The URL can be used to link to this page

Home My WebLink About82-09 RESOLUTIONRESOLUTION NO. 82-09 A RESOLUTION APPROVING THE DOUBLE EAGLE SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT WITH THE UNION PACIFIC RAILROAD IN THE AMOUNT OF $27,500.00; AND APPROVING A BUDGET ADJUSTMENT. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas, hereby approves the Double Eagle Superfimd Site Small Party Settlement Agreement with the Union Pacific Railroad in the amount of $27,500.00. A copy of the Agreement, marked Exhibit A, is attached hereto and made a part hereof. Section 2. That the City Council of the City of Fayetteville, Arkansas, hereby approves a Budget Adjustment in the amount of $27,500.00. PASSED and APPROVED this 16th day of April, 2009. APPROVED. ATTEST: By Oh.ff v -O By: LI 1 ELD JO J'• N, Mayor 01:7,11214141/4. ��, "\ zZ••G\SY Oc ••(/' SG P/' .F; :• • •?3: ;FAY ETT EVILLE-• 'VP x9:QKANSP•\) HGTON C;o" anima SONDRA E. SMITH, City Clerk/Treasurer DOUBLE EAGLE SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT This Small Party Settlement Agreement (hereinafter "Agreement") is made and entered into by and between Union Pacific Railroad Company and City of Fayetteville (hereinafter "Small Party Generator"), as more fully described in the Definitions section below. The purpose of this Agreement is to provide the Small Party Generator with an opportunity to resolve all claims for Covered Costs (as defined below) in connection with the Double Eagle Superfund Site. This Agreement shall, for all purposes, be deemed to be fully executed on the latest dates of execution of this Agreement (hereinafter the "Effective Date"). 1. DEFINITIONS 1.1 "Union Pacific" means Union Pacific Railroad Company and each of its predecessors, successors, parents, subsidiaries, divisions, affiliates, assigns, directors, officers, and shareholders. 1.2 "Small Party Generator" means City of Fayetteville. 1.3 "Parties" means Union Pacific and Small Party Generator. 1.4 "Double Eagle Site" or the "Site" means the Double Eagle Refinery Superfund Site located at 1900 NE First Street in Oklahoma City, Oklahoma County, Oklahoma. The Site covers approximately 12 acres of land near the intersection of Martin Luther King and Reno Street in Oklahoma City, along with any areas where contamination released from the facility has come to be located. The Site is bounded by railroad tracks on the north, Martin Luther King Boulevard on the east, a wooded area on the west, and a truck stop on the south. 1.5 "Double Eagle Litigation" means the lawsuit styled "The United States of America and the State of Oklahoma v. Union Pacific Railroad," C.A. No. 5:06 -CV -00887-C, in the United States District Court for the Western District of Oklahoma. 1.6 "Natural Resource Damages" means damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury to, destruction of, or loss of natural resources resulting from releases at the Site. 1.7 "Response Costs" means all costs of "response" as that term is defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), including direct and indirect costs, interest, and Natural Resource Damages. 1.8 "State Response Costs" shall mean all costs for removal, remediation, or monitoring, including but not limited to direct and indirect costs, together with accrued interest incurred by the State of Oklahoma, including but not limited to the Oklahoma Department of Environmental Quality ("ODEQ") and any successor agencies, or instrumentalities of the same. 1.9 "Covered Costs" means any and all past, present and future claims, liabilities, contribution, or demands related to the Double Eagle Site falling within the definition of Response Costs and State Response Costs. 50164337.1 1.10 "Not Covered Costs" means claims related to the Double Eagle Site for the following: (a) any tort claims, including claims for personal injury or property damage claims (including without limitation diminution of value of property) (b) claims for breach or non- performance of this Agreement; (c) criminal liability; or (d) any other matters that do not fall specifically within the definition of Covered Costs. 2. BACKGROUND 2.1 From approximately 1929 to 1988, Double Eagle Refining Company operated a waste oil re -refining facility on the Double Eagle Site. Waste oil was brought to the Double Eagle Site by independent haulers and Waste Oil Service Company, an affiliate of Double Eagle Refining Company. 2.2 The United States Environmental Protection Agency ("EPA") added the Double Eagle Site to the National Priorities List of contaminated sites in 1989. EPA began a remedial investigation of the Double Eagle Site in 1990 and completed a Remedial Investigation/Feasibility Study ("RI/FS") for surface waters in 1992. In 1992, EPA issued a Record of Decision ("ROD") for the Double Eagle Site, which stated EPA's determination that the Site presented imminent and substantial endangerment to public health, welfare, or the environment. EPA completed an RI/FS for groundwater in 1993 and issued a second ROD in 1994. EPA and the ODEQ then conducted several remedial actions at the Double Eagle Site, completing the groundwater remediation in 1996 and the surface remediation in 1999. The United States and the State of Oklahoma have expended over $30 million in Response Costs and State Response Costs in connection with the Site. 2.3 On August 22, 2006, the United States and the State of Oklahoma filed a cost recovery action under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and Title 27A O.S. §§ 1-2- 101, 1-3-101, and 2-3-101 against Union Pacific in the United States District Court for the Western District of Oklahoma (C.A. No. 5:06 -CV -00887-C) ("Double Eagle Litigation"). The plaintiffs allege that Union Pacific is liable under CERCLA § 107(a) as a former owner of the Double Eagle Site and as an arranger. Union Pacific is the only defendant in the Double Eagle Litigation, although Union Pacific has brought in additional potentially responsible parties ("PRPs") as third party defendants in the lawsuit. 2.4 This Agreement provides an opportunity for Small Party Generator, an entity that has also been identified as a PRP in the Site, to fully resolve its liability to Union Pacific for Covered Costs and avoid prolonged and complicated litigation. 2.5 Small Party Generator, by executing the certification on the signature page attached hereto, certifies that after conducting an investigation regarding its shipments to the Double Eagle Site or shipments transported by Waste Oil Service Company, it has not transported or arranged for the transportation of more than 10,000 gallons of waste oil and/or any other hazardous substances to the Site. Small Party Generator's volume for this Site has been calculated to be 3,930 gallons. 50164337.1 3. OBLIGATIONS OF THE PARTIES 3.1 Covered Matters Provided that Small Party Generator executes this Agreement and timely complies with the payment obligation set forth herein, such Small Party Generator will be released from all Covered Costs. 3.2 Not Covered Matters This Agreement does not provide a release, indemnity, or covenant not to sue for any Not Covered Costs. 3.3 Mutual Release and Indemnity In exchange for the Small Party Generator Settlement Payment described below, the receipt and sufficiency of which is hereby acknowledged, Union Pacific by this Agreement does hereby release, acquit, and forever discharge, and indemnify and hold harmless Small Party Generator from any and all Covered Costs, effective upon Union Pacific's receipt of the entire Small Party Generator Settlement Payment described in Section 3.7 herein. In exchange for this consideration, Small Party Generator does hereby release, acquit, and forever discharge Union Pacific from any and all Covered Costs. 3.4 Covenant Not to Sue Union Pacific and Small Party Generator agree and covenant not to sue or prosecute any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against each other at any time hereafter, with the exception of a suit to enforce the terms of this Agreement, or the payment set forth in Section 3.7 herein. 3.5 Waiver of Claims Small Party Generator agrees not to assert any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against any other person who is a PRP under CERCLA at this Site. This waiver shall not apply with respect to any defense, claim, or cause of action that Small Party Generator may have against any person if such person asserts or has asserted a claim or cause of action relating to the Site against Small Party Generator. 3.6 No Admission The Parties acknowledge and agree that this Agreement is intended to compromise, settle, and resolve disputed claims for the purpose of avoiding the expense and uncertainty of litigation. The Parties do not admit liability of any kind, including without limitation any liability to each other or any other person or entity or to any federal, state or local agency or any other third party under federal, state or local laws, rules or regulations. Neither this Agreement nor any of its terms, covenants, or condition shall be offered or received in evidence in any proceedings or 50164337.1 utilized in any matter whatsoever as an admission of any wrongdoing or liability on the part of any Party or Parties; provided, however, that nothing in this Paragraph is intended or should be construed to bar the enforcement of any term or condition of this Agreement by a Party against the other, or to prevent this Agreement from being used, offered or received in evidence in a proceeding to enforce or effectuate this settlement. 3.7 Small Party Generator Settlement Payment In consideration for the mutual release, indemnity, and covenants provided for herein, Small Party Generator will pay Union Pacific $27,500.00 (hereinafter "Small Party Generator Settlement Payment") within thirty (30) days of the Effective Date. Payment shall be made by cashier's or certified check (or wire transfer) to "Union Pacific Railroad Company" at the following address: Double Eagle Settlement Fund c/o Ms Janie Olivares Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Phone: (713) 651-5501 Fax: (713) 651-5246 4. CONFIDENTIALITY The Parties agree to maintain as confidential the terms of this Agreement; provided, however, Union Pacific may disclose to the United States, the State of Oklahoma and any other parties to the Double Eagle Litigation the names of any Small Party Generator who signs this Agreement. This Agreement shall not be admissible in any proceeding or action, except as may be necessary to interpret or enforce the terms of this Agreement. The Parties also agree that this Agreement, and, except as otherwise set forth in this paragraph, the terms and conditions herein, are confidential and shall not be disclosed unless disclosure is otherwise mandated by law or court order or except as may be necessary to secure insurance coverage or other contractual indemnities, or for tax and/or accounting purposes. If disclosure is required or necessary, the party seeking to disclose shall give reasonable and advance notice (so as to provide at least five (5) business days' notice) to all other Parties so as to allow the other Parties an opportunity to enforce this non -disclosure provision in the appropriate form. 5. WARRANTIES Union Pacific and Small Party Generator represent and warrant that: 5.1 This Agreement is executed with the Parties' full knowledge and understanding of its terms and meaning and on advice of their attorneys. 5.2 The Parties' representatives are of legal age and are legally competent to execute this Agreement and they do so of their own free will and accord without reliance on any representation of any kind or character not expressly set forth in this Agreement. 50164337,1 -4 6. MISCELLANEOUS 6.1 Attorneys' Fees and Costs Each Party shall bear all attorneys' fees and costs arising from the actions of its own counsel or consultants in connection with this Agreement and all matters or documents referred to herein. 6.2 Severability If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided in order to achieve the intent of the Parties to this Agreement to the extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement. The Parties expressly agree that the terms and provisions of this Agreement are contractual in nature and not merely recitals. 6.3 Entire Agreement This Agreement shall constitute the entire agreement among the Parties with respect to the subject of this Agreement and shall supersede and replace any previous agreements and understandings between the Parties, whether written or oral, with respect to the subject matter or this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 6.4 Amendments The provisions of this Agreement may not be changed, discharged, terminated, altered or waived orally, but only by an instrument in writing signed by the Parties hereto. 6.5 No Third Party Beneficiaries It is expressly understood and agreed that this Agreement and the settlement are solely for the benefit of the Parties hereto, and that nothing in this Agreement or the settlement is intended or shall be construed to provide any rights or defenses to any other party. 6.6 Governing Law This Agreement is to be governed and construed in accordance with the laws of the State of Texas, without regard to its laws applicable to choice of law. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year respectively set forth below. [signature blocks on following pages] 50164337.1 UNION PACIFIC RAILROAD COMPANY By: Print Name. Title: Date: STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared , who known to me to be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. GIVEN under my hand and seal of office, this SEAL• 50164337.1 day of 2009. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS NOTARY'S PRINTED NAME -6- SETTING SMALL PARTY GENERATOR SIGNATURE PAGE TO DOUBLE EAGLE SITE SMALL PARTY SETTLEMENT AGREEMENT The Small Party Generator identified below accepts and agrees to the foregoing Double Eagle Superfund Site Small Party Settlement Agreement. Pursuant to Section 2.5 of the Agreement, the Small Party Generator identified below certifies that it has conducted an investigation regarding its shipments to the Double Eagle Superfund Site and its use of Waste Oil Service Company, and the volume set forth in Section 2.5 is accurate. If, for any reason, the representations made in this certification are not accurate or become inaccurate as a result of newly discovered information that results in a change in volume of more than fifteen (15) percent, the Small Party Generator shall promptly provide the corrected information to Union Pacific Railroad Company. If the foregoing occurs, Union Pacific Railroad Company shall have the right to rescind this Agreement with respect to the Small Party Generator upon written notice and return any monies paid by the Small Party Generator. SMALL PARTY GENERATOR: City of Fayepeville B Print Name: Lio STATE OF ARKANSAS COUNTY OF WASHINGTON § Title: Mayor Date: /adA Before me, the undersigned authority, on this day personally appeared Lioneld Jordan , who known to me to be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. GIVEN under my hand and seal of office, this 20th day of April 2009. 50164337.1 NOTARY PUBLIC IN AND FOR THE STATE OF Arkansas Clarice Buffalohead-Pearman NOTARY'S PRINTED NAME Correspondence Correspondence Correspondence Correspondence Correspondence O t1 Xi Cameron Kerran's Response to EPA's 104(e) Request Double Eagle's Response to EPA's 104(e) Requests Ltr from James Charles to Dr. R. Leroy Carpenter Ltr from Cameron Kerran to Preston Carter (2) Ltr from Cameron Kerran to Preston Carter (1) FILE LABEL 30 -Nov -1989 21 -Nov -1989 12 -Feb -1976 VD p CD n G (f N 7 tity Cameron Kerran's Response to EPA's 104(e) Information Request Double Eagle Refining Company's Response to EPA's 104(e) Information Request Letter to Dr. R. Leroy Carpenter of Environmental Health Services re: Waste Oil Facts from James Charles, Double Eagle Refining Company Letter to Preston Carter of the City and County Health Department from Cameron Kerran, Double Eagle Refining Company Letter to Preston Carter of the City and County Health Department from Cameron Kerran, Double Eagle Refining Company 03r tri Cameron Kerran provides information about the Double Eagle Site operations to EPA. Double Eagle Refining Company provides information about the Double Eagle Site operations to EPA. Requests a variance from the Oklahoma State Department of Health for waste oil sludge disposal. Details estimated quantities of waste oil processed at the Double Eagle Site, 'roduction of waste sludge on-site, and the relationship between the Hardage Site and the Double Eagle Site. Details estimated quantities of waste oil processed at the Double Eagle Site and production of waste sludge on-site. cn G1 �? of 0 0-1 7 COD 8 A N Depositions 0 0 0 0 N O 0 C Z C) CD Correspondence Correspondence Correspondence FOLDER Depo of Cameron Kerran (Hardage Litigation 1) Settco's Responses to EPA's 104(e) Request Double Eagle's Additional Responses to EPA's 104(e) Request Double Eagle's Response to EPA's 2nd 104(e) Request Waste Oil Service Co.'s Response to EPA's 104(e) Request FILE LABEL N y 1.611 1/40 W J N A IC.) N 20 1 NO W 19 -Apr -1990 N sv o a til Hardage Deposition of Cameron Kerran Settco, Inc.'s Response to EPA's 104(e) Information Request (adopted .y Double Eagle Refining Company, Cameron Kerran, Waste Oil Service Company, and Michael Kerran) Double Eagle Refining Company's responses to the EPA's 104(e) Information Request Double Eagle Refining Company's Response to EPA's Second 104(e) Information Request Waste Oil Service Company's Response to EPA's 104(e) Information Request r Cameron Kerran provided testimony in the litigation surrounding the Hardage Criner Superfund Site (which was used .y Double Eagle Refining Company for off-site disposal of its waste). The Kerran entities (Settco, Inc., Double Eagle Refining Company, Cameron Kerran, Waste Oil Service Company, and Michael Kerran) jointly respond to questions posed by EPA relating to the Double Eagle Site. Double Eagle Refining Company provides additional information about the Double Eagle Site operations to EPA. Double Eagle Refining Company provides additional information about the Double Eagle Site operations to EPA. Waste Oil Service Company provides information about its pickup and transport of waste oil to the Double Eagle Site. SIGNIFICANCE w 0 co o o -21 OS... .:;. o 0 0 c0 rilM w k) N zCIO IV 00 O� O 00 • EPA Costs Depositions Depositions Depositions Depositions Depositions EPA cost summary' of interest accrued through June 2006', Depo of Cameron Kerran (Double Eagle Litigation 2) Depo of James Charles Depo of Michael Kerran Depo of Cameron Kerran (Double Eagle Litigation 1) Swom Statements of Cameron and Michael Kerran Depo of Cameron Kerran (Hardage Litigation 2) FILE LABELI' 4 -Oct -2007 12 -Sep -2007 5 -Mar -1993 Certified by Financial Management Office Interest Cost Summary Double Eagle Refinery Oklahoma City, OK Site ID = 06 B1 Interest Accrued Beginning 09/26/1989 through 06/30/2006 Continuation of Deposition of Cameron Kerran Deposition of James "Jim" Charles Deposition of Michael Kerran Deposition of Cameron Kerran (Double Eagle Litigation) Sworn Statements of Cameron and Michael Kerran Hardage Deposition of Cameron Kerran y, r rrl EPA's cost summary detailing interest that has accrued on Double Eagle Site for response costs (through June of 2006). Deposition taken during the current litigation. Deposition taken during the current litigation. Deposition taken during the current litigation. Deposition taken during the current litigation. Prior to the initiation of the current litigation, Cameron and Michael Kerran provided sworn testimony regarding Double Eagle Site operations to EPA. Cameron Ken -an provided testimony in the litigation surrounding the Hardage Criner Superfund Site (which was used .y Double Eagle Refining Company for off-site disposal of its wastes). SIGNIFICANCE a Pleadings EPA Reports EPA Reports EPA Reports EPA Reports EPA Costs FOLDER Active Complaint Second Five -Year Report First Five -Year Report ROD for groundwater operable unit ROD for soil operable unit EPA cost summaryi through June 2007 FILE LABEL 29 -Oct -2007 N a O J N o".j 0N 19 -Apr -1994 N LO N w o 0 J m Union Pacific Railroad Company's Fourth Amended Third Party Complaint Second Combined Five -Year Review Report for the Double Eagle and Fourth Street Refinery Sites, Oklahoma City, Oklahoma First Combined Five - Year Review Report for the Double Eagle and Fourth Street Refinery Sites Oklahoma City, Oklahoma County, Oklahoma EPA Record of Decision, Double Eagle Refinery Site Groundwater Operable Unit Oklahoma City, Oklahoma EPA Record of Decision, Double Eagle Refinery Site Oklahoma City, Oklahoma Double Eagle OK Site 06-B 1 Summary of All Packages EPA ATSDR and Oklahoma Department of Environmental Quality (ODEQ) Inception through 06/30/2007 TITLE The active third -party complaint in the Double Eagle Litigation. Summary report prepared by EPA to detail Double Eagle Site response actions and status. Summary report prepared by EPA to detail Double Eagle Site response actions and status. EPA issued this Record of Decision to address the groundwater operable unit at the Double Eagle Site. EPA issued this Record of Decision to address the soil operable unit at the Double Eagle Site. EPA's cost summary detailing Double Eagle Site response costs (does not include interest) (through June of 2007). SIGNIFICANCE A A N CM Settlements Pleadings Pleadings Pleadings FOLDER Administrative Order on Consent Active Scheduling Order Active Response of Union Pacific no O ti, B cm. E w FILE LABEL ao OO In fU N O O '0 N '1"1 co C N co N n O J y tit Administrative Order on Consent Scheduling Order Union Pacific Railroad Company's Second Amended Answer and Counterclaim Complaint (Exhibit 1 to Union Pacific's Fourth Amended Third Party Complaint) TITLE Provides background information about the site and parties which have previously settled with the Environmental Protection Agency. The active scheduling order setting forth deadlines in the litigation. Union Pacific's active responsive pleading to the United States and State of Oklahoma's claims. The original complaint filed by the United States and the State of Oklahoma against Union Pacific. r n z n 2 n X When Applies New Change Other ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N. RHODE ISLAND' P.O. BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 Mailing Information: ll fft 11�v/ci v Tgy z T£vic U 't_ Phone k: AC Sar ! - S°A 1. ''1706 Pickup Information: Date Picked Up Customer P.O. N . Invoice Number 2426 Phone 0' AC Account No. Customer P.O. N . Driver # Route 8 SIale4 Cash T Charge I79 X 66 SSc oy N• ecaved paha m No. Desc lotion Pry Amount 5-G 6 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE /3-V / a_ COMMENTS: Paid Check II Amount $ Sub -Total Tax TOTAL Paid Lash - Amount$ //o, Dryers Signature / ./.. Customer 'latur i�/�'t CONDITIONS OF SALE I. TM Gewab accept by Ne signature AID w siote pekoe by Waste 01 Sent. Company is la the cceOima recyclable used •JmbYve aaNcase SOW oils, bamnvim Us. and/or lyorafc sic The GenaiatOr Ivaae van r s b Wash. OI Santa Camp M Ing Neta olt Niro M bren bedded M Chemical a.aancet WI are considered bit ad/a hazardous by any bc* 04 telt a Sedated agency Y. The Genevan% acknowledges. MN INS noose does ns. refine are Generals znp nstMY Ude. RCM. OFFICE COPY TERMS: ALL.CHARGE INVOICES A ET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 04% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. • VENDOR NO tatib CITY"OF FAYETTEVILLE ARKANSAS 66760 WASTE OIL SERVICE CO' 301 N RHODE ISLi;K0 PO BOX 11257 - OKLAHOf•1A CITY OR 73136 Each Package Must Be Marked Exactly As Shown Here City of Fayetteville. Arkansas NO. B-1167 5 DEPT. SYI tP 13 JACOBS k'FI : 7 f -LJ- NA MTV!! r.:: r f - DATE ACCOUNT NUMBER 77:--119tH-i:.: DELIVERY DATE NEEDED 1 1 VIA • Confirmation - Do Not Duplicate If Checked No Supplier In Arkansas • - 01.•• 1 L1 E- .S c_R__I £' T_1_0_11 V tli:_,. I'li'rE J..22. Oa AiliA/N_T_ 00 TERMS 1. Send to: Accounts P. Fayetteville, Show Mark . t. • Ole - Qua and 3. No 1. '.iscounls towing 5. Orders less 6. FOO agreed and 7. NO 8. Pre -pay Ship Entrance, Ifled. ADDITIONAL �i� �) AND CONDITIONS Itemized Invoice In duplcat Payable of Fayetteville O. Drawer F AR 72702-1751 P. O. Number on Invoice. all packages as shown In rel above. All orders must b mpanled by a packing slit My shipped, dale shlppe .O. number. ubstitutions without prior at effective to 10th of fo month. muse shipped In full ur musette otherwise notified. Fayetteville unless otherwis upon. No extra for packini delivery will be allowed. C.O.D. ORDERS freight and add to Invoice to 113 W. Mountain SI., Rea. unless otherwise spec INSTRUCTIONS 56SL&AL NAST_BIL — HELIOVEIT • - ._Ili' -City ----' • _ .. �, fI , -.. _ `- nY -lylyly"`�'"'l/"`/ / \ ____.._SI]_➢E_.lEIEILEQB_SIfUF_.HAINIELItiiLIE _ / /� 1 1�\ga/' !1J` Ll 6 s .. U 6\ 1 ll - .- -_-- - ; • -••• ._____, .. 1 -' ' - ' _ rye,•OO Qty a Owl TERMS AND CONDITIONS NOT OTHERWISE SPECIFIED ACCTS. PAYABLE... MAIL WITH REMITTANCE PURCHASING AGENT Char.,. Other ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N RHODE ISLAND PO BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 . TWX 910-831-3120 Mailing Information: C'1 / 1 A -7/7171a L r s % »i/C T 'C b %L U, 4" P1-1.7") 1 ,o I _ 5.41 -'77 O.3 Phone if: AC Pickup Information: Date Picked Up q _ c L7( .i � J Invoice Number 4573 Phone a AC Account No Customer P.O a Cay Te msCnarge Driver • Route a Stater i 7S /9 1 X 6( Stu 3 y Gallons Received InventoryDe Item No Description Und Amount Li 7 .3 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE .1 P , 0'i l COMMENTS: Pail Check If Amount S - Sub -Total Tax TOTAL PaiD Casn - Amount $ 9y - Driven Signature //(-, Customer Signature R , //////////// // CONDITIONS OF SALE 1. Tr* Generator lccems by Na signature Mat IIB service gouged by Waste Od Service Company is to Iter collegial of recyclable used absomdrve crankcase mow oils. Iransmtssion ds. and rot hydrant oils. The Genera WIn4 *semis 10 Waste Gd Seneca Company that hese PO haw It bean Mantled wan channel suostarees Mal are CMSCerea toxic andror Ml rOOu$ by any local VIY. Vale. 0 federal +Sney. 2. The Generator acanoWeOges mV ass invoice Does nal release M Generators rHOannbd*Y under RCM OFFICE COPY - TERMS: ALL CHARGE INVOICES ARE NET UPON ' RECEIPT OF STATEMENT. A FINANCE CHARGE 01 11/2% WILL BE CHARGED ON ALL PAST DUE BALANCES THIS REPRESENTS AN ANNUAL RATE OF 1S%. • X When Applies New Change Other ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 Mailing Information: ('J'Iv 4 fAI)/ef icc( Boicf thy E7 FEL/ cLe- 41 70I Phone a: AC ,c c I - 5 I — '77O ) Pickup Information: Date Picked Up Customer P.O. v Invoice Number 6451 Phone # AC Account No. Customer P.O. v Cass Ta msCMrge Driver a Route a State. . 19-57 N9IC SSS Dpi Gallons Received Inventory Imm No. Desc ippon Una Price Amount `� 1 3 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE • -3 . C y COMMENTS: Paid Check 0 Amount $ Sub -Total Tax TOTAL Paid Cash - Amount 5 JY� pavers Signature (�J Customer hat ♦ 41 I CONDITIONS Df SALE I_ The Generales scotch by M Signature mal me lance or wale] by Moe Od Service Company a Ice the collection d recyclable used aNpnMue crankcase map. Ml transmission 0N. and/or nytakc da. TIN Generator loaner vanenla w Wasted sa me GMnpny I ori MM Ole net been Ua.J.d wen anneal substances NI are censers a.0 and red hasaraws by any (beat. ply. stale. re 'weal agency. 2. -TM Generated acknowldges mal nes entice aces not release the Generaio.s rnocnstNy under AGRA. OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 11/2% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. h X When Applies New Change Other Mailing Information: ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY, OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 BOX f/fy 61J- c L /-/Gk, ' 17a 7 ° Phone it: AC CO) - raj- / % Q V Pickup Information: Date Picked Up Q ii-Al Invoice Number 10093 Phone #- AC Account No. Customer P.O.a Cay, laAn° Charge Drivers Route* State* /25i 'I C l s-5-0 09 Received Inventoryx nem No. DescriptiOn p Amount 3 � 0 005 - 053 00 00 GAL. -WASTE OIL -PICK UP SERVICE ,�J 76 o� COMMENTS: Paid Checks Amount f sub -Total Tax TOTAL Paid Cash- Amwntf �� =' ' Drivers Signature �''1 ////��f�jf Q/��/) Customer Signature/..1 / !' 7 # d��\�/�"' s C . nlnNS OF SALE 1. The Generator accepts by N. sign.u.e that In senior gondola Wane ox Service cono.ry i. w ms collection Or recyclable used eulomolive crvac.ea molar d.. s.mmMSon oda and/or hydraulic alt The Gera Samar warrants to Weds 031 Service Company the, tree oas have ora Caen Wended Wm cMKY aW WCe. that sr. Mei* ed toxic .n4'a hazardous W M' local. Ott tete. lade& adenh. 2- The Omer star acknowledge Thal eel triode Oars not release to Ganeetola re.paibkty under RCM. OFFICE COPY • TERMS. ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 114% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 187.. X When Applies New Change Other Mailing Information: ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 ..aAHOMA CITY. OKLAHOMA 73138 UC 4051232.4825 / TWX 910-831-3120 ///&71 vi ccE ff91/EiiEVIcLF) %?1< // ?� 70) Phone*. AC Cb - CSI 00 Pickup Information: Date Picked Up 1-13-• Qt Invoice Number 13932 Phone*. AC Account No. Customer P.O.* cash CpolnONS OF 8111E • 1. leo Gaunter .coon by he *ewers that am.. Padded by Waste ON souks Calory 1a YM =Macaw rcycrhl. iced ..mud.a crankcase 117010W ea. a.n.N.em nae an ,a hydraulic Na. mi anew Yaw wmeW b Wal. OD Scoop Compel OS Mr oda Is. nal bear t4.etl MN serial .CN J. aw ars mrb..d emb.wa amiantus ly any loot city airs a Ydst pour. t 11r Gswaia activation dal et Mice don rut rocs dr Oewrar• nporeaM urs RCM. OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 114% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN Mt UAL RATE OF 18%. Tema GorgeDridar t Route * State t l 2 Si ya x “ 5-. .00 0 y 0eaans ed bmer.torN Men No. DescrOMn urn AmountReCO t 7 0 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE ,a0 _ 9%, ---NS A NtPNtSFNTWITTE COMPANY. I NEAIFIY•AITIOIPF IF TNF NA!FI INF IFMAYAI CISTOMEI IF WAITF III !Ma BY WASTE 91 MIME COM?ANY IF TV REPRFSFIT THAT INANTITY OF «4RTr Ill DESCRIBED IMF ARO I TNI TIME IF IEEIIYAE NAS TIE MAW! TIE WASTE wit SII AtBD1H IF TIE WTI CISME,. CISTIWEIIIITUI '- PaidCMSt r Amoud $ Sue -Total Tex TOTAL COMMENTS: P.M Cash • Amount S �j %y MN01199Tums AVnvrIr ,d/ CpolnONS OF 8111E • 1. leo Gaunter .coon by he *ewers that am.. Padded by Waste ON souks Calory 1a YM =Macaw rcycrhl. iced ..mud.a crankcase 117010W ea. a.n.N.em nae an ,a hydraulic Na. mi anew Yaw wmeW b Wal. OD Scoop Compel OS Mr oda Is. nal bear t4.etl MN serial .CN J. aw ars mrb..d emb.wa amiantus ly any loot city airs a Ydst pour. t 11r Gswaia activation dal et Mice don rut rocs dr Oewrar• nporeaM urs RCM. OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 114% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN Mt UAL RATE OF 18%. X When Applies New Change Other Mailing Infonnation: ORIGINAL INVOICE WASTE OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY, OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-1331-3120 '74_7°1 Phone AC -SCI _ Sq l� t7 7 v Q Pickup Information: Date Picked Up Customer P.O. a Invoice Number 16443 Phone*: AC Amount No. Customer P.O. a Cue Tenn. Cllr Driver Route s State* /7549 614 SS o o y Received Item No. /7C DeeplM�ori Price Amount 3 3 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE /6J-39 ( — AS A P:E:'P,ESFP.TtTIYE OF THE RAPED CDSTRUFR of Wec1F rg erlcec cr•TA''T. 1 HE.E3Y A1!Ti.".e,;FE THE REMOVAL BY WASTE Fr"t"y nr Tcr fIn!..1ILY Or WV CsE 'a 77:vr -TE DES;.f,BE9 AF EE7H;;E:iT THAT AT 113E TIRE OF REMOVAL THE WASTE 0 ;t 0;- - :o '; ' WAS THE fkGFERTY 6f TLE RANO GDSIottx. USTDIitf INN IAL COMMENTS: ld PeCheck• Amount nts SlArotel Tax TOTAL PaMCath-Amount $ Y n= omen ageetw. .0„,..; cw+onw sgtnen.e CONDITIONS OFSALE 1. The Gaza>sewed W te{Y.We tat the wake aai.Le by Week 01 SMa Oarcey Y Icy dr mYcfbnd r•CygEM used WMM crankcase =tor oak IW im GW. endue Newt aY. Tln Guns° Wrest wrnY 4 West* OS Soria Crown PIM M e4 Is not iron ended with then** sbbrcsa Met en rpridMM tat Mtl/a hazardous by W e kcal. CM. Meta a Want yrq. 2 The Gww.mr MrwbdWn 1St tit kwica dose nue coleus Ito Generator* rwpa+EitY USW ACM. OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE c4 1%% WILL BE CHARGED ON ALL PAST OLE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. X When Applies New Change Other Mailing Information ORIGINAL INVOICE • WASTE OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY, OKLAHOMA 73136 (AC 4(Z) 232.4825 / TWX 910831.3120 .fd,"46 /LLE, lilt r�r ��7d1 Phone*:ACS- J- i0 Pickup Information: Phone *: AC - Date Picked Up' Irwoice Number 18619 Atturd oNo. Cisbmer P.O.f Gut Tn 0-u.r Driver• Routes $fete• 0 Daiwr n.osbw fl No.^ In Price Amou O Q 0 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE AS A IEPIESENT a e,. i - tUPANT, 11(111? AITIOAIEE TEE F.fMr '; ;" >' ' EE 1EPIESENT TIAT if TIE TIME IT IEMITAI 1Ni Yf'- E ; ', .M IHhliti t __ COMME rS: POWChockf A,,,,,ettf PeWCmh-Amourti "" S___ow Is, TOTAL D Drewn sgneeee Cuetorar worse Caorlore OP SALE TERM$: ALL CHARGE INVOICES ARE NET UPON t"llo.r.v.co.P. MI+..b,m.•wars.n-bwwaewracmo.neba.aarcamd RECEIPT OF STATEMENT. ecymr used .mimes arts nmb ab, e..a,aon are eru'a bwree are nue Oeuuaeb burr A FINANCE CHANGE of 145% WILL BE CHARGED ..r.a m wm a sw+c• Carodr ew ar ruse m e«n U.reed.mr arnial Wl.as dr.n eeu.aaed mm auwa mans by n mvl w', mtt a beer wwey. ON ALL PAST DIE BALANCES. THIS REPRESENTS I 1h 0..... eama,wAwe e.t at Ieoks does -. - er Dwweve ueedvsreb aer mC11A. AN ANNUAL RATE OF 19%. _ll OFFICE COPY X When Applies ORIGINAL INVOICE New Change -_ WASTE' OIL SERVICE CO. 301 N. RHODE ISLAND P.O. BOX 11257 Other OKLAHOMA CITY. OKLAHOMA 73130 (AC 405) 232-4825 / TWX 410831.3120 Mailing Information: Pickup Information: i f�Vl c,LE ≤ ��,^ , qo a Phone*: AC - d Phone *: AC - Date Picked Up Invoice Number 20984 Account No. Customer P.O.• Ce.0 T chm1m DrNere Route• Stete0 2s) rSsa O G anon. n C110"d tmenby am Ib. lkil pricee` Amato 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE PA .er'.pfsfU ' 4f •Yar vL rUY -I IncRy ftflTIIO!t17E THE IBIOYAL TIF'WASTE OIL EIVI 0IN'ANY AAT TOE OOAIBTY OF WASTE OIL DISCIIIEI ABOVE fl IN PPPPMi► 9i JUL Nola cVSTOrfL COSTINEI INITIAL COMMENTS: Paid CMdks Amount{ &t-Totel Tex TOTAL Paid Cato Amount Dderte SWvA a Cus ow $ryrrture -vii co,onlows OF SALE / TERMS: ALL CHARGE INVOICES ARE NET UPON 1. 1MO..wt- ...J.byft 001.iNMapalm tvfmr rmYdbtd RECEIPT OF STATEMENT. '.ca d ebmw. au. nbbr .4. eWw.bdm d\ fllw I. °. Tle Oww... l'°'. A PITTANCE CHARGE d 1 %% WILL BE CHARGED .error b Cepee'eid .b e. b Mel mwd.d M4 dwd.. e4Ysl.. eW e. WHt .ON s AIS ImenvIcnaaw tn.nr bed de.W,teed eoW.e. c . a ON ALL PAST OLE BALANCES. THIS REPRESENTS xm.w..Ia.I. rpo.eld.dl.I.ekees.d WlMr.Mo.l..v.l.o.+bwl.d. fmA AN ANIWLL RATE OF 1ST.. OFFICE COPY 2:.. :: Y" -•' 't at - _h • ➢f X When Applies �j� ORIGINAL INVOICE Date Picked Up Change \NAS ®h( SE.tIE W C 1. Invoice Number be Other _— 301 N.RHODEISLAND P.O.BOX 11257 0 2 3 2 4 3 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 Mailing Information: Pickup Information: riTd 9 r �'7 i / 1/3. w• Mti A(aronf Q6Pf . Ym', r&J; u-4 i7,q, �,a Phone #: AO Sd J - Sa I '/7S0 Phone #: AC - hxA.CC0unlNo , - »..,. dean`@'3ie+'"�"°(•II,,,C;-+7'.�e IQfIY.' sGti'#M M5^,'�I+. o P 5o 9�mt- ...eelbna 5{ . 'y1``,A- .-. 6nd4°" ,1)9 .I.ICi " 4s IAmoulq �ii{Y�([ -. VI INiUYOV •. �Y :.. ,W'• /Ifi V S Atr R! IO 1 -: PI. . 'I'::..�.V :� t ) .. IN!I, S Q 005-0530000 GAL. - USED OIL - PICKUP SERVICE Q ) O ' II COMMENTS SU6roTAL sex . loin. PAID CHECK # AMOUNT $ . /S..J CR VERS Sg T PAID CASH AMOUNT $�` AS A REPRESENTATIVE OF THE NAMED CUSTOMER OF WASTE OIL SERVICE COMPANY I HEREBY. AUTHORIZE THE. REMOVAL BY WASTE OIL SERVICE COMPANY OF THE QUANTITY OF USED OIL DESCRIBED ABOVE AND PRESENT THAT AT THE TIME , OF REMOVAL THE USED OIL S0 REMOVED WAS THE PROPERTY OF THE NAMED CUSTOMER�/ CUSTOMER SIGNATURE X coNnmoNSOFSAIE TERMS: ALL CHARGE INVOICES ARE NET UPON. ). Tha Oecerelw accept by M egnaMe IhN the seMce pvAme p 'tie on Serrke Cwroelry la,a (he wikctlan RECEIPT OF STATEMENT, • d mc'chde used allonMM acakcase nubr dlb, aeremb.lm a.a mdla hydrant S The Oererela IwYler wart d w Ynue ca Sesce ca'wro uml meae ab m. ml been dnmaa wah deNcd aueswces mm w A FINANCE CHARGE of 1%% WILL BE CHARGED eaneCnM to Ic endra 1r:sdan by a'n loaf dry, mea a seder+aoe cy. ON ALL PAST DUE BALANCES. THIS REPRESENTS z The Gener.w a&xoMal mm mbk dw aoe. Mla.atle ma oaer.W. ms"w fly uMer RCRA AN ANNUAL RATE OF 18%. 1 � OFFICE COPY ':l;' • . 1• 5: S. City of Fayetteville, Arkansas Budget Adjustment Form Budget Year Department: General Government Date Requested Adjustment Number Division: Miscellaneous 2009 4/1/2009 Program: Miscellaneous Project or Item Added/Increased: Project or Item Deleted/Reduced: $27,500 is requested in the settlement account. $27,500 from the use of fund balance account. Justification of this Increase: To pay a settlement for the clean up due to a contract for the hauling of motor oil and disposal from 1986 to 1988 from Fleet Operations. Account Name Settlements Account Name Use of Fund Balance Justification of this Decrease: Sufficient funding remains to comply with City policies. Increase Budget Account Number Amount 1010 6600 5311 09 27,500 Decrease Budget Account Number 1010 0001 4999 99 Project Number Amount Project Number 27,500 �, Approval Signatures / Budget & Research Use Only �/ 7'"' �' U Type: A B C E "Budge[ Director Date Requested By Department Director Date CJ.n. tda.t- -*._ 4 - 1- 0 9 General Ledger Date Date t/ 9 Posted to General Ledger Date Posted to Project Accounting ate Initial Date Initial Date Paul A. Becker Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 4/16/2009 City Council Meeting Date Agenda Items Only Finance Director Division x/16/09 Finance and Internal Servia Department Action Required: Staff recommends approval to enter into an offer of settlement agreement with the Union Pacific Railroad regarding CERCLA "Superfund" Litigation for cleanup costs at Double Eagle Refinery and approve a related budget adjustment in the amoumt of $27,500. $27,500 $ Cost of this request 20,000.00 Category / Project Budget 1010-6600-5311-09 $ 979.00 Account Number Funds Used to Date $ 19,021.00 Project Number Remaining Balance Budgeted Item Budget Adjustment Attached �x N/A Program Category I Project Name N/A Program / Project Category Name General Fund Fund Name —Ps 0.- JL,S. 9- a..146 ! Previous Ordinance or Resolution # Department Director Date Original Contract Date: c I q Q9 Original Contract Number: City Attorme ate '-PcJ cx . (L1,,,` 4 , 9. and Internal Services Director Date Received in City IER Clerk's Office n O f1 9 1J1 to D to Received in Mayor's Offce i� v9 Date Revised January 15, 2009 FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LEGAL DEPARTMENT To: Don Marr, Chief of Staff; Dennis Pratt, Fleet Operations From: David J. Whitaker, Fay tteville Assistant City Attorney Date: March 26, 2009 Subj: Potential CERCLA "Superfund" Litigation and Offer of Settlement from Union Pacific Railroad I have attached copies of the letter we received today from Fulbright & Jaworski, LLP, counsel for the Union Pacific Railroad, offering the City of Fayetteville the opportunity to settle a potential contribution suit for our portion of the cleanup costs at the Double Eagle Refinery Superfund Site in Oklahoma City. Please review it carefully. It appears from the documents in attached Exhibit B, that the City hired Waste Oil Service Company to remove and dispose of waste oil during a period between 1986-1988. Under the federal Superfund legislation, we are therefore responsible for a portion of the cleanup costs. Union Pacific's records indicate that we contributed 3,930 gallons of material containing hazardous substances to the site, and they are offering to release us from further liability for the cleanup if we choose to enter into the Settlement Agreement and pay the sum of $27,500.00. For this sum, UP also agrees to provide us with indemnity from all other claims that might be brought by other parties under this litigation. I have shared this information with City Attorney Kit Williams, and we agree that this would be a small price to pay to be released from further liability as well as saving the City the cost of hiring outside counsel who specializes in complex and protracted CERCLA litigation in another state. It is also very important that we investigate whatever records we may still possess, (we're guessing at Fleet) that may show other shipments of waste oil through Waste Oil Service Company, as the Agreement requires that we certify that we have conducted such an investigation. All of this must be accomplished in a very tight time frame, as the deadline to accept the Settlement Offer is April 23, 2009, and City Council action would need to be taken much earlier than that to ensure a Check Request, etc. could be processed in time. Let me know if you have any questions. THE CITY OF FAYETTEVILLE, ARKANSAS To: Don Man, Chief of Staff From: Marsha Hertweck, Accounting Director Through: Paul Becker, Finance Director Date: April 2, 2009 Subject: Certification of gallons in the Offer of Settlement from Union Pacific Railroad In March 2009 the City received a letter from Fulbright & Jaworski, LLP, representing the Union Pacific Railroad, offering the City an opportunity to settle its liability relating to the Double Eagle Refinery Superfund Site in Oklahoma City, Oklahoma. As part of the agreement to settle, the City is required to conduct an internal investigation to certify that the City transported less than 10,000 gallons of waste oil and/or any other hazardous substances to the site through the City's contract with Waste Oil Service Company. I contacted Gina Roberts, the City's Document Management Manger, to review the City's vendor files for the years 1986 through 1989 for payments to Waste Oil Service Company. Gina's investigation produced the same invoices that were included in the offer letter. Therefore, I am comfortable with agreeing with the 3,930 gallon amount that was used in the agreement document. 113 WEST MOUNTAIN 72701 479-575.9330 FAX 479-575-9257 ayeeNle ARKANSAS oil FLEET OPERATIONS 1525 S. Happy Hollow Road Fayetteville, AR 72701 (479) 444-3495 FAX (479) 444-3425 To: Don Marr, Chief of Staff David J. Whitaker, Fayetteville Assistant City Attorney The Fleet Management Division Upon receipt of the Super Fund clean up documentation started an internal fact finding investigation. The company that is listed in this litigation, Waste Oil Services Company, did pick up our Waste Oil in the late 80's and the signatures on the invoices were City of Fayetteville employees. The Fleet Management Division went back as far as possible in its records, 1994 and forward and found no invoices to that company on file. The new company picking up the waste oil is Used Oil Services Inc, EPA# AAR 000005405, located in Springdale Arkansas. If I can help with any further information please let me know. Dennis Pratt, Fleet Manager, City of Fayetteville RESOLUTION NO. A RESOLUTION APPROVING THE DOUBLE EAGLE SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT WITH THE UNION PACIFIC RAILROAD IN THE AMOUNT OF $27,500.00; AND APPROVING A BUDGET ADJUSTMENT. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas, hereby approves the Double Eagle Superfund Site Small Party Settlement Agreement with the Union Pacific Railroad in the amount of $27,500.00. A copy of the Agreement, marked Exhibit A, is attached hereto and made a part hereof. Section 2. That the City Council of the City of Fayetteville, Arkansas, hereby approves a Budget Adjustment in the amount of $27,500.00. PASSED and APPROVED this 16`h day of April, 2009. APPROVED: By: LIONELD JORDAN, Mayor By: ATTEST: SONDRA E. SMITH, City Clerk/Treasurer FULBRIGHT & JAWORSKI L.L.P A REGISTERED LIMITED LIABILITY PARTNERSHIP FULBRIGHT TOWER 1301 MCKINNEY. SUITE 5100 HOUSTON. TEXAS 77010-3095 WWW.FULBRIGHT.COM ATORRANT@FULBRIGHT.COM DIRECT DIAL: (713) 651-3527 March 24, 2009 BY CERTIFIED MAIL - RETURN RECEIPT REQUESTED City of Fayetteville Attn: Legal Department 113 W. Mountain Fayetteville, AR 72701 TELEPHONE: (713) 651-5151 FACSIMILE: (713) 651-5246 Confidential Settlement Communication Re: Double Eagle Refinery Superfund Site, Oklahoma City, Oklahoma —Small Party Settlement Offer Dear Sir or Madam: We are writing on behalf of our client, Union Pacific Railroad Company ("Union Pacific") in connection with claims that Union Pacific has against your company. Your company is receiving this letter because it has been identified as a potentially responsible party ("PRP") in connection with the Double Eagle Refinery Superfund Site in Oklahoma City, Oklahoma ("Double Eagle Site" or "Site"). The purpose of this letter is to offer your company the opportunity to settle its liability relating to the Double Eagle Site through participation in a Small Party Settlement. Under federal law known as the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA", also known as Superfund), the United States may bring an action against PRPs who have either transported (a "transporter") or arranged for (an "arranger") the transportation of hazardous substances to a Superfund site. Any PRP who has been sued by the United States may in turn pursue other PRPs through a contribution lawsuit. On August 22, 2006, the United States and the State of Oklahoma (the "Plaintiffs") filed a cost recovery action under Section 107 of CERCLA, 42 U.S.C. § 9607, and Title 27A O.S. §§ 1-2- 101, 1-3-101, and 2-3-101 against Union Pacific, in the United States District Court for the Western District of Oklahoma (C.A. No. 5:06 -CV -00887-C) ("Double Eagle Litigation"). The Plaintiffs allege that Union Pacific is liable under CERCLA § 107(a) as a former owner of the Double Eagle Site and as an arranger. Union Pacific has filed a counterclaim for contribution against the United States and the State of Oklahoma in the Double Eagle Litigation based on evidence that Plaintiffs sent 50163066.1 AUSTIN . BEIJING . DALLAS . DENVER . DUBAI . HONG KONG . HOUSTON . LONDON . Los ANGELES . MINNEAPOLIS MUNICH . NEW YORK . RIYADH . SAN ANTONIO . ST. LOUIS . WASHINGTON DC City of Fayetteville March 24, 2009 Page 2 Confidential Settlement Communication hazardous substances to the Double Eagle Site. In addition, Union Pacific has filed third -party contribution actions in the Double Eagle Litigation against a number of PRPs who, like your company, sent hazardous substances to the Double Eagle Site. Discovery in the Double Eagle Litigation is ongoing, and trial has been set for January 2010. New parties may still be added to the lawsuit. The government has spent over $30 million in response costs addressing the soil and groundwater contamination found at this Site. We have evidence indicating that Waste Oil Service Company hauled waste oil and possibly other materials containing hazardous substances from your company to the Double Eagle Site. Because of this, your company also shares responsibility for the cleanup costs expended by the government. However, since we believe that. your company sent under 4,000 gallons of material to the Site, we are offering you the opportunity to settle your liability as a Small Party Generator without having to incur the cost of protracted litigation. Additional information concerning the Double Eagle Litigation can be found in the CD enclosed in this letter. A list of all documents contained on the CD is included as Exhibit A hereto. Site Background The Double Eagle Site is comprised of approximately 12 acres of land and is located at 1900 N.E. First Street, near the intersection of Martin Luther King and Reno Street in Oklahoma City, Oklahoma. From approximately 1929 to 1988, Double Eagle Refining Company operated a waste oil re -refining facility on the Double Eagle Site. Waste oil was brought to the Double Eagle Site by independent haulers and Waste Oil Service Company, an affiliate of Double Eagle Refining Company. Waste Oil Service Company transported materials from hundreds of locations in Oklahoma and other nearby states to the Double Eagle Site for processing. Unfortunately, the re -refining operations conducted by Double Eagle Refining Company over several decades resulted in significant contamination to soils and groundwater at the Site. The United States Environmental Protection Agency ("EPA") added the Double Eagle Site to the National Priorities List of contaminated sites in 1989. EPA began a remedial investigation of the Double Eagle Site in 1990 and completed a Remedial Investigation/Feasibility Study ("RI/FS") for surface waters in 1992. In 1992, EPA issued a Record of Decision ("ROD") for the Double Eagle Site, which stated EPA's determination that the Site presented imminent and substantial endangerment to public health, welfare, or the environment. EPA completed an RI/FS for groundwater in 1993 and issued a second ROD in 1994. EPA and the Oklahoma Department of Environmental Quality ("ODEQ") then conducted several remedial actions at the Double Eagle Site, completing the groundwater remediation in 1996 and the surface remediation in 1999. To date, EPA and ODEQ have incurred approximately $30 million in response costs, interest, and natural resource damages in connection with the Double Eagle Site. 50163066.1 City of Fayetteville Confidential Settlement Communication March 24, 2009 Page 3 Additional background information on the Double Eagle Site can be found in the CD enclosed in this letter. Your Status As A PRP As indicated above, you are receiving this letter because Union Pacific has information in its possession indicating that your company, or a predecessor to it, generated, arranged for disposal and/or treatment, or transported hazardous substances that were disposed of at the Double Eagle Site. Based on shipping documents in our possession, your company sent 3,930 gallons of materials containing hazardous substances to the Double Eagle Site, These documents are enclosed for your review in Exhibit B. The document will reflect the name and address of the location owned or operated by your company from which materials were transported to the Double Eagle Site. Witness depositions and other documents provided on the enclosed CD provide evidence that waste oil collected by Waste Oil Service Company was transported to the Double Eagle Site. Pursuant to CERCLA § 107, your company is liable for response costs, interest, and natural resource damages incurred in connection with the Double Eagle Site. If it is determined that Union Pacific is liable on the claims brought by the United States and the State of Oklahoma in the Double Eagle Litigation, your company is liable in contribution under Sections 113(f)(1) and 107(a) of CERCLA, federal common law, and state law to Union Pacific for a portion of any recovery obtained by plaintiffs against Union Pacific in that lawsuit. Small Party Settlement Offer Union Pacific is ready and willing to bring a contribution action against your company. However, in order to save litigation costs, Union Pacific is providing your company the opportunity to settle its liability relating to the Double Eagle Site through participation in a Small Party Settlement. By settling now, your company avoids and resolves: (a) all past and future costs of cleanup, including administrative and legal costs, (b) liability for the shares of bankrupt or defunct PRPs (for which you might bear partial responsibility in litigation), (c) the cost of defending a contribution action, and (d) your own further administrative and legal costs. The terms of the Small Party Settlement agreement will provide that your company make a lump sum payment of $27,500.00 to Union Pacific within thirty (30) days of execution of the final settlement agreement. In exchange, Union Pacific will release all cost recovery and contribution claims relating to the Double Eagle Site that Union Pacific may have against your client, and Union Pacific will agree and covenant not to sue you for any Covered Costs (as that term is defined in the attached agreement). Union Pacific will also provide your company with an indemnity to protect you from suit by other parties relating to this settlement (as provided in the attached settlement agreement). The Small Party Settlement Agreement is included as Exhibit C hereto. 50163066.1 City of Fayetteville March 24, 2009 Page 4 Confidential Settlement Communication Union Pacific is offering this settlement on a tiered basis for the approximately 250 potentially responsible parties ("PRPs") that sent less than 4,000 gallons of hazardous substances to the Double Eagle Refinery Superfund Site. The settlement amounts offered range from $17,500.00 to $27,500.00 and are based on response costs incurred by the EPA and State of Oklahoma (as set forth in the underlying litigation) and Union Pacific's response costs incurred in identifying, researching, and pursuing PRPscoststhat would be recoverable under CERCLA if these PRPs are named in the lawsuit. Union Pacific has offered to settle your company's liability at the Site for a relatively small amount of money compared to the costs of litigating a Superfund matter. Our goal is to minimize costs for the parties who sent less than 4,000 gallons of waste to the Site by offering a fair cash -out settlement offer that avoids unnecessary litigation costs. Response Deadline To elect settlement, please send your executed signature page to me at the above address later than April 23, 2009. If Union Pacific does not receive an affirmative response by that date, Union Pacific will prepare a third -party action against your company to be filed in the Double Eagle Litigation on or before May 29, 2009 (our deadline to add parties to the lawsuit). We would be happy to answer any questions that you may have regarding this matter. Please feel free to contact me at (713) 651-3527. Veryruly yours, A ant Enclosures cc: Ms. Eva Fromm O'Brien (Firm) Ms. Rebecca Koch Skiba (Firm) (w/o enc.) 50163066.1 La a N a L O O 0 O -: N -, r ry y^• C O 0 r --. J ...r Y ✓ a a c w u CD a _ r) CD — NOON L. O O fCD CD ft fl r. A 7 Or -r 'Z _ ' s w _ .: n . m 'i N. m CO / �. r f.' -. " N ". - _ . n CO -� - W N _..__ .. .. No t•. 0 0 �• �. _ o O .' : N - NNO 'O C ,1 .; - R1 �-y '� �: /ro /" d v i I:: N •- N r-0' :: - .• ft i y E- _- o ;; O a o o w oo w o o CJ 77 w p O O p w 0 -, a N D o w n < d a C] C7 C] H Os CD 0 5' 5' ° No d .n NNO no ao m` cn C7 O.2s `-R a• Na , - G o rn CZ C7 cD w m °' o a !O3{ w y N QQ N v Y c. y .. S 5 n O Y _._..—.-O .- 'u O O p r; r ..r J. G f. :. o tK N m Q. N Q• ? r. C7 a p pq o w G'ti co N �_ w N f, G w a, w a• r. m O O a O CDD 0^ 0 O° N d'tnt - o w o y -O' Ct G 'cn. 'mC .G-. O = cnrn a w y tr0 m CD ? zo o f° o o O o -- S o :'fir cs ° O w '-C F w, °: O Cl,ww w cD W rn rn vw, O 0' c o � w C w m a. rOn O O O W IuJ 56 O O O O CD OO�. .N... N CO N N 1T. , •a r0 O a a O a 0. Zr- N 0.. O.. CD CD CD Z 0 0 0 a 0 cD CD C r I CJ 5n o a 7D rn C7 0 0 CD 'T1 CD C1. Q O CD CD 0 O rD CD dO b O O to .OO N ti O CD O o CO O a n CD O N y ao O CD N I. N N -- .- N : I 1 Td 1 . 1 . . , O W O dYV N w W J 5l2_ x x flflO-C,O `< ° d CD w o w C o CO 0 o 0 °C CD CD ° o O ° a ° 0 N a p o N= ° °o CD pcxD to $ oa O(j2. o v) Oo ° O o ,., C O -• N rD cD n wN��N ^ate' 0O o 0 N° o O o 000 a. 0 :: - b B r. CCD o w Y .. w a o o rn N N CD nm.7 M CD C C C Oa O a.0 ? c cnM c CD o o CD c CD u) y' o 'LS 0' •�' w ,. w -c-1P Pp w w CD O O to `-t 0° =? �� oo fl -Go n o o CD O -• CD to O- CD rn �/� O a HflE �- O CL .. - �0'{ �� In 0 CD �. C 0 (ID CD 7 C N 7 o n ^ .<.. >0?. O oUW o0� O ' CD Z d w / Q.n.o w N R. O .-. o w O d r, o.. ,tc - ≤ C C w C o a p C OO O° CD 0 - CD CD z t-11 OC C7 0 a CD a a !r4 O a a a a a • n (n In rn (n (A (n C N a a a a N N (A CA N (n ti J Y7� /'10 K }w a> b QQ o l 0 CI o o 0 w o CD w_ _ OO OO aa0 w C wS w O Q. a . CD CD W N a --' N Vr Y• ; ' •-• a N J Cn. 00 N N cr Y ' C\ J J Ny �CD w o ^ Cn w oo irn a 00 C70 coo y§ 0 0 to w a 0 �. .. CD -. cn CD o 0 00 II rn a d w 0 Y 0 cr - ,y O ya '/ ya 'I ^' O 5-, rw 5Ow � v^ ,y.,. 0o CD w o. CD 'o CD (., 5. w he' 0 0 0 0 y` yJ /1. ✓ Vi w �. o CD w �. p Y� Y. 0 a w o w o �• w yw CD M d CD 0 O 1^, n w Y a< o C7 a t rn w o w o w o w o �.� w (i 1.... V: Y. V: �+. V: �.+. V: d Y. .1 !f O ni V. CD P: c3 N O »' O O O r' O CD O O CD C 0 O O a 0 a .Y+' 0' a ."-"' �' a �' Cf'1 d a .-. d G w p `:�y.- an w a a a w w N N b n ,�'+ CD O p' ,'�r�r... N C w w w ww 0�} 2. m ti CD ! ' a a a a h w CD a Z 0 3 d d d 0-S ^ a ft 00 d a a a a N a 0 S tCD 00 0Q GO 00 0 CD CD CD a �t • N •• ".Y r ).. ❑ to a C) N� x " o � 0 (^D a �w 00 C C C C m c .^.. N 0 0 0 CD .a.. CD CCDD S [LJ 0.— 7C -' w rwi� " 0 v) r. .. .ti a ,., `a. � a \ (n mod yy tea/ CD 5 1 m ro m Ni m Ni m a 9 Y 9 9� a" 0 0 0 0 CO (0 fA (0 z =' ° CD ^ N 'L5 `t.x N O O — , ^) r-. coma O T� n� 00 T� U� OOmm pmm m end 7. cOCDCD' d n O (D .-� 7. "C1 P'3 P7• w 'b O a ,� O H. 'L3 � ` O 0p7i�' 'J' ° ^ a a '.0 _.. V] O S "..r Al fD .P� ry cr 0 o O oSonc Sac cD C] cD F• n rn s a C a s n t oo fl_c pv � �k< 0Cl. ° ° ° Boa" o�'-ii nd o ° cn m° o m o x y o r'• ,..N :' w w C w O C7 rn w N w rn w C7 n. d o 0 o ti P O do m m fl - CD a. CD ^. fl— .... ..5 ° R. C m� ry m ✓ ti ... R .+ c O _c V �„/ O V C)CD 1mw -, '� d� a a C°�a CDr- rn O� ti O rn N• BCD �. �. 0- a O N N C 5 0o a s a c ro pp a co a U a a a• Pa CD a 0O Y ,flw N G O 0 Oiy Cfl N O �< a BCD d �, Cj C -= ..in m0 C O C ,: Cl1 ti ti w C C CD O O^ a O O O CD w U O a W a CO �. CD �. CD CD w w 5 7 4'0. 3 N /� VY /yam V4 ry� VI O Y O> 0 n O Fl t o mac. ��. iu r� r o ,... o•rn o CD to < it N CD G �1 a i7 nCD � t N a k • a• I I O V t= 0 o 0 ^' H" o J � fi�r: LID n LID0 p O o w o es O>ft d o v C '^'fJ. n 7 >< -t w ° r o <" ^ o A. c n o a - o r" to w til b a o w CD M CD Vo aPE o o. a P C) xa - m o o `� 2 n' CD P. y o r�ii 'r3{ O -• oo -• (D aarn'o cG �cw Z, C)a T 1... K•VV 0. \Y `J.. CD aO < `� �' • w fIQ C/) w (D o o CD - w X When Applies ORIGINAL INVOICE New Change WASTE OILSERVICE CO. Other 301 N. RHODE ISLAND - P.O. BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 - Mailing Information: Pickup Information: /C Phones: AC �a / - 5 1, 770 Phone if: AC Date Picked Up Invoice Number 2426 Account No. Customer P.O. It cam Terms . Driver II Route A Staloff 66 Oimcei.ea uem No Description �� Amount 005 -0530000 GAL. - WASTE OIL - PICK UP SERVICE COMMENTS: Paid Check N Amount $ Paid Cash -Amounts Sub -Total Tax TOTAL on"is Signature Cusco Ier $IBnaluro CONDITIONS OE SALE TERMS: STATEMENT. INVOICES A ET UPON 1. The C,Cbb*Na.a.P.geasll&vesnlM.Nvie ao„vao by wamasa.4.ro cam.mEwmecmeama RECEIPT OF STATEMENT. ff q tglt uaaO suarnaive aaoicasa mva oN. bwmissi00 cats, aM/a d siaucS Si. TM Gemala IWMf .arcw b wave Ot Seneca GamBartr iw mesa oN Mrs fa Been Blawan mug cMmieal mss arxes MI arca A FINANCE CHARGE of I f5% WILL BE CHA ED ceMwee n,oM/a nunoars ea aea NCK ue. eon. a bowel ON ALL PAST DUE BALANCES THIS REPRESENTS 2. TM aN. Gaor NMwbOOes mu 0a altl6aloea M reas eeM menlo Oaabh respmamita wide' rxC AN ANNUAL RATE OF 18%. OFFICE COPY I . 1 I CITY OF FAYETTEVILLE, ARKANSAS I e.VENDOR NO.' 66760 WASTC OIL SERVICE CO 301 N RHODE ISLt;h10 PO BOX 11257 OKLAft)rIA CITY OK 73136 [Each Package Must Be Marked ctlyAs Shown HereB- O.y of Fayetteville, Arkansas N11G75 T. r1i11P B JACOB$ "F1:Tt:t JT FIATTF.!,. DATE ACCOUNT NUMBER F.O.B. [I �1r,jf.I/. 7()-.41%Ul..lr.[._/: p, •, t..l�..11,l.1 DELIVERY DATE NEEDED VIA - ❑ No Supplbr In Artamas Confirmation - Po Not Duplicate It Chocked ❑ _L7_ES_C__B_I._P_T_.I 0_N i1. J,. TERMS AND CONDITIONS 1. Send Itemized Invoice In duplical ..._l. _5A O AL_14A5T__OI1.. -. i1Et' OME1T _ .�.1.i? _><!S2 .__:11i:.i1Q to. Accounts Payable . • � ,��3°• . -� —�' �-� � : � �- � �GIY of Fayetlevll e P.O. Drawer F . - AR 72702-1754 Show P. O. Number on Invoice. Mack all packages as shown In ret . (�o,910 above. All orders must b — ' —- ' - - -• •Fayetteville, 7 \ 2 _ :..S _ ---- — — --- ac mpenled by a pecking clip ou Bty shipped, dale shippe ______— --- . . _ - TQ_DESA3E0_F_QS1.IUF_hJ LtJIf 1 Nl �� and :O. number. "2-) —_ / ,D p ;. _ 3. No ubstltullons without prior ap cp,iscounls . . effective to 10th of to lowing month. 5. Orders must be shipped In full tin less otherwise notified. ---- ---. _ 6. FOB Fayetteville unless otherwis ... _. _ —_,.—_ ._r_.. — _ .— agreed upon. No extra for packlni . and delivery will be allowed. �_ - - -._.T.NOC.O.D.ORDERS ---.---___ Prpay Ireight and add to Invoice -8. Ship to 113W. Mountain St., flea Entrance, unless otherwise spec - - I/led. ADDITIONAL INSTRUCTIONS .— — — - ...-. GVr kJ• O .. - • - _ I ERMS AND GONOITIUNS NOT U IHEHWISE SPECIHED ACCTS. PAYABLE... MAIL WITH REMITTANCE ill PURCHASING AGENT i ORIGINAL INVOICE Chair WASTE OIL SERVICE CO. Other 301 N RHODE ISLAND P.O BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405)232-4825. TWX 910-831.3120 Mailing Information: Pickup Information: • 12/el .v;to- /14 717'�l Phone ff: AC c o I - Si Phone a: AC Date Picked Up Invoice Number 4573 Account No. Customer P.O a cash Terms a .Driver & Route a Stale& LX cc 39 Gal, rieealYeE Inventory rent NO Description om PrICe Amount 9 7 -3 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE I, (—%c1 COMMENTS: Paid Check a Amount E Paid Cash - Amount $ Sub -Total Tax TOTAL Drivers Signature -. . _ -E 9lii� Customer Signature - :ai.i��•vZz+A� 1. TM GenertiIX .ccega by M apnelve that we sand p&vge s by Wane W service COmoan is Mr I&e cd4aOn Ot recycbble uses •JOTpWe vankcse m&lar ds. I'.r ,mtsrnn dl ana/a MaraJK ds The Gereralc/ comer earns to Waste Os Service company trial these ds ha rd ben W.44 m n COtmC& sisawsmn mN we cOMrae/eO azi aw1w riazYONs try any was, on. hale, a kenal aQercy. 2. The General acenox40pes mat Intl mwce OOes trot rnease ere Gmeriv s response y &noer RCRU OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of l h% WILL BE CHARGED ON ALL PAST DUE BALANCES THIS REPRESENTS AN ANNUAL RATE OF 18%. H X When Applies ORIGINAL INVOICE New Change WASTE OIL SERVICE CO. Other 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY. OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 Mailing Information: Pickup Information: C / l i El %Ecnc LC FAyiran , i v; c c1 Phone 9: AC Cam-' I - $a ) — 17700 Phone U: AC Date Picked Up Invoice Number 6451 Account No. Customer P.O. a Terms cash charge Driver a Route . State# 7≤ CL SSA 09 Ganons IleCeived mveram Item No. Description un4 Price Amount C t� 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE y - COMMENTS: Paid Check # Amount $ Paid Cash - Amount f Sub-Tdal Tax TOTAL S Drivers Signature n Customer SignaIur. 1. The Genpala accerN oy I4 Sgta1 a mat me serrce vendee by wage Od Semce Comeeny 4 to me cdkctgn at recycale ofe# flomoere aarecase mad m. garumsam Si. argra hyoauec M. The Gercrgo Iur1MI nrreats to wave Od Setnce Company Mt mete Si Mi.e M teen .A...# wdf cMmcN sWga'us ma' arc ..td a.c aidra r4uaraM by any Idle C4y. ate, o teoeY ajeMy. 2.. The G4ergo a[amWdQes Vial tM mace does me release M Gaerabt respM[esy under 0CM. OFFICE COPY TERMS: ALLCHARGE INVOICE$ ARE NET UPON RECEIPT OF STATEMENT. ., A FINANCE CHARGE of 1 'h% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. b X When Applies ORIGINAL INVOICE New Change WASTE OIL SERVICE CO. Other 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY, OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910-831-3120 Mailing Information s Phone#:ACS -_- -Sa-I- 7O� Pickup Information: Phone#:AC Date Picked Up Invoice Number 10093 Account No. Customer P.0.1 teen Tame cwoe givers Route S State r Ix Sso 0 Gellane Received Inventory Am eNo. DeacrWtkm US Peke Amount q v Q 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE COMMENTS: Paid Check* Amountf Paid Cash -Amounts Sat -Total Tax TOTAL o C D.1.e.. spmture (Customer Sipnetre 1.The 0.nntot.cG.pts b/I.is.git* MN. snit. cicaid.4 of Wale Oil Service Compnybth. .ctbnd l.cxuw — .wmeii, aw*cat .mta all. s.nm'epica ah .nd/oc le4rea c as. me a.n..eto. luurr e.nene to Walt pil smira Canbyq M Per emlrl ban eW e4 with Cwarat W W c.. flit' .re cen.Cs.e]toxic aha2aV ar.le Mu1.r altl1. a, a a I. de& ea.mv. z The G.w.w ec.na-rdwn des m.t P.:.oic. mr l iw.se P. oene.aa...roa..t4ty TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE of 1N% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. OFFICE COPY I a X When Applies ORIGINAL INVOICE New Change WASTE OIL SERVICE CO. �_ 301 N. RHODE ISLAND P.O. BOX 11257 Other y1AHOMA CITY, OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910831-3120 Mailing Info`r'mation: �1` / Pickup Information: /9 / E i % Ey/ cc 6 .Th 7a Phone ♦: AC _cif =L — %! — / Phone*: AC - Date Picked Up 1-13-ct Invoice Number 13932 ACCOUM NO. Customer P.O.0 �, Terlr cs . DrY+era Routes States ,& d y Gallo PAC~ hwanty- IlamNc- Deo ption P M Amount 117 0 005-0530000 GAL. - WASTE OIL - PICK UP SERVICE tJ PS A tPKLEl lilt! IF TPF NAWFN CISTIMEI OF WASTF BII SF?YAU COMPANY. I RU Efl-hflflhll COMPANY tilt REPIISFIT TWA! 11ANTITY OF WA! r LIE 1ESCAIBE0 ABOYF AN fl Tif Till & IfaliAt __________________ WAS TIE P1OPE TIE VU!! Ill. S TT OF TIE NA1E1 CUSTOMER. i13i11E1 11111* -- Sut,Total Tax TOTAL COIAAENTS: Paid Check f Anwv4 $ Paid Cash- Amant f G4oara SlpneOYe Cwtoner M CONDMo,C OF a., a I. me Gwabr.ccsb by M yaNa ttl me ..c proAle by Wpb OS S.nc CaNw' S b Ii. dlYc*nS rcd .,M]..s *, O-.1- eaww aaY�M1�an S. eWe w/ec o .TeGerab btlwr veranb b WM OS Sewox Cei weV— c4beta rid been OWtlN wln dani;al YONua metn corSd.cM— sit lwurae. M M bal W. xbb. a bd.S sporty. I The Geanb Mi0 *dgn eel Pb Ywoloa ao.. nd,N..w pr O ,. aWs rwpuaeab eW wCM OFFICE COPY TERMS: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE Of 115% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN AM41AL RATE OF 18%. I X When Applies ORIGINAL INVOICE New Change — WASTE OIL SERVICE CO. Other 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA CITY, OKLAHOMA 73136 (AC 405) 232-4825 / TWX 910831.3120 Mailing Information: Pickup Information: 7�7a► Phones: AC - SQ %- '7 70 k) Phones: AC - Date Picked Up Invoice Number 16443 Account No. Customer P.O.+ CW Terms Cure Dnwer• Routes State. / 1�7 IX cc o Gellotu ReceNed Mnenbry kam No. DeeLYlWbn 11N1 PM Arnolrtt 3 0 005-0530000 GAL, - WASTE OIL - PICK UP SERVICE �tJ AS A P:E'P,EST!TITI I HE" A'TPpn;ZE THE REMOVAL BY WASTE .If rr%T" PE%"E:I.J THAT AT Ti;E TIME or AEM10V'Al THE WASTE 0 is COMMENrs: Paid Choke Amounts PWCaM-Amain s Sub -Total Tax TOTAL Drkere slash" CtWomer slyrkee // CQorrorrs OF SALE I. te. e..r.v.ccw by St i.t t.rMv owN.a by W. 01 SsMo C' 'y S W e. mYctionS r.c,dSS. —.A rcSn cMc... Ws e N., v fl9 on rA. aWr ? t.ac 0 .lM GaaW Hens wrMb m wtt. a SaNa cmpmy OW ti. out le . nq Mwr itwim MN Cyrmcs W a. tat mwar.e tm:c rWr I..rerw to re ba. V . .m.. w 1d pscr. 2 tM Grr.tr c1 o4.EWs tat ei. iwtic. doer not r.b... M G.n @ r.Tcr.db wrier ACM. OFFICE COPY TEAM$: ALL CHARGE INVOICES ARE NET UPON RECEIPT OF STATEMENT. A FINANCE CHARGE o41 Yi% WILL BE CHARGED ON ALL PAST DUE BALANCES. THIS REPRESENTS AN ANNUAL RATE OF 18%. fI X When Applies ORIGINAL INVOICE New Change - WASTE OIL SERVICE CO. Other 301 N. RHODE ISLAND P.O. BOX 11257 OKLAHOMA cry. OKLAHOMA 731ae (AC 406) 232.4825 / TWX 910831-3120 Mailing Information: Pickup Information: .�f�,y�t T�►'/ c I C,L lift. Phone *: Ac 0) __ 9 70 1) Phone *: AC - Invoice Number 18619 Aoccun No. customer P.O.• C� T..,.. pry dNer0 Ranee States 17S]9Ol 0 o R*0~ t Mm Na. _ Dn.aaa Prize Amovn Q 0 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE AS A IEPIESEIT , .,, -:: . SIRPAIY, 11F111Y AITI/AIZE flu F FfEAr'tr,; ;: ,';°i [ j;FYc YfY=tF IEPIESEIT T9AT LITRE TIRE IF IfUIYAI 1H I''.f ::'` F: M COMMENTS: Paid Chxke Amasnf Pak Cash- Amount$ suAToW Te. TOTAL onws SWtaaaa coat rSfpmtue V 00tD111011R OF SALE TERMS: ALL CHARGE INVOICES ARE NET UPON I. ta. o.rr.tracestb WN..WN.M.r.Mu.wibegW t015 t. Cap.eeIce a.00e.gbnd RECEIPT OF STATEMENT. - .ewo.cia u..a aVwnoew o.+va.. motor ob, swxrrm alY. s* tea wt e. l.a On.n.mr Mu.r A FINANCE CHARGE d 115% HALL BE CHARGED w.a.s m wt. oa t:.ws c. ,_iv M •— o . a... r.w a... ana.a.... dwr�.bWa.. M an mr.u..0 ro.t at aar.d.a aY.ry tool r y..w. a as Sc,. ON ALL PAST DIE BALANCES. THIS REPRESENTS ZTa.crw.n.rrw,rae.. M m. n Sc. m* ner.r..ark..- —, AN ANNUAL LAW OF 1e%. OFFICE COPY V X When Applies ORIGINAL INVOICE New Change ___ WASTE• OIL SERVICE CO. Other 301 N. RHO ISLAND P.O. BOX 11257 OKWi0MA CITY. OKLAHOMA 73136 (AC 405) 232-4825 / T WX 1110-631.3120 Mailing Information: o //, I C Pickup Information: C / /'/ A/ f? Y Crle fAvt ifLV/ c. Phone*: AC &o 1 - !2I Phone #t: AC - Date Picked Up Invoice Number 20984 Account No. Cuetorner P.O.* catTewe C1rP Driver a Route a State* �s� Aftw n.m c. Description p ic(e\ AnwM O a 005 - 053 00 00 GAL. - WASTE OIL - PICK UP SERVICE Ve yaT et r 9RI7 THE RINOVAI IT 'WASTE OIL EAVIKE SN'ART M THE SDARTITT SF WASTE OIL DESCRIREO ABOVE RD W P*PII U TI# *010 cosroart 6D$TOYER IRITIAI COMMENTS: Paid CMdr e - An.oud i SW -TOW Tax TOTAL Paid PaidCeeh-Anoredi WWII swulk" custom BtOrnlrae —f tXMMt0.t5 Os BALL / TERMS: ALL CHARGE INVOICES ARE NET UPON I. lMeww.M nc.- bvtA I*. nMar_A... MGbe/MQarnt+Corp./4bu.. _- s.d RECEIPT OF STATEMENT. .«xw. M.4 s -..O.e arils See- se ter.r.re. att .we rgMnc ow. is o.... Mar A FRIANCE CHARGE •of t 1411 WALL BE CHARGED w.rell.bwebp5...L. CbM/w atilt a4 rb.n for Hen u__J Mar.4a eereew er ee avwo- .4 rwcmeaab b rM but W. aati-Ls a ee.ncy. OH ALL PAST DUE BALANCES, THIS REPRESENTS z nb Oa^Mt.?e.. a.t eS ar. eb. wa r.t.... ab oebrmr. r AN MNIU 1L RATE OF 10%. OFFICE COPY -:. y!: I v'. X When Applies ORIGINAL INVOICE WASTE Change Y �1/'" S ®IL SERVICE Col Other __ - 301 N. RHODE ISLAND P.O.BOX 11257 OKLAHOMA CRY OKLAHOMA 73138 (4 05)232-'825 1 1 '`r ldfr '. Mailing Information: Pickup Information: • ' 1/3. s./n r'6pV Phone #: AG sd Phone #: AC - ! rr}=Account No.s-;;, . SCe-c-''9-'. '. RoWe6 r, .J ?fC i". jiOPo 1 r 5i : '( 0°Becahea''/b From ". - Stn !. ;. ,•1. :;' Prf 1 e ''itvnourH 'irE. sO 005-053 00 00 GAL -USED OIL -PICK UP SERVICE COMMENTS SUB-TOTAB a\x . TOTAL PAID CHECK # AMOUNT $ 7O,'— O WER5 SiGNAT PAID CASH AMOUNT $ AS A REPRESENTATIVE OF THE NAMED CUSTOMER OF WASTE OIL SERVICE COMPANY I HEREBY. AUTHORIZE THE. REMOVAL BY WASTE OIL SERVICE COMPANY OF THE QUANTITY OF USED OIL DESCRIBED ABOVE AND PRESENT THAT AT THE TIME OF REMOVAL THE USED OIL SO REMOVED WAS THE PROPERTY OF THE NAMED CUSTOMER �/ CUSTOMER SIGNATURE X t COMMONS OF SALE TERMS: ALL CHARGE INVOICES ARE NET UPON. 1. The Cenera,a accept. by egnaN,e ttrt the Sew" p 4dod by Wads 01 SeMca Ca row Is la fa acexibn RECEIPT OF STATEMENT d mcyclnbie used nNanat, crankcase nda a kuembsion a% rd/cr hydraWc a The paneratm IUMer wwre is m waste OR Service Cana f I these db tw ml beau Blended Mlh SiMml mbelarct. f W era A FINANCE CHARGE of. 1'h% WILL BE CHARGED • mn.Ee,ed tfeb ad/a basa,do.a by arty lam* db, dat%a SS.party. ON ALL PAST DUE BALANCES. THIS REPRESENTS Gncraw, rkna+'l.dfea fol f+a khdca dom not enema fs llaardNa nwawtapy ur,da ACM AN ANNUAL RATE OF,18%. !�`� OFFICE COPY � YC •.. 1.. v, I. I,. L. DOUBLE EAGLE SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT This Small Party Settlement Agreement (hereinafter "Agreement") is made and entered into by and between Union Pacific Railroad Company and City of Fayetteville (hereinafter "Small Party Generator"), as more fully described in the Definitions section below. The purpose of this Agreement is to provide the Small Party Generator with an opportunity to resolve all claims for Covered Costs (as defined below) in connection with the Double Eagle Superfund Site. This Agreement shall, for all purposes, be deemed to be fully executed on the latest dates of execution of this Agreement (hereinafter the "Effective Date"). 1. DEFINITIONS, 1.1 "Union Pacific" means Union Pacific Railroad Company and each of its predecessors, successors, parents, subsidiaries, divisions, affiliates, assigns, directors, officers, and shareholders. 1.2 "Small Party Generator" means City of Fayetteville. 1.3 "Parties" means Union Pacific and Small Party Generator. 1.4 "Double Eagle Site" or the "Site" means the Double Eagle Refinery Superfund Site located at 1900 NE First Street in Oklahoma City, Oklahoma County, Oklahoma. The Site covers approximately 12 acres of land near the intersection of Martin Luther King and Reno Street in Oklahoma City, along with any areas where contamination released from the facility has come to be located. The Site is bounded by railroad tracks on the north, Martin Luther King Boulevard on the east, a wooded area on the west, and a truck stop on the south. 1.5 "Double Eagle Litigation" means the lawsuit styled "The United States of America and the State of Oklahoma v. Union Pacific Railroad," C.A. No. 5:06 -CV -00887-C, in the United States District Court for the Western District of Oklahoma. 1.6 "Natural Resource Damages" means damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury to, destruction of, or loss of natural resources resulting from releases at the Site. 1.7 "Response Costs" means all costs of "response" as that term is defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), including direct and indirect costs, interest, and Natural Resource Damages. 1.8 "State Response Costs" shall mean all costs for removal, remediation, or monitoring, including but not limited to direct and indirect costs, together with accrued interest incurred by the State of Oklahoma, including but not limited to the Oklahoma Department of Environmental Quality ("ODEQ") and any successor agencies, or instrumentalities of the same. 1.9 "Covered Costs" means any and all past, present and future claims, liabilities, contribution, or demands related to the Double Eagle Site falling within the definition of Response Costs and State Response Costs. 50164337.1 - 1 - 1.10 "Not Covered Costs" means claims related to the Double Eagle Site for the following: (a) any tort claims, including claims for personal injury or property damage claims (including without limitation diminution of value of property), (b) claims for breach or non- performance of this Agreement; (c) criminal liability; or (d) any other matters that do not fall specifically within the definition of Covered Costs. 2. BACKGROUND 2.1 From approximately 1929 to 1988, Double Eagle Refining Company operated a waste oil re -refining facility on the Double Eagle Site. Waste oil was brought to the Double Eagle Site by independent haulers and Waste Oil Service Company, an affiliate of Double Eagle Refining Company. 2.2 The United States Environmental Protection Agency ("EPA") added the Double Eagle Site to the National Priorities List of contaminated sites in 1989. EPA began a remedial investigation of the Double Eagle Site in 1990 and completed a Remedial Investigation/Feasibility Study ("RI/FS") for surface waters in 1992. In 1992, EPA issued a Record of Decision ("ROD") for the Double Eagle Site, which stated EPA's determination that the Site presented imminent and substantial endangerment to public health, welfare, or the environment. EPA completed an RI/FS for groundwater in 1993 and issued a second ROD in 1994. EPA and the ODEQ then conducted several remedial actions at the Double Eagle Site, completing the groundwater remediation in 1996 and the surface remediation in 1999. The United States and the State of Oklahoma have expended over $30 million in Response Costs and State Response Costs in connection with the Site. 2.3 On August 22, 2006, the United States and the State of Oklahoma filed a cost recovery action under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and Title 27A O.S. §§ 1-2- 101, 1-3-101, and 2-3-101 against Union Pacific in the United States District Court for the Western District of Oklahoma (C.A. No. 5:06 -CV -00887-C) ("Double Eagle Litigation"). The plaintiffs allege that Union Pacific is liable under CERCLA § 107(a) as a former owner of the Double Eagle Site and as an arranger. Union Pacific is the only defendant in the Double Eagle Litigation, although Union Pacific has brought in additional potentially responsible parties ("PRPs") as third party defendants in the lawsuit. 2.4 This Agreement provides an opportunity for Small Party Generator, an entity that has also been identified as a PRP in the Site, to fully resolve its liability to Union Pacific for Covered Costs and avoid prolonged and complicated litigation. 2.5 Small Party Generator, by executing the certification on the signature page attached hereto, certifies that after conducting an investigation regarding its shipments to the Double Eagle Site or shipments transported by Waste Oil Service Company, it has not transported or arranged for the transportation of more than 10,000 gallons of waste oil and/or any other hazardous substances to the Site. Small Party Generator's volume for this Site has been calculated to be 3,930 gallons. 50164337.1 - 2 - 3. OBLIGATIONS OF THE PARTIES 3.1 Covered Matters Provided that Small Party Generator executes this Agreement and timely complies with the payment obligation set forth herein, such Small Party Generator will be released from all Covered Costs. 3.2 Not Covered Matters This Agreement does not provide a release, indemnity, or covenant not to sue for any Not Covered Costs. 3.3 Mutual Release and Indemnity In exchange for the Small Party Generator Settlement Payment described below, the receipt and sufficiency of which is hereby acknowledged, Union Pacific by this Agreement does hereby release, acquit, and forever discharge, and indemnify and hold harmless Small Party Generator from any and all Covered Costs, effective upon Union Pacific's receipt of the entire Small Party Generator Settlement Payment described in Section 3.7 herein. In exchange for this consideration, Small Party Generator does hereby release, acquit, and forever discharge Union Pacific from any and all Covered Costs. 3.4 Covenant Not to Sue Union Pacific and Small Party Generator agree and covenant not to sue or prosecute any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against each other at any time hereafter, with the exception of a suit to enforce the terms of this Agreement, or the payment set forth in Section 3.7 herein. 3.5 Waiver of Claims Small Party Generator agrees not to assert any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against any other person who is a PRP under CERCLA at this Site. This waiver shall not apply with respect to any defense, claim, or cause of action that Small Party Generator may have against any person if such person asserts or has asserted a claim or cause of action relating to the Site against Small Party Generator. 3.6 No Admission The Parties acknowledge and agree that this Agreement is intended to compromise, settle, and resolve disputed claims for the purpose of avoiding the expense and uncertainty of litigation. The Parties do not admit liability of any kind, including without limitation any liability to each other or any other person or entity or to any federal, state or local agency or any other third party under federal, state or local laws, rules or regulations. Neither this Agreement nor any of its terms, covenants, or condition shall be offered or received in evidence in any proceedings or 50164337.1 - 3 - utilized in any matter whatsoever as an admission of any wrongdoing or liability on the part of any Party or Parties; provided, however, that nothing in this Paragraph is intended or should be construed to bar the enforcement of any term or condition of this Agreement by a Party against the other, or to prevent this Agreement from being used, offered or received in evidence in a proceeding to enforce or effectuate this settlement. 3.7 Small Party Generator Settlement Payment In consideration for the mutual release, indemnity, and covenants provided for herein, Small Party Generator will pay Union Pacific $27,500.00 (hereinafter "Small Party Generator Settlement Payment") within thirty (30) days of the Effective Date. Payment shall be made by cashier's or certified check (or wire transfer) to "Union Pacific Railroad Company" at the following address: Double Eagle Settlement Fund c/o Ms. Janie Olivares Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Phone: (713) 651-5501 Fax: (713) 651-5246 4. CONFIDENTIALITY The Parties agree to maintain as confidential the terms of this Agreement; provided, however, Union Pacific may disclose to the United States, the State of Oklahoma and any other parties to the Double Eagle Litigation the names of any Small Party Generator who signs this Agreement. This Agreement shall not be admissible in any proceeding or action, except as may be necessary to interpret or enforce the terms of this Agreement. The Parties also agree that this Agreement, and, except as otherwise set forth in this paragraph, the terms and conditions herein, are confidential and shall not be disclosed unless disclosure is otherwise mandated by law or court order or except as may be necessary to secure insurance coverage or other contractual indemnities, or for tax and/or accounting purposes. If disclosure is required or necessary, the party seeking to disclose shall give reasonable and advance notice (so as to provide at least five (5) business days' notice) to all other Parties so as to allow the other Parties an opportunity to enforce this non -disclosure provision in the appropriate form. 5. WARRANTIES Union Pacific and Small Party Generator represent and warrant that: 5.1 This Agreement is executed with the Parties' full knowledge and understanding of its terms and meaning and on advice of their attorneys. 5.2 The Parties' representatives are of legal age and are legally competent to execute this Agreement and they do so of their own free will and accord without reliance on any representation of any kind or character not expressly set forth in this Agreement. 50164337.1 -4- 6. MISCELLANEOUS 6.1 Attorneys' Fees and Costs Each Party shall bear all attorneys' fees and costs arising from the actions of its own counsel or consultants in connection with this Agreement and all matters or documents referred to herein. 6.2 Severability If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided in order to achieve the intent of the Parties to this Agreement to the extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement. The Parties expressly agree that the terms and provisions of this Agreement are contractual in nature and not merely recitals. 6.3 Entire Agreement This Agreement shall constitute the entire agreement among the Parties with respect to the subject of this Agreement and shall supersede and replace any previous agreements and understandings between the Parties, whether written or oral, with respect to the subject matter of this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 6.4 Amendments The provisions of this Agreement may not be changed, discharged, terminated, altered or waived orally, but only by an instrument in writing signed by the Parties hereto. 6.5 No Third Party Beneficiaries It is expressly understood and agreed that this Agreement and the settlement are solely for the benefit of the Parties hereto, and that nothing in this Agreement or the settlement is intended or shall be construed to provide any rights or defenses to any other party. 6.6 Governing Law This Agreement is to be governed and construed in accordance with the laws of the State of Texas, without regard to its laws applicable to choice of law. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year respectively set forth below. [signature blocks on following pages] 50164337.1 -5- UNION PACIFIC RAILROAD COMPANY By:_ Print Title: Date: STATE OF TEXAS § COUNTY OF § Before me, the undersigned authority, on this day personally appeared , who known to me to be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. GIVEN under my hand and seal of office, this day of 2009. NOTARY PUBLIC IN AND FOR THE STATE OF TEXAS NOTARY'S PRINTED NAME SEAL: 50164337.1 -6- SETTING SMALL PARTY GENERATOR SIGNATURE PAGE TO DOUBLE EAGLE SITE SMALL PARTY SETTLEMENT AGREEMENT The Small Party Generator identified below accepts and agrees to the foregoing Double Eagle Superfund Site Small Party Settlement Agreement. Pursuant to Section 2.5 of the Agreement, the Small Party Generator identified below certifies that it has conducted an investigation regarding its shipments to the Double Eagle Superfund Site and its use of Waste Oil Service Company, and the volume set forth in Section 2.5 is accurate. If, for any reason, the representations made in this certification are not accurate or become inaccurate as a result of newly discovered information that results in a change in volume of more than fifteen (15) percent, the Small Party Generator shall promptly provide the corrected information to Union Pacific Railroad Company. If the foregoing occurs, Union Pacific Railroad Company shall have the right to rescind this Agreement with respect to the Small Party Generator upon written notice and return any monies paid by the Small Party Generator. SMALL PARTY GENERATOR: City of Fayetteville By:_ Print • Title: Date: STATE OF § COUNTY OF § Before me, the undersigned authority, on this day personally appeared , who known to me to be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. GIVEN under my hand and seal of office, this day of 2009. . NOTARY PUBLIC IN AND FOR THE STATE OF NOTARY'S PRINTED NAME SEAL: 50164337.1 -7- FULBRIGHT & JAWORSKI L.L.P A REGISTERED LIMITED LIABILITY PARTNERSHIP FULBRIGHT TOWER 1301 MCKINNEY. SUITE 5100 HOUSTON. TEXAS 77010-3095 WWW.FULBRIGHT.COM ATORRANT D@FULBRIGHT.COM DIRECT DIAL: (713) 651-3527 March 24, 2009 BY CERTIFIED MAIL - RETURN RECEIPT REQUESTED City of Fayetteville Attn: Legal Department 113 W. Mountain Fayetteville, AR 72701 TELEPHONE: (713) 651-5151 FACSIMILE: (713) 651-5246 Confidential Settlement Communication Re: Double Eagle Refinery Superfund Site, Oklahoma City, Oklahoma —Small Party Settlement Offer Dear Sir or Madam: We are writing on behalf of our client, Union Pacific Railroad Company ("Union Pacific") in connection with claims that Union Pacific has against your company. Your company is receiving this letter because it has been identified as a potentially responsible party ("PRP") in connection with the Double Eagle Refinery Superfund Site in Oklahoma City, Oklahoma ("Double Eagle Site" or "Site"). The purpose of this letter is to offer your company the opportunity to settle its liability relating to the Double Eagle Site through participation in a Small Party Settlement. Under federal law known as the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA", also known as Superfund), the United States may bring an action against PRPs who have either transported (a "transporter") or arranged for (an "arranger") the transportation of hazardous substances to a Superfund site. Any PRP who has been sued by the United States may in turn pursue other PRPs through a contribution lawsuit. On August 22, 2006, the United States and the State of Oklahoma (the "Plaintiffs") filed a cost recovery action under Section 107 of CERCLA, 42 U.S.C. § 9607, and Title 27A O.S. §§ 1-2- 101, 1-3-101, and 2-3-101 against Union Pacific, in the United States District Court for the Western District of Oklahoma (C.A. No. 5:06 -CV -00887-C) ("Double Eagle Litigation"). The Plaintiffs allege that Union Pacific is liable under CERCLA § 107(a) as a former owner of the Double Eagle Site and as an arranger. Union Pacific has filed a counterclaim for contribution against the United States and the State of Oklahoma in the Double Eagle Litigation based on evidence that Plaintiffs sent 50163066.1 AUSTIN • BEIJING • DALLAS • DENVER • DUBAI • HONG KONG • HOUSTON • LONDON • Los ANGELES • MINNEAPOLIS MUNICH • NEw YORK • RIYADH • SAN ANTONIO • ST. LOUIS • WASHINGTON DC City of Fayetteville March 24, 2009 Page 2 Confidential Settlement Communication hazardous substances to the Double Eagle Site. In addition, Union Pacific has filed third -party contribution actions in the Double Eagle Litigation against a number of PRPs who, like your company, sent hazardous substances to the Double Eagle Site. Discovery in the Double Eagle Litigation is ongoing, and trial has been set for January 2010. New parties may still be added to the lawsuit. The government has spent over $30 million in response costs addressing the soil and groundwater contamination found at this Site. We have evidence indicating that Waste Oil Service Company hauled waste oil and possibly other materials containing hazardous substances from your company to the Double Eagle Site. Because of this, your company also shares responsibility for the cleanup costs expended by the government. However, since we believe that your company sent under 4,000 gallons of material to the Site, we are offering you the opportunity to settle your liability as a Small Party Generator without having to incur the cost of protracted litigation. Additional information concerning the Double Eagle Litigation can be found in the CD enclosed in this letter. A list of all documents contained on the CD is included as Exhibit A hereto. Site Background The Double Eagle Site is comprised of approximately 12 acres of land and is located at 1900 N.E. First Street, near the intersection of Martin Luther King and Reno Street in Oklahoma City, Oklahoma. From approximately 1929 to 1988, Double Eagle Refining Company operated a waste oil re -refining facility on the Double Eagle Site. Waste oil was brought to the Double Eagle Site by independent haulers and Waste Oil Service Company, an affiliate of Double Eagle Refining Company. Waste Oil Service Company transported materials from hundreds of locations in Oklahoma and other nearby states to the Double Eagle Site for processing. Unfortunately, the re -refining operations conducted by Double Eagle Refining Company over several decades resulted in significant contamination to soils and groundwater at the Site. The United States Environmental Protection Agency ("EPA") added the Double Eagle Site to the National Priorities List of contaminated sites in 1989. EPA began a remedial investigation of the Double Eagle Site in 1990 and completed a Remedial Investigation/Feasibility Study ("RI/FS") for surface waters in 1992. In 1992, EPA issued a Record of Decision ("ROD") for the Double Eagle Site, which stated EPA's determination that the Site presented imminent and substantial endangerment to public health, welfare, or the environment. EPA completed an RI/FS for groundwater in 1993 and issued a second ROD in 1994. EPA and the Oklahoma Department of Environmental Quality ("ODEQ") then conducted several remedial actions at the Double Eagle Site, completing the groundwater remediation in 1996 and the surface remediation in 1999. To date, EPA and ODEQ have incurred approximately $30 million in response costs, interest, and natural resource damages in connection with the Double Eagle Site. 50163066.1 City of Fayetteville March 24, 2009 Page 3 Confidential Settlement Communication Additional background information on the Double Eagle Site can be found in the CD enclosed in this letter. Your Status As A PRP As indicated above, you are receiving this letter because Union Pacific has information in its possession indicating that your company, or a predecessor to it, generated, arranged for disposal and/or treatment, or transported hazardous substances that were disposed of at the Double Eagle Site. Based on shipping documents in our possession, your company sent 3,930 gallons of materials containing hazardous substances to the Double Eagle Site. These documents are enclosed for your review in Exhibit B. The document will reflect the name and address of the location owned or operated by your company from which materials were transported to the Double Eagle Site. Witness depositions and other documents provided on the enclosed CD provide evidence that waste oil collected by Waste Oil Service Company was transported to the Double Eagle Site. Pursuant to CERCLA § 107, your company is liable for response costs, interest, and natural resource damages incurred in connection with the Double Eagle Site. If it is determined that Union Pacific is liable on the claims brought by the United States and the State of Oklahoma in the Double Eagle Litigation, your company is liable in contribution under Sections 113(f)(1) and 107(a) of CERCLA, federal common law, and state law to Union Pacific for a portion of any recovery obtained by plaintiffs against Union Pacific in that lawsuit. Small Party Settlement Offer Union Pacific is ready and willing to bring a contribution action against your company. However, in order to save litigation costs, Union Pacific is providing your company the opportunity to settle its liability relating to the Double Eagle Site through participation in a Small Party Settlement. By settling now, your company avoids and resolves: (a) all past and future costs of cleanup, including administrative and legal costs, (b) liability for the shares of bankrupt or defunct PRPs (for which you might bear partial responsibility in litigation), (c) the cost of defending a contribution action, and (d) your own further administrative and legal costs. The terms of the Small Party Settlement agreement will provide that your company make a lump sum payment of $27,500.00 to Union Pacific within thirty (30) days of execution of the final settlement agreement. In exchange, Union Pacific will release all cost recovery and contribution claims relating to the Double Eagle Site that Union Pacific may have against your client, and Union Pacific will agree and covenant not to sue you for any Covered Costs (as that term is defined in the attached agreement). Union Pacific will also provide your company with an indemnity to protect you from suit by other parties relating to this settlement (as provided in the attached settlement agreement). The Small Party Settlement Agreement is included as Exhibit C hereto. 50163066.1 City of Fayetteville March 24, 2009 Page 4 Confidential Settlement Communication Union Pacific is offering this settlement on a tiered basis for the approximately 250 potentially responsible parties ("PRPs") that sent less than 4,000 gallons of hazardous substances to the Double Eagle Refinery Superfund Site. The settlement amounts offered range from $17,500.00 to $27,500.00 and are based on response costs incurred by the EPA and State of Oklahoma (as set forth in the underlying litigation) and Union Pacific's response costs incurred in identifying, researching, and pursuing PRPscoststhat would be recoverable under CERCLA if these PRPs are named in the lawsuit. Union Pacific has offered to settle your company's liability at the Site for a relatively small amount of money compared to the costs of litigating a Superfund matter. Our goal is to minimize costs for the parties who sent less than 4,000 gallons of waste to the Site by offering a fair cash -out settlement offer that avoids unnecessary litigation costs. Response Deadline To elect settlement, please send your executed signature page to me at the above address no later than April 23, 2009. If Union Pacific does not receive an affirmative response by that date, Union Pacific will prepare a third -party action against your company to be filed in the Double Eagle Litigation on or before May 29, 2009 (our deadline to add parties to the lawsuit). We would be happy to answer any questions that you may have regarding this matter. Please feel free to contact me at (713) 651-3527. Vyours, ALant Enclosures cc: Ms. Eva Fromm O'Brien (Firm) Ms. Rebecca Koch Skiba (Firm) (w/o enc.) 50163066.1 Page 1 of! Clarice Pearman - Gentlemen: From: Clarice Pearman To: Whitaker, David; Williams, Kit Date: 4.20.09 4:31 PM Subject: Gentlemen: Attachments: 82-09 Double Eagle Settlement Agrmt.pdf Gentlemen: Attached is the a copy of your agenda item passed by the City Council regarding the Double Eagle settlement agreement. I am forwarding to you a copy of the resolution and the signed agreement. Please let me know if there is anything else needed for this item. Have a good evening. Clarice Clarice Buffalohead-Pearman, CMC, CAMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman@cifayetteville.ar.us file://C:\Documents and Settings\cpearman\Local Settings\Temp\XPgrpwise\49ECA352F... 4/20/2009 Page 1 of! Clarice Pearman - settlement agreement From: Clarice Pearman To: Whitaker, David Date: 4.20.09 4:35 PM Subject: settlement agreement David: Is Fulbright & Jaworski sending us a copy of the signed notarized page for Union Pacific? Please ask them to send a signed copy for our records. I appreciate your help. Thanks. Clarice Clarice Buffalohead-Pearman, CMC, CAMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman@ci.fayetteville.ar.us file://C:\Documents and Settings\cpearman\Local Settings\Temp\XPgrpwise\49ECA43AF... 4/20/2009 From: David Whitaker To: Pearman, Clarice Date: 4.20.09 4:56 PM Subject: Re: settlement agreement Attachments: David Whitaker.vcf Will do. David 3. Whitaker Assistant City Attorney City of Fayetteville, Arkansas 479.575.8313 479.575.8315 (FAX) >>> Clarice Pearman 4/20/2009 4:35 PM >>> David: Is Fulbright & Jaworski sending us a copy of the signed notarized page for Union Pacific? Please ask them to send a signed copy for our records. I appreciate your help. Thanks. Glance Clarice Buffalohead-Pearman, CMC, CAMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 coearmanrrDci.favetteville.ar, us 2010 CENSUS: IT'S IN OUR HANDS FOR IMMEDIATE RELEASE: Thursday, April 16, 2009 Media Contacts: Jerry Young 816-305-8873 Emmett Morris 816-457-1856 Census Workers are Verifying Addresses in Your Neighborhood Census Workers will be Visible in Communities Using GPS Handheld Computers The Census Bureau has launched a massive field operation to kick off the 2010 Census. More than 140,000 temporary U.S. Census Bureau workers are now verifying addresses across the nation as the first major field operation of the 2010 Census began is underway. It is called address verification or address canvassing. Address verification is a critically important step to assure that every housing unit receives a census questionnaire in March 2010. The Kansas City Region includes 6 states where approximately 11,000 census takers will verify and update more than 10 million housing units. Address verification will take approximately six to eight weeks to complete. "With this operation, the 2010 Census literally hits the roads and the streets. We go to all communities and neighborhoods to make sure that we have correct addresses," said Dennis Johnson, Regional Director. "This is the first publicly visible activity of the 2010 Census. Census workers are not in uniforms, they will have official identification and they'll use hand-held computers equipped with GPS to increase geographic accuracy. We've also sent notices about this operation to law enforcement agencies. " Census workers may knock on doors to verify addresses and inquire about additional living quarters on certain premises. Workers may ask people in some neighborhoods a few simple questions about housing units. All information collected including addresses is kept confidential and protected by law. By law the Census Bureau cannot share respondents' answers with any other government agency. No court of law or law enforcement agency can find out respondents' answers. All Census Bureau employees - including temporary workers - take an oath for life to keep census information confidential. "The primary goal of the Census Bureau is to count everyone living in the country, count them once, and count them in the right place. Census data helps inform the process of reapportioning seats to the U.S. House of Representatives," said Dennis Johnson. "Plus, over $300 billion in federal dollars get distributed every year to state and local governments based on census data. It's essential to get this first step right and that's why we're out in neighborhoods all over the region and the country." 30 - Page 1 of 1 Clarice Pearman - Res. 82-09 From: Clarice Pearman To: Fell, Barbara Date: 4.21.09 3:02 PM Subject: Res. 82-09 Attachments: 82-09 Double Eagle Settlement Agrmt.pdf Barbara: Attached is a copy of the above resolution. I will forward to you the budget adjustment via interoffice mail. Have a good afternoon. Clarice Clarice Buffalohead-Pearman, CMC, CAMC City Clerk/Treasurer Division 113 West Mountain Fayetteville, AR 72701 479-575-8309 cpearman ci.fayetteville.ar.us file://C:\Documents and Settings\cpearman\Local Settings\Temp\XPgrpwise\49EDDFF2F... 4/21/2009 FULBRIGHT & JAWORSKI L.L.P. A REGISTERED LIMITED LIABILITY PARTNERSHIP FULBRIGHT TOWER 1301 MCKINNEY. SUITE 5100 HOUSTON. TEXAS 77010-3095 WWW.FULBRIGHT.COM ATORRANT@FULBRIGHT.COM TELEPHONE: (7 13) 651-5151 DIRECT DIAL: (713) 651-3527 FACSIMILE: (713) 651-5246 May 1, 2009 Confidential Settlement Communication VIA U.S. MAIL Mr. David J. Whittaker Assistant City Attorney City of Fayetteville 113 West Mountain Street Fayetteville, AR 72701 Re: City of Fayetteville / Union Pacific Railroad Company; Double Eagle Refinery Superfund Site, Oklahoma City, Oklahoma Dear Mr. Whittaker: Enclosed is a copy of the fully executed Small Party Settlement Agreement in the above - referenced matter. Per previous communications with Ms. Deborah Smallwood, the City of Fayetteville should have the necessary information to make the settlement payment in the amount of $27,500.00 to Union Pacific by ACH transfer into our firm's client trust account. Thank you for your efforts to resolve this matter on behalf of our clients. Please do not hesitate to call me at (713) 651-3527 if you have any questions. Ve ruly yours, An rew J. Torrant cc: Rebecca K. Koch (Firm) 50216342.1 AUSTIN . BEIJING. DALLAS. DENVER . DUBAI . HONG KONG . HOUSTON . LONDON . Los ANGELES . MINNEAPOLIS MUNICH . NEW YORK . RIYADH . SAN ANTONIO . ST. LOUIS . WASHINGTON DC DOUBLE EAGLE SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT This Small Party Settlement Agreement (hereinafter "Agreement") is made and entered into by and between Union Pacific Railroad Company and City of Fayetteville (hereinafter "Small Party Generator"), as more fully described in the Definitions section below. The purpose of this Agreement is to provide the Small Party Generator with an opportunity to resolve all claims for Covered Costs (as defined below) in connection with the Double Eagle Superfund Site. This Agreement shall, for all purposes, be deemed to be fully executed on the latest dates of execution of this Agreement (hereinafter the "Effective Date"). 1. 1.1 "Union Pacific" means Union Pacific Railroad Company and each of its predecessors, successors, parents, subsidiaries, divisions, affiliates, assigns, directors, officers, and shareholders. 1.2 "Small Party Generator" means City of Fayetteville. 1.3 "Parties" means Union Pacific and Small Party Generator. 1.4 "Double Eagle Site" or the "Site" means the Double Eagle Refinery Superfund Site located at 1900 NE First Street in Oklahoma City, Oklahoma County, Oklahoma. The Site covers approximately 12 acres of land near the intersection of Martin Luther King and Reno Street in Oklahoma City, along with any areas where contamination released from the facility has come to be located. The Site is bounded by railroad tracks on the north, Martin Luther King Boulevard on the east, a wooded area on the west, and a truck stop on the south. 1.5 "Double Eagle Litigation" means the lawsuit styled "The United States of America and the State of Oklahoma v. Union Pacific Railroad," C.A. No. 5:06 -CV -00887-C, in the United States District Court for the Western District of Oklahoma. 1.6 "Natural Resource Damages" means damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury to, destruction of, or loss of natural resources resulting from releases at the Site. 1.7 "Response Costs" means all costs of "response" as that term is defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), including direct and indirect costs, interest, and Natural Resource Damages. 1.8 "State Response Costs" shall mean all costs for removal, remediation, or monitoring, including but not limited to direct and indirect costs, together with accrued interest incurred by the State of Oklahoma, including but not limited to the Oklahoma Department of Environmental Quality ("ODEQ") and any successor agencies, or instrumentalities of the same. 1.9 "Covered Costs" means any and all past, present and future claims, liabilities, contribution, or demands related to the Double Eagle Site falling within the definition of Response Costs and State Response Costs. 50164337.1 - I - 1.10 "Not Covered Costs" means claims related to the Double Eagle Site for the following: (a) any tort claims, including claims for personal injury or property damage claims (including without limitation diminution of value of property), (b) claims for breach or non- performance of this Agreement; (c) criminal liability; or (d) any other matters that do not fall specifically within the definition of Covered Costs. 2. BACKGROUND 2.1 From approximately 1929 to 1988, Double Eagle Refining Company operated a waste oil re -refining facility on the Double Eagle Site. Waste oil was brought to the Double Eagle Site by independent haulers and Waste Oil Service Company, an affiliate of Double Eagle Refining Company. 2.2 The United States Environmental Protection Agency ("EPA") added the Double Eagle Site to the National Priorities List of contaminated sites in 1989. EPA began a remedial investigation of the Double Eagle Site in 1990 and completed a Remedial Investigation/Feasibility Study ("RI/FS") for surface waters in 1992. In 1992, EPA issued a Record of Decision ("ROD") for the Double Eagle Site, which stated EPA's determination that the Site presented imminent and substantial endangerment to public health, welfare, or the environment. EPA completed an RI/FS for groundwater in 1993 and issued a second ROD in 1994. EPA and the ODEQ then conducted several remedial actions at the Double Eagle Site, completing the groundwater remediation in 1996 and the surface remediation in 1999. The United States and the State of Oklahoma have expended over $30 million in Response Costs and State Response Costs in connection with the Site. 2.3 On August 22, 2006, the United States and the State of Oklahoma filed a cost recovery action under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9607, and Title 27A O.S. §§ 1-2- 101, 1-3-101, and 2-3-101 against Union Pacific in the United States District Court for the Western District of Oklahoma (C.A. No. 5:06 -CV -00887-C) ("Double Eagle Litigation"). The plaintiffs allege that Union Pacific is liable under CERCLA § 107(a) as a former owner of the Double Eagle Site and as an arranger. Union Pacific is the only defendant in the Double Eagle Litigation, although Union Pacific has brought in additional potentially responsible parties ("PRPs") as third party defendants in the lawsuit. 2.4 This Agreement provides an opportunity for Small Party Generator, an entity that has also been identified as a PRP in the Site, to fully resolve its liability to Union Pacific for Covered Costs and avoid prolonged and complicated litigation. 2.5 Small Party Generator, by executing the certification on the signature page attached hereto, certifies that after conducting an investigation regarding its shipments to the Double Eagle Site or shipments transported by Waste Oil Service Company, it has not transported or arranged for the transportation of more than 10,000 gallons of waste oil and/or any other hazardous substances to the Site. Small Party Generator's volume for this Site has been calculated to be 3,930 gallons. 50164337.1 -2 - 3. OBLIGATIONS OF THE PARTIES 3.1 Covered Matters Provided that Small Party Generator executes this Agreement and timely complies with the payment obligation set forth herein, such Small Party Generator will be released from all Covered Costs. 3.2 Not Covered Matters This Agreement does not provide a release, indemnity, or covenant not to sue for any Not Covered Costs. 3.3 Mutual Release and Indemnity In exchange for the Small Party Generator Settlement Payment described below, the receipt and sufficiency of which is hereby acknowledged, Union Pacific by this Agreement does hereby release, acquit, and forever discharge, and indemnify and hold harmless Small Party Generator from any and all Covered Costs, effective upon Union Pacific's receipt of the entire Small Party Generator Settlement Payment described in Section 3.7 herein. In exchange for this consideration, Small Party Generator does hereby release, acquit, and forever discharge Union Pacific from any and all Covered Costs. 3.4 Covenant Not to Sue Union Pacific and Small Party Generator agree and covenant not to sue or prosecute any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against each other at any time hereafter, with the exception of a suit to enforce the terms of this Agreement, or the payment set forth in Section 3.7 herein. 3.5 Waiver of Claims Small Party Generator agrees not to assert any claims or causes of action (including claims for contribution under CERCLA) that they may have for all matters falling within the definition of Covered Costs against any other person who is a PRP under CERCLA at this Site. This waiver shall not apply with respect to any defense, claim, or cause of action that Small Party Generator may have against any person if such person asserts or has asserted a claim or cause of action relating to the Site against Small Party Generator. 3.6 No Admission The Parties acknowledge and agree that this Agreement is intended to compromise, settle, and resolve disputed claims for the purpose of avoiding the expense and uncertainty of litigation. The Parties do not admit liability of any kind, including without limitation any liability to each other or any other person or entity or to any federal, state or local agency or any other third party under federal, state or local laws, rules or regulations. Neither this Agreement nor any of its terms, covenants, or condition shall be offered or received in evidence in any proceedings or 50164337.1 - 3 - utilized in any matter whatsoever as an admission of any wrongdoing or liability on the part of any Party or Parties; provided, however, that nothing in this Paragraph is intended or should be construed to bar the enforcement of any term or condition of this Agreement by a Party against the other, or to prevent this Agreement from being used, offered or received in evidence in a proceeding to enforce or effectuate this settlement. 3.7 Small Party Generator Settlement Payment In consideration for the mutual release, indemnity, and covenants provided for herein, Small Party Generator will pay Union Pacific $27,500.00 (hereinafter "Small Party Generator Settlement Payment") within thirty (30) days of the Effective Date. Payment shall be made by cashier's or certified check (or wire transfer) to "Union Pacific Railroad Company" at the following address: Double Eagle Settlement Fund c/o Ms. Janie Olivares Fulbright & Jaworski L.L.P. 1301 McKinney, Suite 5100 Houston, TX 77010-3095 Phone: (713) 651-5501 Fax: (713) 651-5246 4. CONFIDENTIALITY The Parties agree to maintain as confidential the terms of this Agreement; provided, however, Union Pacific may disclose to the United States, the State of Oklahoma and any other parties to the Double Eagle Litigation the names of any Small Party Generator who signs this Agreement. This Agreement shall not be admissible in any proceeding or action, except as may be necessary to interpret or enforce the terms of this Agreement. The Parties also agree that this Agreement, and, except as otherwise set forth in this paragraph, the terms and conditions herein, are confidential and shall not be disclosed unless disclosure is otherwise mandated by law or court order or except as may be necessary to secure insurance coverage or other contractual indemnities, or for tax and/or accounting purposes. If disclosure is required or necessary, the party seeking to disclose shall give reasonable and advance notice (so as to provide at least five (5) business days' notice) to all other Parties so as to allow the other Parties an opportunity to enforce this non -disclosure provision in the appropriate form. 5. WARRANTIES Union Pacific and Small Party Generator represent and warrant that: 5.1 This Agreement is executed with the Parties' full knowledge and understanding of its terms and meaning and on advice of their attorneys. 5.2 The Parties' representatives are of legal age and are legally competent to execute this Agreement and they do so of their own free will and accord without reliance on any representation of any kind or character not expressly set forth in this Agreement. 50164337.1 - 4 - 6. MISCELLANEOUS 6.1 Attorneys' Fees and Costs Each Party shall bear all attorneys' fees and costs arising from the actions of its own counsel or consultants in connection with this Agreement and all matters or documents referred to herein. 6.2 Severability If any provision of this Agreement is held to be unenforceable for any reason, it shall be adjusted rather than voided in order to achieve the intent of the Parties to this Agreement to the extent possible. In any event, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remainder of this Agreement. The Parties expressly agree that the terms and provisions of this Agreement are contractual in nature and not merely recitals. 6.3 Entire Agreement This Agreement shall constitute the entire agreement among the Parties with respect to the subject of this Agreement and shall supersede and replace any previous agreements and understandings between the Parties, whether written or oral, with respect to the subject matter of this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 6.4 Amendments The provisions of this Agreement may not be changed, discharged, terminated, altered or waived orally, but only by an instrument in writing signed by the Parties hereto. 6.5 No Third Party Beneficiaries It is expressly understood and agreed that this Agreement and the settlement are solely for the benefit of the Parties hereto, and that nothing in this Agreement or the settlement is intended or shall be construed to provide any rights or defenses to any other party. 6.6 Governing Law This Agreement is to be governed and construed in accordance with the laws of the State of Texas, without regard to its laws applicable to choice of law. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year respectively set forth below. [signature blocks on following pages] 50164337.1 -5 - UNION PACIFIC RAILROAD COMPANY Date: if STATE OF TEXAS COUNTY OF ttj S Before me, the undersigned authority, on this day personally appeared Flc P• n3 , who known to me to be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. n[H- GIVEN under my hand and seal of office, this a'C day 01V4Lc1 2009. L% Q NO AR BLIC IN AND FOR THE STATE OF XAS MaV>L.k_LC od NOTARY S PRINTED NAME SEAL: MARSHA K {y +; NOTARY PUBLIC, STATE OF Tt;Ms `, f" - .'. z. MYCOMMISSION F.XFICeS `l NOV. 7, • u I ) 50164337,1 -6- Apr 20 2009 4:56PM FAYETTEVILLE CITY ATTORNE 4795758315 p.3 SETTING SMALL PARTY GENERATOR SIGNATURE PAGE TO DOUBLE EAGLE SITE SMALL PARTY SETTLEMENT AGREEMENT The Small Party Generator identified below accepts and agrees to the foregoing Double Eagle Superfund Site Small Party Settlement Agreement, Pursuant to Section 2,.5 of the Agreement, the Small Patty Generator identified below certifies that it has conducted an investigation regarding its shipments to the Double Eagle Superflnd Site and its use of Waste Oil Service Company, and the volume set forth in Section 2.5 is accurate. If, for any reason, the representations made in this certification are not accurate or become inaccurate as a result of newly discovered information that results in a change in volume of more than fifteen (15) percent, the Small Party Generator shall promptly provide the corrected information to Union Pacific Railroad Company. lithe foregoing occurs, Union Pacific Railroad Company shall have the right to rescind this Agreement with respect to the Small Party Generator upon written notice and return any monies paid by the Small Party Generator, SMALL PARTY GENERATOR: City of Faye teville Print Name: Lao ld Jordan Title: Itayvr Date: �11/i7 9 • COUNTY OF WASHINGTON Before me, the undersigned authority, on this day personally appeared Lioneld Jordan , who known to me to. be the person whose name is signed to the foregoing instrument, who acknowledged to me that he/she executed this instrument for the purposes and consideration expressed therein. GIVEN under my hand and seal of office, this 20th day of April 2009. SEAL: 50164337.1 NOTARY PUBLIC IN AND FOR THE STATE OF Arkansas Clarice Buffalohead-Pearman NOTARY'S PRINTED NAME -7- PAGE 313 • RCVD AT 47202009 4:48:00 PM tCemral DayfgM Tlmep BVR:NOFAX012 .ON09:0 • tam:4795758315 • DURATION (MF99):01b0 Apr 20 2009 4:56PM FAYETTEVILLE CITY RTT0RME 4795758315 P•2 RESOLUTION NO. fl A RESOLUTION APPROVING THE DOUBLE EAGLE .SUPERFUND SITE SMALL PARTY SETTLEMENT AGREEMENT WITH THE UNION PACIFIC RAILROAD IN THE AMOUNT OF $27,500.00; AND APPROVING A BUDGET ADJUSTMENT. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVJLLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas, hereby approves the Double Eagle Superfiwd Site Small Party Settlement Agreement with the. Union Pacific Railroad in the amount of $27,500.00. A copy of the Agreement, marked Exhibit A, is attached hereto and made a part hereof Section 2. That the City Council of the City of Fayetteville, Arkansas, hereby approves a Budget Adjustment in the amount of $27,500,00. 1111MI°,n,,, \i w o RCS.,, PASSED and APPROVED this 16'' day.of April, 2009. ��G c� Y OF •,G� L. APPROVED ATTEST: "c :FAYElTEVILLE; 4kn oe+-rRJ By: By: a4innwnm` ` LI LD JO N, Mayor SONDRA E. SMITH, City ClerklTreasurer PAGE 213 • RCVD AT 412012009 4:48:00 PM (central Daylight Tlmel • SVR:HOPAXOIII • DM8:0 • c07D:4705T58J70. DURATION (mlMs):0140