Exhibit 10.17
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Modification
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Contract
DE-AC24-93CH10555
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I. The purpose
of this modification is to settle (1) any and all termination
settlement proposals and addendums thereto, issues and/or claims
arising under or pertaining to the termination of Contract
DE-AC24-93CH-10555 (hereinafter “the termination”)
between the U.S. Department of Energy and its predecessor agencies,
including but not limited to the Energy Research and Development
Administration and the Atomic Energy Commission, (hereinafter
collectively referred to as “DOE”), and RMI Titanium
Company (hereinafter collectively referred to as “the
parties”); (2) any and all past, present, and future
liabilities and rights of the parties arising from and/or under
(a) Contract DE-AC24-93 CH10555, (b)any and all predecessor
contracts and/or agreements between the U.S. Department of Energy
and RMI Titanium Company; RMI Company; Reactive Metals
Incorporated; RMI Titanium Company Extrusion Plant; RMI
Environmental Services, A Division of RMI Titanium Company; and
Earthline Technologies (hereinafter collectively referred to as
“RMI”) and (c) any and all Subcontracts between
Westinghouse Environmental Management Company (“WEMCO”)
and RMI which were assigned to the U.S. Department of Energy.
Hereinafter (2) (a), (b), and (c) are referred to collectively
as “the Contract”
II. This
modification is a settlement agreement (hereinafter the
“Settlement Agreement”) and is intended solely for the
benefit of the parties. It is not intended for the benefit of third
parties and is not enforceable by third parties Neither party will
indemnify the other for any future liability resulting from third
party claims or lawsuits
III. This
Settlement Agreement represents the agreement of the parties in its
entirety and is not severable
IV. The roles
and responsibilities and the settlement of and release of liability
are set forth below in the following two parts:
PART I, ROLES
AND RESPONSIBILITIES of the parties for the decontamination and
decommissioning of the facility known as the former RMI Titanium
Company Extrusion Plant, 1601 East 21st Street, Ashtabula, Ohio
(hereinafter referred to as “the facility”) The
facility is as geographically defined in Attachment B
PART II, TERMS
OF THE SETTLEMENT OF LIABILITY AND RELEASE OF LIABILITY
includes all of the parties’ rights, claims,
responsibilities, and liabilities arising from and/or under the
Contract including the termination thereof and all
contracts/agreements between RMI and the U.S. Department of Energy
(“DOE”) and its predecessor agencies.
V. PART I,
ROLES AND RESPONSIBILITIES
This Part
defines and sets forth the obligations of the parties regarding the
decontamination and decommissioning activities at the facility
pursuant to RMI’s Ohio
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Modification
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Contract
DE-AC24-93CH10555
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Department of
Health (“ODH”) Radioactive Materials License 1190040004
(“ODH license”) requirements to achieve the end state
described in Attachment A, Ashtabula Closure Project (ACP) End
State, attached hereto and made a part hereof.
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1.
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DOE
shall be responsible for achieving the ACP end state as set forth
in this Settlement Agreement. The end state will be achieved on or
before December 31, 2006, to the maximum extent possible and to the
extent appropriations are available but not to exceed
$27 million DOE agrees to use its best efforts to achieve the
above by the stated date. If the ACP end state is not achieved by
December 31, 2006, and the failure to do so is not the result
of acts or omissions by RMI, the parties agree to enter into good
faith negotiations for establishing a new date for completion,
subject to availability and extent of appropriations. The parties
shall commence negotiations regarding: a new ACP end state as soon
as it is apparent that the December 31, 2006, end date will
not be achieved, but in no event shall the negotiations commence
later than June 1, 2006 If such new end date is not agreed to
by December 31, 2006, RMI and DOE retain the right to pursue
any remedies each may have against the other, including those set
forth in this agreement DOE shall not be responsible for achieving
the ACP end state by the above date(s) if RMI is solely responsible
for any delays preventing the ACP end state from being achieved In
the event additional funding is needed to achieve the ACP end state
and DOE is unable or unwilling to obtain such additional
appropriations, RMI and DOE retain all of their rights and remedies
under the Contract that existed prior to the Settlement
Agreement.
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2.
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The
DOE Contractor(s) under contract to decommission and decontaminate
the facility will be deemed to be in control of the work when it
has obtained appropriate licenses, and is staffed on site to
execute the contract between the DOE and the DOE Contractor(s). The
Department determines the date by which the DOE Contractor is
deemed to be in control. On the date the DOE Contractor(s). assumes
control of the work, DOE will be responsible for performing
activities at the facility necessary to achieve the ACP end state
described in Attachment A, Ashtabula Closure Project End
State, as set forth in further detail in this Settlement
Agreement.
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3.
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RMI
shall permit and provide for the DOE and/or the DOE Contractor(s)
to have unfettered access to the facility. Such access shall be in
accordance with access restrictions in RMI’s ODH license and
any applicable laws, regulations and rules.
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4.
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RMI
shall transfer all government property in its possession to the
DOE. Contractor(s) within 10 days after the date the DOE
Contractor(s) assumes control of the work DOE will notify RMI of
the effective date of assumption of control within one day of the
date of such assumption as set forth in paragraph V.2 above. The
DOE Contractor(s) will assume responsibility for all Government
Property currently in RMI’s possession, in accordance with
all applicable government regulations and statutes, including FAR
52.245-5, Government Property (Cost Reimbursement, Time-
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Modification
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and-Material, or Labor Hour) and
DEAR 952.245-5 Government Property (Cost Reimbursement, Time and
Material or Labor Hour Contract). DOE shall be responsible for the
ultimate disposition of all project records other than those
required to be retained by RMI under any applicable laws or
regulations.
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5.
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Notwithstanding any other provision
of this Settlement Agreement, RMI reserves the right to submit a
claim for any costs assessed against RMI by any governmental
agency, arising out of DOE or the DOE Contractor(s)’s actions
or inactions at the facility, without any fault of RMI, including
but not limited to fines and/or penalties. The DOE reserves any
rights that it may have to submit a claim for any costs assessed
against its Contractor(s) or DOE as a result of any action or
inaction by RMI arising out of RMI’s activities at the
facility, without any fault of DOE or its Contractor(s), including
but not limited to fines and/or penalties.
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6.
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The
parties agree that in the event a dispute or disagreement arises
between the parties, or involving RMI and the DOE Contractor(s),
including but not limited to the assessment of any costs referenced
in paragraph V.5 above, the parties shall elevate the matter to
senior management level of the parties (Senior Management of RMI
and the Head of the Contracting Activity, EMCBC) for informal
resolution within fifteen (15) calendar days from discovery of
the dispute. In the event that the parties are unable to resolve
the matter at the senior management level, the parties agree to
enter into nonbinding mediation to be initiated thirty
(30) calendar days from the settlement impasse. In all
instances the parties agree to negotiate in good faith. The parties
agree that the foregoing informal resolution and mediation process
shall be complied with before either party initiates a formal
dispute under the Disputes clause in the Federal Acquisition
Regulation (“FAR”) (FAR 52.233-1, Disputes).
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7.
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The
DOE shall not reimburse RMI for any costs, including fines or
penalties, for activities not agreed to under, or contemplated by,
this Settlement Agreement.
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8.
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8,
Specific Delineation of Work Activities To Be Performed by DOE and
its Contractor (s) and RMI at the Facility
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a)
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DOE
shall comply with the applicable regulatory requirements contained
in the RMI ODH license and the ODH-approved Decommissioning Plan
(“DP”) Any changes to the DP initiated by RMI and
submitted to the ODH must be coordinated in advance with the DOE
Contracting Officer. Any changes to the DP initiated by RMI that
materially increase cost or delay DOE from complying with the
December 31, 2006, date or a date agreed to in accordance with
V.1 for achieving the ACP end state are not the responsibility of
the DOE and excuse DOE from complying with the December 31
, 2006, date or a date agreed to in accordance with V.1,
unless DOE consents to the increase in cost and change to the
December 31, 2006, ACP end state. However any such delay does
not excuse the DOE from its responsibility to achieve
the
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ACP
end state. The DOE and its Contractor(s) shall be responsible for
implementing the applicable parts of the DP
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b)
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DOE
will perform remediation of the facility in accordance with
RMI’s Resource Conservation and Recovery Act
(“RCRA”) permit and any RCRA Corrective Measures set
forth therein. RMI agrees that it will not submit to the regulators
for approval any changes to any licenses or permits applicable to
the facility without the prior written consent of DOE. Any change
to the scope of the RCRA Corrective Measures initiated by RMI that
materially increases the cost of compliance or prevents DOE from
complying with the December 31,2006, date or a date agreed to
in accordance with V.1 for achieving the ACP end state is not the
responsibility of the DOE and excuses DOE from complying with the
December 31, 2006, date or a date agreed to in accordance with
V.1, unless DOE consents to the cost increase and any change to the
December 31, 2006, date However any such delay does not excuse
the DOE from its responsibility to achieve the ACP end
state.
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c)
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To
the extent appropriations are available, DOE will be responsible
for monitoring, operating and maintaining any long term groundwater
extraction and/or treatment remedy developed and approved to
address the groundwater issues at the site as of the date of the
signing of this Settlement Agreement, and for preparing all
required reports. In the event adequate appropriations are not
available and DOE is unable or unwilling to obtain additional
appropriations, notwithstanding any terms in this Settlement
Agreement to the contrary, RMI and DOE retain all of their rights
and remedies under the Contract that existed prior to this
Settlement Agreement.
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d)
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In
addition to compliance with the terms of RMI’s ODH license
and OEPA RCRA permit, DOE and its Contractor(s) are responsible for
complying with the terms of all applicable licenses and permits for
the Ashtabula site, including but not limited to the OEPA
wastewater discharge permit and OEPA air pollution control permits.
DOE and its Contractor(s) also shall be responsible for the
following: (1) Maintaining and updating all licenses and
permits as required for DOE to achieve the ACP end state; and
(2) Complying with all applicable laws and
regulations.
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e)
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DOE
agrees to reimburse, as allowable costs, applicable fees paid by
RMI as required for compliance with the ODH license and OEPA
permits, including but not limited to annual permit and license
fees to be paid to the ODH, OEPA, USEPA in a total amount not to
exceed $100,000 per year. The DOE Contractor(s) shall pay directly
any applicable fees to Ryber Development for the licensing, access
to, and use of rail infrastructure used in the completion of the
ACP. RMI shall transfer and/or assign existing agreements with
Ryber to the DOE Contractor(s) for said activities at the option of
the DOE Contractor(s).
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f)
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DOE
shall perform all oversight of the DOE Contractor(s). RMI shall
have no oversight of or control over the DOE Contractor(s)
work.
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g)
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An
ACP Council shall be established to resolve compliance-related
issues that arise among DOE, RMI, and the DOE Contractor(s). The
membership of the ACP Council shall be the DOE Environmental
Management Consolidated Business Center (DOE-EMCBC) Contracting
Officer (or designee), the RMI Project Manager (or designee), and
the DOE Contractor Project Manager (or designee) RMI’s
compliance with ODH and OEPA requirements and the
radiological/environmental protection of the public health and
safety remain the responsibility of RMI. In all such compliance
matters, the views of the ACP Council are advisory. Neither party
may claim delay unless it is established that the noncompliance or
violation is solely due to the actions or inactions of the other
party (including DOE’s Contractor(s)). An ACP Council Charter
shall be finalized within thirty (30) days after the DOE
Contractor(s) assume control of the work. Any activities of RMI,
the DOE, or the DOE Contractor(s) that have the potential to impact
activities of the other party shall be coordinated in advance
through the ACP Council.
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h)
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The
DOE has sole DOE Contractor(s) oversight responsibility
including stop work authority for all contract activities, subject
to any exceptions set forth in this paragraph. RMI, as the
licensee, may perform independent oversight to verify compliance
with ODH, OEPA and any other applicable regulatory requirements.
However, notwithstanding any provision to the contrary, in order to
address major compliance issues and to protect the public health,
safety, and the environment from imminent harm, RMI has the
authority to unilaterally issue stop work orders and initiate
whatever reasonable measures are necessary to effectuate such
protection. In the event RMI issues such stop work orders or
implements such protective measures, RMI shall notify the
Contracting Officer immediately after issuance of the above. Any
such reasonable order issued by RMI shall not be a basis for a
claim of delay by DOE. Any delay determined to be unreasonable
excuses DOE from complying with the December 31,2006, date or
a date agreed to in accordance with V A 1. However any such delay
does not excuse the DOE from its responsibility to achieve the ACP
end state. Additionally, if a stop work order is issued, any party
issuing the stop work order shall notify the RMI Project Manager,
the DOE Contracting Officer, and the DOE Contractor Project
Manager, as appropriate, immediately. RMI will notify the ODH if
appropriate. Any issues regarding the appropriateness of
RMI’s actions shall be reviewed initially by the ACP Council
in a prompt manner. In the event the matter cannot be resolved at
the ACP Council level, then the parties will adhere to the disputes
resolution process described elsewhere in this
agreement.
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i)
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If
RMI has a concern regarding performance by the DOE Contractor(s),
RMI shall notify the DOE-EMCBC Contracting Officer (or designee) in
writing. The DOE- EMCBC Contracting Officer (or designee) shall
address the concern within two (2) business days. If RMI does
not believe that the concern has been adequately addressed, RMI
shall refer the concern to the Head of the Contract
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