity, at, on, in,
under, n.Iti
, on i�� � g, from, arising fron , concerning, and/or related to the Landfill (as
defined below';
WHEREAS, disputes have arisen between the Parties regarding the alleged
responsibility for the aforenientione alleged releases and the environmental response
ancUor rernedi ati on costs and dani ages allegedly inctirred by DU ose and the DU Bose
WHEREAS, DuBose filed the La sit (as defined below) against the City
seeking a,mon other things recover of m � � y certain alleged darriages to thl.-,-, DuBose Property,
WHEREAS, the City filed .n answer to the Du Bose petition,
WHEREAS, the D ose Affiliates were not named in the Lawsuit butt are the
owners of the DuBoseAffiliates Property and allege to have claims or potential claims
against the City,
WHEREAS, the Parties wish to avoid further expense and litigation and to
compromise, settle, and resolve the claims and causes of action as provided in this
Agreement without ut any admission of liability by any party to any other party or person,
firm, or entity.
CONFIDENT IAA COMPROMISE OMISE AND SETTLEMENT AGREEMENT—Page 1
502541 000002 1480468.1 RECEIVED MAR 04
NOW, THEREFORE, for and in consideration of the Mutual promises, covenants,
and agreements herein contained, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows
L INCORPORATION of RECITALS
I. The recitals set fort h above are intended solely to describe the
background of this Agreement and form no part of this Agreement.
I.I. CERTAIN DEFINITIONS
". In addition to those defined above, for purposes of this Agreement
the following definitions shall be used:
a. ",Ci ty Prop 17 shall mean any S ur roundi ng property i n
which the City holds an interest, any City street or right-of-way adjoining or near the
DuBose Property and the DuBose Affiliates Property, including, but not limited to,
Parkview Drive, Forest Park Boulevard, all located in Fort Worth, Tarrant County, Texas
containing part of the Landfill or.where Materials, of Environmental Concern from the
Landfill have migrated as of the date of this Agreement or migrate in the future.
b. "DuBose Affiliates Properties" shall mean the properties
more particularly described in xhi* it "A" owned by one or more of the DuBose
Affiliates as indicated in Exhibit "A".
C. "DuBose Parties' shall. mean Jaynes S. DuBose,
individually and as Trustee of the James S. DuBose Family Trust, Colonial Savings F.A.,
JSD/JLD Real Estate, Ltd., and GDKIJED Real Estate, Ltd.
d. "DuBose l ro ert shall mean the property purchased in
two tracts located at 2000 North Forest Park Boulevard and 2400 West :freeway, Fort
Worth, Tarrant County, Texas, as more particularly described on Exhibit "A'' attached to
this Agreement and made a part hereof for all purposes.
e. Environmental Claims" shall mean any and all claims,
rights, obligations, causes of action, suits, and demands of any :Lind or character, however
denominated, whether known or unknown, at law or in equity, direct or indirect, or
subrogated or derivative of any of the above (including, without limitation, any claims
asserted by or obligations imposed by any f derall, state, or local environmental
regulatory agency with actual or alleged jurisdiction over the DU Bose Property, the
DuBose Affiliates Property, the City Property, and/or Surrounding Property, arising
from, concerning, and/or related to the Landfill, whether arising in equity or law,
contract, tort, implied or express warranty, strict liability, or Environmental Requirement
including, but not limited to: (1), liabilities, lessen, Property Damages, Personal Injury
Damages, costs, and expenses related to the performance of any required or necessary
CONFIDENTIAL COMPROMISE AND S I,rI'LE E A E Page 2
502541 00002 1480468*
�a��'��h,, /100/01001
environmental assessments, investigations, rernediataon, response, closure, or clean-up of
the DuBose Property, the Du Bose Affiliates Property, the City Property, and/or
Surrounding Property including soils and groundwater underlying the DuBose Property,
the DuBose Affiliates Property, the City,Property and/or,surrounding Property or any
part thereof, the preparation and irn ilernuntati n of any environmental maintenance,
p
monitoring, closure, rern�edi�Ition, abatement, or, lens required quired ley a governmental
agency on the DuBose Property, the DuBose Affiliates Property, the City ,Pro ert
p y
and/or Surrounding Property nc ludin soils and groundwater underlying the Du Bose
Property, the DUBose Affiliates Property and/or Surrounding Property and (ii) reasonable
attorneys fees, expert fees, and environmental consulting fees related thereto.
f. "Environmental Rufl uirement" or"Environmental
Requirements" shall mean all applicable federal, Texas, and local laws, ordinances,
statutes, codes, rules, regulations, agreements,judgments, and orders relating to i
environmental protection or regulation, 11 the emission, disposal, discharge, or the
actual or threatened release into the environment (including, but not limited to, ambient
air, surface water, ground water, or soil) of pollutants, contaminants, or hazardous
substances as defined in regulations promulgated under the Comprehensive
Environmental Response Compensation and Liability het, 42 U.S.C. §§ 96011 of se . (Bi),
haz ardous and solid wastes as defined under or in regulations promulgated under the
Texas Solid Waste Disposal Act, Tex. Health & Safety Code §§1 36 1+010 1 et se g., and the
Resource Conservation and Recovery Act, 42 U.S.C. § 6901 eta., and C pollutants as
defined under Chapter 26 of the Texas Water Code, or (D) Materials of Environmental.
Concern.
9. "Environmental Conditions" shall mean any environmental
conditions at, on, in, under o r effecting any property, 'whether known or unknown,
consisting of, related to, or arising from the presence, release, or existence of Materials of
Environmental Concern, at, on, in, under, on i.n tin Born, a�isi from, eons _in ,
a.ndlor related to the Landfill.
h. ""Gas Control stem." shall mean the system designed to
vent or otherwise Mitigate methane accumulation on the portion of the DuBolse Property
indicated as "31" "4," and "5" on the diagram attached as part of Exhibit "A"
substantially similar to the active landfill Gas Control System recommended in dames S.
alsh's July 18, 2001 repot entitled "Landfill Gas Related Issues, T uBose Property,.
2000 North Forest Park Boulevard, and 240�O West Freeway, Fort Worth, Texas" at
page 5.
1. "Landfill"' shall mean an y area within thi n , yards of the
. uBose Property and/or the DuBose Affiliates Property where an activity, operation,.
facility use, action, inaction, or ornission of or by the City, or a released Party
(hereinafter defined) his occurred as of the date of this Agreement, and any such
operations, =activities, actions, inactions, or omi ssi ns in such area a that results in, causes,
or contributes to an actual or threatened release, discharge, disposal, or similar term, as
defined under any Environmental Requirement, of trash, rubbish, solid waste, garbage,
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGR_UA E� NT--Doge 3
50254 000002 1480,468.1
any Material of Environmental Concern, or any material that, upon degradation,
breakdown, or otherwise, becomes, or may become a Material of Environmental Concern
at, on, in, or under the City Property, the Du Bose Property, the DuBosie Affiliates
Property, or the Surrounding Property.
j. "Lawsuit" shall :mean the lawsuit styled as Cause
No,. 17-180555-991 in the District Court of an-ant C uu`ty, exas, 17th Judicial District,
filed by James S. DuBose, individually and as Trustee of the James S. i u ose Family
Trust against the City of,fort Werth, Texas.
k. "'Materials of Environmental Concern', shall mean any
solid, hazardous, or toxic waste, hazardous substance, pollutant, contaminant, chemical,
ul, solvent, or petroleum product, or other solid, li quid, or gaseous substance or product
originating from or arising from, concerning
n,� or related to the Landfill i that is currently
or hereinafter listed, regulated, or designated as, or is determined to he in 'whole or in
part), topic hazardous,, or harmful (or words of similar meaning and regulatory effect), or
with respect to which governmental regulatory obligations (including, without limitation',
remedial or closure obligations) may he imposed, under any Environmental
Requirements, (ii) exposure to which may pose an environmental, health, or safety threat
or hazard, and including, but net limited, to those identified in and discovery or pleading,
filed in the Lawsuit, (iii) methane or any ether gas, chemical, constituent, contaminant or
pollutant generated by or released from a landfill.
l ",Personal Inj,,u,,,r,y,,, a. a es'' shall mean any claim, liability,.
or recovery for bioldily i n Ur
y (including, without limitation, wrongful death.. or and other
death), including, without limitation, any and all direct and indirect damages, including,
without limitation, compensatory, consequential (both foreseeable and unforeseeable),
exemplary, extraordinary, economic, and non-economic, punitive damages, pain and
suffeun , and emotional distress.
Ill. "Pro erty,Darna e'' or"Pr,opierty Q shall mean any
claim, liability, or recovery for injury to, real or personal property (including without
linu'tation, temporary or permanent damages to real property) including, "without
limitation, any and all i) investigatory,, removal) remedial, response, and cleanup costs or
e li ati ns, ii direct and indirect damages, inclu ing, without limitation, compensatory,
natural resource, consequential (both 'foreseeable and u.unforeseeable), exemplary,
extraordinary, market value, economic and non-economic, business damages, diminution
in value, lost profits, loss of use, lest rental value and payments, and punitive d,amages,.
and (iii) injunctive,,, equitable,equitable,1 extraordinary, or other relief.
n. "Surrounding Pr+e ert " shall :wean any real property
located within 1,350 yards of the DuBose Property and/or the Dubose Affiliates
Property, and any real property, ether than the DuBose Property or the DuBosie Affiliated
Property, referred to or described in any discovery or pleading filed in the Lawsuit.
CONFIDENTIAL COMPROMISE AND SET"'LEMEN A REEM — Page 4
502541 000002 1480468.1
1114 PAYMENT AND CONSIDERATION
3. Within five 5 days after the delivery to the City of fully-executed
copies of this Agreement by the L uBase Parties, the City will pay to the DuBose Parties
ONE HUNDRED F:: Y THOUSAND AND NO/100 DOLLARS which
will be payable by check jointly to I uBose, and which check will be forwarded in trust to
u: se's counsel
4. In sole consideration of, and for purposes of settling claims and
releasing claims against the City,1 the fL uBose Parties stipulate and acknowledge that the
settlement amount paid constitutes full and complete compensation for all damages,
claimed in the Lawsuit, or which could have been claimed in the Lawsuit, andJor that are
or were allegedly caused by the City or Environmental Conditions at, on, in, under,
originating from, concerning, and/or related to the Landfill. This stipulation is intended
to confirmthat the DL,'tjjose Parties are receiving now full and complete compensation for
any Environmental Requirements, Environmental Claims, or other damages claimed in
the Lawsuit, which co uld have been claimed in the Lawsuit, or in any gather litigation
which could have been filed by the DU Bose Parties, now or in the future, allegedly
caused by the City, originating from, arising Igor, concerning, and/or related tea the
Landfill..
5. Further consideration may be paid under the terms and conditions
of Paragraph of this Agreement..
IV. REPRESEN""A IONS AND, WARRANTIES
6. Each Party to, this Agreement represents and warrants that this
settlement is a compromise of disputed claims, and that the execution and p+erforn-iance of
this Agreement are not to be construed as an admission of liability on the part of the
Parties to this Agreement, each of whom expressly denies liability of any kind..
7. Each Party to this Agreement represents and warrants that it is
authorized to execute, deliver, and perform this Agreement and that this Agreement
constitutes a legal, valid, and binding obligation and that it is enforceable in accordance
with its terms, and that the uBose Affiliates have obtained the signatures to this
Agreement of all of its partners and limited partners, to the extent the particular party is a
partnership, and the signatures of its designated officers to the extent the particular party
is a corporation
8. The DuB se Parties each respectively represent and warr ant that,
on the date this Agreement is executed by such party, they have not received notice that
any person, firm, or entity (other than the parties to this Agreement or to the Lawsuit) has
asserted against them any Environmental Claims, or any gather claim in connection with
the presence of any Materials of'Environ rental Concern at the DuBose Property and the
DuB ose Affiliates Property
CONFIDENTIAL CO I-) ANISE AND SETTLEMENT AGREEMENT— Page 5
510,2 5 1 000002 14 0468.1.
AAMMI& A1`C,
9. The DuBose Parties each respectively represent and warrant that
they are the holders of the claims that arethe subject of the release set forth in Paragraphs
11, and 12 of this Agreement and that they have not assigned, sold, conveyed, or
otherwise transferred any Part of their rights to claims within the scope of those
paragraphs.
10 The DuBose Parties represent and `arrant that one or more of the
Du Bose Parties is the owner of the property, as described in Exhibit "'A" hereto, that
there has been no assignment of the cause of action which is the subject of the Lawsuit
and of this Agreement, or any of the claims released Pursuant to Paragraphs 11 and 12 of
this Agreement and that there are no liens which have attached to the proceeds of this
Agreement, including all Payments made to the DUBose Parties hereunder.
V. RELEASE AND COVENANT NOT TO SUE
1 1. The DuB,os,e Parties, on behalf of themselves) their heirs
successors and assigns hereby fully, and finally release and forever discharge the, City and
all of its respective successors and assigns (i,ncludin any current or future owners or
tenants of the Ci t Property and any Surrounding Pro e
y), officers, city council
members, mayors, employees, consultants, attorneys, experts, contractors, agents, and
representatives for and from any and all claims, demands, causes of action, fees., debts,
obligations, or losses which they may, have, originating from, arising from, concerning,,
and/or related to the Landfill, whether arising in law or equity,, contract or tort, and
whether known or unknown, asserted or unasserted, including, but not limited to, any
environmental claims (including but not limited to�, any claim under CERCLA),
Environmental Redquirement, Environmental Conditions, .Personal Injury Damages,
Property ijarruages, claim of Pollution, or loss of marketability of land or water, arising
from or caused by any condition which currently exists on the DuBose Property, Du Bose
Affiliates Property, or upon the City Property or any Surrounding Property, and
originating from, arising from, concerning, and 'or related to the Landfill, and any and all
claims asserted, or that could have been asserted, in the Lawsuit, including, but not
limited to, 1) the migration of Materials of Environmental Concern arising from or
existing in, on, at, or under the�uPose Puo pert y, the �uosc Affiliates liates Pro ert y
, the
City Property or Surrounding Property or caused by the City originating from, arising
from, concerning, and/or related to the Landfill, that may exist, in the soil,, groundwater,
or water on the surface, at in, on, under, our underlying the DuBose Property and the
Du Bose Affiliates Property, the City Property or any ,surrounding Property, and any
future damages that may result from any current conditions on any of the lL uBos,e
Property, the DuF ose Affiliates Property, City Property or SurTo unding Property,
originating frorn, arising from, concerning, andlor related to the Landfill, arising from the
activities or operations of or caused by the City or for which the City may otherwise be
liable, including but not limited to the migration of Materials of Environmental Concern
from soils to groundwater or in groundwater from one location, to another, or from soil or
groundwater to the atmosphere or into any buildings or structure THE RL;LEASE SET
FORTH IN 'THIS SECTION V SHALL BE APPLICABLE WHETHER OR NOT
THE NEGLIGENCE TII�E CITY OR RELEASED PARTY IS, ALLEGED OR
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT ENT--Page 6
502541 000,002 148046&1
40/0 . A011,
PROVEN AND WHETHER OR NOT SUCH CLAIMS ARE BASED ON A
NEGLIGENCE OR STRICT LIABILITY STANDARD OF CONDUCT,
12. The DuBose parties, on behalf of themselves, their heirs,
successors and assigns hereby fully and finally release and forever discharge the C'ity and
all of its respective successors and assigns (including any current or future owners or
tenants of the City Property or Surrounding Property), members, officers, directors, City
councilmen, mayors, employees, attorneys, experts, contractors, agents, and
representatives for and from any and all claims, demands, causes of action, fees, debts,
obligations, our losses, which they may have, whether arising in law or in equity, contract
or tart, that have occurred or that may accrue in the future caused by any condition on the
: n ose Property, the I uBose Affiliates Property, the City Property, or Surrounding
Property originating from, arising from, concerning, and or related to the Landfill, or
caused by any act or failure to act as of the date of this Agreement, originating from,
concerning, and/or related to the Landfill, including, but not limited to, any claim for
negligence, negligence per se, statutory violations, Environmental Claims (including, but
not limited to, an y claims under CERCLA), strict liability, breach of express or implied
contract or covenant, trespass, nuisance, unjust enrichment, breach of'contract., breach of
easement, tort, fraud, failure to 'warn, breach of statutory duty, nuisance per se, res iprsa
loquuitur, or infliction of emotional distress, that has or rru.;a.y result in contamination or
environmental damage to, or affecting the marketability of, the groundwater, surface
water, surface or subsurface at, in, on, under, or underlying the L" a ose Property and/or
the DuBose Affiliates Property now or in the future. The parties desire that this release
of claims be enforceable, and it shall be enforceable to the fullest extent permitted under
"Texas law. THE RELEASE SET FORT H IN THIS SECTION SHALL BE
APPLICABLE WHETHER OR NOT THE NEGLIGENCE OF THE CITY OIL
LEASED PARTY IS ALLEGED OR PROVEN AND WHETHER OR NOT
SUCH CLAIMS ARE BASED ON A NEGLIGENCE OR STRICT LIABILITY
STANDARD DARD of CONDUCT,
13. The release and discharge of claims in the foregoing Paragraphs 11
and 12 shall apply to, and inure to the benefit of, any insurer of any of the City to the
extent that such insurer night otherwise be responsible or liabile for any claim against the
City (but shall not apply to any claims against such an insurer based on coverage
provided for entities other than the City). The Duose Parties agree not to assert any
claim or cause of action against any insurer based on or due to coverage provided by the
insurer to or for any of the City or the released Parties (as defined in Paragraph 14
below) related to the,claims described in Paragraphs 11 and 1 ..
14. The Du Bose Parties stipulate that the releases of claims against the
City in Paragraphs 11 and 12 are to be broadly construed to include all the successors and
assigns, council members, mayors, officers, directors, employees, and agents of the City
(the `Released Parties" and the terra shall be construed so as to meet the "specificity of
description" requirements of Duncan 1). Cessna Aircraft Co., 665 S,W. d 414 Tex.
1984). The Released Parties shall have standing to enforce the release terms of this
Agreement.
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGRE EMENT —Page 7
502541 000002 1480468A
15 The DuBose Pat-ties expressly c cnant not to ,sue, or to fi lc,
initiate, or assert any lawsuits, complaints, claims, demands, protests, or any other legal
or administrative proceedings with any local, state or federal court or local, state or
federal agency or to tale or cause to be taken any action, either directly or indirectly
through others, in an effort to cause the City, any Released Party, any party who is
entitled to contribution from one or more of the City or Released Parties to be required to
abate, investigate, monitor, perform corrective action clean up, or re mediate any injuries,,
damages, pollution, Environmental Conditions or nuisances or to pay any monetary
damages on, in,1 in connection with, or arising from any current conditions at or with the
DuBose Property or the DuBose Affiliates Property, the City Property, Surrounding
Property, any migration of:Materials of Environmental Concern from the Landfill
released or discharged (as, defined under environmental equ rements as of the date of
this Agreement, addressed in this Agreement and originating from,, arising from,
co ice ing,, or related to the Landfill, or any claim released pursuant to, Paragraphs 11
and 12 of this Agreement.,
16. The Du Bose Parties further agree to execute, contemporaneously
sly
wtth this Agreement, .Exhiblit B" hereto, which is titled "DECLARATION O
RESTRICTIONS AND COVENANTS RUNNING WITH THE, LAND." The DuBose
Parties shall cause a fully executed copy of "B" to be filed with the deed records of
Tarrant County, Texas within twenty (20) days after the effective date of this Agreement.
In the event the document is not filed by the Duose Parties within that time eriod, the
DuB se Parties grant permission to the City to file such document in the deed records of
Tarrant County, Texas
VI.
DISMISSAL OF ACTIONS AND WITI-TDRAW., L OF CLAIMS
17. The Parties agree that, upon execution and delivery of this
Agreement by all Parties, pleadings ,shall be filed to dismiss with prejudice the claims
filed in the Lawsuit by all parties to such proceedings stating that each party bear its own
costs of court. The motion and order necessary to accomplish the dismissal of the
Lawsuit shall be in form set forth in Exhibits "C" and "D" attached hereto.
VIL FURTHER CLOSURE ACTIVITIES
18. If within five 5 years from the effective date of this Agreement
.L uBose constructs and installs the Gas Control System on the D,u: ose Property indicated
as "P IQ" on the diagram attached to Exhibit "A 71 attached hereto, the City agrees to pay
up to, but not to exceed, ONE HUNDRED AND SIXTY THOUSAND DOLLARS AND
NO 100 DOLLARS ($160,000.00), to reimburse the costs incurred by DuB,ose to
construct and install the Gas Control System. If the Texas :natural Resource
Conservation Commission or any successor agency collectively the "TNRCC") carders or
demands that the City address any release of methane, any other Material of
Environmental Concern, oar other Environmental Conditions at, on, in, under, about, or
affecting the I uB ose Property or the DuB ose Affiliates ages Property, before construction or
CONFIDENTIAL COMPROMISEAND SETTLEMENT A GREEMEN I —Page 8
502541 000002 1480468.
installation of the Gas Control System has commenced, the City shall no longer have any
obligation with respect to reimbursing DuBose pursuant to this Paragraph or otherwise,
provided the City materially complies with the applicable TNRCC regulations. If
installed by. uBo:se or any DuBose Affiliate, the Gas Control System shall comply with
all Environmental Requirements.
9. If the City is required by the TNRCC, any other governmental
entity or third party to address any environmental conditions at, on, in, or under the
DuBose Property rty r the DuBose Affiliates Property, the DuBose Pal-ties will full.
cooperate with, assist as necessary, and consent to the effort of the City to obtain closure
of the DuBose Property and the DuBose Affiliates Property from the TNRCC, including,
but not limited t , any investigation, assessment, response, rcrncdiatin or other activity
required or requested by the TNRCC or not unreasonably ly required or requested by City in
connection with any Materials of Environmental Concern located at, on, in, or under or
migrating through the DuBose Property and the DuBose ose Affiliates Property, provided
that the City's actions comply with all applicable laws. The DuBose Parties and their
successors and assigns (including any future owner of the DuBose Property and the
DuBose ose Affiliates Property) agree not to challenge any response action that the City may
propose or agree to with any regulatory ry agency to address the presence of Materials of
Environmental
Concern, at, gin, in, or under the DuBose e P"ruperty, the DuBose ffi li etas
Property, the City Property or Surrounding Property,, so long as it does not unreasonably
interfere with the business activities on the DuBose Property or DUBose Affiliate
Property, and complies with the provisions of Paragraph 20 and all applicable pl.ica.bl e. laws...
20. Each of the DuBose Parties warrant and represent that they require
no further rernediation and/or clean-up efforts at, on, in, or under the DuBose ose Property,
the DuBose Affiliates Property, the City Property, and Surrounding Property for any
Environmental Condition or Materials of Environmental Concern on inating from,
arising from, concerning, and/or related to the Landfill, other than as may occur pursuant
to 181 of this Agreement for the Gas Control System, beyond a risl -based closure for
industrial or commercial property or land use, and agree t hat 'In t e event any action is
required of the City or any of the Released Parties at the Dubose Property, the D,use.
Affiliates Property, the City Property, or the Surrounding Property, no clean-up and/or
remediation of solid waste, including any trash, garbage, rubbish, or municipal solid
waste, will be required by any oft the DuBose Parties. Each of the DuBose Parties will so.
inform the TNRCC as requested by the City. Specifically, the DuBose Parties will
consent to a r mediati n plan, if required of the City, or any Released Party, including,
but not limited to, a plan that involves leaving any Materials of Environmental Concern
in place in soil and groundwater at the DuBose ose Property and the DuBose affiliates
Property in accordance with the requirements of Sections 361.531 to 361.540 of the
Texas Solid waste Disposal pct, "texas Health & Safety Code §361.351-361.54,0, and
any regulations promulgated thereunder. Each of the DuBose, Parties understand and
consent to closure if required of the City, of the Materials of Environmental. Concern at,
on, in, or under the D a o,se Property, the I uuP ose Affiliates Property, the City Property,
and the Surrounding Property based upon any TNRCC risk--based standard pursuant to an
50'541 000002 1480468.1
410'„ h" A 10115
industrial or commercial land use under the Texas Risk Reduction Program regulations,
30 Tex., Admin. Code §§ 3 �.f-350.l'3 .
21. If recordation of a notice or restrictive covenant is required for the
DuBose Property and the DuBose Affiliates Property by the Tl C , or any ether
governmental agency, to obtain closure for those properties and the recordation concerns
or relates to the Landfill, the DuBose Parties will not be entitled to any additional
consideration and will execute as necessary andlor consent to any filing of any deed
notice or restrictions, including, but not limited to, a restriction of land use of the DuBolse
Property and the DuBose Affiliates Property, consistent with a commercial or industrial.
use, or the use of groundwater at, on, in, or under the DuBosie Property and the DuBose
Affiliates Property, based upon any standard under the Texas Risk Reduction Program
regulations, 30 Tex. Admin. Code §§ 31 5 1.1-350.13 5.
. None of the provisions in this Section VH of this Agreement
require any of the actions described in this Section y the City or any Keleased Party to
address any Environmental Conditions at, in, on, or under the DuBose Property, the
u 'ose Affiliates Property, the City Property, the Sun-ound ng Propert y, or otherwise to
address any Environmental Condition or Materials of Environmental Concern or to
comply with Environmental Requirements originating born, arising fi-orn, concern n, ,
and/or related to the Landfill.
VIII. DISLOSURE OF ENVIRONMIENTAL CONDITIONS,
23. The Plaintiff shall ensure compliance with the requirements of
Section 3b .53119, of the Texas Health and Safety Code.
IX. SOLE AGREEMENTal MODIFICATION
24. This Agreement constitutes the sole and entire agreement between
the City, on the one hand, and the DuBose Parties, on the other hand, with respect to the
matters covered hereby, and the terms are contractual and not a mere recital. This
Agreement supersedes any prior or contel-nporane us agreement, understanding or
undertaking, written or oral, by or between the parties regarding such subject matter.
25. No term or provision of this Agreement may be varied, changed,
modified, waived, discharged, or terminated orally, but only by an instrument in writing
signed by the party against whom the enforcement of the va a,ti,on, change, modification,
waiver, discharge, or termination is sought. The waiver by any party hereto of any
breach of any provision of this Agreement shall not constitute or operate as a waiver of
any broach of any other provision hereof, nor shall any failure, to, enforce any provision
hereof operate as a waiver at such time or at any future time of such provision or of any
other provision hereof.
CONFI NrrJAL COMPROMISE SETTLEMENT AGREEMENT —Page 1
502541 000002 1480468.1
X. NO RELIANCE ON RE PRESENTATIONS
BEYOND THOS E IN THE AGREEMENT
26. In making this Agreement, the Parties have not relied upon any
statement or representation pertaining to this matter made by the other, or by any other
person or persons representing there other than those expressly stated herein, but rather,
each has relied solely upon its own legal counsel, representatives, agents, and employees.
I. VOLUNTARY UNTARY EXEC ,DTI I"
27. Each party further states that each has carefully read this
Agreement, knows the contents thereof, and has signed this Agreement as its own free
act
XII. EFFECT O F AGREEMENT
28. This Agreement shall not expand the rights or defenses of any
persons or entities, and no person or entity shall acquire any rights hereunder, directly or
indirectly, expressly or incidentally, whether as a purported third party beneficiary or
otherwise, except as specifically provided in this Agreement.
XIII. CONFIDENTIALITY
2 . The DuBose Parties shall beep the terms of this Agreement
confidential, and shall make no press release or public disclosure, either written or coral,
regarding same, without the prior knowledge wledge and consent of the City-, provided that the
forea inn shall not prohibit any disclosure i by production, response, or filing that is
required by law, or by any order of any court of law, o r (ii) to attorneys or other agents or
employees of the DuB se Parties assisting the u. ose Parties in connection with this
Agreement or in connection with the enforcement of this Agreement. The provisions of
this Section shall, survive the termination of this Agreement.
30. In particular, no news release or ether information about the
settlement shall he made or given by the DuBose Parties or their counsel to any news
medium,
including newspaper, rna mine, radio, television or electronic medium,
including the Intel-et.
31. This Settlement Agreement, and the terms of this Settlement
Agreement, shall not he offered or admitted into evidence or otherwise ise used in any
litigation against the City, except as may he necessary in any good faith litigation by the
uBose Parties to enforce the terms of this Agreement.
XIV. EFFECT ON SUBSEQUENT ASSIGNEES
32. This Agreement is binding upon and will inure to the benefit of the
DuBose Parties and their respective successors, assigns, and the City and their respective
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT Page 11
502541 000002 11480468..1
successors and assigns., Without limiting the foregoing, the release and discharge of
claims set forth in Paragraphs I I through 12 shall he binding upon any Subsequent
purchaser of the DuBos,e Property and the :> a osc Affiliates Property and upon any and
all parties acquiring rights to any portion of the Du se Property and the Du �se
Affiliates Property t t e extent permitted by law.
XV. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
33.. The representations, warranties, releases, covenants and other
obligations containe herein shall survive the execution and performance of this
Agreement.
XVI. CAPTIONS AND INTERPRE TATIONS,
34. Titles or captions contained herein are inserted as a matter of
convenience and for reference, and in no way define, limit, extend, or describe the scope
of this Agreement or any provisions hereof.
XVII SIG A TO RT S' A I" ORIT Y
35. The signatories hereto hereby represent that they are fully
authorized to enter into this Agreement and to be bound by the terms and conditions
thereof.
VIII. ENFORCEMENT ACTIONS
36. In the event that any party institutes any legal action, arbitration, or
any other proceeding against any other party or parties to enforce the provisions of this
Agreement, or to declare the rights and or obligations under this Agreement, the
prevailing party or parties shall be entitled to recover its costs, including, but not limited
to, reasonable atto ey's fees and expert witness fees, from the other party or parties,
SIX, SEVERABILITY
37. This Agreement is intended to be performed in accordance Frith,
y y, all applicable legal requirements. If any provision f
and can to the extent permitted b
this Agreement is held by a court of competent Jurisdiction to be illegal, invalid, or
unenforceable, the remainder nc cr f t he terms, provisions, covenants, and restrictions of this
Agreement shall remain in full force and effect and shall in no war be affected, impaired,
or invalidated thereby, and, in lieu of such illegal, invalid, or unenforceable provisions,
there shall be added as a part of this Agreement, by mutual agreement of the parties or by
a court of competent jurisdiction, a provision as similar in terms to such illegal, invalid,
or unenforce ble i rovis
p ens as may be possible and be legal, valid, and enforceable.
CONFIDENTIAL C'OMI'ROMISE AND SETTLEMENT AGREEMENT —Page I
502541 002 1480468.1
XX, GOVERNING LAW
38. This Agreement shall be governed, construed, and the Tights of the
parties interpreted and determined ned In accordance with the laws of the State of Texas,
including, but not limited t , all matters of forrnat on, interpretation, construction,
validity, performance,, and enforcement.
XXL NOTICES
39. All notices required by this Agreement to be made upon the parties
harsh► shall be served by certified, mail return receipt requested, hand delivery, express
mail service, or telec pier as follows.-
If to City.- rl7heodore P. Gorski, Jr.
ssistant City Attorney
City of Fort Worth
10,00 Th.r ern Orton Street
Fort Worth, Texas 76102
With a copy to: Scott D. Deatherage
Thompson & Knight, L.L.P.
1700 Pacific Avenue, Suite 3300
Dallas, '1."exas 75201
If to James S. Du Bose.- Mr. James S. Du Bose
Colonial Savings F''.A.
2626 A. "west Freeway
Fort Worth,th, Texas 7'6102
with a copy to: C. Vic Anderson
Shannon, C raeey, Ratliff& Miller, LLP
777 Main Street, Suite 3800
Fort Worth, Texas 76102
2.
If to Colonial Savings and Mr. Wayne Lasater
Can Association: P. 0. Box 2988
Fort Worth, Texas 7 113
with a copy to: Lee J. Brookshire, Jr:.
P' 0. Box 2988
Fort Worth, Texas 76113
If to J ,LI Real estate, Ltd. 1" Ir. ones S. use
Colonial Savings F.A.
2626 A. West Freeway
Fort Worth, Texas 76102
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT—Page 1;
502541 000002 1480468.1.
i
With a copy to: C. Vic Anderson
Shannon, Cracey, Ratliff ff& biller,, LLP
777 Main Street, Suite 3�800
Fort Worth, Texas 7 102
1f'to GDK/JED Real Estate, Ltd.. Mr. James S. DuBose
Colonial Savings F.A.
2626 A. West Freeway
Fort Worth, Texas 7 102
With a copy to: C. Vic Anderson
Shannon, Gracey, .atlif'& Miller, LLP
777 Main Street, Suite 38001
Fort Worth, Texas 76,102
XXII. EXECUTION IN COUNTERPART
40. This Agreement may be executed in one or more counterparts in
person or by teleco'py, all of which shall be considered one and the same Agreement and
each of which shall be deemed an original.
XXIII. N , EVIDENCE
4-1. Neither this Agreement nor any proceeding taken hereunder shall
be construed as or deemed to be evidence or an admission or concession by any of the
Parties to this Agreement of any liability or wrongdoing whatsoever, which the :Parties
expressly deny. None of the provisions of this Agreement, nor evidence of any
negotiations in pursuance of the compromise and settlement herein, shall be offered or
received in evidence in any other action or proceeding as an admission or concession of
liability or wrongdoing of any nature on the pad of any of the Parties. This paragraph
does not in any way limit the enforceability of the Agreement or prevent the use of this
Agreement in an action or proceeding to enforce its terms and obligations.
XXIV. JOINTLY DRAFTED
421. Counsel for the Parties to this Agreement mutually contributed, on
behalf of their respective clients, to the preparation of, and have had the opportunity to
review and revise, thin Agreement. .Accordingly, no provision of this Agreement shall be
construed against any Party to this Agreement because that Party, or its counsel, drafted
the provision. This Agreement and all of its terms shall be construed equally as to all..
CONFIDENTIAL COMPROMISE AND, SETTLEMENT A+C RIFE1" ENT --Page 14
502541 000002 1 480468.1
1101141ft' it AMID k'
XXV, EFFECTIVE DATE OF AGREEMENT
3. The effective date o this Agreement shall e the earliest date on
which all parties have executed and delivered this Agreement.
CITY OFF1 RT WORTH, TEXAS
By:
Ttile.
Date:
JAMES S. DUBOSE, INDIVIDUALLY
AND, AS TRUSTEE OF THE JAMES S.
DUBOSE FAMI LY'TRUST
, ' (........................
B
COLONIAL SAVINGS F.A.
"
_ ..�
Jame E. DuBose
Title-, Presi ent
Date: 9-6-02
JS JLD REAL ESTATE, LTD..
ByN�
Title•
..
GD,K/JED REAL ESTATE, LTD.
. 11,
�..�..
ens . a ........T �,
o r�"' s,
Date: 9-6-02
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT Page 1.5
502541 0100002 1404 8.1
GDK/JED REAL ESTATE, LTD.
rf �
l ✓/�, mVW" I, J '�Mww,tiuww�y,.,..w,r�� �u�' r'l�
uba. f:�rd.✓^ tw«"''mw,a,.���vl wrs! y��" d I' P RP��
an
Y* OF
N
September, 11 2002
APPROVED AS TO, CONTENT AND FORM:
Theodore P. Gorski, J'r.
State Bar 2 100
CITY OF T WORTH, TEXAS
.1000, Throckmorton S ee
Fort Worth, Texas 76 .
(8117)1871-7600 Telephone
(81,7) 871-8359 Facsimile
CONFIDENTIAL COMPROMISE D SETTLEMENT REjEMEN'T Page 16
50254, 01000,02 1480468.1
Am
ACKNOWLEDGMENT
STET " OF TEXAS
COUNTY F TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared James
S. DuBose, known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he is James S. DuBose and that the same was
the act of the said James S. Du ose, individually and as the Trustee of the James S.
DUBose amily T"rust that he is authorized to execute this Agreement individually and as
the Trustee of the James S. Du Bose Family "rust; and that he executed the same
individually and as Trustee of the James S. DuBos,e Fan-ffly Trust for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVES 'UNDER MY HAND AND SEAL OF OFFICE CE this 5th day of
Se,,,,,p,tember 2002.
n
v
Doter ' lie, State of Texas
t_
ri nted name)
My Commission Expires: 6_28 5
LYNN :0,FTEXAS E
Nota Public
M Comm.Ex 1, 2
CONFIDENTIAL COMPROMISE AND SETrULEMENT AGREEMENT Page I.
54 1 000002 1480468-1
111 1fth" ANN.
ACKNOWLEDGIVIENT
S A r FE O TE AS
COUNTY OF TARRANT
BEFORE ME, the undersigned authority, on this day personally appeared. James
E. DuBose, mown to nee to be the person whose name is subsclibed. to the foregoing
instrument,, and acknowledged to me that he is the President of Colonial SavIn s F.A. and
that the same was the act of the said Colonial Savings .A. that he is authorized to
execute this A reement and that he executed the same as the act of such corporation for
the purposes and consideration therein expressed and in the capacity therein stated.
GIVEN UNDER Y HAND AND SEAL OF OFFICE this 6th day of
.September , 2t .
0�
4 0"
Notary State,
Lynn De to r
(printed name)
My Commission Expires- 6-281-05
LYNN BETER
a�r ubuc
STATE F TEXAS
My Comm.Exp.06/28/
13 1'1311
ACKNOWLEDGMENT
CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT'—Page 18
50254.1 0000012 1480468.1
1/00011k, JJ
STATE OF TEXAS
C 01 TY OF TAR NT 7§.
BEFORE ME, the undersIgned author ty, on this day personally appeared
James S. Du,Bose , known to me to be the person whose game is subscribed to the
foregoing instrument, and acknowledged to me that he is the General Partner of JS JL
Real Estate, Ltd.. and that the same was the act of the said JSD/JLD Real Estate, Ltd.,
Texas limited partnership; that he is authorized to execute this Agreement and that he
executed the same s the act of such corporation for the purposes and consideration
therein expressed and in the capc,-lcity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 5th dray of
e timer , 2002,
Notary State Texas
nn Boelter
(printed name)
My Commission Expires. 6-28-05
LYNN GOELTE
Notary Public
* STATE OF TEXAS
My Comm.,E'x .06/28/2
v14 vW1,WW%Jr14Z if!
CONFIDEENTI .L COMPROMISE AN SETTLEMENT AGREEMENT —Page 19
502541 0000,02 146 .
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF T RANT
BEFORE ME, the undersigned authority, on this day personally appeared James
E. �!UBose, kr own to me to p erson whose me
instrument, and acknowled ed t me that he is the 41114U. � l k DK/J .D meal
Estate, Ltd. and that the same was the act of the said GDK/JED Real Estate, Ltd., a Texas
limited partnership; 'that he is authorized to execute this Agreement; and that he executed
the same as the act of such corporation
poses and consideration therein
expressed and inn the capacity therein stated.
GIVEN Y HAND AND SEAL OF OFFICE this h day of
ember , 2002.
.w. e
1140 0
j &I 'c S tate of
Notary
Texas
Lynn Boelter
(printed Warne)
My Commission Expires 6-28-05
LN E ]ER
Notary Publ
STATE"E�
CONFIDENTIAL COMPROMISE NI) SE 'LEM NT A —Page 2
502541 000002 1480468.1
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF TARRANT §
BEFORE ME the undersigned authority, on this day, erson all ' appeased
ynne D. Key. nd, known to one to be the person whose name s, s J' e to the
a
foregoing and acknowledged to me that she is t � � � m of
GDK/JED Real Estate, Ltd. and that the seas was the act of the said G Rea
statel Ltd.., a.Texas limited partnership, that she s authorized to execute this Agreement,
and that shy executed the sane as the act of such corporation for the purposes and
consideration therein expi-essed and in the capacity therein stated,
GIVEN UNDER Y HAND AND SEAL OF OFFICE this 11 t h day of
ber- 12002.
Notary P State of Texas_
Lynn Boelter
(printed name)
My Commission pi -
-2 - 5
L ' BELE
Notary Pub is
'X S A "
' My Comm.Exp.06128/
CONFIDENTIAL COMPR MISS AND SET144EMEN AGREEMENT' -Page 21
50'2541 0001002 1 04a'i.1
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY' OF TARRANT
BEFORE ME,, the ndersigned authority, on this day personally appeared
known to me to be the person whose name is
s .bseribed to the foregoing instrument, and acknowledged to me that she is an Assistant
City Manager of the City of Fort Worth, Texas and that the same was the act of the said
City of Fort Werth, Texas; that she is authorized to execute this Agreement; and that she
executed the same as the act of such corporation.on. for the purposes and consideration
therein expressed and in the capacity therein stated, Wf GIVEN UNDER MY HAND AND SEAL OF OFFICE this � " day o f
172 012.
HETTIE LANE Notary Public, State of , . u
No
lei
PI state
If
commission:
July 26,2003
r7e le
M
(printed name)
My Commission Expires: 'jul�
CONFIDENTIAL.L C'+!! MPROMISE AND SETTLEMENT AGREEME NT Page 22
502541000002 480468.1
EXHIBIT A
UB SE PROPERTY AND DUBOSE, AFFILIATES PROPERTY
50254 000002 1480468.1
0 0 C) 0 C) 0^C) o W
Cp% CN ON C* Cn CPN C'a C� 00 Ch 00 07
Cr� C O'\ C CN Cry (3� CN ON
C c 0 0 0000
pLq P. gl-�
tn TA
0 0 0 �
u y
cn
Cd
cn Cd m m
0 a 0
" 0
LA
no
� �1 ( � tn Lo
cl al c 4)
w 7� 0 � 0
w
10 0
w PQ = = = m = = '
in
� C> C> C) 0C) I�D � 0 1.0 110 111
I I I 1 I I w I 1 I w w W
C C C 0 0 C> C> C> C) 0 C
EXHIBIT "B19
I ECLA "I"ION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND
THE STATE OF TEXAS
COUNTY OF TARRANT
THESE AGREEMENTS AND COVENANTS RUNNING WITH THE LAND
(collectively this "Agreement") are mare and entered into as of the 5th play of September,
2002, by James S. DuBose ("DuBose" and Colonial Savings, F.A., JS D/JLD Real Estate,
Ltd,, a Texas limited partnership, and GDK/JE 1 Deal Estate, Ltd.,., a Texas limited
partnership, (the "DuBose Affiliates"'') and for the benefit of the City of Fort Worthl
Texas and its successors, predecessors, affiliates, assigns, council members, mayors,
employees, consultants, contractors, experts, attorneys and agents (the "City"),
DEFINITIONS AND RECITALS
(A) DuBose, Colonial Savings F.A., SD/ L D Real Estate, Ltd., and
GDK1,JED Real Instate, .ltd. the owners of the tracts of land referred to as
the DuBose Property as defined below),, and the DuBose Affiliates
Property as defined below) as set forth in xhi .it "A" attached to this
Agreement and made a part hereof for all purposes.
(B) It has been alleged that the City owned or has operated a landfill at one or
more of the I ,uBalse Property, the uBose Affiliates Property, and the
City Property as defined below), and the Surrounding Property as
defined below).
(C) DuBose and the DuBose Affiliates desire to enter into this Declaration in
connection with the DuB,ose Property, the DuBose Affiliates Property, the
City Property, and the ,surrounding Property..
(D) Cer-taro Definitions:
a. "Citv Prope.qjy 71 shall mean any Surrounding Property in
which the City holds an interest, any City street or right-of-way adjoining r near the
DuBose Property and the DuBose Affiliates Property, Including, but not limited to,
"arkview Drive, Forest Park Boulevard, all located in Port Worth, Tarrant County, Texas
containing part of the Landfill or where Materials of Environmental Concern from the
:landfill have migrated as of the date of this " eclarati n or migrate in the future.
h. "DUBose Affiliates Pro erti*s sl�al l Crean the properties
more particularly described in Exhibit "A".
DECLARATION Off,RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page
C. 4'D;uBose.Parties" shall men James S. DuB,ose,
individually and as Trustee of the Armes S. Dubose Family Trust Colonial Saving's F.
S 1 D Real Estate, Ltd., and GD ED Real Estate, Ltd..
CL "DuBose 2Mert )� shall mean the property purchased In
two tracts located at 2000 North Forest Farb Boulevard and 2 O West Freeway,, Fort
Forth, Tarrant County, Texas, as, more particularly described on Exhibit "A"' attached to
this Declaration and made a part hereof for,all purposes.
. "Environmental Claims" shall mean any and all claims,,
rights, obligations, causes of action,n, suits, and demands of any kind or character, however
denominated, whether known or unknown, at law or in equity, direct or indirect, or
subr gated or derivative of any of the above (including, without limitation, any clairns
asserted by or obligations imposed by any federal, state, or local environmental
regulatory agency with actual or alleged jurisdiction over the DuBose Property, the
D,uB se Affiliates Pr p rty, the City Property, and/ r SlUI Ounding Property), arising
from, concerning, andJor related to the Landfill, whether,arising in equity or law,
contract, tort, implied or express warranty, strict liability, or Environmental Requirement
including, but not limited to: (i) liabilities, losses, Property Damages, Personal Injury
Darnages, costs, and expenses related to the performance f any required or necessary
environmental assessments, investigations, remediati n, response, closure, or clean-up of
the D,uBose Property, the DuBose Affiliates Property, the City Property, and/or
Surrounding Property including soils and groundwater underlying the DuBose Property,
the DuBose Affiliates Property, the City Property and/or Surrounding Property or any
part thereof, the preparation and implementation of any environmental maintenance,
monitoring, closure, remediati n, abatement, or other plans required by a governmental
;agency on the DuB,ose Property, the DuBose Affiliates Property, the City Property,
andJ r Surrounding Property including soils and groundwater underlying the DuBose
Property, the I uB se affiliates Property and/or Surrounding Property and (ii) reasonable
attorn. y's fees, expert fees, and environmental consulting fees related thereto.
f. "'Environmental R uirem nt" or "Environmental
Rggirem nt " shall Wean all applicable federal, Texas, and local laws, or�dina.nces,
statutes, codes, rules, regulations, agreements,judgments,, and orders relating to i
environmental protection or regulation, (ii) the emission, disposal, discharge, or the
actual or threatened release into the environment (including, but not limited to, ambient
air, surface water, ground water, or soil) of A pollutants, contaminants, or hazardous
substances as defined in regulations promulgated under the Comprehensive
Environmental Response Compensation and Liability act, 42 U.S.C. §§ 9601 et seq., (B)
hazardous and solid w astes as defined under or in regulations promulgated under the
Texas Solid Waste Disposal Act Tex. Health & Safety Code §§ 361.001 et sea., and the
Resource C n sery at ran and Recovery Act, 4 " U.S.C., § 6901 et seq., and C pollutants as
defined under Chapter 26 of the Texas, Water Cede, or D" Materials of Environmental
Concen .
DECLARATION F RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page
"Enviroanme tal Conditlons" shall mean any environmental
9.conditions at, on, in, under or effecting any property, whether known or unknown,
consisting of, related to, or arising from the Presence, release, or existence of Materials of
Environmental Concern,, at, on, in, under, originating from arising from, concerning,
and/or related to the Landfill.,
h. "Gas Control S stern' shall mean the system designed to
vent or otherwise mitigate methane accumulation on the Portion of the DuBose Property
indicated as 3, 4, and on the diagram attached to Exhibit "A"' substantially
similar to the active landfill Gas Control System recommended in James S. Walsh"s July
18, 2001 report entitled d "Landfill Gas belated Issues, DuBose Property, '2.000 North
Forest Park Boulevard, and 2400 West Freeway, Foil Forth, Texas" at page 5.
i. 94 Landfill ' shall mean any area within 1, 350 ,yards of the
Du Bose Property and/or the DuBose Affiliates Property where an activity, operation,
facility use, acti can, inaction, or omission of or b y the City or a Released Party.
(hereinafter define has occurred as of the date of this Declaration, and any such
operations, activities, actions, inactions, or omissions in such area that results in, causes,
or contributes to an actual or threatened release, discharge, disposal, or similar term, as
defined under any :environmental Requirement, of trash, rubbish, solid waste, garbage,
any Material of Environmental Concern, or any material that, upon degradation,
breakdown, or otherwise, becomes or may become a Material of Environmental. Concern.
at, on, in, or under the City Property, the Dun ose Property, the Du ose Affiliates
Property, or the Surrounding Property.
j. "Lawsuit" shall mean the lawsuit styled as Cause
No. 17-180555-99 in the District Court of Tarrant County, Texas, 17th Judicial District,
filed by Jaynes S. DuBose, individually and as Trustee of the Jaynes S. DuBose Family
Trust against the City of Fort Worth, Texas.
k. "Materials, of Environmental Concern" shall mean any
solid, hazardous, or toxic waste, hazardous substance, Pollutant', contarni.nant, chemical,
oil, solvent, or Petroleum Product, o-other solid, liquid, or gaseous substance or Product
originating
from or an'sing from, concerning or related to, the Landfill. i that is currently
or hereinafter listed, regulated, or designated as, or is determined to be in whole or in
Part), toxic hazardous, or harmful or words of similar meaning and regulatory effect), or
with respect to which governmental regulatory obligations including, without limitation,
remedial or closure obligations) may be unposed, under any Environmental
Requirements, (ii) exposure to which may pose an environmental, health, or,safety threat
or hazard, and including, but not limited, to these identified in any discovery or Pleading,
filed in the Lawsuit, (iii) methane or any other,gas, chemical, constituent, contani.inant or
Pollutant generated by or released from a landfill.
l.. "P"ersonal. Ipjur Damages" shall paean any claim, liability,
or recovery for bodily injury (including, without limitation, wrongful death or any other
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND-Page 3
death), including, without limitation,, any and all direct and indirect damages, including,
without limitation, compensatory, consequential (both foreseeable and unforeseeable)l
exemplary, extraordinary, economic, and non-eeono rnie, punitive damages, pain and
sufferin; , and emotional distress.
M. VI,,o ert Dam or"Property Damages" shall mean any
claim, liability, or recovery for injury to real or personal property (including without
limitation, temporary or Permanent damages to real property) including, without
limitation, any and all i investigatory, removal, remedial, response, and cleanup costs or
obligations, (ii) direct and indirect damages, including, without limitation, compensatory,
natural resource, consequential (both foreseeable and unforeseeable), exemplary,
extraordinary, market value, economic and non-economic, business damages, dim inution.
in value, lost profits, loss of use, lost rental value and payments, and Punitive damages,
and (iii) injunctive, equitable, extraordinary, or other relief.
n, "Surroundi Property" shall mean any real property
located within 1,350 yards of the Du Bose Property and/or the Lunose Affiliates
:Property, and any real property, ether than the Du: ose Property or the DuBose Affiliated
Property, referred to or described in any discovery or pleading filed in the Lawsuit.
NOW, THEREFORE,, K ALL MEN BY THESE PRESENTS THAT, for
and in consideration of Ten Dollars and no/100 ($10.00) and other good and valuable
consideration. the receipt and sufficiency of which are hereby acknowledged, Du Bose
and the Du ose Affiliates on their behalf and on behalf of their successors and assigns
and any .future owners or tenants of the : unose Property and the Du Bose Affiliates
Property, hereby grant and agree as follows:
1. The Dub ose Parties, on behalf of themselves, their heirs, successors and
assigns hereby fully and finally release and forever discharge the City and
all of its respective successors and assigns (including any current or future
owners or tenants of the City Property and any Surrounding, Property),
officers, city council members, mayors, employees consultants,
attorneys, experts, contractors, agents, and representatives for and from
any and all claims, demands, causes of action, fees, debts, obligations, or
losses which they may have, originating from, arising from, concerning,
and/or related to the Landfill, whether arising in law or equity, contract or
tort, and whether known or unknown, asserted or unasserted, including
but not limited to, any environmental claims (including but not li "ted to,
any claim under CERCLA)�, Environmental Requirement, Environmental
Conditions, Personal. Injury Damages, Property Damages, claim of
pollution, or loss of marketability of land or water, arising from or caused
by any condition Which Currently exists on the Dunose Property, DuBose
Affiliates Prope rty, or upon the City Property or any Surrounding,
Property, and originating from, arising from, concerning, and/or related to
the Landfill, and any and all claims asserted, or that could have been
asserted, in the l..,a suit including, but not limited to, 1) the migration of
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page
Materials of Environmental Concern arising from or existing in., can, at or
under the D� B se Property, the uBose affiliates Property, the City
Property or Surrounding Property or caused by the City originating from,
arising from, concerning, andJ r related to the Landfill, that may exist in
the soil, groundwater, or water on the surface, at, in, on, under, or
underlying the DuBose Property and the DuBose affiliates Property, the
City Property or any Surrounding Property, and 2 any future damages
that may result from any current conditions on any f' the DuP cse
Property, the Du Bose Affiliates Property, City :Property or Surrounding
Property, originating from, arising from, concerning, andfor related to the
Landfill, arising from the activities or operations of or caused by the City
or for which the City may otherwise be liable, including, but not limited to
the migration of materials of' Environmental Concern from soils to
groundwater or in groundwater from one location to another, or from soil
or groundwater to the atmosphere or into any buildings or structure. THE
RELEASE SEA"" FORTH IN "ARAG AP HS, I AND 2 OF THIS
DECLARATION TION SHALL E APPLICABLE WHETHER OR NOT
THE NEGLIGENCE THE CITY OR RELEASED 'ARTY IS
ALLEGED OIL PROVEN AND WHETHER OR NOT' SUCH
CLAIMS ARE BASED ON A NEGLIGENCE OR STRICT
LIABILITY STANDARD OIL CONDUCT.
2. The Du Bose parties, on behalf oaf themselves, their heirs, successors and
assigns hereby fully and finally release and forever discharge the City and
all of its respective successors and assigns (including any current or future
owners or tenants of the City Property or Surrounding Property),
embers, officers, directors, City councilmen, mayors, employees,
attorneys, experts, contractors, agents, and representatives for and from
any and all claims, demands, causes of action, fees, debts, obligations, or
losses, which they may have, whether arising in law or in equity, contract
or tart:, that have occurred or that may accrue in the future caused by any
condition on the Dubose Property, the DuBose affiliates Property, the
City Property, or Surrounding Property on'ginating, from, arising from,
concerning, and/or related to the Landfill, or caused by any act or failure
to act as of the date of this Declaration, originating from, concerning,
and or related to the La ndfill, including, but not limited to,, any claim for
negligence, negligence per se, statutory violations, Environmental Claims
(including, but not limited to, any claims under CERCLA), strict liability,
breach of express or implied contract or covenant, trespass, nuisance,
unjust enrichment, breach of contract, breach of easement, tort, fraud,
failure to warn, beach of statutory duty, nuisance per se, res ipsa to uitur,
or infliction of emotional distress, that has or may result in contamination
or environmental damage to, or affecting the marketability of, the
groundwater, surface water, surface or subsurface art, in, on, under, or
underlying the DuBose Property and/or the Du Bose affiliates Property
now or in the future. 'T'he parties desire that this release of claims be
DECLARATION OF RESTRICTIONS,AND COVENANTS
RUNNING WITH THE LAND--Page
ji0, h.
r
enforceable, and it shall be enforceable to the fullest extent permitted
under Texas law. THE RELEASE SET FOURTH IN PARAGRAPHS T
AND 2 OF THIS DECLARATION ION SHAL BE APPLICABLE,
WHETHER OR NOT TOTE NEGLIGENCE OF THE CITY OR
RELEASED PARTY IS ALLEGED OR PROVEN AND WHETHER
OR NOT SUCH CLAIMS ARE,� BASED ON A NEGLIGENCE OR
STRICT LIABILITY STANDARD Off- CONDUCT,
3 The release and discharge of claims in the foregoing Paragraphs I and 2
shall apply to, and inure to the benefit oaf, any insurer of any of the City to
the extent that such insurer might otherwise he responsible or liable for
any claim against the City (but shall not apply to any claims against such
an insurer based on coverage provided for entities other than the City).
.Bose and the DUBose Affiliates agree not to assert any claim or cause
of action against any insurer bused on or due to coverage provided by the
insurer to or for any of the City or the released Pat-ties as defined in
Paragraph 4 bel o w related to the claims described in Paragraphs, I and 2.
4. Du se and the DuBose Affiliates stipulate that the releases of claims
against the City in Paragraphs I and 2 are to be broadly construed to
include all the successors and assigns, council members, mayors, officers,
directors, employees, and agents of the City (the "Released Parties") and
the terra shall be construed se as to meet the "specificity of description"
requirements of Duncan v. Cessna Aircraft Co., 665 S.W.2d (Tex.
1984). The Released Parties shall have standing to enforce the release
to ms of this Declaration.
5. The Du Bose parties expressly covenant not to stye or to file, initiate, or
asset any lawsuits, complaints, clams, demands, protests, or any ether
legal or administrative proceedings with any local, state or federal curt
or local, state or federal agency or to tale or cause to be taken and action,
either directly or indirectly through others, in an effort to cause the City,
any Released Party, any party who is entitled to contribution from, one or
more of the City or released parties to be required to abate, investigate,
monitor, perform corrective action clean up, or re e late any in ones,
damages, pollution, Environmental Conditions or nuisances or to pay any
monetary damages on, in, in connection with, or arising from any current
conditions at or with the DuBose Property or the DuB,ose Affiliates
Property, the City Property,, Surrounding Property, any migration of
Materials of Environmental ental oncern from the Landfill released or
discharged as of the date of this Agreement, addressed in this Agreement
and originating from, arising from, concerning, or related to the Landfill,
or any cl rin released pursuant to Paragraphs f and 2 of this Agreement.
6. If the City is required by the Texas Natural, Resource Conservation
Commission (the "TNRCC") or any successor agency, any other
DECLARATION OF RESTRICTIONS AND COVENAN Ts
RUNNING WITH'THE LAND-Page
govemmentall entity or third party to address any environmental
conditions at, on, in, or under the L u gs Property or the DuBose
Affiliates Property, DuBose and the DuBose affiliates will fully
cooperate with, assist as necessary, and consent to the effort of the City to
obtain closure of the DuBose Property and the DuBose Affiliates Property
from the TNRCC, including, but not limited to, any investigation,
assessment, response, r mediation or other activity re in red or requested
by the TNRCC or not unreasonably required or requested by City in
connection with any Materials of environmental Concern located at, on,
in, or under or migrating through the DU Bose Property and the D,uBose.
Affiliates Property, provided that the City's actions comply with all
applicable laws. The Dubose Parties and their successors and assigns
(including any future owner, of the DluBose Property and the Du ose
Affiliates Property) agree not to challenge any response action that the
City may propose or agree to with any regulatory agency to address the
presence of Materials of Environmental Concern at, on, in, or under the
DuBose Property, the DuBos,e affiliates Property, the City Property or
Surrounding Property,, so long as it does not unreasonably interfere with
the business activities on the DuBose Property or DuBose Affiliate
Property, and complies with the provisions of Paragraph 7 and all
applicable laws..
7. Each of the DuBose ose Pa ti.es warrant and represent that they, require no
further remediation and/or clean-up efforts at, on, in, or under the DuBose
ose
Property, the DuBose Affiliates Property, the City Property, and
Surrounding Property for any Environmental Condition or Materials of
Environmental Concern originating from, arising from, concerning,
,
and/or related to the Landfill, other than as may occur pursuant to 18, of
this Declaration for the Gas Control System, beyond a risk-based closure
for industrial or commercial property or land use, and agree that in the
event any action is required of the City or any of the Released Parties at
the Dubose Property, the Du ose Affiliates Property, the City Property,
or the Surrounding Property, no clean a and/or rorrrediation of solid
waste, including any trash, garbage, rubbish, or municipal solid waste,
will he required by any of the D�u ose Parties. Each of the DuBose
ose
Parties will so inform the TNRCC as requested hy, the City. Specifically,
the Dubose Plat-ties will consent to a rerr ediation plan, if required of the
City, or any Released Party, including, but ]'lot limited to, a plan that
involves leaving any Materials of Environmental Concern in place in soil
and groundwater at the Duose Property and the DuBose Affiliates
Property in accordance with the requirements of Sections 361.531 to
361.540 of the Texas Solid Waste Disposal Act, Texas Health & Safety
Code §361.351-361.540, and any regulations promulgated thereunder..
Each of the DuBose Parties understand and consent to closure if required
of the City, of the Materials of Environmental Concem at, on, in, or under
the DluBlose Property, the DuBose Affiliates Property, the City ty 'rope rt ,
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND-Page
A//,,,h"
and the Surrounding Property based upon any TNRCC risk-bused
standard pursuant to an industrial or commercial land use under the Texas
Risk Reduction Program regulations, 30 Tex. Ad ruin. Code §§ 350.1
350.13�5
8. If recordation of a notice or restrictive eo enant is required for the
"uB ose Prope�uly and the D UBose Affiliates property by the TNRCC, or
any other governmental agency, to obtain closure for those properties and
the recordation concerns or relates to the Landfill, the Du Bose Parties will
not he entitled to any additional consideration and will execute as
necessary and/or consent to any filing of' any deed notice or restrictions,
including, but not limited to, a restriction of land use of the Du o e
Property and the DuBose Affiliates Property, consistent with a
commercial or industrial use, or the use of groundwater at, on, in, or
under the DUBose Property and the DUBose Affiliates Property, under the
Texas Risk Reduction program regulations,, 30, Tex. Admin. Code §§
350.1-350,135.
9. None of the provisions in Paragraphs 6 through 8 of this Declaration
require any of the actions described therein by the City or any Released
Pau-ty to address any Environmental Conditions at, in, on, or under the
DuBose Property, the Du ,ose Affiliates Property, the City Property, the
Surrounding Property, or otherwise to address any Environmental
Condition or Material of Environmental Concern or to comply with
Environmental Requirements.
10. This Declaration may he executed in multiple eounterp,arts, each of which.
shall constitute an original.
11 The recitals and exhibits to this Declaration are incorporated herein for all
purposes.
12. This Declaration may not he arnended except by a writing signed by the
party against whom enforcement of such amendment is sought.
13. In the event of any default of any provisions of this Declaration by either
the then owner of the D a ose roperty, D u ore Affiliates property or the
then owner of the City Property or its successors or assigns), the noin
defaulting party shall have the right, in addition to any other remedies
which such party may have by law or otherwise, to seek injunctive relief
and enjoin the defaulting party, from continuing such default. either party
may waive a default by the other party without waiving any other prior or
subsequent default uereunder Neither the failure by either party to
exercise, nor any delay by either party in exercising,, any right, power,
restrictions or remedy upon any default ley the other, shall he construed as
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page 8
a waiver 1. such default or as I waiver of the right to; exercise any such
ngl t power, restriction or remedy at a later date.
14. This Declaration shall be governed and cons,trued as, to interpretation,
enforcement, va1� 1ty, construction, effect and In all other respects, by the
laws, statutes and decisions o f the State of Texas. Thais Declaration shall
be construed fairly and in accordance with its plain meaning,, wltholu,t
regard to the party who may have initially drafted pats or ;ill. of this
Declaration.
. All provisions contained In thus, Declaration are severable and the
invalidity or unenforceal il.ty of any provision shall not affect or impair
the validity or enl" rceabil ty of the remaining provisions of this
6. "Hereunder,"' hereof, and similar or related, terminology refers to this,
entire De li trot o ., here appropriate, all reverences to the singular shall
include the plural and vice versa and all references 'to any gender shall
include any and every other gender.
This Declaration constitutes coven Ints running with land, and binds D B see
and the DuBolse Affiliates and any and every other current or future owner of or other
party who holds an interest in the DuBose Property andl r the Dubose Affiliates
Property,, including their respective personal, representatives,, heirs, devisee,s, successors
and assigns.
IN WITNESS F, this Declaration is executed, as ofthe day and year
first above written.
M
J OISE,, Individually and as Trustee of
the ones S. Du se Family Tru,st
ATE �T
DATED$ Cdh(�AL SAVINGS F.A.
m
M
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAN —Page
SD/JLD REAL STATE, LTD.. U"=:L,
.................. C'ell I Y.,
Title: m
w
DATED: 9-6-02 GDK/JE REAL ESTATE., LTD.
-
Jai es Bo .
Title-
DATED. 11 2002 GDKIJED.SEAL ESTATE, LTD.
ywr
� f
a n
Titles
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page 10,
1 0/011 W A,0401011
A C W D G N"IF
STATE F TEXAS
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this dad' personally appeared James
S. Diu e�se, known to me to be the person whose name is subscribed to the fore oi,n
instrument, and acknowledged to me that he is James S. Du Bose and that the same was
the act of the said ,dames S. : uBose, individually and as the Trustee of the James S.
DuBose Family rust; that he is authorized to execute this Declaration individually and
as the Trustee of the James S. Du Bose Family Trust; and that he executed the same
individually and as Trustee of the James S. DuBose Family Trust for the purposes and
consideration therein expressed and in the capacity therein stated.
GIVEN LC UNDER MY HAND AND SEAL OF + CE this day of
ember , 2002.
Notes' fic, State of Texas
Lynn ft r
(printed name
My Com 'ssion Expires; -
k
�
No �bfi
TEXAS
" Comm..Ex p,06/2
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page 11
�) A»A )"b
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF TARRANT
BEFORE ME, the undersigned uthority, on this day personally appeared
James S. f uBose
known to me to be the person whose name is, sul� �ble o the 7
foregoing instrument, and. acknowledged to me that he is the lit p r o ,
Swings F.A. and that the same was the act of the said Colonial Savings ".A., that he is
authorized to execute this Declaration; and that he executed the same as the act of such
corporat n for the purposes and cons,ideratioln therein expressed and in the capacity
therein stated.
GIVEN LTNDER MY HAND AND SEAL OF OFFICE this 5th day of
September , 2002.
� ww
h
Notary � c, State of Texas
Lynn Boelter
(printed name
My Commission Expires 6-28-05
LYNN BOELTER
Notary Pubuc
STATE OF TEXAS
OF My Comm.Exp.06/28/2006
it 1 so]
DLcLAI"J"ION OF RESTRICTIONS AND COVE AN rs
RUNNING WITH THE LAS+]' Page 12
A111009, ANIVIN",
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF TARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared
mas S DtilBocia known to me to he the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he is the General partner of JSD/JLD
Real Estate, Ltd. and that the same was the act of the said JSD/JLD real Estate, Ltd., a
Texas limited partnership; that he is authorized to execute this Declaration; and that he
executed the sane as the act of such corporation for the purposes and considerations
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 51.th day of
Se to m bee r- _ , 2002.
1" tar ` �lic Mate of Texas
Lynn BaeIter
(printed name)
M Commission Expires: 6--2 -05
MAN-
Notary Public
* STATE OF'TEXAS
" Mir C. UP.061"2812
DECLARATION OF RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND--Page 13
ACKNOWLEDGMENT
STATE TEXAS
COUNTY' OF TARRANT §
BEFORE ME, the Undersigned authority, on this day personally appeared James
E. DuBose, known to me to, he 'the person whose..06jame i s s scribed e o the foregoing
ins rumen , and acknowledged o e that he is the of GDK/ ED Real
Estate, Ltd. and that the same was the act of the said GDK/JED Real :Estate, Ltd, a Texas
limited partnership, that he is authorized to execute this Agreement; and that he executed
the same as the act of such corporation for the purposes and consideration therein
expressed and in the capacity there n stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6th day of
September 1 X002.
of r ic, State"of Texas
Lynn Boelter
(printed name)
My Commission Tres: 6-2 - 5
LYNN BOELTER
Notary,Public
STATE OF TEXAN
My Comm. Exp /282
DECLARATION F RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND—Page 1
AA >»
STATE OF TEXAS
COLNTYOFTARRANT §
BEFORE ME, the undersigned authority, on this day personally appeared
Gwynne D. Keyland, known to me to be the person whose na I S.
1TV the
f
foregoing instrument, and acknowledged to that he is t
G E:D Real Estate, :ltd. and that the same was the act of the said GDKJJED Rea
Estate, Ltd., a Texas limited partnership- that he is aUth r zed to execute this Agreement*
and that he executed the same as the act of such corporation for the purposes and
consideration thereiti expressed and in the capacity therein: stated.
GIVEN UNDER Y HAND AND SEAL OF O. ICE this 11 th day of
S r , 2002.
° V0 .011""
00)
�u
a
Notary ,i ' fic, State of texas
Cyan Boelt r
(printed name)
My t,,o mission Ex It res: 6-28-05
LYNN BO,ELTER
Notary Public
STATE F TEXAS,
My Comm, Exp. 22
DECLARATION " RESTRICTIONS AND COVENANTS
RUNNING WITH THE LAND-Page 15
EXHIBIT "A" TO DECLARATION OF' RESTRICTIONS
AND OVENANTS RUNNING WITH rl"'HE LAN
DECLARATION OF RESTRICTtONS AND COVENANTS
RUNNING WITH THE LAND—Page
po 1;
Mi �
x X X, X X
� � * E-4
co t v
C> 0 0 C"
00,IC> 00 00
cp��
0 6
r�,I N N
X >,4
x--, P-4 9L( P. P. 414Pl
0
rd c rd C*
tA
i C4 cd 4)C c
Cpl 0 o
*55, u L)
-g rg
cl
Cd Cl �3
V 9 �2 cl)
C-1 I
tv
cd
<=> � N w
0
V-� to
O N �, c
N N N
�o � � M
t
r I M ur r w I w I I
m
�" y
.........._
CL
co
cu
I
I
I
I
cu
CL
PER
I
r I«f-
�l�
,� II
r
a
I(/
I
e
w
'' "�� >,,,ere,»oi„Ni it i�✓at ,. ��f i � �f '/%� ,'�� ,,, _�I�i:..;/ /�,„, ll;m ✓I%�'/ �irrq%a
�1 m ,�irr r rr
r
r /r,
I
r
/r' Y f r ;”/,�fl�1/�//�/e✓ry%a„%,,,,'t ri'rii���'I ' �%�r J/ f '/�/r���,i%��/i
l/
f
i I�: JJ r �I I �/y �I�/,��✓/l o�,�l�"�'t�1 /r r'/
„�”"t/I �, „/r ,� �� %�;�/!, ,!,'>t//, 19P r.,,,,,, rl ,:. /l „%'"r!✓ f� vr.
r
r
/ VII ar,
i
l; f
d
i
r ,
I
I
r
r 111
V
I
is
a I I
I
II
u,u
I;
JI
V
�lu/
� r
4F h.
1
/
I
I ,
/
e
r ro
r p> I
eJ
� y
i
J�J I �I✓
1 n oRk
EXHIBIT "C"I
MOTION TO DISMISS
CADS 17-180555-99
JAMES S. DUBOSEI Individually § fN THE DISTRICT COURT
and as Trustee of the James S,..
uBo�se Family Trust
TARRAN T COUNTY, TEXAS
V.
THE CITY OF FORT WORTH,
TEXAS § 17"t ICIAL DISTRICT
MOTION TO DISMISS
TO THE HONORABLE GE OF SAID COURT.-
COME NOW, James S. DuBose, individually and as Trustee of the Janes S. Du. ose
Family Trust ("Plaintiff'), and files -this Motion to Dismiss.
Plaintiffs moves the Court: to dismiss all of plaintiff's claims against Defendant City of
Fort Worth, Texas, with prejudice to the right of Plaintiff to refil.e those claims.
Respectfully submitted,
By:
Vie Anderson, Jr.
State Bar No. 01 22 000
SHANNON GRACEY RATLIFF & MILLER, L.L.P.
777 Main Street, Suite 380
Fort Worth, Texas 76102-530
(8;17) 336-9333 Telephone
(81.x) 336-3735 Facsimile
ATTORNEYS FOR PLAINTIFF
y4).) h",
,EXHIBIT 1)"
ORDER OF DISMISSAL WITH PREJUDICE
CAUSE NO. I7-I8059
JAMES S. D OSE) Individually § IN THE DISTRICT COURT
and as Trustee of the James S
DuB se Family Trust
TARRAN`I°`C' TY, TEXAS
V.
THE CITY OF FORT WORTH7
TEXAS § 17th JUDICIAL,DISTRICT
ORDER OF DISMISSAL WITH PREJUDICE
CAME ON THIS DAY TO BE HEARD the moti,on of la iff' James S Du Bose,
individually and as Trustee of the ,l ees S. a se Family Trust, asking the Court to dismiss its
against claims the City of. Dort Worth, Texas, in the above-entitled and uurnber lawsuit with
prejudice to the right of Plaintiff to refile those claims in any forum or in any court. The Court,
having considered the most o�n, is of the opinion that Plaintiff's's motion should be granted.
It is therefore ORDERED that all of Plaintiff's claims against 'the City of Fort Worth,
Texas are hereby dismissed with prejudice to the right of Plaintiff to refi e those claims in any
forum or in any court.
It is further ORDERED that all court costs shall be taxed against the party incurring
same.
SIGNED this day o �
JUDGE PRESIDING
APPROVED S CFORM:
SHANNON, GRACEY TEL
777 Main Street, Suite 3
Fort Worth, Texas 761012
(817) 336-93313 Telephone
(817) 336-3735 Facsimile
-*
Vic Anderson,
State Bar No. 0 22310�O
ATTORNEYS FOR P"LAINTI
CITY OF FORT WORTH,
1000!Throckmot-ton Street
Fort Worth', Taxes 76
(817)
(817) -835
Theodore P. Gorski, Jr.
State Bar No. 0822 1000
ATTORNEYS FOR DEFENDANT
City oj Fort Worth', Texas
Mayor amci Council c a,tion
DATE REFERENCE NUMBER LOG NAME PAGE
7/16/02 **Gml 3�669 12DUBOSE 1 of 2
S EC T SETTLEMENT OF' ALL CLAIMS WITH JAMES S. DUBOSE, INDIVIDUALLY AND AS
TRUSTEE OF THE JAMES S. DUBOSE FAMILY TRUST, IN A LAWSUIT ENTITLED
JAMES S. UBOSE, INDIVIDUALLY AND AS TRUSTEE Off' THE JAMES S. DUBOSE
L FAMILYTRUST, V THE CITY OF FORT WORTH, TEXAS, CASE NO.17-180555-99
RECOMMENDATION:
It Is recornmended that the City Coluncill:
1. Approve the settlement of claims in the lawsuit entitled James S. Du use Individually and as
Trustee of the James S. Du Bose Family Trust, . the City of Fort Worth, Texas, Case, No.1 7.
180555-991 and
2. Adopt the attached supplemental appropriation ordinance increasing estimated receipts, and
appropriations by $310,01010 in the Prr operty and Casualty Insurance Fund from available funds,; and
3. Authorize the payment of $1,1510,000 in settlement of this lawsuit with the check made payable to
James S. Du Bose, Ind1i vidually and' gas Trustee of the Janney S. Du Bose FamilyTrust; and
4. Authorize reimbursement of 1010% of Mr. D:uBose's costs up toy but not exceeding $160,000, if
within five years Mr. DuBose constructs, and installs a as control system dell ned' to vent or
otherwise mitigate methane gas accumulation on his prope rty and
51. Authorize the appirolpriate City representatives to execute the documents necessary to complete the
settlement.
DISCUSS I.O.N.-
James S. DuBose, Individually and as Trustee of the James, S. Du,Bose Family Trust, filed a lawsuit
against the City alleging that his property had been damaged the release and migration of methane
gas from under Forest Park Boulevard and Parkview Drive, Mr. DuBose alleged the methane gas was,
generated by solld municipal waste, thiat had been deposited, in the vicinity as part of a City dump in the
1940's and 1950's.
While the City denles, liability in, this lawisuit, the City reached a proposed compromise settlement with
Mr. DuBosie, after mediation. Under the terms of the settlement, and subject to City Council approval,
the City agrees to: 1) pay Mr. Du Bose $15,01,000, and 2) relim,blurse 1100% of Mr. DuBose's costs up to,
but not exceeding $160,,000, if within five years Mr. DuB,ose constructs, and installs a gas control
system designed to vent or othierwise mitigate methane as accumulation on his property. In return,
Mr. DuBolse will dismiss his lawsuit and release all, claims against the City.
A I I
Approval of this settlement should not be construed as, an admission of liability by the City of Fort''
or its officers, agents and emipliolyees. In fact, any such liability in this matter is specifically denied. The
0 1
City enters into the settlement 'Only to avoid further time-consuming, costly�, and uncertain fifigation.
ity oj"'Fort Worth, Texas
A000416 1, 1
Mawor and Goluriol commurlicatiorl
V
DATE REFERENCE NUMBER LOG,NAME PAGE
1
7/16/02 7r3
**G-ol 3669 12DUBOSE 2 of 2
SUBJECT SETTLEMENT OF ALL CLAP 'S WITH JAMES S. DOBOSE, INDIVIDUALLY AND AS
TRUSTEE OF THE JAMES S. DUBOS FAMILY TRUST, IN A LAWSUIT ENTITLED
JAMES S BOSE, INDIVIDUALLY AND AS TRUSTEE OF 'THE JAMES S. DUBOSE
_FAMILY TRUST, V. THE CITY OF FORT WORTH, TEXAS, CASE NO,.17-180555-99
FISCAL INFORMATION/CERTIFICATION.*
The Finance Director certff"fes that upon adoption of'the attached supplemental appropriation ordinance,
funds will be available in the current operating budget, as appropriated, of the Property and Casualty
Insurance Fund.
CB:k
AUNT CIY
Submitted for City Manager's FUND:j—ACCOUNT CENT�ER MO T SECRETARY
Office by: to
FE 71 534060 0137120 $310$000.00
ChaTles Boswell 6183
Originating Department Head.-
David Yett 7623 (from) APPROVED 07/16/02
ORD.#151,53
Additional Information Contact:
Theodore Gorski,Jr. 7627 J