Document YDgLK9zrNkzLyZQ4Mae2wV7zE

ADDENDUM NO. 3 TO ALLOCATION AND SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS THIS ADDENDUM NO. 3 TO ALLOCATION AND SETTLEMENT AGREEMENT AND MUTUAL RELEASE OF CLAIMS effective theday of, 2012 ("Addendum No. 3") is entered into by and between Tbe City and County of Butte-Silver Bow ("BSB"), and Atlantic Richfield Company ("AR"). . WiTNESSETfl: WHEREAS, BSB and AR are parties to a certain Allocation Agreement and Mutual Release of Claims'effective December-21, 2006, as amended by that certain Addendum No. I to Allocation and Settlement Agreement effective November 16, 2011 and that certain Addendum No. 2 to Allocation and Settlement Agreement effective_______ , 2012 ("Agreement"); and WHEREAS, the Agreement sets forth certain agreements, allocations of responsibility and releases relating to the Butte Priority Soils Operable Unit of the Silver Bow Creek/Butte Area NPL Site; and . WHEREAS, pursuant to Section 21.2 of the Agreement, the Parties agreed to negotiate and each execute a judicially enforceable Consent Decree with EPA and the State which incorporates the material terms mid conditions of the Agreement; and........ , , . --. : WHEREAS, notwithstanding the extensive negotiations which have occurred, EPA, the State and the Parties have not yet been able to reach mutual agreement on the terms and conditions of a Consent Decree; and WHEREAS, due to the inability of- EPA, the State and the Parties to reach mutual agreement on the terms and conditions of a Consent Decree, the EPA issued to the Parties a certain Administrative Order for Partial Remedial Action Implementation and Certain Operation and Maintenance at the Butte Priority Soils Operable Unit 1 / Butte Site EPA Docket No. CERCLA 08-2011-0011 ("UAO"); and....: ......... .... ............'............ ...... .....'.............................. WHEREAS, certain of the terms and conditions of the UAO are materially different than the material terms and conditions of the Agreement; and ..........-- - : ...... WHEREAS, the Parties wish to enter into this Addendum No. 3 in order to further amend and modify certain terms and conditions of the Agreement and to otherwise provide a full statement of the Parties respective rights and responsibilities with respect to the terms and conditions set forth in the UAO which are materially different than the terms and conditions of the Agreement; . BPS 024839 MOW THERFORE, in consideration of the mutual promises and covenants contained in this Addendum No. 3, the sufficiency of which is acknowledged, it is hereby understood and agreed as follows: ADDENDUM NO. 3 t. General. This Addendum No. 3 is entered into for the purpose of amending and modifying certain terms and conditions of the Agreement and otherwise providing a full statement of the Parties respective rights and responsibilities with respect to the material terms and conditions set forth in the UAO which are materially different than the terms and conditions of the Agreement To the extent that the provisions of this Addendum No. 3 conflict with the provisions of the Agreement, the terms of this Addendum No. 3 shall control. Capitalized terms used in this Addendum No. 3 shall have the meaning ascribed to them in the Agreement, unless and to the extent otherwise expressly provided herein. 2. Exhibits. Exhibits 3.1, 18, 20, 22, 28, 33 and 36 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the revised Exhibits 3.1 and 22 and new Exhibits 42, 43, 44, 45, and 46 attached hereto, which are aii hereby fully incorporated into this Addendum No. 3 and the Agreement by this reference. 3. Definitions. Sections 1.1.34, 1.1.47, 1.1.48, 1.1.52, 1,1.58, 1.1.62, 1.1.65, 1.1.70, 1.1.72, 1.1.83,1.1-84, 1.1.89, 1.1.91, 1.1.94, 1.1.100,1.U09, U.116,1.1.126, 1.1.134, 1.1.B5, and 1.1.136 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 1.1.52, 1.1,58, 1.1.62, 1.1.65,1.1.83, 1.1.84, 1.1.91, 1.1.94, 1.1.100, 1.1.116, 1.1.126, 1.1.134, U.135 and 1.1.136 and new sections 1.1.153, 1.1.154, 1.1.155, 1.1.156, 1.1.157, 1.1.158, 1.1.159, 1.1.160, 1.1.161, 1.1.162,1.1.163,1.1.164,1.1.165,1.1.166, l.t.167,1.1.168, U.169,and 1.L170: Section 1.1.34. [Intentionally left blank.) Section 1.1.47. [Intentionally left blank.) ..................Section 1.1.48. [Intentionally'left blank.)...................................................................... Section 1.1.52. "Funding Spreadsheet" shall mean the ........................... spreadsheet.. attached...as...Exhibit.."26"...hereto.. with...a...budget............................. projection prepared for illustrative purposes, as amended and modified by the Supplemental Funding Spreadsheet. Section 1.1.58. "Groundwater Treatment System" shall mean the groundwater collection, conveyance and treatment system at LAO described in the LAO Work Plan Addendum that AR has constructed and operates. The term shall include, without limitation, all Groundwater Treatment System Upgrades designed 2 BPS 024840 and constructed by AR pursuant to Section 4.2 hereof. The term shall also include, without limitation, all additional Response Actions designed and constructed by AR pursuant to section 4.2 hereof. The term shall also include all collection and conveyance structures and fixtures associated with the treatment of alluvial groundwater from the MSD, West Camp and LAO areas. Section 1,1.62 "Groundwater Treatment System Capital Repair and Replacement Costs" shall. mean the charges, expenses, fees and other costs reasonably incurred by BSB to make necessary Groundwater Treatment System Capital Repair and Replacement in the event the Parties reach agreement pursuant to Section 4.3 hereof and BSB assumes and performs some or all of the Operation and Maintenance Activities required for the Groundwater Treatment System following the shakedown required pursuant to the ROD. Section 1.1.65. "Groundwater Treatment System Operation and Maintenance Plan" shall mean the plan to be approved by EPA which specifies the Operation and Maintenance Activities required for the Groundwater Treatment System and any EPA approved amendments thereto. Section 1.1.70. {Intentionally left blank.J Section 1.1.72. {Intentionally left blank.} Section 1.1.S3. "Mine Waste Source Areas" shall .mean all parcels or portions of parcels of real property within the BP SOU at which Mine Wastes are located as of the Effective Date of this Agreement. The term shall include the GMMIA, the Syndicate Pit, fee LAO, the Jenny Dell, the Gold Smith Dumps, the Anaconda Sampling Works, the Unnamed Dump Site, the Colorado Smelter and the Clark Tailings Waste Areas. The term shall also include, without limitation, the Storm Water Sites and the Group l T^dditionafrS^^ MSD Corridor, the Mine Waste Repository or the Rail Road Properties. Section 1.1.84. "Mine Waste Repository" shall mean the real property depicted on the map attached as Exhibit "3.1" hereto as the "Original Boundary", the "First Expansion Boundary", the "Proposed West Mine Waste Expansion Boundary", and the 3 BPS 024841 "Proposed East Mine Waste Expansion Boundary and any additions thereto or expansions thereof. Section 1.1.89. | Intentionally left blank.] Section 1.1.91. "Multi-Pathway Program Budget" shall mean a budget, in the form of the Revised Multi-Pathway Program Budget, which sets forth all anticipated uses of funds from the Multi-Pathway Program Trust Account by BSB during the next Fiscal Year for Multi-Pathway Program Costs, and which sets forth the amount BSB may request the trustee to pay to BSB from the Multi-Pathway Program Trust Account for each quarter of the next Fiscal Year for Multi-Pathway Program Costs in accordance with the terms and conditions of Section 11.7 and the Multi-Pathway Program Trust Agreement. . Section 1.1.94. "Multi-Pathway Program Plan" shall mean the Final Multi-Pathway Residential Metals Abatement Program Plan dated April of 2010 which is referenced in the UAO, and any EPA approved amendments thereto. Section 1,1.100. "Operation and Maintenance Activities" shall mean all activities of any kind or nature whatsoever which are required pursuant to the ROD: (i) to monitor Environmental Conditions and/or Response Actions; and (it) to maintain, repair and/or replace any component of any Response Action. The term shall include, without limitation, all related sampling, inspection and reporting requirements. The terra shall also include implementation of the Groundwater Treatment System Operation and Maintenance Plan. The term shall also include, without limitation, ail activities necessary to maintain an effective vegetative cover and ail activities necessary to control noxious weeds, erosion and unauthorized entries...The term... shall also include, without limitation, the removal of garbage and debris. The term shall not include any Groundwater Treatment System ..Capital Repair and Replacement....Except as provided in Section . 4.3 hereof with regard to specific monitoring activities associated with the Groundwater Treatment System and in Section 5.2 hereof with regard to periodic performance tests and other monitoring of Best Management Practices associated with the Superfitnd Storm Water Structures, the term shall .also not include and BSB shall not be required to perform any other Silver Bow Creek surface water or alluvial groundwater monitoring generally within the BPSOU. AR anticipates that the USGS will perform such other Silver Bow 4 BPS 024842 Creek surface water quality monitoring pursuant to the terms of a separate agreement between AR and the USGS, and that the MBMG will perform such other alluvial groundwater quality monitoring pursuant to the terms of a separate agreement between AR and MBMG. Notwithstanding any other term or condition of this Agreement, BSB shall not be responsible for such other Silver Bow Creek surface water or alluvial ground water monitoring even if AR is not successful in negotiating such agreements with USGS or MBMG. The term shall also not include any Response Actions. Section 1.1.109. [Intentionally left blank.] Section 1.1.116. "ROD" shall mean the EPA's Record of Decision issued in September of 200$ that selected a final remedy for the BPSOU, together with all attachments or amendments thereto, all implementing documentation prepared pursuant to the ROD, all explanations of significant differences, and all changes thereto mandated by EP.A and/or MDEQ. The terra shall include the UAO and EPA's Explanation, of Significant Differences dated .July IS, 2011. ' Section 1.1.126. "Substantially Complied With Showing Reliable System Performance" shall mean compliance with all of the performance criteria applicable to the - Operation and Maintenance Activities required for the Groundwater Treatment System, taking into account variances from discharge requirements allowed by EPA pursuant to the ROD during such Operation and Maintenance Activities. Section 1.1.134. "Sunerfund Programs Budget" shall mean a budget, in the form of the Revised Superfund Programs Budget, which sets forth all anticipated uses of funds from the Superfund Programs Trust Account, by BSB during the next Fiscal .Year for Superfund Programs Costs, and which sets forth the amount BSB may request the trustee to pay to BSB from the Superfand Programs Trust Account for each quarter of the next Fiscal-Year for Superfund Programs Costs for each Task Account in accordance with the terms and conditions of Section 10.7 and the Superfund Programs Trust Agreement. From and after the date on which the duties and obligations of BSB to perform Operation and Maintenance Activities commence pursuant to Section 4.3 hereof, the budget shall include tire amount BSB may request the trustee to pay to BSB from the Superfimd Programs Trust Account for each 5 BPS 024843 quarter of the next Fiscal Year for the groundwater treatment Task Account identified in the Revised Superftmd Programs Budget. Section LI, 135. "Super-fund Programs Costs" shall mean the charges, expenses, fees and other costs reasonably incurred by BSB to perform its duties and obligations under Sections 3.6, 3.7, 5.2, 7.1, and 7.3 hereof. From and after the date on which the duties and obligations to perform joint Operation and Maintenance Activities commence pursuant to Section 4.3 hereof, the term shall also include the charges, expenses, fees and other costs reasonably incurred by BSB to perform the Operation and Maintenance Activities required of BSB pursuant to Section 4.3 hereof. In the event the Parties reach' agreement pursuant to Section 7.2 hereof with respect to additional funding to be provided by AR to the Superfund Programs Trust Account for BSB's assumption and performance of any post-closure reclamation and Operation and Maintenance Activities required for any further expansion of the Mine Waste Repository, the term shall also include the charges, expenses, fees and other costs incurred by BSB to perform such post-closure reclamation and Operation and Maintenance Activities. Section 1.1.136, "Superfund Programs Obligations" shall mean the obligations that BSB is obligated to perform pursuant to Sections 3.6,3.7,4.3, 5.2, 7.1,7.2 and 7,3 hereof. Section 1.1.153. "Adjacent Area" shall mean the area depicted as such on the map attached as Appendix B to the Multi-Pathway Program Plan. Section 1.1.154. "Attic Abatement Area" shall mean the area depicted as such on the map attached as Appendix B to the Multi Pathway Program Plan, Section 1.1.155. "Excavation and Dirt-Moving Protocols Ordinance1' shall mean an ordinance which is with consistent the Excavation and Dirt-Moving Protocols set forth in Exhibit "22" hereto. . Section 1.1.156. "Groundwater Treatment System Upgrades Pi an" shall mean the Final Butte Treatment Lagoons (BTL) and West Camp Pump Station (WCP-1) Upgrades Design Report/Work Plan approved by EPA on May 12, 2011 and any EPA-approved amendments thereto. 6 Section 1.1.157. "Group 1 Additional Source Control Sites" shall mean the seventeen (17) sites separately' and more particularly described in Exhibit "46" hereto and referenced in the UAO as the "Group 1 Additional Source Control Sites". Section 1.1.158. "Main Street Uptown Butte" shall mean Main Street Uptown Butte, Inc., a Montana nonprofit, public benefit corporation with members. Section 1.1.159. "MSP Removal Costs" shall mean any charges, expenses, fees or other costs reasonably incurred by AR pursuant to the requirements of the ROD for the excavation or removal of any Mine Waste from the portion of the MSD Corridor commonly known and referred to as the "Parrott Tailings". Section 1.1.160. "New and Mahonev and 800 North Main Storm Water Sites" shall mean the two (2) Storm Water Sites described in Exhibit 6 to the Agreement as "New and Mahoney Street - comer of Curtis Street" and "800 North Main - Main and Buffalo Street". . Section 1.1.161. "Revised Multi-Pathway Program Budget" shall mean the Revised Multi-Pathway Program Budget attached as Exhibit "42" hereto. Section 1.1.162. "Revised Superfund Programs Budget" shall mean the Revised Superfund Programs Budget attached as Exhibit "43" hereto. Section 1.1.163. "SLWS" shall have the meaning ascribed to such term in Section 1.1.34 of the Water Service Agreement. Section 1.1.164. "SLWS Capital Improvement Account" shall mean the account established by BSB. pursuant to Section 8.7 of -4heWater-SeFviceAgreement. - -- - - Section 1.1.165. "Supplemental Funding Spreadsheet" shall mean the spreadsheet attached as Exhibit "44" hereto with a budgetprojection prepared for illustrative purposes! Section 1.1.166. "UAO" shall mean EPA's Administrative Order for Partial Remedial Action Implementation and Certain Operation and Maintenance at the Butte Priority Soils Operable 7- Unit 1 / Butte Site EPA Docket No. CERCLA 08-2011-0011 issued in July of 2011, the Exhibits attached to the UAO and any amendments thereto; - Section 1.1.167. "Water Service Agreement" shall mean that certain Water Service Agreement between AR and BSB effective November 25, 2006, as amended and modified by that certain Addendum No. 1 to Water Service Agreement effective June 5, 1997 and as further amended and modified by that certain Addendum No. 2 to Water Service Agreement effective May 17, . 2001. . 4. Mine Waste Source Areas. Sections 3.4, 3.5, 3.7 and 3.8 of the Agreement are herby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 3.4, 3.5, 3.7 and 3.8: Section 3.4. Reclamation of Other Mine Waste Source Areas bv AR. The Parties anticipate that the Consent Decree will require reclamation of the Mine Waste Source Areas known as the Anaconda Sampling Works, the Clark Tailings Waste Areas, the Gold Smith Dumps, the Jenny Dell, the Unnamed Dump Site, the . Group 1 Additional Source Control Sites, and the New and Mahoney and 800 North Main Storm Water Sites consistent with , the standards and specifications for land reclamation in the BPSOU, The Parties do not anticipate that the Consent Decree will require additional Response Actions at the Mine Waste Source Area known as the Colorado Smelter. AR shall perform all reclamation and other Response Actions which may be required pursuant to the ROD for the Mine Waste Source Areas known as the Anaconda Sampling Works, the Clark Tailings Waste Areas, the Gold Smith Dumps, the Jenny Dell, the Unnamed Dump Site, the Colorado Smelter, the Group 1 Additional Source Control Sites, and the New and Mahoney and 800 North Main Storm Water Sites. All reclamation and other Response Actions required for the Mine Waste Source Areas reclaimed pursuant to this Section 3.4 : .......................... shall.be performed by AR in accordance with the ROD..and in.......................... accordance with schedules approved by EPA. AR shall provide BSB with advance notice of the final EPA inspection of each of the Mine Waste Source Areas reclaimed pursuant to this Section 3.4 and BSB shall have the right to have its personnel attend the final inspection. AR shall correct any deficiencies noted in, EPA's inspection and submit a construction completion report to EPA for that Mine Waste Source Area, with a copy to BSB. BSB's duties and obligations under Section 3.7 hereof for each Mine Waste 8 BPS 024846 Source Area reclaimed pursuant to this Section 3.4 shall commence upon EPA's concurrence that AR has corrected all deficiencies noted in the final EPA inspection. In the event and to the extent that Response Actions are required by EPA for a Mine Waste Source Area reclaimed under this Section 3.4 following EPA's assessment of the construction completion report for that Mine Waste Source Area, such Response Actions (excluding Response Actions required to correct deficient Operation and Maintenance Activities performed by BSB) shall be performed by AR in accordance with the ROD and in accordance with schedules approved by EPA. Section 3.5. Reclamation of the MSP. AR opposes excavation and removal of any Mine Waste located within the MSD Corridor. BSB's position regarding excavation and removal of Mine Waste located within the MSD Corridor is set forth at page 26 of the BSB Position Paper. If excavation and removal of Mine Waste located within the MSD Corridor is not required, the Parties anticipate that the Consent Decree will require Response Actions that are consistent with the reclamation completed prior to the Effective Date pursuant to the MSD Work Plan. Ef excavation and removal of any Mine Waste located within the MSD Corridor is required by EPA pursuant to the ROD, the MSD Removal Costs incurred by AR shall be offset on a dollar for dollar basis against the total amount of the principal and interest that would otherwise be payable to BSB pursuant to and in accordance with the terms and conditions of Section 15.2.4 hereof. Additionally, AR shall have the right to' tenninate this Agreement pursuant to Section 20.11 hereof. Any other Response Actions within the MSD Corridor that are addressed pursuant to the LAO Surface Enhancement and Land Use Plan shall be the responsibility of BSB pursuant to Section 3.3 hereof. Section 3.7. Operation and Maintenance Activities for Mine Waste Source Areas. The Parties anticipate that the Consent Decree will require the performance of Operation and Maintenance Activities for all reclaimed Mine Waste Source Areas including, without limitation, all Mine Waste Source Areas first reclaimed prior to the Effective Date and all Mine Waste Source Areas reclaimed pursuant to Sections 3.1, 3.2, 3,3, 3.4 and 3.6 hereof. BSB shall perform all Operation and Maintenance Activities which may be required pursuant to the ROD for the Mine Waste Source Areas, including, without limitation, all Mine Waste Source Areas reclaimed prior to the Effective Date and ail Mine waste Source 9 Areas reclaimed pursuant to Sections 3,1, 3.2, 3.3, 3.4 and 3.6 hereof, BSB shall also perform all Operation and Maintenance Activities that arise from BSB's implementation of the LAO Surface Enhancement and Land Use Plan. BSB's duties and obligations under this Section 3.7 for each Mine Waste Source Area reclaimed by AR pursuant to Sections 3.1, 3.2, 3.3 and 3.4 hereof shall commence upon EPA's concurrence that AR has corrected all deficiencies noted in the final EPA inspection for that Mine Waste Source Area. BSB's duties and obligations under this Section 3.7 for each Mine Waste Source Area reclaimed pursuant to Sections 3.6 hereof shall commence upon BSB's completion of any reclamation or other Response Action for which Operation and Maintenance Activities are required pursuant to the ROD. BSB's duties and obligations under this Section 3.7 for all other Mine Waste Source Areas reclaimed prior to the Effective Date shall commence at such time(s) as any requirements to perform Operation and Maintenance Activities with respect to such Mine Waste Source Areas becomes effective pursuant to the ROD or BSB is otherwise obligated to perform such requirements pursuant to Section 10.3 hereof. All Operation and Maintenance Activities required pursuant to this Section 3,7 shall be performed by BSB in accordance with the ROD and in accordance with schedules approved by EPA, except to the extent that the obligations relate to property owned by parties other than BSB or AR and BSB is denied access to such properties after making reasonably diligent efforts to procure access pursuant to the Consent Decree or other administrative orders, BSB's duties and obligations under this Section 3.7 shall not include the general surface water and groundwater monitoring excluded under Section 1.1.100 hereof. Section 3,8, Consideration for Implementation of the LAO Surface Enhancement and Land Use Plan. AR shall provide funding to BSB for BSB's payment of charges, expenses, fees and other costs reasonably incurred by BSB in implementing the LAO Surface Enhancement and Land Use Plan pursuant to .Section 3.3.hereof, for designing.and constructing any necessary improvements to the BSB Sewage Treatment Effluent Line Extension, for the negotiation of a Consent Decree pursuant to Section 21,2 hereof, and for operator training, HAZWOPER training, consulting services, short-term litigation of vegetation and purchase of service vehicles at LAO over multiple years in the total principal amount of Eight Hundred Fifty One Thousand Seven Hundred ninety-four and No/lOOths Dollars ($851,794,00) within sixty (60) days of the Effective Date, Said funds have been 10 BPS 024848 paid to BSB, receipt of which is hereby acknowledged. The LAO Surface Enhancement and Land Use Plan currently contemplates that a pedestrian trail to be known as the Sam Worchester Memorial Trail will be constructed on the north side of Silver Bow Creek with AR having the responsibility for construction of the trail base and BSB, through the funding provided by AR to BSB pursuant to this Section 3.8. or other sources of funding, having all other responsibility for the construction of the trail including, without limitation, responsibility for asphalt paving of the trail base and construction of pedestrian bridges. The Parties acknowledge that modification of the LAO Surface Enhancement and Land Use Plan may be appropriate, including a mutual decision of the Parties to relocate the pedestrian trail to a new course on the south side of Silver Bow Creek or adjustment of the trail course on the north side of Silver Bow Creek to ensure security of the Groundwater Treatment System. In the event and to the extent that the Parties are able to reach mutual agreement with respect to modification of the LAO Surface Enhancement and Land Use Plan which relocates the pedestrian trail to a new course on the south side of Silver Bow Creek, and the new course crosses airy parcel or any portion of any parcel of real property owned by AERL, AR shall: (i) cause AERL to provide BSB an appropriate easement or other mutually agreed upo,n real. property interest which serves to allow the pedestrian trail to cross any parcel or any . portion of any parcel of real property owned by AERL on the south side of Silver Bow Creek; and (ii) cause the base of the relocated pedestrian trail to be constructed, provided that BSB provides AR with appropriate access for such construction activities on any portions of the new course which are located on any parcels or any portion of any parcel of real property owned by any other Person or Governmental Entity. Nothing in this Agreement or the LAO Surface Enhancement and Land Use Plan, in its current form or as it may be amended by the Parties pursuant to this Section 3.8, shall require AR to: (i) acquire or provide BSB with any real property interest for the relocated pedestrian trail oilier than the appropriate -easement-onmther ^... ;;;.. hereunder; (ii) provide or construct any pedestrian bridges or other improvements or amenities which may be desired or required for the relocated pedestrian trail other than construction of the trail base as expressly provided herein; or (3) provide any ftmding to BSB for the relocated pedestrian trail other than, the funding already provided by AR to BSB pursuant to this Section 3.8. 11 BPS 024849 5. Groundwater, Sections 4, i, 4.2,4.3 and 4.4 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 4.1,4.2,4.3 and 4.4; Section 4.1, Groundwater Treatment Technology Options and Positions. AR believes that collection, conveyance and . treatment of alluvial groundwater from the MSD, West Camp and LAO areas through the Groundwater Treatment System will satisfy the requirements for groundwater treatment under the ROD. BSB has adopted the BSB Groundwater Criteria to assess any groundwater treatment technology for alluvial groundwater from the MSD and LAO areas. BSB acknowledges that the Groundwater Treatment System may satisfy the BSB Groundwater Criteria. If additional data collected by AR demonstrates that the Groundwater Treatment System meets the BSB Groundwater Criteria and die performance criteria in the ROD, the Groundwater Treatment System shall be acceptable to BSB as a permanent groundwater treatment technology for the BPSOU. Criteria 1 and 4 of the BSB Groundwater Criteria relating to water quality standards and operations and maintenance shall be deemed satisfied upon BSB's concurrence that criteria 1 and 4 of the BSB Groundwater Criteria and the applicable performance criteria required under the ROD have been Substantially Complied with Showing Reliable System Performance. AR's contribution towards satisfaction of Criteria 2 and 3 of the BSB Groundwater Criteria relating to aesthetics and land reuse was deemed satisfied by AR's payment of funds to BSB for BSB's implementation of the LAO Surface Enhancement and Land Use Plan as contemplated under Section 3.8 hereof. Criteria 5 of the BSB Groundwater Criteria relating to funding shall be further addressed by the Parties during the meeting and conference required pursuant to Section 4.3 hereof. . . Section 4.2. Design and Construction of Groundwater Treatment System Upgrades. Ail of the upgrades required for ................. ....... the . Groundwater Treatment System pursuant to the Groundwater........................... Treatment System Upgrades Plan shall be designed and constructed by AR in accordance with the ROD and in accordance with schedules approved by EPA. In the event that EPA requires any additional Response Actions for the Groundwater Treatment System pursuant to the ROD, AR shall also design and construct any such additional Response Actions in accordance with the ROD and in accordance with schedules approved by EPA. AR shall provide BSB with advance notice of the final EPA inspection of . 12 BPS 024850 the upgrades to the Groundwater Treatment System required pursuant to the Groundwater Treatment System Upgrades Plan and BSB shall have the right to have its personnel attend the final EPA inspection. AR shall correct any deficiencies noted in EPA's inspection and submit a construction completion report for the upgrades to the Groundwater Treatment System to EPA, with a copy to BSB. In the event and to the extent that Response Actions are required by EPA for the Groundwater Treatment System following EPA's assessment of the construction completion report, such Response Actions shall be performed by AR in accordance with the ROD and in accordance with schedules approved by EPA. Section 4.3. Operation and Maintenance Activities for Groundwater Treatment System. Prior to AR's submission of a construction completion report to EPA for the upgrades to the Groundwater Treatment System pursuant to Section 4.2 hereof, the Parties shall meet and confer. During such meeting and conference, the Parties shall attempt to reach agreement with respect to the terms and conditions under which AR and BSB would jointly perform some or all of the Operation and Maintenance activities for the Groundwater Treatment System. In the event and to the extent that the Parties are able to reach agreement, then, commencing thirty .(30) days after a construction completion report for the upgrades to the Groundwater Treatment System is submitted to EPA pursuant to Section 4.2 hereof and continuing until completion of the shakedown required pursuant to the ROD or five (5) years after submission of the construction completion report, whichever occurs first, AR and BSB shall jointly perform all agreed upon Operation and Maintenance Activities for the Groundwater Treatment System. All joint Operation and Maintenance Activities required pursuant to this Section 4.3 shall be performed by AR and BSB in accordance with the ROD and the Groundwater Treatment Operation and Maintenance Plan and in accordance with schedules approved by EPA. During the shakedown required pursuant to the ROD, BSB shaH. not- be requhed -to-unake-aJiy- iiecessaj-y Groundwater Treatment System Capital Repair and Replacement. Prior to the completion of the shakedown required pursuant to the ROD, but in no event more than five (5) years after submission of the construction completion report, the Parties shall again meet and confer. During such meeting and conference, the Parties shall attempt to reach agreement with respect to the tenns and conditions under which BSB would assume responsibility for the performance of some or all of the Operation and' Maintenance . 13 ' Activities for the Groundwater Treatment System, as described in the Groundwater Treatment System Operation and Maintenance Plan, in the event that the Parties are able to reach agreement, BSB shall assume the Operation and Maintenance Activities required pursuant to the ROD for the Groundwater Treatment System on the terms and conditions so agreed upon at that time. In the event that the Parties are unable to reach agreement, BSB's duties and obligations under this Section 4.3 shall cease sixty (60) days following receipt of written notice from either Party. Upon receipt of said notice, all of the remaining .funds in the Superfund Programs Trust Account originally deposited therein for BSB's performance of the Operation and Maintenance Activities required for the Groundwater Treatment System and all funds in the Groundwater Treatment System Capital-Repair and Replacement Account, including all accrued interest and income earned on such funds, shall be returned to AR. In consideration of the mutual covenants and promises contained in this Section 4.3, BSB agrees not to oppose the location and construction of drying beds at LAO or their use in the sludge management function of the Operation and Maintenance Activities for the Groundwater Treatment System. Section 4.4. West Camp Obligations. Nothing in this Agreement requires BSB to take any actions for West Camp, other than those actions that are mutually agreed upon by AR and BSB pursuant Section 4.3 to carry out joint Operations and Maintenance Activities for the Groundwater Treatment System. Failure' to perform, or negligent performance of, such West Camp Operation and Maintenance Activities shall be subject to the remedies, rights and reservations provided under this Allocation Agreement. Performance of such West Camp Operation and Maintenance Activities shall not impose liability upon BSB for any Environmental Condition in the Butte Mine Flooding Operable Unit of the Site. BSB and AR shall cooperate and use their best efforts to obtain the approval of each Governmental Entity required.to..allow emergency treatment of groundwater from the.. Travona pump station at the BSB Municipal Treatment Plant when groundwater withdrawals and treatment of same in the Groundwater Treatment System cannot be accomplished by operation of the West Camp System. In performing West Camp Operation and Maintenance Activities as part of the Operation and Maintenance Activities for the Groundwater Treatment System, BSB shall not be obligated to accept groundwater from the Travona pump station if acceptance of groundwater from the 14 BPS 024852 Travona pump station for treatment at the BSB Municipal Treatment Plant would cause a compliance violation of any applicable permit condition for discharges from the BSB Municipal Treatment Plant to Silver Bow Creek. 6. Multi-Pathway Program Plan. Sections 6.1 and 6.2 of the Agreement is hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Section 6.1; ' Section 6.1. Implementation of Multi-Pathway Program Plan. BSB shall perform all actions which may be required to implement the Multi-Pathway Program Plan. BSB's duties and obligations under this Section 6.1 shall commence at such time(s) as any requirements to implement the Multi-Pathway Program Plan become effective pursuant to the ROD or BSB is otherwise obligated to perform such requirements pursuant to Section 11.3 hereof. All actions required of BSB pursuant to this Section 6.1 shall be perfonned by BSB in accordance with the ROD and the Multi-Pathway Program Plan and tn accordance with schedules approved by EPA, . Section 6.2. j intentionally left blank.} 7. Mine Waste Repository. Section 7.2 of the Agreement is hereby deleted in its entirety and shall have no further force or effect and is hereby replaced with the following revised Section 7.2; Section 7.2. Reclamation of Expanded Mine Waste Repository. On or before October 31, 2012, AR shall cause AERL to convey all of AERL's rights, title and interests to BSB in and to the parcels of real property described in Exhibit 3.1 hereto as the "Proposed West Mine Waste Expansion Boundary" and the "Proposed East Mine Waste Expansion Boundary". In order to effectuate the conveyance contemplated pursuant to this Section 7.2, AERL and BSB shall each execute the Dedicated Use .. ...--... Properties Quitclaim Deed attached as Exhibit "45" hereto and an appropriate realty transfer certificate. BSB's use and development of the Dedicated Use Properties conveyed by AERL to BSB pursuant to this Section 7.2 shall comply with the applicable Covenants and Obligations set forth and/or referenced in. the Dedicated Use Properties Quitclaim Deed attached as Exhibit "45"' hereto. In the event and to the extent that the Mine Waste Repository (as defined for this Agreement) is expanded beyond the approximately thirty one (31) acres depicted on Exhibit "3.1" 15 BPS 024853 hereto, the Parties shall meet and confer. During such meeting and conference, the Parties shall attempt to reach agreement with respect to an amount of additional funding to be provided by AR to the Superfiind Programs Trust Account for BSB's performance of post-closure reclamation and Operation and Maintenance Activities of any expansion of the Mine Waste Repository beyond the boundaries depicted on Exhibit "3.1'*, If the Parties reach agreement with respect to an amount of additional funding, BSB . shall also perform all post-closure reclamation and Operation and Maintenance Activities which may be required pursuant to the ROD for the expansions of tire Mine Waste Repository. All reclamation and Operation and Maintenance Activities required pursuant to this Section 7,2 shall be performed by BSB in accordance with the ROD and other Applicable Laws and in accordance with an appropriate schedule approved by EPA. If the Parties are unable to reach agreement with respect to an amount of additional funding, BSB shall not be required to perform any reclamation or Operation and Maintenance Activities with respect to any expansion of ilie Mine Waste Repository beyond the boundaries depicted on Exhibit "3.1". BSB shall not expand the boundaries of the Mine Waste Repository beyond the boundaries depicted on Exhibit "3.1" without the concurrence of AR, which concurrence shall not be unreasonably withheld. 8. Developable and Dedicated Use Properties and Excavation and Dirt Moving Protocols Ordinance. Sections 9.1.3, 9.2.3 and 9.12 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 9.1.3,9.2.3 and 9.12: Section 9.1.3, LAO. In the event the Parties reach agreement pursuant to Section 4.3 hereof and BSB assumes and performs all Operation and Maintenance Activities required for the Groundwater Treatment System pursuant to the Groundwater Treatment System Operation and Maintenance Plan, AR shall cause AERL to convey all of AERL's rights, title and interests in and to..the.Developable Properties..described..in Exhibit "5.3.1" hereto to BSB on or before the date on which the duties and obligations are assumed. In order to effectuate the conveyance contemplated pursuant to this Section 9.1.3, AERL and BSB shall each execute the Developable Properties Quitclaim Deeds attached as Exhibit "9.3.1" hereto and appropriate realty transfer certificates. BSB's use and development of the Developable Properties conveyed by AERL to BSB pursuant to this Section 9.1.3 shall comply with the applicable Covenants and Obligations 16 BPS 024854 set forth and/or referenced in the Developable Properties Quitclaim Deeds attached as Exhibit "9.3.1" hereto. Section 9.2.3. LAO. In the event the Parties reach agreement pursuant to Section 4.3 hereof and BSB assumes and performs all Operation and Maintenance Activities required for the Groundwater Treatment System pursuant to the Groundwater Treatment System Operation and Maintenance Plan, AR shall cause AERL to convey all of AERL's rights, title and interests in and to the Dedicated Use Properties described in Exhibits "4.3.1" through "4.3.6" hereto to BSB on or before the date on which the duties and obligations are assumed. In order to effectuate the conveyance contemplated pursuant to this Section 9.2.3, AERL and BSB shall each execute the Dedicated Use Properties Quitclaim Deeds attached as Exhibits "8.3.1" through "8.3.6" hereto and appropriate realty transfer certificates. BSB's use and development of the Dedicated Use Properties conveyed by AERL to BSB pursuant to this Section 9.2.3 shall comply with the applicable Covenants and Obligations set forth and/or referenced in the Dedicated Use Properties Quitclaim Deeds attached as Exhibits "8.3.1" through "8,3.6" hereto. Section 9.12. Adoption and Enforcement of Excavation and Dirt-Moving Protocols Ordinance. The Parties anticipate that the Excavation and Dirt-Moving Protocols Ordinance shall be part of an institutional control plan prepared pursuant to the ROD, On or before December 3i, 2012, BSB shall propose and support the adoption of the Excavation and Dirt-Moving Protocols Ordinance. BSB shall perform any duties under the ROD or any EPA decision document for the Site pertaining to compliance with and enforcement of the provisions of the Excavation and Dirt-Moving Protocols Ordinance. BSB may propose amendments, as may be necessary from time to time, to the Excavation and Dirt-Moving Protocols Ordinance which are consistent with this Agreement and the ROD. BSB shall promptly provide AR, EPA and the State with a copy of all.proposed.amendments,to the. Excavation and Dirt-Moving Protocols Ordinance and shall provide AR, EPA and the State with an opportunity to review and comment on all proposed amendments to the Excavation and Dirt-Moving Protocols Ordinance. BSB shall also promptly provide AR, EPA and the State with a copy of all adopted amendments to the Excavation and Dirt-Moving Protocols Ordinance. 17 BPS 02485S 9, Superfund Programs Trust Account, Sections 10.4, 10.5 and 10.7 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 10.4, 10.5 and 10.7 and new Section 10.10: Section 10.4. Authorized Uses of Superfund Programs Trust Funds by AR. The funding provided by AR to the Superfund Programs Trust Account pursuant to Sections 10.2 and 10.10 hereof, plus all accrued interest and income earned thereon, may be drawn upon by AR in accordance with Sections 20.7 and 20.8 of this Agreement and the Superftmd Programs Trust Agreement Section 10.5. Authorized Uses of Superfund Programs Trust Funds by BSB. 'The funding provided by AR to the Superfund Programs Trust Account pursuant to Sections 10.2 and 10.10 hereof, plus all accrued interest and income earned thereon, may be drawn upon by BSB in accordance with this Agreement and the Superfund Programs Trust Agreement to pay Superftmd Programs Costs and BSB's costs for Emergency Response Actions. Section 10.7. Superfund Programs Budgets. On or before May 1 of each Fiscal Year for so long as this Agreement is in effect, BSB shall prepare and provide a Superftmd Programs Budget to AR. Each Superfund Programs Budget shall specify the dollar amount for each quarterly distribution to be made by the Trustee to BSB during that Fiscal Year. The Revised Superfund Programs Budget, including all Task Accounts and the approved budget amount for each Task Account, is hereby concurred in by BSB and AR. In order to account for inflation, BSB may increase the approved annual budget amount set forth in the Revised Superfund Programs Budget for each Task Account by 2% or less annually without the concurrence of' AR, as illustrated in the Revised Superfund Programs Budget All other proposed increases to the Revised Superftmd Programs Budget shall be concurred in by AR,.................. which concurrence shall not be unreasonably withheld, and shall be accompanied by a narrative explanation of the reasons for each . ..........................such proposed increase. Except for costs incurred for Emergency Response Actions, BSB shall not incur any charges, expenses, fees, or other costs during a Fiscal Year in excess of or in addition to the total budget amount for a Task Account set forth in the Superftmd Programs Budget then in effect without the concurrence of AR, which concurrence shall not be unreasonably withheld. Section 10.10. Supplemental Funding of Superfund Programs Trust Accounts. Subject to the tenns and conditions of this .18 BPS 024856 Section 10.10, as described in tlie Supplemental Funding Spreadsheet, AR shall provide supplemental funding to the Superfund Programs Trust Account in the total principal amount of Six Hundred Twenty Seven Thousand Seven Hundred Thirty Three and No/lOOths Dollars ($627,733.00), on or before March 31, 2013. BSB's failure to perform any of BSB's duties or obligations because of AR's failure to deposit funds as required by this Section 10.10, or because the Superfund Programs Trust Account has not yet been fully funded pursuant to Section 10.10 and the amount then on deposit does not provide sufficient funds, shall not be a default by BSB under this Agreement. Within seven (7) days of any deposit of funds into the Superfund Programs Trust Account pursuant to this Section 10.10, AR shall notify BSB of the date and the amount of the deposit. ' 10. Multi-Pathway Program Trust Account Sections 11.4, 11.5 and 11.7 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and is hereby replaced with.the following revised Sections 11.4, 1 U5 and 11.7 and new Sections 11.10 and 1 i.li: Section 11.4. Authorized Uses of Multi-Pathway Program Trust Funds bv AR. The funding and supplemental funding provided by AR, to. the Multi-Pathway. Program. Trust,, Account; pursuant to Sections 11.2 and 11,10 hereof, plus all accrued interest and income earned thereon, may be drawn upon by AR in accordance with Sections 20.7 and 20.8 of this Agreement and the Multi-Pathway Program Trust Agreement. Section tl.S. Authorized Uses of Multi-Pathway Program Trust Funds bv BSB. The funding and supplemental funding provided by AR to the Multi-Pathway Program Trust Account pursuant to Sections 11.2 and 11.10 hereof, plus all accrued interest and income earned thereon, may be drawn upon by BSB in accordance with this Agreement and the Multi-Pathway Program Trust Agreement to pay Multi-Pathway Program Costs and BSB's costs for Emergency Response Actions. .. Section 11.7. Multi-Pathway Program Budgets. On or before May 1 of each Fiscal Year for so long as this Agreement is in effect, BSB shall prepare and provide a Multi-Pathway Program Budget to AR. Each Multi-Pathway Program Budget shall specify the dollar amount for each quarterly distribution to be made by the Trustee to BSB during that Fiscal Year. The Revised Multi Pathway Program Budget is hereby concurred in by BSB and AR. 19 ' BPS 024857 In order to account for inflation, BSB may increase the approved annual budget amount set forth in the Revised Multi-Pathway Program Budget for each Task Account by 2% or less annually without the concurrence of AR, as illustrated in the Revised Multi Pathway Program Budget. All other proposed increases to the Revised Multi-Pathway Program Budget shall be concurred in by AR, which concurrence shall not be unreasonably withheld, and shall be accompanied by a narrative explanation of the reasons for each such proposed increase. Except for costs incurred for Emergency Response Actions, BSB Shall not incur any charges, expenses, fees or other exists during a Fiscal Year in excess of or in addition to the total budget amount set forth in the Multi-Pathway Program Budget then in effect without the concurrence of AR, which concurrence shall not be unreasonably withheld. ' Section 11.10. Supplemental Funding of Multi-Pathway Program Trust Account. Subject to the terms and conditions of this Section 11.10, as described in the Supplemental Funding Spreadsheet, AR shall provide supplemental binding to the Multi- . Pathway Program Trust Account in the total principal amount of Five Million Two Hundred Eleven Thousand Nine Hundred Forty Four and No/lOOths Dollars ($5,211,944.00),. on or before March 31, 2013. BSB's failure to perform any of BSB's duties or obligations because of AR's failure to deposit supplemental funds as required by this Section 11.10, or because, the Multi-Pathway Program Trust Account has not yet been fully funded pursuant to this Section 11.10 and the amount then on deposit does not provide sufficient funds, shall not be a default, by BSB under this Agreement. Within seven (7) days of any deposit of supplemental hinds into the Multi-Pathway Program Trust Account pursuant to this Section 11.10, AR shall notify BSB of the date and the amount of the deposit. ' Section 11.11 Additional Supplemental Funding. Schedule C-2 to the UAO requires that all required soil sampling of residential properties located within the BPSOU and the Adjacent Area will be completed by approximately December 31, 2019 and that all required soil remediation of residential properties located within the BPSOU and the Adjacent Area shall be completed by approximately December'31, 2029. The Multi-Pathway Program Plan also requires implementation of a residential attic dust sampling and abatement program, a tracking and data management program, and an education, and outreach program within the BPSOU, the Adjacent Area and the Attic Abatement Area for a 20 BPS 024858 ninety-nine (99) year period until December 31,2108. The Multi Pathway Program Plan also requires a medical monitoring program within the BPSOU for a ninety-nine (99) year period until December 31, 2108. The Parties hereby acknowledge that the funding and supplemental funding provided by AR to the Multi Pathway Program Trust Account pursuant to Sections 11.2 and 11.10 hereof is intended to provide BSB with sufficient funds to pay the Multi-Pathway Program Costs that may be incurred by BSB in the performance of its Multi-Pathway Program Obligations until approximately December 3i, 2035. On or before December 31, 2033, the Parties shall meet and confer to determine the ' amount of additional supplemental funding to the Molti-Pathway . Program Trust Account that would be needed to pay the Multi Pathway Program Costs that may be incurred by BSB in the performance of its Multi-Pathway Program Obligations within the BPSOU, the Adjacent Area and the Attic Abatement Area after December 31, 2035. If AR elects not to provide additional supplemental funding to the Multi-Pathway Program Trust Account; (i) BSB's shall have no further responsibility for performance of Multi-Pathway Program Obligations under this Agreement after December 31, 2035; (ti) the Parties shall confer with respect to the transition of the Multi-Pathway Program Obligations from BSB to AR; and (iii) all funds remaining in the Multi-Pathway Program Trust Account after December 31, 2035, including all accrued interest and income earned thereon, shall be returned to AR or, at the option of AR, be available solely to AR or its designee to perform Response Actions and/or Operation and Maintenance Activities within the BPSOU, the Adjacent Area and the Attic Abatement Area, at the- option of AR. The rights and obligations of the Parties pursuant to this Section 11.11 are in addition to, and not in any way in lieu of, the rights and obligations of the Parties under Article XVIII hereof. 11. Redevelopment Trust Account. Sections 15.2, 15.3 and 15.5 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced v^ith the-following^rev4sed-Sections-15.2,-15.3-and-15.5:............. ... :...,......... ............... . .. .: Section 15.2. Funding of Redevelopment Trust Accounts. Subject to the terms and conditions of this Section 15.2, as described in the Funding Spreadsheet, AR shall provide funding to BSB for deposit to the Redevelopment Trust Account in the total principal amount of Fifteen Million and No/lGOths Dollars ($15,000,000.00). The total principal amount shall be provided as follows: 21 BPS 024859 1. AR shall provide initial funding to BSB for deposit into the Redevelopment Trust Account in the amount of Two Million Five Hundred Thousand and No/IOOths Dollars ($2,500,000.00) within sixty (60) days of the Effective Date. Said funds have been paid to BSB, receipt of which is hereby acknowledged. 2. AR shall provide additional funding to BSB for deposit into the Redevelopment Trust Account in the amount of Two Million Five. Hundred Thousand and No/IOOths Dollars ($2,500,000.00) within sixty (60) days following issuance of the ROD or within sixty (60) days of the Effective Date, whichever occurs later. Said funds have been paid to BSB, receipt of which is hereby acknowledged. 3. On or before March 31, 2013, AR shall provide additional funding to BSB for deposit into tire Redevelopment Trust Account in the amount of Five Million and No/IOOths Dollars ($5,000,000.00), together with accrued interest on the amount of Ten Million and No/IOOths Dollars (SI0,000,000.00) calculated at the rate of 7% per annum from the Effective Date until the deposit required under this 15,2.3 is made. All interest under this Section 15.2.3 shall be calculated on the basis of a year of 365 days. 4. Subject to the terms and conditions of Section 3.5 hereof, the remaining principal balance of the Rinds consisting of Five Million and No/IOOths Dollars ($5,000,000.00), together with accrued interest thereon, shall be deposited by AR Into the Redevelopment Trust Account within sixty (60) days following the date on which the Consent Decree is effective as a final court order. The funds to be deposited into the Redevelopment Trust Account pursuant to this Section 15.2.4 shall accrue interest at the rate of 3.5% per annum from the date the deposit required under .. this 15.2.4 hereof is made until the date the deposit required under this Section 15.2.4 is made. All interest under this Section 15.2.4 shall be calculated on the basis of a year of 365 clays. Notwithstanding any other term or condition of this Section 15.2, the funds to be deposited into tire Redevelopment Trust Account pursuant to this Section 15.2.4 may, at any time, be prepaid by AR at AR's election by deposit to said account, either in whole or in part, without premium or penalty, on the condition that AR shall pay all accrued interest calculated from the date of the last deposit 22 BPS 024860 to the Redevelopment Trust Account through and including the date of any prepayment on the amount of the remaining principal balance of the funds outstanding at the time of each prepayment, AR's payment of interest so calculated shall be in addition to any prepayment of principal made by AR. 5, BSB's failure to perform any of BSB's duties or obligations because of AR's failure to deposit funds as required by this Section 15.2 shall not be a default by BSB under this Agreement. 6. Within forty eight (48) hours of any deposit of funds into the Redevelopment Trust Account pursuant to this Section 15.2, AR shall notify BSB of the date and the amount of the deposit. Section 15.3. Authorized Uses of Redevelopment Trust Funds. All funds deposited into the Redevelopment Trust Account, together with accrued interest and income earned, thereon, shall be held in trust by BSB and may be drawn upon by BSB (without any requirement to obtain pre-approval from AR) in the amounts and for the purposes authorized under this Section 15.3. 1. Development of Mine Waste Source Areas. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use over a period of years a minimum of Two Million and Mo/lQGths Dollars ($2,000,000.00), with additional funding available subject to the review and approval of the Governing Authority, for soils testing, excavation and hauling, and related time and materials costs, associated with constructing foundations and/or mstallmg/upgrading utilities to support the development of any Mine Waste Source Area and related properties within'-the Site, particularly where mining wastes have been left in place and capped. 2. Historic Preservation. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use over a period of years a minimum of One Million and No/lOOths Dollars ($1,000,000.00), with additional funding available subject to the review and approval of the Governing Authority, for implementation of the Regional Historic Preservation Plan, and amendments thereto, including, without limitation, improvements to and restoration of buildings and other 23 . historic structures in the Butte Hill area and the installation of recreational and historical interpretive features at LAO, the GMMIA and other historic mining locations. 3. Open Space and Recreational Areas. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use over a period of years a minimum of One Million and No/lOOths Dollars ($1,000,000.00), with additional funding available subject to the review and approval of the Governing Authority, for payment of operations and maintenance expenses associated with the recreational and open spaces that have been developed by BSB and AR in concert with reclamation and remedial activities, including, without limitation, the Missoula Ballfields, Foreman's Park, the Copper Mountain Recreational Complex, the Visitors Center, and the trails system within BPSOU. 4. Health Initiatives. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use over a period of years a minimum of One Million and No/lOOths Dollars ($1,000,000.00), with additional funding available subject to the review and approval of the Governing Authority and with oversight and annual funding administration through the BSB Health Board, for implementation of healthy lifestyle initiatives including, without limitation, education and a low-income subsidy program for the replacement of wood burning heating equipment and the purchase and installation. of insulation for attics following remediation/abatement under the Multi-Pathway Program. 5. Festivals. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use over a period of years: (a) a minimum of Five Hundred Thousand and No/IOOths Dollars ($500.000.00). with additional funding available subject to the review and approval of the Governing Authority and with annual funding administration through Main Street Uptown Butte, Inc., a Montana nonprofit, public benefit corporation, to promote and sustain the Montana Folk Festival as an event free to the public; (b) a minimum of Two Hundred and Fifty Thousand and No/lOOths Dollars ($250,000.00), with additional funding 24 available subject to the review and approval of the Governing Authority and with annual funding administration through Evel Knievel Week, a Montana nonprofit, public benefit corporation, to promote and sustain Evel Knievel Days as an event free to the public; and (c) a minimum of Two Hundred and Fifty Thousand and No/lOOihs Dollars ($250,000.00), with additional funding available subject to the review and approval of the Governing Authority and with annual funding administration through the Butte Events Team to promote and sustain St. Patrick's Day events, the 4th of July parade, the An Ri Ra Irish Festival, Octoberfest, the Christmas Stroll and decorations, the County Fair, rodeo's and high school and college sports tournaments at BSB's Civic Center' and other venues in Butte-Silver Bow County and other events deemed appropriate by the Butte Events Team. 6. SLWS Improvements. From the total amounts deposited into the Redevelopment Trust Account, BSB shall set aside, manage and use the amount of One Million and No/lOOths Dollars ($1,000,000:00) to provide funding and support to BSB's Public Works Department for charges, expenses, fees and other costs incurred with respect to the SLWS............................................ 2- Community and Economic Development. Subject to the terms of Sections 15.3.1 through 15.3,6 hereof, BSB shall mange and use the balance of the funds deposited in the Redevelopment Trust Account for: (a) the implementation of community and economic development projects, as approved through the Governing Authority, which serve to promote the overall -welfare and prosperity of Butte residents, and provide a legacy of sustainabledevelopment; and (b) the payment of-the operating expenses of the Governing Authority to administer and guide the planning and use of the funds in the Redevelopment Trust Account, consistent with this Section 15.3 and Section III.B of the BSB Position Paper. AR will be given appropriate public recognition of the funding provided for the purposes specified under this Section 15.3. Such recognition may include, as appropriate, public recognition as a major corporate sponsor, name placement in event or program 25 publications or venues or other appropriate recognition consistent with the amount of the funding provided pursuant to this Section 15.3 in any given year. BSB shall establish the governing authority contemplated under Section 15.3.7(b) hereof promptly following the deposit of hinds into the Redevelopment Account, pursuant to Section 15.2.3 hereof. It is understood and agreed that AR shall have the right, but not the obligation, to designate an individual to serve as a member of the governing authority on AR's behalf, AR shall notify BSB of the name and address of the individual originally designated by AR to serve on the governing authority and of any change in that designation. The individual designated by AR shall have the right to fully participate in the . meetings, deliberations and decisions of the governing authority. It is the intention of the Parties that funding through the Redevelopment Trust Account shall be appropriated on an annual basis, subject to application, reporting and accounting requirements and guidelines developed and adopted by the Governing Authority, and that funding strategies shall be designed to be long-term and sustainable. Section 1S.S. Accounting Reports. On or before September i of each year for so long as this Agreement is in effect, BSB shall prepare and provide a Redevelopment Accounting Report to AR. Each Redevelopment Accounting Report shall include a narrative ' ' description of the public recognition given to AR pursuant to Sections 15.3 hereof. 12. Limitation on Obligations. Sections 18,1, 18.2 and 18.8 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 18.1,18.2 and 18.8: . Section 18.1. Limitation on Suoerfand Programs Obligations. If the combined amount of the funds deposited into the Superfund Programs Trust Account pursuant to Sections 10.2 and 10.10 hereof, plus all accrued interest and income earned thereon, are not .......................... sufficient... to... pay...Superfund...Programs... Costs,....then... BSB's.......................... responsibility for performance of Superfirad Programs Obligations under this Agreement shall cease provided that BSB performed the obligation or obligations which lead to the depletion of the funds with due care and in accordance with the material terms and conditions of this Agreement. If BSB fails to exercise due care or fails to comply with the material terms of this Agreement in the performance of any Superfund Programs Obligations and such . failure results in increased costs for the performance of any such * 26 BPS 024864 obligation, BSB shall expend for any such obligation, from sources separate and independent of funds provided by AR to BSB pursuant this Agreement, an amount equal to the increased costs associated with any such failure, and BSB's responsibility for performance of Superfund Programs Obligations under this Agreement would thereafter cease, BSB's satisfaction of BSB's financial obligation to pay such increased costs shall not limit any remedy that is otherwise available to AR pursuant .to Article XX hereof. Section 18.2. Limitation on Multi-Pathway Programs Obligations. If the amount of the funds deposited into the Multi Pathway Program Trust Account pursuant to Sections 11.2 and 11.10 hereof, plus all accrued interest and income earned thereon, are not sufficient to pay Multi Pathway Program Costs, then BSB's responsibility for performance of Multi-Pathway Program Obligations under tills Agreement shall cease provided that BSB performed the obligation or obligations which lead to the depletion of the funds with due care and in. accordance with the material terms and conditions of this Agreement. If BSB fails to exercise due care or fails to comply with the material terms of this Agreement in the performance of any Multi-Pathway Obligations and such failure results in increased costs for tire performance of any such obligation, BSB shall expend for any such obligation, from sources separate and independent of funds provided by AR to BSB pursuant this Agreement, an amount equal to the increased costs associated with any such failure, and BSB's responsibility for performance of Multi-Pathway Obligations under this Agreement would thereafter cease. BSB's satisfaction of BSB's financial obligation to pay such increased costs shall not limit any remedy that is otherwise available to AR pursuant to Article XX hereof. Section 18.8. General Limitation on Obligations. Except as specifically provided in Sections 4.5, 4.6,4.7,5.4, 6.1, 7.3 and 8.2, nothing in this Agreement shall be construed to obligate BSB to ............. :::::::perform any actions outside of the BPSOU or to otherwise assume any responsibilities for wastes or properties located outside the BPSOU. .. ; .-- : 13. Termination of Agreement. Sections 20. H and 20.13 of the Agreement are hereby deleted in their entirety and shall have no farther force or effect and are hereby replaced with the following revised Sections 20.11 and 20.13: 27 BPS 024865 Section 20.11. Termination of Agreement bv AR. Notwithstanding "any other term or condition of this Agreement, AR, at its election, shall have the right to terminate this Agreement if: (i) the excavation or removal of any Mine Waste from within the MSD Corridor is required pursuant to the ROD; (ii) EPA fails . to incorporate the material terms and conditions of this Agreement into a Consent Decree as contemplated by Section 21.2 hereof on or before December 31, 2013; or (iii) a Work Takeover occurs. AR shall provide BSB with written notice of any election made pursuant to this Section 20.1 i. Promptly following BSEPs receipt of such notice, the Parties shall meet and confer. Ft is understood that during such meeting and conference, AR, in its sole discretion, may make proposals for the modification of this Agreement in lieu of the termination of this Agreement and that such proposals may include, without limitation, a proposal to reduce the amount of the funding provided by AR to BSB pursuant to Article XV hereof. In the event AR elects to terminate this Agreement following the . meeting and conference, AR shall promptly notify BSB in writing. Section 20.13. Return of Trust Funds. If this Agreement is - terminated by BSB pursuant to Section 20.12 hereof or by AR pursuant to Sections 20.11 or 20.12 hereof, then, on the date of . termination, ail funds remaining in the Superfimd Programs Trust Account, the Multi-Pathway Program Trust Account, the Superfimd Management Trust Account, the Capital Purchase, ' Repair and Replacement Account, the Groundwater Treatment System Capital Repair and Replacement Account and the Capital . Improvements Trust Account (if funded pursuant to Section 13.7 hereof), including all accrued interest and income earned thereon, and all funds deposited in the Redevelopment Trust Account , pursuant to Section 15.2.4 hereof, including all accrued interest and income earned thereon, and all funds paid to BSB pursuant to Section 3.8 hereof shall be returned to AR or, at the option of AR, be available solely to AR or its designee to perform Response Actions and/or Operation and Maintenance Activities within the ..........................BPSQil, atthe option of AR.............................................................................................. 14. Miscellaneous Provisions. Sections 21.2 and 21.3 of the Agreement are hereby deleted in their entirety and shall have no further force or effect and are hereby replaced with the following revised Sections 21.2 and 21.3: Section 21.2. Incorporation of Agreement into Consent Decree. On or before December 31, 2013, the Parties shall seek to negotiate and execute a judicially enforceable Consent Decree with' 28 BPS 024866 EPA which incorporates all of the material terms and conditions of this Agreement. Section 21,3. Submittals to EPA. other Governmental Entities. At the time either Party provides or submits any correspondence, report or other document relating to the Party's obligations under this Agreement to EPA ' or any other Governmental Entity, the Party shall provide a copy to the other Party at the addresses set forth in Section 21.5 hereof for the giving , of written notice. Section 21.3. Quarterly Meetings. Appropriate representatives of the Parties shall meet and confer on a quarterly basis to discuss any compliance issues that may have arisen in the prior quarter and to discuss and coordinate the respective duties and obligations of the Parties during the upcoming quarter. AR shall be responsible for taking and preparing minutes of each quarterly meaning and shall provide BSB with copies of the quarterly meeting minutes within ten (10)' business days of each such meeting. 15. Termination of Water Service Agreement and Release of Claims. For and consideration of the mutual promises and covenants contained herein, the payment from AR to BSB of the sum of One Hundred Forty Eight Thousand Nine Hundred and Seventy One and 168/lOOths Dollars ($148,971.68) within sixty (60) days of the effective date of this Addendum No. 3 and AR's consent, which is hereby given, for BSB's use of all funds currently on deposit in the SLWS Capital Improvement Account for payment of any charges, expenses, fees and other costs incurred by BSB's Public Works Department with respect to the SLWS, AR and BSB hereby agree that the Water Service Agreement shall be and hereby is fully terminated for ail purposes as of the Effective date of this Addendum No. 3 and BSB hereby further agrees to' unconditionally, fully and forever release and. discharge, and covenant not to sue AR and AR's shareholders, directors, officers, employees, attorneys, affiliates, parents and agents from and for any and all known or unknown, present and future, claims, demands, losses, damages (including, without limitation, compensatory damages, attorneys' fees, costs and punitive damages) and any and all actions and rights of action of any kind or nature arising out of or relating to the Water Service Agreement. 16. Coordinatfon/Continuing Validity. This Addendum No. 3 is intended to operate in conjunction with the Agreement. Except as expressly provided in this Addendum No. 3, the provisions of the Agreement shall remain in full force and effect. 17. Authority. Each of the persons executing this Addendum No. 3 represent and warrant that they have the full right, capacity, power and authority to enter into this Addendum No, 3 and to consummate the transactions contemplated herein and are authorized to do so and 29 BPS 024867 that this Addendum No. 3 constitutes a valid and legally binding obligation enforceable in accordance with its terms. 18, Effective Date, This Addendum No, 3 shall be effective on the date this Addendum No, 3 is fully executed by the Parties. IN WITNESS WHEREOF, the Parties have caused this Addendum No. 3 to be executed as of the day of _______ 2012. ' ATLANTIC RICHFIELD COMPANY By Its _______ ____________ Attest;; Its THE CITY AND COUNTY OF BUTTE-SILVER BOW Byj Chief Executive Attest: County Clerk and Recorder 30 BPS 024868 Exhibit "3,1" (Revised Map of Mine Waste Repository) BPS 024869 BPS 024870 Exhibit "22" (Excavation and Dirt Moving Protocol) BPS 024871 Butte-Silver Bow County Excavation and Dirt-Moving Protocols For All D,irt-Work to be Performed In or Near Butte Area Superfund Sites FINAL June 22, 2009 ......................US..EPA and MDEQ Approved June 22,.2009........... Butte-Silver Bow County Planning Department 155 West Granite Street Butte, Montana 59701 BPS 024872 Introduction These Excavation and Dirt-Moving Protocols have been developed for and are applicable to All Public, Private and Commercial projects. Private residents and private property owners are required to use these same common-sense protocols. Butte's long history of underground and open-pit mining, milling and smelting has resulted in widespread contamination of metals, such as lead, arsenic, copper and others. The EPA's selected remedy of leaving these "wasies-in-ptsce" has left large- volumes of mine wastes and mineral processing wastes in-place throughout Butte and the surrounding areas. The purpose of these protocols is to provide all persons with plans to minimize the spreading of contaminated soils, through the identification and proper handling of mine wastes. Community compliance with these protocols will assure protection of both human health and the environment. Simple Goals The simple goals of these protocols are to make sure that; * Soils contaminated with mine-wastes are not imported to a clean site; * Soils contaminated with mine-waste are not exported to any site, other than the Repository, * Soils contaminated with mine-waste are property capped with soils and vegetation (or > other caps); a human health and the environment are protected. Background Butte, Montana has a long history of underground and open-pit mining, dating back to the 1860s. Mine, mill and smelter wastes are found throughout many areas of Butte and the surrounding areas of Butte-Silver Bow County (B-S8). Processing the ores required the construction of mills (crushers) and smelters, both of which had their separate types of waste products. Mining and mineral processing wastes include .,jftfasie,toJsK^miilJa^togs^..sm.elter..s.lag_and Qtb.er io'rJns.. These^materials-are coilectiveiy......... .referred to as, "mine-wastes.''..Mine-wastes have historically been widely used in the Butte area to backfill open gulches, to build railroad foundations, building foundations, and as genera! backfill. .- The U.S, Environmental Protection Agency { EPA) and the Montana Department of Environmental Quality (MDEG) along with B-SB, have been actively overseeing environmental reclamation and restoration of the Butte Hill for more than 20 years. These Excavation and Dirt-Moving Protocols are applicable in the entire Silver Bow Creek Watershed, which includes all parts of Silver-Bow County, which directly or eventually drain to Stiver Bow Creek. 2 BPS 024873 Contamination and Sampling It is not possible to visually determine if soils are "contaminated" above or below regulatory cleanup standards. If you have any suspicion of mine waste contamination, County personnel should be contacted and sampling can be arranged FREE of Charge to the excavator / dirt-mover. Please allow several days to a week for results from the analytical laboratory. The EPA standards for soil cleanup actions in Butte are: ' Lead Arsenic Mercury Residential Properties 1,200 ppm 250 ppm 147 ppm Commercial and Recreational and Industrial Properties Open Space Property 2,300 ppm 2,300 ppm 500 ppm 1,000 ppm n.a. n.a. ppm - means Parts per Million n.a. - means Not Applicable Soils with lead or arsenic below these EPA standards are considered, "Below Action Levels" and do not require any special considerations for excavation or dirt-moving. NOTE that the types and levels of contamination become much more restrictive near Silver Bow Creek and its stream banks. In addition to lead, arsenic and mercury, stream contaminants of concern include copper, zinc, iron, aluminum and cadmium, if your excavation or dirt-moving project is located above or near Silver Bow Creek, any storm water gulch or storm water structure, and/or any stream banks, you should contact County personnel at the contact Information provided below, prior to any dirt work. EPA Remedy The remedy implemented in Butte by the EPA and MDEQ is to cap the "wastes-in-place". Large volumes of mining wastes remain throughout Butte and have simply been "capped" with clean soils and vegetation {mostly grasses) to protect both human health and the environment It is very important that the soil caps and the vegetation not be disturbed without a good plan for clean soils repair and revegetation. County Residential Metals Abatement Program (RMAP) The Butte-Silver Bow County Health Department operates the Residential Metals Abatement Program (RMAP). The RMAP investigates residential properties (both interiors and exteriors) for metals contamination and then cleans, removes or otherwise abates the problem(s). if you have any concerns that a residential property has been contaminated with lead, arsenic, mercury or other heavy metals, please contact the B-SB Health Department for assistance at the contact information provided below. . 3 BPS 024874 Materials Transportation The goal of these Dirt-Moving Protocols is to make sure that mine-waste contaminated soils are not further spread throughout the Butte area. Accordingly, vehicles used to transport soils contaminated with mine-wastes need to be properly chosen and properly operated. These measures may be as simple as securing a tarp over the contaminated materials to prevent wind-blown dusts and particulates from leaving the truck. Hauling wet and/or muddy mining contaminated materials is more complicated and may require using bed-liners and/or side-dump trucks which can not leak. .. Tn t I uu ks leaving a mine-waste contaminated site (dry or muddy) should be washed down (- b- >- t tires and the truck under-carriage) before leaving the site onto County roads. This common sense protocol is advisable even on un-contaminated excavation sites. Mine Waste Repository A Mine Waste Repository has been established to provide a final destination for all mine- waste contaminated soils excavated from the Butte area. The Repository is available, FREE of Charge, to home owners, private citizens, contractors, utilities and other excavators who need a location to dispose of mine-waste contaminated materials and associated mine- waste contaminated debris from eligible areas. . The Mine Waste Repository is locked until needed. Please contact the 8-SB Planning Department at the contact information provided below to gain access to the Repository. The Mine Waste Repository is located directly north of Butte, and immediately east of Watkerville, A Street Map of the Repository is attached as Appendix C for directions to the Repository. County Solid Waste Landfill sn Rocker The County owns and operates a Class 11 Solid Waste Landfill located in Rocker, Montana, approximately 5 miles west of Butte. The Landfill has been established to provide a final disposal destination for municipal solid wastes. The County Landfill has established hours of operation when the public can dispose of solid wastes. Please contact the B-SB Landfill Office at the contact information provided below to confirm their hours of operation and to answer any specific questions about the types of wastes they are ailowed to acceptr A Street Map of the Landfill is attached as Appendix D for directions to the Rocker Solid Waste Landfill. illegal Dumping Please be advised that it is illegal to.dump any'materials on public or private property without the owners permission. Butte-Silver Bow County has made available.a Class II Solid Waste Landfill for the disposal of uncontaminated solid waste. Additionally, Butte-Silver Bow County has made available a Mine Waste Repository for disposal of metals contaminated materials, illegal dumping on public and/or private property wilt be investigated by the Police Department and criminal charges may be prosecuted. '' 4 BPS 024875 Excavation and Dirt-IWoving Protocols Step One: As always, CALL BEFORE YOU DIG to identify and locate all underground utilities. Montana State taw requires that everyone planning to excavate (or otherwise disturb the ground) must first call the state-wide One-Call Notification Center at least two (2) business days, but not more than ten days, before the work is scheduled to start. The applicable Montana State Law is; Montana Code Annotated (MCA), 2008, Title 69, Public Utilities, and Carriers, Chapter 4, Utility Lines and Facilities, Part 5 - Excavations Near Underground Facilities. This Montana State Law defines an "Excavation" as follows; (4) (a) "Excavation" means an operation in which earth, rock, or other material in the ground is moved, removed, or otherwise displaced by means or use of any tools, equipment, or explosives. The term includes but is not limited to grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, and cable or pipe plowing and driving. Copies of the complete State Law are available from County personnel. The Utility Location Service is a service provided completely FREE to everybody. Buried utilities typically mailed include electric, gas, oil, fuel, telecommunications including fiber optic cabies, potable water, sanitary sewers and storm sewers. Note that private buried utilities, e.g., propane fuel lines, may not be Identified unless informed by the property owner. Call any time, any day, Toll Free 1 - ( 800) 424 - 5555. Step Two: Check with the County Planning Department and GIS Department for maps of reclaimed and unreclaimed areas to determine whether or not the proposed work area is impacted, or likely to be impacted, with contaminated mine-wastes. Mine wastes are found extensively throughout Butte and the surrounding areas of Butte-Silver Bow County, Step Three: If the area is in a reclaimed area, the following steps must be taken: Any excavated mine-wastes must be disposed at the Mine Waste Repository or replaced in its own void and properly covered, or capped with two-inches of iimerock or a geotextile liner (If applicable, see EPA Protocols below) and clean cover soil. Residential and commercial properties require only 12 inches of cover soil while openspace areas require 18 inches of clean cover soil. If the excavation is going to be paved (asphalt, concrete or similar) or have a structure built on top of it, the building and/or pavement will serve as an adequate "cap". 5 BPS 024876  Following construction, if there are any remaining disturbed areas outside of the pavement and/or building areas, the disturbed areas need to be capped with clean soils. An account of how many cubic yards or truckloads were hauled to the Repository should be submitted to the County Reclamation Manager for record-keeping purposes. During excavation activities, until such time as the excavated materials can be disposed of or replaced, onsite erosion and storm water control measures must be employed to prevent runoff from stormwater carrying the materials off-site. Excavators are urged to use Best Management Practices to control storm water runoff from the excavation site. The Montana Sediment and Erosion Control Manual is available from the Montana Department of Environmental Quality. Additionally, the U.S. ERA can provide the manual, Stormwater Management for Construction Activities. Once the excavation void has been filled and re-capped, the surface must be reclaimed and revegetated. EPA Reclamation and Revegetation Protocols are provided below. The excavated areas must be reseeded with the EPA required seed mix (see Appendix B) or grass sod and protected with proper erosion control measures. Determining factors for erosion control measures include size of area, slope, and proximity to municipal stormwater system inlets and/or residences. Exceptions to these capping requirements, as determined by the County Planning Department, may apply if end land use dictates other measures are more appropriate and applicable. Post-excavation site inspection by County Planning Department personnel, if necessary. - Step Four; If the development area is identified as not being a reclaimed area, the following steps must be taken: Request a Site Evaluation by County Planning personnel for mine wastes before construction activities begin and again prior to site closure. If deemed necessary by County personnel, soil testing to identify whether or not - -: metals contamination is present. County Planning personnel will collect samples at no cost to the excavator / contractor / homeowner. if sample results come back high in levels of contaminants (lead, arsenic, mercury and/or low pH) the excavator shall revert to the protocols ip Step Three above. If sample results come back below EPA Action Levels for lead, arsenic, mercury and/or low pH, the excavator shall proceed with conventional excavation and dirtmoving methods employed on uncontaminated sites. 6 BPS 024877 EPA Reclamation and Revegetation Protocols County personnel can assist you in planning reclamation and revegetation actions. Smallscale disturbances can be reclaimed fairly easily. Larger excavations may require considerably more planning, materials and equipment. Remember, the goals are to make sure that; Soils contaminated with mine-wastes are not imported to a clean site; Soils contaminated with mine-wastes are not exported to any site, other than the Repository, Soils contaminated with mine-wastes are properly capped with soils and vegetation {or other caps); and human health and the environment are protected. The EPA protocols for re-capping and re-vegetation are too long to be included in this document. County personnel can provide you with the complete specifications upon request. The following is a brief summary of the EPA specifications. Surface slopes should be graded and contoured to slopes no steeper than 3:1, That is 3 horizontal feet for every 1 foot in vertical drop. . If the underlying mine waste materials are acidic (pH less than 5.5 ) a two inch (2" ) layer of lime must be placed on the acidic wastes prior to capping with clean soils. The lime must have a calcium equivalent content of not less than 65%, and must be less than one inch { 1") in diameter. A "cap" of clean soils must then be placed over the contaminated soils. The cap of clean soils must be at least eighteen inches (18" ) thick, and reasonably free of trash, rocks, stumps brush and other debris. The clean soils should also be free of noxious weed seeds, such as spotted knapweed. Residential caps need be oniy twelve inches (12") thick. . In order to stabilize the soil cap, vegetation {grasses ) must be re-established by sod or seed. The finai EPA approved Butte Hill Seed Mixture is attached as Appendix B. Generally, this custom blend of seeds is not readily available in Butte as an "off-the-shelf product. Large quantities can be ordered from commercial seed companies. County personnel will assist you in locating bulk suppliers of the above seed mix. Smaller volumes can be purchased at cost from County Departments. ' Note that alternative vegetation and/or seed mixes may be considered depending on known future land uses. The primary purpose of the grasses and other vegetation is to protect the integrity of the soil cap and thereby be protective of human health and the environment. 7 BPS 024878 County Assistance Butte-Silver Bow County has limited funds available to assist home owners, excavators, contractors and/or property owners with these various steps. B-SB Planning Department personnel are available to provide technical assistance and to take samples to be analyzed. The sampling and analysis are provided FREE to the Excavator, The County will also permit contaminated waste materials to be disposed of at the Mine Waste Repository if appropriate, at no cost to the excavator. All ground disturbances are the responsibility of the property owner{s) and/or the excavator(s). The property owners are also required to apply for and obtain any applicable building, construction, demolition and/or other permits from the County or other regulatory agencies. 8 BPS 024879 APPENDIX A CONTACTS B-SB Contacts: Planning Department (Excavation and Dirt-Moving Assistance) Tom M. Malloy, Reclamation Manager County Courthouse Building Office: (406 ) 497 - 6257 or - Cell: {406) 490 - 4286 . Health Department Residential Metals Abatement Program ( RMAP) Eric Hassler, Program Manager 25 West Front Street Office: (406)497-5020 or Cell: ( 406) 490 - 5794 GIS Department ( Maps ) Pat Riordan, Manager County Courthouse Building Office: (406)497-6257 or Cell: ( 406) 490 - 4286 ' County Extension Service ( MSU ) Extension Agent 307 West Mercury Street Office: (406 ) 723 - 0217 or Cell: (406)579-5541 County Solid Waste Landfill in Rocker Landfill Office: {406 ) 782 -1463 Gary Keeler, Manager County Courthouse Building Office: (406 ) 497 - 6521 . ' Butte Silver Bow County Courthouse (406) 497-6161.......................................................................................... Agency Contacts: U.S. Environmental Protection Agency { EPA), Butte Ms. Sara Sparks 782 - 3264 MT DEQ Remediation Division, { MDEQ), Butte Mr. Joe Griffin 841-5042 cell 560-6060 9 BPS 024880 APPENDIX B Butte Hill EPA Seed Mix U.S. EPA Butte Priority Solis Operable Unit (BPSOU) Butte Hilt Revegetation Specifications Seed Mixture . Slender Wheatgass Thickspike Wheatgrass Crested Wheatgrass Sheep Fescue Ladak Alfalfa Red Clover Canada Bluegrass Birdsfoot Trefoil TOTAL Application Rate # P.L.S. / Acre 3.0 2.0 1,0 2.0 1.0 2.0 1.6 1.0 13, County personnel wtil assist you in locating bulk suppliers of the above seed mix. Smaller volumes can be purchased ( at County cost) from County departments. Note that alternative seed' mixes may be considered depending on known future land uses. The primary purpose of the grasses and other vegetation is to protect the integrity of the soil cap and thereby be protective of human health and the environment. 10 BPS 024881 APPENDIX C Street Map to Mine Waste Repository 11 BPS 024882 APPENDIX D Street Map to Rocker Solid Waste Landfill 12 BPS 024883 Exhibit 42" (Revised Multi-Pathway Program Budget) BPS 024884 Exhibit 42 Revised Multi-Pathway Program Budget Account No 2275-200-4401-89 Line Item Several i! Task Account Multi-Pathway Program Annual ' Total July 1,2012 to June 30,2013 Q1 Total- Q2 Total Q3 Total Jul- Sept Oct - Dec Jan - Mar I Q4 Total j Apr - Jun I $1,160,001 $290,000 (*) $290,000 $290,000 $290,001 Notes: * The Funding Spreadsheet and Supplemental Funding Spreadsheet contemplate total annual funding for 2012/2013 (year 7) in the am The total annual funding for 2012/i013 (year 7} includes one-time funding of$ 110,000 for tire purchase of additional equipment for another c will not be included in the Multi-Program Budget for 2013/2014 (year 8) or subsequent years. Exhibit "43" (Revised Superfund Programs Budget) BPS 024886 Exhibit 43 Revised Superfund Programs Budget Account No 5310-200-4306-35 TBD TBD Line Item Several TBD Several !: Task Account Source Areas Reclamation/O&M Additional Mine Waste Repository Expansion and Reclamation Water Treatment in Expanded Lagoon System ' Annual Total $685,364 <*> $0 $0 July 1,201210 June 30,2013 Q1 Total Q2 Total Q3 Total Jui - Sept Oct - Dec Jan - Mar Q4 Total Apr - Jun $171,34] $171,341 $171,341 $171,341 $0 $0 $0 $0 SO $0 $0 $0 Notes: j TBD = To Be Determined ` * Tbe Funding Spreadsheet mtd Supplemental Funding Spreadsheet contemplate total annual funding for 2012/2013 its the amount $3 difference of $385,085 ($685,364 -j $300,279 " $385,085) was expressly approved by AR pursuant to Section 10.7 ofAddendum No. 3 to the Agreement for one-time inclusion in the Revised Superfund Programs Budget Tor 2012/2013 {year 7). The $385,085 increase will not be inclu Superfund Programs Budget for 20j[3/20I4 (yearS) or subsequent years. BPS 024887 Exhibit "44" (Supplemental Funding Spreadsheet) BPS 024888 Atantic RIchfleld-ButtefSHver Bow Global SctUcmcnt - Addendum No. 3 BuR^[Priority Soils Operable Unit. Exhibit 44 sets forth the dollar amounts of AR's supplemental funding obligation for each Trust Account thatwas established under the procedures described In the Allocation Agreement. Exhibit 44(b) Is a second spreadsheet that Illustrates certain budgetassumptions for each Task Account and the total funding projected for each Task Account under those assumptions for additional Items per Addenda 1.2 and 3 of thn Atlncafton AnfftftmRnt Superfund Programs Trust Account Source Areas : Cost hem Program Duration n 1CK3 years Total Ifndfcc&unted Program Cost Total Inflated Program Cost (2% inflation! so SO 5.0% Total Discounted Program Cost (5% NPV1 $0 Mine Waste Repository 100 years so SO 50 Storm Water O&M too years 52,635,000 SS,246,053 5623,733 Multi-Pathway Program Trust Account Additional Areas Req'd by EPA Add'! Equipment farAncIhar Crew Additional Sampling Depth Costs Add'! tabor support ~ phks&otonijst - 24 yeF$ 1 years ' 10 years 24 years 57,320,000 5110,000 3610,000 3312,000 S3.27S.B68 $4,419,015 SHO.00O 3110,000 3667,933 3494,577 3395,464 $533,351 Totals Notes :; 1. Assume that funding of additional items eifprthe 94 remaining years on the original funding. Z. Allantic RtchfinM to porfnmt redamalfcn o! IS add! sites. BSB will bo responsible for O&M of lhose 19 a'Ses (and ail the others) with the budget fdenlified in the 2008 Afocalisn Agreement 3. Atlantic Richfield to prepare and 'permit1 dbslgn ter expansion of Mine Waste Repository. BSB will be responsible far O&M and evenlual closure of the repository with the budget identified in the aoos Allocation Agreement 4. 2006 ASocatlnn Agreement Included $240ltSyear ter Storm Water O&M, Source Area OSM. database management, ala. Assumes that O&M of hyifkidyfiamib devices per Addendum No. 1 to the 2BP6 ABocaffin Agreement will increase BSB costs by 530,00 [per year. 5. Assumes that funding ofadditional MuiliPiihway Program'Items is for24 years from execution ofthe AA Addendum No. 3. 6. AH amounts slswn hr 2012 dollars. Exh. 25 presented costsfbudgets in 2006 doBars. 511,167,000 513,686,138 $5,835,676 A BPS 024889 201212013 2013/2014 2014/2015 2015/2016 2016/201? 2017/2013 2018/2019 Q tt O O 2 1.1 OflOoPtM S CM - c-T> o*>i OoO oo 1* &oOog oR tw<o0 to 9to <b Fto to o gto N,cm tor N>to^ oooagg Cf *a t oto CoM' o o o o9 o 58 8 O Oo OoO to <o Kto. C"TM oa ttoo c j to erf to to to if *o totoo cttoot 5to *4*? aSgXn vc<^;>-v OQon8> SoSto c<|?2Ko'T to **i oQ tt>om Nttrso*f "3 o O O Q It <Q ! i'igO (tjo> < { o*g?*,r mV<K V`"2{' N -- S ST?' a's' to CTh >r o<<ttOooD1' trRn^oSt-f. 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JOkOg."O}l Q o P n ps CO : tS <2 w cf to is. n n 0 <M or qq <r> a ott t'Oo BPS 024891 Z*#P9 OOO'GS $99*B5 OOB'OS Ql-Enof'E*aSc iSl`19 OOO'OE 266*95 OSO'OE 0Z&'8S OIIO'OE 299*29 OOG4Ot 9S3l9$ OBG'OB 8^59 OOO'OC QGQ'Ot 91Z'$ DDO'OC urn ooo'oe iorw OOO'OE COZ'OS DOG'OC 0 G 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a a 0 a 0 0 0 0 0 0 0 0 0 0 0 .0 9 0 0 0 0 0 G G 0 0 D 00 0 0 0 0 & 0 G 0 9 0 0 G 0 C 0 o 00 00 00 D0 0 *0 G0 00 0 0 0 0 0 0 0 & & 0 01 o: 0. 6 0 0 0 0' 0 0 0 0 0 0 00 0 0 0 0 0 0 0 0 0 0 G G 0 0 0 0 o 0 50 00 0 0 0 G G G 0 0 G 0: q: 0 G 0 0 ZPG*P9 ooo'oe ZP`t9 oco*oe 0 0 0 0 s* zsomsoz 6flS'E9 g o o 'g c 699`9 GOQ'OC e 0 a 0 Sfr tSGZ/GSOZ np'ti ooo'oe izrzs o0oo`oc 0c 0 VP CS0O6WZ Jt$fS*r9 ooo'oe 25i'J9 oeo'oe 0 0 0 0 BP StOZ/BtGZ ooo'oe S$`6S o0oo'oe 0 0 G ZP BfrOZ/iVOZ OZB'BS 000'00 GZ9'S5 OOO'OE 0 c 0 0 w uomtciz 2$0'2S GOO'QZ 199^S o0oo'oe 0 0 0 OP 9wre/sw>z 9$rB$ OG&QC 9$`95 OOO'OE 0 0 0 0 6C St>OS/BPGZ BZP'SS ooo'oe ezp'ss ooo'oe 0 0 0 0 SB mz/Bfroz O0G4G o0oo'oe 0 * 0 It tPOVZPQZ SM'tS GGG'GZ s'Zits o0oo'oe G 0 0 SB ZMtfflfOZ (Oe'fS ooo'oe kz'zs O0OO'OE 0 0 0 SB twaom &Z'l$ GOtfOt OtU OOO'OE fl 0; 0, 0! f t>C G?0Zf803 G`0S GGf?*G CCZ'09 OGO*G 0 0 0 0 ee 6GZ/0 SBfZ ZZVZ teo'z owre OGQ'Z 193*1 ZZS'l S88'i Wl Hffl sa'i iwi zori 8Z9*1 2 OatJofliiO^ CD esi O c O o O C5 a o Is es p> cs e> > OoOftO^nO o 4* O rfl O ij W ft) o c O o < CJ. <2) a 53? p> tS c ft O h O M ^ a to Q C * > s`s I go q o o o eo <5 h* O^OoOoOo OoC*tSOoOo oo OO <tt0 an eo O CO ca * 0-^1 oo p 3 o oo og g ft to p v I* 8 o *o t* *> K Q <> O <0 8 IS Opj trvv Oq Oq Oo Oq oo^ooo rj C* TQ (0 K OoOogi O Oi oS 5 Cl o o o> <3 - S :* Cl * ttf N. O 0 O Cry OQ S. 8,fw S3 o oBam c o> to u> OoOoOo^t* a to a oi a to 8 HiOJ $* &a ef 2f n K, n 3 Oc j ^Ci Oq Oo f N a o o o o <v ts O* 8, a O <0 Q. N. O 'jS MK 6a6c>OciO?> cu 9 Ph Or M r*. - -QJ...- ooogs..US....... O C5J SCOq*0:3.:: - 0 <s 0 o O-c^j -O ^; O-CD.^ O - 03 C* 8"c4 o 8 P e> o Od to K Oi Oi CN D O 13 g K O fs T w; Oi 03 ooOo^ti^o ci o> PJ tOo Cl8O o O a to Q c ttl <a u> a cn o ^ cT K* PS lO p> to O C> tS ti O O O q d a o a; o o, e$ tv s& * PS *tfj, cf to es to Oo &q Oo Oo BPS 024893 0*000*00 o o a* o' t* n -- V" _ OftOtoOft 0*00000*5 C> 0 rt 8 qO rtvt gB %'n cO O oo O l r ^ p> *- 8 0 '-i> 0 (B 0O C* T to V OCO S3 s? 0> N I W O 1* 0 c& a e* S' ^ O Q O D O 0O 00 0 O <& a tt oo o' 0Oq ^O^O O C) o o o Q CD ato nfs, r- <s 0 * 0 <0 C3 0 g?. O0O0O0O00 O U3 ON o tf O a> f* O 000000^000 OQOo] 000000^0 GS UUB> P* 17 o> >r o %*' O Si 0 o 2 0 O O Q D) 0*0*0000,00 Ei **(0 O O rsl 3 to * > * gP-* 00 *OOO0O o to a ^ 0 o O ^ SS CO cf 0 ej O o oooa St52 rw-. S3 cf c& O o O o ' Q- 0 S 0000000*00 O CO f> to 000*00.0000 o 0ua- Ors OaB s iio c o 00 0*0*Oo0O O 0> oo . SS. c j tT O' V ......*-* *<* O 0<r... S a o o o o 10 ?K 12 el* qj Oto 0CV 0 0 0 0 0*0 0 S O r-. to o 0*0 5 to 00 00000*0*00 o v O, 0* * 0 to 0 oo 0 a r-J 0 P4 00000*00 cn a0 8*> N 0" f CO ai BPS 024894 4.000 4,080 4.161 j j 4,244 4.329 4.416 4.504 4,594 4,686 4.T80 4.875 4.973 S.072 aa o^ S'a O' ftt P> to o a o u o o Q ol O ftl O r*. c? t * 3 o O Q 9 I? CS CD O to CJ *" . S' > erf of P7 N* 2oOoo2o| o o O o O <Pi o t-s o ^ O Cs 60 ft} 0" os' o? ** 00OftOQOQ: an O (tf ON OftOoCu) s.8, S S efl t w> 8 o to o O g O to s. g Oq Oq Oc j Oo OoOqOijotji S3 o u> 8$ Si: o o o o 2 \| O K OO M^ CD O CM to g * CJ N,' ro <*) f) 0> o Q O Q g Jf> O tt> 8 o ev O V* O O o o O O o| 060 0Cj Dd I J Q f<4 CJ 03 o h-* o O O Qs g u> 2o 1s? ov O ftf 7 O o c> O o o c> O urj CJ *f <> c<t n <4 2 ^O (J <3 o g i o & O iSj O 8 s oto* 0cs> to OJ OoOoOoOO C3 o O O 2S -S-o.. ...to ....... 2 rs-T. c-i V 6j in O O N d> j s QO o g c* N* 2O ocj o O <o 3 2 '" 1 rf ' ** M CiJ f> <y c* o to B<S 0*00 " of (M tO 00tgj 2 a. St: to o Cj Im. O CQ ft* Hf OoOteO*o&| Oo Oo Oc iOq 0 <?, o o O , OoOdDcjOol a rj tO a* erf j s T rO, ,. O^ :o<oD* eVr?a e> D4 aw cs O C7 O Ik. gg. D Ol BPS 024895 $-174 5,277 5.383 i 5.491 5.600 5.712 5.827 ' 5,943 6,052 5.133 0,307 6.433 Cj Cs o <1 O coi si! $5 *f> i^1 *~ Cf>` 0 01 4o0 o o OotRoS<O^V o^nOt\j Sg 8 8 3* <oJJ ! oo o2 G CD O Q O 13 O rj O o| OoOoOfiQoj O0O0OOOQ: oSoo o O pN O K0* O Q O o O 4Oc [ OQ 1I*J O <tjlo 0* O" f to Oo^oPp^O' *> . cT to O OQg at s K o C O a o to sal ,0 1* ` po a_t Oto hOS- 0060<iOo| an K fO K* OoOoI o to CoJ &rv'i o^OoPoo o co Oe WN1 Doogt O Q Ot0rt.0rt> : 5 PoOosOOvOO 6o 8s s **> OaOo ' 6 rv| O O O Ci | si *r F3 * OWJ cH o Q o O , O o Q g! 2P. 5 <oN **fi O cf Ot fo O 0V O ft O Ci O o| OciO^O^Oo a <0 cqs tvo CJ u*> oo o0 CrMt OoOOg s 8o 3?* p r*rf O tH: o K; Oe>cPoDc& BPS 024896 Exhibit "45" (Dedicated Use Properties Quitclaim Deed for Mine Waste Repository Expansion) BPS 024897 Butte-Silver Bow County Attention: County Attorney 155 West Granite Butte, Montana 59701 QUITCLAIM DEED THIS DEED is made effective as of this___ day of_______ , 2012 between ARCO Environmental Remediation, L.L.C., a Delaware limited liability company ("Grantor''), whose address is 317 Anaconda Road, Butte, Montana 59701, and the City and County of Butte-Silver Bow, a political subdivision and municipal corporation organized and existing under the laws of the state of Montana ("Grantee"), whose address is 155 West Granite, Butte, Montana 59701.. I. QUITCLAIM LI Quitclaim. For and in consideration ofTen Dollars ($10.00) and other good and valuable consideration paid by Grantee to Grantor, the receipt and sufficiency of which are hereby acknowledged. Grantor sells, conveys and quitclaims unto the Grantee and its successors and assigns forever, all of Grantor's right, title and interest in and to the parcels of real property described in Exhibit A attached hereto (the "Land") together with any and all right, title and interest of Grantor in and to the following: (i) the minerals and mineral rights (including without limitation, oil and gas rights and sand and gravel rights) for the Land; (ii) the improvements, buildings, appurtenances, structures and fixtures, presently located on the Land; (hi) the easements, rights-of-way and rights of ingress and egress, if any, benefiting and/or burdening the Land; and (iv) the rights, liabilities, obligations and appurtenances pertaining to the foregoing, including any right, title and interest of Grantor in and to streets, gores, alleys or rights-of-way lying adjacent to the Land. The foregoing sale, conveyance and quitclaim of the portion of the Land described in Exhibit A hereto is made SUBJECT to the terms and conditions of this Deed and the Obiigation Deed. The Land plus all of the other interests described in this Article I are referred to in this.. Deed collectively as the "Property." 1 -2 Reservation. Grantor reserves an easement for the benefit of itself, the United States Environmental Protection Agency, the State of Montana, and AR and each of their respective employees, agents, contractors, subcontractors, representatives, agents, successors, assigns and designees, to access, enter upon, and use any or ail of the Property for purposes of-ensuring compliance with, implementing or causing to be implemented any action required under Applicable Laws and/or the Allocation Agreement, Nothing in this Section L2 shall be deemed to relieve Grantee of any of Grantee's obligations with respect to the Property or to impose on Grantor, the United States Environmental Protection Agency, the State of Montana or AR any obligation to perform any action with respect to the Property, -1- BPS 024898 II. DEFINITIONS 2.1 Definitions. For purposes of this Deed, the following terras, shall have the meaning ascribed to them in. this Article II: 2.1.1. Allocation Agreement shall mean that certain Allocation and Settlement Agreement and Mutual Release of Claims by and between the City and County of Butte-Silver Bow and Atlantic Richfield Company dated effective ^December 21, 20.06, and filed on March 2, 2007, in the permanent files of the City and County of Butte-Silver Bow at P.F. 19049 and any amendments thereto. 2.1.2. AR shall mean Atlantic Richfield Company, a Delaware corporation, together with all predecessors and successors {merged, acquired or otherwise) and all parents, affiliates, divisions and subsidiaries and all shareholders, directors, officers, employees, attorneys, contractors, agents, transferees and assigns of each. 2.1.3. Covenants sha 11 mean each of the covenants set forth in Section 4.1 of this Deed, 2.1.4. Enforcing Party shall mean any person or entity entitled to enforce the Covenants pursuant to Section 6.1 of this Deed, 2.1.5. Grantee shall mean the City and County of Butte-Silver Bow, a political subdivision and municipal corporation organized and existing under the laws of the state ofMontana. ...................... 2.1,6. Grantor shall mean, for purposes of Article VIII of this Deed, ARCO Environmental Remediation, L.L.C., a Delaware limited liability company, together with all predecessors and successors (merged, acquired or otherwise) and all parents, affiliates, divisions and subsidiaries and all shareholders, directors, officers, employees, attorneys, contractors, agents, transferees and assigns of each. For all other purposes, the term shall mean ARCO Environmental Remediation, L.L.C., a Delaware limited liability company. , ' 2.1.7. Obligation Deed shall mean that certain Quitclaim Deed dated My 27, 2004, and recorded on duly 29, 2004, at Roll 263, Card 74 in the real property records of the City and County of Butte-Silver Bow, as corrected by that certain Corrected Quitclaim Deed dated as corrected by that certain Corrected Quitclaim Deed dated March 30,2006 and recorded on August 23,2006, at Roll 292, Card 517 in the real property records of the City and County of Butte-Silver Bow. 2,1.8. Property shall, for purposes of Section 8.2 of this Deed, have the meaning assigncd fa the teimS:Dedicated:Uselh'opeities and Developable Properties in the^AliocatiorrAgrecment. For all other purposes, the term shall have the meaning assigned to the term in Article I of this Deed. All other capitalized terms contained in this Deed shall have the meaning ascribed to such terms in Article III of the Obligation Deed. HI. PERMITTED USES All uses not prohibited by the Covenants and/or Applicable laws shall be permitted on the Property. -2- BPS 024899 IV. COVENANTS 4.1 The Covenants. The following Covenants shall burden the Property and are intended to be and shall be construed as covenants of Grantee and its successors, assigns and transferees which run with the Property: 4.1.1. Mining Use. Except as otherwise allowed or permitted pursuant to the reservation set forth in Article II of the Obligation Deed, there shall be no exploration for or mining, milling, processing, drilling, or any other method of development and/or production of any veins, loads or mineral deposits (including, without limitation, hardrock minerals, sand, gravel, clay or other similar naturally occurring substances) on the surface of the Property. Nothing in this Section 4.1.1 shall prevent or preclude the excavation or removal of Borrow Materials from the Property for the purpose of conducting Response Actions and/or Operation and Maintenance Activities within the Site. 4.1.2 Other Uses. There shall be no industrial, commercial, residential, or agricultural (including grazing) use or development (as defined in the Zoning Ordinance) of the Property. 4.1.3 Development. Except as provided in Section 6.3 of the Obligation Deed, there shall be no development or any other action of any kind or nature that in any way alters, disturbs, or interferes with tire Response Actions that have been undertaken or may in the future be undertaken on the Property. , 4.1,4 Water Wells. All use, construction and/or drilling of water wells for any purposes (except for any testing, sampling or monitoring wells that are required by or in conjunction with Applicable Laws and which are approved by governmental entities with jurisdiction over such matters) shall be prohibited. 4.2 Covenants/Ecmitable Servitudes. All of the Covenants contained in Section 4.1 hereof are made for the direct, mutual, and reciprocal benefit of each and every portion of the Property and create an equitable servitude thereon. Each of the Covenants shall operate as a covenant running with the land for the benefit of each lot or parcel of the Property, and shall inure to the benefit of Grantee, Grantor, and any successors, assigns or transferees thereof. No partial invalidity of any covenant or other restriction In this Deed shall affect the validity or enforceability of the remaining provisions hereof. 4.3 Benefited Properties. The Covenants shall be for the benefit of the Benefited Properties. 4.4 Benefits to Benefited Properties. Grantor and Grantee acknowledge that the benefits to the Benefited Properties include, without limitation, (i) the reduction or minimization of potential risk associated with Environmental Conditions on, at, under, near or associated with the Property, and (ii) the maintenance, use and potential.development of the Property in such a manner as to allow economic benefits to accrue to the Benefited Properties. ..................................... 4.5 Modification of Covenants. Any proposed modification of the Covenants must be approved in writing by Grantor, Grantee, and the owner of the parcel burdened by the Covenant to be modified. In order to be effective, any modification of the Covenants must be dated after the date of this Deed and duly recorded in the Butte-Silver Bow County real property records. Any modification that complies with the foregoing requirements shad be deemed duly created and enforceable from and after the effective date thereof. BPS 024900 4.6 Designation of Rights, Grantor may designate any person or entity to exercise the approval rights granted under Section 4.5. Any such designation shaii be in writing, shall refer to this provision and shall be recorded in the Butte-Siiver Bow County real property records. V. OBLIGATIONS Grantee hereby agrees (i) to accept the Property subject to the Obligations set forth in the Obligation Deed and (ii) to assume, undertake and perform the Obligations as the owner of the Property in accordance with the terms and conditions of the Obligation Deed. VI. ENFORCEMENT RIGHTS AND REMEDIES 6.1 Enforcement of Covenants. Grantor, the United States Environmental Protection Agency, the Montana Department of Environmental Quality and each of the owners (as the same may appear from time to time) of the Benefited Properties shall .have the right to enforce the Covenants. Each Covenant shall be enforceable, in perpetuity, to the fullest extent permitted by Montana law. 6.2 Remedies. 6.2,1. Remedies. All remedies available at iaw, in equity or specifically provided in this Deed shall be available for the enforcement of the Covenants. The selection, of remedies shall be within the sole discretion ofthe Enforcing Party. 6.2.2. Specific Performance. Grantee hereby specifically agrees that in addition to all other remedies available under this Deed, at iaw or in equity; the remedy, of."specific performance" shall be available to the Enforcing Party. Grantee hereby waives, to the fullest extent permitted by Montana law, any rights it may have to argue that specific performance is an inappropriate remedy, 6.2.3. Other Remedies. In the event that Grantee fails to comply with any of the Covenants, the Enforcing Party may notify Grantee in writing of the failure, which notice shall specify the item(s) of non-compliance. Grantee shall have 30 days following delivery of the notice to correct the items of non-compliance to the written satisfaction of the Enforcing Party that gave the notice. If Grantee does not cure the failure within 30 days following delivery of the notice, the Enforcing Party shall have the right, but not the obligation, to enter onto to cure the failure and to charge to Grantee the costs incurred by the Enforcing Party in taking any such actions. Grantee shall promptly reimburse Grantor for all such costs incurred. Further, Grantee shall indemnify, defend and hold harmless, the Enforcing Party, its agents, employees or contractors from and against all claims against the Enforcing Party, or liabilities incurred by the Enforcing Party, in taking such actions. Nothing in this Section 6.2.3 shall limit, qualify ... pr abrogate the Enforcing Party's right to specific performance under Section 6.2.2. 6.2,4. Attorneys Fees. If the Enforcing Party is the prevailing party in any action brought by it, the Enforcing Party shall be entitled to reasonable attorneys' fees and costs incurred in bringing sucli action. 6.3 No Waiver. A delay or failure to enforce in any specific instance any Covenant or any violation of any Covenant shall not preclude or waive the right of any Enforcing Party to enforce such Covenant or the violation thereof in that or in any other instance, .. 6.4 Waiver. An Enforcing Party may waive, in a writing executed by the Enforcing Party, a violation of the Covenants. Such waiver shall relate only to the specific violation described in the waiver -4- BPS 024901 and shall not be effective to waive any other Covenants or any prior or subsequent violation, whether of the same or different nature. A waiver by one Enforcing Party shall not be effective against or constitute a waiver by any other Enforcing Party, 6.5 Designation of Rights. Grantor may designate any person or entity to exercise the enforcement and waiver rights granted under this Article VI, Any such designation shall be in writing, shall refer to this provision and shall be recorded in the Butte-Silver Bow County real property records. VII. DISCLAIMER OF WARRANTIES ' 7.1 No Warranties bv Grantor. GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER WHICH ARE NOT SPECIFICALLY AND AFFIRMATIVELY SET FORTH IN THIS DEED, WHETHER EXPRESS OR IMPLED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON, OR THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY. SPECIFICALLY, WITHOUT LIMITING OR ABROGATING IN ANY WAY ANY OF THE FOREGOING, GRANTOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE FOLLOWING MATTERS: 1. THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL CONDITIONS ON, AT, UNDER, NEAR OR ASSOCIATED WITH THE PROPERTY; 2. THE INCOME, IF ANY, TO BE DERIVED FROM THE PROPERTY; 3. TRUTH, ACCURACY, COMPLETENESS OR REPRESENTATIVE NATURE OF THE INFORMATION PROVIDED OR DISCLOSED TO GRANTEE BY GRANTOR RELATING TO THE PROPERTY; 4. COMPLIANCE OF ANY PAST OR PRESENT OPERATIONS OR CONDITIONS WITH ANY APPLICABLE LAWS, PERMITS, REGULATIONS, ORDINANCES, COURT ORDERS, OR CONTRACT PROVISIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS AND THOSE PERTAINING TO PROTECTION OF CULTURAL OR HISTORIC RESOURCES OR SITES, LAND USE OR THE PUBLIC HEALTH, SAFETY AND WELFARE; 5. THE DISPOSAL OR PRESENCE OF ANY HAZARDOUS MATERIALS OR MINING WASTES ON, AT, UNDER OR ASSOCIATED WITH THE PROPERTY, OR THE OCCURRENCE OR EXISTENCE OF ANY PAST OR PRESENT RELEASE OF ANY HAZARDOUS MATERIAL OR MINING WASTE AT, TO OR FROM THE PROPER! INTO THE ENVIRONMENT; 6. THE ABILITY TO OBTAIN ANY PERMITS (IF REQUIRED) OR ANY REGULATORY APPROVALS WITH RESPECT TO ANY OF GRANTEE'S ACTIVITIES OR OBLIGATIONS UNDER THIS DEED. ` -5- BPS 024902 GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTEE HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY. IN ENTERING INTO THIS AGREEMENT, GRANTEE ASSUMES THE RESPONSIBILITY FOR, AND HAS RELIED AND WILL RELY UPON, GRANTEE'S OWN REVIEW, ANALYSIS, AND OPINIONS. 7.2 No Other Representations. GRANTOR IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF, FURNISHED BY ANY REPRESENTATIVE, REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON. ', 7-3 "As Is" Nature of Transfer of Che Property. GRANTEE ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TRANSFER OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS "WITH ALL FAULTS." VUL INDEMNIFICATION, RELEASE AND COVENANT NOT TO SUE 8.1 Indemnification. Grantee, for itself and its successors, assigns and transferees, hereby agrees to (a) indemnify and hold harmless Grantor and AR and (b) defend each of them from any arid all liability for claims or demands of any kind against any of them (by attorneys of their choice) to the extent that the claims or demands arise under, or out of, or are related to: (i) Grantee's or Grantee's successors, assigns and transferees, exacerbation occurring after the date of this Deed of any Environmental Condition or other condition on, at, under, or from the Property or (ii) any injury or damage related to the Property to tire extent such injury or damage is caused by Grantee or Grantee's successors, assigns or transferees after the date of this Deed. This indemnification includes any judicial or administrative proceedings that may give rise to a claim, demand or liability, 8.2 . Release and Covenant Not to Sue. Except as otherwise provided below. Grantee for itself and its successors, assigns and transferees, hereby fully and irrevocably releases and covenants not to sue Grantor and AR, for any private cost recovery suit, contribution, action, or any other actions, claims or liabilities that Grantee may now have or hereafter acquire for any costs, loss, liability, damage, expense, demand, action or cause of action arising under, or out of or related to: (i) any of the Covenants or the Obligations, (ii) any Environmental Conditions on, at, under, or from the Property, or (iii) any past or future use, operation, or development on, at, or under the Property, or the disposition of the Property. The release and covenant not to sue set forth in the preceding sentence shall not apply to preclude Grantee or Grantee's successors, assigns and transferees from asserting either a cross claim or a third party claim for contribution or indemnity under Applicable Laws against Grantor or AR under the following circumstance: ............1......... The claim does not arise solely from Grantee's default in the performance of any material duty or obligation under the Allocation Agreement; 2. The claim does not arise from a failure by Grantee or Grantee's successors, assigns and transferees to either abide by or enforce the Covenants or undertake or perform the Obligations; 3. The claim has been asserted against Grantee or Grantee's' successors, assigns or transferees in litigation by either a person or entity not in privity with Grantee or Grantee's successors, assigns or transferees; and -6- BPS 024903 4. The claim arises from alleged injury or damage to a parcel or parcels of real property located outside of the boundaries of the Property. In the event the exception to the release and covenant not to sue may apply to any claims asserted against Grantee or Grantee's successors, assigns or transferees. Grantor or AR shail have the right and option, but not the obligation, to indemnify and defend Grantee or Grantee's successors, assigns or transferees (by attorneys of Grantor's or AR's choice) The exception to the release and covenant is not intended to and shall not confer any rights, benefits or remedies of any nature upon any person or entity other than Grantee or Grantee's successors, assigns or transferees. The exception to the release and covenant not to sue Is also not intended to and shall not apply to any claims that would otherwise be released pursuant to the Allocation Agreement, shall not constitute a waiver of any defense to liability that may otherwise be available to Grantor or AR under Applicable Laws (which are hereby expressly reserved), and shall not limit or preclude Grantor's or AR's right to assert claims against Grantee and Grantee's successors, assigns and transferees for indemnity or contribution as permitted under Applicable Laws, Further, the exception to the release and covenant not to sue is not intended to and shall not permit Grantee or Grantee's successors, assigns and transferees to commence an independent action against Grantor or AR for indemnity or contribution under Applicable Laws. IX. CONVEYANCE/SI/BSEQUENT OWNERS 9.1 General. The Obligations referenced in this deed and the Covenants and indemnity and release and covenants not to sue set forth in this Deed are intended to be covenants which run with the land and shall be binding upon all subsequent owners of all or any part of the Property. 9.2 Provisions of Subseouent Conveyance Instruments. Grantee hereby agrees that in any subsequent conveyance of aii or any part of the Property, or any interest in the Property (including without limitation any grant of an easement burdening the Property or any grant of a lease of all or any part of the Property), the Grantee shall include the Following provisions in the deed or other conveyance instrument (completed appropriately to refer to this Deed and modified only so as to fit appropriately in the context of the conveyance instrument); ' Grantee hereby agrees to: (i) accept the Property subject to the Obligations set forth in that certain Quitclaim Deed dated duly 27, 2004, and recorded on My 29, 2004, at Roll 263, Card 74 in the real property records of the City and County of Butte-Silver Bow, as corrected by that certain Corrected Quitclaim Deed dated as corrected by that certain Corrected Quitclaim Deed dated March 30,2006 and recorded on August 23, 2006, at Roll 292, Card 517 in the real property records of the City , and County of Butte-Silver Bow (the "Obligation Deed"), (ii) accept the ...... Property subject to the Covenants set forth in that certain Quitclaim Deed dated_________ __,' and recorded on..................... V........at Roll.................... .... ___ , Card___in the real property records of the City and County of Butte-Silver Bow (the "Covenant Deed"), (iii) abide by and enforce the Covenants as the owner of the Property in accordance with the terms and conditions of the Covenant Deed, (iv) assume, undertake and perform the Obligations as the owner of the Property in accordance with the terms and conditions of the Obligation Deed, and (v) be bound by the indemnity and release and covenant not to sue provisions set forth in the Covenant Deed, / -7- BPS 024904 Grantee hereby also agrees that in any subsequent deed or other conveyance instrument, it shall require the grantee in such deed or conveyance instrument to either (a) execute a deed or conveyance instrument which contains the agreements set forth, in the immediately preceding paragraph, or (b) execute a separate acknowledgment attached to the deed or conveyance instrument which contains the agreements set forth in the immediately preceding paragraph. 9.3 Binding Effect. Notwithstanding the foregoing, any person or entity who acquires any right, title or interest in all or any part of the Property shall be conclusively deemed to have consented and agreed to the provisions of Section 9.2, whether or not any reference to this Deed or these provisions is contained in the deed or other conveyance instruments by which such person or entity acquires an interest in the Property. X. MISCELLANEOUS Neither this Deed nor any of the terms, recitals, provisions or statements contained herein shall be construed as an admission of iiability by either party in any proceeding, action or dispute under any Applicable Laws. The Grantor and Grantee have executed this Deed effective as of the date first written above. GRANTOR; ARCO ENVIRONMENTAL REMEDIATION, L.L.C. By:,,____ Its; GRANTEE: THE CITY AND COUNTY OF BUTTE-SILVER BOW Paul David Babb Chief Executive Attest;________________ Sally Hollis Clerk and Recorder -8- BPS 024905 STATE OF MONTANA COUNTY OF SILVER BOW ) ) ss. ) On this___day of, 2012, before me, a Notary Public for the State of Montana, personally appeared________ known to me to be the' ________ of ARCO Environmental Remediation, L.L.C. and acknowledged to me that he/she executed the foregoing instrument on behalfof ARCO Environmental Remediation, L.L.C. Witness my hand and official seal. (SEAL) Notary Public for the Slate of Montana Residing at: ___________________ My commission expires:_______ ____ STATE OF MONTANA COUNTY OF SILVER BOW ) ) ss. ) On this ___ day of, 2012, before me, a Notary Public for the State of Montana, personally appeared Paul David Babb and Sally Hollis, known to me to be the Chief executive and Clerk and Recorder, respectively, of the City and County of Butte-Silver Bow, a political subdivision and municipal corporation organized and existing under the laws of the state of Montana, and acknowledged to me that they executed the foregoing instrument on behalf ofthe City and County of Butte-Silver Bow. Witness ray hand and official seal. (SEAL) Notary Public for the State of Montana Residing at:_____________________ My commission expires:___________ -9- BPS 024906 EXHIBIT A (Legal Description of the Property) Portion of Bell lode (M.S. 746) Sec. 7, T3N, R7W Portion of Speculator lode (M.S. 1100) Sec. 7, T3N, R7W Portion of Wild Bill lode (M.S. 802) Sec. 7, T3N, R7W Portion of Edith May lode (M.S. 970) Sec. 7, T3N, R7W Portion of Adirondack lode (M.S. 1105) Sec. 7, T3N, R7W Portion of Ticon lode (M.S. 1821) Sec. 7, T3N, R7W M.O.F. lode (M.S. 5829) Sec. 7, T3N, R7W Portion of Giant lode (M.S. 5512) Sec. 7, T3N, R7W Portion of Grey Rock lode (M.S. 580) Sec. 7, T3N, R7W - Tract 1 of Certificate of Survey No, 895-A Portion of Bell lode (M.S. 746) Sec. 7, T3N, R7W Portion of Speculator lode (M.S. 1100) Sec. 7, T3N, R7W Portion of Wild Bill lode (M.S. 802) Sec. 7, T3N, R7W Portion of Edith May lode (M.S. 970) Sec. 7, T3N, R7W Portion of Adirondack lode (M.S. 1105) Sec, 7, T3N, R7W Tract ___ of Certificate of Survey No. Butte-Silver Bow County, Montana Exhibit "46'' (Group 1 Additional Source Control Sites) No. . Location, Description IS Agate Street 2S Sutter /Boardman Streets 3S Montana Street/Virginia Street Bridge 4S Alley Near Copper and Alaska Streets 5S West of Virginia Street 6S Franklin Street 7S North Washington 8S Idaho Drainage 9S Nevada Avenue IDS MSD West of Harrison Avenue US MSD East of Harrison Avenue 12S MSD North of Shields Avenue I3S Main Street/Agate Street Bridge 14S Warren Avenue ......................................... ISS Civic Center Parking Lot 17$ Shields Avenue ............................................ ISS Anderson Shaft Wprrpqi\ProL*w Document^I -13929\342415.<foo BPS 024908