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HomeMy WebLinkAbout10 SUPERFUND SITES 07-05-94NO. 10 7-5-94 DATE: Ju~e 27, 1994 Inter-Com TO: FROM: SUB,IECT: WILLIAM A. I{USTON, CITY MANAGER CITY ATTORNEY REQUEST FOR CITY COUNCIL AUTHORIZATION TO TAKE ACTION TO MINIMIZE T~IE CITY'S LIABILITY EXPOSURE AT TWO SUPERFUND SITES Summary City Council authorization is sought to approve an amended agreement among responsible parties at a Superfund site located in Wyoming (the Mountaineer Site) and to enter into a settlement agreement for $2,000 to resolve the City's liability at another Superfund site located in Utah (the Ekotek Site). The City's involvement at each site stems from the deposit of small amounts of waste oil at each site. City Council approval will enable the City Attorney to move forward to expeditiously resolve these matters without litigation. Back,round Under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") or the "Superfund Law," the United States Environmental Protection Agency identified the City of Tustin as one of many public and private parties responsible for cleanup at the Mountaineer and Ekotek sites. Records indicate that the City disposed of a small quantity of waste oil that was :ransported to each .of these sites for recycling and/or proper disposal. Unfortunately, the owners of the sites were not responsible individuals and, as a result, a great number of public and private entities that sent waste oil and other chemicals to 5hose facilities are now required by law to share in the cost of cleanup at each location. Liability under the Superfund law is strict, without regard to fault. Previously the City Council authorized the City Manager to enter into an agreement with the Mountaineer Refinery PRP Committee (other responsible parties at the Mountaineer Site). To date, the City of Tustin has contributed approximately $12,000 to the Committee for evaluation of site cleanup costs. This contribution was based on an allocation of costs among the member parties, which, in turn, is based on the volume of waste that they contributed to the site. The proposed Group Participation Agreement for the Mountaineer Refinery Site (which is an amendment of the original agreement) would enable the Committee to offer settlement agreements to small contributors, such as the City of Tustin. With respect to the Ekc%ek Site, the City's contribution is considerably less than at the Mountaineer Site. Due to its status as a very minor contributor~ we did not recommend that the City join the Ekotek Responsible Party Committee. To date, the City of Tustin has not contributed 5o the costs of cleanup evaluation at the Ekotek Site. The Ekotek ~ommittee is now offering a settlement to parties, such as Tustin, with de minimis responsibility. The total amount for the City of Tustin would be $2,000. This settlement is based upon the Committee's estimate that Tustin's contribution is less than 2,500 gallons, and that site cleanup costs do not exceed $58,350,~00. Should either of those amounts be exceeded, as part of the setslement Tustin is agreeing to bear its proportionate share of the additional costs. Such a "reopener" provision is commonly required in such settlements. Recommendation Given the minor contri~usion of the City of Tustin to each of these two superfund sites, i5 is recommended that the City approve the Group Participation Agreament for the Mountaineer Refinery Site (that will enable the City of Tustin to take advantage of two potential settlement options for de minimis contributors), and to authorize settlement at the Ekotek Site in the amount of $2,000, in accordance with the proposed settlement agreement. Lois E. LRJ:cas:D:06/27/94: (Tll) Attachments cc: Robert 'Ledendecker, Public Works Director -2- GROUP PARTICIPATION AGREEMENT FOR THE MOUNTAINEER REFINERY SITE This Agreement is made as of the date of execution set forth below by and among the parties (hereinafter the "Members") whose authorized representatives have executed this Agreement. WI-IEREAS, the Members recognize the possibility that each may be considered a potentially responsible party (~PR1~) in connection with the Mountaineer Refinery ~Site located near La Barge, Wyoming (the "Site~) and that as individual entities there may be a diversity of interest among the Members, but that by acting in concert the interest of each individual Member can often be effectively represented by the group, and in order to achieve that end, all Members should cooperate to achieve the group's goals and compromise individual interest in an effort to reach consensus on issues presented to the group; and WI-IEREAS, the Members recognize that it is in their collective interest to have as many parties as possible participate and, therefore, the Members are dedicated to identifying potential PRPs, locating them and encouraging them to join the group; and WHEREAS, without admitting any fact, responsibility, fault or liability in connection with the Site, the Members hereto wish to (1) devote their resources to respond efficiently to any demands and claims that may be asserted by the United States or the State of Wyoming in connection with the Site; (2) allocate among themselves common legal, technical, administrative, and other costs incurred in connection with this matter while minimizing such costs and ensuring that non- participating PR.Ps bear response costs to the maximum extent possible; (3) preserve and protect the confidentiality of documents, information and work product received and developed by the PRP group on behalf of its Members; and (4) cooperate among themselves in this effort. NOW, THEREFORE, in consideration of the foregoing, the Members mutually agree as follows: 1. Mountaineer Refine .ry PRP Committee. The Members hereby organize and constitute themselves as the Mountaineer Refinery PRP Committee (hereinafter the ~PRP Committee"). Each Member whose authorized representative has executed this Agreement is a Member of the PRP Committee. 22066 0002 (including &ii armel~ament~ t~'ough April 5, 1994) 2. purpose. 2.1 Activities. It is the purpose of this Agreement that the terms hereof shall control the manner and means by which the Members will: (a) organize and conduct a common response to any claims that may be asserted by the United States, the State of Wyoming, or others relating to the Site, including, but not limited to, the PP,,.P Committee's performance of any response actions or the organizing and conducting of a common defense for selected claims. Notwithstanding the foregoing, common responses shah not be extended to claims that do not apply to the Members of the PRP Committee generally; (b) organize and conduct negotiations w/th the United States Environmental Protection Agency ("EPA"), the State of Wyoming, and other persons concerning the PRP Committee's settlement of all or a portion of any alleged claims against the Members; (c) retain and pay, if so chosen, common counsel and common technical consultants and determine the scope of work, budget and schedule for work performed by common counsel and/or common technical consultants; (d) these purposes; raise and spend ail reasonably necessary funds to implement (e) take all necessary and reasonable actions to effectuate this Agreement; (f) allocate among themselves all costs incurred or to be incurred as authorized by this Agreement, including, but not limited to, cost of common counsel, technical, administrative and other costs approved by the PRP Committee ("Shared Costs"); (g) to the extent possible, settle claims that Members of the Committee may have agn~.".st parties who have generated or transported de minimis amounts of hazardous s' ;.tances to the Site, in such a manner that a significant number of such parties settle their claims on substantially identical terms; and (h) initiate cost recovery or contribution actions against or settlement negotiations with any non-participating PRP. 2.2 Members' Cooperation. The Members shall cooperate w/th each other to effectuate the purposes of this Agreement. Each Member hereby agrees -2- that it shall not initiate legal action against another Member arising out of issues involving the Site so long as both are Members. 3. Organization and Procedures. 3.1 Committees and Subcommittee~. In order to carry out the purposes of this Agreement, the Members do hereby establish an Executive Committee, which shall create an Allocation Subcommittee, a Technical Subcommittee and such other subcommittees as it may deem appropriate to assist the Executive Committee in the matters for which the Executive Committee is authorized. Each Member, and any individual serving on the Executive Committee or any subcommittee on behalf of any Member, agrees, by virtue of such service to maintain the privileged nature and confidentiality of all communications and proceedings of such committees; such obligation shall continue in the event such individual should leave the employ of or cease to represent such Member, or in the event any Member elects to leave the PRP Committee. The Members on the Executive Committee and subcommittees shall serve as volunteers without compensation and without reimbursement for individual expenses from the PRP Committee, except as authorized and approved by the PRP Committee. 3.2 Authori .ty to Decide. The Members shall strive to reach consensus on issues of common interest. Notwithstanding the foregoing, each Member shall have the authority to act on his/her own behalf if the particular Member's interest is independent of the PRP Committee's interest or if the Member determines an individual action or response is necessary. 3.3 Meetings. The Members may authorize or direct actions under this Agreement at meetings duly held and called for such purpose, which meetings shall be called regularly by the Executive Committee. Meetings of the PRP Committee may be called for any purpose at any time by any two (2) or more Members of the Executive Committee or by any five (5) or more Members of the PRP Committee. Meetings may be held by telephone conference. 3.4 Notice of Meetings. Written notice of the time, place and purpose of any meeting of the PRP Committee shall be provided to each Member entitled to vote at such meeting at least five (5) business days before the date of such mee.ting either personally, by mail or by other means of written communication, addressed o,r telecopied to each Member at the address or telecopy number appearing on the service list maintained by the Executive Committee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Member. Matters may be referred to the PRP Committee by the Executive -3- Committee by mall ballot requesting an executed response within a specified time pehod not more than five (5) business days after receipt. 3.5 Consensus Decisionmaking. Any matter under this Agreement may ~e referred to a meeting of the PRP Committee by the Executive Committee. Any matter involving the allocation or assessment of financial obligations to Members shall be referred to the PRP Committee for a decision. Additionally, any proposed settlement with government agencies or third parties shall be referred to the PRP Committee for a decision. The PRP Committee shall attempt to make decisions by con, sensus. 3.6 Voting Power. (a) Unless specified otherwise in this Agreement, any matter properly put to the PRP Committee for a vote shall be decided by a majority (more than fifty percent (50%)) of the Members of the PRP Committee in attendance and voting (in person or by proxy), so long as a quorum, as defined in Section 3.8, is represented and so long as a majority (more than fifty percent (50%)) of the Voting Power (as defined below) of the Members in attendance and voting (in person or by proxy) approves such decision by votes cast in person or by proxy.. Each Member shall have voting rights ("Voting Power") in the proportion that the amount of finandal contribution assessed and paid by such Member under this Agreement (excluding the initial payment made pursuant to Section 8.2 of this Agreement) as of the last assessment made pursuant to this Agreement prior to such meeting bears to the total amount of financial contribution assessed and paid by all Members under th~s Agreement as of such assessment ("pro rata vote"); provided that any Member that has been assessed a finandal contribution which assessment remains unpaid at the time the meeting is called may vote only upon payment of the full assessment prior to the voting process. For purposes of the initial assessment the Voting Power oi each Member shall be as set forth in Exhibit 1, which is attached hereto. (b) In the event a quorum is not in attendance, a vote may st:21 be taken by delivering a ballot to ail Members. Additionally, the Executive Committee may at any time choose to extend the fight to vote by ballot to Members not in attendance on any proposal before the PRP Committee whether or not a quorum is in attendance or a vote of the quorum has been taken. Any such ballot is to be returned to the Executive Committee as directed, but not more than five (5) business ~iays from receipt thereof. In order for the ballot vote to be valid, a majority of all Members must vote. 3.7 Voting by Proxy. A Member eligible to vote at a PRP Committee meeting may assign in writing, in a form established by the Executive Committee, -4- its vote (in accordance with Section 3.6 of this Agreement) to another Member eligible to vote at the meeting. 3.8 Ouorum. To establish a quorum, one-third (1/3) of the eligible Memb'ers (as defined in Section 3.6 of this Agreement) and thirty, percent (30%) of the eligible Voting Power (as defined in Section 3.6 of this Agreement) of the PRP Committee shall be present in person, linked by telephone or represented by proxyll at any PRP Committee meeting. 3.9 Right of Separate Counsel. Notwithstanding that common counsel may be retained with rdspect to any matter, each Member reserves the right to select and retain its own counsel to represent such Member on any matter, and to advise common counsel that such Member is not to be represented by or through common counsel with respect to any such matter. 3.10 No Binding Power. The PRP Committee shall not have the authority to bind any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability at the Site, except to the extent that notice is provided to each Member of the PRP Committee and the Member is given the opporturdD' to withdraw as set forth in Section 9.1 below. Notwithstanding the foregoing, each Member shall be severally, but not jointly, bound by each and every Mountaineer Refinery Site Private De Minimis Settlement Agreement in substantially the forms attached hereto as Exhibits 3.10(1) or 3.10(2) (each a "De Mirdmis Settlement Agreement~) entered into between the Committee and any parties eligible to enter into De Minimis Settlement Agreements with tee Committee under the eligibilit2..' criteria stated therein (the "De Minimis Parties") at any time, if executed and delivered on behalf of the Committee by its then-acting chairperson. Any execution and delivery of a De Minimis Settlement Agreement by a chairperson of the Committee shall constitute his or her act for and on behalf of the Committee only and shall not bind such person individually or the Member of which that person is a representative; provided, however, that this sentence shall not limit such Member's several liability provided above under any De Minimis Settlement Agreement. 4. Executive Committee. 4.1 Executive Committee Members. The Executive Committee shall consist of'at least three (3) Members who express a ~'illingness to make its representative reasonably a~,ailable to participate actively in the funcl:ions of the Executive Comrnittee. The initial composition and subsequent modifications of the Executive Committee shall be approved by a majori ,ty vote of a quorum of the PRP Committee. A majority of the Members of the Execative Committee shall be present -5- in person, linked by telephone or represented by proxx., at any Executive Committee meeting to take action. 4.2 Enumerated Powers of the Executive Committee. The powers, duties and responsibilities of the Executive Committee shall include: (a) retaining, coordinating, supervising and directing the activities of common counsel, if so chosen; (b) selecting, retaining and determining the activities of any contractors and consultants retained for assistance in the matter and seeking advice and assistance in this role/rom the Technical Subcommittee; (c) negotiating and referring settlement matters to the PRP Comrnittee; (d) electing a Chairperson of the Executive Committee who shall also act as Chairperson of the PRP Committee; (e) appointing subcommittees to handle specific matters. The Executive Committee shall notify all Members of its intent to create each proposed subcommittee and shall appoint to the subcommittee a representative of any Member who expresses a willingness to make its representative reasonably available to participate actively in the subcommittee's functions; (f) recommending to the PRP Committee a method of allocating Share. d Costs and seeking the advice and recommendation of the Allocation Subcommittee in this role; (g) negotiating with the EPA and other persons with respect to ail matters arising out of the Site; (h) recommending to the PRP Committee that issues raised by any party to this Agreement relating to the breach oi this Agreement or to enforce the terms hereof be first resolved, if possible, by negotiation before considering litigation against that party,; (i) "circulating to the PRP Committee such substantive pleadings, motions, or other written submissions as the Executive Committee deems necessary in order to allow a Member to determine if it wishes to exercise its option under Section 3.9 hereof: and -6- (j) conducting such other activities that are necessary and proper to carry out the purposes of this Agreement. 4.3 Shared Costs. Those activities authorized by the Executive Committee or the PRP Committee to be incurred on behalf of the PRP Committee shall be funded by the Members as Shared Costs. 4.4 Litigation Against Other Persons. The Executive Committee may recommend to the PRP Committee that a claim be asserted on behalf of the Members against other persons. No such claim may be asserted by common counsel, if one exists, under this Agreement without the consent of a majority of the Voting Power of the PRP Committee, and any Member may elect to decline participation in any such suit and may, but need not, in lieu of such participation assign its claims to the other Members. Nothing in this paragraph shall affect or impair the right of any Member to assert any claim in its own name and right · against any person. 4.5 Voting. Voting by the Executive Committee shall be by majority vote of all Members of the Executive Committee with each Member having an equal vote. 4.6 No Binding Power. The Executive Committee shall not have the authority to bind the PRP Committee or any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability to the Site. 4.7 Reports to the PRP Committee and Call for PRP Committee Meetings. The Executive Committee shall report in writing its decisions, actions and recommendations to the PRP Committee from time to time as may be necessary to keep the PRP Committee fully ir~formed of matters covered by this Agreement, and shall call periodic meetings of the PRP Committee and refer to such meetings for a vote any matters which, in the judgment of the Executive Committee, should be referred. 4.8 Call for. and Notice of, Executive Committee Meetings. The Executive Committee may authorize or direct actions under this Agreement only at meetings duly held and called for such purpose, which meetings should be called regularly ~oy the Executive Committee. Meetings of the Executive Committee may be called by the Chairperson or by any two (2) Members of the Executive Committee. Whenever feasible, written notice of the time, place and purpose of any meeting of the Executive Committee shall be given to each Executive Committee Member at least five (5) business days and not more than thirty (30) calendar days before the date of such meeting either personally, by mail or by other means of written communication, charges prepaid, addressed to each Member at the address appearing on a service list to be maintained by the Executive Committee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every Executive Committee Member. Not/ce may be accomplished by telecopy or telephone to those Members who so request. Meetings may be held by telephone conference. 5. Technical and Allocation Subcommittees. 5.1 Technical Subcom~nittee Memb~r~. The Technical Subcommittee shall consist of Members appointed by the Executive Committee from among Member volunteers who shall supply technically qualified representatives prepared to participate actively on the Technical Subcommittee. 5.2 Powers and D~tie~ of the Technical ~ubcommittee. The powers and duties of the Technical Subcommittee s~,all include: (a) acting in response to requests by the Executive Committee or its designee to provide assistance in any matter, including assistance with the activities of any contractors and/or consultants retained in connection with the matter and in reviewing and analyzing technical data, studies and other materials relating to the Site; (b) selecting a liaison representative to coordinate activities with the Executive Committee; and (c) electing a Chairperson of the Technical Subcommittee. 5.3 Allocation Subcommittee Members. The Allocation Subcommittee shall consist of all Members that wish to participate. Members who wish to participate shall supply one qualified representative prepared to partidpate actively on the Allocation Subcommittee. 5.4 Powers and Duties of the Allocation Subcommittee. The powers and duties of the Allocation Subcommittee shall include: (a) Executive Committee; r, eceiving and evaluating information as directed by the (b) interviewing and recommending a person or entity to be retained as an allocation consultant; -8- (c) locating PP, Ps through perusal of all records available to the PRP Committee, held by the current owner/operator of the Site, CERCLA ~ 104(e) responses, interviews with knowledgeable persons, and obtaining, assembling and maintaining irdormation about any materials sent to the Site by any alleged generator or transporter; (d) advising and recommending to the Executive Committee and submitting reports describing a means of fairly and equitably allocating on a final basis Shared Costs among the Members; (e) undertaking such investigltions and activities as may be appropriate to enable the Allocation Subcommittee to produce such reports; (f) maintaining a tabulation of interim allocation percentages for Members, based on volume and/or such other criteria as approved by the PRP Committee, until such time as a final allocation is approved by the PRP Committee; (g) selecting a liaison representative to coordinate activities with the Executive Committee; (h) electing a Chairperson of the Allocation Subcommittee; and (i) implementing the procedures for resolving allocation disputes and issues among the Members as set forth in Section 6 below. 5.5 Decisions of the Technical and Allocation Subcomrnittees. The Members of the Technical and Allocation Subcommittees shall attempt to make decisions by consensus upon all matters within the scope of their powers and duties; however, on any matter put to a vote, such matter shall be decided by a majority voting of the Members present in person or by proxy at the meeting with each Member of the subcommittee having an equal vote. Subcommittees shall not have the authority to bind the PRP Committee, the Executive Committee or any individual Member to any settlement agreement with EPA, the State of Wyoming or any other person or entity with respect to any liability to the Site. 5.6 Call for. and Notice of. Meetings. The Technical and Allocation Subcomr~ittees may authorize and direct actions under this Agreement only at meetings duly called and held for such purpose, which meetings should be regularly called. Meetings of the Technical and Allocation Subcommittees may be called by the Executive Committee Chairperson, the respective subcommittee chairperson, or any three (3) subcommittee Members. Whenever feasible, written notice of the time, place and purpose of any meeting of the Technical and Allocation Subcommittees -9- shall be given to each subcommittee Member at least five (5) business days and not more than thirty (30) calendar davs before the date of such meeting either personally, by mail or by other means of written communication, charges prepaid, addressed to each subcommittee Member at the address maintained by the chairperson of the subc'omrnittee. In the event a meeting is called on less than five (5) business days written notice, the Members calling the meeting shall make a reasonable effort to provide notice in fact to every subcommittee Member. Meetings may be held by telephone conference. 6. Dispute Resolution. In the event of a good faith dispute with respect to a Member's gallonage attribution or other waste information in the reports prepared on behalf of the PRP Committee, the dispute shall be heard by the Dispute Resolution Work Group (the "Work Group") and the final determination rendered in accordance with the procedures set forth below. The members of the Work Group shall consist of volunteer Members and shall be appointed by the Allocation Subcommittee. 6.1 Filing a Dispute. Any Member in good standing may, in good faith, dispute its gallonage attribution or other waste information by submitting to each member of the Work Group a written statement consisting of a summary of the basis of the challenge; a statement of what the Member believes to be the correct attribution; any and all pertinent documentation; and a notarized certification that the documents submitted represent all known documentation within the Member's possession and control relevant to the Member's gallonage or waste information that has not already been accurately identified in the reports prepared by the lVRP Committee's consultant. 6.2 Limitations. A Member must dispute its gallonage attribution or other waste information no later than 120 days after the date of the final report on gallonage attributions prepared by any consultant on behalf of the PRP Committee. No Member shall dispute its gallonage attribution or other waste information more than once, except as provided in subparagraph 6.3. 6.3 Revised Attribution or New Members. If any Member's gallonage attribution changes as a result of newly-discovered waste information and not due to the resolution 9f any dispute brought by that Member, the Chairperson of the Work Group shall notify the Member in writing and the Member may dispute the revised attribution within 120 days from receiving such notification. Any Member joining the PRP Committee after this dispute resolution procedure becomes effective may dispute its gallonage attribution or waste information within 120 days from the date the Member executes this Agreement. 6.4 Sxabmission oi Information. The Member filing a dispute may submit to the Work Group such i:xformation as it desires, subject to reasonable limitations as the Chairverson of ,'he Work Group deems appropriate, and shall produce additional irdormation as the Chairperson deems necessary to an understanding and dete:Tnination of the dispute. 6.5 Meetings. The Chairperson of the Work Group shall hold meetings on disputes at least once every sixty, (60) days during the period in which Members may file disputes, or more frequently as the Chairperson deems appropriate. The Work Group must address a dispute at the first scheduled hearing following submission of the dispute by the Member, provided the submission is made at least fourteen (14) days in advance of such scheduled meeting. Written notices of the time, place and specific allocation dispute(s) to be addressed shall be provided to each Work Group member at least ten (10) days before the date of the hearing. 6.6 Work Group's Determination. A determination of a dispute shall be made by a vote o£ the majori~' of the voting members of the Work Group. No Work Group member shall vote on a disoute of his or her company. If a Work Group member is recused from voting o~ the dispute of his or her company and a tie vote occurs, the Chairperson of the Allocation Subcommittee shall cast the tie- breaking vote. If the Chairperson of the Allocation Subcommittee is recused and a tie vote occurs, then the C}{airperson of the Executive Committee shall cast the tie- breaking vote. The Chairperson of the Work Group shall issue a written determination of a disp'ate within twenty-one (21) days of the meeting at which the Work Group addressed the dispute. 6.7 Legal Issues. The Chairperson of the Work Group may refer legal issues to the Legal SubcorcuCnittee, if one exists, for an advisory legal opinion, provided, however, that the adv;.sory legal opinions are not legally binding on the PRP Committee or an}' Member and are not admissible in any judicial or administrative proceed;.ngs. 6.8 Procedures for Review by the PRP Committee. Any Member may seek a review of the detern:ination of the Work Group by the PRP Committee in accordance with the :'ollowin~ procedures: (a) Notice of Review. Within ten (10) days a/ter receiving the Work Group's deterrni~'.atio'n, any Member may notify, in writing, the Chairpersons of the Work Group, the Aiioca6~n Subcommittee and the Executive Committee that it desires to present its disvute :o the PRP Committee. The Chairperson of the Executive Committee sF, all'schedule the Member's presentation for the next scheduled PRP Comr~$::ee meeting. -11- (b) Presentation of Dispute. The Member may present its dispute orally and/or in writing but shall not present any evidence dot previously considered by the Work Group. (c) Final Determination. Notwithstanding Section 3.6 of this Agreement, a final, binding determination of the dispute shall be made by a vote of two-thirds of the Members of the PRP Committee, voting either in person, by telephone linkage or by proxy; provided, however, if a two-thirds vote is not achieved, the determination of the Work Group shall be deemed final. The vote of the Member seeking review of the Work Group's decision shall not be cast or counted in determining the outcome of the vote. No final de'termination of a dispute shall be admissible against a Member in any judicial or administrative proceeding. 6.9 Allocation Ad!ustment. Upon a Work Group's determination which was not presented to the PR_P Committee for review, or upon a final determination of a dispute by the PRP Committee, the Allocation Subcommittee shall adjust the Member's allocation, if necessary, within fourteen (14) days of the date of the final determination. All future PRP Committee assessments for that Member shall be based on the Work Group's determination or the PRP Committee's final determination, whichever applies. A disputing Member's assessments on disputed volumes shall not be due and payable by the Member during the pendency of the dispute resolution procedures. A Member's revised assessment based on the applicable allocation determination shall be due and payable by the Member within thirty (30) days of the date of the allocation adjustment by the Allocation Subcommittee, subject to the provisions of Section 9.1 below. 6.10 Confidential Information. Any and all information submitted to the Work Group or the PRP Committee in support of a Member's dispute shall constitute confidential shared information and shall be subject to the confidentiality provisions set forth in Section 12.3. 6.11 Coordination. The Chairperson of the Work Group shall maintain close communication and coordination with the Allocation Subcommittee and its Chairperson so as to promote the smooth functioning of both the Work Group and the Allocation Subcommittee. 7. Members' Obligation to Submit Documentation. If and when requested by the Executive Committee, each Member shall review all information and documents in the possession, custody or control of or reasonably obtainable by such Member that in any way relates to any shipment of its material to the Site, and submit to the Allocation Subcommittee or its designee'a document setting forth the amount and a description of each shipment by date in a fo,wn to be approved by the Executive Committee, or such non-privileged records as may be requested by the Executive Committee to support the information reported in the document. Submission of a Member's CERCLA § 104(e) response is sufficient to satisfy the requirements of this paragraph, unless the Member has other relevant information or documents not included in that Member's CERCLA § 104(e) response. The document and supporting records shall be submitted to facilitate settlement among the Members and as confidential shared information shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law or fact, a waiver of any right, privilege or defense, nor an estoppel against any submitting Member. Failure to submit the document and supporting records may be grounds /or removal of such Member from the PRP Committee and termination of this Agreement as to such Member. The scope of such information shall be no greater than that required by Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9604(e). 8. Shared Costs. 8.1 Payments. Shared Costs (as defined in Section 2.1(0) shall be assessed by the PRP Committee. The PRP Committee shall approve the amount of each assessment at a properly noticed PRP Committee meeting. All assessments shall be due and payable within thirty (30) days from the date oi the written notice of assessment. If Members responsible for twenty percent (20%) or more of the Shared Costs assessed withdraw, however, the entire assessment shall be deemed null and void. Assessments occurring after a change in allocation shall cause each Member to pay the proportionate amount of Shared Costs under the new allocation plan, after credit for the amount paid under previous assessments. Current Members in good standing that have overpaid may opt to credit the overpayment toward future assessments or to be reimbursed for the amount overpaid. 8.2 Initial Payment. Each Member of the PRP Committee shall make an initial contribution of $2,.000 payable to the Mountaineer Refinery PRP Committee Account at the time it executes this Agreement. This initial payment shall be non.refundable and shall not be a credit against future assessments. 8.3 Accounting for Funds. The Executive Committee shall keep an accounting of all funds received by or on behalf of the PRP Committee and shall -'1.3- provide to the Members from time to time informal accountings of monies received, spent and obligated and a final accounting upon the termination of the Agreement. Accounting records will be available and open for Members' review upon reasonable request. 8.4 Purpose of Funds. All monies provided by Members pursuant to this Agreement shall be used solely for the purposes of this Agreement and shall not be considered as payment for any fines, penalties or monetary sanction, unless otherwise agreed to by the Members. 8.5 Interim Payments. All payments of interim assessments, excluding the Initial Payment pursuant to Section 8.2 above, shall be credited against the final assessment. In any final allocation, each Member shall be given credit for all sums previously paid to the PRP Committee. 9. Withdrawal and Removal. 9.1 Withdrawal. Any Member may withdraw from all participation in the Committee and under this Agreement, as of the date the notice of withdrawal is postmarked, subject to the following limitations: (a) Each Member that does not withd.-aw from the Committee within 30 days after the Committee's approval of this F'rrst Amendment, and each Member becoming a Member at any. time thereafter (collectively, "Settlement Bound Members"), shall at all times be and remain severally, but not jointly, bound by each and every De Minimis Settlement Agreement entered into by and bet-ween the Committee and any of the De Minimis Parties in accordance with the terms of this Agreement, regardless of whether the effective date of such De Minimis Settlement Agreement occurs before such Settlement Bound Member became a Member or after it withdraws from participation in the Committee under this Agreement. Any Member that, at any time, enters into a De Minimis Settlement Agreement with the Committee as a De Minimis Party shall he deemed to have withdrawn from the Committee within such 30-day period and thereafter shall not be a Settlement Bound Member. The Committee shall credit against such Member's payment obligations under such De Minimis Settlement Ag-reemenr all amounts previously paid by it to the Committee and, if such payments exceed its payment obligations under su.ch De Minimis Settlement Agreement, refund to such Member the amount of such excess. All costs ind expenses of the Committee in performing or erfforcing De Minimis Settlement Agreements ("De Minimis Settlement Shared Costs") shall constitute Shared Costs. Each Settlement Bound Member withdrawing from participation in the Committee under this Agreement shall be and remain liable for its share (determined in the same manner as is provided in this Agreement for other Shared Costs) of all De Minimis Settlement Shared Costs and shall be considered to remain a Member for purposes of Sections 3.6 (Voting), 5.3 (Allocation Subcommittee Members), 6 (Dispute Resolution) and 8 (Shared Costs) only insofar as De Minimis Settlement Shared Costs are concerned. Each Settlement Bound Member's several liability under each De Minimis Settlement Agreement shall be a portion of the entire liability thereunder, proportionately equal to such Settlement Bound Member's share of De Minimis Settlement Shared Costs. Co) Subject, in the case of withdrawing Members that are Settlement Bound Members, to the provisions of paragraph 9.1(a) with respect to the De Mi '~ni~s Shared Costs, each withdrawing Member shall remain liable for its share of all Shared Cost assessments that are approved by the Committee pursuant to this Agreement more than 30 days prior to the date of its withdrawal. (c) Any Member removed from the Committee pursuant to Section 9.2 herein shall, for all purposes of this Section 9.1, be deemed to have withdrawn from the Committee on the effective date of its removal, and its removal shall not affect its obligations as a withdrawing Member under this Section 9.1. 9.2 Removal of a Member. (a) If any Member's interests or actions are regarded as contrary to the interests of the other Members, such Member may be removed from the PRP Committee by a vote of two-thirds of the Voting Power of the PRP Committee present in person or by proxy, at a PRP Committee meeting called for the purpose of considering such removal. In the event any Member fails to pay any portion of any assessed financial contribution pursuant to this Agreement within forty-five (45) days following receipt of notice of such assessment, that Member shall be considered in default and may be removed from the PRP Committee by a vote of two-thirds of the Voting Power present in person or by proxy at a PRP Committee meeting called for the purpose of considering such removal. The Executive Committee may extend the default deadline to provide sufficient opportunity to resolve any disputes over any such Member's assessment. Any Member that is removed shall have the same liability as a Member that withdraws, as defined in Section 9.1. (b) Any Member that has elected to participate on the Executive_Committee or a subcommittee may be removed from the Executive Committee or subcommittee by a two-thirds (2/3) vote of the members of the Executive Committee or applicable subcommittee or a majority vote of the PRP Committee based on the Member's failure or inability to participate actively and assist in accomplishing the functions of the Executive Committee or subcommittee. -15- 10. Waiver of ~gnflict of Interest. 10.1 In the event the PRP Committee engages common counsel, each Member agrees that: (a) it will not claim or assert that, based solely on said counsel's past or present representation of a Member, said counsel has a conflict of interest in performing legal services authorized by the PRP Committee and arising out of the Site, unless the Member notifies the PRP Committee of the claimed conflict within twenty (20) days of receiving notice of intent to hire said counsel; (b) it will not claim or assert that, based solely on said counsel's representation of the PRP Committee under the terms of this Agreement, said counsel has a conflict of interest in connection with any representation of any other person or entity in a matter pending as of the date of receiving notice of intent to hire said counsel, unless the Member notifies the PRP Committee of the claimed coruqict within twenty (20) days of receiving said notice; (c) it will not claim or assert that, based solely on said counsel's representation of the PF<P Committee under the terms of tl~is Agreement, said counsel has a conflict of interest in any future representation of any person or entity unless the subject matter relating to said representation arises out of or is connected to the Site or involves or could involve any facts or information obtained from the Member during the term of :his Agreement; (d) in the even: that any corfflict develops in the performance of work authorized by the PRP Corn~2ttee by common counsel and the performance of work authorized by a Member tha: has retained that counsel, the Member consents to common counsel's continued performance of the work authorized by the PRP Committee; and -(e) if a Member withdraws or is removed from this Agreement or its representation by common counsel is in any way terminated, it will raise no objection to the contin'aed representation by common counsel of the PRP Committee and the continued performance of legal services arising out of the Site. 10.2 Should the United States or the State of Wyoming discuss with, propose, or offer a de minimi~ settlement to any Members potentially eligible for such a settlement, no Member potentially eligible for a de minimis settlement will claim any conflict of interest in, or obiecr to, the continued provision of any technical assistance by any technicai consultan: retained by the PRP Committee to any Member potentially ineligible for such a de minimi~ settlement. 10.3 If any Member withdraws or is removed, that Member shall not claim any conflict of interest in, or object to, the continued provision of tech:'fical assistance by any technical consultant retained by the PRP Committee. 11. New Meml~er~. Any party that becomes a Member by execution of this Agreement subsequent to June 15, 1992 shall be deemed a Member ab inltio and shall be assessed and pay all sums that such Member would have been obligated to pay as a Member ab initio, except that the~ PRP Committee may impose different terms and conditions upon any party seeking to enter into this Agreement after its effective date. 12. Confidentiality and Use of Information. 12.1 Shared Information. From time to time, the Members may, but need not, elect to disclose or transmit to each other, directly or through counsel, such information as each Member, common counsel or common technical consultant deems appropriate for the sole and limited purpose of asserting any common claims or defenses relating to the Site and coordinating such other activities that are necessary and proper to carry out the purposes of this Agreement. Shared information may be disclosed to or transferred among the Members orally or in writing or by any other appropriate means of communication. The Members intend that no claim of work-product or other privilege be waived by reason of participating or cooperating in the common response to, or defense of, any claims arising out of the Site. 12.2 Preservation of Privilege. Information disclosed by the Members to common counsel may be disclosed to any other Member, and each Member hereby expressly consents to treat such disclosure to it as being for the sole purpose of asserting any common claims or defenses arising out of the Site. Su-d~ disclosure shall not be deemed a waiver of the attorney-client, work-product or any other privilege. 12.3 Confidentiality. of Shared Information. (a) Each Member agrees that all shared information received from any ~)ther Member or its counsel, common counsel or common technica~ consultant pursuant to this Agreement shall be held in strict confidence by the receiving Member and by all persons to whom such confidential information is revealed by the receiving Member, pursuant to this Agreement, and that su~'~ information shall be used only in connection with asserting any common da'~ms or defenses in connection with the Site and conducting such other activities that are necessary and proper to carry out the purposes of this Agreement; (b) Shared information that is exchanged in written or in document form and is intended to be kept confidential may, but need not, be marked "Confidential" or with a similar legend. If such information becomes the subject of an administrative or judicial order requiring disclosure of such information by a Member, where the information will be unprotected by confidentiality obligations, the Member may satisfy its co,'ffidentiality obligations hereunder by notifying the Member that. generated the information and by giving such Member an opportunity to protect the confidentiality of the information or, if the information was generated by common counsel or common technical consultant, by giving notice to common counsel; (c) Each Member shall take all necessary and appropriate measures to ensure that any person who is granted access to any shared information or who participates in work on common projects or w}~0 otherwise assists any counsel or technical consultant in connection with this Agreement, is familiar with the terms of this Agreement and complies with the terms as they relate to the duties of the person; (d) The Members intend by this Section to protect from disclosure ail information and documents shared among any Members or between any Member, common counsel and/or common technical consultant to the greatest extent permitted by law, regardless of whether the sharing occurred before execution of this Agreement and regardless of whether the writing or document is marked "Confidential"; (e) The confidentiality obligations of the Members under this Section shall remain in full force and effect, without regard to whether a Member withdraws or is removed, whether this Agreement is terminated or whether any action arising out of the Site is terminated by final judgment or settlement. The provisions of this Section shall not apply to information that is now or hereafter becomes public knowledge without violation of this Agreement, or that is sought and obtained from a Member pursuant to applicable discovery procedures and not otherwise protected from disclosure; and (f) ' In the event a Member ~4thdraws from this Agreement or is removed, any documents or other physical materials containing confidential information provided by such Member to common counsel, to the other Members, or to common technical consultant, shall be promptly returned to such withdrawing or removed Member, together with all copies thereof, and a~'~y document or physical materials provided by common counsel or common technical consultant, or the other Members to the withdrawing or removed Member shall be promptly returned to the Executive Committee, togetl'~er with all copies thereof. The withdrawing or removed Member and the remaining Members shall remain obligated to preserve the confidentiality Of all confidential information received or disclosed pursuant to this Agreement. 13. Denial of Liability.. This Agreement shall not constitute, be interpreted, construed or used as evidence of any admission of liability, law or fact, a waiver of any right or defense, nor an estoppel against any Member by Members as among themselves or by any other person not a Member. Nothing in this Section, however, is intended or should be construed to limit, 'bar or otherwise impede the enforcement of any term or condition of the Agreement against any Member to this Agreement. 14. Insurance. The Members do not intend hereby to make any agreement that will prejudice any Member with respect to its insurers and, by entering into this Agreement, anticipate that the actions taken pursuant to this Agreement will benefit such insurers. If any insurer makes any claims that any aspect of this Agreement provides a basis for rejection or limitation of coverage of a Member, the PKP Committee will attempt, consistent with the objectives of this Agreement and the desires of the Member, to return any M~mber subject to such claim to a position that is satisfactory to such insurers. 15. Successors and Assi_~ns. This Agreement shall be binding upon the successors and assigns of the Members. No assignment or delegation of the obligation to make any payment or reimbursement hereunder will release the assigning Member without the prior written consent of the Executive Committee. 16. Allocation in the Event of Default. The unpaid balance of any defaulting Member's share may be assessed by the PRP Corrunittee against the other Members hereto (without waiving any rights such Members may ,have against the defaulting Member or its successors or assigns) in the same proportion as the other Members would have been obligated to pay if the defaulting Member had not been a signatory of this Agreement. -19- 17. Relationship Of Members. 17.1 No Member, or representative or counsel for any Member, has acted as counsel for any other Member with respect to such Member entering into this Agreement, except 'as expressly engaged by such Member with respect to this Agreement, and each Member represents that it has sought and obtained any appropriate legal advice it deems necessary, prior to entering into :his Agreement. 17.2 No Member or its representative serving on the Executive Committee or any subcommittee shal! act or be deemed to act as legal counsel or a representative of any other Member, unless expressly retained by such Member for such purpose and, except for such express retention, no attorney-client relationship is intended to be created between representatives on the Executive Committee or any subcommittee and the Members. 17.3 Nothing herein shall be deemed to create a partnership or joint venture and/or principal and agent relationship between or among the Members. 18. Indemnification. Each Member agrees to indemnify, defend and hold harmless any Member and its representative(s) from and against any claim, demand, liability, cost, expense, legal fee, penalty, loss or judgment (collectively "LiabiliD'") that in any way relates to the good-faith performance of any duties under this Agreement by any Member or its representative(s) on behalf of the PRP Committee, the Executive Committee or any subcommittee under this Agreement, including, but not limited to, any liability arising from any contract or agreement signed by the Member or its representative(s) at the request of the Executive Committee or the PRP Committee. Except for the payment of legal fees as incurred, this indemnification shah not apply to any liability arising from a criminal proceeding where the Member or its representative(s) had reasonable cause to believe that the conduct in question was unlawful. Any costs arising pursuant to this Section shall be allocated as a Shared Cost in accordance with Section 4.3 hereof. The terms of this Section shall survive the termination of the Agreement and the withdrawal or remova', of any Member. 19. Effective Date, Method of Execution. The effective date of this Agreement shall be the date below. This Agreement shall be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. -20- 20. Amendments. This Agreement may be amended only by a vote of at least two-thirds (2/3) of the Members p.resent in person or by prox7 at a PRP Committee meeting called for the purpose of considering such amendment. Such amendment shall become effective thirty (30) days after written notice of such amendment is mailed to all Members. Any Member who does not vote affirmatively on such amendment shall have fifteen (15) days' written notice to formally consent to the terms of the amendment. Any such party who does not consent to the amendment shall not be bound by the amendment and shall be automatically removed as a Member at the expiration of the fifteen (15) day period and this Agreement terminates as to that party. 21. Separabili _ry. If any provision of this Agreement is deemed invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 22. Choice of Law. This Agreement shall be interpreted under the laws of the State of Wyoming. 23. N0nwaiver. Nothing in this Agreement shall be construed to waive any fights, claims or privileges that any Member shall have against any other Member or any other person or entity. 24. Entire Agreement. This Agreement constitutes the entire understanding of the Members with respect to its subject matter. 25. Termination. This Agreement may be terminated by a vote of the majority of the Voting Power of the Memb,ers present in person or by proxy at a PRP Committee meeting called for the purpose of considering such termination. -21- 26. Notice. All notices, bills, invoices, reports and other communications with a Member shall be sent to the representative designated by the Member on said Member's signature page of this Agreement. Each Member shah have the right to change its representative upon ten (10) days written notice to the Chairperson of the Executive Committee. IN wFrN-ESS WI-IEREOF, the Members hereto, which may be by and through their appointed counsel, enter into this Agreement. Each person signing this Agreement represents and kvarrants that he or she has been duly authorized to enter into this Agreement by the company(les) or entity(les) on whose behalf it is indicated that the person is signing. Dated: , 199 MEMBER: Designated Representative for Receipt of Notice-and Invoices Name: Address: By:. (Name and Title) Phone: Fax Machine Number: -22- PRP ACD, Inc. FMC Corporation Gulfstream Aerospace Corp. Gulton Servordcs Hayden, Inc. Knott's Berry Farm Nelco Products Paul-Murrroe Engineering Taylor-Dunn Manufacturing Co. Textron Inc. Varco International Walt Disney Company Total EXHIBIT 1 Mountaineer Refinery Site Volume Summary* Volume (gallons~ Percentage 2,000 1.04 3,700 1.93 4,975 2.59 2,540 1.32 2,525 1.31 2,775 1.44 2,850 1.48 4,650 2.42 2,695 1.40 123,880 64.42 2,550 1.33 ~7,160 !9.32 192,300 100.00 This volume summary is based on EPA's "Listing of All Waste Shipments Ranked by Volume, 2000 Gallons and Above." EXHIBIT 3.10(1) Settlement Agreement I MOUNTAINEER REFINERY SITE PRIVATE DE MINIMIS SE'~ i LEMENT AGREEMENT (CASH-OUT WITH REOPENER) This Private De Minimis Settlement Agreement (this "Agreement") is made and entered into as of the Effective Date indicated on the execution page of this Agreement, by and between the Mountaineer Refinery PRP Committee (the "Committee") and the party whose name is set forth as the Settling Party on the execution page of this Agreement (the "Settling Party"). BACKGROUND A. The Mountaineer Refinery is located on La Barge Creek Road, one mile west of U.S. Route 189, approximately two miles southwest of La Barge in Lincoln County, Wyoming (the "Site"). Since about 1967, the Site has been operated as an oil refinery and used oil re-refinery by Mountaineer Refining Company. In 1990, EPA ordered the owner/operator to cease operations at the Site. The Committee was formed for the purpose of negotiating with the U.S. Environmental Protection Agency ("EPA") and the Wyoming Department of Environmental Quality ('DEQ') in response to action taken by EPA regarding the Site pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ('CERCLA"). Specifically, the members of the Comrrdttee entered into an Administrative Order on Consent, Docket No. CERCLA VIII-92-27 (September 29, 1992) (the "Removal Order"), requiring them to conduct a removal action at the Site. The work required under the Removal Order currently is underwav. The Committee estimates that the cost to complete the work required by the RemOval Order and to reimburse EPA for its response costs could be approximately $7.5 million ("Estimated Removal Costs"). To date, the Committee has incurred cos~ts in excess of 52.2 million. B. EPA may have sent Settling Party a request for information under CERCLA, seeking information relating to, among other things, substances at the Site generated, and/or transported by Settling Party. If so, Settling Party has provided a response to EPA's request for information. That response includes, among other information, statements by Settling Party relating to the volume of substances at the Site generated or transported by it. C. In addition, the Committee may have discovered information regarding Settling Party's volume and other involvement at the Site through documents -1- maintained by the owner/operator of the Site or through the testimony of former employees of Mountaineer Refining Company. D. The Committee contends that it has claims against Settling Party. in the nature of cost recovery, contribution, indemnification or otherwise, including but not limited to claims under 42 U.S.C. §§ 9607 and 9613(f), for response costs that have been or may be incurred in the future by the Committee with respect to the Site. Settling Party denies that it is liable to the Committee. The parties desire to amicably resolve without litigation the actual and potential claims between them arising with respect to the Site and, to do so, have resolved to, enter into this Agreement. E. The Committee is willing to enter into this Agreement with Settling Party on the understanding that the volume of substances disposed of or treated at or transported to the Site for which Settling Party is a potentially responsible party is 2,000 gallons or less. For good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows: 1. Settling Party's Payments. 1.1 Administrative Payment. Within ~5 days after the Effective Date, Settling Party shall pay 52,000 lo the Comrnittee as payment for the Committee's administrative costs (the "Administrative Payment"). 1.2 ~ment. Within 45 days after the Effective Date, Settling Party shall pay to the Committee an amount (the "Lump Payment ) equal to the product of (i) the number of gallons of Settling Party's Volume (as defined in Section 8 of this Agreement) as shown on the execution page of this Agreement, multiplied by (ii) $15.00. 1.3 (a) Supplemental Payment for Excess Volume. If the Committee reasonably determines, at any time, that Settling Party's Volume exceeds that indicated on the execution page by 10% or more (the full amount of such excess over such Settling Party's Volume being "Settling Party's Excess Volume"), then Settling Party shall pay to the Committee, within 30 days after written notice from the Committee of its determination of Settling Party's Excess Volume, an amount (a "Supplemental Pavment for Volume") equal to the product of (i) the number of gallons of Settling Party's Excess Volume (to the extent not taken into account in previous calculations of Supplemental Payments for Volume), multiplied by (ii) 515.00. -2- (b) Rebate for Shortfall Volume. If the Committee reasonably determines, from information provided to it by Settling Party that Settling Party's Volume is less than tha', indicated on the execution page by at least 10% (the full amount of. such shortfall under such Settling Party's Volume being "Settling Party's Volume Shortfall"), then the Committee shall pay to Settling Party, within 30 days after making such determination, an amount (a "Rebate for Volume"), equal to the product of (i) the number of gallons of Settling Party's Volume Shortfall (to the extent not taken into account in previous calculations of Rebates for Volume), multiplied by (ii) $15.00. (c) Except as provided in this Agreement, Settling Party's Volume set forth on the execution page may not be modified and is not subject to dispute by Settling Party,. From and after the date of any adjustment resulting in a Supplemental Payment for Volume or a Rebate for Volume, the definition of Settling Party's Volume shall mean the volume as adjusted. 1.4 Supplemental Payment for Site Costs. This Agreement is entered into based on the facts currently known to the Committee regarding the nature and scope of work and costs required under the Removal Order. If, at any time after the Effective Date, the total amount of costs and expenses incurred by the Committee for Site Liabilities exceeds $7.5 million (the amount of such excess being an "Excess Site Costs Amount"), Settling Party shall pay to the Committee, within 30 days after written notice from the Committee to Settling Party, an amount (a "Supplemental Payment, for Site Costs") set forth in the notice. The Supplemental Payment for Site Costs shall be equal to a fraction of the Excess Site Costs Amount, the numerator of whicZ shall be Settling Party's Volume as of the date of the Committee's notice and the denominator of which shall be the volume, stated in gallons as determined ~',, the Committee as of the date of the Committee's notice, of the total volume of materials disposed of, treated at or transported to the Site by the Committee members. For purposes of establishing the denominator, the Committee estimates that the volume as of the Effective Date will be approximately 500,000 gallons. This figure may be adjusted at any time based upon new information made available to the ComrnJnee. 1.5 Manner of Payments. All payments required by this Agreement shall be made by cashie.-'s check or money order payable to the Mountaineer Refinery ]?RP Committee, delivered to the Committee or Settling Party, as appropriate, at its address i:ndicated on the execution page of this Agreement. 1.6 Late Pavmen:s. If any payment required by this Agreement is not timely paid in full, ail unpaid amounts shall bear interest until paid at the rate of 12% per annum. -3- 1.7 Dispute of Committee's Determination. (a) The Committee's determination of any volume or payment amount described in this Agreement shall be conclusive and binding upon Settling Party unless, within 10 days after any notice given by the Committee to Settling Party of its deterrr~nation, Settling Party gives written notice to the Committee of its disagreement with such determination. (b) If Settling Party timely disputes the Committee's determination ],~ursuant to subsection 1.7(a), the parties shall meet and attempt in good faith to resolve such dispute. If the parties are unable to resolve the dispute within 30 days after the Settling Party's notice, or such longer period as they agree upon, the parties shall submit the dispute to arbitration in Salt Lake City, Utah pursuant to the commercial arbitration rules of the American Arbitration Association. In any such arbitration, the parties shall be entitled to conduct discovery to the full extent of, and in accordance with, the Federal Rules of Civil Procedure as then in effect. The arbitration decision shall be final and binding on the parties, and judgment thereon may be entered in any court having jurisdiction over the matter. The party prevailing in the arbitration (as determined by the arbitrator or arbitrators) shall be entitled to an award of all of its attorneys' fees and costs incur'red in the arbitration, and the other party shall bear all expenses of the arbitration. 2. Settling Park's Covenant Not TO Sue and Assignment. Settling Party covenants that it shall not bring or assert any suit or claim, including but not limited to any third-party suit or claim, in the nature of contribution, inderrmification or otherwise, for or with respect to any Site Liabilities (as defined in Section 8 of this Agreement), against the Committee, any of its members or any person or entity that enters into an agreement with the Committee in wl~.ich the Committee covenants not to sue such person or entity with respect to Site Liabilities, or any of their respective directors, shareholders, officers or employees. The foregoing shall not impair Settling Party's rights to bring or assert any action against the Committee for its failure to timely pay any Rebate for Volume, or otherwise enforce the terms of this Agreement. Settling ?arty irrevocably assigns and conveys to the Comm~ittee, with full power of substitution, all claims, causes of action, defenses, counterclaims and other fights, in the nature of contribution, indemnification or otherwise, it may have against an.y person or entit~ for or with respect to Site Liabilities. Notwithstanding the foregoing, such assignment and conveyance shall not include or impair any rights of Settling Party to recover from its insurers the amounts of the Adrr6.rristrative Payment, Lump Payment or any Supplemental Payments for Site Costs, provided that such insurers waive all rights of subrogation, if any, with respect thereto. -4- 3. Committee's Covenant Not To Sue. Upon receipt by the Committee of the Administrative Payment and Lump Payment required by Sections 1.1 and 1.2 of this Agreement, the Committee covenants that it shall not bring or assert any suit or claim, including but not limited to any third-party suit or claim, for or with respect to any Site Liabilities, against Settling Party or any of its directors, shareholders, officers or employees arising out of or with respect to Site Liabilities, provided that nothing in this paragraph shall impair the Comrnittee's rights to bring or assert any action against Settling Party for its failure to timely pay any Supplemental Payments for Site Costs or Volume, or other,,v-ise enforce the terms of this Agreement. Committee's Indemnity.. 4.1 Indemni .ty Terms. Upon receipt by the Committee of the Administrative Payment and Lump Payment required by Sections 1.1 and 1.2 of this Agreement, the Committee shall indemnify and hold harmless Settling Party, its dizectors, shareholders, officers and employees from and against: (1) all suits and claims, including but not limited to third-party suits and claims, made or brought by persons or entities other than the Committee, arising out of or with respect to any Site Liabilities attributable to Settling Party's Volume; and (2) any obligations arising or resulting from Settling Party executing, or authorizing the Committee to execute on the Settling Party's behalf, the Removal Order, as set forth in Section 5 of this Agreement. 4.2 Procedure. Promptly upon becoming aware of any matter for which Settling Party is entitled to indemnification under Section 4.1, Settling Party shall give to the Committee detailed written notice of such matter and shall thereafter promptly deliver to the Committee copies of all notices, correspondence, pleadings, documents and written material relating thereto delivered to Settling Party, or of which Settling Party becomes aware, and shall otherwise keep the Committee fully informed with respect to such matter. If any suit shall be threatened or commenced against Settling Party with respect to such matter, the Committee shall be entitled, at its option, to assume the defense of such suit, at its sole expense, by counsel acceptable to it in its sole discretion. If the Committee shall assume the defense of such suit, Settling Party shall cooperate fully with the Comrrdttee in such defense and shall, at its own expense, provide to the Committee such information and make available to the Committee such of its officers, employees_ and representatives as the Committee shall request. 5. Settlement wit'h EPA. It is the intention of the parties that the Settling Party will receive contribution protection pursuant to 42 U.S.C. § 963.3 and a covenant not to sue from EPA under 42 U.S.C. § 96Z2. To receive such contribution protection and covenant not to sue, Settling Party authorizes the Committee to execute on its behalf the Removal Order or any other instrument necessary, in the determination of EPA or the Committee, to secure such covenant not to sue and -5- contribution protection for the benefit of Settling Party and to represent Settling Party for the sole purpose of executing the Removal Order or other instrument on its behalf. 6. Remedies.' If either party (the "Breaching Party") breaches its obligations under this Agreement, or if any of its representations or warranties herein are inaccurate or misleading, the Breaching Pa:ty shall indemnify and hold harmless the other party (the "Nonbreaching Party") from and against any and all loss, cost, damage, expense and liability (including attorneys' fees and costs) arising or resulting therefrom. In addition, the Nonbreaching Party may, at its option, terminate this Agreement without further iiability or obligation, or suspend or cease performance of any of its obligations without terminating this Agreement. Without limiting the generality of the foregoing, if Settling Party is the Breaching Party, the Committee shall have no obligation to pe,fform its covenants and obligations under Sections 3 or 4 and, if it has undertaken indemnification of Settling Party pursuant to Section 4, may cease and withdraw from such indemnification and recover from Settling Party its costs and expenses (including attorneys' fees and expenses of litigation) incurred in such indemnificatior,. The remedies provided in this section shall not limit or impair any other remedies available to a Nonbreaching Party under this Agreement, at law or in equity, and all remedies shall be cumulative. 7. Representations and Warrav..des. 7.1 Settling Par .ty's Representations and Warranties. Settling Party represents and warrants to the Committee that: (a) If applicable, ir, resvonse to the inquiry, sent to it by EPA asserting the authority of section 104(e) oi CERCLA, 42 U.S.C. ~ 9604(e), Settling Party made a complete and thorough investigation of all documents, information and sources relevant to EPA's inquiry and provided a complete, truthful and accurate response, and such response contained ali documents and information responsive to EPA's inquiry. Settling Party's Volume is not more than set forth on the execution page of this Agreement. (b) In the event SeTtling Party did not receive an information request from EPA, Settling Party made a complete and thorough investigation of all document, s, information and sources related to this matter in its possession and, based on that review, Settling Par ,ty's Volume is not more than set forth on the execution page of this Agreement. (c) Settling Part¥'_~ execution, deliver), and performance of this Agreement are within its power and have been duly authorized, and this Agreement constitutes its legal, valid and, binding obligation, enforceable against it in accordance with its terms. If the Settling Party is'not an individual, the individual executing this Agreement on its behalf has all requisite authority to do so. 7.2 Committee's Representations and W~rranties. The Committee warrants and represents to Settling Party that: (a) The Committee's execution, delivery and performance of this Agreement are within its power and have been duly authorized by its members, and this Agreement constitutes the legal, valid and binding several, but not joint, obligation of each of its members, erdorceable against each of its members in accordance with its terms. The individual executing this Agreement on behalf of the Committee has all requisite authority to do so. (b) The Committee was established by the Group Participation Agreement for the Mountaineer Refinery Site (the "Group Participation Agreement"), under which all current members of the Committee are, and all future members of the Committee will be, bound. The current members of the Committee are listed in Exhibit 1 attached hereto. The Group Participation Agreement provides, among other things, that: (i) the obligations and liabilities of the Committee hereunder are the several, but not joint, obligations and liabilities of each of the current and future members of the Committee as set forth in the "Group Participation Agreement," and (ii) such obligations and liabilities are allocated among such members for purposes of their several liability hereunder. 8. Definitions. As used herein, the following capitalized terms have the following meanings: 8.1 ~Settling Party's Volume" means the volume, stated in gallons, of substances disposed of or treated at the Site that were (i) owned, controlled or possessed by Settling Party, and the disposal or treatment of which, or the transportation for disposal or treatment of which, was arranged by Settling Party or (ii) accepted by Settling Party for transport to the Site. 8.2 "Site Liabilities" means any and all losses, costs, expenses, fees, claims, liabilities, damages, fines, penalties, indemixification payments and expenses, attorneys' fees, consultants' and expert witnesses' fees, expenses of litigation and court costs ("Losses") arising out of or with respect to any of the following relating to the Site, including (i) claims by the United States pursuant to section 106 or 107(a) of CERCLA, 42 U.S.C. §§ 9603 or 9607(a), or section 7003 of RCRA, 42 U.S.C. § 6973; (ii) claims, including stipulated penalties, by the United States under the Removal Order or any other Administrative Orders on Consent, Unilateral Orders or Consent Decrees entered into with the Committee; (iii) claims for costs of any health assessment or health effects study carried out under section 204(i) of C£RCLA, 42 U.S.C. § 9604(i); (iv) claims by any person pursuant to section 310 of CERCLA, 42 -7- U.S.C. § 9659; (v) response costs under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), incurred by the Committee, any member thereof, or any other person; and (vi) claims for contribution or indemnification by any person that is or may be liable for any of the foregoing. Site Liabilities do not include any Losses: (a) for common law claims, including but not limited to personal injury damages, damages to property or to:dc tort damages, asserted by persons or entities other than governmental authorities; (b) incurred by Settling Party with respect to the Site prior to the Effective Date of this Agreement; (c) incurred with respect to performing groundwater remediation at the Site; (d) for injury to, destruction of, or loss of natural resources arising from any condition at the Site resulting from a release of substances, including but not limited to the costs of assessing such injury, destruction or loss; Settling Party; (e) arising or resulting from a criminal act on the part of (f') incurred by Settling Party in responding to a request for. information by any governmental agency or the Committee; or (g) arising or resulting from Settling Party's failure to comply with any court order, judgment or decree. 9. --Miscellaneous. 9.1 Supplemental Information. Settling Party shall promptly deliver to the Committee true and correct c.opies of all documents relating to Settling Party's Volume or the constituents thereof or its activities with respect thereto or to the Site, that it may discover, or which may come to its attenvion, at anytime after the Effective Date of this Agreement. 9.2 Integration. This Agreement constitutes the sole and entire agreemen~ of the parties with respect to the subject matter hereof, and supersedes any and all other discussions, negotiations, representations, understandings and agreements bet-ween the parties. This Agreement may not be modified except by written agreement executed by both parties. 9.3 Notices. All notices under this Agreement shall be made in writing and transmitted by U.S. certified mail, return receipt requested, to the -8- address of the recipient set forth on the execution page of this Agreement, or to such other address as either party shall have specified by written notice given in accordance with this Section. All notices shall be effective upon the earlier of receipt or the date that is 5 days after mailing. 9.4 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns. Without limiting the foregoing, this Agreement shall be binding upon each and every one of the current and future members of the Committee, severally, but not jointly, in proportion to their allocation under the Group Participation Agreement of their obligations and liabilities hereunder. No person or entity not a party hereto, or ifs heirs, successors and assigns, shall have any tights or benefits hereunder, as a third- party beneficiary or othenvise. The individual executing and delivering this Agreement for the Committee is acting for and on behalf of the Committee only and does not by doing so bind himself or herself individually or bind the Committee member for which he or she is a representative; provided, however, that this sentence shall not limit the several liability hereunder of such Committee member. 9.5 Jurisdiction. Actions by either party to enforce the terms of this Agreement shall be brought in any court of competent jurisdiction in the State of Wyoming. The Committee, for itself and each of its current and future members, and Settling Party each submit to the personal jurisdiction of such courts and waive any fight to assert that venue in such courts is improper or that such courts are an. inconvenient forum. 9.6 No Admission of Liability: No Release of Nonparties. This Agreement shall not constitute nor shall it be used as evidence of any admission of law or fact, or a waiver of any fight or defense by the parties, except as expressly set forth herein. The parties do not admit to any fact or to any liability under, or violation of, any federal, state or local law, rule or regulation, and no part of this Agreement shall constitute such an admission. This Agreement is not intended to, nor shall it, release, discharge or affect any rights or causes of action that either of the parties hereto may have against any other person or entity, except as otherwise expressly stated herein, and each of the parties reserves all such rights. 9.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming, without regard to the conflict of laws prindpl.es of the State of Wyoming. 9.8 Counterparts. This Agreement may be executed in counterparts, and all counterparts executed shall constitute one agreement binding on all parties hereto. -9- This Agreement has been executed as of the Effective Date stated below. SETTLING PARTY COMMITFEE Mountaineer Refinery PR.P Committee By:. Name: Title: By: Name: Jeffrey B. Groy Title: Chairperson SETTLING PARTY°S ADDRESS Attn: Telecopier: CONflvlITrEE's ADDRESS Stoel Rives Boley Jones & Grey One Utah Center 201 South Main Street, Suite 1100 Salt Lake City, Utah 84111-4904 Attn: Jeffrey B. Groy Telecopier: (801) 578-6999 EFFECTIVE DATE: SETTLING PARTY'S VOLUME: TOTAL SETII.ZIv~NT AMOUNT $ 2,000 $ $ · 1994 (Administrative Fee) (Amount Based on Settling Party's Volume) Total Amount Due -10- Exkibit 1 tO Mountaineer Refinery Site Private De Mirdmis Settlement Agreement (Cash-Out With Reopener) Committee Members as of the Effective Date AAI Corporation ACD, Inc. Aeromil Engineering Co., Inc. All-Bann Enterprises BFM Energy Products' Bridget Coal Company C. C. Industries California Forklift Company' Cessna Aircraft Company Chevron Chemical Company City of Tustin' Cooper Industries, Inc.' Dico, Inc. Exotic Materials, Inc.' Exxon Company, U.S.A. Fairway Toyota' Fleischli Oil Company FMC Corporation GSF Energy, Inc. Gulfstream Aerospace Corp. Gulton Industries, Inc.' Hayden, Inc. Hunt Wesson, Inc.' Industrial Enterprises' Industrial Parts Depot,Inc.' International Transportation Services, Inc. Johnson & Turner Painting Company' Kern Engineering & Manufacturing Co. Long Beach Container Terminal, Inc. Los Angeles County Metropolitan Transit Authority Nelco Products, Inc. Northwest Pipeline Corp. Pacific Scientific Company Paul-Munroe Engineering Pittsburg & Midway Coal Mining Company Rosan Products Separation & Recovery Systems, Inc.' Sinclair Oil Corporation Specialty Products Company' Sundor Brands, Inc.' Sun Eight Co., Inc. Sweetwater County Taylor-Dunn Manufacturing Co. Textron Inc. Varco International The Walt Disney Company Committee members v.'i~o are eiig-ible for the Committee's de minimis settlement. EXHIBIT 3.10(2) Settlement Agreement II MOUNTAINEER REFINERY SITE PRIVATE DE MINIMIS S£ 1 1 LEMENT AGREEMENT (CASH-OUT WITHOUT REOPENER) This Private De Minimis Settlement Agreement (this ~Agreement~) is made and entered into as of the Effective Date indicated on the execution page of this Agreement, by and between the Mountaineer Refinery PRP Committee (the "Committee") and the party whose name is set forth as the Settling Party on the execution page of this Agreement (the "Settling Party'). BACKGROUND A. The Mountaineer Refinery is located on La Barge Creek Road, one mile west of U.S. Route 189, approximately two miles southwest of La Barge in Lincoln County, Wyoming (the "Site"). Since about 1967, the Site has been operated as an oil refinery and used oil re-refinery by Mountaineer Refining Company. In 1990, EPA ordered the owner/operator to cease operations at the Site. The Committee was formed for the purpose of negotiating with the U.S. Environmental Protection Agency ("EPA") and the Wyoming Department of Environmental Quality ("DEQ') in response to action taken by EPA regarding the Site pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ('CERCLA'). Specifically, the members of the Committee entered into an Administrative Order on Consent, Docket No. CERCLA VIII-92-27 (September 29, 1992) (the "Removal Order"), requiring them to conduct a removal action at the Site. The work required under the Removal Order currently is underway. The Committee estimates that the cost to complete the work required by the Remc{val Order and to reimburse EPA for its response costs could be approximately $7.5 million ("Estimated Removal Costs"). To date, the Committee has incurred costs in excess of $2.2 million. B. EPA may have sent Settling Party a request for information under CERCLA, seeking information relating to, among other things, substances at the Site generated_and/or transported by Settling Party. If so, Settling Party has provided a response to EPA's request fo.r information. That response includes, among other information, statements by Settling Party relating to the volume of substances at the Site generated or transported by it. C. In addition, the Committee may have discovered information regarding Settling Party's volume and other involvement at the Site through documents -1- maintained by the owner/operator of the Site or through the testimony of former employees of Mountaineer Refining Company. D. The Committee contends that it has claims against Settling Party in the nature of cost recovery, contribution, indemnification or otherwise, including but not limited :o claims under 42 U.S.C. §§ 9607 and 9613(f), for response costs that have been or may be incurred in the future by the Committee with respect to the Site. Settling Party denies that it is liable to the Committee. The parties desire to amicably resolve without litigation the actual and potential claims between them arising with respect to the Site and, to do so, have resolved to enter into this Agreement. E. The Committee is willing to enter into this Agreement with Settling Party on the understanding that the volume of substances disposed of or treated at or transported to the Site for which Settling Party is a potentially responsible party is 2,000 gallons or less. F. By entering into this Agreement, the Committee and Settling Party agree to resolve all past, present and future liability of Settling Party with respect to the Site, except for any liability or costs (1) arising or resulting from non-compliance with the ten'ns of this Agreement; (2) arising or resulting from a criminal act on the part of Set~ling Party; (3) incurred by Settling Party with respect to the Site prior to the Effective Date of this Agreement; (4) incurred by Settling Party in responding to a request for information by any governmental agency or the Committee; or (5) arising or resulting from Settling Party's failure to comply with any court order, judgment or decree. AGREEMENTS For good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows: Settling Par _ty's Payments. 1.1 Administrative Payment. Within 45 days after the Effective Date, SettEng Party, shall pay $2,000 to the Committee as payment for the Committe. e's administrativ,e costs (the "Administrative Payment"). 1.2 Lump Payment. Within 45 days after the Effective Date, Settling Party sba?. may to the Committee an amount (the "Lump Payment") equal to the product of ii)'the number of gallons of Settling Party's Volume as shown on the execution rage of this Agreement, multiplied by (ii) $30.00. For purposes of this Agreemer.}, "Settling Party's Volume" means the volume, stated in gallons, of -2- substances disposed of or treated at tile Site that were (i) owned, controlled or possessed by Settling Party, and the disposal or treatment of which, or the transportation for disposal or treatment of wt~ich, was arranged by Settling Party or (ii) accepted by Settling Party for transport to the Site. 1.3 (a) Supplemental Payment for Excess Volume. If the Committee reasonably determines, at any time, that Settling Parv.'s Volume exceeds that indicated on the execution page by 10% or more (the full amount of such excess over such Settling Party's Volume being "Settling Party's Excess Volume"), then Settling Party shall pay t~o the Committee, within 30 days after written notice from the Committee of its determination of Settling Party's Excess Volume, an amount (a ~Supplemental Payment for Volume") equal to the product of (i) the number of gallons of Settling ?arty's Excess Volume (to the extent not taken into account in previous calculations of Supplemental Payments for Volume), m~tiplied by (ii) $30.00. (b) Rebate for Shortfall Volume. If the Committee reasonably determines, from irfformation provided to it by Settling Party that Settling Party's Volume is less than that indicated on the execution page by at least 10% (the full amount of such shortfall under such Settling Party's Volume being ~Settling Party's Volume Shortfall"), then the Committee shall pay to Settling Party, within 30 days after making such.determination, an amount (a ~Rebate for Volume"), equal to the product of (i) the number of gallons of Settling Party's.Volume Shortfall (to the extent not taken into account in previous calculations of Rebates for Volume), multiplied by (ii) $30.00. (c) Except as provided in this Agreement, Settling l~artv's Volume set forth on the execution page may not be modified and ~,s not subject to dispute by Settling Party. From and after the date of any adjustment resulting in a Supplemental Payment for Volume or a Rebate for Volume, the definition of Settling Party's Volume shall mean the volume as adjusted. 1.4 Manner of Payments. All payments required ~y this Agreement shall be made by cashier's check or money order payable to the Mountaineer Refinery PRP Committee, delivered to the Committee or Settling Party, as appropriate, at its address indicated on the execution page of this Agreement. 1.5 Late Payments. If any payment required by t~is Agreement is not ~mely paid in full, all ~inpaid amounts shall bear interest until paid at the rate of 12% per annum. 1.6 Dispute of ~gmmittee's Determination. (a) The Committee's determination of any volume or payment amount described in th.is Agreement shall be conclusive and binding upon Settling Party unless, within 10 days after any notice given by the Committee to Settling Party of its determination, Settling Party gives written notice to the Committee of its disagreement with such determination. (b) If Settling Party timely disputes the Committee's determination pursuant to subsection 1.6(a), the parties shall meet and attempt in good faith to resolve such dispute. If the parties are unable to resolve the dispute within 30 days after the Settling Party's notice, or such longer period as they agree upon, the parties shall submit the dispute to arbitration in Salt Lake City, Utah pursuant to the commercial arbitration rules of the American Arbitration Association. In any such arbitration, the parties shall be entitled to conduct discovery to the full extent of, and in accordance with, the Federal Rules of Civil Procedure as then in effect, The arbitration decision shall be final and binding on the parties, and judgment thereon may be entered in any court having jurisdiction over the matter. The party prevailing in the arbitration (as determined by the arbitrator or arbitrators) shall be entitled to an award of all of its attorneys' fees and costs incurred in the arbitration, and the other party shall bear all expenses of the arbitration. 2. Settling Party's Covenant Not to Sue and A~si~nment. Settling Party covenants that it shall not bring or assert any suit or claim, including but not limited to any third-party suit or claim, in the nature of contribution, indemnification or otherwise, for or with respect to the Site against the Committee, any of its members or any person or entity that enters into an agreement with the Committee in which the Committee covenants not to sue such person or entity with respect to the Site, or any of their respective directors, shareholders, officers or employees. The foregoing shall not impair Settling Party's fights to bring or assert any action against the Committee for its failure to timely pay any Rebate for Volume, or otherwise enforce, the terms of this Agreement. Settling Party irrevocably assigns and conveys to the Committee, with full power of substitution, all claims, causes of action, defenses, counterclaims and other rights, in the nature of contribution, indemnification or otherwise, it may have against any person or entity for or with respect to-the Site. Notwithstanding the foregoing, such assignment and conveyance shall not include or impair any fights of Settling Party to recover from its insurers the amounts of the Administrative Payment, Lump Payment or an), Supplemental Payments, provided that such insurers waive all fights of subrogation, if any, with respect thereto. -4- 3. Committee's Covenant Not To Sue. Upon receipt by the Committee o£ the Administrative Payment and Lump Payment required by Sections 1.1 and 1.2 of this Agreement, the Committee covenants that it shall not bring or assert any suit or claim, including but not limited to any third-party suit or claim, for or with respect to any past, present or 'future liability against Settling Party or any of its directors, shareholders, officers or employees with respect to the Site, provided that nothing in this paragraph shall impair the Committee's rights to bring or assert any action against Settling Party for its failure to timely pay any Supplemental Payments for Volume, or otherwise enforce the terms of this Agreement. 4. Committee's Indemnity. 4.1 (a) Except as set forth below, upon receipt by the Committee of the Administrative Payment and Lump Payment required by Sections 1.1 and 1.2 of this Agreement, the Committee shall indemnify and hold harmless Settling Party, its directors, shareholders, officers and employees from and against: (1) all suits and claims, including but not lirnited to third-party suits and claims, made or brought by persons or entities other than the Committee, arising out of or resulting from any past, present and future liability with respect to the Site; and (2) any obligations arising or resulting from Settling Party, executing, or authorizing the Committee to execute on the Settling Party's behalf, the Removal Order, as set forth in Section 5 of this Agreement. (b)' The Committee's'indemnification obligations do not extend to any and all losses, costs, expenses, fees, claims, liabilities, damages, fines, penalties, indemnification payments and expenses, attorneys' fees, consultants' and expert witnesses' fees, expenses of litigation and court costs: (i) incurred by Settling Party with respect to the Site prior to the Effective Date of this Agreement; (ii) arising or resulting from a criminal act on the part of Settling Party; (iii) incurred by Settling Party in responding to a request for information by any governmental agency or the Committee; or (iv) arising or resulting from Settling Party's failure to comply with any court order, judgTnent or decree. 4.2 Procedure. Promptly upon becoming aware of any matter for which Settling Party is entitled to indemnification under 'Section 4.1, Settling Party shall give to the Committee detailed written notice of such matter and shall thereafter.promptly deliver to the Committee copies of all notices, correspondence, pleadings, documents and .written materials relating thereto delivered to Settling Party, or of which Settling Party becomes aware, and shall otherwise keep the Committee fully informed with respect to such matter. If any suit shall be threatened or commenced against Settling Party with respect to such matter, the Committee shall be entitled, at its option, to assume the defense of such suit, at its sole expense, by counsel acceptable to it in its sole discretion. If the Committee -5- shall assume the defense of such suit, Settling Party shall cooperate fully with the Committee in such defense and shall, at its own expense, provide to the Committee such information and make available to the Committee such of its officers, employees and representatives as the Committee shall request. 5. Settlement with EPA. It is the intention of the parties that the Settling Party will receive contribution protection pursuant to 42 U.S.C. § 9613 and a covenant not to sue from EPA under 42 U.S.C. § 9622. To receive such contribution protection and covenant not to sue, Settling Party authorizes the Committee to execute on its behalf the Removal Order or any other instrument necessa~', in the determination of EPA or the Committee, to secure such covenant not to sue and contribution protection for the benefit of Settling Party and to represent Settling Party for the sole purpose of executing the Removal Order or other instrument on its behalf. 6. Remedie~. If either party (the "Breaching Party") breaches its obligations under this Agreement, or if any of its representations or warranties herein are inaccurate or misleading, the Breaching Party shall indemnify and hold ham'dess the other party (the "Nonbreaching Party") from and against any and all loss, cost, damage, expense and liability (including attorneys' fees and costs) arising or resulting therefrom. In addition, the Nonbreaching Party may, at its option, terminate this Agreement without further liability or obligation, or suspend or cease performance of any of its obligations without terminating this Agreement. Without limiting the generality of the foregoing, if Settling Party is the Breaching Party, the Committee shall have no obligation to perform its covenants and obligations under Sections 3 or 4 and, if it has undertaken indemnification of Settling Party pursuant to Section 4, may cease and withdraw from such indemnification and recover from Settling Party its costs and expenses (including attorneys' fees and expenses of litigation) incurred in such indemnification. The remedies provided in this section shall not limit or impair any other remedies available to a Nonbreaching Party under this Agreement, at law or in equity,, and all remedies shall be cumulative. 7. Representations and Warranties. 7.1 Settling ParD"s Representations and Warranties. Settling Party represents and warrants to the Committee that: (a) If applicable, in response to the inquiry sent to it by EPA asserting the authority of section 104(e) of CERCLA, 42 U.S.C. § 9604(e), Settling Party made a complete and thorough investigation of all documents, information and sources relevant to EPA's inquiry and provided a complete, truthful and accurate response, and such response contained all documents and information responsive to -6- EPA's inquiry. Settling Party's Volume is not more than set forth on the execution page of this Agreement. (b) In the event Settling Party did not receive an information request from EPA, Settling Party made a complete and thorough investigation of all documents, information and sources related to this matter in its possession and, based on that review, Settling Party's Volume is not more than set forth on the execution page of this Agreement. (c) Settling Party's exectltion, delivery and performance of this Agreement are within its power and have been duly authorized, and this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. If the Settling Party is not an individual, the individual executing this Agreement on its behalf has all requisite authority to do so. 7.2 Committee's Representations and Warranties. The Committee warrants and represents to Settling Party that: (a) The Committee's execution, delivery and performance of this Agreement are within its power and have been duly authorized by its members, and this Agreement constitutes the legal, valid and binding several, but not joint, obligation of each of its members, enforceable against each of its members in accordance with its terms. The individual executing this Agreement on behalf of the Committee has all requisite authority to do so. (b) The Committee was established by the Group Partidpation Agreement for the Mountaineer Refinery Site (the "Group Participation Agreement"), under which all current members of the Committee are, and all future members of the Committee will be, bound. The current members of the Committee are listed in Exhibit 1 attached hereto. The Group Partidpation Agreement provides, among other things, that: (i) the obligations and habilities of the Committee hereunder are the several, but not joint, obligations and liabilities of each of the current and future members of the Committee as set forth in the "Group Participation Agreement," and (ii) such obligations and liabilities are allocated among such members for purposes of their several liability hereunder. 8.1 Suppler~ental Information. Settling Party shall promptly deliver to the Committee true and correct copies of all documents relating to Settling Party's Volume or the constituents thereof or its activities with respect thereto or to the Site, that it may discover, or which may come to its attention, at anytime after the Effective Date of this Agreement. -7- 8.2 Integration. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof and supersedes any and a~ other discussions, negotiations, representations, understandings and agreements bet-ween the parties. This Agreement may not be modified except by written agreement executed by both parties. 8.3 Notices. All notices under this Agreement shall be made in writing ant transmitted by U.S. certified mail, return receipt requested, to the address of the recipient set forth on the execution page of this Agreement, or to such other address as either patty shall have specified by written notice given in accordance with this Section. All notices shall be effective upon the earlier of receipt or the date that is 5 days after mailing. 8.4 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, successors and assigns. Without lirrriting the foregoing, this Agreement shall be binding upon each and every one of the current and future members of the Committee, severally, but not jointly, in proportion to their allocation under the Group Participation Agreement of their obligations and liabilities hereunder. No person or entity not a party hereto, or its heirs, successors and assigns, shall have any rights or benefits hereunder, as a third- party beneficiary or otherwise. The individual executing and delivering this Agreement for the Committee is acting for and on behalf of the Committee only and does not by doing so bind himself or herself individually or bind the Committee member for which he or she is a representative; provided, however that this sentence s?,ai1 not limit the several liability hereunder of such Committee member. 8.5 lufisdictiQn. Actions by either party to enforce the terms of t?tis Agreement shall be brought in any court of competent jurisdiction in the State of Wyoming. The Committee, for itself and each of its current and future members, and Settling Party each submit to the personal jurisdiction of such courts and waive any right to assert that venue in such courts is improper or that such courts are an inconvenient forum. 8.6 No Admission of Liability; NO Release of Nonparties. This Agreement shall not constitute nor shall it be used as evidence of any admission of law or fact, or a waiver of any fight or defense by the parties, except as expressly set forth herein. The parties do not admit to any fact or to any liability, under, or violation of, any federal, state or local law, rule or regulation, and no part of this Agreement shall constitute such an admission. This Agreement is not intended to, nor shall iL release, discharge or affect any rights or causes of action that either of the parties hereto may have against any other person or entity, except as otherwise expressly stated herein, anc~ each of the parties reserves all such rights. -8- 8.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wyoming, without regard to the conflict of laws principles of the State of Wyoming. 8.8 Counterparts. This Agreement may be executed in counterparts, and all counterparts executed shall constitute one agreement binding on all parties hereto. below. This Agreement has been executed as of the Effective Date stated SE fi LING PARTY COMMI'ITEE Mountaineer Refinery, PP, P Corruzdttee By: Name: Title: SET1Y,ING PARTY'S ADDRESS Attn: Telecopier: By: Name: Jeffrey B. Groy Title: Chairperson OM]VffI-FEE S ADDRESS Stoel Rives Boley Jones & Grey One Utah Center 201 South Main Street, Suite 1100 Salt Lake City, Utah 4111-4904 Attn: Jeffrey B. Groy Telecopier: (801) 578-6999 EFFECTIVE DATE: ,1994 SETTLING PARTY'S VOLUM]E: TOTAL SETTLEMENT AMOUNT $ $ $ 2,000 (Administrative Fee) (Amount Based on Settling Party's Volurae) Total Amount Due -9- Exhibit 'i to Mountaineer Refinery Site Private De Minimis Settleme}tt Agreement (Cash-Out Without Reopener) Committee Members as of the Effective Dato AAI Corporation ACD, Inc. Aeromil Engineering Co., Inc. All-Bann Enterprises BF'M Energy Products' Bridger Coal Company C. C. Industries California Forklift Company' Cessna Aircraft Company Chevron Chemical Company City of Tustin' Cooper Industries, Inc.' Dico, Inc. Exotic Materials, Inc.' Exxon Company, U.S.A. Fairway Toyota' Fleischli Oil Company FMC Corporation GSF Energy, Inc. Gulfstream Aerospace Corp. Gulton Industries, Inc.' Hayden, Inc. Hunt Wesson, Inc.' Industrial Enterprises' Industrial Parts Depot,Inc.' International Transportation Services, Inc. Johnson & Turner Painting Company~ Kern Engineering & Manufacturing Co. Long Beach Container Terminal, Inc. Los Angeles County, Metropolitan Transit Authority Nelco Products, Inc. Northwest Pipeline Corp. Pacific Scientific Company Paul-Munroe Engineering Pittsburg & Midway Coal Mining Company Rosan Products Separation & Recovery Systems, Inc.' Sinclair Oil Corporation Specialty Products Company' Sundor Brands, Inc.' Sun Eight Co., Inc. Sweetwater County Taylor-Dunn Manufacturing Co. Textron Inc. Varco International The Walt Disney Company Committee members wino are eligible for the Committee's de minimis settlement. PETROC~/EKOTEK SITE PRIVATE DE MINIMI$ SETTL~M~/gT AGRE~M~%TT (CA~-OU~WI~ R~OPE/qER) This Private De Minimis Settlement A~reement (this "Agree- ment",~ is made and entered into as of the Effective Date stated on the e~:ecu~ion page hereof, by and between the Ekotek Site PRP Com.mituee, ~- association of legal entities, also known as the Ekotek SLue Remediation Committee (the "Committee,,), and the party whcse name is set forth as the Settlin~ Party on the execution pa~e hereof ("Settling Party"). BACKGROUND The Petrochem/Ekotek Site (the "Site") is located at 1628 North Chicago Street, Salt Lake City, Utah. Since the early 1950's, the Site has been operated as a used oil refinery and chemical treagment/recyclin~ facility under various owners. The Commituee was formed for the purpose of ne~otiatin~ with the U.S. Enviro.-nnental Protection A~ency ("EPA,) in response to action taken by EPA re~ardin~ the Site pursuant to the Comprehensive Environmemtal Response, Compensation and Liability Act, as amended (42 U.S.C. § 9601 et ~e~.) ("CERCLA,). Specifically, the Commituee entered into an Adrain~strative Order on Consent, CERCLA-VlZI-89~25 (August 2, 1989) (the "Removal Order"), requir!n~ ~he Committee to conduct an emergency surface removal at the Site. The work required under the Removal Order has been completed. Subsequently, the Committee entered into an Administrative Order on Consent, CERCLA-VIII-92-21 (July !0, 1992) re~irin~ the Committee to conduct a remedial investigation an~ feasibility study (RI/FS) at the Site. That work is now unaerway. On October 14, 1992, EPA listed the Site on the National Priorities List. It is anticipated that, pursuant to CERCLA, upon compietion of the RI/FS EPA will require that approPriate remedial action be undertaken at the Site pursuant to the Remedial ~esi~n/Remedial Action process. The Committee contends ghat it has claims a~ainst Settling Party in 5he nature of cost recovery, contribution, indemnification or otherwise, includin~ but not limited to claims under 42 U.S.C. §§ 9607 and 9613(f), for response costs which have been or may be incurred in the future by the Committee with respect tc the Site. The Settling Party denies that it is liable to the Co---~-~itgee. The parties desire amicably to resolve without liti~a~iom the actual and potential claims between them arising with respect ~o the Site, and to do so have resolved to enter into this A~reement. Settlement A~reement ! (Used 0il) The Co~.ittee is willing to enter into this Agreement with of substances Se~ .... g Party on the understanding that the volume ~isDosed of or treated at the Site for which Settling Par~y is a potentially responsible party is 100,000 U.S. gallons or less and 5hat none of such substances consists of or contains PCBs or a hazardous waste listed at 40 C.F.R. Part 261, Subpart D (1992). AGREEiTEi~S For good and valuable consideration, the receipt and adequa- cy of which are acknowledged, the parties agree as follows: i. Semolina Party's Payments. ~ 1.1 Lum Pa ent. Within forty-five days after the Effective Da~e of this Agreement, Settling Party shall pay to the Committee an amount (the "Lump Payment") equal to the greater of (A) ~he product of (i) the number of U.S. gallons of Settling Party's Volume (as defined below) as shown on the execution page hereof, multiplied by (ii) U.S. $3.89; or (B) U.S. $2,000.00. 1.2 (a) Supplemental PaYment for Excess Volume. If the Committee reasonably determines, at any time, that Set~ling Party's Volume exceeds that stated on the execution page hereof by 2,500 U.S. gallons or more (the full amount of such excess over such Settling Party's Volume being .Settling Party's Excess Volume"), then Settling Party shall pay to the Committee, within thirty days after written notice from the Corm~ittee of its deie_~!nation of Settling Party's Excess Volume, an amount (a ,,Supplemental Payment for Volume") equal to the product of (i) the number of U.S. gallons, of Settling Party's Excess Volume (to the extent not taken into account in previous calculations of Supplemental Payments for Volume), multiplied by (ii) U.S. $3.89. (b) Rebate for ShorUfall Volume. If the Con~niutee reasonably determines, from information provided to it by Seu~ling Party that Settling Party's Volume is less than that stated on the execution page hereof by a~ least 2,500 U.S. Gallons (the a/uount of such shortfall under such Settling Party's volume being ,Settling Party's Volume Shortfall"), then the Cc~ittee shall pay to Settling Party, within thirty days after making such determination, an amount (a ,'Rebate for Vc!ume"), ec~al to the product of (i) the number of U.S. Gallons of Settling'Party's Volume Shortfall (to the extent not taken in~o account in previous calculation of Rebates for Volume), multiplied by (ii) U.S. $3.89. (c) Except as provided in this Section 1.2, Seit!ing Party's volume set forth on the execution page hereof may ncu be modified and is not subject to dispute by Settling Party. From and after the date of any adjustment resulting in a SuoD~ementa! Payment for volume or a Rebate for volume the defin~iion of Settling Party's Volume shall mean as adjusted. -2- 1.3 Supplemental Payment for Site CQ$~. If at any time the uuia! amount of costs and expenses incurred by the Committee for Site Liabilities exceeds U.S. $58,350,000 (the amount of such excess being an "Excess Site Costs Amount"), Settling Party shall pay to the Committee, within thirty days after written notice from the Committee ~o Settling Party, an amount (a "Supplemental Pay~nent for Site Costs") equal to a fraction cf the Excess Site Costs Amount, the numerator of which shall be Settling Party's Volume as of the date of the Committee's notice and the denominator of which shall be the aggregate nun%ber of gallons comprising (i) the Settling Parties' Volume, Settling Parties' Used Oil Volume a~d Settling Parties' Special Waste Volume as of the date of the Committee's notice under and as defined in all De Minimis Private Settlement Agreements to which the Committee is a party, and (ii) the volume, stated in U.S. ~allons, as determined by the Allocation Subcommittee of the Committee as of the date of the Committee's notice of all substances disposed of or treated at the Site that were (A) cwned or possessed by members of the Committee, and the disposal cr treatment of which, or the transportation for disposal cr treatment of which, was arranged by Members of the Committee, (B) accepted by any mennber of the Committee for transport to the Site, or (C) for which Comm/ttee member owners or operatcrs of the Site shall be deemed responsible. 1.4 Manner of Pawunentm. The Lump Payment, all Supplemental Payments for Site Costs and Volume, and all Rebates for Volume shall be raade by cashier's check or money order, delivered to the Committee or Settling Party, as appropriate, at its address stated on the execution page hereof. 1.5 Late Pa ents. If the Lumn Payment, any SupplemenTal Payments for Site Costs or Volume or any Rebates for Volume are not timely paid in full, all unpaid amounts shall bear interest until paid at the rate of twelve percent per annum. 1.6 DisPute Of Committee's Dete_~mination (a) The C6mmittee's determination of Settling Party's Excess Volume or Volume Shortfall, Excess Site Costs Amount, or the amounts of Supplemental Payments for Site Costs or Volume or Rebates for Volume, or the Com~nituee's determination that the~e is no Settling Party's Volume Shortfall following its review of information not in its or its consultants' possession on the Effective Date bf this Agreement, shall be conclusive and binding upon Settling Party unless, within ten days after any notice given by the Committee to Settlin~ Party of its determinaiion, Settling Party gives written no%ice to the Con~nittee of its disagreement with such dete~mination. (b) If Settling Party timely disputes the Cor~nittee's determination of Settling Party's Excess Volume or Volume Shortfall, Excess Site Costs Amount, or Supplemental -3- Pa~ents for Site Costs or ¥olume or Rebates for Volume, or the Committee's determination that there is no Settling Party's Volume Shortfall following its review of information not in its or its consultants' possession on the Effective Date of this Agreement, the parties shall thereafter cause their authorized representatives to meet and attempt in good faith to resolve such dispute. If the parties are unable to resolve the dispute within thirty days after the Settling Party's notice, or such longer per~ as they agree upon, the parties shall submit the dispute to a · uration in s~lt Lake City, Utah, pursuant to the comm=,~ial arbitration rules of the American Arbitration Association. In any such arbitration, the parties shall be entitled to conduct discovery to the full extent of, and in accordance with, the Federal Rules of Civil Procedure as then in effect. The arbitration decision shall be final and binding on the parties, and judgment thereon may be entered in any court having jurisdiction thereof. The party prevailing in the arbitration (as determined by the arbitrator or arbitrators) shall be entitled to an award of all of its attorneys' fees and costs incurred in the arbitration, and the other party shall bear all expenses of the arbitration. 2. Settlin~ Party's Covenant Not to Sue and Assignment. Settling Party covenants that it shall not bring or assert a~y suit or claim, including but not limited to any third-party suit or claim, in the nature of contribution, indemnification or otherwise, for or with respect to any Site Liabilities, against the Committee, any of its members, or any person or entity that enters into an agreement with the Committee in which the Committee covenants not to sue such person or entity with respect to Site Liabilities, or any of their respective directors, shareholders, officers, or employees. The foregoing shall not impair Settling Party's rights to bring or assert any action against the Committee for its failure timely to pay any Rebate for Volume, or otherwise enforce the terms of this Agreement. Settling Party irrevocably assigns and conveys to the Committee, with full power of substitution, all claims, causes of action, defenses, counterclaims and other rights, in the nature of contribution, indemnification or otherwise, it may have against any person or entity for or with respect to Site Liabilities. Notwithstanding the foregoing, such assigD/nent and conveyance shall not include or impair any rights of Settling Party to recover from its insurers the amounts of the Lump Payment or any Suppleme~ta! Paymentg for Site Costs, provided that such insurers waive all rights of subrogation, if any, with respect thereto. 3. Committee's Covenant Not to Sue. The Committee cove- nants that it shall not bring or assert any suit or claim, including but not limited to any third-party suit or claim, for or with respect to any Site Liabilities arising out of with respect to Settling Party's Volume, against Settling Party or any of its directors, shareholders, officers or employees. The foregoing shall not impair the Committee's rights to bring or -4- assert any ac~icn agains~ Settling Party for its failure to timely pay the Lump Payt..eh5 or any Supplemental Payments for Site Costs or Volume, or c~herwlse enforce the terms of this Agreement. 4. Commi~see's Indernitv. 4.1 Indem_nitv 7erm~. The Committee shall indemnify and id harmless Settling Party, its directors, shareholders, off_ ' ~s and employees from and against all suits and claims arising out of or with resuect to Settling Party's Volume, includin~ but not limited %o third party suits and claims, made or brought by persons or en%iti~s other than the Committee for or with respect to any Site L~=_bilities. 4.2 ~- Promptly upon becoming aware of any matter for which Settling ~arty is entitled to indemnification under paragraph 4.1, Settling Party shall give to the Committee detailed written notice of such matter, and shall thereafter promptly deliver to the Cc-~-ittee copies of all notices, corre- spondence, pleadings, docurmnts and written material relating thereto delivered ~0 Settling Par~y, or of which Settling Party becomes aware, and shall osherwise keep the Committee fully inforraed with respect to such matter. If any suit shall be threatened or commenced against Settling Party with respect to any such matter, the Commi=~ee shall be entitled, at its option, to assume the defense of such suit, at its sole expense, by counsel acceDtab!e to it iL its sole discretion. If the Committee sh~ll assume the defense of such suit, Settling Party shall cooperate fully with ~he Committee in such defense, and shall at its expense provile to the Committee such information and make availa~!e to the Committee such of its officers, employees and representati%-es as the Committee shall request. 5. Settlement with EPA. It is the intention of the parties that the Settling ~arty will receive contribution protecticn pursuant to 42 U.S.C. § 9613 and a covenant not to sue from EPA under 42 U.S.C. § 9622. To that end, Settling Party authorizes the Committee t~ execute on its behalf any Administra- tive Order, Consent Decree, or other instrument necessary, in the determination of EPA or tke Committee, to secure such covenant not to sue and contributicn protection for the benefit of SettlingoPar~y; provided, however, that no such action by the Co~m~ittee shall increase SeTtling Party's obligations beyond those staued in ~his Agreement or decrease the Committee,s indemnification obligations under Section 4 herein. The Committee shall exercise reasonable, good faith efforts to obtain contribution protection an~ covenant not to sue as the Committee obtains the same from EPA, but Settling Party acknowledges that EPA may nst agree ~o grant or provide such contribution protecticn or covenan~ not to sue on terms acceptable to the Committee and that, if ~ ' , -P~ does not do so, the terms, validity and legal affected. o breaches effect of this Agreement shall not be modified or Remedies. If either party (the "Breaching Party") its obligations hereunder, or if any of its representations or warranties herein are inaccurate or misleading, the Breaching Party shall ind~--mnify and hold harmless the other party (the .Nonbreaching Party"} from and against any and all loss, cost', damage, expense and liability (including attorneys' fees and costs) arising or resulting therefrom. In addition, the Nonbreaching Party may, at its option, terminate this Agreement without further liability or obligation hereunder, or suspend or cease performance of any of its obligations hereunder without terminating this Agreement. Without limiting the generality of the foregoing, if Settling Party is the Breaching Party, the Committee shall have no obligation to perform its covenants and obligations under Sections 3 or 4 and, if it has undertaken indemnification of Settling Party pursuant to Sect'ion 4, may cease and withdraw from such indemnification and recover from Settling Party its costs and expenses (including attorneys' fees and expenses of litigation) incurred in such indemnifiCation. The remedies provided in this section shall not limit or impair any other remedies available to a Nonbreaching Party under this Agreement, at law or in equity, and all remedies shall be cumulative. 7. Representations and Warranties- 7.1 Settlinc Party's Representations and Warranties. Settling Party represents and warrants to the Committee that: (a) Settling Party has r~de a complete and thorough investigation of all documents, information and sources that would be relevant or responsive to a reques~ for information by EPA pursuant to Section 104(e) of CERCLA, 42 U.S.C. § 9604 (e). Settling Party's Volume is not more than ~hat sen forth on the execution page hereof. (b) None of Settling Par5y's ¥olLune consists of or contains PCBs, or a hazardous waste listed at 40 C.F.R. Part 261, Subpart D (!99~). (c) Settling Party's execution, delivery and performance of this Agreement are within its power and have been duly authorized, and this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. If the Settling Party is not an individual, the individual executing this Agreement on i~s behalf has all requisite authority to do so. 7.2 Committee's ReDresentaticns and Warranties. The Committee warrants and represents to Setillng Party that: -6- (a> The L'~mp Payment and all Supplemental Pa}~ents for Site 3os~s -.d Vo!',~ne will be held by the Con=aittee in a separate acccun: desi=naued the "Ekotek Site De Minimis Settlement Fund,,, which shill contain only funds paid to the Committee by S tr~=~ ..... -. e--i-~= g=-~y and other parties entering into agreements w!th the Committee similar to this Agreement, and will be used by the Coruniuuee only for actual, direct costs of investigating or remedia~in= conditions at the Site, includinc but not limited to the cos:~ of removing, disposing or otherwise remediating waste materials, fees to technical consultants or contractors engaged in Site investigation or cleanup activities, and payment of EPA response costs. (b) The Cc-~-rnittee,s execution, delivery and performance of this A~reemsnt are within its power and have been duly authorized by its m=mb--s an t - =- , u LnlS ~greement constitutes he legal, valid and bindin= several b · · ~f each of its members, en~i .... =~_ , ~t not 3olnt, obligation .... ~=~-uxe against each of its members · n accordance with its termm. The individual executing this Agreement on behalf of the CDmmittee has all requisite authority uo do so. (c) The Cc---m-ittee was established by the Agreement for the PRP Cor~uiUuee of Potentially Responsible Parties for the Ekotek Facility among all Current members of the Committee (as amended, the 'Committee,s Administrative Agreement,,), to which all Current members of the Committee are, and all future members of the Committee will be bound. The current members of the CommZutee~are listed in E~xhibit 7.2(ck hereto. The Committee,s Adr/nistrative Agreement provides, and will at all times orovide, ~uong other things, (i) that the obligations and li~bi2ities of the Committee hereunder are the several, but not joint, oblL=ations and liabilities of each of the Current and future members of the Committee, and (ii) the manner in which such obligations and liabilities are allocated among such members for purpcses of their several liability hereunder. 8. Definitions. As used herein, the following capitalizef terms have the following mea-~ings: (a) "S - e~tz_ng Party's Volume,, means the volume, stated ~n U.S. gallons, of substances disposed of or treated at the Site t~at were (i) Owned or pOssessed by Settling Party, and the disposal or treatmeHt of which, or the transportation for disposal or treatment of which, was arranged by Settling Party, or (ii) accepted by Se~51ing Party for transport to the Site. (b) "Site Liabilities, means any and all losses, costs, expenses, fees, clairm, liabilities, damages, fines, penalties, indermuification payments and expenses, attorneys, fees, consultants, and ex-peru witnesses, fees expenses of litigation and court cost~ ( Osses ) arising out of or with respect to any of the following relating to the Site: (i) claims b}' ~he United States pursuant to Section 106 or 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607, or Section 7003 of RCP~A, 42 U.S.C. ~ 6973; (ii) claims, including stipulated penalties, by the Qn~ted States under any Administrative Orders on Consent, uLilateral Orders or Consent Decrees entered into with the C~mittee; (iii) claims for costs of any health assessment or health effectS study carried out under § 104(i) of CERCLA, 42 U.S.C. § 9604(i); (iv) claims by any person pursuant to Section 5L0 of CERCLA, 42 U.S.C. § 9659; (v) response costs under Section !27(-) of CERCLA, 42 U.S.C. § 9607(a) incurred by the Committee, =~ thereof, or any other person; and (vi) claims for any m_mber ........ ~ ...... erson that is or may be c.nt_~but~on . . .... not include ~:able for any of the foregoing. Site Liabilities do any Losses: (A) for common law claims, including but not l±mited to personal injury da~uages, damages to property, or toxic tort d~mages, asserted by persons or entities other than ~overr~nental authorities; (B) incurred by Settling Party with respect to the Site prior to the Effective Date of this A~reement; (C) for injury to, destruction of, or loss of n~tural resources arising from any condition at the Site resulting from a release of substances, including but not limited to the costs of assessing such injury, destruction or loss; (D) arising or resu!tin9 from a criminal act on ~he part of Settling Party; (E) incurred by Settling Party in responding to a re_cfuest for information by any governmental administrative a~ency; or (F) arising or resulting from Settling Party's failure to comply with any court order, judgment or decree. 9. Miscellaneous. 9.1 SuD~temen~al information. Sett!in~ Party shall ~romptly deliver to the Committee true and correct copies of all ~Dcument~ relating t6 Settling party's ¥olume or the constituents thereof or its activities with respect thereto or to the Site, tha~ i5 may discover, or which may come to its attention, at any time after the Effective Date of this Agreement. 9.2 InEe ration. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all other discussions, negotiations, representations, understandings and agreements betwe' the parties. This Agreemen= may not be modified except by written agreement executed by both ~art~es. 9.3 N t~. Ail notices under this Agreement shall be made in writing and transmi=~ed by U.S. certified mail, return receipt requested, to 5he adlress of the recipient set forth on the execution page of this Agre-~.ent, or to such other address as either party shall have specified ky written notice given in accordance with this paragraph. Ail nctices shall be effective upon the earlier of receipt or the da~e that is five days after mailing. 9.4 Bindin Effer . This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, assigns and successors. Wi=hour limiting the foregoing, this Agreement shall be binding upon each and every one of the current and future members of the Cc~nittee, severally, but not jointly, in proportion to their allocatisn under the Committee's Administrative Agreement of their obliga~ic~s and liabilities hereunder. No person or entity not a party heretc, or its successors, heirs and assigns, shall have any rights or benefits hereunder, as a third party beneficiary or otherwise. ~te individual executing and delivering this Agreement for the Committee is acting for and on behalf of the Committee only, and does not by doing so bind himself or herself individually or bind the Co~--4ttee member for which he or she is a representative; provided, hcwever, that this sentence shall not limit the several liability hereunder of such Committee member. 9.5 Jurisdiction. Actions by either party to enforce the terms of this Agreement r~y be brought in any court of competent jurisdiction in the State of Utah. The Committee, for itself and each of its current and future members, and Settling Party each submit to the personal juris!iction of such courts and waive any right to assert that venue in such courts is improper, or that such courts are an inconvenient fc_~m. 9.6 No Admissio~ of Liabilitv~ No Release of Non Partie___~s. This Agreement shall not constitute nor shall it be used as evidence of any admission of law or fact, or a waiver of any right or defense by the parties, except as exp=essly set forth herein. The parties do not admit to any fact or to any liability under, or violation of, any federal, state or local law, rule or regulation, and no part of ~his Agreement shall constitute such an a~mission. This Agreement is not intended to, nor shall it, release, ~ischarge or affect any rights or causes of action that either of the parties ~eretc may have against any other person or entity, except as otherwise expressly stated herein, and each of the parties reserves all such riFhts. 9.7 Governinc La~. This Agreement shall be governed by and construed in accordance ~ith the laws of the State of Utah, without regard to the confli~u of laws principles of the State of Uuah. 9.8 Counterparts. This A~reement may be executed in counterparts, and all counterparts executed shall constitute one agreement binding on all parties hereto. This Agreement has been executed as of the Effective Date s~ated below. ~LING PARTY C~ty of Tustin COM~ITTEE The Ekotek Site PRP Committee By: By: Name: Name: Title: Title: Jeffrey B. Groy Chairman, Ekotek Site PRP Committee SETTLING PARTY'S ADDRESS Attn: Telecopier: COMMITTEE'S ADDRESS Holland & Hart 555 17th Street, P.O. Box 8749 De_~ver, Colorado Suite 2900 80201 Attn: Denise W. Kennedy, Esq. Te!ecopier: (303) 295-8261 SETTLING PARTY'S VOLUSIE: 875 gallons EFFECTIVE DATE: 1~94. Ex ...... Petrochem/Ekotek Private E=_ M±nimis Settlemen5 Agreement 2. 3. 4. 5. 6. 7. 8. 9~ 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. · 21. 22. 23. 24. 25. 26. 27 28 29 3O 31 32 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. ~ommittee Members -s of Date of Acreemenl '"oco Oil Company _ckman Instruments, Inc. ~FM Er. ergy Products Corporation BHP Minerals International inc. Bridger Coal Company Chemcentral Corporation Cherry Textron, a Division of Textron, Inc. Consolidated Freightways Cyprus Thompson Creek Minin~ Company E.A. Miller Inc. (Miller HrDthers Company) Ekotek Inc. of Delaware Elixir Industries Federal Paper Board Company, Inc. FMC Corporation General Ceramics, Inc. (Tekform Products Division) General Electric Co. General Motors Corporation Hercules Inc. Independence Mining Co. (Freeport-McMoRan) Intermountain Power Agency Kennecott Utah Copper CorpTration Manville (Riverwood Int'l Corporations) Newmont Gold Company Northwest Enviroservice, I~c. Odyssey Transportation Pacific Power & Light (Brinier Power Plant) Parker-Hannifin Corporaticu Petrotomics (Texaco) Quaker State Minit-Lube, Raytheon Company Reichhold Chemicals, Inc. Ryder Truck Rental Tg Soda Ash, Inc. Transport Diesel Ser~'ice, inc. Union Oil of California Union Pacific Railroad Con~.-any Union Pacific Res6urces USPCI, Inc./PPM, Inc. USX Utah Power & Light Company Walt Disney Company Westinghouse CNFD Wheeler Machinery Co. (Lear Siegler, Inc.)