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HomeMy WebLinkAboutContract 45400 (2)CITY SAC C.tT CT COMPROMISE AND SETTLEMENT AGREEMENT COMPROMISE AND SETTLEMENT AGREEMENT (this "Agreement") as of this 5th day of September, 2002 among: (1) The City of Fort Worth, Texas ("City"); (2) James S. DuBose, individually, and as the Trustee of the James S. DuBose Family Trust ("DuBose"); (3) Colonial Savings F.A.; (4) JSD/JLD Real Estate, Ltd., a Texas limited partnership; and (5) GDK/JED Real Estate, Ltd., a Texas limited partnership. Collectively these entities will be referred to herein as the "Parties." WFIEREAS, DuBose owns the DuBose Property (as defined below) and related entities (herein the DuBose Affiliates as defined below) own properties adjacent to or near the DuBose Property, such entities and properties noted on Exhibit "A" attached hereto and incorporated herein by reference (herein the DuBose Affiliates Properties); WHEREAS, Colonial Savings F.A., JSD/JLD Real Estate, Ltd., GDK/JED Real Estate, Ltd., ("the DuBose Affiliates"), and DuBose have alleged that Materials of Environmental Concern (as defined below), particularly methane, are present at, on, in, under, underlying and/or have migrated to the DuBose Property and the DuBose Affiliates Property from the City Property (as defined below) or Surrounding Property (as defined below), or are otherwise caused by the actions or inactions of the City, at, on, in, under, originating from, arising from, concerning, and/or related to the Landfill (as defined below); WHEREAS, disputes have arisen between the Parties regarding the alleged responsibility for the aforementioned alleged releases and the environmental response and/or remediation costs and damages allegedly incurred by Dubose and the DuBose Affiliates; WFIEREAS, DuBose filed the Lawsuit (as defined below) against the City seeking among other things recovery of certain alleged damages to the DuBose Property; WHEREAS, the City filed an answer to the DuBose petition; WHEREAS, the DuBose Affiliates were not named in the Lawsuit but are the owners of the DuBose Affiliates 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 any admission of liability by any party to any other party or person, firm, or entity. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 1 502 541 000002 1480468.1 RECEIVED MAR U 4 71114 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: I. INCORPORATION OF RECITALS 1. The recitals set forth above are intended solely to describe the background of this Agreement and form no part of this Agreement. II. CERTAIN DEFINITIONS 2. In addition to those defined above, for purposes of this Agreement the following definitions shall be used: a. "City Property" shall mean any Surrounding Property in 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 Exhibit "A" owned by one or more of the DuBose Affiliates as indicated in Exhibit "A". c. ` DuBose Parties" shall mean James S. DuBose, individually and as Trustee of the James S. DuBose Family Trust, Colonial Savings F.A., JSD/JLD Real Estate, Ltd , and GDK/JLD Real Estate, Ltd d "DuBose Property" 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 particulaily 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 kind 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 federal, state, or local environmental regulatory agency with actual or alleged jurisdiction over the DuBose Property, the DuBose Affiliates Property the City Property, and/or Sunounding 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: (i) liabilities, losses, Property Damages, Personal Injury Damages, costs, and expenses related to the performance of any required or necessary CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 2 502541 000002 1480468.1 environmental assessments, investigations, remediation, response, closure, or clean-up of the DuBose 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 remediation, abatement, or other plans required by a governmental agency on the DuBose Property, the DuBose Affiliates Property, the City Property, and/or Surrounding Property including soils and groundwater underlying the DuBose Property, the DuBose Affiliates Property and/or Surrounding Property and (ii) reasonable attorney's fees, expert fees, and environmental consulting fees related thereto. f. "Environmental Requirement" 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, (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 wastes as defined under or in regulations promulgated under the Texas Solid Waste Disposal Act, Tex. Health & Safety Code §§ 361.001 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq , and (C) pollutants as defined under Chapter 26 of the Texas Water Code, or (D) Materials of Environmental Concern. g. "Environmental Conditions shall mean any environmental 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 System" shall mean the system designed to vent or otherwise mitigate methane accumulation on the portion of the DuBose Property indicated as "3," '4," and "5 on the diagram attached as part of Exhibit "A" substantially similar to the active landfill Gas Control System recommended in James S. Walsh's July 18, 2001 report entitled 'Landfill Gas Related Issues, DuBose Property, 2000 North Forest Park Boulevard, and 2400 West Freeway, Fort Worth, Texas" at page 5. i. "Landfill shall mean any area within 1, 350 yards of the DuBose Property and/or the DuBose Affiliates Property where an activity, operation, facility use, action, inaction, or omission of or by the City or a Released Party (hereinafter defined) has occurred as of the date of this Agreement 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, CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 3 502541 000002 1480468.1 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 DuBose Property, the DuBose 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 James S. DuBose, individually and as Trustee of the James 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, contaminant, chemical, oil, solvent, or petroleum product, or other solid, liquid, or gaseous substance or product originating from or arising 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 imposed, under any Environmental Requirements, (ii) exposure to which may pose an environmental, health, or safety threat or hazard, and including, but not limited, to those identified in any discovery or pleading, filed in the Lawsuit, (iii) methane or any other gas, chemical, constituent, contaminant or pollutant generated by or released from a landfill. 1. "Personal Injury Damages" shall mean any claim, liability, or recovery for bodily injury (including, without limitation, wrongful death or any 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 suffering, and emotional distress. m. "Property Damage" or "Property Damages" shall mean any claim, liability or recovery for injury to real or personal property (including without limitation, temporary or pernmanent 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, diminution in value, lost profits, loss of use, lost rental value and payments, and punitive damages, and (iii) injunctive, equitable, extraordinary, or other relief n. ` Surrounding Property" shall mean any real property located within 1,350 yards of the DuBose Property and/or the DuBose Affiliates Property, and any real property, other than the DuBose Property or the DuBose Affiliated Property, referred to or described in any discovery or pleading filed in the Lawsuit. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT - Page 4 502541 000002 1480468.1 III. PAYMENT AND CONSIDERATION 3. Within five (5) days after the delivery to the City of fully -executed copies of this Agreement by the DuBose Parties, the City will pay to the DuBose Parties ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00), which will be payable by check jointly to DuBose, and which check will be forwarded in trust to DuBose's counsel. 4. In sole consideration of, and for purposes of settling claims and releasing claims against the City, the DuBose 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, and/or 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 confirm that the DuBose Parties are receiving now full and complete compensation for any Environmental Requirements, Environmental Claims, or other damages claimed in the Lawsuit, which could have been claimed in the Lawsuit, or in any other litigation which could have been filed by the DuBose Parties, now or in the future allegedly caused by the City, originating fiom, arising from, concerning, and/or related to the Landfill. 5. Further consideration may be paid under the terms and conditions of Paragraph 18 of this Agreement. IV. REPRESENTATIONS 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 performance 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 perfoiun 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 DuBose 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 DuBose Parties each respectively represent and warrant that, on the date this Agreement is executed by such party, they have not received notice that any person, fiiin, or entity (other than the parties to this Agreement or to the Lawsuit) has asserted against them any Environmental Claims, of any other claim in connection with the presence of any Materials of Environmental Concern at the DuBose Property and the DuBose Affiliates Property; CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 5 502541 000002 1480468.1 9. The DuBose Parties each respectively represent and warrant that they are the holders of the claims that are the 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 warrant that one or more of the DuBose 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 11. The DuBose 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 limited 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 DuBose Property, DuBose 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 DuBose Property, the DuBose Affiliates Property, 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, 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 of the DuBose Property, the DuBose Affiliates Property, City Property or Surrounding Property, originating from, arising from, concerning, and/or 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 SET FORTH IN THIS SECTION V SHALL BE APPLICABLE WHETHER OR NOT THE NEGLIGENCE THE CITY OR RELEASED PARTY IS ALLEGED OR CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 6 502541 000002 1480468.1 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 City 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 fiom 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 tort, 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 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, 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, breach of statutory duty, nuisance per se, res ipsa loquitur, 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 at, in, on, under, or underlying the DuBose 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 FORTH IN THIS SECTION V SHALL BE APPLICABLE WHETHER OR NOT THE 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 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 might otherwise be 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). The DuBose Parties agree not to assert any claim or cause of action against any insurer based on or due to coverage provided by the insures 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 12. 14. The DuBose 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 term shall be construed so as to meet the ` specificity of description" requirements of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984) The Released Parties shall have standing to enforce the release terms of this Agreement. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 7 502541 000002 1480468.1 15. The DuBose Parties expressly covenant not to sue or to file, 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 take 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 remediate any injuries, 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 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 Requirements) as of the date of this Agreement, addressed in this Agreement and originating from, arising from, concerning, or related to the Landfill, or any claim released pursuant to Paragraphs 11 and 12 of this Agreement. 16. The DuBose Parties further agree to execute, contemporaneously with this Agreement, Exhibit ` B" hereto, which is titled `DECLARATION OF 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 DuBose Parties within that time period, the DuBose Parties grant permission to the City to file such document in the deed records of Tarrant County, Texas. VI. DISMISSAL OF ACTIONS AND WITHDRAWAL 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 foul! set forth in Exhibits "C" and "D ' attached hereto. VII. FURTHER CLOSURE ACTIVITIES 18. If within five (5) years from the effective date of this Agreement DuBose constructs and installs the Gas Control System on the DuBose Property indicated as ` P1Q" on the diagram attached to Exhibit 'A" 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 DuBose to construct and install the Gas Control System If the Texas Natural Resource Conservation Commission or any successor agency (collectively the "TNRCC") orders or demands that the City address any release of methane, any other Material of Environmental Concern, or -other Environmental Conditions at on, in, under, about, or affecting the DuBose Property or the DuBose Affiliates Property, before construction or CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 8 502541 000002 1480468.1 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 DuBose or any DuBose Affiliate, the Gas Control System shall comply with all Environmental Requirements. 19. 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 or the DuBose Affiliates Property the DuBose Parties 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, remediation or other activity required 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 DuBose Property and the DuBose 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 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 DuBose Affiliates Property, the City Property or Surrounding Property, so long as it does not unreasonably interfere with the business activities on the DuBose Property of DuBose Affiliate Property, and complies with the provisions of Paragraph 20 and all applicable laws. 20. Each of the DuBose Parties warrant and represent that they require no further remediation and/oi clean-up efforts at, on, in, or under the DuBose 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 Agreement for the Gas Control System, beyond a risk -based closure for industrial 01 commercial property or land use, and agree that in the event any action is requited of the City or any of the Released Parties at the Dubose Property, the DuBose 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 of 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 remediation 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 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 Concern at, on, in, or under the DuBose Property, the DuBose Affiliates Property, the City Property, and the Surrounding Property based upon any TNRCC risk -based standard pursuant to an CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 9 502541 000002 1480468.1 industrial or commercial land use under the Texas Risk Reduction Program regulations, 30 Tex. Admin. Code §§ 350.1-350.135. 21. If recordation of a notice or restrictive covenant is required for the DuBose Property and the DuBose 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 DuBose Parties will not be 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 DuBose 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, based upon any standard under the Texas Risk Reduction Program regulations, 30 Tex. Admin. Code §§ 350.1-350.135. 22. None of the provisions in this Section VII of this Agreement require any of the actions described in this Section by the City or any Released Party to address any Environmental Conditions at, in, on, or under the DuBose Property, the DuBose Affiliates Property, the City Property, the Surrounding Property, or otherwise to address any Environmental Condition or Materials of Environmental Concern or to comply with Environmental Requirements originating from, arising from, concerning, and/or related to the Landfill. VIII. DISLOSURE OF ENVIRONMENTAL CONDITIONS 23. The Plaintiff shall ensure compliance with the requirements of Section 361.539 of the Texas Health and Safety Code. IX. SOLE AGREEMENT; 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 pnor or contemporaneous 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 variation, change, modification, waiver, discharge, or teiuiination 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 breach 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. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 10 502541 000002 1480468.1 X. NO RELIANCE ON REPRESENTATIONS BEYOND THOSE 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 them other than those expressly stated herein, but rather each has relied solely upon its own legal counsel, representatives, agents, and employees. XI. VOLUNTARY EXECUTION 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 OF 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 29. The DuBose Parties shall keep the terms of this Agreement confidential, and shall make no press release or public disclosure, either written or oral, regarding same, without the prior knowledge and consent of the City, provided that the foregoing 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, or (ii) to attorneys or other agents or employees of the DuBose Parties assisting the DuBose Parties in connection with this Agreement or in connection with the enforcement of this Agreement. The provisions of this Section shall survive the teiiirination of this Agreement. 30. In particular, no news release or other information about the settlement shall be made or given by the DuBose Parties or their counsel to any news medium, including newspaper, magazine, radio, television or electronic medium, including the Internet. 31. This Settlement Agreement, and the terms of this Settlement Agreement, shall not be offered or admitted into evidence or otherwise used in any litigation against the City, except as may be necessary in any good faith litigation by the DuBose 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 1480468.1 successor s and assigns. Without limiting the foregoing, the release and discharge of claims set forth in Paragraphs 11 through 12 shall be binding upon any subsequent purchaser of the DuBose Property and the DuBose Affiliates Property and upon any and all parties acquiring rights to any portion of the DuBose Property and the DuBose Affiliates Property to the extent permitted by law. XV. SURVIVAL OF REPRESENTATIONS AND WARRANTIES 33. The representations, warranties, releases, covenants and other obligations contained herein shall survive the execution and performance of this Agreement. XVI. CAPTIONS AND INTERPRETATIONS 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. SIGNATORIES' AUTHORITY 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. XVIII. 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 attorney's fees and expert witness fees, from the other party or parties. XIX. SEVERABILITY 37. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable legal requirements. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remainder of the terius, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way 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 terns to such illegal, invalid, or unenforceable provisions as may be possible and be legal, valid, and enforceable. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 12 502541 000002 1480468.1 XX. GOVERNING LAW 38. This Agreement shall be governed, construed, and the rights of the parties interpreted and determined in accordance with the laws of the State of Texas, including, but not limited to, all matters of formation, interpretation, construction, validity, performance, and enforcement. XXI. NOTICES 39. All notices required by this Agreement to be made upon the parties hereto shall be served by certified mail return receipt requested, hand delivery, express mail service, or telecopier as follows: If to City: With a copy to: If to James S. DuBose: with a copy to: If to Colonial Savings and Loan Association: with a copy to: If to JSD/JLD Real Estate, Ltd.: Theodore P. Gorski, Jr. Assistant City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 Scott D. Deatherage Thompson & Knight, L.L P. 1700 Pacific Avenue, Suite 3300 Dallas, Texas 75201 Mr James S. DuBose Colonial Savings F.A. 2626 A. West Freeway Fort Worth, Texas 76102 C. Vic Anderson Shannon, Gracey, Ratliff & Miller, T J P 777 Main Street, Suite 3800 Fort Worth, Texas 76102 Mr Wayne Lasater P. O. Box 2988 Fort Worth, Texas 76113 Lee J. Brookshire, Jr. P. O. Box 2988 Fort Worth, Texas 76113 Mr. James S. DuBose Colonial Savings F.A. 2626 A. West Freeway Fort Worth, Texas 76102 CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 13 502541 000002 1480468.1 With a copy to: If to GDK/JED Real Estate, Ltd.: With a copy to: C. Vic Anderson Shannon, Gracey, Ratliff & Miller,1 J .P 777 Main Street, Suite 3800 Fort Worth, Texas 76102 Mr James S. DuBose Colonial Savings F.A. 2626 A. West Freeway Fort Worth, Texas 76102 C. Vic Anderson Shannon, Gracey, Ratliff & Miller, LLP 777 Main Street, Suite 3800 Fort Worth, Texas 76102 XXII. EXECUTION IN COUNTERPART 40. This Agreement may be executed in one or more counterparts in person or by telecopy, all of which shall be considered one and the same Agreement and each of which shall be deemed an original. XXIII. NO EVIDENCE 41. 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 part 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 42. 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 this 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 AGREEMENT -- Page 14 502541 000002 1480468.1 XXV. EFFECTIVE DATE OF AGREEMENT 43. The effective date of this Agreement shall be the earliest date on which all parties have executed and delivered this Agreement. CITY O7QRT WORTH, TEXAS By: TitleV Date: 0, ierni &rya-hi/gra 2%rz� JAMES S . DUBOSE, INDIVIDUALLY AND AS TRUSTEE OF THE JAMES S . DUBOSE FAMILY TRUST _0\ ( c��-- COLONIAL SAVINGS F.A. By: Title: Date: Jame E. DuBose President 9-6-02 JSD/JLD REAL ESTATE, LTD. By: Title: tittai Date: q — GD K/JED REAL ESTATE, LTD. B y: James g. Dubose Title: G_& Date: 9-6-02 CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT - Page 15 502541 000002 1480468.1 GDK/JED REAL ESTATE, LTD. B y : 9rt GSA/ rnn6 D. Keyland Title: cal s-1J- Date: September 1 1 , 2002 APPROVED AS TO CONTENT AND FORM: t Theodore P. Gorski, Jr. State Bar No. 08221000 CITY OF FORT WORTH, TEXAS 1000 Throckmorton Street Fort Worth, Texas 76102 (817) 871-7600 Telephone (817) 871-8359 Facsimile CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 16 502541 000002 1480468.1 STATE OF TEXAS COUNTY OF TARRANT § ACKNOWLEDGMENT 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. DuBose, individually and as the Trustee of the James S. DuBose Family Trust; that he is authorized to execute this Agreement individually and as the Trustee of the James S. DuBose 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 UNDER MY HAND AND SEAL OF OFFICE this 5th day of September , 2002. My Commission Expires: 6-28-05 l , Notar4ilj?iblic, State of Texas Lynn Boelter (printed name) LYNN BOELTER Notary Public i STATE OF TEXAS �l�oFQ My Comm Exp. 06/28/200E6 CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 17 502541 000002 1480468.1 STATE OF TEXAS COUNTY OF TARRANT ACKNOWLEDGMENT BEFORE ME, the undersigned authority, on this day personally appeared James E DuBose, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he is the President of Colonial Savings F.A. and that the same was the act of the said Colonial Savings F.A., 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 therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6th day of September , 2002. My Commission Expires: 6-28-05 Notary 'yi1 ic, State of Texas Lynn Boelter (printed name) LYNN BOELTER Notary public STATE OF TEXAS My Comm. Exp. 06/28/2005:1 'K...—. w.r.... •elo..e.. .......... ......C; ACKNOWLEDGMENT CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 18 502541 000002 1480468.1 STATE OF TEXAS COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared James S. Du Bose , known to me to be 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 Agreement; 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 MY HAND AND SEAL OF OFFICE this 5th day of September , 2002. My Commission Expires 6-28-05 Notary/Pi lic, State of Texas Lynn Boelter (printed name) L')'NN I3OELTER� Notary Public STATE OF TEXAS M.. Comm. p.20051 CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 19 502541 000002 1480468.1 ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared James E. DuBose, known to me to be the person whose/name is scribed to the foregoing instrument, and acknowledged to me that he is the ' f GDK/JED 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 therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6th day of September , 2002. My Commission Expires: 6-28-05 ,ta.„) Notary ubl4c, State of Texas Lynn Boelter (printed name) LYNN BOELTER Notary Public STATE OF TEXAS My Comm. Exp. 06/28/20tt CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT - Page 20 502541 000002 1480468.1 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF TARRANT BEFORE IVIE, the undersigned authority, on this day personally appeared Gwynne D. Keyland, known to me to be the person whose name i�s s bscri- ed to the y y � foregoing instrument,and acknowledged to me that she is the r n*adt€krIan''of g g g GDK/JED Real Estate, Ltd. and that the same was the act of the said GDKIJED Real Estate, Ltd., a Texas limited partnership; that she is authorized to execute this Agreement; and that she executed the same as the act of such corporation for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 11 th day of September , 2002. My Commission Expires: 6-28-05 Notary ic, State of Texas Lynn Boelter (printed name) 1 1 4 ♦.. \. ill Oh. \ \ .\.\. t. a LYNN BOELTER Notary Public STATE OF TEXAS My Comm. Exp. 06/28/2005 ♦. •. a%. Y`.\i♦i.. aV♦..\a'.\.\.\. .\. a\.\.\.\.\a%a\.Ni`.\. CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT - Page 21 502541 000002 1480468.1 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, on this day personally appeared .Gi bb GJa%soh , known to me to be the person whose name is subscribed 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 Worth, Texas; that she is authorized to execute this Agreement; and that she executed the same as the act of such corporation for the purposes and consideration therein expressed and in the capacity therein stated. _ GIVEN UNDER MY HAND AND SEAL OF OFFICE this 2221day of Setae Act , 2002. 11 .. 11 ,, ,�,NWgilit, *:J\ •° • dr4,if OF N'cr HETTIE LANE Notary Public, State of Texas My Commission Expires July 26, 2003 Lj Notary Public, State of %-etta s My Commission Expires: Sit! ,24, ;0°3 Ae7 -ie (printed name) CONFIDENTIAL COMPROMISE AND SETTLEMENT AGREEMENT — Page 22 502541 000002 1480468.1 EXHIBIT "A" DUBOSE PROPERTY AND DUBOSE AFFILIATES PROPERTY 502541 000002 1480468.1 Tad # Address 1 0065-01-61 1800 Forest Park Blvd 2 0081-99-99 2300 W Fwy 3 0466-53-92 2000 N Forest Park Blvd 4 0466-53-84 2400 W Fwy 5 0466-53-76 2400 W Fwy 6 0082-00-67 2500 W Fwy 7 0082-00-40 2516 W Fwy 8 0082-00-59 2520 W Fwy 9 0082-00-75 2530 W Fwy 10 0595-88-73 2626 Parkview Dr 11 0315-69-31 2626 Parkview Dr 12 0595-89-03 2624 W Fwy 13 0595-88-81 2626 W Fwy Summary of Property Owners Parkview Drive & Forest Park Drive Vicinity Legal Description Blk-19, Lots-B, B2, & C, Crawford Addn Blk-31R Less ROW Blk-34R, Lot-2 & E Pt 1, Edward Heirs Addn Blk-34R, NW Pt Lot-1, Edward Heirs Addn Blk-34R, SW Pt Lot-1, Edward Heirs Addn Blk-34, Lot-C, Edward Heirs Addn Blk-34, Lot -A, Edward Heirs Addn Blk-34, Lot-B, Edward Heirs Addn Blk-34, Lot-D, Edward Heirs Addn Blk-2, Lot-2A, Towers Addn Blk-2, Lot-2, Towers Addn Blk-2, Lot-2C, Towers Addn Blk-2, Lot-2B, Towers Addn Owner Colonial Savings F.A. Jsd/Jld Real Estate Ltd James S DuBose/DuBose Family Trust James S DuBose/DuBose Family Trust James S DuBose/DuBose Family Trust Colonial Savings FA. Colonial Savings F.A. Colonial Savings F.A. Colonial Savings F.A. Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Mailing Address PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 1200 Shady Oaks Ln, Fort Worth Tx 76107 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 502541 000002 DALLAS 1480834.1 t !a'P IV 1 P.kN'..YILt'. I 411ceM I13j HIxoM iI1o,4 lead 00-P OOZ 0 OOZ speaffieel tv/ jo spoaed Aydea6oi.oud Ieuab' LOOZ EXHIBIT `B" DECLARATION 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 made and entered into as of the 5th day of September, 2002, by James S. DuBose ("DuBose") and Colonial Savings F.A., JSD/JLD Real Estate, Ltd , a Texas limited partnership, and GDK/JED Real Estate, Ltd a Texas limited partnership, (the "DuBose Affiliates") and for the benefit of the City of Fort Worth, 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., JSD/JLD Real Estate, Ltd , and GDK/JED Real Estate, 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 Exhibit "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 DuBose Property, the DuBose 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 DuBose Property, the DuBose Affiliates Property, the City Property, and the Surrounding Property. (D) Certain Definitions: a. "City Property" shall mean any Surrounding Property in 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 Declaration or migrate in the future. b "DuBose Affiliates Properties" shall mean the properties more particularly described in Exhibit "A". DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND -- Page 1 c. "DuBose Parties ' shall mean James S. DuBose, individually and as Trustee of the James S. DuBose Family Trust, Colonial Savings F A , JSD/JLD Real Estate, Ltd , and GDK/JED Real Estate, Ltd. d "DuBose Property" 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 Declaration 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 kind 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 federal, state, or local environmental regulatory agency with actual or alleged jurisdiction over the DuBose 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, stnct liability, or Environmental Requirement including, but not limited to: (i) liabilities, losses, Property Damages, Personal Injury Damages, costs, and expenses related to the performance of any required or necessary environmental assessments, investigations, remediation, response, closure, or clean-up of the DuBose 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 remediation, abatement, or other plans required by a governmental agency on the DuBose Property, the DuBose Affiliates Property, the City Property, and/or Surrounding Property including soils and groundwater underlying the DuBose Property, the DuBose Affiliates Property and/or Surrounding Property and (ii) reasonable attorney's fees, expert fees, and environmental consulting fees related thereto f. "Environmental Requirement' 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, (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 wastes as defined under or in regulations promulgated under the Texas Solid Waste Disposal Act, Tex. Health & Safety Code §§ 361.001 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq , and (C) pollutants as defined under Chapter 26 of the Texas Water Code, or (D) Materials of Environmental Concern. DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page g. "Environmental Conditions" shall mean any environmental 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 System" shall mean the system designed to vent or otherwise mitigate methane accumulation on the portion of the DuBose Property indicated as "3," "4, ' and "5' 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 'Landfill Gas Related Issues DuBose Property, 2000 North Forest Park Boulevard, and 2400 West Fieeway, Fort Worth, Texas" at page 5. i. "Landfill" shall mean any area within 1, 350 yards of the DuBose Property and/or the DuBose Affiliates Property where an activity, operation, facility use, action, inaction, or omission of or by the City or a Released Party (hereinafter defined) 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 DuBose Property, the DuBose 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 James S. DuBose, individually and as Trustee of the James 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, contaminant, chemical, oil, solvent, or petroleum product, or other solid, liquid, or gaseous substance or product onginating from or arising from, concerning or related to the Landfill (i) that is currently or hereinafter listed, regulated, of 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 imposed, under any Environmental Requirements, (ii) exposure to which may pose an environmental, health, or safety threat or hazard, and including, but not limited, to those identified in any discovery or pleading, filed in the Lawsuit, (iii) methane or any other gas, chemical, constituent, contaminant or pollutant generated by or released from a landfill. 1. "Personal Intury Damages" shall mean 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), exemplary, extraordinary, economic, and non -economic, punitive damages, pain and suffering, and emotional distress. m. "Property Damage" 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, diminution in value, lost profits, loss of use, lost rental value and payments, and punitive damages, and (iii) injunctive, equitable, extraordinary, or other relief. n. "Surrounding Property" shall mean any real property located within 1,350 yards of the DuBose Property and/or the DuBose Affiliates Property, and any real property, other than the DuBose Property or the DuBose Affiliated Property, referred to or described in any discovery or pleading filed in the Lawsuit. NOW, THEREFORE, KNOW 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, DuBose and the DuBose Affiliates on their behalf and on behalf of their successors and assigns and any future owners or tenants of the DuBose Property and the DuBose Affiliates Property, hereby grant and agree as follows: 1. The DuBose 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 limited 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 DuBose Property, DuBose 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 DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 4 Materials of Environmental Concern arising from or existing in, on, at, or under the DuBose Property, the DuBose Affiliates Property, 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, 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 of the DuBose Property, the DuBose Affiliates Property, City Property or Surrounding Property, originating from, arising from concerning and/or 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 of groundwater to the atmosphere or into any buildings or structure. THE RELEASE SET FORTH IN PARAGRAPHS 1 AND 2 OF THIS DECLARATION SHALL BE APPLICABLE WHETHER OR NOT THE NEGLIGENCE THE CITY OR RELEASED PARTY IS ALLEGED OR PROVEN AND WHETHER OR NOT SUCH CLAIMS ARE BASED ON A NEGLIGENCE OR STRICT LIABILITY STANDARD OF CONDUCT. 2. The DuBose 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 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, or losses, which they may have, whether arising in law or in equity, contract or tort, 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 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 Declaration, 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, 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, breach of statutory duty, nuisance per se, res ipsa loquitur, 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 at, in, on, under, or underlying the DuBose Property and/or the DuBose Affiliates Property now or in the future. The parties desire that this release of claims be DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 5 enforceable, and it shall be enforceable to the fullest extent permitted under Texas law. THE RELEASE SET FORTH IN PARAGRAPHS 1 AND 2 OF THIS DECLARATION SHALL BE APPLICABLE WHETHER OR NOT THE 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 OF CONDUCT. 3. The release and discharge of claims in the foregoing Paragraphs 1 and 2 shall apply to, and inure to the benefit of, any insurer of any of the City to the extent that such insures might otherwise be 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). DuBose and the DuBose Affiliates 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 4 below) related to the claims described in Paragraphs 1 and 2. 4. DuBose and the DuBose Affiliates stipulate that the releases of claims against the City in Paragraphs 1 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 term shall be construed so as to meet the `specificity of description' requirements of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984). The Released Parties shall have standing to enforce the release terms of this Declaration. 5. The DuBose Parties expressly covenant not to sue or to file, 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 take 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 remediate any injuries, 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 DuBose Affiliates Property, the City Property, Surrounding Property, any migration of Materials of Environmental Concern 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 claim released pursuant to Paragraphs 1 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 COVENANTS RUNNING WITH THE LAND — Page 6 governmental entity or third party to address any environmental conditions at, on, in, or under the DuBose 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, remediation or other activity required 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 DuBose Property and the DuBose Affiliates Property, piovided 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 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 DuBose 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 Parties warrant and represent that they require no further remediation and/or clean-up efforts at on in, or under the DuBose 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 of any of the Released Parties at the Dubose Property, the DuBose 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 of 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 remediation 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 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 Concern at, on, in, or under the DuBose Property, the DuBose Affiliates Property, the City Property, DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WI1 H THE LAND — Page 7 and the Surrounding Property based upon any TNRCC risk -based standard pursuant to an industrial or commercial land use under the Texas Risk Reduction Program regulations, 30 Tex. Admin. Code §§ 350.1- 350.135. 8. If recordation of a notice or restrictive covenant is required for the DuBose Property and the DuBose 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 DuBose Parties will not be 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 DuBose 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 Party to address any Environmental Conditions at in, on, or under the DuBose Property, the DuBose 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 be executed in multiple counterparts, 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 be amended 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 DuBose Property, DuBose Affiliates Property or the then owner of the City Property (or its successors or assigns), the non - 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 hereunder. 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 by the other, shall be construed as DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 8 a waiver of such default or as a waiver of the right to exercise any such right, power, restriction or remedy at a later date. 14. This Declaration shall be governed and construed as to interpretation, enforcement, validity, construction, effect and in all other respects by the laws, statutes and decisions of the State of Texas. This Declaration shall be construed fairly and in accordance with its plain meaning without regard to the party who may have initially drafted parts or all of this Declaration. 15. All provisions contained in this Declaration are severable and the invalidity or unenforceability of any provision shall not affect or impair the validity or enforceability of the remaining provisions of this Declaration. 16. "Hereunder," "hereof," and similar or related terminology refers to this entire Declaration. Where appropriate, all references 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 covenants running with the land and binds DuBose and the DuBose Affiliates and any and every other current or future owner of or other party who holds an interest in the DuBose Property and/or the DuBose Affiliates Property, including their respective personal representatives, heirs, devisees, successors and assigns. IN WITNESS WHEREOF, this Declaration is executed as of the day and year first above written. DATED DATED: c � JAME&S. DUBOSE, Individually and as Trustee of the James S. DuBose Family Trust COLOMAL SAVINGS F.A. By Title: DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 9 DATED: DATED: 9-6-02 JSD/JLD REAL ESTATE, LTD. By: �(�� Title: GDK/JED REAL ESTATE, LTD. By: Jawes DuBose Title: triAti'VL-h �h rreLs--J DATED: Sept. 11, 2002 GDK/JED REAL ESTATE, LTD. By: dw�3'nn Title: �/ DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND - Page 10 ir✓n � 194 teedty i STATE OF TEXAS COUNTY OF TARRANT ACKNOWT FDGMENT 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. DuBose, individually and as the Trustee of the James S. DuBose Family Trust; that he is authorized to execute this Declaration individually and as the Trustee of the James S DuBose 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 UNDER MY HAND AND SEAL OF OFFICE this 5th day of September , 2002. Notarlic, State of Texas Lynn Boelter (printed name) My Commission Expires: 6- 2 8- 0 5 • LYNN N Notary 'Public STATE OF TEXAS My comm. Exp, 06/28/20051 DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 11 STATE OF TEXAS COUNTY OF TARRANT ACKNOWLEDGMENT BEFORE ME, the undersigned authority, on this day personally appeared James S Du Bose , known to me to be the person whose name is subsaibed to the uairaforegoing instrument, and acknowledged to me that he is the P 1%t of uoloniaolf the Board Savings F.A. and that the same was the act of the said Colonial Savings F.A.; that he is authorized to execute this Declaration, 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 MY HAND AND SEAL OF OFFICE this 5th day of September , 2002. My Commission Expires' 6-28-05 -et.r x t �1 State of Texas Lynn Boelter (printed name) rya. joija...aisaiaaaaaa �t►�'r',_ LYNN BOELTER Notary Public STATE OF TEXAS I My Comm. Exp. . 6/28.. /2006 DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 12 STATE OF TEXAS COUNTY OF TARRANT § ACKNOWLEDGMENT BEFORE ME, the undersigned authority, on this day personally appeared Jame s _RuBose , known to me to be 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 same as the act of such corporation for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 5th day of September , 2002. My Commission Expires: 6-28-05 Notary/ }(blic, State of Lynn Boelter (printed name) DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 13 Texas LYNN BOELTER Notary Public STATE OF TEXAS My Comm. Exp. 06/28/20051 ..... -. ..i t%J. 4............*.,S._. ACKNOWLEDGMENT STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, on this day personally appeared James E. DuBose, known to me to be the person whose name is syl9scribed to the foregoing instrument, and acknowledged to me that he is the u PtMn) of GDK/JED 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 therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 6 t h day of September 2002. My Commission Expires: Notary/ ic, State of Texas Lynn Boelter (printed name) 6-28-05 LYNN BOELTER Notary Public f . STATE OF TEXAS Py 'k My Comm. Exp. 06/28/2005.1 DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 14 ACKNOWLEDGMENT STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, on this day personally appeared Gwynne D. Keyland, known to me to be the person whose na is ,subs ?rib d to the foregoing instrument, and acknowledged to me that he is t ( & f g g g / GDK/JED 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 therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 11 th day of September , 2002. My Commission Expires: 6-28-05 Notary Eti lic, State of Texas Lynn Boelter (printed name) LYNN BOELTER Notary Public STATE OF TEXAS My Comm. Exp. 06/28/2005 DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND - Page 15 EXHIBIT "A" TO DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND DECLARATION OF RESTRICTIONS AND COVENANTS RUNNING WITH THE LAND — Page 16 Tad # Address 1 0065-01-61 1800 Forest Park Blvd 2 0081-99-99 2300 W Fwy 3 0466-53-92 2000 N Forest Park Blvd 4 0466-53-84 2400 W Fwy 5 0466-53-76 2400 W Fwy 6 0082-00-67 2500 W Fwy 7 0082-00-40 2516 W Fwy 8 0082-00-59 2520 W Fwy 9 0082-00-75 2530 W Fwy 10 0595-88-73 2626 Parkview Dr 11 0315-69-31 2626 Parkview Dr 12 0595-89-03 2624 W Fwy 13 0595-88-81 2626 W Fwy Summary of Property Owners Parkview Drive & Forest Park Drive Vicinity Legal Description Blk-19, Lots-B, B2, & C, Crawford Addn Blk-31R Less ROW Blk-34R, Lot-2 & E Pt 1, Edward Heirs Addn Blk-34R, NW Pt Lot-1, Edward Heirs Addn Blk-34R, SW Pt Lot-1, Edward Heirs Addn Blk-34, Lot-C, Edward Heirs Addn Blk-34, Lot -A, Edward Heirs Addn Blk-34, Lot-B, Edward Heirs Addn Blk-34, Lot-D, Edward Heirs Addn Blk-2, Lot-2A, Towers Addn Blk-2, Lot-2, Towers Addn Blk-2, Lot-2C, Towers Addn Blk-2, Lot-2B, Towers Addn Owner Colonial Savings F.A. Jsd/Jld Real Estate Ltd James S DuBose/DuBose Family Trust James S DuBose/DuBose Family Trust James S DuBose/DuBose Family Trust Colonial Savings F.A. Colonial Savings F.A. Colonial Savings F.A. Colonial Savings F.A. Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Gdk/Jed Real Estate Ltd Mailing Address PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 1200 Shady Oaks Ln, Fort Worth Tx 76107 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 PO Box 2990, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 PO Box 2988, Fort Worth Tx 76113 502541 000002 DALLAS 1480834.1 1 `,i5ti'_'.'` NK11 t'tt1'.-'flt'J ° Ai ; J 'S3 H,cboM.c�o,� 1 Taal 0017 00Z 0 00Z speameei Tsaiawl jo spoJed Rudea6owyd Ielaa`d 1-00Z JAMES S. DUBOSE, Individually and as Trustee of the James S. DuBose Family Trust v. THE CITY OF FORT WORTH, TEXAS EXHIBIT "C" MOTION TO DISMISS CAUSE NO. 17-180555-99 IN THE DISTRICT COURT TARRANT COUNTY, TEXAS 17th JUDICIAL DISTRICT MOTION TO DISMISS TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, James S. DuBose, individually and as Trustee of the James S. DuBose 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 refile those claims. Respectfully submitted, By: Vic Anderson, Jr. State Bar No. 01223000 SHANNON GRACEY RATLIFF & MILLER, L.L.P. 777 Main Street, Suite 3800 Fort Worth, Texas 76102-5304 (817) 336-9333 Telephone (817) 336-3735 Facsimile ATTORNEYS FOR PLAINTIN'N EXHIBIT "D" ORDER OF DISMISSAL WITH PREJUDICE JAMES S. DUBOSE, Individually and as Trustee of the James S. DuBose Family Trust v. THE CITY OF FORT WORTH, TEXAS CAUSE NO. 17-180555-99 IN THE DISTRICT COURT TARRANT COUNTY, TEXAS 17th JUDICIAL DISTRICT ORDER OF DISMISSAL WITH PREJUDICE CAME ON THIS DAY TO BE HEARD the motion of Plaintiff, James S. DuBose, individually and as Trustee of the James S. DuBose Family Trust, asking the Court to dismiss its claims against the City of Fort Worth, Texas, in the above -entitled and number lawsuit with prejudice to the right of Plaintiff to refile those claims in any forum or in any court. The Court, having considered the motion, is of the opinion that Plaintiff'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 refile 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 of . 2002 JUDGE PRESIDING APPROVED AS TO CONTENT AND FORM: SHANNON, GRACEY RATLIFF & MILLER, L L P 777 Main Street, Suite 3800 Fort Worth, Texas 76102 (817) 336-9333 Telephone (817) 336-3735 Facsimile By: Vic Anderson Jr. State Bar No. 01223000 ATTORNEYS FOR PLAINTIFF CITY OF FORT WORTH, TEXAS 1000 Throckmorton Street Fort Worth, Texas 76102 (817) 871-7600 (817) 871-8359 By: Theodore P. Gorski, Jr State Bar No. 08221000 ATTORNEYS FOR DEFENDANT ( City of Fort Worth, Tex s Mayor and Council Communication DATE REFERENCE NUMBER 7/16/02 **G-13669 SUBJECT LOG NAME PAGE 12DUBOSE 1 of 2 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. DUBOSE, INDIVIDUALLY AND AS TRUSTEE OF THE JAMES S DUBOSE FAMILY TRUST, V. THE CITY OF FORT WORTH, TEXAS, CASE NO 17-180555-99 RECOMMENDATION: It is recommended that the City Council: 1. Approve the settlement of claims in the lawsuit entitled James S. DuBose, Individually and as Trustee of the James S. DuBose Family Trust, v_ the City of Fort Worth, Texas, Case No.17- 180555-99; and 2. Adopt the attached supplemental appropriation ordinance increasing estimated receipts and appropriations by $310,000 in the Property and Casualty Insurance Fund from available funds; and 3. Authorize the payment of $150 000 in settlement of this lawsuit with the check made payable to James S. DuBose Individually and as Trustee of the James S. DuBose Family Trust; and 4. Authorize reimbursement of 100% of Mr. DuBose's costs up to, but not exceeding $160,000, if within five years Mr. DuBose constructs and installs a gas control system designed to vent or otherwise mitigate methane gas accumulation on his property; and 5. Authorize the appropriate City representatives to execute the documents necessary to complete the settlement. DISCUSSION: James S DuBose, Individually and as Trustee of the James S. DuBose Family Trust, filed a lawsuit against the City alleging that his property had been damaged by the release and migration of methane gas from under Forest Park Boulevard and Parkview Drive. Mr. DuBose alleged the methane gas was generated by solid municipal waste that had been deposited in the vicinity as part of a City dump in the 1940's and 1950's. While the City denies liability in this lawsuit, the City reached a proposed compromise settlement with Mr. DuBose after mediation .Under the terms of the settlement and subject to City Council approval, the City agrees to 1) pay Mr. DuBose $150,000, and 2) reimburse 100% of Mr. DuBose's costs up to, but not exceeding $160,000, if within five years Mr DuBose constructs and installs a gas control system designed to vent or otherwise mitigate methane gas accumulation on his property. In return Mr. DuBose will dismiss his lawsuit and release all claims against the City. Approval of this settlement should not be construed as an admission of liability by the City of Fort Worth or its officers agents and employees. In fact, any such liability in this matter is specifically denied. The City enters into the settlement only to avoid further time-consuming, costly and uncertain litigation. Charles Boswell 6183 Originating Department Head: David Yett Additional lnformation Contact: Theodore Gorski, Jr. • i City of Fort Worth Texas Mayor and Council Communication DATE 7/16/02 SUBJECT REFERENCE NUMBER LOG NAME PAGE **G-13669 12DUBOSE 2 of 2 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. DUBOSE 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 certifies 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 • Submitted for City Manager's I FUND Office by: I (to) FE71 1 i 7623 l (from) 7627 ACCOUNT + CENTER 534060 0137120 AMOUNT $310,000.00 • CITY SECRETARY APPROVED 07/16/02 I ORD # 15153