HomeMy WebLinkAboutContract 60341CITY SECRETARY
G,Difl-RACT NO.
SETTLEMENT AGREEMENT
WHEREAS, this Settlement Agreement is between the United States of America (the
"United States") and the City of Fort Worth, Texas ("the City"), hereinafter collectively "the
Parties;"
WHEREAS, the City contends that it has a cause or causes of action against the United
States for, inter alia, cost recovery under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. § 9601 et seq. ("CERCLA"), related to past and
future environmental response costs that the City alleges have been and/or may be incurred in
connection with the presence of hazardous substances at the City's Former Riverside Wastewater
Treatment Plant ("RWWTP");
WHEREAS, the Parties desire to enter into this Settlement Agreement in order to have a
full and final resolution of all disputed claims against the United States concerning the City's
environmental response costs at the RWWTP and to avoid the complication and expense of suit
concerning such disputed claims; and
WHEREAS, the Parties agree that this Settlement Agreement is fair, reasonable.. and in
the public interest.
NOW THEREFORE, in consideration of the mutual promises undertaken herein, the
parties hereby AGREE:
OFFICIAL RECORD
CITY SECRETARY
FT WORTH, TX
Definitions. Unless otherwise expressly provided herein, terms used in this
Settlement Agreement that are defined in CERCLA, regulations promulgated under CERCLA,
and case law under CERCLA have the meaning assigned to them in CERCLA, such regulations,
and such case law. Whenever terms listed below are used in this Settlement Agreement, the
following definitions will apply and will control over any other definition:
"Environmental Response Costs" means all costs related or pertaining to the RWWTP
that have been or will be incurred for the purpose of addressing the presence of hazardous
substances at the RWWTP, including but not limited to environmental engineering and other
pertinent environmental consulting charges, United States Environmental Protection Agency or
State of Texas oversight costs, attorneys' fees, penalties, nonscientific fees, and prejudgment
interest.
"RWWTP" means the approximately 143-acre area located wholly within the limits of
Gateway Park, bounded to the north, east, and west by Gateway Park, and bounded to the south
by the West Fork of the Trinity River and Interstate Highway 30, on which the Riverside
Wastewater Treatment Plant was operated by the City of Fort Worth from 1924 to 1979.
"Settlement Agreement" means this Settlement Agreement.
"The City" means the City of Fort Worth, Texas, including all of its agencies,
departments, and instrumentalities.
"United States" means the United States of America, including all of its agencies,
departments, and instrumentalities.
2. Effective Date. The Agreement shall become effective on the date when each of
the Parties have signed the Agreement.
2
3. Application of this Agreement. This Agreement applies to, is binding upon, and
inures to the benefit of the Parties. Nothing in this Agreement shall be construed to make any
person or entity not executing this Agreement a third -party beneficiary of the Agreement.
4. Payment. As soon as reasonably practicable after the execution of this Settlement
Agreement by the parties, the United States will pay the City $4,827,039.14 (four million, eight
hundred and twenty-seven thousand, thirty-nine dollars, and fourteen cents) (hereinafter the
"Settlement Payment"). The Settlement Payment from the United States shall be made by
electronic wire transfer in accordance with instructions provided by the City within 3 business
days after the Effective Date. If such payment is not made in full within 90 days after the
Effective Date of this Agreement, then Interest on the unpaid balance shall be paid commencing
on the 91" day after the Effective Date. Interest shall accrue at the rate specified for interest on
investments of the Hazardous Substance Superfund established under subchapter A of chapter 98
of Title 26 of the United States Code. Such Settlement Payment is subject to the availability of
funds appropriated for such purposes, and nothing in this Settlement Agreement will be
construed or interpreted as a commitment or requirement that any federal entity will obligate or
pay funds in contravention of the Anti -Deficiency Act, 31 U.S.C. § 1341, or any other applicable
provision of law.
Covenant Not to Sue.
a. Upon payment of the Settlement Payment described in Paragraph 4, the City
(i) hereby covenants not to sue the United States for Environmental Response Costs, and
(ii) hereby completely and finally discharges, releases, and waives any and all past, present, and
3
future claims under any provision of law, including but not limited to CERCLA, against the
United States concerning Environmental Response Costs.
b. Upon payment of the Settlement Payment described in Paragraph 4, the United
States hereby covenants not to sue the City for Environmental Response Costs, except that the
United States specifically reserves its right to assert against the City any claims or actions
regarding the RWWTP brought on behalf of the United States Environmental Protection Agency
or a natural resources trustee. The reservation in this paragraph does not reserve any rights by the
United States to assert claims against the City to recover all or part of the Settlement Payment to
be paid pursuant to Paragraph 4. Nothing in this agreement shall constitute or be construed as a
waiver, limitation, or release of any claims or causes of action by the United States to enforce any
federal laws or regulations in connection with the RWWTP.
6. Indemnification. Upon payment of the Settlement Payment described in
Paragraph 4, the City hereby agrees to indemnify and hold the United States harmless against any
and all third party claims, demands, or causes of action concerning Environmental Response
Costs to the extent such third party claims, demands, or causes of action arise from a City claim,
demand, or cause of action against the third party. Such third party claims include, but are not
limited to, any third party demands for reimbursement of Environmental Response Costs under
any contract or agreement between such a third party and a department, agency, or
instrumentality of the United States.
In the event that indemnification is ever sought by the United States from the City under
this Settlement Agreement, the United States will notify the City in writing within 30 calendar
days of receiving a claim, demand, or cause of action subject to indemnification under this
11
paragraph. Such notice is a precondition to the City's indemnification obligation under this
Settlement Agreement.
In the event that any claim, demand, or cause of action covered by this indemnity is
asserted against the United States, then the United States will cooperate in good faith with the
City in responding to and defending against the claim, demand, or cause of action. Nothing in
this Settlement Agreement shall prohibit the United States from settling any such claim, demand,
or cause of action on its own behalf. However, the United States agrees not to settle any such
claim, demand, or cause of action without first notifying the City of the United States' intent to
settle any such claim, demand, or cause of action and providing the City with a reasonable
opportunity to discuss any proposed settlement with the United States.
7. Protection Against Claims and Reservation of Rivhts.
a. The Parties acknowledge and agree that the Settlement Payment to be
made to the City by the United States pursuant to Paragraph 4 of this Agreement represents a
good faith compromise of disputed claims, and that the compromise represents a fair,
reasonable, and equitable resolution of the disputed claims involving the Environmental
Response Costs.
b. With regard to any claim for costs, damages, or other claims arising out of
or in connection with the Environmental Response Costs, the Parties acknowledge and agree
that the United States is entitled, as of the Effective Date, to contribution protection, to the extent
applicable, under CERCLA section 113(0, 42 U.S.C. § 9613(0, the Uniform Comparative Fault
Act, and any other applicable provision of federal or state law, whether by statute or common
law, extinguishing the United States' liability to persons not party to this Agreement. Any rights
5
the Parties may have to obtain contribution or otherwise recover costs or damages from persons
not party to this Agreement are preserved.
C. The United States specifically reserves its right to assert against the City or
any other party any claims or actions regarding the RWWTP brought on behalf of the United
States Environmental Protection Agency or a natural resource trustee and nothing in this
Agreement shall constitute or be construed as a waiver, limitation, or release of any claims or
causes of action by the United States to enforce any federal laws or regulations at or in
connection with the RWWTP.
8. Notices. All notices required under this Settlement Agreement will be by telecopy
and/or by registered mail.
For the City:
The City Attorney's Office
1000 Throckmorton Street, 3rd Floor
Fort Worth, TX 76102
RN
Robert T. Stewart
Kelly Hart & 1 lallman, LLP
301 Congress Avenue, Suite 2000
Austin, TX 78701
(512) 495-6426
Fax: (512) 495-6617
For the United States:
Stephanie J. Talbert
U.S. Department of Justice
Box 23986
Washington, D.C. 20026-3986
(202) 514-2617
Fax: (202) 514-8865
9. Entire Agreement and Modification. This Agreement constitutes the entire
agreement of the parties concerning the subject of this Settlement Agreement, and all prior
dealings among the parties, whether verbal or in writing, with the exception of the
Confidentiality Agreement entered into by the Parties on April 15, 2009, are superseded by this
Settlement Agreement. This agreement may be modified only by a writing signed by all Parties.
10. No Use As Evidence. This Settlement Agreement shall not be admissible as
evidence in any judicial or administrative proceeding except for the purpose of implementing or
enforcing the provisions of this Settlement Agreement.
11. Headings. Any paragraph headings in this Settlement Agreement are provided
solely as a matter of convenience to the reader and shall not be construed to alter the meaning of
any paragraph or provisions of this Settlement Agreement.
12. Governing Law. This Settlement Agreement shall be governed and interpreted in
accordance with United States federal law.
13. Counterparts. This Settlement Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original as against any party whose signature
appears thereon, all of which taken together will constitute one and the same instrument.
14. Effect of Settlement. This Settlement Agreement was negotiated and executed by
the Parties in good faith and at arm's length and is a fair and equitable compromise of claims that
were vigorously contested. This Settlement Agreement is entered into without any admission of
any kind by any of the Parties as to any factual or legal issue that was, or could have been, raised
during the litigation.
11
15. Authority. Each signatory to this Settlement Agreement represents that he/she has
the authority to enter into this Agreement.
Dated: W I C: 12010 For the United States
Dated:
l
For the City
FeY'n2r dc> Costa
Prsbi SfD-VT+-Grp
APPROVED AS TO
FORM AND LEGALITY:
yr vin �i Q , �r�C r�S
AS54§TANT CITY ATTORNEY
8
10/19/23, 2:37 PM
M&C Review
01 icird sde of the City of t olt WorN1, Iexa
CITY COUNCIL AGENDA FORORTII
COUNCIL ACTION: Approved on 10/20/2009
Create New From This M&C
DATE: 10/20/2009 REFERENCE G-16739 LOG NAME: 12RIVERSIDE WWTP
NO.: SETTLEMENT
CODE: G TYPE: NON- PUBLIC
CONSENT HEARING: NO
SUBJECT. Approve Settlement of the City's Claim for Environmental Response Costs for the Former
Riverside Wastewater Treatment Plant in Return for Payment by the United States of
America in the Amount of $4,827,039.14
RECOMMENDATION:
It is recommended that the City Council:
1. Approve the settlement of the City's claim against the United States of America for the
Environmental Response Costs for the Former Riverside Wastewater Treatment Plant in return for
payment in the amount of $4,827,039.14;
2. Accept such payment as full and complete settlement of the referenced claim; and
3. Authorize the appropriate City personnel to execute any agreements necessary to complete the
settlement.
DISCUSSION:
In June 2002, the City entered into the Texas Commission on Environmental Quality's Voluntary
Cleanup Program (VCP) due to the polychlorinated biphenyls and heavy metals found at the former
Riverside Wastewater Treatment Plant. The City identified the United States Air Force responsible for
generating such constituents and introducing them into the sewer system and the site. On or about
October 27, 2006, the City issued notice to the United States Air Force of the City's intent to seek cost
recovery for its costs subject to the City's actions in the VCP.
Settlement of the claim with a payment by the United States of America to the City in the amount of
$4,827,039.14, would be without any admission of liability and in fact liability is specifically denied.
The settlement is entered into only to avoid further time consuming and costly litigation.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that the Law Department is responsible for the
collection and deposit of funds due to the City.
TO Fund/Account/Centers FROM Fund/Account/Centers
P274 122001 000009990100 $44,827,039.14
apps.cfwnet.org/council_packet/mc_review.asp?ID=12480&councildate=10/20/2009 1/2
10/19/23, 2:37 PM
Submitted for City Manager's Office by.
M&C Review
Fernando Costa (6122)
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
RE M & C Additional Line.msa (CFW Internal)
David Yett (7623)
Frank Crumb (8207)
Christa Reynolds (8984)
apps.cfwnet.org/council_packeUmc review.asp?ID=12480&counciidate=10/20/2009 2/2