Loading...
HomeMy WebLinkAbout1992 Resolution No. 092('o·nlracl-/Vo. S5'·92 RESOLUTION NO . 'tl.__ SERIES OF 1992 A RESOLUTION APPROVING AND AUTHORI ZIN G THE EXECU TION OF A SETTLEMENT AGREEMENT BETW EEN HEWLETT-PACKARD COMPANY , INTERNATIONAL BUSINESS MACHINES CORPORATION AND THE LOWRY CO ALITION RELATI NG TO THE REMOVAL OF HEWLETT PACKARD AND IBM FROM THE LOWRY COALITION . WHEREAS, the Lowry Coalition was formed Sepuomber 30, 1988, with the execution of an agreement entitled "Lowry Landfill Sha llow Ground-water and Subsurface Liquids Op erable Unit Ag,-eement''; and WHEREAS, the Lowry Coalition is an unincorporauod association comprised of the follo wi ng entities: Adolph Coors Company; Arnn , Research & Development, Inc.; Asamera Oil Inc.; Conoco , Inc .; Hewlett-Packard Company ; International Business Machines Corporation ; City of Lak ewoo d; Littleton -Englewood Bi-City WaslA!water Tr eat me nt Plant: Metro Wa ste wate r Reclamatio n District; Sundstrand Corporation ; Synuo• Chemicals, Inc .; the Gates Rubber Com~any; the S.W. Shattuck Chemical Company, Inc .; a nd WHEREAS, Hewlett-Packard and IBM have enlA!red into Settlement and Indemnification Ag,-eements with Chemical Waste Management, Inc., Waste Managem ent of Colorado, Inc. and the City and County of Denver pursuant to which Hewlett-Packard and IBM will be indemnified by Waste Management of Colorado , Inc. for claims identified in the Ag,-eement as "Covered Claims"; and WHEREAS, Hewlett-Packard and IBM now wish to compleuo their obligations under the Participation Agreement and th e Coa lition has agreed to the amicable removal of Hewlett- Po ckard and IBM from the Lowry Coalition pursuant to the terms and conditions included in this "Settlement Agr ee ment Among Hewlett-Packard Company lnuornational Business Machines Corporation an d the Lowry Coalition And Its Members; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO , THAT : ~-The City of Englewood hereby approves the "Settl,ment Agreement Betwee n Hew lett-P ackard Company, International Bu si ness Ma chines Co rporation and the Lowry Coalitio n And It s Members ". ~ That th e Mayor and the City Clerk are authori zed to sign and atuost in ord er to exec ute such AgTeement ADOPTED A.''1D APP RO VED this 2nd day of November, 1992 . AT TE ST : / . I ·:'/ 7 li<u'.-' ~-t- Patricia H. Crow, Cay Cle rk I, Patricia H. Crow, City Clerk for (M. City of Englewood , Colorado, hereby certify the ebove is a true copy of Resolution No . .:zb.Series of 1992 . ~ /' I «<4-: k1«'. ilur Patricia H. Crow SETI'LEMENT AGREEMENT AMONG IIEWLETI'-PACKARD COMPANY, INTERNATIONAL BUSINESS MACHINES CORPORATION AND THE LOWRY COALJ'llON AND ITS MEMBERS nns SETII.EMENT AGREEMENT II entered Into effective Ibis 30 day of July, 1992, by and between Hewle1t-Paciard Company, a Callfomia Corporation, its successor and assigns ("1-!ewlell-Packard"), In1erna1ional Buslnc s.s Machines Corporation, a New York corporation, its succcs.sors and assigns ("IBM"), and the Lowry Coalition', and each of the members of the Lowry Coalition other than Hcwle1t •Packard and IBM, (all of which other than Hewlen -Packard and IBM are hereaner coUcclively referred 10 as the "Coalition"). All of the entities ar e hereinat'ter collectively referred 10 u the "Parties". RECITALS A The Pan ies have been Identified by the United States Environmental Protection Agency ("EPA") and the Colorado Department of Health C CDH") as panics which may have liability under the Comprehensi~e Environmental Response, Compensation and Liability Act, u amended, 42 U .S.C. U 9601, ~ KlL ("CERCL\"), in connection with the alleged generation, iransponation, storage, treatment, disposal, or the release or threatened release of poilu1an11, contaminants or hazardous substances as defined by CERCLA, at the Lowry Landl!ll Superfund site located in Arapahoe County, Colorado listed on the National Priorities Lisi, 40 C.F.R. Pan 300, Appendix B (the "Site"). B. The Panics have all entered into the Second Amended and Restated Administtative Order on Consent, Docket No. CERCTA Vlll-88-18 "In the Maner of: Lowry Landli.ll Shi iw Groundwater and Subsurface Liquids and Deep Ground-waler Operable Unit Rei:...1 dial Invcs1igation/Feaslbility Study/ies" with EPA which was executed by EPA on Septembe r 27, 1989 ("AOC'). 1 The LOWRY COALmON is an unincorporated association comprised of the foUowing enti ties: Adolph Coors Company, a Colorado corporation; Amax Research & Development, Inc., a Delaware corporation, f/k/a Amax Extractive Research & Development, Inc .; Asamcra Oil (U.S.) Inc., a Montana corporation; C onoco, Inc ., a D elaware corporation; He,. •~ti-Packard Company, a California corporation; International Business Machines Corporation, a New York corporation; City of Lakewood, a political subdivis ion of the Stale of C olorado; Li1tlcton-Englcwood Bi-City Wastewater Treatment Plant, whic h is owned and operated by th~ Cities of l.i1tlcton and Englewood, which arc political suboivisians of I.he St a te of Colorado; Metro Wastewater Reclamat ion District, a political subdivisio n of the State of Colorado ; Sundstrand Corporation, a Delaware corporation; Syntex Chemicals, Inc ., a Delaware corporation; The G a tes R ubbe r Company, a Colorado corporat io n; and The S.W. Sh att uck Chemical Ca mp a ny, In c., a Colorado corporatio n. As used herein , the term Lowry Coalit io n and the termi Hewlett-Packard and IB~! shall mean in add itio n to the abov e named ent ities, its or their officers, directors, employees, agents, predecessors, suc cesso rs, assigns a nd affiliate s. C. Each of the Parties entered into an •IP'eement e!fective September 30, 1988 A entitled "Lowry Landfill Shallow Ground-water and Subsurface Liquids Operable Unit W, Agreement" (the "Participation A&reement") either by execution of the Agreement, by amendment to it or by new member addendum pursuant to which the Panics agreed that the goal of the Coalition was to ensure that the work required by the AOC was performed, and the Parties agreed to an interim allocation of expenses for the activities supported by the Coalition. D. Hewlett-Packard auJ IBM have entered into Settlement and Indemnification Agreements with Chemical Waste Manapment, Inc~ Waste Management of Colorado, Inc. and the City and County of Denver punuant to which Hewlett-Packard and IBM will be indemnified by Waste Management of Cc:lorado, Inc. for claims identified in the Agreement as "Covered Oaims". E. Hewlett-Packard and IBM now wish to complete their obliptions under the Participation Agreement and the Coalition bu agreed to the amicable removal of Hewlett- Packard and IBM from the Coalition punuant to the terms and conditions included in this Settlement Agreement and Parasraph numbered 14 of the Panicipation AgreemenL NOW, TiiEREFORE. in consideration of the mutual covenants and qreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acial:::.#led9ed by Hewlett-Packard, IBM, the Coalition and each of its members, the Parties asree u follows: 1. Hewlett-Packard and IBM Payments to the Lowry CoaJhion . a. Hewlett-Packard and IBM shall pay $100,000 and $30,000, respectively, into the Lowry Coalition Escrow Account within IS days from the date that this Settlement Agreement is executed by all of the Parties. tt The Coalition shall apply the payments provided for in Subparagraph I.a. to activities related to the AOC and Participation AgrccmcnL c. The payments arc a full and final settlement between Hewlett-Packard, IBM and the Coalition and each of the members of the Coalitio n with regard to Hewlett- Packard's and IBM"s obligations under the Participation Agreement and the AOC,.including all monies that could be assessed by the Coalition or EPA against Hewlett-Packard and IBM and the performance of any and all work that could be required or authorized by the Coalition or EPA under either the Participation Agreement or the AOC. 2. Definit ion of Claim. When used in this Settlement Agreement a "Oaim" shall mean any civil or administrative claim, order, demand, charge , liability, obligation, action, suit, damage, judgment, loss, cost, expense, fine or penalty, including but not limited to, attorneys fees , court costs and ot her costs of administrative proceedings or litigation. . 2 . 9 3. Release and Coyc;naos Not 10 Sue from the Coalition and Each of jts Me mbe rs to..lkl!!l~tt-Pack.ard and IBM . The Coalition and each member of the Coalition hereby releases Hewlett-Packard and IBM from and covenants not to sue Hewlett-Packard and IBM for any and &II Covered Oaims u defined in Subparagraph 3.a. that the Coalition or any of its membcn have uaened or could aucn now 1Jr in the future against Hewlett-Packard and/or IBM. L "Covered Claims" are claiIIIJ for work performed or to be performed under the AOC or the Panicipation Agreement and for monies paid or to be paid under the Participation Agreement or the AOC, including but not limited to : (1) Costs incurred or to be incurred by the Coalition for any work performed by any contractor or consultant of the Coalition. (2) Costs to perform any Work, Work Expansion, or Additional Work within the meaning of the AOC and the Participation Agreement (3) Stipulated penalties. (4) Ovenight costs of l'.':PA and the State of Colorado. (5) Third part"/ tort claims that relate to work performed or to be P<-• .... rmed by or on behalf or the Coalition after the date e r this Settlement Agreement. (.6) Any work or other activities whatsoever performed by or on behalf of the Coalition punuant to either the AOC nr the Participation Agreement "£overed Oaims" include su ch claims under CERCIA, including Section 107(a) response cost claims and contnbution claims under Section 113((), Section 7003 of ·the Resource <;onservation and Recovery Act, 42 U.S .C. § s 6901, ~ ("RCRA"), or any comparable federal or state statute or under any theory of federal or state common law now in effect or as any of them may be amended from time to time ( except to the extent a cla im is spe cified as a Non-Covered Oaim in Subparagraph 3_.b.) b. "Non-Covered Oaims" include the following : (1) O a ims relatin g to the Site whi ch are not Covered Qaims as d efined by Su bparagraph 3.a .(1)-(6). (2) Q aims at locatio ns other th a n the S ite . . 3. (3) Expenses incurred by an individual Member or Special Member which are not shared costs. (4) Third party tort claims which arise from an act or omission of the Coalition or any of its agents prior to the date of this Settlement Agreement; (5) Third pany tort claims not related 10 work performed by or on behalf of the Coalition at the Site. (6) Natural resources damages claims relating to the Site; c. Each of the Special Members (es defined in the Partic;petion Agreement) which is a member of the Coalition hereby releases and covenants nc,. to sue Hewlett-Packard and/or IBM as to any indemnification from Hewlett-Packard and/or IBM to it pursuant 10 Paragraph 25 of the Participation Agreement relating to demands by EPA for any assessments, penalties, or other demands for money which are in excess of the conmbutions of the Special Members descnbed in Section X:XX.1. of the AOC. 4. Release and Covenant Not to Sue from Hcwfett-Packard and IBM to the ~-Hewlett-Paclcard and IBM hereby rclease each of the members of the Coalition from and covenants not to sue any member of the Lowry Coalition for any and all claims that Hewlett-Packard and IBM have asserted or could assen against any of them now or in A the future under CERCLA, including Section 107(a) response cost claims and contnbution - claims under Section 113(f), Section 7003 of RCRA, or any comparable federal or state statute or under any theory of federal or state common law now in effect or as any of them may be amended from time to time, for work performed or to be performed by or on behalf of the Coalition and monies paid or to be paid by the Coalition under the AOC or the Participation Agreement; provided that, this release and covenant not to sue from Hewlett- Packard and IBM does not include claims descnbed as Non-Covered Oaims in Subparagraph lb. 5. Waiver of Rights bv Hewlett-Packard and IBM. Hewlett-Packard and IBM waive any rights they have to the foUowing: a . Any refund of any contnbutions they have made 10 the Lowry Coalition Escrow Account or to the Lowry Coalition Adm inis trative Account referred to in Paragraph 15 .7 of the Participation Agreem~nt; b . Any amount to which the y ~ould become entitled in the case currently pending in the U .S. Distric t Court of the D is tri ct of Colorado entitled In re Stora ge, Technol ogy C orporation. et al., Civil Action No:89-2 -1322; provided, however. th e Coalition agrees th at the percentage share of Hewlett-Pac kard and IBM in the C oalit ion as of the effect ive date of th is Se ttlement Agreement of an y amount whi ch the Coalition re ceives . 4. either by judgment or in settlement or the cue shall be counted by the Coalition and each or its members as an amount pursuant to P aragraph 3 for which the Coalition and its memben release and covenant not to sue Hewlett-Packard and IBM and for which Hewlett- Packard and IBM shall receive a credit punuant to Paragraph 7. c. Any reallocation or costs among the memben or the Coalition because or conmbutions Hewlett-Packard and IBM have made to the Coalition under the Participation Agreement or the AOC. 6. No A!siiJ!ment by Hewlett-Packard and IBM ofC!aims . Hewlett-Packard and IBM agree thal they shall not assign to any third party any rights or claims that they have arising from the Participation Agreement to recover response costs under Section 107(a) or CER(lA or for contnbution under Section 113 of CERa.A or pursuant 10 Section 7003 of RC."RA or any comparable federal or state statute or under any theory of federal or state common law from or against the Coalition or any member of the Coalition. 7. Contnbutjons of HewJctt-Packard and IBM. Consistent with Paragraph 15 .6 of the Participation Agreement, the Panics agree that, as between themselves, all financial contnbutions made by Hewlett-Packard and IBM to the Lowry Coalition Escrow Account, including the payment provided for in Paragraph numbered 1, shall be a credit to Hewlett- Packard and IBM in any final apportionment of costs at the Site. 8. Removal in Good S1andjng. a. Upon the payment by Hewlett-Packard and IBM of the settlement amounts in Paragraph 1, the Coalition and each of its members acknowledge and agree that Hewlett-Packard and IBM shall be amicably removed from the Coalition as members in good standing which have fully and satisfactonly completed their obligations unde r the Participation Agreement. The Coalition agrees that it will no longer refer to Hewlett- Packard and IBM as members or the Coalition. b. Hewlett-Packard and ILM shall take whatever action they deem ne cessary to withdraw from the Storage Technology case referred to in Subparagraph 5.b. and to notify EPA of their withdrawal. c. The Parties acknowledge that Hewlett-Packard and IBM intend to petiti o n EPA to be removed from the AOC, and the Coalition and each of its members agree that it wi1I not object to the withdrawal by Hewlett-Packard and IBM from the AOC. 9. Ce rtifi catio n to EPA. The C oali tio n agrees to provide EPA, Hewle1:t-Packard an d IB M with whateve r ce rt ification EPA requ ire s th a t H ewlett-Packard and IBM have paid th e ir share o f costs of the work a nd other activi t ies to be performed un der th e AOC p ursua nt to t h e Participatio n Agr eement. . 5 . 10. Do cument} Cc:J.lrutloc Creat ed by th~ <":!aliliQn. a. Hcwlett-Pa.:l:ard and IBM acknowledge their continuing obligation pursuant to Paragraphs 21 a nd 22 of the Panicipation Agreement to keep cenain information privileged an d/o r confidential that they received pursuant to the Participation l .:ceemenL b. Hewlett-Packard and IBM agree that within 45 days from the date of this Settlement Agreement and in accordance with Paragraph 22 of the Participation Agreement, they shall return all documents and other physicai L~i :~rials which the Coalition has provided to them ; provided, however, tli c Coalition agrees thar Hewlett-Packard and IBM shall have access to all documents ancl other physical mate.tials that Hewlett-Packard and IBM received from the Coalition and which they returned to the Coalition in accordance with this Paragraph 10.b. in the event that Hewlett-Packard and/or IBM arc panics in any judi-.ial or administrative proceeding relating to the Site, including litigation by or against its insurance c.irriers or by or against any potentially rcspo11•.~,e party at the Site or by or against the United St.ates, EPA or the State of Colorado. 11. No Admjssjon of Ljabjljty. The Parties to this Settlement Agreement do not admit to any liability or to any allocation of responsibility with respect to the Site or with respect to any waste, including any containi11 3 or constituting hazardous su~ a'.cpdly contnbuted to the Site, because of the execution of this Settlement Agreement, the AOC. or the Panicipation Agreement or the payment by any of them of contnbutions under the A Participation Agreement or this Settlement Agreement. This Settlement Agreemer.t shall - not constitute or be used in any judicial or administrative proceeding by or against any party hereto or by any third . party as evidence or an admission of any liability or fact or a concession of any question of law by the Parties, nor will it be admissible in any proceeding except in an action to seek enforcement of its terms. 12. Effective Date . After this Settlement-Agreeme nt has been executed by all of the Parties, it 1hall be effect ive on July 30, 1992. 13. No Release of Non -Partjcs. The Parties hereto do not intend to release any other persons or entities not panics to this Settlement Agreement from any claims or liabili ties and all rig hts to pursu t: su ch panics arc expressly reserved. 14. QQQ.q Fai th ScttJcmcnt. The compromise and settlement co ntain ed in this Settlement Agrecme1n ·:.'ll! negoti a ted at arms le ngt h and in good fa ith . 15. Ad ditional Provisio ns. a. Gove mj ng Law . Th is Sett lement Agr eemen t sh a ll be cons trued accordi ng 10 the laws of the State of Colorado, rega rd less of any con ni ct of la w provis ion s which may apply. An y and a ll acti o ns at law or in equity whic h may be brough t by any o f -,5 . the Panics to enforce or interpret this Scu !crr.cnt Agreement shall be brought only in the State of Colora<,o. b. Sc:verabjlity. In the event that any prOYision of this Settlement Agreement is llctcrmined by a aiurt to be invalid, the remainder of thla Settlement Agreement shali not be affected thereby and shall remain in force; provided, however, th&t if the obligations of the Coalition as set forth in Parallfllph 3 arc determined by a court to be invalid, void, or otherwise unenforceable, the entirety of this Settlement Agreemem shall be null and void and the amounn paid by Hewlett-Packard and IBM which have not been spent shall be refunded. c. Succcsson ao<'I Assigns Included as Partjes. Whenev-:r in this Settlement Agreement one of th-.! Parties hereto is named or referred to, i.hc legal represent, rives, successors and permitted 11.i$igns of the party shall be includ~'li, and all covenants ,md agreements contained in this Settlement Agreement by or on behalf of any of the Parti.:s hereto shall bind and inure to L'te benefit of their respective successors and permitted assigns, whe:hcr expressed or noL d. Legal Fees. If any legal action or other proceeding is brought for the enforcement of this Settlement Agreement or because of an alleged di~putc, misrepresentation or breach in connection with any of the provisions of this Sei-Jcmcnt Agreement, the successful or prevailing Party shall be entitled to reCOYCr reasonable attorneys fees and other costs incurred in the action or proceeding, in addition to any other relief to which it may be entitled. e . ~. The Parties do not hereby make any agreement or take any action that will prej udice any Party with respect to its iI,surcn. f. . Paragraph Headjngs. The headings of paragraphs in this Settlement Agrceme.nt arc for convenience of reference only and arc not to be considered a part of iL 'fbey shall not funit or otherwise affect any of the terms included herein. g. Modification of the Agreement. Neither this Settlement Agreement nor any provisions in it may be changed, waived, di~chargcd or terminated crally, but only by instrument in writ h•g signed by the Party against which enforcement of the change, waiver, discharge or terminav.on is sought. b. R ulcs of Construction. The judicial rules of construction (i) requiring or allowing a:i instrument to be construed to the detriment of or against the interests of the maker thereof; and (ii ) requiring or a llowing an indemnificat ion provision to be construe d to the detriment of or agai nst the interests of the Pany being indr.mni ':ed shall not apply to thi s Sett lement Agreem e nt. . 7 - i. Entire Aacecment. This Settlement Agreement, comistin g of A Paragraphs 1 through 15 inclusive , constitutes ·.he entire undentandiq of the Panics and - 1upe!1edes all prior contemporaneous L.(.Q"cem ents, discussions or representations, oral or written, with respect to the subject matter lncludcd in it and each of the Parties states that it bu read thl? provisions of this Settlement ~'!::t Md undcntands them. ,. Counterparts. This Settlement Aartement ~ ~-\~d in any number of counterparts, all of which together lhall c:omtitute one original documenL k. ~-Notices allowed or required by this Settlement Aareement aba1J be directed as follows: TO HEWIEIT-PACKARD: J. Kemper Will, Esq. Burns, Figa & 'Will, P.C. One OTC, Penthouse Three 5251 OTC Parkway Englewood, Colorado 80111 TO IBM: Jeffrey B. Groy, Esq. Davis, Graham dt Stubbs 370 Seventeenth Street, Suite 4700 Denver, Colorado 80202 TO 1HE COALITION AND ITS MEMBERS : John Jacus, Esq. Chair of the Lowry Coalition Bradley, Campbell, Carney dt Madsen 1717 Washington Avenue Golden, CO 80401 · All notices or demands required or permitted under this Settlement Agreement shall be in writing and shall be effective J s.:nt by registered or certified mail, postage prepaid and return receipt requested. Notice shall be deemed received at the time band delivered or within forty-<ight ( 48) hours after the time of mailing. Any Party may also give notice by Caa imile transmission , which shall be effective upon confirmation by the Party sending the Not ice that such transmission has been received by the Party to which the Notice has been addressed . Nothir g in this par agr a ph shall prevent th e giving of notice in such manner as pr csc nbed by the Colorado Rul es of Civi l Procedu re for the service of legal process. An y Party may chang e its ad dress by givi og written notic e . • 8 - IN WITNESS WHEREOF, the undersigned Parties have executed thJs Settlement Agreement as designated on their respective signature pages. Each Party and the individual executing this Settlement Agreement represent and warrant that the individual executing this Settlement Agreement bas been duly authorized to enter into this Settlement Agreemen, and to bind the Party on whose behalf such individual is executing.°';~, . · ,. . ' . -~ ... ~~~:. ,;: .:_ . ': · UITLETON-ENGLEWOOD BI-CITY WASTEWATER TREATMENT PLANT Br. ________ _ Its: _________ _ • 16 • COUNCIL COMMUNICATION Date November 2, 1992 INITIATED BY STAFF SOURCE Age n da Item 11 j City Attorney Rick DeWitt, City Attorney ISSUl:/ACTION PROPOSED Subject Resolution removing IBM and Hewlett-Packarc. from the Lowry Coaliti on Staff seeks Council support for a resolution accepting a settlement agreement between H ewlett Pa ckard, IBM, and the Lowry Co~lition for the removal of H ewlett Pa ckard and IBM from the Coalition. · PREVIOUS COUNCIL ACTION None . BACKGROUND Both Hewl ett P acka rd and IBM wi sh to fulfill th eir obli gations under the Lowry Coalition 's Deep and Shall ow Gro und wa ter O perable Un it s. Thi s settlement agreement allows them to d o so. STAFF ANALYSIS Th e settl em e nt agreement between H ew lett Packard , IB M, a nd th e Lowry Coalition provid es that upo n p aym en t by H ewle tt Packard and IBM of $100,000 and $30,000 respectiv ely, each w ill hal'e been deemed to have fulfill ed it s obli gat ions under the Deep and Shall ow Grounrlwa te r Operable Uni ts a nd will be rem oved from the Lowry Coalition. l n addition, H ewlett Packard and IBM agree to wah·e any clai m s th ey may hav e aga in st oth er Lowry Coalitio n members for response cos ts in cu rred wi th respect to th e Dee p and Sl1.1llow Groundwater Operable Units, a nd th e membe rs of the C oa li tion likewi se agree to w .11 , e arw claims th ey ma y have against Hew le tt Packard and IBM for response cos ts in, rr ed w ith respect to th e Deep and Shallow Groundw ater Operable Units. " This agreement has several advantages. First, ii .~ilows Hewlett Pack~,<1 and IBM to withdraw from the Lo wry Coalitio n, thereby establishing a precedent fo r o ther members of the Coalitlon, such as the municipalities involved, v ·ho may want to withdraw from the Coalitio n. Second, ii will allow Hewlett Packarci .Ld IBM to enter into a separnle settlement with Waste Management and Denver through P"p1ent of pre miur:: : n c s th at may help lo o ffset response cos ts for other PRPs at .ne Lowry Lar,dfilt Site . Finally, H ewlett Packard and IBM 's agreement to waive any response costs claims they may have with respet't to th e Deep and ~li ,llow Grou'1d w?.ter Operable Units also may be advantageous because Hewlett P •. , ,rd and IBM have been paying more than t:1eir volumetric s hare toward funding · ,·ose operable units. In contrast, Littleton/Englewood have been paying less than their ,. ,JumelTic share toward funding those operable units. Under the agreement, Hewlett Packard and IBM will waive their right to pursue the difference against other members of the Coalition, including Littleton /Englewood. In ad dition, paragraph 3c. of the agreement specifies that each oi the Special Members, including Littleton /Englewood, would release Hewlett Packard and IBM from their obligations to indemnify the Cities from de'Y!and s by EPA for any assessments, penalties, et c., in excess of the Cities' capped conlTibution limitations. Inasmuch as the other industrial members of the Lowry Coalition would remain obligated to indemnify the Cities for any such costs, the release of Hewlett Packard and IBM from the Provision should not be a ~aterial detriment to the Cities. FINANCIAL There is no foresee n financial impac t on the City of Englewood as a result of this resolution.