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HomeMy WebLinkAbout1994 Ordinance No. 006ORDLiANCE NO. /4_. SERIES OF 1994 BY AUTHORITY COUNCIL 8JLLNO. 7 INTRODUCED BY COUNCIL MEM:.lER WIGGINS AN ORDINANCE APPROVING ENTERING INTO A SETl'LEMENT AGREEMENT CONCERNING LOWRY LANDFILL SUPERFUND SITE BETWEEN CHEMICAL WASTE MANAGEMENT, INC., WASTE MANAGEMENT OF COLORADO, INC., CITY AND COUNTY OF DENVER, SOUTH ENGLEWOOD SANITATION DISTRICT tl, SOUTHGATE SANITATION DISTRICT, GREENWOOD VILLAGE SANITATION DISTRICT, SOUTH ARAPAHOE SANITATION DISTRICT, CHERRY HILLS VILLAGE SANITATION DISTRICT, COUNTRY HOMES METRO. SANITATION DISTRICT, CHERRYVALE SANITATION DISTRICT, CHERRY HILLS SANITATION DISTRICT tl, CHERRYMORB SOUTH WATER AND SANITATION DISTRICT, CHERRY HILLS RANCHO WATER I: SANITATION DISTRICT, CHERRY RIDGE WATER I: SANITA'l'ION DISTRICT, CHERRY HILLS HEIGHTS, BOW MAR SANITATION DISTRICT, COLUMBINE VALLEY SANITATION DISTRICT, SHERIDAN SANITATION DISTRICT, VALLEY SANITATION DISTRICT AND ALL OTHER USERS OF THE SEWER LINES SERVED BY THE LITTLETON-ENGLEWOOD Bl-CITY WASTEWATER TREATMENT PLANT AND THE CITY OF ENGLEWOOD, COWRADO. WHEREAS, the partlu have been identified by the United Stalel Environmental Protect.ion Agency (USEPA) and the Colorado Department of Health u partieo who may have liability under the Comprehensive Environmental Response, Compenution and Liability Act. u amended, -42 U.S.C. f9601, u. KIi· (CERCLAJ, or the Resource Conservation and Recovery Act, as ame·.,ded, 42 U .S.C. f 6901, 1:1,. IIQ, (RCRA) in connection wit.'i the alleg,od generation, transportation, storage, treatment, disposal, or the release or threatened release ofbuardou1 IUbstancet a, defined by CERCLA CHau.rdoua Subatancea), at the Lowry Landfill Superfund lite located in Arapahoe County, Colorado. WHEREAS, it is 1pecifieally recocniud that at the preaent time, t: •• quantity and tozicity of IUbatances allegedly deposited by the City and others at the Sita are not known with certainty; that lne precise nature of the release or threat of rel-to be NDlldied bu not bNn determined· that the precise nature, ecope and coat of the remedial and.lor remOftl meuures to be undertl!ken will not be known for a number of years; that the USEPA ettimate1 that the ultimate response coats for the Sita could range ftom $50 million to an amount in aeeu of $4.5 billion; that the entire project could talte as long u 20 yeara or more; that the ..,.ta and eff'acti>eneaa of thoae actionn will not be known until the meaaure ■ are talten and the coets in curred; and that the full extent of any environmental or natural resource damace , or other human health or environm ental impacts, ii unknown at this time; and WHEREAS, all Partiea hereto recognize that 1ubsbmtial reaponse costs will or may be incurred in the future in connection with the Site; and WHEREAS, the Settle ment .l;,-eement ia baaed on the payment by the City ofless than a full volumetric share in ..,n,idenation of the Partie1' recognition that 1ignificant coats have been incurred by the City in connection with the performance of a Remedial Investigation/Feasibility Study concerning the Sita, that a full volumetric ■hare settlement would impose a aubtlantial burden on the City'• rate-payen, that the Cit, wu performini; a valuable publi: se,v,os in providing wastewater treatment facilitiu and service,, and that EPA'• municipal ,,.,lid wute settlement policy and legi■l otion under con1ideration in -l Concreu may have oome undetermined impact on the judicial impolition of OERCLA liability on the diapoeen ol domeatic 11wage alud,.; and WHEREAS, in licht ol tbe11 unique cin.-umatance1 Md litiption ri ak a, the Partie1 acne that the Settlement Agreement ia fair, reaoonable and in the public interest and that the ■eUlement i1 the n101t appropriate means of reaolvinc Denver'■ and Wute'a claim,, and or respondinJ to EPA'• claim• for remedial reapon11 coata; and WHEREAS, due to the "ncertaintiea, coeta, time and lepl i11oea auociatecl with lltiaation and/or admini ■trative pl'OCt",dinp dealing with the Site, the Partiea dealre to reoolve certain claima amonc the Part.ie■ relatinc to the Site that have been auert.ed or could be ueerted either now or in the future, relatinc to remedial activity, rupon11 coat and contribution claima under OERCLA, ezcept u provided for herein, RCRA or comparable federel or atate 1tatuta, federal or 1tate common law claim ■, u well u any claim■ which may be ftled by any other penon or entity in connection with remedial act.mty at or ari1in1 fl-om the Site (includi!:g, but not limited to, all claim ■ involvin1 remedial inveatiption1 and fealibility 1tudiea, records of decision, reaponN actions, remedial deaicn and remedial action under C~ROLA, comparable federal or state statute&, now in ell'eet or u any of the ume may be t mend.ed from time to time) 1ubject. however, to certain limitation■ as approved in the ~ment and to the reservation ■ of right■ and reopenera u provided in the Acreement; and WHEREAS, the compromise and ■e tt lcment contained in the Agreement w~ necotiated at arm1-lengtb and made in pod faith ; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS : Smilm..l. The City Council ol the Englewood, Colorado hereby appro-the Settlement Agreement concerning Low,y Landfill Superfund Site between Chemical Waste Management Inc., Waste Management of Colorado, Inc., City and County of Denver, South Englewood Senitation District fl, Southgate Sanitation District, Greenwood Villap Sanitation District. South Arapahoe Sanitation District, Cherry Hilla Villap Senitation Diatrict. Country Homea Metro. Sanitation Di&mct, Cherry Vale Sanitation Di ■trict, Cherry Hilla Sanitation District fl, Chenymore South Water and Sanitation District, Cherry Hills Rancho Water & Sanitation District, Cherry llidce Water llt Sanitation Di1trict, Cherry Hill■ Height■, Bow Mar Sanitation District, Columbine Valley Sanitation District, Sheridan Sanitation District, Valley Sanitation District and all other u■en of the aewer lines Nr,ed by the Littleton-Enelewood Bi-City Wastewater Treatment Plant and the City of Englewood, Colorado. &d.iJm2. Terms of the Acreement are generally as follows : 1. The Acreement defines "Claim" u meaning any civil or admini1trative proceeding or claim, order, demand, general or special notice, charge, liability, cl>ligation, action, 1uit, damage, judgment, loa1, cost.a, expense, fine, or penalty, includin1 but not limited to, attorney■' feea, expert■' feea, court coata and other coat■ of adr:1i ni•trative pror.eedinp or litiption. 2 . Dcmver'e and Waste':, Belenv of IJnbilitv . Except for specific limitations 1et forth in the Agreement Denver and Ws1te are released and covenant not to 1110 Settlor with respect to the following: any and all claims that Denver or Waste have asserted or could assert now or in the future, whether known or unknown , again st Sett.lor under Sections 104, 106, 107 or 113 ofCERCLA, under Section 7003 ofRCRA or -2- any comparable feclOTal or ltate lltatute, or implomontinc roau)ation■, now in efl'oct or 11 any of the l&Jllo may be amended t'rom limo to limo, or any .,.._,t or future claim, known or unknown , the colt ot which would count toward Covered Coate in connection with the allopd 19neration, tran1portetion, 1torage, trutm,,nt, ~i1poeal, or the releaae or thrt:tened releaae ot Huardou■ Sub■tanc:e■ at and/or from th• Site, includinr, but not limited to, Claim, relatin( to all reneral and/or apecial notice letter■, remedial inve1tigaUon1 and feuibility ltudiea, record• of decision, reaponae acUona , removal action,, remrdial dealcria and remedial actions, ovenight coat.a, and any other activity related to tho Site. 3 . Cgntrjbutjgn Bor. Denver and/or Waste agree to ezerciae reaoonable rood faith efforte to obtain a judicial order i:rantini: Settlor contn"bution protect.ion. City agree, to execute a •tipulation or other document neceuary in the determination of a Judge, Dem-er or Waete to aecure auch contn"bution protection for the benefit of Denver, Wute and Settlor; provided, however, that no 1uch document 1hall increaae SeUlor'1 obligation, beyond thoae 1tated in the AcreemenL In the event Denver and/or Waate fail to obtain a judicial order i:ranunr Settlor contribution protection or auch judicial order is held to be invalid, void, or othe,"Wiae unenforceable for any reason , the Agreement shall be voidabl• at the ■ole option and discretion of the City. If voided by the City, any ands!! :noniea paid by the City not already expended in accordance with the provisions of the Tnut Fund as described in the Agreement, plus income earned, shall immediately be refunded. 4 . Ngn -Cgyered CJejm• Notwithstanding anything to the contrary contained in the Agreement, this release and covenant not-to-sue shall not extend and shall not l,e construed to extend to the Non-Covered Claims : A . any claims made by the U.S. relating to the adequacy of Setilor's response t,., requests for information pursuant to CERCLA Section 104 (e); B . any Claims r e:ating to or arising out of the disposal of Hazardou s Substances by Settlor at any location other than the Site; C . any Claims not relating to the Site; D . any Claims made by or against SeUlor under or punuant to any Participation Agreements that City has sicried in joining the Lowry Coalition, the Lowry Landfill lk.ltlini.miA Group, or the Lowry Landfill Industrial Generator Group ; E . any Claims resul•fog from Settlor's violation of any order issued pursuant to CERCLA prior to ,he effective date of the Agreement; F . any contractual Claims by a third party against SeUlor; G . any criminal Claims against Settlor; H . any Claims for natural resource damages punuant to CERCLA Section 107 CO; or I. an Claims which may be asserted or filed by any third party or third parties in tort in connection with th e alleged generation, transportetion, storage, treatment or disposal ofHazardons Substances by Settlor at the Site, -3- includine, but not limit.cl to, any Claim, ari1in1 by virtue of nui11&11ce, tre1pau, ne,lipnce, 1trict liabilicy vr toxic tort.. 5. Serudtv for the Cootiouinr Ohlintfoo1 of Denver and Wuk . A . Al HCUricy for their continuine obliption1 Denver and Wute 1hall create an income-proclucine Lowry Landfill Supert\md Site Environm1,1tal Protection/Cleanup Tru1t Fund, which ,hall be dedicat.d to activitiea at or pertaining to the Site, including but not limit.cl to, ntlJ)ODM activities contemplated within the meanine of Section 101 (25) ofCERCLA, 42 U .S .C. §9601 (25), any other activities deemed neceaaary by Wute and Denver to addreu the release or threat of release of Huardoua Substancea at the Site, any activities necessary to comply with ~ny USEPA or other admini1trative or judicial urder concemine the Site or with any MtUemant ae,Hment entered into with respect to the Site, payment ofUSEPA reaponae coat■ relatine to the Site, any COit■ incurred to perform aclivitiea relatin& to the Site to protect public health, welfare, and the environment. All payment■ by City under the A,reement shall be aeposited in a segregated account within the Trust Fund in accordance with the Agreement. lncome includes o..~n11 on invested funds of the Trust Fund plus proceeds from the sale ofTrua~ ~nd purchased asset■. Income ahall be credited to City's account within the Trust Fund in proportion to the relalion ah ip it bears to the rest of the fund . B. Expenditure, from the Trust Fund shall be made only upon joint decision of Denver and Waste or to comply with clearly applicable requirements of any USEPA order or settlement agreement. C. To the extent pouible, City's Settlement Amount will not be expended disproportionately sooner than settlement monies received from other potentially responsible parties at the Site that are not ai&natories to the Agreement. City understande and agrees, however, that some PRPa have settlements with Denver and Waste that constrain the timing of expenditures from the settlement account■ for these PRPs. 6. Additional Considerntion - A . In con aideralion for the terms of the Agreement the City agrees to pay by wire transfer and within 45 days of the effective date of the Aereement, to the Custodial Financial Institution selected by Denver and Waste fo : the Trust Fund, the ,um ofSl,224,547.00, which aum ahall constitute the S,.ttlement°' Amount. If full payment is not paid by the date due, interest ahall be compounded annually and shall accrue on the unpaid balance at the annual rate of 2% ove r the Prime Rate. The initial rate shall be based upon the Prime Rate on the date that interest. starts to accrue. Fo r pu;poses of the Agreement, Prime Rate means the index called the Prime Rate wh ich is published from time to time in the Wall Street Journal listing of Money Rat.e s. If this index ceases to b e published in the Wall Street Journal, an alternate index or similar nature will be selected by Denver and Waste. B. ln co nsid •ration of the entry into the Agreement, City further agrees that so long as neither Denver nor Waste is in default ht.reunder, not to make any claims (except for Claims pertaining to insurance coverage) that relate to the Site, directly or indirectly, including, but not limited to challenging any -4- remecfu.: or removal me11ure1 1elected for or undertaken at the Site, or to 111ert any Claim or cause of action Ip.inst the United State,, Denver, Wute or any party which Waste has acned to Indemnify in connection with the Site. C . In the event, however, a Non -Covered Claim relating to the Site ii 111erted against City, City re1erve1 the right to uaert, In that action, counterclaim• and defen1es against the claimant, provided, however, that City may not usert any Claims undertaken at tne Site or any Claims Ip.inst Denver, Waste, or •"Y penon or entity which has settled its liability with Denver or Waste for response costs in connection with the Site. 7. Pecfonnanee under the Arreement. A . Upon the signing of the Agreement, City shall file a 1upplemental CERCLA I 10. (e) re1ponse with the USEPA duignating Waste u an additional party to who any notices iuued by USEPA should be sent. Upon request by USEPA, the State or other governmental entity, Wute lhall confirm its agreement to accept such notice. B. City agrees to forward to Waste all non-privileged material documents in City's posse11ion, custody or control relating to the Site within 60 days of the effective date of the Agreement. City lhall have an on-goift& obligation to forward to Waste all material documents concerning the "'te diacovc tod aft.er the effective date of the Agreement within a reaaon ·. !e time aft.er discovery . City shall have no obHgation to forward any such documents that are subject to existing confidentiality obligations with third parties unless, and until, such confidentiality obligations are terminated or waived or disclosure of such documents ii ordered by a court of competent juriadiction. City agrees to exert reasonable efforts to have any such confidentiality obligation• terminated or waived. City also shall have no obligation to produce documents that have been distributed to all memben of the Lowry Technical Advisory Group. C . City agrees, upon request of Denver or Waste, to reasonably cooperate with Denver and Waste in connection with other activities pertaining to the Sit.e; provided, however, that the failure to endorse, but not opposo, a position taken by Denver or Waste shall not be deemed a refusal to reasonably cooperate. D . City will provide to Denver and Waste within 60 days of the effective date of the Agreement, one copy of: ( i .) all information, except for information subject to attorney-client or work .product protection ; and (ii ) all information, axcept for informa~on subject to attorney-client or work .product protection, which is C\t.rrently in its posseaaion, or in the possession or control of City's officers, directors, employees, contractors, agents, attorneys, successors and uaign11 parents or affiliates which relat.es to the ownership, operation, generation, treatment, transportation, storage, disposal, nature or content of Huardous Substances allegedly generated, or transported to, treated, stored, or disposed ofby City at -5- the Site durinc the period 1966 to Aucult 12, 1980. Within 180 daya of the effective date of the A,reemenl, City lhaU pravida a dew1ed index of all privileged and work product doc ente, if any, withheld. Sett.lor qreea to preserve any ouch initially Mthheld documenta for 10 lone aa the Acreement ii in etrect. E. In order to obtain contribution protection from the U.S. punuant to 42 W.S .C. f9613 and a covenant not-to-■ue from USEPA under 42 U .S.C. f9622, Settlor qrees lo eucute on ill behalf an Administrative Order, Content Decree, or other in,trument nece ■sary in the determination ofUSEPA or Wa ■te, lo ■ecure ouch covenant not-lo-■ue and contribution protection for the benefit of Settlor; provided, however, ';hat no auch document ■hall increa ■e S.tllor'■ obligations beyond those stated In the Agreement. Denver/or Waste ■hall exen:ise reB10nable, cood faith efforts lo obtain from USEPA contribution protection and covenants not-lo-aue Denver and/or Waite obtain fro them ■elvea from USEPA, but Settlor acknowledae■ that USEPA may not qree lo grant or provide s uch contribution pro!< :tion or covenant not-to-aue on terms acceptable lo Denver and/or Waste, and that in such event the terms, validity and legal effect of the Agreement shall not be modifies of affected. 8. Bcmracnbtion pf Cih-, The volumetric component or the Settlemait Alnount is hued on the volume of municipal ■ewac,, al udce containinc Hazardous Subatancos alleeedJy contributed or transported lo the Sile by Settlor. In connection therewith, City represents that, lo the best of its knowledae as of the execution date of the Acreement that: A . City, after the exercise of due dilic,,nco, has provided lo USEPA all information (except for insurance information) requ~st.ed by USEPA pursuant lo Section 104 (e) ofCERCLA relating lo the Site; B. City, after the exerci ■e of due diligence, hBI provided information to USEPA and will provid,• lo Waste pursuant lo the Acreement all information that pertains lo the amount or relative toxicity or other hazardo115 effect.a of the Hazardous Substances allegedly contributed by the City to the Site; C . Except for def~r,se or contribution agreements with City's insure,<■); participatio:, agre,ments with the Lowry Coalition; the admini ■trative order on con ■ec.t ■tyled docket Nos . CERCLA Vlll-88-18, aa amended and ra ■tat.ed; and joint defense/litigation and forbearance/tolling/ADR agreements with other political subdivisions, City has ■icned no agreements and has made no commitment■ in connection with the Sile which obligate it lo undertake action or pay money ; and D . City has not: (i) tn.ns ported radioactive waste lo the Site; (ii) ■lored, disposed, or arranced for th,, disposal of radioactive waste at the Site; or (iii) otherwise contributed any n ,dioactive wa ■te lo the Site, As 111ed in the Agreement, radioactive waste means any wa ■te that ia aufficiently radioactive that ita di s posal is manB/;e~ or regulated by or ■ubject lo any regulations iSBued by USEPA or the Nuclear Regulatory Commiuion of the Low -Level Radioactive Waste Policy Ar.1endments Act of 1985. 9. Bepre:;eotation of De·ovcr end Weste -Denver and Waste represent that, to the best of their knowledge, e.s of the date of execution of the Agreement, they have provided all information in their possession lo USEPA that pertains lo the amount or relative -6 - t.ozicity or other bum-doua effect.a or the Haardoua Subet.ancoa allepdly contributed by the City to the Site. 10. Bt ■rvation e( Birbta- A. Nolhine in th• Agreement is intended to be nor shall be conatn,ed aa a release or covenant not to 1ue for any Claim or cause of action, past or future, in law or in equity, which any or the Parties may have apinst the other for Non- Covered Claim• or for any breach of the Ajrreement or the uerciaa or rie},ta to enforce the Ajrreement. B . Nothing in the Ajrres .aent i ■ intended to nleaoe any of Denver'■ or Waste'• claim.a , causes ,)! :.~l:ion or demanda in law CJT equity apin1t any person , firm, partnership, corporation, OJ'laniution, eovemmental entity or /11.ny entity other than Settlor for any liabilit;y auch entity may have ari ■ing out of or relatinc in any way to the pneralion, ■torap, treatment, handling, transportation, diaposal or releaaa of any Hazardoua Substance at, to , or from the Site. It is expreuly undentood and qreed thnt enforcement of the terms and conditions of the Ajrreement, and all rie},t.a relating thereto, ahall be strictly reaeYVed to Denver, Waste and Settlor and nothing contained in the Agreement &hall give or allow any claim or riaht ol action by any other !,er,:.on . It i& the expre•r intention of the Parties that any person other than J),nver, Waalc an.'.I Settlor ■hall be deemed to be an incidental be.neficiary only. C. In the even~ thP..I O:nrument.a not currently known to Denvor or Waste are discovered w4: •l, J. • n ■tnte that City generated, tran ■ported, arranged for -~li e diapo·,.,1 of,,,, o:ii •i rwiae contributed to the Site more than 1,000 galbns of waste other th ..:: MSW in uce■■ oflhe amount of the Base Wutc, Waste or Denver shall prvmptly notify City in writing of a c!etenuination of the amount of ■uch excess w&IIA!, and City shall pay a ■um that i ■ equal to the price per gallon paid in the Settloment Amount, calculated in 1992 Dollars, per gallon for each ■uc h g~lloo of Exce■■ Waau. With the exception of an llllocation of liability for disposal ol MSW, the liabilit;y for which shall be determined in accordance with the Aereement, Denver and W&IIA! agree thot any calculation of the amount of any 1uch Exce11 Waite will ntt attribute additional volume~ to Settlor by virtue of any re-interpretation of USEPA's 9/5190 "Protocols for Identifying and Determining Volumetric Contribution for Lowry Landfill (16) Pountially Respon1ible Parties ." D . In the event that: (i) a judgment ia entered which ii baaed in part upon Settlor'a contribution olMSW to the aite, (ii) due to Settlor'1 contribution of MSW, Settlor's allocation of ultimate liability is increased beyond its allocation for which compensation has already been paid by Setilor under the Agreement. 11. ~ A . Notwithatending any other provision in the Agreement Denver or Waste may seek additional payment from City if and when total Covered Coats at the Site exceed $319 million in the 1992 Dollen. B. Denver or Waste ■hall maintain, audit, and ve rify diabunements from th,, Trust Fund and records of Covered Costs in accord with generally accepted -7- accountinr praetieu con1i1tently applied. Reeonll of Truat Fund expenditure, and Covered Coats shall be available for in1pection and """ect lo audit and verifi,ation by City at any reuonable time, at City'1 IXPfJDII. Such record• 1hall be kept in a form and at a location available for reuon,ble acceu by City during normal b111ine11 houn. Reportl of 'i'nut Fund expendit.urea, Covered Colla and Trlllt Fund balancu 1hall be pro,,dod to City annually. C . If City'• liability is reopened under the Agreement, Denver's and w ,,_,,.·s sole remedy under the Agreement shall be addition11l payment(a). City agrees lo pay and be liable for .6347% of lot.el Covered Coat.. in .. ceu ofS3 ;9 million in 1992 Dollan (the City'• Reopener Share). Not.wit.hatandin-; ,.ny other provi1ion in the Agreement, in I.he event of any fa.'11',re by Ci,y,"' appropriate or budget atins in future years lo utiafy pa, ment of the City's Reopener Share, Denver ~nd Waste shall be Ntlaaaed m,m any and all further reaponlibilitiee, liabilities, covenantl and agretmentl conl.ained herein and may, at their sole option, I.hereafter treat this ,\greement u being void. If voided by Denver and Waste, the City shall be entit!ed :,o a setofl'in the full emount of any and all monies paid by I.he City, plus income earned, under the Agreement against any claims asaert.ed by Denver or Waste against the City. D . (i) Denver or Wute shall provide a formal notice lo City under the Agreement if and when Covered Coata exceed $319 million in 1!192 dollars. The notice shall apecify (1) the amount by which Covered Costs uceed $319 million in 1992 Dollan, (2) the location of the records specified of Covered Colla and the time when they are available for review b;,· U,e City; and (3) the payment sought from the City accompanied by an explanation of the calculations lo arrive at that paymenL (ii) City may request e_ redetermination of any of the item• set forth in the notice. During a period of 90 days fo!!owing City'• receipt of the notice, unleas e1tended by mutual agreement, City, Denver and Wute shall meet and cc.operate in good faith lo alt.empt lo reach agreement on any disputed items. At the end of the 90 day period Denver and/or Waste shall iuue a final notice lo City of Denver's and Waste'• final determination of any disputed item. City may challenge the Final Notice in court. (iii) Within 45 days cf receipt of Denver's and/or Waste'• Final Notice, City shall pay lo the Trust Fund its Reopener Share. In the event th4t City fails lo pay its Reopener Share within 45 days oft.he Final Notice, intereat ahall accrue en the amou:it of any unpaid balance at the annual rate of 2% over the Prime Rate. In the event City challenre• the Final Notice in court and obtains a final j~dicial determination in favor of City, Denver or Waste ,hall refund any Reopener Share paid by City in accordance with the final judicial determination within 45 daya . In the event Denver W8'te fail• lo refund any Reopener Share in accordance with 11 final ju "!oial determination in favor of City within 45 days, intereat ahah accrue on the amount of any unpaid refund at the annual rate of2% over the Prime Rate . E . It is the intent oft.he Parties lo comply with the proviaion• of Article X. Section 20 of the Constitution oft.he State of Colorado and other applicable law. Therefore, the Agreement ia not intended lo be a multiple fiscal-year cbli(l8tion of the City. Any future payments by City under the Agreement are .g . •.xp,e ■•ly subject to City'■ compliance with th, NQ\\i ,ement■ oCthe Co11 1t.itution and l■w ■ of the St■to o( Color■d.,, includine Cit;y'■ annual tpp-ropriat.ion and budeot prooeu, r-!or tcr tnt\mll'.lg 1uch oblipt.iona. Ndiine in th t Ae,eement ahall obl~-,,u, C"y to p■y ■ny futu,e ■um ■ th•t h ■ve not b,;on formal l,-bude•ted and appn,priat■d. F&',lure to appropriate or budeet 1um1 in fatu,e yr.an shall not be conltrueil., a breach of the Ae,eement, nor shall any ponall;io,, "'1 1ction1, tine■ or damaee• attach by reuon of City's failure to appl"lpriate or bt•deet any 1wn1 in future years. Denver', and Waate'a sole re1L•edy in the event City fail, to appn,priat■ or bud,et sum ■ in future yean shall be u ■et forth in the Ae,eemenl 12. No Admiasiao of I iohiJH ~-Tl .:• ~"'utiea agree that the Nttlement contained in the Ae,eement resolve ■ cli1puied ,; .. ,tnJ. The execution of the Ae,eement 1hall not, under any circumstances, be ,-,,natrued u an admiuion by Denver, Wute or Settlor of any liability with ,e, . .,ect to the Site, with respect to any material tont■ining or conat.itutinr. Haurdoua Substances allegedly contributed to the Site, or with respect to the clait'l ■ of any penon or entity. The Ae,eement ahall not constitute or be u ■ed aa evi~enc• or an admission of any liability or fact, or a conceuion of any question of I~-..., b,1 De·jwer, Wute or Settlor. 13 . No ReJeaae afNon·PBities . E1ce~t •~ otherwise provided in the Agreement, it is not the intent.ion ofWaate, Denver 111d Settlor to releue any persona or entities other than Waste, Denver and Settlor from any claims or liabilities. Except as limited by the Agreement, all rights to punu. 1uch partie, are expreaaly reaerved. 14 . Goycrnjng Law The Ae,eemcnt ■hall be construed accordin~ to the laws of the State of Colorado, regardless of Bl connict of law pn,viaior ., which may apply. hly and all act.ions at law or in equity which may be bn,aght by any of the Partie1 to enfo~• or interpret the Ai,eement shall be brought only in the St■te of Colorado. 15. S.ycrabj)jty. In the event that any pn,vision oft he Agreement is determined by a court to be invalid, the remainder of the Ae,eement shall not be all'ected thereby and ahall remain in force; pn,vided, however, that if the obligations of Denver and Waste aa set forth in the Ae,ument are held to be invalid , void, or oth•rwiae unenforceable for any reason, the Agreement shall be voidable at the 10le option and discretion of the City. If voided by City, any and all moniea paid by the City not already expended in accordance with the pn,visions of the Truat Fund, plus income earned, shall b:, immediately refw,ded. 16 . Succe!\SATR and Assigns Included Oft Pnr:tiea . Whenever in the Agreement Denver, Waste or Settlor i1 named or referred to, their lepl repreaentativea, 1ucce11&0ra and usign• ■hall be included and all covenant■ and agreements conteined in th• Agreement by or on behalf of any of them ■hall bin d and inure to the benefit of their respective succeason and assigns , whether so expressed or not 17 . .L:al.hil, If any legal action or other proceeding is brought for the enfo~em•nt of tl,e Agreement, or because of an alleged dispute, misrepresentet.ion or breach in connecticn with any of the pn,visions of the Agreement, the pr,vailing Party shall be entitled to r 1cover reasonable attorneys' fees and other litigation coats incurred i11 that action or proceeding, in addition to any other relief to which it may be entitled. 18. ~-The Parties do not hereby make any agreement to take any action that will prejudice City with respect to it■ insurers. -9 - 19. Modiflcntjoo g( the Arvmeot Neither the A,reement nor any provi.1ion1 hereof may be changed, waived, di1eh•rged or tenninated orally, but only by in1trument in writing ■iened by the Party again1t whom enforcement of the chance, w ■iver, dj1cl:tlrge or termination i• aoughL 20 . &des gf Cgp3tn1djop . The judicial rules of con ■truction requirinr or allowing an in strument lo be con1trued to Iha detriment of or qalnlt the interutl of the maker thereof shall not apply to the AgreemenL 21. Finni Atteement . The Agreement 1uperaedes all prior qreemenU, diacu■lion ■ or repreaenlationa, oral or wrjtten, with respect to the 1u1,ject matter hereof, and each of the Portiea slates that it has read each of the proviaiono of the Acreement and undentands the same. 22 . Couptfmarts The Agreement may be executed in any number of counterparts, all of which together shall constitute but on e original document. Sw.ilm..a. The City Council of the City of Englewood, Colorado hereby authorues the Mayor and the City Clerk to execute those other documents neceuary to complement or complete this transaction including indemnity agreements, and guarantee agreement with and by the City and County of Denver and Waste ManagemenL Introduced, read in full, and passed on fi r, .,g on the 7th day of February, 1994 . Published as a Bill for an Ordinance on the 10th day of February, 1994. 1994 . Read by title and passed on final reading on the 22nd day Published by title as Ordinance No42.._, Series of 19 ~ST: °UL tU v✓. fl d,H / Patricia H . Crow, City Clerk I, Patricia H. Crow, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and publi,hed by title a s Ordinance No . 4-, Series of 1994. ~cu.u ✓/(J_~F Patricia H. Crow -10 - ■IITTLIJIJIJIT AGUDD'l' THIS SETTLEMENT AGREEMENT ("Agre-ent") b entered into this __ day of ---~~ , 1994, by and among CDJIICAL WUTII Ulll.QIIJIBJIT, l»c., a Delaware corporation with an address of 3003 Butterfield Road, Oak Brook, Illinois 60521, DaTII DDQIJll!»T or COLOIIADO, Ill<:., a Colorado corporation with an address of 2400 West Union Avenue, Englewood, Colorado 80110, their predecessors, successors, assigns and affiliates, jointly and severally (collectively referred to herein as "WASTE"), the CITY UD COOIITY or DIDIVIIR, a municipal corporation organized and existing under and by virtue of Article XX of the Constitution of the State of Colorado ("DENVER"), and the CITY or UQLBlll",<>D, a political sub- division of the Stats of Colorado, its employee ■, agents, elected and appointed officials, successors and assigns ("CITY") and for the bene fit of south Englewood san .tation District fl, Southgate Sanitation District, Greenwood Village Sanitation District, South Arapahoe Sanitation District, Cherry Hills Village Sanitation District, Country Homes Metro. Sanitatio:-District, Cherryvale Sanitation District, Cherry Hills Sanita, .. -·:i District 11, Cherrymore South Water & Sanitation District, Cherry Hills Rancho Water & Sanitation Dist., Cherryridge Water & Sanitation District , Cherry Hills Heights, Bow Mar Sanitation Dist~ict, Columbine Valley Sanitation District, Sheridan Sanitation District and Valley Sanitation District and all other users of the sewer lines served by the Littleton-Englewood Bi-City Wastewater Treatment Plant, the ir heirs, successors and assigns (collectively with CITY referred to herein as "SETTLOR"). DENVER, WASTE and CITY are collectively sometiaea referred to herein as the "Part i es.• UCITALS A. The Parties have been identified by the United States Environmental Protection Agency ("USEPA") and the -:olorado Department of Pealth as parties who may have lia~ility under the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 ll.S .C. §§ 9601, li• u.g. ("CERCLA"), or the Resource Conservation and Recovery Act, as amended, 42 U,S .C. §§ 6901, tl, llSI, ("RCRA") in connection with the alleged generation, transportation, storage, treatment, disposal, or the release or threat.ened rel.,ase of hazardous substances as def i ned by CERCLA ("Ha.zat"dous Substances"), at the Lowry Landfill Supertund site located in Arapahoe County, Colorado .l isted on the National Priorities List, 40 C.F.R. Part JOO, Appendix B (herei"atter the "Site"). ~-It is specifically recognized that at the present time, the quantity and toxicity of substances allegedly deposited by the CITY ancl others at the Site are not known with certainty; that the precise. nature of the release or threat of release to be remed i ed has no '.: been determin ..i; that the precise nature, scope and cost of the remedial and/or removal measures to be undertaken will not be known for a number of years; that the \JSEPA estimates that the ulti•ata raapon•• cost• tor the Sita could range troa $50 aillion to an amount in axe••• of $4.5 billion; that the entire project could take •• long as 20 years or •ore; that the coats and aftactiv•n••• of tho•• actions will not be known until the ••asuras are taken and the coat• incurred; and that the full extant o! any anviro1aantal or natural resource d&111aga, or other hu.an health or anvii~onmantal impacts, h unlo1own at this time. All Parti•• hereto race<Jniza that aubatantial r•~p,.,n•• coata will or may be incurred int.he future i n connection with the Sita. C. This compromise and settlement is based on the payment by CITY of less than a full vol1111atr ahare in consideration of the Parti es' recognition that significant costs have been incurred by CITY in connection with the performance of a Remedial Investiga- tion/Feasibility Study conce~ning the Site, that a full volumetric share aattl .. ant would impose a substantial burden on CITY'• rate- payers, that CITY vas performing a valuable public aarvice in providing wastewater treatment facilities and services, and that EPA's municipal solid vast• settlement policy and legislation under consideration in Congress may have soma undetermined impact on the judicial iaposition of CERCIA liability on the disposers of domestic sewage sludge. In light of these unique circumstances and litigation risks, the Parties agree that the Agreement is fair, reasonable and in the public interest and that this settlement is the most appropriate me,ans of resolving Denve}:' 's and Wasta' s c l aims , and of responding to EPA' s claims !or remedial response costs. D. Due to the uncertainties, costs, time and legal issues associated with litigation and/or administrative proceedings dealing with the Site, the Parties desire to resolve certain claills among the Parties relating to the Site that have been asserted or could be asserted either now or in the future, relating to remedial activity, response cost and contribution claims under CERCIA, except as provided for herein, RCRA or comparable federal or state statutes, federal or state co1D1Don law claims, as well as any claims wh i ch may be filed by auy other person or entity in connection with remedial activity at or arising from the Site (including, but not limited to, all claims involving remedial investigations and feasibility studies, records of decision, response actions, remedial design and remedial action under CERCLA, comparable federal or state statutes, now in effect or as any of the same may be amended from time to time)~. ll2'.l!llll, to certain limita- tions as provid"d :.n Paragraph 4 herein and to the reservations of rights and reopeners as provided in raragraphs 10 and 11 herein. Th" compromise and settlement contained in this Agreement was negotiated at •=~-length and made in good faith. ' IIOW, TDREFORI, in consideration of the mutual cov enants a'ld agreeme nts contained herein ancl. for other good an v a luable consideration , the receipt and sufficiency of which is h ereby 2 acknowledged by DENVER ,, WASTE and SE'l'TLOR, the Partie ■ a9re ■ a ■ foll?Ws: 1. DUIIIITIOII o• CLr.IX, Wn■n uaed in thi■ A9reea■nt, "Claim• ■hall mean any civil or admin i ■trative proceeding or claia , ord■r, deaand, general or ■pecial notice, charge, liability, obligation , action, suit, damage, judgment, lo ■■, coats, expen ■e, fine, or penalty, including but not limited to, attorney ■' fee ■, expert ■' fees, court coats and ot her coats of administrative proceedings or litigation. 2. DUVBa•• AIID WUTB 1 1 ULIIUB o• LIABILITY . Except as ■pacifically limited by Paragraphs 4 , 10, and 11 herein and subject to the obligation ■ in Paragraph 7, DE NVER and WASTE hereby release and covenant not to sue SETTLOR with respect to tho following: any and all Clailu that DENVER or WASTE have a ■serted or could assert now or in the future, whether known or unknown, against SETTLOll under Sections 104, 106, 107 or 113 of CERCIA, under Section 700 J of RCRA or any comparable federal or state statutes or implementing regulations , now in effect or as any of the same may be amended from time to time, or any present or future claim, known or unknown, the cost of which would count -coward Covered Costs in connection with the alleged generation, transportation, storage, t r eatment, d i sposal , or the release or threatened release of Hazardous Substances at and/or from the Site, including, but not limited to, Claims relating to all general and/or special notice letters, remed i al i nvestigations and feasibility studies, records of decision, response actions, removal actions , remedial designs and remedia l actions, oversight costs, and any other activity related to the Site (hereinafter, collectively, the •covered Claims•). 3 . COIITllBUT.IOX D.R. DENVER and/or W~TE agras to exe,-ciae reasonable good faith efforts to obtain a judicial order granting SETTLOR c ontribution protection. CITY agrees to execute a sti pula- tion or other docUlllent necessary in the determination of a judge, DENVER or WASTE to secure such contribution protection for the benefit of DENVER, WASTE and SETTLOR; provided, however, that no such doclllllent shall increase SETTLOR' s obligations beyond those stated in this Agreement. In the event DENVER and/or WASTE fail to obtain a judicial order grantir.q SETTLOR contribution protection or such judici al. order is held to be invalid , void, or otherwise unenforceablfl for any reas on, this Agreement shall be voidable at the sole optJ.on and discretion of the CI TY. If voided by CITY, any and all monitts pa i d by the CITY not already expended in accordance with the provisions of the T:rust Fund as described in Paragraph 5, plus income earned, as d ef ined i n Paragraph 5 (a) below, .ahall immediately be refunded . e 4. JK>■-COVJIUD CL&DII. Notwith ■tanding anything to the contrary contained herein, thi ■ rel ■a ■• and covenant not-to-aue ■hall not extend and ■hall not be con ■trued to extend ':o the following (~areinatt•r collectively, the "Non-covered Claims"): (a) any Clab,s made by the United States relating t o the adequacy ot SETTLOR' • reapon ■e to reque ■t ■ tor information pur ■uant to CERCLA Section 104(•); (b) any Claims relating to or ari ■ing out of the disposal of Hazardo·~& Substances by SETTLOR at any location other than the Site; (c) any Claims not relating to the Site; (d) any Claims made by or against SETTLOR under or purs uant to any Participation Agreements that CITY has signed in joi ning the Lowry Coalit~on, the Lowry Landfill 12§ tlinilUll Group, or the Lowry Landfill Industrial Generator Group; (e) any Claims resulting from SETTLOR's violation of a ny order issued pursuant to CERCLA prior to the effective date of this Agreement; (f) any contractual Claims by a third party against SETTLOR; (g) any criminal Claims against SETI'LOR; (h) any Claims for natural re.source damages pursuant to CERCLA Section l07(f); or (i) any Claims which may be asserted or filed by any third party or third parties in tort in coMection wi th the alleged generation, transportation , storage, treatment or disposal of Hazardous Substances by SETI'LOR at the Site, including, but not limited to, any Claims arising by virtue of nuisance, trespass, negligence, strict liability or toxic torts. 5. IBCUllTY J'OR T1UI CONTilrOil!IQ OBLIGATIORB OJ' DDIVZR AJID IIUTI. (a) As security for their continuing obligations hereunder, DENVER and WASTE shall create an i~come-producing Lowry Landfill Superfund Si t e Environmental Prot ection/Cleanup •rrust Fund ("Trust Fund"), wb ~ch shall be dedicated to i\ctivities t,t or pertaining to the sjte, including but not limitt>d to, r •asponse activities contemplated wi th i n the meaning of Section l0 '.L (25) of CERCLA, 42 u .s .c. § 3601(25), any other acti vities dee~ed necessary by WASTE and DENVER to address the release or threat of release of Hazardous Substances at the Site , any activities necessary to comply with any USEPA or other administrative or judicial order concerning the Site or with any aettlement agreuent entered into with reapect to the Site, pay.ant of USEPA reaponae coats relating to the Site , and any costa incurred to perform activitiea relating to the Site to protect public health, wultare, and t.he environment. All payments by CITY under thia Agreement shall be deposited in a aegregated account within this Truet Fund in accordance with Paragraph J above. Income incluch,s earnings 01: inve ■ted fund ■ of the Trust Fund plus proceeds from the sa!e of Trust Fund purchased assets. Income, ;,a defined in this paragra:.:,il, shall be credited to CIT'i • s account ,,,i thin the '!rust Fund in proportion to the relationship it bears to the rest of the fund. (b) ExpenditureP from the Trust Fund s hall be made only upon joint decision of DENVER and WASTE or t o comply with clearly appl .'.cable requirement ■ of any USEPA or.der or settlement agreement. (c) To the extent possible, CIT'l's Settlement Amount will not be expended disproportionately sooner than settlement mon i es received f rom other potentially responsible parties (PRPs) at the Site that are not signatories to this Agreement. CIT'i understands and agrees, however, that some PRPs have settlements with DENVER and WASTE that constrain the timing of expenditures from the settlement accounts for these PRPs. 6. ADDITIONAL CONSIDIRATICN. (a ) In consideration for the foregoing , the CIT'i agrees to pay by wire transfer and within forty-five (45) days of the effective date of this Agreement, to the custodial Fin ancial Institution selected by UENVER and WASTE for the Trust Fund , the sum of $1,224,547.00, which sum shall constitute the •settlement Amount•. If full pay,,1ent is not pa id by the date d\'le, interest shall be compounded annual l y and shal l accrue on the unpaid balance at the annual rate of two (2) percent over the Prime Rate. The initial rate shall be based upon the Prime Rate on the date that interest starts to accrue. For purposes of this Agreement, "Prime Rate• means the i ndex called the "Prime Rate" which is published from time to time in The Wall Street Journal listing of "Money Rates." If this index ceases to be published in The Wall Street Jou rnal, an alternate index of similar nature will be selected by DENVER and WASTE. (b) In consideration of the entry into this Agreement, CITY further agrees that so long as neither DENVER nor WASTE is in default hereunder, not to make any Claims (except for Claims pertaining to ins urance coverage) that relate to the Site, directly or indirectly'; inc luding, but not limited to challenging any remedial or removal measures selected for or undertaken at the Site, or to aBsert any Cl a im or cause of action against the United States, DENV;;R, WASTE or · any party which WASTE has agreed to indemnify i n connection with the Site. CITY hereby assigns, 5 subject to subparagraph (c) b•low, to WASTE any and al.l Claims, d•t•n•••• right•, powers, privileges, and remedies ot CITY regarding th• Site (except tor Non-coverecl Claims 1ind Claims pertaining to insurance coverage) arising at law or in equity, including, but not limited to, contribution claims under CERCLA or other law, aqainat any person, firm, corporation, or entity. (c) In the event, however, a Non-Covered Claim relating to the SITE i ■ asserted against CITY, CIT Y reaerve11 the right to assert, in that action, counterclaims and defenses against the claimant, provided , ho1·1e,,er, that CITY may not aa ■ert any Claims which challenge any r e , ••dial or re■ov.al aoe ■urea selected or undertaken at the Sit~ o, any Claims against DENVER, WASTE, or any person or entity which has settled its liability with DENVER or WASTE f or respons~ co ■ta in connection with the Site . 7 , PllRPOJUClUICB UlfDER TBI8 AGU.E111!!11'1', (a) Up on the signing of this Agreement, CITY shall file a supplemer:tal. CERCLA § 104 (e) response with the USEPA designating WAS~E as an add i tional party to whom any n 'tices issued by USEPA shoultl be sent. Upon raq 1est by USEPA, the State or other governmental entity, WASTE shall confirm its agreement to accept such notice. (b) In addition to its obligations under Paragraph 7 (d), CITY agrees to fon,ard to WASTE all non-privileged material documents in CITY's possession, custody or control relating to the Site wi thi n sixty (60) daya of the effective date of this Agreement. CITY shall have an on-go i ng obligation to forward to Waste all aaterial documents concerning the Site discovered after the affective date of this Agreement within a reasonable time after discovery. CITY shall have no obligation to forward any suer, documents that are subject to existing confidantiality ocligations with third parties unless, and until, such co ~fidentiality obligations are terminated or waived or disc losure of such documents is ordered by a cour ~ o~ coapetent j uriP-di~tion. CITY agrees to exert reasonable ef f orts to have any such confidentiality obligations terminated or wa i ved . CITY also ~hall have no obligation to produce documents that have been distrihnted to all members of the Lowry Technical Advisory Group ("TAG"). (c) CITY agrees, upon request of DENVER or WASTE, to reasonably cooperate with DENVER and WASTE in co~nection with other activities pertaining to the Site; provided , however, that the failure to ~ndorse, but not oppose, a position taken by DENVER or WASTE shall not be deemed a refusal to reasonably cooperate . (U) CITY will provide to DENVER and WASTE within sixty (60) days of the effective date of this Agreement, one copy of: 6 (i) all infor11ation, except tor i nformation eubject to attorney-client or work-product protMction; and (ii) all information, except tor information subject. to attorney-client or work-product p r otection, which is currently i n its poasassion or in the possession or control of CITY'• officers, directors, employees, contractors, agents, attorneys, successors and assigns , parents or affiliates which relates to the ownership, operation, generation, treatment, transportation, storage, disposal, nature or content of Hazardous Substances alleged ly generated, or transported to, treated, stored, or disposed of by CITY at the Site during the period 1965 to August 12, 1980 . Within one hundred eighty (180) days of the affective date of this A~ -eement, CITY shall provide a detailed indt1x (equivalent to a •va .. ;lm" index) of all privileged and work product documents, if any , withheld. SETTLOR agrees to preserve an,1 such initially 11ithheld documents for so long as this Agreement is in effect. (e) In order to obtain contribution protection from the United States pursuant to 42 u.s .c . § 9613 and a covenant not-to- sue from USEPA under 42 U.S.C. § 9622, SETTLCR agrees t o execute on its behalf an Administrative Order, Consent Decree, or other instrument ne cessary in the determination of USEPA or WASTE, to ' secure suet, covenant not-to-sue and contribution protect i on for the - benefit of SETTLOR; provided, however, that no such document shall increase SETTLOR's obligations beyond those stated in this Agreement. DENVER and/or WASTE shall exercise reasonable, good faith efforts to obtain from lYSEPA contribution protection and a covenant not-to-sue for SET':.'LOR similar to the contribution protection and covenants not-to-sue DENVER and/or WASTE obtain for themselves from USEPA, but SETTLOR acknowledges that USEPA may not agree to grant or provide such contribution protect~on or covenant not-to-sue on terms acceptable to DENVER and/or WASTE, and that, in such event the tP.rms, validity, and legal effect of this Agreement shall not be modified or affected. 8 . UPRJ:Sl!IIITATIOJIB OF CITY, The volumetric component of the Settlement Amount is based on the volume of municipal sewage sludge (MSS) [as defined i n USEPA Policy on Municipal Waste, 54 Fed.Reg. 51071 (December 12 , 1989)) containing Hazardous Substances allegedly c ontributed or transported to the Site by SETTLOR, i.e ., 5,590,928 ~allons (the "Base Waste."). In connection therewith, CITY represents that, to the best of its knowledge, as of the date of executio·. of t his Agreement, that: (a) to USEPA requested the Site; CITY , after the .xercise of due diligence, has provided all information (except for insurance information) by USEPA pursuant to Section 104(e) of CERCLA relating to 7 (b) CITY, after the exerci ■e of due diligence, ha• provided infol'lllation to USEPA and will provide to WASTE pur■uant to thi• Agreement all infol'lllation that pertain• to the amount or relative toxi city or other hazardous effect>' of the Hazardou ■ S •Jb ■tances a llegedly contributed by the CITY to the Site; (c) Exc•pt for defen ■e or contribution agreement• with CITY's in ■urer(s); participation agreements with the Lowry Coalition; the administrative ordQr on con■ent ■tyled docket Nos. CERCLA VIII-88- 18, as "'"'ended and restated; and joint defense/litigation and forbearan~e/tolling/ADR agreements with other political sub- divisions , CITY has signed no agreements and has made no coaaitments in connection with the Site which obligate it to undertake action or pay money; and (d) CITY has not: (i) ~ransported radioactive waste to the Site; (ii) stored, disposed, or arranged for the disposal of radioactive waste at the Site; or (iii) otherwise contributed any radioactive waste to t.ne Site. As used in this Agreement, radioactive waste means any waste tha t is sufficiently radioactive that its disposal is managed or regulated by or subject to any regulations issued by USEPA or the Nuclear Regulatory commission [including, but not limited to, regul ations pursuant to the Atomic Energy Act of 1954 (10 C.F.R. Parts 1-199) or the Low-Level Radioactive waste Policy Amendments Act of 1985]. CITY recog.:izes and agrees that the representations set forth in thls Paragraph 8 are material and ,,hat, but for such representa- tions, the PartieF would not have entered into this Agreement. The Parties' agreement as to the materiality of the representations set forth in Paragraph 8 shall not be construed to limit the ma teriality of any other provisions of t h is Agreement. 9 • UPRESQITATIOH OP DIHVBa UlD 08TB. DENVER and WASTE represent that, to the best of their knowledge, as of the date of execution of this Agreement, they h~ve provided all infvl'lllation in their possession to USEPA that pertains to the amount or relative toxicity or other hazardous effects of the Hazardt,us Substanc.es all'!gedly contributed by the CITY to the Site. 10. JU.SBRVATIOH 01' RIGHTS. (a) Noth i ng in this Agreement is intended to be nor shall be construed as a release or covenant not to sue for any Claim or cause of action, past or future, in law or in equity, which any of the Parties may have against the other for Non-Covered Claims or for any breach of this AgreE!ment or the exercise of rights to enforce this Agreement. ('0 ) Nothing herE>in is intended to release any of DENVER'S or WASTE's claims, causes of actlon or demands in law or l:quity against any person, firm, partn, ·ship, corporation, organization, 8 governmental entity or any entity other than S!:l'TLOR tor any liability ■uch entity may have arising out ot or relating in any way to the generation, storage, treatllent, handling, transpor- tation, disposal or relea ■e of ani• Hazardous Sul:>stance at, to, or from the Site. It i ■ expres•lY understood and agreed that entorce - -nt of the tenu and conditions o :~ this Agreement, !!nd all rights relating thereto, ■hall be strictl)' re ■erved to DENVER, WASTE, and SETTLOR and nothing contained i n th :\s Agreeman ~ ahall give or allow any claim or right of action by any other person. It i ■ the expre~s intention of the Parties that any ?~rson other than DENVER, WASTE and SETTLOR shall be deemed to be an incidental .beneficiary only . (c) In the event that documents not currently known to DENVER or WA'3TE are discovered which demonstrate that CITY generated, tran ■ported, arranged for the <lisposal of, or otherwise contributed to the Site more than :L , 000 gallons of waste other than MSW in excess ot the amount c,f the Base Waste, WASTE or DE i/VER ■hall promptly notify CITY in writing of a determination ot the amount of such excess waste ("Excess Waste"), and CITY shall pay a ■um that is equal to the price per gallon paid in the Settlement Amount, calculated in 1992 Dollars (as determined by the Producer Price Index tor Industrial Commodities of the Bureau ot Labor Statistics), per gallon for each such gallon of Excess Waste. With the exception of an allocation of liab 'lity for disposal of MSW, the liability for which shall be determined in accordance with Paragraph l 0 (d), DENVl:.R and WASTE agree that any calculation of the u,ount of any such Excess Waste will not a ttribute additional - volumes to SETl'LOR by virtue of any re-interpretation of USEPA's September S, 1990 "Protocols for Iden':ifying and Determining Volllllletric Contribution for Lowry Landfill (Section 6) Potentially Responsible Parties.• (d) In the event that: (i) a judgment is entered which is based in part upon SETTLOR's contribution of MSW to the site, (ii i due to SETTLOR's contribution of MSW, Si:TTLOR's allocation of ultimate liabil i ty is increased beyond its allocation for which compensation has already been paid by SETTLOR under this Agreement, and (iii) e ither: A. there is a s e parate allocation of liability for MSW contributions to the Site; or B. SETTLOR' s proportionate volumetric share on the ~ffective date of this Agreement is increased; then SETl'LOk, and neither DENVER nor WASTE, shall be -.responsible :inder this Agreement for payment of SE'ITLOR' s increased liability as a result of SETTLOR's contribution of MSW to the Site. 9 11. JISOPSDa (a) Kotvithatanding any other provision in this Agreement, DENVER or WASTE may ~aek additional payment from r.ITY if and when total Covered Costa at tha Site exceed $319 million in 1992 Dollars (aa deter111ined by the Producer Price Index for Industrial Co111111oditie11 of the ~ureau of Labor Statistic•). For purposes of this reopener provision, the term •covered Costs" means: (1) thos e costs incurred at the Site v .bich are coats of r,:,sponse or coat~ of removal or re~edial action as referred to in Section 107 (a) of CERCLA and which are not incon,Jister,t with the National Cont .'.ngency Plan under CERCLA; (2) Any legal fees or costs directly related to securing title or enforcing contracts relating to purchase, con ■truct !.<>n, and/or operation o i~ land, equipment, or facilities in connection with re~oval, remedial or other actions to investigate, prevent, contain, or clean up contamination at the Site; (J) Reasonable costs up t.:i $10 mil.lion incurred in the purchase of access or land for the pur;,ose of imposing long- term land and/or water use controls so as to minimize int,:,rference with or maximize effeC'tiveness of remedial measures undertaken at the Site; (4) Reasonable transaction costs (including legal and consulting fees) vhich are related to addressing efforts by the United States or the State of Colorado to select or modify the response action or which are related to defending the s~lected response action: (5) Reasonable costs incurred i n t onnection with activities necessary to comply with any government administrative or judicial order pertaining to the release or threatened release of a _Hazardous Substance, pollutant or contaminant; (6) Administrative c:011t11 and investment fees incurred in connection with the T::ust Fund and/or the adll\~nistration of •gree~~nts relating to the Site, including, but not limited ,~, Settlement and Indemnification Agreements; and (7) Any costs voluntarily approved by Settlor. The term •covered Costs" excludes natural resources damages. (b) ~ENVER or WASTE shall maintain, audit , an1 verify disbursements f rom the Trust Fund and records of Covered Coste in .accord witt, generally accepted '!<:<::ounting practices consiste ntly applied (or if records of 'DENVER's Covered Costs, reasonable and sound account i ng practices commonly practiced by municipalitie~). lO .Recordr; of Tru•t Fund expenditure• and Covered Co•t• •hall be available for inapeci.~on and •ubj•ct to audit and verification by A CITY at. any r•a•onabl• tiae, at CITY'• expen••· Such recorda •hall W be kept in a form and at a location available for raa•onabl• access by CITY during nor.al business hour•. :Report• of Tru•t Fund expenditures, Covered Costs and Tru•t Fund balance• shall be provided to CITY annually. (c) If CITY'• liability is reopened under this paragraph, DENVER' a and WASTE' s sole remedy under this Agreement shall be additior.al payment(s) in accord with this subpar~graph. CITY agraea to pay and be liable for • 63471 of total c,,verad Costa in excess of $319 million in 1992 Dollars (as determined by the Producer Price Index for Industrial Co111111oditiea of th• Bureau of Labor Stati•tics) (tbe "CITY'& Reopener Share•). Notwithatanding any other provi•ion in this Agreement, in the event of any failure by CITY, to appropriate or budget sums in future years to satisfy payment ".. the CITY Is Raopener Share' DENVER and WASTE a.hall be r~leased from any and all further responsibilities, liabilities, covenants and agreements contained herein and may, at their sole option, thereafte~ treat this Agreement as being void. If voided by DENVER and WASTE, the City shall be entitled to a setoff in the full amount of any and all monies paid by the CITY, plus income earned, under thi• Agreement against any c l aims asaerted by DENVER or WASTE against the CITY. (d) ( i) DENVER or WASTE shall provide a formal notice to CITY under thi• Agreement if and when Covered costs exceed $319 A million in 1992 dollar•. The notice shall specify (l) the amount W by which Covered Costa exceed $319 million in 1992 Dollars, (2) the location of ehe record• specified in subparagraph (b) hereof of Covered Costs and the time when they are available for review by the CITY and (3) the payment sought from the CITY accompanied by an explanation of the calculations to arrive at that payment. (ii) CITY may request a redetermination of any of the items set forth in the notice. During a period of ninety (90) days following CITY's receipt of the notice, unless extended by mutual agreement, CITY, DENVER, and WASTE shall meet and cooperate in good faith to attempt to reach agreement on any disputed items. At the end of that ninety (90) day period DENVER and/or ~ASTE shall issue a final notice to CITY of DENVER's and WASTE's final determination of any disputed item ("Final Notice"). CITY may challenge the Final Notice in court. (iii) Within forty-five (45) days of rece'.pt of DENVER'S and/or WASTE's Final Notice, CITY shall pay to the Trust Fur.d its Reopener Share. In the event that CITY fails to pay its Reopaner Share within forty-five (45) days of the Final Notice, interest shall accrue on the amount of any unpaid balance at the annual rate of two (2) percent over the Prime Rate. In the event CITY challenges the Final Notice in court and obtains a final 11 judicial detenainati on in favo r of CITY, DENVER or WASTE shall refund •n:i-'Aeopener Share paid by CITY in accordance with th• tinal j :1dicial •l•t•rmination within 45 day ■ thereof. In the event DENVER o r WASTE ·:ails to ref••r.a any Reopener Shara in accordance with a final judiciol dr,t~rmination in tavor of CITY within 45 days thereof, interest shall accrue on the U10unt of any unpaid refund at the annual rate of two (2) percent over the Prime Rate. (e) It is the intent of the Parties to comply wi th the provisions of Article X, Section 20 of the Constitution of the state of Colorado and other applicable law. Therefore, this Agre-ent i ■ not intended to be a multiple fiscal-year obligation of the CITY. Any future payments by CITY under thi ■ Agre-ent are expressly subject to CITY's compliance with the requirements of the Constitution and laws of the State of Colorado, including CITY's annual appropriation and budget process, prior to incurring such obligations . Nothing in this Agreement shall obligate CITY to pay any future sums that have not been formally budgeted and appropriated. Failure to appropriate or budget sums in future years shall not be construed as a breach of this Agre11111ent , nor shall any penalties, sanctions, fines or damages attach by reason of CITY' s failure to appropriate or budget any sums in future years. DENVER's and WASTE's sole remedy in the event CITY fails to appropriate or budget sums in future years shall be as set forth in subparagraph (c) of this paragraph 11. 12. 110 AOIU88IOJI OP LIUILI'l'Y. ThEl Parties agree that the settluent cont ained in this Agreement resolves disputed claims. The execution of this Agreement shall not, under any circumstances , be construed as an admission by DENVER, WASTE or SETTLOR of any liability with respect to the Sita, with respect to any material containing or constituting Hazardous Substances allegedly contributed to the Site, or with respect to the claims of a ny person or entity. This Agreement shall not constitute or be us~1 as evidence or an adm i ss i on of any liability or fact, or a concession of any question of law, by DENVER, WASTE or SETTLOR. 13. IPPICTIV! DATZ. This Agreement shall be effective upon the last date of execution by the Parties. 14. 110 RBL&ASI OP IIOJI-PUTIIS. Except as otherwise provided in this Agreement, it is not the intention of WASTE, DENVER and SETTLOR to release any persons or enti t i es other than WASTE, DENVER and SETTLOR from any Claims or liabilities. Except as limited by Paragraph 6 (b), all rights to pursue such parties are expressly reserved. 15 , IU8Cll.LA!IBOO8 PROV,1,8IOIJl8. (a) Governing Lav . Th i s Agreement shall be construed according to the laws o f the State of Colorado, regardless of any conflict of law provisions w_hich m~y apply. Any and all actions at 12 law or in equi -ey which ·ny be brought by any or the Partiu to enrorce or intt!rpret t.hla Agreement shall be brought only in the State or Colora,10. (b) aeveral>ility. In the event that any proviaion ot this Agreement ia determined by a court to be invalid, the reaainder ot this Agreement •h~ll not be artected tli~reby and ahall remain in force; provided, however, that it the obligations ot DENVER and WASTE aa aet rort.h in Paragraph 2 are held to be invalid, void, or otherwise unenrorceable tor any reason, this Agreement ahall be voidable at the sole option and discretion ot the CITY, If voided by CITY, any and all monies paid by the CITY not already expended in accordance with the provisions ot the Trust Fund, plus income earned, shall be im1Dediately refunded. (c) IIUcceaaora u4 Aa,.igna Inclu4e4 u Jlartiea. Whenever in this Agreement DENVER, WASTE or S!TTLOR is named or rererred to, their legal representatives, successors and aasign ■ ahall be included and all covenants and agreements contained in this Agreement by or on behalf of any of them ahall bind and inure to the benefit of their respective successors end assigns, whether ■o expressed or not. (d) Legal Pee ■• If any legal action or other proceeding is brought ,for the enforcement of this Agreement, or i;!!!'!au ■e of an alleged dispute, misrepresentation or breach in connecti~n with any ot the provis ~~ns of this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys' tees and other litigation costs incurred in that action or proceeding, :i:n addition to any other relief to which it may be entitled. (e) In ■urance. The Parties do not hereby make any agreement or take any action that will prejudice CITY with respect to its insurers. (f) Jlaracµaph Bea4ing ■. The headings of pax~grapbs of this Agreement are for convenience of reference only, are not to be considered a part hereof , and shall not limit or otherwise affect any of the ten,s hereof. l (g) xo4itication of the Agreeaent. Neither this Agreement nor any provisions hereof ~ay be changed, waived, discharged or ten,inated orally, but only by instrument in writing signed by the ?arty against whom enforcement of the change ,'waiver, discharge or ten,ination is sought. (h) Rule• of Construction. The judicial rules of construc- tion requiring or allowing an instrument to be construed to the detriment of or against the interests of the maker thereof shall not apply to this Agreemen~. 13 (i) l'ill&l Aqreeaant. Thi ■ Aqre-ent ■upersede ■ all prior agre ... nt ■, di ■cu■■ion■ or repre ■entat.ion ■, ciral or written, vith re ■pect to the ■w,ject aatter berer.,t, and eacb ot the Partiea ■tatea that it ha ■ r,ud each ot the provi ■ion ■ ot tbe Aqre ... nt and undera tanda the ■aae. ( j ) couterpart■• Thi ■ Agreement aay be executed in any nlllllber ot counterpart ■, all ot which together shall con■titute but one ori ginal document . (k) Xotice ■• Notices effectuating the r.equirement ■ of this Agreement shall be directed as follows : TO nan: and Waste Manag ■11ent, Inc. Attention: General Counsel 3003 Butterfield Road Oak Brook, Illinois 60521 Facsimile Number: (708) 218-1553 Waste Man a gement , Inc . Attn: seni or Env i ronmental Counsel 2400 West Union Avenue Englevooo, Colorado 80110 Facsimile Number: (303) 797-6907 TO DBJ1911R: and Director of the Department of Environmentr,l Se:cvices 216 16th Street, Suite 1500 Denver, Colorado 80202 Facsimile NUllber: (303 ) 640-323~ i::i ty Attorney 14 37 Bannock Street, Suite 353 Den v er, Co l orado 80202 Facsimile Number: (303) 640-2890 TO CITY: City of Englewood Attn: City Attorney 3400 s. Elati Eng l ewood, Colorado 80111 Te l ephone Numbe r : (303) 762-2320 Facsimile Number ·: (30 3 ) 789-112 5 14 All noticu or deaanda required or peraitted under thia Agre...nt ahall In in vriti119 and ahall be eftective ii aent by A regiatered or cer,;itied aail, poata;e prepaid and return receipt .• requ-ted. Notice ahall be de .. ed received at the time hand delivered or within torty-eight (48) houra atter the ti.me ot aailing. Any Party aay al ■o give notice by facaimile tranaaiaaion, which ahall be ettective upon contiraation by the Party ■ending the Notice that aucb tacaiail• tranaaisaion haa been r eceived by the Party to whom the Notice has been addreased. Nothing in this paragraph shall prevent the giving or notice in auch aanner as prescribed by the Federal or Colorado Rule~ of Civil Procedures for the service ot legal pt ~cess. Any Party may change its addreas by giving written notic••· r• 1'ITD88 WDUOI', the undersigned Parties have executed this Agreement designated on their respectiv, signature pagea. Each Party, and the individual (s) executing this Agreement tor each Party, represent and wa r rant that the individual executing this Agreement has bean duly authorized to enter into thia Agreement by, and to bind the Party on who ■e behalf such individual is executing. CBEKICAL WAST>:. .aHAGEHElff, DIC., a Delaware corporation By: ______________________ _ Its: _________________________ _ Dated: ________________________ _ WUTI ODGIDJIT or COWUOO, DIC., a Colorado corporation By: _____________________ _ Its : ________________________ _ Dated : ________________________ _ CITY UD COtrJITY OJ' DIDIVJ:a, a municipal corporation organized under the Constitution of the State of Colorado By: Daniel E . Muse Its: Attorney for the City and County of Denver Dated: 15 CI'l'Y or IDIGLSWOOD, a political subdivision ot the ijtata ot Colorado By: _____________________ _ Its: _________________________ _ Dated: ________________________ _ ATl'EST: City Clerk APPROVED AS TO FORM: Ci ty Attorney 16 Date February 7, 1994 INlllA TI:D BY STAFF SOURCE COUNCIL GOAL COUNaL COMMUNICATION Agenda Item 11 k City Attorney Rick DeWitt, City Attorney NIA Subjed Lowry_ Agreement IS.SUE/ ACTION PROPOSED Approval of an Ordinance authorizing the settlement agreement between the City of Englewood, Waste Management ;ind Denver. BACKGROUND In 1984 the City was identified as a PRP at Lowry for disposal of sewage sludge. In 1986 the City received a special notice letter. The original liability for the City was p .1aced at approximately $274 Million. The City commenced a vigorous defense of its acti~ities at Lowry . To address the underlying federal legislation which included the City's sewage sludge with commercial toxic chemicals, the City has participated in the Lowry Coalition, and numerous legislative activities concerning Super Fund and municipal liability including, American Communities for Clean-Up Equity, participating in EPA Super Fund Study Groups including hearings on the municipal regulations. After a denial of coverage by the City's ins•.irance carriers the City of Englewood commenced litigation for coverage underneath its insurance policies . At the present time this matter is on appeal to the Court of Appeals. During the course of the foregoing activities the City has attempted to resolve its liability within the requirements of Super Fund. The City had deposited at Lowry approximately 4 .3% of the industrial waste on a volume basis. 'The Qty has vigorously contended that first it should not have been nam~d as a PRP and aecondly that the City's sludge is not toxic under the definition of Super Fund and thirdly that if there ia toxicity it is de minimis. With respect to these issues the Courts have not been favorable to other communities and it does not appear that the Courts in the 10th Circuit (Colorado Federal Court) would be favorable to the City of Englewood . The City has attempted to resolve its matters with the EPA and has invoked the assistance of its Congressional delegaton and the entire Colorado delegation with EPA. The EPA 's last offt.: for settlement was approximately $6.5 Million with uncapped future liability and without other "protections". The City has reviewed the matter and negotiated with the City and County of Denver and Waste Management . The reason for negotiating with Denver and Waste Management is that they have assumed a managing role at Lowry and have commenced the cleanup of Lowry and continue the cleanup at Lowry (the time span is planned for 63 years). As a result of long and arduous negotiations with the City and County of Denver and Wa;;te Management, Englewood has agreed to several key issues among others. The first is that Englewood 's liability would be approximately 0.5 % and that this percentage would be Englewood 's cap if there is a failed remedy . H there is a failed remedy that failure would be only after 319 Million expenditures had occurred at the site. There have been pre,~ous discussion!' regarding the documents that m~e up the agreement with Denver and Waste Management, in large measure these discussions have occurred A with the attorney client pri,~lege. It is intended that this confide.ntia!ity be maintained in • the process of this recommendation. · Settlement negotiations have been re,iewed with Stu Fonda, the Director of Utilities throughout the pr0<.~>ss from its inception . cm ATTORNEY ANALYSIS AND PROS AND CONS OF O17TIONS REVIEWED Our basi c options are to settle or to litigate. Cost of settlement is :J> •. · • \547 .00, which is less than th e cost of attorneys fee s, engineers and Lowry Coalition to date . The Pros of this settlement are: It relieves the City of significant liability. Failure to settle this matter would subject the City to joint and several liability. This liability could conceivably be the entire cleanup cost, i.e . $319 Million. I would like to point out that I do not believe that the City would at any time be responsible for the entire cost; however, the costs would be significantly higher than if we do settle . 'Cle costs of settling is more than likely less than the cost of litigation. This Settlement is significantly less than other communities are paying on a percentage basis. It is m y understanding that other communities such as those on the East coast and in California are payi ng in the excess of 20",1, of the total rosts of cleanup at a site. Our situation provides for a cost of cleanup of approximately 0.5 %. The 0.5% takes into account A what Englewood believes to be the toxicity of our sludge at Lo wry . W The next issue is that cleanup w ill conclude the transactional costs . Although we are continuing the liti ga tion with respect to insurance covera ge, our funds will now go the cleanup effort. This settlement is done in the spirit of metro wide cooperation . The Cons of this settlement are: The City is paying for clean·Jp that i' does not feel that it has cause::!. Our sludge is an award winning sludge and whrn applied under a benefici al reuse program it has been successfully recy cled in the agricultural setting. We are being penal ized for merely d oing w hat the la w allowed in 1979. The City may face litigation with third parties that may subject Englewood to additional liability . The City does have to pay 1.2 million . The City may escape liability altogether if the law is changed or if the court ch:mged the appli c.a tion of the law in thi s case . The Cons are essentially the same cons faced by m ost PRP 's including th ose who are settling and have settled with Denver and Waste Management. RECO !\l\lE:'-/DATION OF HtE cm ATTORNEY The City Atto rney recom:·nends th e resolution of portion of Lowry lia bili ty for the pro re as ons se t forth above, in ad di tion we bel ieve that this is economic al ly justifiable for th e City . The City can continu~ its ph!l osop hical argument in the political arena if interested to do so . We do plan continued involvement with ACCE at a lowe r le vel of cost. We will continue with the insurance litiga tior, to reduce our costs . FINANCIAL IMPACT Sl,224,5-17 .00 from the appropriated Sewer Fund these fun ds are available .