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HomeMy WebLinkAbout98-123 bPttU MMAVt TO FROM SUBJECT DATE n � Y•" l_ \1 7 r SIGNED WilsonJones® WHITE ORIGINAL CANARY—DUPLICATE 44-900•Duplicate i i City of Elgin Mayor • Kevin Kelly Council Members Terry Gavin Robert Gilliam John T. McKevitt Ed Schock October 1, 1998 John Walters Marie Yearman Alan P. Bielawski Sidley & Austin One First National Plaza Chicago, IL 60603 Re: Elgin Salvage and Supply Settlement Dear Al : On June 8, 1998, I forwarded to you copies of the settlement agreement regarding the above matter. We have yet to receive a fully executed copy of the agreement. Please advise when I might expect to receive same. Thank you. Very truly yours, Michael R. Gehrman Assistant Corporation Counsel MRG/mg be: Loni Mecum, 4City. Clerk`' 150 Dexter Court • Elgin, IL 60120-5555 • Phone 847/931-6100 • Fax 847/931-5610 • TDD 847/931-5616 ®Primed on recycled paper Resolution No. 98-123 RESOLUTION AUTHORIZING EXECUTION OF A SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY WITH AT&T, COMMONWEALTH EDISON AND AMERITECH BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Joyce A. Parker, City Manager, be and is hereby authorized and directed to execute a Settlement Agreement and Release of Liability on behalf of the City of Elgin with American Telephone and Telegraph Company, Commonwealth Edison Company and Illinois Bell Telephone Company a/k/a Ameritech Illinois for removal of hazardous waste material at the Elgin Salvage and Supply site, a copy of which is attached hereto and made a part hereof by reference. s/ Kevin Kelly Kevin Kelly, Mayor Presented: May 27 , 1998 Adopted: May 27 , 1998 Omnibus Vote: Yeas 6 Nays 0 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk I Resolution No. 98-123 RESOLUTION AUTHORIZING EXECUTION OF A SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY WITH AT&T, COMMONWEALTH EDISON AND AMERITECH BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Joyce A. Parker, City Manager, be and is hereby authorized and directed to execute a Settlement Agreement and Release of Liability on behalf of the City of Elgin with American Telephone and Telegraph Company, Commonwealth Edison Company and Illinois Bell Telephone Company a/k/a Ameritech Illinois for removal of hazardous waste material at the Elgin Salvage and Supply site, a copy of which is attached .hereto and made a part hereof by reference. Kevin Kelly, Mayor Presented: May 27, 1998 Adopted: Vote: Yeas Nays Recorded: • Attest: Dolonna Mecum, City Clerk • ELGIN SALVAGE AND SUPPLY SITE SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY This Settlement Agreement and Release of Liability ( "Agreement" ) is made and entered into by and between American Telephone and Telegraph Company ("AT&T" ) , Commonwealth Edison Company ( "ComEd" ) and Illinois Bell Telephone Company a/k/a Ameritech Illinois ( "Ameritech" ) (collectively referred to herein as the "Accepting Parties" ) and City of Elgin ( "Settler" ) , whose name and authorized signature appear on the signature page hereof . This Agreement is to resolve Settler' s alleged liability to the Accepting Parties for certain environmental response costs incurred by the Accepting Parties at the Elgin Salvage and Supply Site in Elgin, Illinois. I. RErIT LS A. The Elgin Salvage and Supply Site (the "Site" ) is located at 464 McBride Street, Elgin, Illinois . Elgin Salvage and Supply Company, Inc. operated a scrap and salvaging, operation at the Site from the 1940 ' s and continuing to the present . B . The Site is a facility within the meaning of Section 101(9) of CERCLA, 42 U.S.C. §9601 (9) . C. In June 1990, a United States Environmental Protection Agency ( "USEPA" ) Field Investigation Team conducted a screening site inspection of the Site. During this inspection, contaminants including dioxin, polychlorinated biphenyls ("PCBs" ) and heavy metals including lead were found in soil samples -1- • collected by USEPA. The substances that USEPA found at the Site are hazardous substances within the meaning of CERCLA Section 101 (14) , 42 U.S .C. § 9601 (14) . D. The procedures and standards for responding to releases of hazardous substances under CERCLA are set forth in the National Oil and Hazardous Substance Pollution Contingency Plan ( "NCP" ) . 33 U.S .C. Section 1321 (c) , 42 U.S .C. §9605, 40 C. F.R. Part 300 . E. On April 19, 1993 , USEPA issued an Administrative Order pursuant to CERCLA Section 106 (a) , 42 U.S .C. §9606 ( 11106 Order" ) , directing Elgin Salvage & Supply, Universities Research Association, Inc . and the Accepting Parties to conduct a removal action at the Elgin Salvage & Supply Site because USEPA found that there were releases and the continued threat of releases.*of hazardous substances at the Site. The 106 Order also orders the recipients to pay USEPA' s costs of overseeing the removal action. F. The Accepting Parties have expended $8, 497, 677 . 00 to investigate the contamination at the Site and to perform the removal action mandated by the 106 Order. Specifically, the Accepting Parties have incurred these costs to investigate, excavate, transport, treat, contain and/or dispose of contaminated materials from the Elgin Salvage & Supply Site in accordance with the remedies selected by USEPA. This work is summarized in a Removal Action Construction Report submitted by the Accepting Parties ' technical consultant to USEPA. The . Accepting Parties also have reached a settlement with USEPA -2- regarding USEPA' s claim for the costs of overseeing performance of the 106 Order. The Accepting Parties have agreed to pay USEPA $375, 000 . 00 . G. The costs referred to in F above do not include attorneys ' fees or related expenses incurred by the Accepting Parties in connection with the Site . H. USEPA has determined that the removal action has been completed and the Accepting Parties have complied with the 106 Order. I . Following its review of Elgin Salvage & Supply business records, the USEPA issued a Section 104 (e) information request to various Elgin Salvage & Supply customers ( 11104 (e) recipients" ) . USEPA selected the 104 (e) recipients based on its belief that those entities may have sent hazardous substances to the Site. J. The Accepting Parties desire to enter into this Agreement with the Settler to resolve potential claims relating to the costs of complying with the 106 Order, USEPA' s oversight costs, and the costs of litigating against the 106 Order recipients who did not comply with the Order (Universities Research, Inc . and Elgin Salvage & Supply) including any claim for attorneys fees. K. The parties to this Settlement Agreement acknowledge that this Agreement is entered into in good faith in an effort to avoid expensive and protracted litigation. -3- • L. Settler denies all liability for conditions at the Site and does not admit the truth or accuracy of any of the statements contained in this Section I . NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed as follows : II. DEFINITIONS A. "Accepting Parties" are American Telephone and Telegraph Company ( "AT&T" ) , Commonwealth Edison Company ( "ComEd" ) and Illinois Bell Telephone Company a/k/a Ameritech Illinois ( "Ameritech" ) who each received the 106 Order. B. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U. S. C. § 9601 -e-L sea. C. "ESS Site" means the Elgin Salvage & Supply Site located at 464 McBride Street, Elgin, Illinois consisting of two yards : (1) the Jefferson Yard; and (2) the' Main Yard. D. "Settler" shall mean a 104 (e) recipient who agrees to undertake the obligations of the Settler under this Agreement by executing a copy of this Agreement and making full payment of the Settlement Amount . E. "Settlement Amount" shall mean the dollar amount assessed Settler to participate in the settlement, as set forth in Appendix I . -4- III. CERTIFICATION OF SETTLER A. Settler hereby certifies to the best of its knowledge after having made reasonable inquiry that it has provided, either directly or by means of its response to the Section 104 (e) Information Request, to the Accepting Parties all of the records and information currently in its possession or in the possession, custody or control of its officers, directors, employees, contractors or agents, which relate to the ownership, operation, generation, treatment, composition, characteristics, transportation or -disposal of materials sent to the ESS Site, and that the information so provided by the Settler, along with Settler' s response to USEPA' s 104 (e) information request regarding the ESS Site, reflect all of the information Settler knows or possesses regarding its ownership, operation, generation, treatment, composition, characteristics, transportation or disposal of materials sent by the Settlor to the ESS Site. IV. COVERED MATTERS "Covered Matters" shall include any and all civil liability for any costs incurred in responding to the 106 Order, including the costs of all work done or to be done in the future to investigate, monitor and clean up the ESS Site pursuant to the 106 Order, USEPA' s past and future oversight costs relating to the 106 Order, and Accepting Parties ' costs of litigating against parties who did not comply with the 106 Order. Aft -5- V. RELEASE AND COVENANT NOT TO SUE A. The Accepting Parties, jointly and severally, hereby release Settler, its parent, subsidiaries, affiliates or divisions, together with the their respective officers, directors, employees, shareholders and their respective successors and assigns, from any and all liability for Covered Matters and covenant not to sue Settler therefor in law or equity. B. In consideration of the Accepting Parties , releases and covenants not to sue in Paragraph A of this Section, Settler hereby (1) releases each Accepting Party, their successors and assigns, from further liability for Covered Matters, if there are • any such claims, and covenants not to sue in law or equity any Accepting Party therefor; (2) assigns to the Accepting Parties all of its remaining claims in law or equity for Covered Matters, other than insurance claims; and (3) warrants that it has not heretofore released and will not hereafter release any claims for Covered Matters, other than insurance claims, except as provided in this Agreement . VI. INDEMIFICATION A. The Accepting Parties agree to indemnify, defend and hold harmless Settler, including its corporate officers and directors, shareholders and employees, and their respective successors and assigns and its parent, subsidiaries, affiliates or divisions, together with their respective officers, directors, -6- Allk employees, shareholders and their respective successors and their respective. successors and assigns, from and for any and all liabilities, claims, costs, demands, actions, suits, proceedings, judgments, damages, fines or penalties based upon or arising out of Covered Matters . Settler shall provide the Accepting Parties . written notice within 30 days of receipt of a claim for which Settler seeks indemnity under this Agreement, provided, however, that failure of Settler to provide such notice within said 30 day period shall not be a defense to a claim for indemnity hereunder unless Accepting Parties demonstrate that they have been prejudiced by the delay in receiving such notice . B. In connection with the indemnity given in Paragraph A of this Section, the Accepting Parties shall have the right to conduct a joint defense for the indemnitees . Said indemnitees agree to cooperate, without payment for their time or incidental expenses, with the Accepting Parties (who otherwise shall conduct and pay for the defense) to. the extent reasonably necessary to defend against claims and further agree to waive any conflicts or potential conflicts of interest arising out of the Accepting Parties ' conduct of a joint defense for the indemnitees . VII. RESERVATION OF RIGHTS A. The Releases, Covenants not to Sue, and Indemnification in Sections V and VI of this Agreement shall be null and void, and the Accepting Parties may seek and obtain further relief from such Settler in the event it is determined that Settler' s -7- certification provided under Section III was intentionally false or if Settler' s allocation, based on previously undisclosed documents or information, is more than 201k greater than the Settlement amount . B . Nothing in this Agreement is intended to be, nor shall it be construed as, a Release, Indemnity, or Covenant not to Sue, for any claim or cause of action, past or future, in law or in equity, which any Accepting Party or Settler may have against any person, firm, corporation or other entity not a signatory to this Agreement . C. The Accepting Parties and Settler agree that any actions undertaken by the Accepting Parties and the Settler in • accordance with this Agreement do not constitute an admission of any liability by any Party to this Agreement . VIII. EFFECTIVE DATE The Effective Date of this Agreement shall be 1998 . IX. PAYMENTS & CREDITS A. Settler shall pay the Settlement Amount no later than 30 days from the Effective Date of this Agreement . B. All payments shall be made by check made payable to the "Elgin Salvage & Supply Site Settlement Trust" and mailed to : -8- ESS PRP Committee c/o Alan P. Bielawski One First National Plaza Chicago, Illinois 60603 C. Any failure for any reason by Settler to make any payment on or before the date set forth in Paragraph A of this Section shall constitute a material breach of this Agreement . However, the Accepting Parties may in their sole discretion allow a breach for late payment to be cured if a defaulting Settler tenders its payment with interest computed at the rate of seven percent (7 . 0%) on the balance due. D. In the event the Accepting Parties recover more than $7, 985, 409 . 30 (9016 of the costs they incurred as set forth in Paragraph I (F) above) in complying with the 106 Order ( "Excess Recovery" ) from ESS, the Site owners, or any other potentially liable parties (including the 104 (e) recipients or other parties whose materials were sent to the Site) , the Accepting Parties will refund the Excess Recovery to Settler and any other parties who entered into a settlement agreement with Accepting Parties under terms substantially similar to those set forth herein. The amount of Settler' s refund will be determined by multiplying Settler' s percentage contribution to the Accepting Parties ' total settlement recovery, times the amount of the Excess Recovery. X. DISPUTE RESOLUTION A. Any dispute that arises with respect to the meaning, application or enforcement of this Agreement shall, in the first Ask instance, be the subject of good faith informal negotiations -9- it between the Parties. Such period of informal negotiation shall in the first instance extend to forty-five (45) days after receipt of a written notice by a Party of a dispute, unless the Parties agree otherwise . After said forty-five day period, any Party may pursue its legal remedies . XI. CONFIDENTIALITY A. The Parties agree to maintain as confidential both the existence and terms of this Agreement, except (1) as necessary under Section X to enforce the terms of this Agreement; (2) as necessary to Settler' s insurance carriers; (3) as necessary for auditing, banking and underwriting purposes; or (4) as necessary to comply with a court or administrative order directing disclosure . B. The confidentiality obligations of the Parties under this Section shall remain in full force and effect, without regard to whether any litigation relating to the Site is terminated by final judgment or settlement . The provisions of this Section shall not apply to information that is now or hereafter becomes public knowledge without violation of this Section, or which is independently known by or available to a Party without violation of. this Agreement, or which is sought and obtainable from a Party pursuant to applicable discovery procedures or demand by a governmental agency such as the USEPA and not otherwise protected from disclosure . -10- XII. MISCELLANEOUS_ PROVISIONS A. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Illinois applicable to Agreements made and performed in that state. B. Severability. If any provision of this Agreement is determined by a court to be invalid, the remainder of this Agreement shall not be affected thereby and shall remain in force; provided, however, that if the obligations of the Accepting Parties set forth in Section V and VI of this Agreement or the obligations of Settler to make the payments pursuant to Section IX of this Agreement are invalidated, the entirety of this Agreement shall. be null and void, and in such event the amount paid by Settler pursuant to this Agreement shall be promptly refunded to Settler by the Accepting Parties. C. Good Faith Covenant . The Parties represent that this Agreement was negotiated in good faith and that Settler' s payment pursuant to this Agreement represents a full, fair and equitable settlement of Settler' s alleged liability for Covered Matters . D. Entire Agreement . This Agreement constitutes the entire understanding of the Parties with respect to its subject matter. E. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or if deposited in the United States registered mail or certified mail, return receipt requested, properly addressed and postage prepaid, or if delivered, expenses prepaid, to an overnight courier or messenger Aft qW -11- service guaranteeing next day delivery: (1) if to Accepting Parties, to: ESS PRP Committee, c/o Alan P. Bielawski, One First National Plaza, Chicago, Illinois 60603 ; and (2) if to Settler, the address set forth in Appendix I ; or to any other address as may be given by a party to the other party by notice in writing pursuant to provisions of this section. Such notices, if sent by mail, shall be deemed to have been received five (5) days after the date of mailing as verified by the date stamped on the receipt for certified mail provided by the U.S. Post Office. • • -12- SIGNATURE PAGE OF ELGIN SALVAGE AND SUPPLY SITE SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY City of Elgin. (Settler) hereby enters into the Elgin Salvage & Supply Settlement Agreement dated , 1998 with AT&T, Ameritech and Commonwealth Edison. City of Elgin AT&T Name of Settler By: By: Its Authorized Representative Ameritech By: ComEd By: -13- i APPENDIX I Settlement Amount -- $5 , 000 . 00 • l 1 City of Elgin Agenda Item No. May 6, 1998 TO: Mayor and Members of the City Council FROM: Joyce A. Parker, City Manager SUBJECT: Elgin Salvage CERCLA Indemnification PURPOSE The purpose of this memorandum is to obtain authorization to execute an indemnification agreement . BACKGROUND Pursuant to the provisions of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) , the U. S. E. P.A. ordered- certain parties who were identified as having contributed hazardous waste materi- als to Elgin Salvage in the past to clean up the Elgin Salvage site (map attached) . This clean up has now been completed, at an estimated cost of approximately $9,000, 000 . This cost has been paid by three major parties, namely, AT&T, Ameritech and Commonwealth Edison (commonly known as the "performing par- ties" ) . Approximately 125 additional potentially responsible parties (commonly referred to as "PRPs" ) have been identified by the EPA and the performing parties . One of these identified potentially responsible parties is the City of Elgin. It appears that over the course of several years in the past, the City sold certain waste materials to Elgin Salvage . Based on a percentage of the total hazardous waste material accumulated at the Elgin Salvage site, the performing parties have esti- mated the cleanup cost attributable to the City at $155 . 00 . The performing parties are now seeking contribution from the other identified 125 PRPs to recover the percentage of the total cleanup costs which they have incurred, but which they maintain is not attributable to them. Prior to the filing of a lawsuit to recover these costs, however, the performing parties are offering a hold harmless and indemnification agreement to the PRPs by which the performing parties agree not to seek contribution from a particular PRP, and by which the performing parties will indemnify the PRP against any • claims which may be made by other parties, such as other PRPs who do not enter into the agreement . In the unlikely event that an amount in excess of 900 of the cleanup cost is recov- ered from various PRPs pursuant to PRPs entering into indemni- Elgin Salvage CERCLA Indemnification May 6 , 1998 Page 2 fication agreements with the performing parties, the perform- ing parties will rebate a portion of the amount paid by each participating PRP. The performing parties require a minimum payment of $5000 from each participating PRP in exchange for the indemnification. Based on Elgin' s estimated past contri- butions of waste material to the site, the city is only required to provide this $5 , 000 payment to obtain the indemni- fication. The extent of the City' s potential exposure is generally governed by the provisions of 42 USC Sec . 9613 (f) . In general, the CERCLA provides that liability for PRPs in the event of a settlement agreement in such circumstances as exist in this instance is a portion of the amount not recovered by the performing parties, using such equitable factors as the court deems appropriate . An application of these factors typically results in such a portion being set on either a per capita or a pro rata basis . For example, if the total cleanup cost of this site ultimately is determined to be $9, 000, 000 , and the performing parties recover $8, 000, 000 of the cost not ascribed to them through payments of various PRPs in exchange for indemnification agreements, the remaining $1, 000, 000 in cleanup costs would be assigned by the court to the remaining PRPs who have not entered into an indemnification agreement . • The court would be likely to assign the amount to be paid by each of these remaining PRPs either on a per capita basis (so that 10 PRPs would each pay $100, 000 of the outstanding $1, 000, 000 cleanup costs) or on a pro rata basis, so that each PRP would pay a percentage of the outstanding $1, 000, 000 based on the amount of hazardous waste generated by that PRP. Prior to such an assignment of costs, however, the performing parties would be required to prove that the City was a liable generator of hazardous waste as defined by CERCLA. Although this burden might be difficult to overcome due to the lack of available records, it is certainly not impossible that such a burden could be met . Litigation of the issues involved in this matter would obviously result in a significant expendi- ture of time and expense . COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None . FINANCIAL IMPACT The City would be required to provide a $5, 000 . 00 payment to obtain the indemnification. Account number 010-6902-719 . 84-01, Contingency, would be charged. There are sufficient funds available to make this payment . • Elgin Salvage CERCLA Indemnification May 6 , 1998 Page 3 • LEGAL IMPACT Entry into the agreement will provide indemnification to the city against potential liability based on the city' s prior contributions of hazardous waste (as defined by CERCLA) to the Elgin Salvage site . ALTERNATIVES Refusal of the indemnification offer. RECOMMENDATION It is recommended that execution of the indemnification agreement be authorized. Respectfully submitted, gie Parker City Manager • JAP/MRG/mg • • s ELGIN SALVAGE AND SUPPLY SITE SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY This Settlement Agreement and Release of Liability ("Agreement" ) is made and entered into by and between American Telephone and Telegraph Company ("AT&T" ) , Commonwealth Edison Company ("ComEd" ) and Illinois Bell Telephone Company a/k/a Ameritech Illinois ( "Ameritech" ) (collectively referred to herein as the "Accepting Parties" ) and City of Elgin ("Settler" ) , whose name and authorized signature appear on the signature page hereof . This Agreement is to resolve Settler' s alleged liability to the Accepting Parties for certain environmental response costs incurred by the Accepting Parties at the Elgin Salvage and -Supply • Site in Elgin, Illinois . I. RECITALS A. The Elgin Salvage and Supply Site (the "Site" ) is located at 464 McBride Street, Elgin, Illinois . Elgin Salvage and Supply Company, Inc. operated a scrap and salvaging operation at the Site from the 1940 ' s and continuing to the present . B. The Site is a facility within the meaning of Section 101 (9) of CERCLA, 42 U. S.C. §9601 (9) . C. In June 1990, a United States Environmental Protection Agency ( "USEPA" ) Field Investigation Team conducted a screening site inspection of the Site. During this inspection, contaminants including dioxin, polychlorinated biphenyls ( "PCBs" ) • and heavy metals including lead were found in soil samples -1- I • collected by USEPA. The substances that USEPA found at the Site are hazardous substances within the meaning of CERCLA Section 101 (14) , 42 U. S.C. § 9601 (14) . D. The procedures and standards for responding to releases of hazardous substances under CERCLA are set forth in the National Oil and Hazardous Substance Pollution Contingency Plan ( "NCP" ) . 33 U.S .C. Section 1321 (c) , 42 U.S .C. §9605 , 40 C.F .R. Part 300 . E. On April 19,. 1993, USEPA issued an Administrative Order pursuant to CERCLA Section 106 (a) , 42 U.S.C. §9606 ( "106 Order" ) , directing Elgin Salvage & Supply, Universities Research Association, Inc . and the Accepting Parties to conduct a removal • action at the Elgin Salvage & Supply Site because USEPA found that there were releases and the continued threat of releases of hazardous substances at the Site . The 106 Order also orders the recipients to pay USEPA' s costs of overseeing the removal action. F. The Accepting Parties have expended $8, 497, 677 . 00 to investigate the contamination at the Site and to perform the removal action mandated by the 106 Order. Specifically, the Accepting Parties have incurred these costs to investigate, excavate, transport, treat, contain and/or dispose of contaminated materials from the Elgin Salvage & Supply Site in accordance with the remedies selected by USEPA. This work is summarized in a Removal Action Construction Report submitted by the Accepting Parties ' technical consultant to USEPA. The Accepting Parties also have reached a settlement with USEPA -2- • • • D regarding USEPA' s claim for the costs of overseeing performance of the 106 Order. The Accepting Parties have agreed to pay USEPA $375, 000 . 00 . G. The costs referred to in F above do not include attorneys ' fees or related expenses incurred by the Accepting Parties in connection with the Site . H. USEPA has determined that the removal action has been completed and the Accepting Parties have complied with- the 106 Order. I . Following its review of Elgin Salvage & Supply business records, the USEPA issued a Section 104 (e) information request to various Elgin Salvage & Supply customers ( 11104 (e) recipients" ) . • USEPA selected the 104 (e) recipients based on its belief that those entities may have sent hazardous substances to the Site. J. The Accepting Parties desire to enter into this Agreement with the Settler to resolve potential claims relating to the costs of complying with the 106 Order, USEPA' s oversight costs, and the costs of litigating against the 106 Order recipients who did not comply with the Order (Universities Research, Inc . and Elgin Salvage & Supply) including any claim for attorneys fees . ' K. The parties to this Settlement Agreement acknowledge that this Agreement is entered into in good faith in an effort to avoid expensive and protracted litigation. • -3- • • s • L. Settler denies all liability for conditions at the Site and does not admit the truth or accuracy of any of the statements contained in this Section I . NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, it is agreed as follows : II. DEFINITIONS A. "Accepting Parties" are American Telephone and Telegraph Company ("AT&T") , Commonwealth Edison Company ("ComEd" ) and Illinois Bell Telephone Company a/k/a Ameritech Illinois ( "Ameritech") who each received the 106 Order. • B. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U. S . C. 9 9601 2-.t sea• C. "ESS Site" means the Elgin Salvage & Supply Site located at 464 McBride Street, Elgin, Illinois consisting of two yards : (1) the Jefferson Yard; and (2) the' Main Yard. D. "Settler" shall mean a 104 (e) recipient who agrees to undertake the obligations of the Settler under this Agreement by executing a copy of this Agreement and making full payment of the Settlement Amount . E. "Settlement Amount" shall mean the dollar amount assessed Settler to participate in the settlement, as set forth in Appendix I . -4- III. CERTIFICATION OF SETTLER A. Settler hereby certifies to the best of its knowledge after having made reasonable inquiry that it has provided, either directly or by means of its response to the Section 104 (e) Information Request, to the Accepting Parties all of the records and information currently in its possession or in the possession, custody or control of its officers, directors, employees, contractors or agents, which relate to the ownership, operation, generation, treatment, composition, characteristics, transportation or disposal of materials sent to the ESS Site, and that the information so provided by the Settler, along with Settler' s response to USEPA' s 104 (e) information request • regarding the ESS Site, reflect all of the information Settler knows or possesses regarding its ownership, operation, generation, treatment, composition, characteristics, transportation or disposal of materials sent by the Settlor to the ESS Site . IV. COVERED MATTERS "Covered Matters" shall include any and all civil liability for any costs incurred in responding to the 106 Order, including the costs of all work done or to be done in the future to investigate, monitor and clean up the ESS Site pursuant to the 106 Order, USEPA' s past and future oversight costs relating to the 106 Order, and Accepting Parties ' costs of litigating against • parties who did not comply with the 106 Order. -5- V. RELEASE AND COVENANT NOT TO SUE A. The Accepting Parties, jointly and severally, hereby release Settler, its parent, subsidiaries, affiliates or divisions, together with the their respective officers, directors, employees, shareholders and their respective successors and assigns, from any and all liability for Covered Matters and covenant not to sue Settler therefor in law or equity. B . In consideration of the Accepting Parties ' releases and covenants not to sue in Paragraph A of this Section, Settler hereby (1) releases each Accepting Party, their successors and assigns, from further liability for Covered Matters, if there are any such claims, and covenants not to sue in law or equity any Accepting Party therefor; (2) assigns to the Accepting Parties all of its remaining claims in law or equity for Covered Matters, other than insurance claims; and (3) warrants that it has not heretofore released and will not hereafter release any claims for Covered Matters, other than insurance claims, except as provided in this Agreement . VI. INDEMNIFICATION A. The Accepting Parties agree to indemnify, defend and hold harmless Settler, including its corporate officers and directors, shareholders and employees, and their respective successors and assigns and its parent, subsidiaries, affiliates • or divisions, together with their respective officers, directors, -6- • employees, shareholders and their respective successors and their respective successors and assigns, from and for any and all liabilities, claims, costs, demands, actions, suits, proceedings, judgments, damages, fines or penalties based upon or arising out of .Covered Matters . Settler shall provide the Accepting Parties written notice within 30 days of receipt of a claim for which Settler seeks indemnity under this Agreement, provided, however, that failure of Settler to provide such notice within said 30 day period shall not be a defense to a claim for indemnity hereunder unless Accepting Parties demonstrate that they have been prejudiced by the delay in receiving such notice . B . In connection with the indemnity given in Paragraph A • of this Section, the Accepting Parties shall have the right to conduct a joint defense for the indemnitees . Said indemnitees agree to cooperate, without payment for their time or incidental expenses, with the Accepting Parties (who otherwise shall conduct and pay for the defense) to the extent reasonably necessary to' defend against claims and further agree to waive any conflicts or potential conflicts of interest arising out of the Accepting Parties ' conduct of a joint defense for the indemnitees . VII. RESERVATION OF RIGHTS A. The Releases, Covenants not to Sue, and Indemnification in Sections V and VI of this Agreement shall be null and void, and the Accepting Parties may seek and obtain further relief from such Settler in the event it is determined that Settler' s -7- i icertification provided under Section III was intentionally false or if Settler' s allocation, based on previously undisclosed documents or information, is more than 20% greater than the Settlement amount . - B . Nothing in this Agreement is intended to be, nor shall it be construed as, a Release, Indemnity, or Covenant not to Sue, for any claim or 'cause of action, past or future, in law or in equity, which any Accepting Party or Settler may have against any person, firm, corporation or other entity not a signatory to this Agreement . C. The Accepting Parties and .Settler agree that any actions undertaken by the Accepting Parties and the Settler in • accordance with this Agreement do not constitute an admission of any liability by any Party to this Agreement . VIII. EFFECTIVE DATE The Effective Date of this Agreement shall be 1998 . IX. PAYMENTS & CREDITS A. Settler shall pay the Settlement Amount no later than 30 days from the Effective Date of this Agreement . B. All payments shall be made by check made payable to the "Elgin Salvage & Supply Site Settlement Trust" and mailed to: • -8- ESS PRP Committee c/o Alan P . ' Bielawski One First National Plaza Chicago, Illinois 60603 C. Any failure for any reason by Settler to make any payment on or before the date set forth in Paragraph A of this Section shall constitute a material breach of this Agreement . However, the Accepting Parties may in their sole discretion allow a breach for late payment to be cured if a defaulting Settler tenders its payment with interest computed at the rate of seven percent (7 . 0°;) on the balance due. D. In the event the Accepting Parties recover more than $7,-985, 409 . 30 (90% of the costs they incurred as set forth in Paragraph I (F) above) in complying with the 106 Order ("Excess • Recovery" ) from ESS, the Site owners, or, any other potentially liable parties (including the 104 (e) recipients or other parties whose materials were sent to the Site) , the Accepting Parties will refund the Excess Recovery to Settler and any other parties who entered into a settlement agreement with Accepting Parties under terms substantially similar to those set forth herein. The amount of Settler' s refund will be determined by multiplying Settler' s percentage contribution to the Accepting Parties ' total settlement recovery, times the amount of the Excess Recovery. X. DISPt7TE RESOLUTION A. Any dispute that arises with respect to the meaning, • application or enforcement of this Agreement shall, in the first instance, be the subject of good faith informal negotiations- -9- • between the Parties . Such period of informal negotiation shall in the first instance extend to forty-five (45) days after receipt of a written notice by a Party of a dispute, unless the Parties agree otherwise . After said forty-five day period, any party may pursue its legal remedies . XI. CONFI ENTIALITY A. The Parties agree to maintain as confidential both the existence and terms of this Agreement, except (1) as necessary under Section X to enforce the terms of this Agreement; (2) as necessary to Settler' s insurance carriers; (3) as necessary for auditing, banking and underwriting purposes; or (4) as necessary • to comply with a court or administrative order directing disclosure. B. The confidentiality obligations of the Parties under this Section shall remain in full force and effect, without regard to whether any litigation relating to the Site is terminated by final judgment or settlement . The provisions of this Section shall not apply to information that is now or hereafter becomes public knowledge without violation of this Section, or which is independently known by or available to a Party without violation of this Agreement, or which is sought and obtainable from a Party pursuant to applicable discovery procedures or demand by a governmental agency such as the USEPA and not otherwise protected from disclosure . • -10- s • • XI V I . MISCELLANEOUS PROVISIONS A. Governing Law. This Agreement shall be governed by and construed according to the laws of the State of Illinois applicable to Agreements made and performed in that state . B . Severability. If any provision of this Agreement is determined by a court to be invalid, the remainder of this Agreement shall not be affected thereby and shall remain in force; provided, however, that if the obligations of the Accepting Parties set forth in Section V and VI of this Agreement or the obligations of Settler to make the payments pursuant to Section IX of this Agreement are invalidated, the entirety of this Agreement shall be null and void, and in such event the amount paid by Settler pursuant to this Agreement shall be promptly refunded to Settler by the Accepting Parties. C. Good Faith Covenant . The Parties represent that this Agreement was negotiated in good faith and that Settler' s payment pursuant to this Agreement represents a full, fair and equitable settlement of Settler' s alleged liability for Covered Matters . D. Entire Agreement, This Agreement constitutes the entire understanding of the Parties with respect to its subject matter. E. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered personally or if deposited in the United States registered mail or certified mail, return receipt requested, properly addressed and postage prepaid, or if • delivered, expenses prepaid, to an overnight courier or messenger -11- • service guaranteeing next day delivery: (1) if to Accepting Parties, to: ESS PRP Committee, c/o Alan P. Bielawski, One First National Plaza, Chicago, Illinois 60603 ; and (2) if to Settler, the address set forth in Appendix I ; or to any other address as may be given by a party to the other party by notice in writing pursuant to provisions of this section. Such notices, if sent by mail, shall be deemed to have been received five (5) days after the date of mailing as verified by the date stamped on. the receipt for certified mail provided by the U.S . Post Office . -12- • • s • SIGNATURE PAGE OF ELGIN SALVAGE AND SUPPLY SITE SETTLEMENT AGREEMENT AND RELEASE OF LIABILITY City of Elgin (Settler) hereby enters into the Elgin Salvage & Supply Settlement Agreement dated , 1998 with AT&T, Ameritech and Commonwealth Edison. City of Elgin AT&T Name of Settler By: By: • Its Authorized Representative Ameritech By: ComEd By: • -13- I APPENDIX I Settlement Amount -- $5, 000 . 00 • Page 7m Exhibit S- 00 C)o G3 O110V!AK � Cp ! 0� new 0 CO frcog O r I I � � CO a o ! i HIM ❑ C) CD❑ ! I ✓'� j C] ❑ I j � - Q o I /� I I I• I I �� /// // I ! I I I I I B3 ! ! I I I � I I B2 Bi LBI::� I I rvl�l �1 �J 1 a byolvs Nt • e. .p.V SCALE Of m