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
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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
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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
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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,
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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
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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
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(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;
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(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
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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.
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(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.
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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
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~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.)