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HomeMy WebLinkAboutContract 32374 CITY SECRETARY FLED CONTRACT NO. TARRAH1 COUtjTY TEXAS FOURTH AMENDMENT TO O IO�V �R,� CHASE LAND 2005 JU STATE OF TEXAS § ;;;SON § iY`CLEW, COUNTIES OF DALLAS § AND TARRANT § THIS FOURTH AMENDMENT TO OPTION TO PURCHASE LAND (herein, this "Amendment") is entered into effective as of Tu V,C- 3 , 2005, by and between THE CITY OF FORT WORTH, a municipal corporation (herein, "Fort Worth") and CENTREPORT VENTURE, INC., a Massachusetts corporation qualified to do business in Texas (herein, "Venture, Inc."). RECITALS : A. On June 5, 1980, CentrePort Joint Venture (herein, "CentrePort") and Fort Worth entered into that certain Option to Purchase Land (herein, the "Original Option") pursuant to which Fort Worth granted to CentrePort an option for the purchase of certain real property then owned by Fort Worth and located in Tarrant and Dallas Counties, Texas, commonly known as the "Greater Southwest International Airport." The Original Option is recorded in Volume 6943, Page 893 of the Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. B. On April 22, 1983, the Original Option was modified as part of an unrecorded Lease Termination Agreement (herein so called) executed among Fort Worth, CentrePort and American Airlines, Inc., to which reference is hereby made for all purposes. C. Effective as of June 5, 1988, CentrePort and Fort Worth further amended the Original Option. That amendment (herein the "First Amendment") is recorded in Volume 9468, Page 1451 of the Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. D. By that certain Assignment of Option to Purchase Land (herein, the "First Assignment") dated December 15, 1989, CentrePort transferred, assigned and conveyed to Centre Consolidated Properties, Ltd., (herein, "CCP") all of its rights, interests and benefits under the Original Option, the Lease Termination Agreement, and the First Amendment. The First Assignment is recorded in Volume 09796, Page 1974, Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. E. By that certain Assignment of Option to Purchase Land (herein, the "Second Assignment") dated February 8, 1991, CCP transferred, assigned and conveyed to Venture, Inc., all of its rights, interests and benefits under the Original Option, the Lease Termination Agreement and the First Amendment and the same are now owned and held by Venture, Inc. The Second Assignment is recorded in Volume 10169, Page 1096, Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE I DAL:552323.5 , F. Effective as of February 8, 1991, Venture, Inc., and Fort Worth further amended the Original Option. That amendment (herein, the "Second Amendment") is recorded in Volume 10169, Page 1156 of the Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. G. Effective as of December 5, 1995, Venture, Inc., and Fort Worth further amended the Original Option. That amendment (herein, the "Third Amendment") is recorded in Volume 96228, Page 00011 of the Official Real Property Records of Dallas County, Texas and in Volume 12586, Page 1914 of the Tarrant County Records, Tarrant County, Texas, to which reference is hereby made for all purposes. H. The Original Option, the Lease Termination Agreement, the First Amendment, the Second Amendment and the Third Amendment are hereinafter referred to collectively as the "Option Agreement." I. The land presently subject to the Option Agreement (the "Remaining Option Property ') consists of the Property (identified on Exhibit "A" to the Original Option) less all land heretofore conveyed by Fort Worth to Venture, Inc., (and/or its predecessors, CentrePort and CCP) pursuant to the Option Agreement. J. The parties hereto now wish to further amend the Option Agreement to, among other things, extend the Option Period and to make certain other changes to the Option Agreement. K. Unless expressly stated otherwise, all capitalized terms used herein shall have the same meaning as ascribed to them in the Option Agreement. NOW, THEREFORE, for and in consideration of the premises and the mutual benefits to accrue to each of the parties hereto, the parties have agreed and do hereby further amend the Option Agreement as follows: 1. The Option Period is extended to June 5, 2015. 2. Subject to Paragraph 4(d)below, Fort Worth and Venture, Inc. hereby specifically acknowledge, understand and agree that except for Venture, Inc.'s obligation to pay to Fort Worth the Possession Fees (which are specifically addressed in Paragraph 3 of this Amendment), all other fees, charges, monetary obligations and purchase prices, including, without limitation, any Option Payments, Purchase Prices, Deferred Purchase Prices, Remaining Purchase Prices and Deferred Takedown Prices (collectively, the "Monetary Obligations"), due, owing and/or payable under or otherwise associated with the Option Agreement have been paid in full, shall be of no further force or effect and neither Venture, Inc., nor any of its successors, assigns, affiliates, shareholders, partners, subsidiaries, principals, directors, trustees, parents, officers, employees, agents, representatives, designees or attorneys (collectively, the "Venture, Inc. Group") shall have any further liability or responsibility therefor or in connection therewith. In furtherance thereof, Fort Worth hereby covenants not to sue the Venture, Inc- releases the Venture, Inc. Group from and waives all objections, 1a1 ,-daf d a:.�WN X T'T FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 2 �� DAL:552323.5 causes of action, suits, debts due, obligations, liabilities, losses, demands, cross actions or costs (including, without limitation, reasonable attorneys' fees, costs of suit and all costs and expenses of litigation or administrative proceedings at all levels) of any kind whatsoever or threats thereof or therefor, known or unknown, at law or in equity, originating in whole or in part at any time, whether past, present or future, that Fort Worth may heretofore or hereinafter have against Venture, Inc. Group with respect to such Monetary Obligations. Accordingly, the following are hereby deleted from the Option Agreement in their entirety: (a) Exhibit B to the Original Option; (b) Exhibit B to the First Amendment; (c) Exhibit B to the Third Amendment; (d) Paragraph 3 of the Original Option; (e) Paragraph 5 of the First Amendment; (f) Paragraph 4 of the Third Amendment; (g) Exhibit C to the Original Option; (h) Exhibit C to the First Amendment; and (i) Exhibit C to the Third Amendment. 3. Effective as of June 5, 2006, the Possession Fee referred to in Paragraph 6 of the Original Option will be increased to $750.00 per acre of Remaining Option Property (which Remaining Option Property shall include, solely for the purpose of calculating and paying Possession Fees, those certain parcels comprising a portion of the Excluded Property and referred to in Exhibit A to the Second Amendment as Excluded Parcel 1 [herein so called] and Excluded Parcel 2 [herein so called]). At the time of execution of this Amendment, the amount of Remaining Option Property is approximately 431.68 acres. The Possession Fee shall be paid to Fort Worth by Venture, Inc., on June 5, 2006 and on each Option Anniversary Date thereafter during the Option Period, as extended in accordance with Paragraph 1 of this Amendment. No Possession Fees shall be due and/or payable with respect to that portion of the Excluded Property referred to in Exhibit A to the Second Amendment as Excluded Parcel 3 ("Parcel 3") except as otherwise specifically set forth in Paragraph 4(e) below; provided, however, commencing on June 5, 2005 and continuing on each Option Anniversary Date thereafter during the Option Period, Possession Fees shall be deemed to apply to Parcel 3 (although such Possession Fees shall not actually be paid to Fort Worth) solely for the purpose of calculating the credits to Venture, Inc., against Possession Fees that would have been payable on Parcel 3 under Paragraph 4(d) below. 4. Under the Second Amendment, the parties mutually agreed that the Excluded Property would not be subject to the payment of Possession Fees and that Fort Worth would retain all rights and obligations of ownership with respect to the Excluded Property until such time as it is actually "taken down" by Venture, Inc., pursuant to the Option. In connection therewith, Fort Worth and Venture, Inc., hereby specifically acknowledge, understand and agree as follows: FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 3 DAL:552323.5 (a) The Second Amendment is hereby amended as follows: A. Paragraphs 3, 4 and 5 of the Second Amendment are hereby deleted in their entirety solely with respect to Parcel 3, and the foregoing amendment shall have no force or effect with respect to Excluded Parcel 1 and/or Excluded Parcel 2. The foregoing amendment shall not in any way otherwise amend, alter or modify any of the other terms of the Second Amendment. B. The Second Amendment is hereby further amended to provide that commencing on June 5, 2006 and continuing on each Option Anniversary Date thereafter until Excluded Parcel 1 and Excluded Parcel 2 are "taken down", as applicable, Possession Fees in the amount of$750.00 per acre will be paid by Venture, Inc. to Fort Worth with respect to Excluded Parcel 1 and Excluded Parcel 2. The foregoing amendment shall not in any way otherwise amend, alter or modify any of the other terms of the Second Amendment. (b) That the desirable response action is to enroll Parcel 3 in the Texas Commission on Environmental Quality's ("TCEQ") Voluntary Cleanup Program ("VCP") under Remedy Standard B (herein so called), with Venture, Inc., as Applicant A and Fort Worth as Applicant B. Venture, Inc., shall have the unconditional right to conduct further environmental testing and sampling at Parcel 3 and to pursue the VCP process with respect to Parcel 3 and Fort Worth agrees to cooperate with Venture, Inc., in connection therewith. (c) For purposes of this Amendment, Fort Worth hereby represents, warrants and covenants to Venture, Inc., that the City Manager of Fort Worth and/or his/her designee shall have all authority to approve or disapprove matters for which Fort Worth's approval is sought hereunder and Venture, Inc., and the Venture, Inc. Group shall be entitled to rely upon the authority of such person in furtherance of Venture, Inc.'s rights and obligations hereunder. (d) If as of June 5, 2007, the conditions precedent set forth in Subparagraph (e� below have not been satisfied, then at any time from and after June 5, 2007 until the expiration of the Option Period, Fort Worth, upon at least ten (10) business days' prior written notice to Venture, Inc., may compel Venture, Inc., to terminate the VCP process and prohibit all future environmental testing and sampling by Venture, Inc., with respect to Parcel 3 unless at the time that Fort Worth elects such termination, (i) Venture, Inc., is enrolled in the VCP and has reasonably met the requirements of the TCEQ or (ii) Venture, Inc., has completed the requirements of a Response Action Plan (herein so called) and a final VCP certificate of completion is pending (in the event of either (i) or (ii) above, Fort Worth shall have no termination right). If as of June 5, 2007, the conditions precedent set forth in Subparagraph(e) below have not been satisfied for any reason and Venture, Inc., is no longer pursu' FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 4 DAL:552323.5 �m --- process, or if Fort Worth elects to terminate the VCP process and/or prohibit all future environmental testing and sampling by Venture, Inc., as provided above, then in such event, (1) any Purchase Prices paid by Venture, Inc., theretofore or thereinafter related to Parcel 3 or any portion thereof shall be refunded to Venture, Inc., in their entirety and such amount is agreed to be$1,955,752.64, (2) Fort Worth shall also reimburse Venture, Inc., all costs and expenses incurred by Venture, Inc., in connection with the pursuit of the VCP process and/or the environmental testing and sampling of Parcel 3, provided, however, such reimbursement under this item (2) shall not exceed an amount equal to the Possession Fees that would have been payable with respect to Parcel 3 (in accordance with Paragraph 3 above) and the parties agree that the annual amount of such Possession Fees is $35,232.75 commencing on June 5, 2005 until the date on which the VCP process is terminated and/or Fort Worth terminates Venture, Inc.'s, right to conduct environmental testing and sampling of Parcel 3, and (3) from and after the expiration of the ninetieth (90`") day immediately following the date on which Venture, Inc., is no longer pursuing the VCP process or Fort Worth otherwise elects to terminate the VCP process and/or prohibit all future environmental testing and sampling by Venture, Inc., any portion of Parcel 3 not previously "taken down" by Venture, Inc., shall no longer be subject to the Option Agreement and Venture, Inc., shall have no further rights or obligations in connection therewith and Fort Worth shall be vested with any and all rights of ownership of Parcel 3, provided, however, that Fort Worth hereby agrees to use best efforts in good faith to promptly market and sell Parcel 3 to third parties at fair market rates. The parties agree that the sole source of the funds used by Fort Worth to refund/reimburse Venture, Inc., as provided above shall be from the sale of Parcel 3 and the Possession Fees for the Remaining Option Property, if any, not previously "taken down" by Venture, Inc. In the event the sum of the proceeds from the sale of Parcel 3 and the Possession Fees exceed $2,026,218.14, in the aggregate, the parties agree to share equally in such excess funds. In the event that the sum of the proceeds from the sale of Parcel 3 does not exceed $2,026,218.14, the parties agree that the deficiency shall be paid from and limited to the Possession Fees that Venture, Inc is required to pay Fort Worth for Property subject to the Option that has not been "taken down". Upon Fort Worth satisfying its financial obligations to Venture, Inc., set forth in items (1) and (2) above, then neither party will have any rights or obligations with respect to Parcel 3 and the parties hereby covenant not to sue each other and hereby release each other from and waive all objections, claims, damages, causes of action, suits, debts due, obligations, liabilities, losses, demands, cross actions or costs (including, without limitation, reasonable attorneys' fees, costs of suit and all costs and expenses of litigation or administrative proceedings at all levels) of any kind whatsoever or threats thereof or therefore, known or unknown, at law or in equity, originating in whole or in part at any time, whether vast. FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 5 DAL:552323.5 present or future, that either party may heretofore or hereinafter have against the other party with respect to Parcel 3. (e) It shall be a condition precedent to Venture, Inc.'s obligations, if any, to "take down" Parcel 3 under the Option Agreement that a final, unconditional VCP certificate from the TCEQ be issued with respect to Parcel 3. Failure of the foregoing condition precedent shall give Venture, Inc., the right to refuse to "take down" Parcel 3 or any portion thereof. Notwithstanding the foregoing, Venture, Inc., in its sole and absolute discretion, shall have the right, but not the obligation, to waive the foregoing condition precedent at any time during the ninety (90) day period set forth in Paragraph 4(d)(3) above and "take down" Parcel 3 or any portion thereof under the Option Agreement. If a final, unconditional VCP certificate from the TCEQ is issued with respect to Parcel 3, then Possession Fees shall become actually due and payable with respect to Parcel 3 commencing on the ninety-first (91") day after the date of the final, unconditional VCP certificate and shall continue to be payable on each Option Anniversary Date thereafter during the Option Period unless Venture, Inc., shall have "taken down" Parcel 3 in accordance with the Option Agreement within ninety (90) days after the date of the final, unconditional VCP certificate. (f) In the event that the TCEQ determines that Parcel 3 or any portion thereof is not eligible for disposition under the VCP due to subsurface migration from adjacent facilities of Hazardous Materials onto Parcel 3 or any portion thereof, then regardless of whether such determination occurs before or after June 5, 2007 the terms and conditions of Paragraph 4(d)(1),(2) and (3) shall govern, including, without limitation, Fort Worth's reimbursement and refund obligations to Venture, Inc. (g) Venture, Inc., hereby discloses to Fort Worth and Fort Worth hereby specifically acknowledges and understands that notwithstanding the fact that the Second Amendment removed the Excluded Property from Venture, Inc.'s obligation to pay to Fort Worth Possession Fees, Venture, Inc., erroneously continued paying such Possession Fees to Fort Worth with respect to the Excluded Property for a time thereafter. Specifically, Venture, Inc., erroneously paid to Fort Worth Possession Fees on the Excluded Property in the amount of$126,272.45 (the "Overpayment"). Therefore, notwithstanding anything to the contrary contained herein, Fort Worth and Venture, Inc., hereby specifically acknowledge, understand and agree that on the June 6, 2006 Option Anniversary Date, the amount of Possession Fees actually due and payable by Venture, Inc., to Fort Worth shall be offset by the amount of the Overpayment before such Possession Fees are actually paid by Venture, Inc., to Fort Worth. 5. Paragraph 8 of the Original Option is hereby deleted in its entirety. With respect to the Remaining Option Property and the Excluded Property, commen14 o FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 6 _ -.:.. DAL:552323.5 date of this Amendment and continuing until the expiration of the Option Period, Fort Worth and Venture, Inc., hereby agree that the following restated Paragraph 8 of the Original Option shall control: 44 8. The parties hereto acknowledge and agree that all deeds from Fort Worth to CentrePort pursuant to this Option shall include the following language: `The City of Fort Worth hereby RESERVES and RETAINS unto itself a non-executive mineral fee equal to an undivided one-half (50%) of the oil and gas in and under the Property, together with the corresponding right to receive one-half (50%) of all (i) lease bonus, (ii) delay rentals, and (iii) an undivided one-half(50%) of the lessor's royalty provided in any oil and gas lease covering the Property. The foregoing reservation is of oil and gas only, together with any other substances or minerals that may be produced in association therewith. CentrePort, its successors and assigns, shall have the exclusive right to enter into, negotiate and execute oil and gas leases over the entire Property, including Fort Worth's reserved undivided one-half(50%) of the oil and gas in and under the Property, without the joinder or prior consent of Fort Worth."' 6. In the event that in the future the parties are not in agreement regarding the disposition of environmental issues that may pertain to Excluded Parcel 1 and/or Excluded Parcel 2, the parties hereby agree to consider to take an approach to Excluded Parcel 1 and/or Excluded Parcel 2 similar to that taken in this Amendment with respect to Parcel 3 7. Except as modified and amended as set forth in this Amendment, the Option Agreement and all of its terms, conditions, covenants, agreements and provisions are hereby ratified and confirmed by Fort Worth and Venture, Inc., and shall remain in full force and effect and enforceable in accordance with its terms. Fort Worth hereby affirms that on the date hereof no breach or default by either party has occurred and that the Option Agreement and all of its conditions, covenants, agreements and provisions except as hereby modified and amended, are in full force and effect. 8. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute one agreement. SIGNATURE PAGES FOLLOW v l� tr_ All FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 7 DAL:552323.5 This Amendment is executed to be effective as of -JU yle- , 2005. THE CITY OF FORT WORTH, a Texas municipal corporation ATTEST: I By: City Secreta of Title: Fort Worth, Texas APPROVED AS TO FORM AND LF,EIALITY: By: Cyn 'a Garcia Title: Assistant City Attorney Contract Authorization 51 /7 Date THE STATE OF TEXAS § COUNTY OF TARRANT § THIS INSTRUMENT was acknowledged before me on the .v, day of ldld D 2005, by v�-rn c /��,///5 �c' ;�. r:12 , of THE CITY OF FORT W TH, a Texas municipal corporatio on behalf of saidratioo'oh�-4 ' (SIC ATHERINE L NEVANS Notary Public in and for The State of Texas rj°tarY arc My Commission expires: /STATE OF TEXASly Conn,Exp. 10/29/2048 FOURTH AMENDMENT TO OPTION TO PURCHASE LAND-PAGE 8 DAL:552323.5 CENTREPORT VENTURE, INC., a Massachusetts corporation 7By: ai� ---1 Title: Daniel J R*�ftr Vice President THE COMMONWEALTH OF MASSACHUSETTS § COUNTY OF SUFFOLK § THIS INSTRUMENT was acknowledged before me on the e,25'�4 day of 2005, by Daniel J. Bradley, Vice President of CENTREPORT VENTURE, WC., a Massachusetts corporation, on behalf of said corporation. Notary Public in and for The Commonwealth of Massachusetts My Commission expires: 42�4Atu.. AFTER RECORDING, RETURN DIANE �. iviARTIN ORIGINAL TO: U Notary Public Commonwealth of Massachusetts Kathleen Wu, Esq. My Commission Expires October 1 S,2007 Andrews Kurth LLP 1717 Main Street, Suite 3700 Dallas,Texas 75201 FOURTH AMENDMENT TO OPTION TO PURCHASE LAND—PAGE 9 DAL:552323.5 ANDREWS 1717 Main street,quite 3700 pLLP Dallas,Texas 75201 R,TTORNEYS KU �T�r T H !6 ! 6 214.653.4400 Phone 214.659.4401 Fax andrewskurth.com John Dugdale 214.659.4525 Phone 214.659.4769 Fax johndugdalee an drewskurlh.com May 15, 2007 VIA FEDERAL EXPRESS AND E-MAIL Dale Fesseler Assistant City Manager City Hall, 3rd floor City of Ft. Worth 1000 Throckmorton St. Fort Worth, TX 76102-6311 Re: Satisfaction of Requirements of 4th Amendment to Option to Purchase Land.- Centreport Parcel 3 Dear Mr. Fesseler: As environmental counsel to Centreport Venture, Inc. ("Centreport"), I have been asked to provide notice to the City of Ft. Worth that it has satisfied the requirements of provisions 4.(d)(1) and 4.(d)(ii) of Subparagraph (d) of the above-captioned document. Specifically, as evidenced by the enclosed Texas Commission on Environmental Quality ("TCEQ") December 18, 2006 correspondence approving the Response Action Plan ("RAP"), which Centreport's consultant, Terracon, submitted on November 28, 2006, and the enclosed March 26, 2007 Response Action Completion Report ("RACR") (without its attachments), the initial report of which Terracon submitted to TCEQ on March 9, 2007, Centreport has met the terms of the above-cited provisions. Therefore, the City of Ft. Worth cannot compel Centreport to terminate the VCP process underway in Parcel 3. Very truly yours, Joh Dugdale Enclosures (2) DAL.665663.1 Austin Dallas Houston London Los Angeles New York The Woodlands Washington, DC Mr. Dale Fesseler May 15, 2007 Page 2 cc: William G Guthrey, Koll Development Company (w/Enclosures) John Dwyer, Koll Development Company (w/Enclosures) Michael Gange, City of Ft. Worth (w/Enclosures) Brian Boerner, City of Ft. Worth (w/Enclosures) Bud Doxey, Firm (w/Enclosures) DAl.:665663.1 Kathleen Hartnett White,Charman Larry R.Soward,Commissioner — 17. •n'. i2': Martin A.Hubert,Commissioner Glenn Shankle,Executive Director TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Protecting Texas by Reducing and Preventing Pollution December 18- ,2006 Mr. Daniel Bradley,Vice President CenterPort Venture, Inc. Two Seaport Lane Boston,MA 02210 Re: Approval of Response to TCEQ Comment letter dated August 25, 2006 dated October 12, 2006 and Response Action Plan (RAP) dated November 28, 2006, CenterPort IV Property, 3600 Roy Orr Boulevard and 5101 Rock Island Road, Fort Worth and Grand Prairie,Tarrant County,TX; Voluntary Cleanup Program(VCP)No. 1859 Dear Mr. Bradley: The Texas Commission on Environmental Quality (TCEQ) has reviewed the above referenced documents in response to the TCEQ letter dated August 25, 2006, regarding review of CeuterPort's Affected Property Assessment Repon (APAR) received July 26, 2006, for the above referenced site. CenterPort also provided a RAP for the site dated November 28,2006. Based on our review, the October 12, 2006 response providing additional information to support the APAR submittal received July 26, 2006 is hereby approved. The TCEQ concurs that the investigation at the above referenced site has been completed in accordance with 30 Texas Administrative Code (TAC) §350.51. In addition, based on the TCEQ review of the plan, it has been determined that the RAP dated November 28,2006,also fulfills the requirements of 30 TAC §350.94. The approved RAP proposes to excavate an area of Municipal Solid Waste (MSW) located at the above referenced site. Information documenting the removal of the MSW must be provided to Mr. Richard Carmichael, P.E. of the TCEQ MSW Permits Section, Waste Permits Division at Mail Code MC-124 Upon completion of the approved response action(s), a Response Action Completion Report (RACR) must be submitted to the TCEQ in accordance with 30 TAC §350.95. A copy of the TCEQ MSWe concurrence letter must also be provided in the RACR. For future reference, please use the standard reporting forms found on our website at http;//www.tceg.state.tx.us/Temediation/tm/r-ruidance.htm]. Please be aware that it is the continuing obligation of persons associated with a site to ensure that municipal hazardous waste and industrial solid waste are managed in a manner which does not cause the discharge or imminent threat of discharge of waste into or adjacent to waters in the state, a nuisance, or the endangerment of the public health and welfare as required by 30 TAC §335.4. If the response actions described in the report fail to comply with these requirements, please take any necessary and authorized action to correct such conditions. A TCEQ field inspector may conduct an inspection of your site to determine compliance with the report. i P.O.Box 13087 Austin,Texas 78711-3087 • 512/239-1000 • Internet address: www.tceq.state_tx.us primed w retw'o p:qw,Mini,Uro-lured ml. Mr. Daniel Bradley Page 2 December 18, 2006 Questions concerning this letter should be directed to me at (512) 239-2358. When responding by mail, please submit an original and one copy of all correspondence and reports to the TCEQ , Remediation Division at the letterhead address using Mail Code MC-221. The information in the reference block should be included in all submittals. Sincerely, Eleanor T. Wehner,P.G.,Project Manager Team 1,Environmental Cleanup Section H Remediation Division Texas Commission of Environmental Quality ETW/ts cc: Mr.Jack McCranie,Tezracon Consultants,Inc.,Fort Worth,TX Mr.John Dwyer,Koll Development,Dallas,TX Page 1 of 13 Executive Summary ID No. VCP-1859 Report Date, 103109/07 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY Response Action Completion Report Cover Page Regulatory ID number(Solid waste registration number,VCP IDumber,etc) 1859 check one: X Initial RACR submittal for this on-site property —Subsequent RACR submittal Report date: March 9,2007 TCEQ Region No-* 4 TCEQ Program(check one) Corrective Action(Mail Code 127) _Superfund PRP Lead(Mail Code 143) X Voluntary Cleanup Program(Mall Code 221) _Municipal Solid Waste Permits(Mail Code 124) _Petroleum Storage Tank Program(Mail Code 137) Onsite Property Information On-Site Property Name: Area IV Property Street no. 3600 Pre dir. Street name: Roy Orr Street type: Boulevard Post dir: Street no. 5101 Pre dir: Street name: Rock Island Street type: Road Post dir. City. Fort Worth,Grand Prairie County: Tarrant,Dallas County Code: 220 and 57 Zip:75050 Nearest street Intersection or location description Roy Orr Boulevard and Rock Island Road Latitude:Degrees, Minutes,Seconds OR Decimal Degrees(circle one)North 328148352 Longitude: Degrees,Minutes,Seconds OR Decimal Degrees(circle one)West -97JM344 Offsite Affected Property Information Off-.Site Affected Property Name: Street no. Pre dir. _ Street name: Street type: Post drr City: County: County Code: ZIP: X Check If there are no off-site properties affected Contact Person Information and Acknowledgement Person(or company)Name: KDC CentrePort LP.in c/o CentrePort Venture,Inc. Director of Property Contact Person: John Dwyer Title: Management Mailing Address: 8115 Preston Road,Suite 700 City: Dallas State:TX Zip:075225 E-mail address Phone: 214-696-7834 Fax:214373-3108 By my signature below,I acknowledge the requirement of§350.2(x)that no person shall submit information to the executive director or to parties who are required to be provided information under this chapter which they know or reasonably should have known to be false or intentionally misleading,or fail to submit available information which is critical to the understanding of the matter at hand or to the basis of critical decisions which reasonably would have been influenced by that information. Violation of this rule may subject a person to the imposition of civil, criminal,or administrative enalties. Signature of Person ame,print: .-1 411A/ Z kx/Yjg!�Z Date: 7 �— TCEG1-10328JRACFt Fe are 2005 2 of 13 Checklist for Report Completeness 1D No. VCP - 1859 Report Date: 03/09/07 Check the reports/forms submitted: Remedy Standard A _ Self-Implementation Notice Submittal date: X Response Action Plan -Approval date: December 18,2006 Remedy Standard B Response Action Plan -Approval date: List all media (surface soil, subsurface soil, groundwater, sediment, surface water, air)that contained or contains a PCLE zone and specify the response action taken for each media. Indicate the type of removal, decontamination, physical control, or institutional control action that was used in the response action. If a media with a PCLE zone was not addressed in the response action Rrovide an explanation below. Media COCl Removal Decontamination Physical Control Institutional Modified Response Control Objective2 PMZ WCU TI None* *No COCs or PCLE zone. Buried Municipal Solid Waste(MSW)was removed from the site and screened to separate the soil from the MSW. MSW was hauled off-site for proper landfill disposal. Is there a media that contains a PCLE zone that was not addressed in the response action? _ yes X no If yes, provide'ustification for not addressin2 the PCLE zone in the response action. Current land use of the on-site affected property: X Residential _ Commercial/industrial Projected future land use of the on-site property(if known): Residential X Comm erciallindustrial Explain why you believe the response action to be complete. Previous investigations on-site identified buried municipal solid waste (MSW) located on the southern portion of the site. The MSW was determined to be confined to an area approximately 30-40 feet wide, by 400 feet long, and ranging in depths from a few feet to approximately 11 feet below ground surface. The response action consisted of removing approximately two to three feet of overburden soil from above the MSW and staging the overburden soils on-site. Upon removal of approximately 1,000 cubic yards overburden soil, approximately 1,600 cubic yards of a mixture of native soil and MSW were excavated from the site. Tires were segregated during the excavation process and stockpiled separately. Visual observations of the excavation and test pits around the MSW area confirmed the completion of excavation activities. Upon completion of the excavation activities, it was determined that the excavated material consisted of approximately 5%to 30% MSW with the balance consisting of native soil. Due to the volume of largely unaffected soils within the MSW, the MSW/soil mixture was screened on-site utilizing a three- inch opening screen to segregate the MSW from the native soils. After completion of screening activities, 1,060 cubic yards (946.84 tons) of MSW material were transported off-site for proper disposal at the BFI Lewisville, Texas landfill, while the balance of the screened soils were returned to the excavation. Segregated tires were transported offsite to Tex-American Recycling in Fort Worth for recycling. Specify either a specific COC or, if the response action is the same for all CDCs in one type,specify the type of COC(for example,VOCs,SVOCs, metals). 2 If a modified groundwater response objective was used,check the type(s)of modifications. 3 of 13 Checklist for Report Completeness !D No. VCP -1859 Report Date: 03/09107 Checklist for Report Completeness Use this checklist to determine the portions of the form that must be submitted for this report. Answer all questions by checking Yes or No. If the answer is Yes include that portion of the report. If the answer is No, do not complete or submit that portion of the report. All form contents that are marked"Required"must be submitted. Form contents marked with an asterisk(•)are not included in the blank form and are to be provided by the person. Report Contents Required Cover Page Required Executive Summary ID Required Checklist for Report Completeness Required Worksheet 1.0 Confirmation of Response Action Objectives Required Attachment 1A` Maps and Cross Sections Required Attachment 1B' ❑ Graphs Required Attachment 1C' Response Action Diagrams NOS Was a plume management zone used as part of the ❑Ye Worksheet 2.0 ❑ response action? Plume Management Zone Attachmerd 2A* ❑ Map of Plume Management Zone No® Was an area of technical impracticability approved for use ❑Yes Worksheet 3.0 ❑ as part of the response action? I Technical Impracticabfifty Attachment 3A" ❑ Map of Technical Impracticability Area No VM4pstitubonaf controls used or required as part of the ❑Yes Worksheet 4.0 Elresponse action? institutional Controls Required Worksheet 5.0 Performance Measures and Problems No® Did the response action require any operation and ❑Yes Worksheet 6.0 ❑ maintenance activities? Operation and Maintenance No® Has there been any change to the plans for post-response ❑Yes Worksheet 7.0 ❑ ction care from that submitted in the RAP? Post-Response Action Care No® Was any information for this report obtained from outside Yes Appendix V ❑ sources 7 References No® Was an ESA and/or Compensatory Restoration used as ❑Yes Appendix 2' ❑ part of the response action? ESA and Compensatory Restoration No® Were Institutional controls or landowner concurrence ❑Yes Appendix 3' ❑ required in the response action? Institutional Controls and Landowner Concurrence 4 of 13 Checklist for Report Completeness ID No. VCP -1859 Report Date: 03/09/07 Report contents No® Is there data or boring/monitor well Information not ❑Yes Appendix 4' ❑ previously submitted? Data Tables, Boring Logs,and Well CoMpletions No® Did sampling procedures differ from those described In the 0 Y Appendix 5' El RAP? Sampling Procedures No Z Has aVy sampling been conducted for which the analytical ❑Yes Appendix 6' results were not previously submitted? Laboratory Data Packages No® Were statistics or geostatistics used in the response ❑Yes Appendx r ❑ 01 action? Statistical Methodology No W y wastes generated that were not reported through ❑Yes Appendix 8' STEERS? Waste Disposition Confirmation of Response Action RACK Worksheet 1.0 Page 5 of 13 Objectives ID No. VCP-1859 Report Data: 03/09/07 Use this worksheet to describe the attainment of the response action objectives in each media. Response Action Objectives What was the selected remedy standard for this affected property? X A B List the environmental media to which this applies Soil containing Municipal Solid Waste Repeat this section for each medium that had a different response action objective. Provide a detailed description of the response action. Describe the removal actions, decontamination actions, treatment system(s), physical or institutional control actions,and any actions for ecological considerations (ecological services analysis and compensatory restoration plans)that were conducted in each media and indicate if there were any differences between the actions taken and the actions proposed in the SIN or RAP. Previous investigations on-site identified buried municipal solid waste (MSW) located on the southern portion of the site. Based on numerous test pits, the MSW was determined to be confined to an area approximately 30-40 feet wide, by 400 feet long and ranging in depths from a few feet to approximately 11 feet deep. Visual observations of the municipal solid waste fill area indicated that the MSW consisted of paper, plastic, glass, metal, concrete, wood, automobile parts,tires, brick, rubber, etc. During the previous investigation activities, soil samples collected from within the MSW did not identify VOCs above laboratory method detection limits, with the exception of methyl ethyl ketone detected at a concentration of 35.6 pg/Kg and 24.3 pg/Kg in Test Pit 73 (west end of the MSW)at a depth of 5-6 feet bgs and 10-11 feet bgs, respectively. The methyl ethyl ketone detected in Test Pit 73 at concentrations of 35.6 pg/Kg (5'-6') and 24.3 pg/Kg (10'-11') does not exceed the methyl ethyl ketone Tier 1 Residential Protective Concentration Level (PCL) of 29,000 pg/Kg for a 0.5 acre source area (see previously submitted APAR). The response action consisted of excavating approximately two to three feet of overburden soil from above the MSW, and staging the overburden soils on-site for backfill. Upon removal of approximately 1,000 cubic yards of overburden soils, approximately 1,600 cubic yards of MSW mixed with soil were excavated from the site (see photographs). Tires were segregated during the excavation process and stockpiled separately. Visual observations of the open excavation, and additional test pits excavated around the perimeter, confirmed the completion of MSW removal activities. Upon completion of the excavation activities, it was determined that the excavated material consisted of approximately 5% to 30% MSW with the balance consisting of soil. Since previous sampling of the soils within the MSW indicated the soil was largely unaffected, and to avoid consuming landfill space and minimize the need for backfill, the MSW/soil mixture was screened on-site utilizing a three-inch diameter screen to segregate the MSW from the native soils. Due to the planned MSW screening activities, which differed from the proposed RAP, Terracon prepared and submitted an addendum to the RAP dated February 16, 2007 to notify the TCEQ of the changes. After completion of the MSW screening activities, 1,060 cubic yards (946.84 tons) of MSW were transported off-site by TryMor Trucking, Inc. for proper disposal at the BFI Lewisville landfill, while the balance of the screened soils (approximately 600 yards) and the overburden soils (approximately 1,000 yards)were returned to the excavation for backfill. Segregated tires were transported offsite to Tex- American Recycling in Fort Worth for recycling, Response actions were performed from February 13, 2007 to March 08, 2007. Describe how the response action achieved the property-specific response objectives for the PCLE zone in each media in the context of the response objectives set forth in §350.32 or§350.33, as applicable. Explain how the response action was appropriate based on the hydrogeologic and COC characteristics. Describe any unprotective conditions that continued or resulted from the remedial actions and the actions taken to mitigate unprotective conditions. The response action objectives for the site were to remove the buried MSW from the site. The MSW was excavated, segregated, and hauled off-site for disposal at the BFi Lewisville, Texas landfill. Tires were segregated and transported offsite to Tex-American Recycling in Fort Worth for recycling. A total of 1,060 cubic yards 946.84 tons of MSW material was disposed off-site. Since previous sampling of the MSW TCEQ-10328/RACR February 2005 Confirmation of Response Action RACK Worksheet 1.0 Page 6 of 13 Objectives ID No. VCP-1859 Report Date: 03/09107 was performed and no PCLE zones were identified, visual observations of the open excavation and additional test pits excavated along the perimeter confirmed the completion of MSW excavation activities on-site. No unprotected conditions resulted from the remedial actions. If different from the information provided in the RAP, explain how the COCs were handled,treated, disposed, or transferred to another media and document that the response action did not result in any additional exposure conditions due to response action activities. Explain how the response action achieved the objectives within the reasonable time frame. The response action was achieved with three months of RAP approval. Were physical controls used as part of the response action? Yes X No If yes, describe the type and purpose of the physical control and discuss how the physical control has roved effective. Soil Response Action Objectives When using removal and/or decontamination with controls or controls only, demonstrate that the physical control or combination of measures reliably contained CDCs within and/or derived from the surface soil and subsurface soil PCLE zone materials over time. No physical controls were utilized as part of the response action. Explain how the removal or decontamination action reduced the concentration of COCs to the critical surface soil and subsurface soil PCL throughout the soil PCLE zone and prevented COC concentrations above the critical soil PCLs from migrating beyond the ori incl boundn of the soil PCLE zone. No COCs were identified above Tier 1 Residential PCLs within the MSW. Groundwater Response Action Objectives Name of groundwater-bearing unit to which this information Groundwater was not encountered applies during excavation activities. Repeat this section for each groundwater-bearing unit for which a different response action was conducted. Groundwater 1 X 2 3 classification Was a modified groundwater response action used for any part of the groundwater X PCLE zone (§350.33(f)(2), (3), or(4))? — Yes _ No If yes, complete the appropriate portions of this report. Explain how the removal or decontamination actions reduced the concentration of CDCs to the critical groundwater PCL throughout the groundwater PCLE zone and prevented COC concentrations above the critical groundwater PCL from migrating beyond the original boundary of the groundwater PCLE zone. If COC concentrations above the critical groundwater PCL ever migrated beyond the original boundary of the groundwater PCLE zone,explain the actions taken to address the increase in the PCLE zone. Confirmation of Response Action RACK Worksheet 1.0 Page 7 of 13 Objectives ID No. VCP-'1859 Report Date: 03!09107 Not Applicable Explain how the response action prevented COCs from migrating to air at concentrations above the PCLs for air if thegroundwater-to-air PCLs A"GW,,,t v were exceeded. Not Applicable Explain how the response action prevented CDCs from migrating to surface water at concentrations above the PCLs for groundwater discharges to surface water if surface water was a factor. Not Applicable Explain how the response action prevented human and ecological receptor exposure to the groundwater PCLE zone. Not Applicable Waste Management Describe the volume and final disposition or reuse location of waste or environmental media that was removed from the affected property during the response action, if not previously reported under STEERS. Provide copies of all manifests, other documentation of disposition, and landowner consent for reuse of soil in Appendix 8. A total of approximately 1,060 cubic yards (946.84 tons) of MSW was excavated by Sunbelt Industrial Services, and were transported to the BFI Lewisville,Texas landfill for proper disposal by TryMor Trucking. Tires were segregated and transported offsite to Tex-American Recycling in Fort Worth for recycling. Overburden soils and screened soils were returned to the excavation and the sidewalls along the eastern portion of the excavation were collapsed to partially fill the excavation. No additional soils or fill material was utilized in filling the excavation. Plume Management Zone RACR Worksheet 2.0 Page s of 93 ID No. Report Date: Complete this worksheet when a PMZ was used as part of the response action. Include in Attachment 2A a map of the PMZ with alternate POE(s)and attenuation monitoring points identified and the current groundwater PCLE zone (if applicable). If a PMZ was not used,do not submit this worksheet. Groundwater-bearing unit Repeat this worksheet for each groundwater-bearing unit for which a PMZ was used. Groundwater classification 2 3 Is/was NAPL present? _ Yes _ No If so describe how the response action achieved the performance criteria in §350.33(%4)(E). If this is a Class 2 groundwater,explain haw the response action ensured that leachate from the surface soil and subsurface soil POLE zones did not Increase concentration of COCs greater than the measured concentrations at time of RAP submittal. (§350.33(a)(2) Provide documentation that the CDCs did not migrate beyond the downgradient boundary of the PMZ at concentrations above the critical PCL. Include supporting documentation in Attachments 1A, 1 B, and 2A. List the attenuation action level determined for each attenuation monitoring point. Illustrate the attenuation monitoring points, initial, maximum, and final groundwater POLE zones (or groundwater concentrations If less than the critical PCL) on the map in Attachment 2A. COC Attenuation Attenuation Action Maximum Monitoring Point Level concentration (well number) (mg/L) measured at the attenuation monitoring point m /L Technical Impracticability RACK Worksheet 3.0 Page 9 of 13 ID No. Report Date: Use this worksheet to document the use of technical impracticability to modify the groundwater response objectives. Also complete Worksheet 2.0 to document the plume management zone for the area of technical impracticability. include a map of the groundwater PCLE zone and area of technical impracticability in Attachment 3A. If technical impracticability was not used as part of the response action, do not submit this worksheet. If additional information beyond that provided in the RAP is available, describe how it was determined that it was technically impractical to reduce the COG concentrations in groundwater to the critical PCI-s. Describe the response actions taken that did not prove effective, Provide graphs in Attachment 1 B to Illustrate COC concentrations over time and with distance from the source for each response action that did not prove effective. Describe in Worksheet 1.0 the removal/decontamination actions that were conducted for any PCLE zone outside the area of technlcal impracticability. Did COCs above the critical PCL migrate beyond the area of technical impracticability and/or beyond the initial boundary of the PCLE zone? _ yes _ no If yes, explain the actions taken to mitigate the mi ration of CDCs. o a, � � c � O c� wti C t Q co N 3 O m U p C O O C m OCPJ U m N 3 ° c o Qv �� - 0 C U (p m Y.0 O m 0 >, c t7L m O x o O Ub c c CL U Q0 o = � � w d Y ++ 'O p G C to N m'm N 9 m m L c G CD 'ac UQ> O 0 Q 0 U V C C O m C.. y 0 p L O O ++ ° ImEm to � m >_ cEc cc = c t mm Ui > 0 a c o °i m : o @ coN to N m ' c o � m me c 0 U O = 3 aU y _ _ O > p m3 t9 0. � m m N O C u> > 0 � � m m Q Z a N C m U e mac. � c ro p U Lj A O m C L m C O 0 m N m Ci .0 O m C 'c00 N O W C _V fl O C p 0 p m v tom �' a O O V O O c z 7 "' U m m a V1 7 `c p m m vJ .N^i ,i•• i?. to v m L. 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O v p U c O U = p N co 3 m a o ouai °' c m � � � � ° ac C N� m 3 v°1, vp,M o v°i c °oaV y (D CL c m co Q N L C') N 'L ° .0 CO C m _ m M ml9KwL CmCLc � c C� = try OV O � � O y OM a7� Cly mrd d� N� tU N � .. w Y a0 m ., EoE 'DEC3EoEaEoE E E 1 `� c, m p _0 V m 7 V c U In U-) V LO V Cn U V V Ln °.0 L Q W S = � e� ochB@o � 0 `& ocrynCN Cn 0 n°'�� mO �� fU- [::Performance Measures and RACK Worksheet 5.0 Page 11 of 13 Problems ID No. Report Date Performance Measures List and describe the performance measures for each environmental medium containing a PCLE zone that were used to determine ff reasonable progress is being made by the response action in a timely manner. Provide documentation that these performance measures were met. Attach additional information if necessary. No PCLE Zones. Buried MSW removed from site, and the response action has been completed. Problems Complete the table for the response action. When the response action consisted of several components or multiple actions, complete one table for each major component or action. Response Action NamelDesignation: MSW Removal List the problems that were encountered during the response action, describe the impact of each problem, and the response to the problem. Description of the Problem Impact Did this Corrective Response cause a response action failure? Yes No No Problems Encountered Operation and Maintenance RACR Worksheet 6.0 Page 12 of 43 ID No.: Report Date: Use this worksheet to describe the operation and maintenance (0&M) activities conducted for each response action. Response Action Name/Designation: List all portions of the response action to which this information applies. Repeat this worksheet for each major component or operation. Describe the 0&M and inspection activities that were conducted to operate and maintain response action components. Post-Response Action Care RACK Worksheet 7.0 Page 13 of 13 ID No. Report Date: Complete this worksheet only if the information has changed from that submitted in the RAP. if the information does not apply or if the RAP contains the most current information,do not submit this worksheet. What is the proposed initial post-response action care period? (default 30 years yr.) If the proposed initial post-response action care period is less than 30 years, provide a technical justification in accordance with §350.33(h). What is the foreseeable land use during the post-response action care period? Describe how the future use of the property will not compromise the integrity of the physical controls, will not interfere with the function of the monitoring systems,will not pose a threat to human health or the environment,and will be.in accordance with any institutional controls. Describe the proposed post-response action care activities. Describe the type of monitoring and/or inspections to be performed. Discuss the rationale for not including any COC(s) analyzed during the response action, monitoring or sampling point location, frequency of monitoring and/or inspections, and the duration of the monitoring program. Will PRAC sampling procedures be the same as those as previously documented for monitoring and/or confirmation sampling? Yes No If no, provide in Appendix 6 a description of the monitoring or sampling collection procedures to be conducted during the post-response action care period. Cost Estimate Complete this portion of the form only if this information has changed from that submitted in the RAP. Specify the physical control to which this information applies: Complete this worksheet for each physical control that will be used as part of the response action. What is the total estimated annual cost of O&M for the FRAC period? $ What is the total estimated cost for a third party to perform PRAC activities? $ Identify the type of financial assurance mechanism to be used, and the contact person managing fiduciary responsibility, if known. Does the person meet the criteria and definition of a small business? (see §350.33(n)) _Yes No If yes and the person desires to pursue the reduced amount of financial assurance, attach a legally binding affidavit. Include in the affidavit the information requested in 30 TAC §350.33(1), (m), and (n). i. k fr••. REPUBLIC TITLE OF TEXAS I •.. .� ,• 2626 HOWELL ST 10TH FLR + DALLAS TX 75204 Submitter: REPUBLIC TITLE OF TEXAS I SUZANNE HENDERSON TARRANT COUNTY CLERK TARRANT COUNTY COURTHOUSE 100 WEST WEATHERFORD FORT WORTH, TX 76196-0401 DO NOT DESTROY WARNING - THIS IS PART OF THE OFFICIAL RECORD. Filed For Registration: 06/03/2005 12:56 PM Instrument#: D205157215 OPR 10 PGS $30.00 By: — — -- — I IIIIIIIIIII HIII ILII VIII VIII VIII ILII ILII(IIII IIII ILII D205157215 ANY PROVISION WHICH RESTRICTS THE SALE, RENTAL OR USE OF THE DESCRIBED REAL PROPERTY BECAUSE OF COLOR OR RACE IS INVALID AND UNENFORCEABLE UNDER FEDERAL LAW.