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MISSOURI DEPARTMENT OF NATURAL RESOURCES

P.O. Box 176

Jefferson City, Missouri 65102

IN RE: Bannister Federal )

Complex, Kansas City, Missouri ) ORDER NO. _______

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ADMINISTRATIVE ORDER ON CONSENT FOR

A PORTION OF THE

BANNISTER FEDERAL COMPLEX

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940501v6

TABLE OF CONTENTS

ARTICLE I. INTRODUCTION AND JURISDICTION................................................. 1

ARTICLE II. PARTIES BOUND ..................................................................................... 3

ARTICLE III. STATEMENT OF PURPOSE .................................................................... 4

ARTICLE IV. DEFINITIONS ............................................................................................ 5

ARTICLE V. FINDINGS OF FACT............................................................................... 10

ARTICLE VI. GENERAL PROVISIONS ....................................................................... 12

ARTICLE VII. FINANCIAL ASSURANCE .................................................................... 13

ARTICLE VIII. MDNR REVIEW AND APPROVAL ...................................................... 15

ARTICLE IX. DESIGNATION OF PROJECT MANAGER AND PROJECT

REPRESENTATIVES .............................................................................. 16

ARTICLE X. ACCESS AND INSTITUTIONAL CONTROLS .................................... 18

ARTICLE XI. REPORTING REQUIREMENTS ............................................................ 19

ARTICLE XII. CERTIFICATION OF COMPLETION ................................................... 20

ARTICLE XIII. ASSURANCE OF ABILITY TO COMPLETE WORK .......................... 20

ARTICLE XIV. INDEMNIFICATION AND CGL INSURANCE .................................... 21

ARTICLE XV. FORCE MAJEURE .................................................................................. 22

ARTICLE XVI. COVENANT NOT TO SUE .................................................................... 22

ARTICLE XVII. RESERVATION OF RIGHTS BY MDNR .............................................. 22

ARTICLE XVIII. CONTRIBUTION PROTECTION ........................................................... 23

ARTICLE XIX. RECORD RETENTION, DOCUMENTATION, AVAILABILITY

OF INFORMATION ................................................................................ 24

ARTICLE XX. EMERGENCY RESPONSE AND NOTIFICATION OF

RELEASES ............................................................................................... 24

ARTICLE XXI. AUTHORITY OF THE MDNR PROJECT MANAGER ........................ 24

ARTICLE XXII. REIMBURSEMENT OF OVERSIGHT COSTS ..................................... 24

ARTICLE XXIII. DEFAULT BY TRANSFEREE ............................................................... 26

ARTICLE XXIV. DISPUTE RESOLUTION ........................................................................ 27

ARTICLE XXV. OTHER CLAIMS ..................................................................................... 28

ARTICLE XXVI. SEVERABILITY ...................................................................................... 28

ARTICLE XXVII. NOTICES .................................................................................................. 29

ARTICLE XXIII. EFFECTIVE DATE .................................................................................. 29

ARTICLE XXIX. MODIFICATION AND AMENDMENT................................................. 30

ARTICLE XXX. TERMINATION ....................................................................................... 30

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ARTICLE I. INTRODUCTION AND JURISDICTION

1. This Administrative Order on Consent (AOC) is entered into voluntarily by the

State of Missouri (STATE), acting with and in coordination with the Missouri Department of

Natural Resources (MDNR), the National Nuclear Security Agency (NNSA), a semi-autonomous

agency within the U.S. Department of Energy (DOE), and Bannister Transformation &

Development LLC, a Missouri limited liability company (TRANSFEREE) (each of the STATE,

MDNR, NNSA and TRANSFEREE being herein called a “Party” and collectively called the

“Parties”) to describe the WORK agreed to be taken at portions of the property known as the

Bannister Federal Complex (BFC) located in Kansas City, Missouri. The BFC is described on

the Property Map attached hereto as Attachment 1.

2. This AOC is issued under the authority vested in the President of the United

States by Sections 104, 106 and 122 of the Comprehensive Environmental Response,

Compensation, and Liability Act, as amended, 42 U.S.C. §§ 9604, 9606 and 9622 (CERCLA)

and under the authority vested in MDNR pursuant to Missouri statutes including the Missouri

Hazardous Waste Management Law, RSMo. Section 260.350 et seq.

3. Former operations at BFC have resulted in certain environmental contamination

of BFC. In order to facilitate transfer of a portion of BFC out of federal ownership, assure that

the planned response actions at BFC are protective of human health and the environment, and to

accomplish their respective roles under Missouri’s Hazardous Waste Management Law and

CERCLA Section 120(h)(3)(C), the Parties are entering into this AOC.

4. The Parties recognize that this AOC has been negotiated in good faith and that the

actions undertaken in accordance with this AOC do not constitute an admission of any liability.

Without limiting or diminishing the protections of this AOC, including but not limited to the

Covenant Not to Sue under ARTICLE XVI of this AOC, all Parties retain the right to controvert

in any subsequent proceedings, other than proceedings to implement or enforce this AOC, the

statements and obligations made in this AOC. The Parties agree to comply with, and be bound by

the terms of this AOC and further agree that they will not contest the basis or validity of this

AOC or its terms.

5. The entire BFC consists of approximately 309 acres of land and improvements,

and is bisected by an active north-south railroad right-of-way owned and operated by the Union

Pacific Railroad (UPRR-ROW). Approximately 307 acres of the BFC are subject to the Missouri

Hazardous Waste Management Facility (MHWMF) Permit (hereinafter defined). Approximately

225 acres of permitted property are included in the PROPERTY TO BE TRANSFERRED.1

1 Within the 309 acres of BFC there is a two (2) acre parcel of Federal land containing a cellular tower

located at 9051 Troost Avenue called the “Tower Site.” The Tower Site will be conveyed to TRANSFEREE under the DEED (hereinafter define). However, the Tower Site is not part of the facility that is the subject of the MHWMF Permit, there are no known or suspected environmental concerns affecting the Tower Site, and it is not physically contiguous to the principal lands that constitute the BFC. Therefore, it is not material to this AOC and will not be discussed elsewhere herein. Reference herein will be to the 307 acres that are subject to the MHWMF Permit.

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6. NNSA proposes to transfer approximately 225 acres of BFC lying west of the

UPRR-ROW by early transfer authority pursuant to CERCLA § 120(h)(3)(C) with privatized

cleanup to TRANSFEREE as outlined in the Finding of Suitability for Early Transfer (FOSET).

The FOSET identifies environmental factors associated with the proposed property transfer and is

one part of an overall privatized process intended to facilitate the timely and efficient reuse of the

portions of the BFC to be transferred while maintaining protection of human health and the

environment throughout the transfer, cleanup, and redevelopment processes. The 225 acre

portion of the permitted BFC to be transferred to TRANSFEREE that is subject to the MHWMF

Permit will hereafter be referred to as the PROPERTY TO BE TRANSFERRED.

7. The remaining approximately 82 acres of the BFC lying east of the UPRR-ROW

will not be transferred, but shall continue to be owned by the United States of America (under

the jurisdiction and control of the U.S. General Services Administration (GSA). The 82 acres

that will be retained by the United States of America are herein referred to as the GSA

RETAINED PROPERTY. The obligations of the GSA to undertake and complete any remedial

investigations and implementation, response actions, monitoring, reporting, funding and

financial liability, are governed by the MHWMF Permit.

8. In addition to the PROPERTY TO BE TRANSFERRED and the GSA

RETAINED PROPERTY, which together constitute the BFC, this AOC sets forth NNSA’s

consent and agreement to execute and have the sole responsibility and liability to perform all

corrective measures and response obligations as contained in this AOC and as referenced in the

MHWMF Permit and CERCLA for contamination in adjacent portions of Indian Creek, Boone

Creek, and the Blue River.

9. The Parties to this AOC recognize that TRANSFEREE is a bona fide prospective

purchaser as defined by Section 101(40) of CERCLA, 42 U.S.C. §9601(40), of the PROPERTY

TO BE TRANSFERRED and TRANSFEREE represents that it has and will continue to comply

with Section 101(40) during its ownership of the PROPERTY TO BE TRANSFERRED, and

thus qualifies for the protection from liability under CERCLA set forth in Section 107(r)(1) of

CERCLA, 42 U.S.C. §9607(r)(1), with respect to the PROPERTY TO BE TRANSFERRED.

10. NNSA and TRANSFEREE have entered into an Environmental Services

Cooperative Agreement (ESCA) under Section 6305 of 31 U.S.C. Title Subtitle V Chapter 63,

whereby NNSA has awarded funding to TRANSFEREE for the performance of

TRANSFEREE’S environmental response actions in accordance with the MHWMF Permit, and

other scopes of work more fully set forth in the definition of the WORK hereafter set forth in this

AOC. NNSA and TRANSFEREE may enter into additional ESCAs, or modify the existing or

future ESCAs, to allow and fund the TRANSFEREE to perform all or some of any remaining or

additional response actions. TRANSFEREE further represents that it is voluntarily entering into

this AOC and the ESCA and such entry or execution is not predicated on any preexisting

obligation or enforcement action. Notwithstanding the foregoing, TRANSFEREE acknowledges

that once the MHWMF Permit is transferred to it, that it will be bound to undertake the WORK

required under the permit and this AOC as set forth herein. One of the purposes of this AOC is

to resolve, subject to the reservations and limitations contained herein, any potential liability of

TRANSFEREE under CERCLA for environmental response actions.

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ARTICLE II. PARTIES BOUND

11. This AOC shall apply to and be binding upon the Parties and their respective

officers, directors, employees, agents, contractors, successors and assigns, heirs, trustees, and

receivers acting under or on behalf of the respective Parties. Except as provided in this Paragraph

and Paragraph 14, any change in TRANSFEREE’S Articles of Organization or limited liability

company status including, but not limited to, any transfer of assets or real or personal property

shall not alter TRANSFEREE’S responsibilities under this AOC. Accordingly, for the purpose of

ensuring an orderly transition in the event of such a change, transfer of assets or real or personal

property, TRANSFEREE shall provide MDNR no less than one hundred twenty (120) days

written notice prior to the date of TRANSFEREE’S anticipated change or transfer of assets or

real or personal property. The notice shall identify the entity or entities that will succeed to

TRANSFEREE’S obligations under the AOC. Each successor to this AOC must be approved by

MDNR. MDNR will consider the following criteria in response to any proposed successor(s): (i)

the technical qualifications of the successor(s), or its proposed consultant, to perform remaining

WORK obligations; (ii) financial ability to perform such obligations; (iii) the successor's legal

status and legal authority to sign the AOC; and (iv) the proposed successor's willingness to sign

this AOC and perform TRANSFEREE’S obligations hereunder. Upon MDNR’s approval and

any necessary Class 1 permit modification, and upon the successor's signing of this AOC, the

term “TRANSFEREE” as used in this AOC shall apply to the approved successor; and the

predecessor TRANSFEREE shall be deemed relieved of liability under this AOC for all acts,

omissions and events occurring from and after MDNR’s approval of the successor as set forth

above. If, upon a transfer of TRANSFEREE’S interest in the PROPERTY TO BE

TRANSFERRED, no successor has been approved in accordance with this Paragraph who agrees

to perform the remaining WORK and become the permittee under the MHWMF Permit, MDNR

may invoke the default provisions of ARTICLE XXIII of this AOC.

12. TRANSFEREE will ensure that its contractors, subcontractors, and

representatives receive a copy of this AOC and comply with this AOC. TRANSFEREE shall be

responsible for any noncompliance with this AOC by its contractors, subcontractors and

representatives.

13. The undersigned representatives of the Parties certify that each is fully authorized

by its respective Party to enter into this AOC and to bind the respective Party to the terms and

conditions of this AOC and to execute and legally be bound to this AOC.

14. It is acknowledged and agreed that, within not more than 120 days after the

Transfer Date, TRANSFEREE may convey title to the PROPERTY TO BE TRANSFERRED to

a Community Improvement District to-be-formed (“CID”) pursuant to the Missouri Community

Improvement District Act (§ 67.1401 et seq. R.S.Mo.). All Parties to this AOC shall cooperate to

effect the foregoing conveyance as a “change of ownership” Class 1 modification in accordance

with the requirements set forth in the MHWMF permit with prior MDNR approval pursuant to

10 CSR 25-7.270 (incorporating 40 CFR § 270.40). Notwithstanding the conveyance of title to

the CID, it is anticipated the TRANSFEREE shall continue to be the operator under the

MHWMF Permit with respect to the PROPERTY TO BE TRANSFERRED and will perform the

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WORK. TRANSFEREE may hold a ground lease of the PROPERTY TO BE TRANSFERRED

from the CID.

ARTICLE III. STATEMENT OF PURPOSE

15. The purposes of this AOC are to facilitate the transfer of the PROPERTY TO BE

TRANSFERRED out of federal ownership and establish an agreed upon framework for

achieving the remediation of the BFC as follows:

a. To establish a procedural framework and schedule for the development,

implementation and monitoring of appropriate WORK at the PROPERTY TO BE

TRANSFERRED and to ensure that such actions are conducted in accordance with the

applicable federal and state environmental laws and regulations, and the requirements of

the MHWMF Permit and this AOC;

b. Even though NNSA is not a permittee under the modified MHWMF

Permit, to set forth and affirm that NNSA shall retain and have the sole responsibility and

liability for corrective measures and response actions as contained in this AOC and as

referenced in the MHWMF Permit and CERCLA for contamination in adjacent portions

of Indian Creek, Boone Creek, and the Blue River;

c. To establish a Schedule of Activities for the completion and submittal of

deliverables required under this AOC;

d. To ensure that all WORK undertaken is protective of human health and

the environment;

e. To describe the financial assurance requirements and procedures for

implementation and completion of the WORK consistent with the requirements of

applicable laws and regulations;

f. To ensure that the Parties work together in a cooperative spirit that

facilitates a cost effective and timely environmental response to the PROPERTY TO BE

TRANSFERRED, that promotes beneficial re-use of the property, and that avoids

litigation between the Parties;

g. To seek ways to enhance the implementation of corrective actions and

eliminate unnecessary tasks and reviews by requiring that the Parties work together

within each Party’s statutory and regulatory role;

h. To ensure early and meaningful public engagement with interested

community members, property owners, business, and government agencies in the

implementation of this AOC, in the development and review of work plans, and in the

initiation, development, and selection of WORK to be undertaken at the PROPERTY TO

BE TRANSFERRED, including timely review of applicable data, reports, and work plans

developed for the PROPERTY TO BE TRANSFERRED as required by law;

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i. To acknowledge the mechanism for reimbursement of MDNR Oversight

Costs associated with the implementation of this AOC that are already covered by

provisions contained in the Missouri Hazardous Waste Management Law and

Regulations;

j. To ensure that the STATE is not now, or in the future, burdened with the

costs associated with of any of the WORK to be undertaken pursuant to this AOC at the

PROPERTY TO BE TRANSFERRED.

16. As a part of the transactions to which this AOC is a part, TRANSFEREE is taking

title to the PROPERTY TO BE TRANSFERRED under the authority provided by Section

120(h)(3)(C) of CERCLA, 42 U.S.C. §9620(h)(3)(C) and Section 3143 of the National Defense

Authorization Act for Fiscal Year 2014 (NDAA FY 2014). As a part of that property transfer,

TRANSFEREE has agreed with the NNSA to undertake the necessary environmental response

actions on the PROPERTY TO BE TRANSFERRED as defined in the WORK and as funded

pursuant to the terms of an ESCA.

17. In entering into this AOC, the objectives of the Parties (in addition to the purpose

identified in Paragraph 15 above) are: (a) to obligate TRANSFEREE to perform the WORK as

defined herein, at the PROPERTY TO BE TRANSFERRED; (b) to obligate NNSA to perform

the NNSA RETAINED OBLIGATIONS with respect to adjacent portions at Indian Creek,

Boone Creek and the Blue River; (c) to identify the GSA RETAINED OBLIGATIONS for

purposes of distinguishing them from the WORK to be performed by the TRANSFEREE; (d) to

provide for procedures for MDNR to review and approve the plans for and implementation of the

WORK for the PROPERTY TO BE TRANSFERRED not including work required under the

MHWMF Permit which permit work must be separately approved by MDNR; and (e) to

memorialize and facilitate the financial assurance required under applicable State and Federal

law.

ARTICLE IV. DEFINITIONS

18. For purposes of this AOC, terms used herein shall have the same meaning as the

terms defined in the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (RCRA),

the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42

U.S.C. § 9601, et seq., (CERCLA), the National Contingency Plan (NCP), the Missouri

Hazardous Waste Management Law Section 260.350 to 260.430 and 10 Missouri Code of State

Regulations (CSR) 25-1.010 to 25-19.010, and the MHWMF Permit, unless this AOC

specifically provides otherwise. Otherwise, the meaning of such terms shall be defined by a

standard dictionary.

a. “BFC Property” or “BFC” shall mean the approximate 307 acres of

property located at 1500-2312 East Bannister Road in Kansas City, Missouri shown on

the Property Map attached hereto as Attachment 1.

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b. “Day” shall mean a calendar day unless expressly stated to be a business

day. “Business day” shall mean a day other than Saturday, Sunday, or Federal or State

holiday. In computing any period of time under this Order, where the last day would fall

on a Saturday, Sunday, or Federal or State holiday, the period shall run until the end of

the next business day.

c. “DEED” shall mean the instrument of conveyance whereby the United

States of America transfers fee simple title to the PROPERTY TO BE TRANSFERRED

to TRANSFEREE.

d. “Director” shall mean the Director of the Missouri Department of Natural

Resources.

e. “Demolition Plan” shall mean, collectively: (i) “Bannister Federal

Complex Demolition Plan” prepared by Brandenburg Industrial Services Company and

(ii) “Bannister Federal Complex Abatement Demolition Plan Supplements” prepared by

E. W. Wells Group, LLC, both of the foregoing having been approved by the

DEPARTMENT on March 20, 2017.

f. “Department” or “MDNR” shall mean the Missouri Department of Natural

Resources.

g. “D&R-Phase Approved Cost Estimate” shall mean the estimate of the cost

of that portion of the WORK set forth and incorporated in this AOC as Attachment 2.

The D&R-Phase Approved Cost Estimate may be modified from time-to-time in

accordance with ARTICLE XXIX.

h. “Effective Date” shall mean the date this AOC is effective pursuant to

ARTICLE XXIII of this AOC

i. “ESCA” shall mean the Environmental Services Cooperative Agreement

between the NNSA and TRANSFEREE, pursuant to which NNSA will provide sufficient

funds to TRANSFEREE to complete the WORK.

j. “Exigent Circumstances” shall mean the happening of any event or

circumstance which TRANSFEREE determines in good faith requires any action,

response action or corrective action prior to submission and approval of a formal work

plan and/or advance reporting to MDNR in accordance with ARTICLE VIII of this

AOC or other applicable provisions of the MHWMF Permit, based upon the good faith

determination by TRANSFEREE that an imminent threat to human health or the

environment or material property damage may occur unless such immediate actions are

taken. As soon as practicable after the Exigent Circumstances occur, TRANSFEREE

shall proceed in accordance with ARTICLE VIII of this AOC or other applicable

provisions of the MHWMF Permit.

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k. “Final Certification of Completion ” shall mean the TRANSFEREE’S

certification, in consultation with MDNR, pursuant to Sections 104, 106 and 122 of the

Comprehensive Environmental Response, Compensation, and Liability Act, as amended,

42 U.S.C. §§ 9604, 9606 and 9622 (CERCLA) and pursuant to Missouri statutes

including the Missouri Hazardous Waste Management Law, RSMo. Section 260.350, et

seq., the MHWMF Permit and any modifications thereto, including certification that all

performance or clean-up standards have been attained and LTOM&M is no longer

necessary.

l. “Finding of Suitability for Early Transfer” or “FOSET” shall mean the

document prepared in accordance with CERCLA Section 120(h)(3)(C) which provides

the basis for the covenant deferral required by Section 120(h)(3)(A)(ii), 42 U.S.C. §

9620(h)(3)(A)(ii),with respect to the early transfer of the PROPERTY TO BE

TRANSFERRED.

m. “GSA RETAINED OBLIGATIONS” shall mean the retained and ongoing

GSA responsibilities as to the GSA RETAINED PROPERTY, including but not limited

to those under the MHWMF Permit as discussed herein, that will continue to be

performed by GSA after the Transfer Date, and for which the TRANSFEREE assumes no

responsibility.

n. “GSA RETAINED PROPERTY” shall be the approximately 82 acres of

BFC property lying east of the Union Pacific Railroad Right-of-Way that will not be

transferred by NNSA to TRANSFEREE pursuant to the DEED. The GSA RETAINED

PROPERTY specifically includes but is not limited to: the building and grounds

commonly known as 2306-2312 East Bannister Road, Solid Waste Management Unit

(SWMU) 44 – former landfill and Areas of Concern 1 and 2 as identified in the MHWMF

Permit. These areas are owned by the GSA and are not included within the PROPERTY

TO BE TRANSFERRED.

o. “Hazardous Substance Superfund” shall mean the Hazardous Substance

Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.

p. “Historical Releases” shall mean every Release that occurred on, at or

from the PROPERTY TO BE TRANSFERRED prior to the Transfer Date. For the

avoidance of doubt, a Release remains an Historical Release even if the hazardous

wastes, hazardous substances or hazardous constituents do not migrate off of the

PROPERTY TO BE TRANSFERRED until after the Transfer Date, unless such off site

migration is due to the willful misconduct of TRANSFEREE while performing the

WORK.

q. “Interest” shall mean interest at the current rate specified for interest on

investments of the Hazardous Substance Superfund, compounded annually on October 1

of each year, in accordance with 42 U.S.C. § 9607(a).

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r. “LTOM&M” means “Long Term Operations, Maintenance and

Monitoring” consisting of the response actions and corrective measures that

TRANSFEREE shall be obligated to take and perform under the MHWMF Permit from

and after the satisfactory completion of the portion of the WORK included within the

D&R-Phase Approved Cost Estimate.

s. “MHWMF Permit” shall mean Missouri Hazardous Waste Management

Facility Permit, Part I, permit number MO9890010524 for BFC issued on October 6,

1999 (Original Permit), as the same has and will be modified as follows: (a) on August

24, 2012, the Original Permit was modified to add GSA as a permittee and adding those

portions of the BFC that was then under the jurisdiction and control of GSA; (b) the

MDNR-initiated Contingent Permit Modification and Revised Remedy approved by

MDNR on ____________ that will take immediate effect upon vesting of title to the

PROPERTY TO BE TRANSFERRED in TRANSFEREE; and (c) the Class 1 Permit

Modification that will identify TRANSFEREE as owner/operator of the PROPERTY TO

BE TRANSFERRED.

t. “NNSA RETAINED OBLIGATIONS” shall mean the retained and

ongoing NNSA responsibilities hereafter set forth:

i. To fund, perform and be liable for all response actions and

corrective measures under the MHWMF Permit and this AOC, or otherwise

required by law, with respect to hazardous wastes or hazardous substances in

adjacent portions of Indian Creek, Boone Creek and the Blue River attributed to

Historical Releases.

ii. To reimburse TRANSFEREE or its assigns for capital costs,

design costs and other soft costs incurred under the MHWMF Permit (or under

the institutional controls and/or environmental covenants applicable to the

PROPERTY TO BE TRANSFERRED) to comply with the DEPARTMENT’s or

EPA’s requirements for future buildings to be constructed with vapor barriers or

engineered foundation systems to mitigate vapor intrusion.

iii. To reimburse TRANSFEREE for costs incurred on an annual basis

for LTOM&M.

The NNSA RETAINED OBLIGATIONS shall continue to be performed by NNSA after

the Transfer Date, and with respect thereto the TRANSFEREE assumes no responsibility

or liability.

u. “Oversight Costs” shall mean all costs subject to reimbursement under

RSMo. §260.375(30), §260.395.7.(6), and to be deposited in the hazardous waste fund

created in §260.391, including but not limited to, costs that MDNR incurs after the

Effective Date in reviewing and approving TRANSFEREE’S application for permit

reissuance, permit modification requests, work plans, reports, and other items pursuant to

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this AOC or otherwise implementing, overseeing, or enforcing TRANSFEREE’S

obligations under this AOC and the WORK.

v. “PROPERTY TO BE TRANSFERRED” shall be the approximately 225

acres of BFC property lying west of the Union Pacific Railroad Right-of-Way (as

specifically identified in the legal description in the DEED) that will be transferred by

NNSA to TRANSFEREE. Use of the term PROPERTY TO BE TRANSFERRED, as

used in this AOC, is not meant to limit the TRANSFEREE’S responsibility to undertake

any WORK at any surrounding areas not acquired by TRANSFEREE but that may

require response action to address releases of hazardous substances, hazardous wastes,

hazardous constituents, pollutants or contaminants that originated at the PROPERTY TO

BE TRANSFERRED, but which have migrated off the PROPERTY TO BE

TRANSFERRED, or occur in connection with TRANSFEREE’S performance of WORK

under this AOC or the MHWMF Permit. In no event do TRANSFEREE’S obligations or

responsibilities include NNSA RETAINED OBLIGATIONS or the GSA RETAINED

OBLIGATIONS.

w. “RCRA” shall mean the Solid Waste Disposal Act, as amended, 42 U.S.C.

§§6901 et seq. (also known as the Resource Conservation and Recovery Act).

x. “Release” shall mean any spilling, leaking, pouring, emitting, emptying,

discharging, injecting, pumping, escaping, leaching, dumping, or disposing of hazardous

wastes or hazardous substances (including hazardous constituents) into the environment

(including the abandonment or discarding of barrels, containers, and other closed

receptacles containing hazardous wastes, hazardous substances or hazardous

constituents).

y. “Response Costs” shall mean all costs of “response” as that term is

defined by Section 101(25) of CERCLA, 42 U.S.C. § 9601(25). “Response Costs” shall

include but not be limited to remedial investigations and implementation, response action

responsibilities, monitoring, reporting, closure and post-closure care, funding and

financial liability, and other responsibilities and liabilities under the MHWMF Permit.

Oversight Costs as defined above shall be a subcategory of Response Costs.

z. “Schedule of Activities” shall mean the schedule attached as Attachment

2.

aa. “Site Civil Plans” shall mean, collectively, the engineering plans prepared

by Lutjen Inc. (now known Olsson Associates) and approved by the DEPARTMENT on

March 17, 2017 for the project called “Bannister Federal Complex Property Transfer

Area” inclusive of:

i. Land Disturbance & Erosion Control Plans.

ii. Mass Grading and Site Disturbance Plans.

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iii. Existing Storm Sewer Closure Plans.

iv. Water Main Relocation.

v. Sanitary Sewer Plan.

vi. Preliminary Stormwater Drainage Study.

vii. Stormwater Pollution Prevention Plan.

bb. “STATE” shall mean the State of Missouri, acting by and through the

DEPARTMENT.

cc. “Transfer Date” shall be the date on which fee simple title to the

PROPERTY TO BE TRANSFERRED vests in TRANSFEREE.

dd. “TRANSFEREE” shall mean Bannister Transformation & Development

LLC, which shall obtain title to the PROPERTY TO BE TRANSFERRED upon

execution and recording of the DEED.

ee. The “WORK” to be performed by TRANSFEREE under this AOC shall

be all TRANSFEREE’S obligations under CERCLA, the Missouri Hazardous Waste

Management Law and the MHWMF Permit and as outlined in this AOC. The WORK

required under this AOC includes certain post-transfer environmental response actions at

the PROPERTY TO BE TRANSFERRED pursuant to the MHWMF Permit. In addition,

the WORK includes the implementation and completion of the Demolition Plans and the

Site Civil Plans. The WORK required to be performed by TRANSFEREE under this

AOC does not include the GSA RETAINED OBLIGATIONS or the NNSA

RETAINED OBLIGATIONS.

ARTICLE V. FINDINGS OF FACT

19. In 1942, the United States of America (through the Government-owned Defense

Plant Corporation and its successors) took possession of the BFC and constructed the main

manufacturing building and multiple ancillary structures at BFC. Between 1943 and 1945, Pratt

and Whitney Corp. built aircraft engines for the U.S. Navy in support of World War II at BFC.

20. In 1948, the BFC main manufacturing building was turned over to the War Assets

Administration, which used the building as a warehouse and location for several private and

governmental operations. The building was then transferred to the Department of the Navy,

which leased part of the building to Westinghouse Electric Co. in 1948. Westinghouse built jet

engines for the U.S. Navy until 1961. In 1963, the U.S. Navy transferred to BFC to GSA.

21. In 1949, Westinghouse subleased part of the main manufacturing building at BFC

to Bendix Corp. Bendix was contracted by the Atomic Energy Commission to manufacture

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electrical, mechanical, plastic and other non-nuclear components of nuclear weapons. During the

period from 1984 to 1999, Bendix merged with Allied Corp. Allied Corp. later merged with the

Signal Companies and changed its name to AlliedSignal. In 1999, AlliedSignal merged with the

Honeywell Corporation, and adopted the Honeywell name. The Kansas City Plant (KCP)

portion of the BFC was later operated by Honeywell Federal Manufacturing & Technologies

LLC. GSA also operated in the western part of BFC's main manufacturing building.

22. The Atomic Energy Commission continued operating at BFC until the

Commission was abolished in 1974.

23. In 1975, the Energy Research and Development Administration (ERDA) was

created, and in 1976 GSA transferred custody and control of the portion of BFC formerly

occupied by the Atomic Energy Commission to ERDA. The DOE was created in 1977 and the

KCP portion of the BFC was included in that new department. DOE took ownership of its part of

the main manufacturing building, and in 2000, the U.S. Congress created the NNSA.

24. During the history of manufacturing operations at BFC, hazardous materials were

released into the environment on, at and from the BFC, including but not limited to,

polychlorinated biphenyls (PCBs), volatile organic compounds (VOCs), semi-volatile organic

compounds (SVOCs), hydrocarbons, hexavalent chromium and uranium. A summary and notice

of hazardous substances known to have been released on the PROPERTY TO BE

TRANSFERRED potentially requiring notification is provided in the FOSET.

25. In 1983, cleanup of the KCP portion of the BFC began, and most corrective action

activity was initiated in 1989.

26. On June 23, 1989, DOE voluntarily entered into a 3008(h) Corrective Action

Administrative Order on Consent with EPA, Docket No. VII-89-H-0026 for the KCP portion of

the BFC.

27. On Oct. 6, 1999, the MDNR and the EPA issued two hazardous waste permits to

DOE for the KCP portion of the BFC: MDNR issued a Missouri Hazardous Waste Management

Facility Part I Permit and EPA issued a Hazardous and Solid Waste Amendments Part II Permit.

Issuance of the MHWMF Part I Permit resulted in the transfer of primary oversight responsibility

and authority for the investigation and corrective action activities for the KCP portion of the

BFC from EPA to the MDNR. EPA terminated the Corrective Action Administrative Order on

Consent for the KCP portion of the BFC on December 30, 1999, and the corrective action

process continued under the Part I Permit with MDNR.

28. Until 2012, GSA was also performing environmental investigation and cleanup

activities on its portion of BFC under CERCLA, with EPA providing regulatory oversight. On

August 24, 2012, MDNR and EPA approved modifications to amend DOE/NNSA’s original

permits to include the entire BFC complex, including the property owned by GSA, and added

GSA as a Permittee.

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29. The terms and condition of the transfer of the PROPERTY TO BE

TRANSFERRED were authorized by H.R. 3304, Section 3143 of the National Defense

Authorization Act for Fiscal Year 2014 (NDAA FY 2014).

30. The privatization of the environmental response responsibilities and property

transfer is set forth in the following documents: (a) the DEED between NNSA and

TRANSFEREE conveying fee simple title to the PROPERTY TO BE TRANSFERRED; (b) the

FOSET; (c) the ESCA; (d) the MHWMF Permit; (e) this AOC; and (f) the Missouri

Environmental Covenant Activity and Use Limitations (Record Covenants) to be recorded

concurrent with the aforesaid NNSA Deed.

ARTICLE VI. GENERAL PROVISIONS

31. NNSA recognizes and affirms that pursuant to CERCLA, it is ultimately

responsible for ensuring that all necessary response actions at the PROPERTY TO BE

TRANSFERRED have been or will be taken so that NNSA can provide the covenant required by

CERCLA 120(h)(3), 42 U.S.C. § 9620(h)(3).

32. NNSA is not released from any response action obligations under CERCLA,

except to the extent that TRANSFEREE or other third party satisfies such obligations at the BFC

for which the NNSA is otherwise responsible.

33. The STATE Governor’s approval of an early transfer of the PROPERTY TO BE

TRANSFERRED pursuant to CERCLA 120(h)(3) shall neither increase, diminish, nor affect in

any manner any rights or obligations of the NNSA (including without limitation any rights or

obligations under Sections 106, 107 and 120 of CERCLA 42 U.S.C. §§ 9606, 9607, and 9620)

existing prior to such early transfer.

34. The MHWMF Permit for BFC requires environmental response actions to address

hazardous waste and hazardous constituents including closure, post closure and corrective action

requirements under Missouri and federal law. As a part of the transfer of the PROPERTY TO BE

TRANSFERRED, the MHWMF Permit will be modified by a Class 1 modification with prior

written approval of MDNR to identify TRANSFEREE as owner/operator of the PROPERTY TO

BE TRANSFERRED, and GSA will remain on the MHWMF Permit as owner/operator for the

GSA RETAINED PROPERTY.

35. Notwithstanding that NNSA is not a permittee under the modified MHWMF

Permit and will have disposed of the PROPERTY TO BE TRANSFERRED as of the Transfer

Date, NNSA shall retain and perform all of the NNSA RETAINED OBLIGATIONS.

36. Through this division of the obligations of environmental responsibilities between

NNSA and TRANSFEREE, and as otherwise set forth herein, continuous uninterrupted

regulation of BFC under State and Federal hazardous waste laws and regulations will be

maintained.

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37. In addition to the obligations under this AOC, TRANSFEREE will be responsible

for the MHWMF Permit obligations on or related to contamination originating on the

PROPERTY TO BE TRANSFERRED, including hazardous waste facility investigation, post-

closure care, and all corrective measures required for the SWMUs and Areas of Concern, which

TRANSFEREE has accepted for the PROPERTY TO BE TRANSFERRED by virtue of the

Class 1 Permit Modification for change in ownership/operational control, the ESCA, the DEED

and this AOC (but not including the NNSA RETAINED OBLIGATIONS or GSA RETAINED

OBLIGATIONS).

38. In addition to the WORK to be performed pursuant to the MHWMF Permit, the

AOC provides for and the ESCA funds the following additional components of the WORK: (a)

the Demolition Plan; and (b) the Site Civil Plans. The D&R-Phase Approved Cost Estimate as of

the Effective Date is inclusive of all of the aforesaid WORK.

39. Post transfer demolition on the PROPERTY TO BE TRANSFERRED will be

conducted by TRANSFEREE in conformance with a Demolition Plan prepared by

TRANSFEREE, which Demolition Plan has been submitted to MDNR for review and was

approved in March of 2017.

40. TRANSFEREE represents that, as of the Effective Date under ARTICLE XXIII,

the Schedule of Activities constitutes its good faith assessment of the time line and sequences of

activities required to execute the WORK. The Schedule of Activities provides for completion of

the WORK not later than the second calendar quarter of 2023. TRANSFEREE shall diligently

and in good faith perform the WORK in accordance with the Schedule of Activities and

complete the WORK not later than the second calendar quarter of 2023. However, the Parties

acknowledge that during performance of the WORK, the TRANSFEREE may encounter

unanticipated or undisclosed field conditions, or delay by other Parties or third parties beyond

the reasonable control of TRANSFEREE, which may require adjustments to the Schedule of

Activities during the course of the WORK. After excluding the effect of delays caused by Force

Majeure under ARTICLE XV, if the cumulative effect of the adjustments to the Schedule of

Activities causes the completion of the WORK to be delayed more than six (6) months, any

additional adjustments to the Schedule of Activities that further extend the completion of the

WORK shall be subject to MDNR review and approval pursuant to ARTICLE VIII. Upon

MDNR’s approval of any adjustment to the Schedule of Activities as set forth above,

TRANSFEREE shall provide MDNR with an updated Schedule of Activities with the agreed

upon time line and sequence of activities for execution of the WORK.

41. All activities undertaken by TRANSFEREE pursuant to this AOC shall be

performed in accordance with the requirements of all applicable or relevant and appropriate

requirements of federal and state laws and regulations.

ARTICLE VII. FINANCIAL ASSURANCE

42. Attachment 3 of this AOC constitutes the D&R-Phase Approved Cost Estimate

as of the Effective Date for the WORK (inclusive of the Demolition Plan, Site Civil Plans,

corrective measures under the MHWMF Permit, and LTOM&M and Post-Closure Care Costs for

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Years 1-4 after the Effective Date). Periodic reporting by TRANSFEREE of the site costs and

expenditures, and the status of the BFC Remedial Fund is required herein by Paragraph 71 and

Paragraph 72. Any modifications or amendments to the D&R-Phase Approved Cost Estimate

must be made in accordance with ARTICLE XXIX of this AOC. On or about the first Business

Day of the first calendar month following each anniversary of the Effective Date,

TRANSFEREE shall make any adjustments necessary to the D&R-Phase Cost Estimate (after

deducting therefrom portions of the WORK performed during the previous twelve months) such

that the updated D&R-Phase Cost Estimate (once approved by MDNR and NNSA) shall

represent the good faith and commercially reasonable estimation of the probable cost of the

remaining WORK to be performed (inclusive of the Demolition Plan, Site Civil Plans, corrective

measures under the MHWMF Permit, and LTOM&M and Post-Closure Care Costs for Years 1-4

after the Effective Date). Each annual update of the D&R-Phase Cost Estimate shall be subject to

the same review and approval provisions as pertain to work plans under ARTICLE VIII of this

AOC and under the MHWMF Permit, and once approved by MDNR shall become the

replacement D&R-Phase Approved Cost Estimate.

43. For the D&R-Phase Approved Cost Estimate (exclusive of LTOM&M Costs and

Post-Closure Care from and after Year 5 following the Effective Date), the financial assurance

mechanism being utilized for the PROPERTY TO BE TRANSFERRED post transfer is a one-

time appropriation by the federal government of funds sufficient to cover all requirements for

financial assurance under the Missouri Hazardous Waste Management Law and Regulations,

MHWMF Permit, the Demolition Plan and the Site Civil Plan. The funds from this

appropriation (the “BFC Remedial Fund”) will be funded to TRANSFEREE pursuant to the

ESCA, and made available to TRANSFEREE as payment and/or reimbursement for the cost of

the WORK in accordance with the ESCA. The BFC Remedial Fund is deemed equivalent to a

trust fund under 10 CSR 25-7.264(1) incorporating 40 CFR 264 Subpart H regulations and,

pursuant to the ESCA, will be billed against monthly by TRANSFEREE in its performance of

the WORK under this AOC.

44. Funds in the BFC Remedial Fund will be available to be accessed by

TRANSFEREE pursuant to the ESCA in any month in which the WORK under this AOC is

performed and/or invoiced. The BFC Remedial Fund is not a source of funds for NNSA to

expend for NNSA RETAINED OBLIGATIONS.

45. Attachment 4 of this AOC constitutes the TRANSFEREE’S good faith estimate

of the LTOM&M Costs and Post-Closure Care Costs (from and after Year 5 following the

Effective Date). On or about the first Business Day of the first calendar month following each

anniversary of the Effective Date, TRANSFEREE shall make any adjustments necessary to the

LTOM&M Costs and Post-Closure Care Costs, representing its good faith and commercially

reasonable estimation of the probable annual combined cost thereof.

46. In recognition of NNSA’s continuing obligations under this AOC and under

CERCLA for BFC post-transfer, with respect to LTOM&M and Post-Closure Care from and after

Year 5 following the Effective Date, NNSA shall fund the costs incurred by TRANSFEREE

annually for LTOM&M and Post-Closure Care from and after Year 5 following the Effective

Date; and the NNSA (through the DOE) shall annually submit a budget request to the Director of

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the Office of Management and Budget that, if appropriated, shall adequately fund such costs

through one or more ESCAs or amendments thereof. The actual amount available for such

activities shall be subject to congressional authorization and appropriation.

47. In recognition of the NNSA RETAINED OBLIGATIONS under this AOC, NNSA

(through the DOE) shall annually submit a budget request to the Director of the Office of

Management and Budget that, if appropriated, shall adequately fund the cost of NNSA

RETAINED OBLIGATIONS. The actual amount available for such activities shall be subject to

congressional authorization and appropriation.

48. In the event TRANSFEREE fails to perform the WORK, and MDNR declares a

Default by TRANSFEREE under the MHWMF Permit or this AOC, NNSA and MDNR shall

have immediate access to and benefit of the BFC Remedial Fund and/or future appropriations for

purposes of completing and or funding the WORK. Access to the BFC Remedial Fund by

MDNR in the event of TRANSFEREE default, shall in such event be in the same manner as

access by the TRANSFEREE as discussed herein.

49. The initial D&R-Phase Approved Cost Estimate identifies certain scopes of the

WORK for which subcontractors of TRANSFEREE are covered by Payment and Performance

Bonds naming TRANSFEREE as Obligee, copies of which are attached to this AOC as

Attachment 5. In the event TRANSFEREE fails to perform the WORK, and MDNR declares a

Default by TRANSFEREE under the MHWMF Permit or this AOC, NNSA shall be deemed the

substitute Obligee under the Payment and Performance Bonds, at their respective elections.

ARTICLE VIII. MDNR REVIEW AND APPROVAL

50. NNSA, TRANSFEREE, and MDNR agree to make reasonable efforts to contact

representatives of the other Parties to this AOC to facilitate compliance with the requirements

hereunder and to utilize informal communications, whenever appropriate, to minimize the

possibility of dispute resolution or litigation in connection with this AOC by contacting

representatives of the other Parties regarding schedules, deadlines, status of work, occurrence

and management of any Exigent Circumstances, processing of reimbursement payments, delays

in payments under the ESCA, account balances in the BFC Remedial Fund, revisions to the

D&R-Phase Approved Cost Estimate, clarification or interpretation of any legal documentation,

and the meaning of communications, reports, comments in connection with this AOC, or any

other matters arising from the performance of the WORK, or performance or administration of

this AOC or the MHWMF Permit.

51. For any work plans, reports and obligations required under the MHWMF Permit,

MDNR will review and approve the same pursuant to the requirements of the MHWMF Permit.

52. After receipt and review by MDNR of work plans or reports required under this

AOC, MDNR will discuss such work plans or reports with TRANSFEREE. MDNR may request

clarifications, provide review comments, approve, disapprove, approve with modifications, or

require revisions to the work plans or reports submitted by TRANSFEREE. Prior to any final

disapproval, approval with modifications, or revisions required by MDNR to the work plans or

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reports, MDNR will discuss with TRANSFEREE MDNR’s disapproval, approval with

modifications, or revisions. Subsequent to discussions with TRANSFEREE, MDNR will

provide written notice of its final approval, disapproval, approval with modifications, or required

revisions. If MDNR requires revisions to the work plans or reports, TRANSFEREE shall make

such revisions to the work plans or reports within thirty (30) days of receipt of MDNR’s written

notice (First Request for Revisions), unless otherwise agreed upon by the Parties.

53. If, after the TRANSFEREE has revised the work plans or reports, MDNR

determines that the TRANSFEREE has not made the revisions required in MDNR’s First

Request for Revisions, MDNR shall notify TRANSFEREE in writing of any deficiencies

(Second Request for Revisions). TRANSFEREE shall revise the work plans or reports within

thirty (30) days of receipt of MDNR’s Second Request for Revisions, unless otherwise agreed

upon by the Parties.

54. If subsequent to revisions made by the TRANSFEREE in response to MDNR’s

Second Request for Revisions, MDNR determines that the work plans or reports revised by the

TRANSFEREE in response to MDNR’s Second Request for Revisions contain deficiencies,

MDNR shall either (a) notify TRANSFEREE in writing of any deficiencies (which for purposes

of this paragraph shall be deemed another Second Request for Revisions and the process set forth

in Paragraph 53 above shall be applicable), or (b) to the extent consistent with this AOC and

MDNR’s regulatory authority, disapprove and unilaterally modify such work plans or reports by

written Notice to TRANSFEREE and NNSA.

55. TRANSFEREE shall implement the work plans and reports as approved or

modified by MDNR.

56. All work plans and reports required hereunder and approved by MDNR are

incorporated into and enforceable as part of this AOC.

57. MDNR will attempt to respond to all work plans and reports submitted by

TRANSFEREE that require review and approval pursuant to the MHWMF Permit in a timely

manner, normally within approximately forty-five (45) business days after submission unless

circumstances arise which require a longer period of review and response. TRANSFEREE may

reasonably request expedited review and response times if exigent circumstances require the

same, and MDNR shall provide such cooperation as is reasonably necessary and feasible under

the circumstances.

58. TRANSFEREE shall not conduct any WORK required hereunder for which

MDNR’s written approval is required before TRANSFEREE receives such written approval

from MDNR, except in the event of an Exigent Circumstances and then only to the extent

reasonably necessary in order to abate the Exigent Circumstances.

ARTICLE IX. DESIGNATION OF PROJECT MANAGER AND PROJECT

REPRESENTATIVES

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59. TRANSFEREE hereby designates the following Project Executives who shall be

responsible for administration of all TRANSFEREE’s actions required by the AOC:

Kevin P. Breslin, Manager of TRANSFEREE

Scott Cargill, Manager of TRANSFEREE

The other Parties shall direct all submissions required by this AOC to TRANSFEREE’s

Project Executives at _____.

60. TRANSFEREE may hereafter designate additional or substitute Project

Executives, provided that TRANSFEREE shall submit the name, address, telephone number, and

qualifications of the designated Project Executive(s) to MDNR. At least one of the Project

Executives shall be present on PROPERTY TO BE TRANSFERRED or readily available during

site work.

61. TRANSFEREE has designated its first-tier subcontractor, CenterPoint Properties

Trust (CNT), as its onsite project manager for the onsite supervision of the WORK during the

D&R Phase, and the following designated officer(s) of CNT shall be the representative of CNT

in performance of its Project Manager responsibilities:

James S. Cross, Senior Vice President

Melissa K. Roman, Vice President

62. MDNR retains the right to disapprove any new or substitute Project Executive

designated by TRANSFEREE. MDNR shall provide written notice to TRANSFEREE of such

disapproval and the basis of objection within ten (10) days after notification of designation by

TRANSFEREE.

63. MDNR has designated _______ of the Permits Section, Hazardous Waste

Program, MDNR, as its Project Manager. The other Parties shall direct all submissions required

by this AOC to the Chief, Permits Section, Hazardous Waste Program, Missouri Department of

Natural Resources, P.O. Box 176, Jefferson City, Missouri 65102. Receipt by MDNR’s Chief,

Permits Section of any notice or communication from the other Parties relating to this AOC shall

constitute receipt by MDNR.

64. NNSA has designated _______ of the ______ as its Contracting Officers

Representative (COR). The other Parties shall direct all submissions to NNSA required by this

AOC to the NNSA COR at _____. Receipt by NNSA’s COR of any notice or communication

from the other Parties relating to this AOC shall constitute receipt by NNSA.

65. The Parties shall have the right, subject to the preceding paragraphs, to change

their own designated representatives, as the case may be. To the extent practicable, the Parties

shall notify each other ten (10) business days before such a change is made. The initial

notification may be made verbally but it shall be promptly followed by a written notice.

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ARTICLE X. ACCESS AND INSTITUTIONAL CONTROLS

66. Certain institutional control restrictions on land/soil and groundwater use on all or

portions of BFC are already in place to assure protection of human health and the environment.

These restrictions are found at the Jackson County Recorder’s Office in Book #2000K0065988,

pages 1 through 5; Filing #K888283, Book #K1938P, pages 759-760 for the North Lagoon (July

28, 1989); Filing #K888284, Book #K1938P, pages 761-762 for the South Lagoon (July 28,

1989) and Filing #K864040; Book, pages and filing date unknown for the Underground Storage

Tank Farm (USDOE notarized this filing on October 12, 1988) pursuant to 40 CFR 265.119.

67. Additional land use restrictions and institutional controls, as set forth in Enclosure

_____ of the FOSET, will be executed and recorded by TRANSFEREE at the time of transfer

and will be available for enforcement by MDNR and EPA during demolition and remediation

activities at the PROPERTY TO BE TRANSFERRED.

68. TRANSFEREE also shall comply with all additional requirements for land use

restrictions and institutional controls in accordance with the MHWMF Permit.

69. MDNR, EPA and NNSA shall be granted access to the PROPERTY TO BE

TRANSFERRED as necessary to implement this AOC, including but not limited to monitoring

or oversight of the WORK, long-term stewardship, verification of any data submitted to MDNR

and EPA, conducting investigations relating to contamination at or near the PROPERTY TO BE

TRANSFERRED, obtaining samples, assessing the need for planning or implementing WORK

or additional WORK at or near the PROPERTY TO BE TRANSFERRED, assessing

implementation of quality assurance or quality control practices, implementing NNSA’s

obligations and any WORK required by this AOC in the event of Default by the TRANSFEREE,

inspecting and copying records operating logs, contracts, or other documents maintained or

generated by TRANSFEREE or its agents, assessing TRANSFEREE’S compliance with this

AOC, and determining whether the PROPERTY TO BE TRANSFERRED is being used in a

manner that is prohibited or restricted or that may need to be prohibited or restricted by, or

pursuant to this AOC. Access shall be provided on the condition that all MDNR, EPA and

NNSA representatives comply with OSHA health and safety policies and procedures and all

reasonable Health and Safety Plans and Site Access and Security Plans then in effect with

respect to the WORK or the PROPERTY TO BE TRANSFERRED. MDNR, EPA and NNSA

shall have access to the PROPERTY TO BE TRANSFERRED at reasonable times for the

purpose of reviewing progress in carrying out the provisions of this AOC. TRANSFEREE shall

not be liable for any claims or causes of action arising from or on account of any acts or

omissions of the MDNR, EPA or NNSA representatives while at the PROPERTY TO BE

TRANSFERRED. Access for MDNR, EPA or NNSA representatives pursuant to this paragraph

will terminate upon MDNR’s issuance of a Final Certification of Completion pursuant to

Paragraph 75. The provisions in this paragraph are not to be construed as a restriction on

MDNR’s, EPA’s or NNSA’s rights or access under state or federal law or the NNSA Deed.

70. Future land use of the PROPERTY TO BE TRANSFERRED will be restricted to

the industrial and limited commercial uses in accordance with the approved Baseline Risk

Assessment (2016), the FOSET, the MHWMF Permit, the Missouri Environmental Covenant

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Act, the NNSA Deed, the existing Record Covenants, and any other land use restrictions which

MDNR deems necessary to protect human health and the environment pursuant to its authority

under applicable law. Without limiting the foregoing, TRANSFEREE covenants and agrees, for

its self and its successor and assigns, that Environmental Use Covenants for the property will

contain the following restrictions:

a. No Residential Use. The PROPERTY TO BE TRANSFERRED will be

restricted from residential use by various land use controls including local zoning

ordinances, deed restrictions, and a recorded covenant. Prohibited residential uses of the

PROPERTY TO BE TRANSFERRED include, but are not limited to, any form of

housing, childcare, pre-schools, educational institutions attended on a regular basis by

students younger than 18-years old, and playgrounds, whether or not ancillary to a

commercial facility or endeavor.

b. Groundwater Use Restrictions. All groundwater must meet applicable

MDNR use standards prior to use and limits the locations at which new water wells may

be installed. Existing deed restrictions on the PROPERTY TO BE TRANSFERRED,

which will remain in effect post transfer, prevent the use of groundwater from the

property being used as a potable water source.

c. Ground Disturbance Restrictions. No physical or structural changes or

disturbances of ground surface shall be permitted in, on, or immediately adjacent to any

Hazardous Waste Management Unit, Solid Waste Management Unit, or Area of Concern

other than as allowed, required or facilitated by the implementation and completion of the

WORK including the Demolition Plan, Site Civil Plans and approved work plans to

implement response actions and corrective measures required or referenced herein or in

the MHWMF Permit, including any necessary MDNR approvals that may be required.

Future development work at the PROPERTY TO BE TRANSFERRED will be subject to

the requirements of the MHWMF Permit and all recorded covenants.

d. Changes to Institutional Controls. In the event it should become

appropriate to revise an institutional control in light of actual or anticipated uses of the

property or other factors, TRANSFEREE may submit revised institutional control

proposals to MDNR for approval in accordance with the MHWMF Permit and/or

environmental covenant.

e. TRANSFEREE shall use its best efforts to ensure that any redevelopment

at the PROPERTY TO BE TRANSFERRED will not interfere with or delay any WORK

undertaken pursuant to this AOC or the MHWMF Permit, in accordance with the

Schedule of Activities.

ARTICLE XI. REPORTING REQUIREMENTS

71. TRANSFEREE shall submit written semi-annual progress reports on the status of

the WORK to MDNR, EPA and NNSA (coordinated as to due dates with the required Semi-

Annual Progress Reports under the MHWMF Permit). These reports shall describe all

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significant developments during the preceding period, including the actions performed and any

problems encountered, analytical data received during the reporting period, site costs and

expenditures including annual response action budget(s), the balance of the BFC Remedial Fund

(as most recently reported by NNSA), and the developments anticipated during the next

reporting period, including a schedule of actions to be performed, anticipated problems, and

planned mitigation of anticipated problems. Reporting under the AOC may be coordinated with

any reporting required under the MHWMF permit.

72. TRANSFEREE shall annually update the D&R-Phase Approved Cost Estimate,

and the LTOM&M Costs and Post-Closure Care Costs, in accordance with Paragraph 42 and

Paragraph 45 of this AOC and the MHWMF Permit.

ARTICLE XII. CERTIFICATION OF CONSTRUCTION COMPLETION

73. TRANSFEREE shall comply with Special Permit Condition XIV. Construction

Completion Reports of the MHWMF Permit with respect to the submission of Construction

Completion Reports containing a summary of all construction activities implemented as part of

the revised remedy for that portion of remedy implementation covered by each approved

Corrective Measures Implementation Plan.

74. When TRANSFEREE concludes that except for LTOM&M requirements, all

necessary WORK required hereunder, including the implementation of institutional controls

have been completed, the TRANSFEREE shall submit to MDNR for review and approval a Final

Construction Completion Report in accordance with the MHWMF Permit.

75. When MDNR determines, after MDNR’s review of TRANSFEREE’s request for

review and approval of a Final Construction Completion Report that, except for LTOM&M

requirements, all necessary WORK has been taken at the PROPERTY TO BE TRANSFERRED

and that no additional WORK is necessary to protect human health or the environment, MDNR

will issue a written approval of the Final Construction Completion Report. If MDNR determines

that any WORK required by this AOC has not been completed in accordance with this AOC,

MDNR will notify TRANSFEREE in writing and provide a list of the deficiencies.

76. In addition to a Final Construction Completion Report, TRANSFEREE may from

time-to-time request written “No Further Action” determinations by MDNR with respect to the

WORK and required corrective actions taken or hereafter to be taken, on a SWMU-specific

basis. The review and approval provisions under ARTICLE VIII of this AOC shall be generally

applicable to TRANSFEREE’s requests to MDNR for any such SWMU-specific “No Further

Action” determinations, it being understood and agreed that MDNR retains its full regulatory

authority at all times to request clarifications, provide review comments, approve, disapprove,

approve with modifications, or require revisions to any request for any “No Further Action”

determination submitted by TRANSFEREE.

ARTICLE XIII. ASSURANCE OF ABILITY TO COMPLETE WORK

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77. TRANSFEREE and NNSA represent that they have entered into an ESCA

agreement for funding the performance of the WORK and payment of the costs set forth in the

D&R-Phase Approved Cost Estimate. The appropriated funds available for disbursement

pursuant to the ESCA shall be held by NNSA in the BFC Remedial Fund as described in the

Financial Assurance Article of this AOC, ARTICLE VII. TRANSFEREE shall use such BFC

Remedial Funds solely and exclusively to finance and perform TRANSFEREE’S WORK as

defined under this AOC, including the Demolition Plan, Site Civil Plans and the MHWMF

Permit as set forth in the D&R-Phase Approved Cost Estimate.

78. The initial D&R-Phase Approved Cost Estimate identifies certain scopes of the

WORK for which subcontractors of TRANSFEREE are covered by Payment and Performance

Bonds naming TRANSFEREE as Obligee, copies of which are attached to this AOC as

Attachment 4.

79. TRANSFEREE also represents that concurrent with vesting of title to the

PROPERTY TO BE TRANSFERRED in TRANSFEREE, it shall have obtained a Pollution

Legal Liability Policy of insurance (PLL Policy) materially consistent with the coverage binder

attached to this AOC as Attachment 5.

ARTICLE XIV. INDEMNIFICATION AND CGL INSURANCE

80. The NNSA and TRANSFEREE shall not hold out MDNR as a party to any

contract entered into by the NNSA or TRANSFEREE for any of the WORK required by this

AOC.

81. To the extent allowed by law, TRANSFEREE agrees to indemnify, save and hold

harmless the STATE, its officials, agents, contractors, subcontractors, employees and

representatives from: (A) any and all claims or causes of action arising from, or on account of

negligent or otherwise wrongful acts or omissions of TRANSFEREE, its officers, directors,

employees, agents, contractors, subcontractors, receivers, trustees, successors or assigns, in

carrying out the WORK, and (B) any and all claims or causes of action brought by contractors or

subcontractors performing any work or services for TRANSFEREE on or about the PROPERTY

TO BE TRANSFERRED in connection with the WORK under this AOC.

82. MDNR shall give TRANSFEREE notice of any claim for which MDNR plans to

seek indemnification pursuant to this Article and shall consult with TRANSFEREE prior to

settling such claim.

83. At least seven (7) days prior to commencing any on-site WORK under this AOC,

TRANSFEREE shall secure and maintain, in its own name as insured or through one or more of

its contractors having possession or control of the PROPERTY TO BE TRANSFERRED during

performance of the WORK, comprehensive general liability insurance and automobile insurance

with limits of $1,000,000, combined single limit. Within the same time period, TRANSFEREE

shall provide MDNR with a certificate of such insurance if so requested by MDNR.

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ARTICLE XV. FORCE MAJEURE

84. TRANSFEREE agrees to perform all requirements under this AOC within the

time limits established under this AOC, unless the performance is delayed by a force majeure.

For purposes of this AOC, a force majeure is defined as any event arising from causes beyond

the reasonable control of TRANSFEREE or of any entity controlled by TRANSFEREE,

including but not limited to TRANSFEREE’S contractors and subcontractors, that delays or

prevents performance of any obligation under this AOC despite TRANSFEREE’S best efforts to

fulfill the obligation. Except for NNSA’s failure to timely (A) provide the funding required

under the ESCA(s), or (B) make payments to TRANSFEREE in accordance with the ESCA(s),

force majeure does not include financial inability to complete the WORK or increased cost of

performance of the WORK. Force majeure shall include but not be limited to TRANSFEREE’s

inability to secure access to areas owned by or in possession of someone other than

TRANSFEREE despite TRANSFEREE’S best efforts to obtain all necessary access agreements.

85. TRANSFEREE shall notify MDNR in writing within a reasonable period of time

(and in any event within ten (10) business days) after TRANSFEREE becomes aware of events

which constitute a force majeure. Such notice shall: identify the event causing the delay or

anticipated delay; estimate the anticipated length of delay, including potential for demobilization

and remobilization; state the measures contemplated to be taken to minimize the delay; and

estimate the timetable for implementation of the mitigation measures. TRANSFEREE shall take

commercially reasonable measures to avoid and minimize the delay.

86. If a delay in performance of a requirement under this AOC is or was attributable

to a force majeure, the time period for performance of that requirement shall be extended as

deemed necessary by TRANSFEREE taking into consideration the length of the delay and

remobilization requirements. Such an extension shall not alter TRANSFEREE’s obligation to

perform or complete other tasks required by the WORK which are not adversely affected by the

force majeure.

ARTICLE XVI. COVENANT NOT TO SUE

87. In consideration of the actions that will be performed, for so long as

TRANSFEREE is in compliance with this AOC, and except as otherwise specifically provided in

this AOC, MDNR covenants not to sue or to take administrative action against TRANSFEREE

pursuant to Sections 106 and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a) for the WORK

and/or for recovery of MDNR’s Response Costs. This covenant not to sue shall take effect upon

the Effective Date and is conditioned upon the complete and satisfactory performance by

TRANSFEREE of all TRANSFEREE obligations under this AOC.

ARTICLE XVII. RESERVATION OF RIGHTS BY MDNR

88. Except as specifically provided in this AOC, nothing herein shall limit the power

and authority of MDNR to take, direct, or order all actions necessary to protect public health,

welfare, or the environment or to prevent, abate, or minimize an actual or threatened release of

hazardous substances, pollutants or contaminants, or hazardous or solid waste on, at, or from

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PROPERTY TO BE TRANSFERRED. Further, except as set forth herein, nothing in this AOC

shall prevent MDNR from seeking legal or equitable relief to enforce the terms of this AOC, or

from taking other legal or equitable action as it deems appropriate and necessary under

applicable law.

89. The covenant not to sue set forth in ARTICLE XVI above does not pertain to

any matters other than those expressly identified therein. MDNR reserves, and this AOC is

without prejudice to, all MDNR rights with respect to all other matters, including, but not limited

to:

a. Claims based on a failure by TRANSFEREE to meet a requirement of this

AOC;

b. Liability based on TRANSFEREE’s transportation, treatment, storage, or

disposal, or the arrangement for the transportation, treatment, storage, or disposal of

waste at or in connection with the PROPERTY TO BE TRANSFERRED, this AOC, or

otherwise ordered by MDNR, after signature of this AOC by the TRANSFEREE;

c. Criminal liability arising after signature of this AOC by the

TRANSFEREE;

d. Liability for damages for injury to, destruction of, or loss of natural

resources, and for the costs of any natural resource damage assessments arising after

signature of this AOC by the TRANSFEREE;

e. Liability arising from the release or threat of release of waste materials

outside of and from the PROPERTY TO BE TRANSFERRED, except for GSA

RETAINED OBLIGATIONS and NNSA RETAINED OBLIGATIONS, first occurring

after signature of this AOC by the TRANSFEREE;

f. Liability for violations of federal, state, or local law or regulations which

arise from implementation of the WORK at the PROPERTY TO BE TRANSFERRED,

and

g. Liability, prior to the Final Certification of Construction Completion, for

additional environmental response actions that MDNR determines are necessary to

perform the TRANSFEREE WORK under this AOC.

ARTICLE XVIII. CONTRIBUTION PROTECTION

90. With regard to contribution actions or claims against TRANSFEREE, the Parties

hereto agree that through this AOC TRANSFEREE has in an administratively approved

settlement resolved all alleged liability for the PROPERTY TO BE TRANSFERRED within the

meaning of Section 113(f)(2) of CERCLA, U.S.C. § 9613(f)(2), and is entitled as of the Effective

Date to protection from contribution actions or claims as provided by Section 113(f)(2) of

CERCLA, or as may be otherwise provided by law for Matters Addressed in this AOC. The

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“Matters Addressed” in this AOC include the WORK and all other response actions taken or to

be taken and all response costs incurred or to be incurred, at or in connection with the

PROPERTY TO BE TRANSFERRED, subject to the reservations contained herein.

91. Nothing in this AOC precludes the Parties from asserting any claims, causes of

action or demands against any persons not parties to this AOC, including claims for

indemnification, contribution, or cost recovery.

92. Nothing in this AOC shall preclude any of the parties to the ESCA from asserting

any claims, causes of action or demands against any other party(ies) to the ESCA, to the extent

allowed by law or pursuant to the terms of the ESCA.

ARTICLE XIX. RECORD RETENTION, DOCUMENTATION,

AVAILABILITY OF INFORMATION

93. TRANSFEREE shall preserve all analytical data, and business and operating

records generated under this AOC for the longer of five (5) years following the issuance of the

Final Certification of Completion or as otherwise required by applicable laws and regulations

governing the type of records so created and maintained.

94. In response to a request for information from MDNR, TRANSFEREE may assert

a business confidentiality claim pursuant to Section 260.430 RSMo. If no such claim

accompanies the information when the information is provided to MDNR, MDNR may make

such information available to the public without further notice to TRANSFEREE.

ARTICLE XX. EMERGENCY RESPONSE AND NOTIFICATION OF

RELEASES

95. TRANSFEREE shall fully and promptly comply with the General Permit

Requirements of the MHWMF Permit for the PROPERTY TO BE TRANSFERRED with

respect to Preparedness and Prevention (40 CFR Part 264 Subpart C), Contingency Plan and

Emergency Procedures (40 CFR Part 264 Subpart D) and Notification of an Emergency Situation

(R.S.Mo. §260.505.4). The aforesaid reporting requirements are in addition to, not in lieu of,

reporting under Section 103(c) of CERCLA and Section 304 of the Emergency Planning and

Community Right-To-Know Act of 1986, 42 U.S.C. § 11001 et seq.

ARTICLE XXI. AUTHORITY OF THE MDNR PROJECT MANAGER

96. The MDNR Project Manager, or designee, shall be responsible for overseeing

implementation of this AOC. Absence of the MDNR Project Manager from the PROPERTY TO

BE TRANSFERRED shall not be cause for stoppage of work unless specifically directed by the

MDNR Project Manager.

ARTICLE XXII. REIMBURSEMENT OF OVERSIGHT COSTS

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97. MDNR shall reasonably respond to TRANSFEREE’s periodic requests for

estimated annual Oversight Costs in connection with the annual update of the Agreed Cost

Estimate and the estimating of annual LTOM&M Costs, and for other normal and customary

cost budget estimating purposes.

98. On a quarterly basis MDNR shall submit to TRANSFEREE a bill for Oversight

Costs previously incurred but unpaid. The bills shall include a standard MDNR-prepared cost

summary of those costs itemizing employee and contractor costs together with documentation

that such costs have been incurred including, direct and indirect costs incurred by MDNR and its

contractors. TRANSFEREE shall, within sixty (60) days of receipt of the bill, send a check for

the amount of the bill made payable to the “STATE” for deposit into the Hazardous Waste Fund

established pursuant to R.S.Mo. §260.391 to the following address:

Hazardous Waste Program/Permits Section

Missouri Department of Natural Resources

P.O. Box 176

Jefferson City, Missouri 65102-0176

Payments shall be designated as “Oversight Costs – Bannister Transformation &

Development” and shall reference the name and address of the party making payment.

99. In the event that the payment for Oversight Costs is not made within sixty (60)

days of TRANSFEREE’S receipt of the bill, TRANSFEREE shall pay interest on the unpaid

balance.

100. Interest is established at the rate specified in Section 107(a) of CERCLA. The

interest on Oversight Costs shall begin to accrue sixty (60) days after the date of

TRANSFEREE'S receipt of the bill. Interest shall accrue at the rate specified through the date of

the payment. Payments of interest made under this paragraph shall be in addition to such other

remedies or sanctions available to the STATE by virtue of TRANSFEREE’S failure to make

timely payments under this Article.

101. TRANSFEREE may dispute all or part of a bill for Oversight Costs submitted

under this AOC, if TRANSFEREE alleges that MDNR has made an accounting error, or if

TRANSFEREE alleges that a cost item is inconsistent with oversight as to the WORK, or if the

cost documentation required herein is insufficient to determine if the cost is an appropriate

Oversight Cost.

102. If any dispute over costs is resolved before payment is due, the amount due will

be adjusted as necessary. If the dispute is not resolved before payment is due, TRANSFEREE

shall pay the full amount of the uncontested costs into the Hazardous Waste Fund as specified

above on or before the due date. Within the same time period, TRANSFEREE shall pay the full

amount of the contested costs into an interest-bearing escrow account. TRANSFEREE shall

simultaneously transmit a copy of both checks to the Chief, Permits Section, Hazardous Waste

Program.

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ARTICLE XXIII. DEFAULT BY TRANSFEREE

103. In the event that TRANSFEREE shall materially fail or omit to perform its

obligations, duties or covenants under the MHWMF Permit or this AOC, MDNR shall notify

TRANSFEREE in writing (with a copy to the other Parties), describing with reasonable detail

the nature of such failure or omission (the “Performance Failure Notice”). If a Response and

Mitigation Plan under the next Article is required from TRANSFEREE in less than sixty (60)

days due to the exigency of the conditions resulting from the failure or omission, the

Performance Failure Notice shall so specify.

104. Within sixty (60) days after receipt by TRANSFEREE of the Performance Failure

Notice, TRANSFEREE shall prepare and submit to MDNR (with a copy to the Other Parties) a

written response to the Performance Failure Notice including a description in reasonable detail of

the actions and mitigation measures TRANSFEREE intends to take in order to address the

failures or omissions described by MDNR in the Performance Failure Notice, together with an

estimated schedule for the commencement and substantial completion of the mitigation measures

proposed by TRANSFEREE (collectively, the “Mitigation Plan”). In the absence of Exigent

Circumstances, if the TRANSFEREE makes a demonstration that more than sixty (60) days are

reasonably necessary in order to submit a complete written response and Mitigation Plan, and

provided TRANSFEREE is proceeding with good faith diligence, MDNR shall provide a

reasonable extension of the deadline for submitting a written response and Mitigation Plan.

105. After receipt and review by MDNR of the Mitigation Plan required above,

MDNR will discuss the Mitigation Plan with TRANSFEREE. MDNR may request clarifications,

provide review comments, approve, disapprove, approve with modifications, or require revisions

to the Mitigation Plan submitted by TRANSFEREE. If MDNR disapproves, approves with

modifications, or requires revision to the Mitigation Plan, it shall send a written notice to

TRANSFEREE to that effect (the “Response to Mitigation Plan”). MDNR will discuss with

TRANSFEREE MDNR’s disapproval, approval with modifications, or revisions. If MDNR’s

Response to Mitigation Plan approves with modifications or requires revisions to the Mitigation

Plan, TRANSFEREE shall make such modifications or revisions within thirty (30) days of

receipt of MDNR’s Response to Mitigation Plan.

106. If MDNR approves, approves with modifications or requires revisions to a

Mitigation Plan, then TRANSFEREE shall proceed to develop and submit any necessary work

plans in accordance with ARTICLE VIII of this AOC; and TRANSFEREE shall proceed in

good faith to commence, diligently implement and complete the approved Mitigation Plan and

any associated work plans.

107. If TRANSFEREE does not timely submit a Mitigation Plan in accordance with

Paragraph 104 above; or if TRANSFEREE does not implement and complete the Mitigation

Plan; then MDNR may issue a written notice to TRANSFEREE requiring that it promptly

comply with Paragraph 104 or Paragraph 106, as applicable (the “Cure Notice”). If

TRANSFEREE does not comply with the Cure Notice within thirty (30) days after receiving the

same, the MDNR may declare TRANSFEREE in Default under this AOC.

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108. It shall also be a Default under this AOC if the MHWMF Permit is revoked under

10 CSR 25-8.124, or terminated under 10 CSR 25-7.270(1) [incorporating 40 CFR 270 subpart

D].

109. It shall also be a Default under this AOC if the TRANSFEREE fails to comply

with the Financial Assurance requirements of ARTICLE VII of this AOC, and such non-

compliance is not cured within ninety (90) days after written notice of noncompliance from

MDNR to TRANSFEREE (with a copy to the other Parties).

110. Within thirty (30) days of MDNR declaring TRANSFEREE in Default under this

AOC, TRANSFEREE shall cease performance of the WORK and the NNSA shall resume all

activities at the PROPERTY TO BE TRANSFERRED by carrying out any remaining WORK

obligations that have not been completed by TRANSFEREE and pursuant to CERCLA Section

120, 42 U.S.C. § 9620,.

111. In the event that NNSA resumes performance of WORK at the PROPERTY TO

BE TRANSFERRED, TRANSFEREE shall fully cooperate in the orderly transfer of

responsibilities for performance of the WORK to the NNSA.

ARTICLE XXIV. DISPUTE RESOLUTION

112. The Parties to this AOC shall attempt to resolve, expeditiously and informally,

any disagreements concerning this AOC. Disagreements concerning work under the MHWMF

Permit shall be addressed as set forth in the permit and applicable regulations.

113. If TRANSFEREE or NNSA object to any MDNR action taken pursuant to this

AOC, including billings for Oversight Costs, the objecting Party shall notify MDNR in writing

of its objections within fourteen (14) days of such action, unless the objections have been

informally resolved. The Parties to the dispute shall have thirty (30) calendar days from

MDNR’s receipt of the objecting Party’s notification to attempt to resolve the dispute through

informal negotiations. In the written notice, the objecting Party shall set forth the specific points

of the dispute, the position it is maintaining should be adopted as consistent with the

requirements of this AOC and the MHWMF Permit, the factual and legal basis for its position,

and all matters it considers necessary for MDNR’s determination of the dispute. With respect to

matters governed by the MHWMF Permit, if there is any inconsistency between this AOC and

the MHWMF Permit, the latter shall control.

114. If the Parties to the dispute are unable to resolve the dispute within this 30-day

informal negotiation period, the Parties to the dispute shall have thirty (30) days from the end of

the informal negotiation period to attempt in good faith to resolve the dispute through formal

negotiations (“Negotiation Period”). The Negotiation Period may be extended at the sole

discretion of MDNR. MDNR’s decision regarding an extension of the Negotiation Period shall

not constitute an MDNR action subject to dispute resolution or a final agency action giving rise

to judicial review.

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115. Any agreement resolving a dispute reached by the Parties to the dispute pursuant

to this article shall be in writing, signed by the Parties to the dispute, and shall, upon the

signature of such Parties, be incorporated into and become an enforceable part of this AOC. If

the Parties to the dispute are unable to reach an agreement within the Negotiation Period, the

Director will issue a written decision on the dispute. Subject to the right of judicial review of the

Hazardous Waste Commission or MDNR’s decision, as set forth in § 260.415 RSMo., the

Director’s decision shall be incorporated into and become an enforceable element of this AOC

upon receipt by the Parties to the dispute of the written decision.

116. The existence of a dispute and the dispute resolution process conducted hereunder

shall not toll, excuse, or suspend any obligations of the Parties under this AOC except those

directly affected by the matters in dispute unless mutually agreed upon or unless excused, tolled,

or suspended by the Director taking into account the objecting Parties’ good faith invocation of

the Dispute Resolution procedure.

117. Following resolution of the dispute as provided by this article, the Parties shall

fulfill the requirement that was the subject of the dispute in accordance with the agreement

reached or with the judicial or administrative decision, whichever constitutes the final resolution

of the dispute.

ARTICLE XXV. OTHER CLAIMS

118. By issuance of this AOC, the STATE assumes no liability for injuries or damages

to persons or property resulting from any acts or omissions of TRANSFEREE or NNSA. The

STATE and MDNR shall not be deemed a party to any contract entered into by TRANSFEREE

or NNSA or its directors, officers, employees, agents, successors, representatives, assigns,

contractors, or consultants in carrying out actions pursuant to this AOC.

119. Except as expressly provided in this AOC, nothing in this AOC constitutes a

satisfaction of or release from any claim or cause of action against TRANSFEREE or NNSA or

any person not a party to this AOC for any liability such person may have under CERCLA, other

statutes, or the common law, including but not limited to any claims of the STATE for costs,

damages and interest under Sections 106(a) and 107(a) of CERCLA, 41 U.S.C. §§ 9606(a) and

9607(a).

120. Nothing in this AOC shall be construed to create any rights in, or grant any cause

of action to, any person not a Party to this AOC. The MDNR, TRANSFEREE and NNSA each

reserve any and all rights (including, but not limited to, any right to contribution), defenses,

claims, demands, and causes of action which each Party may have with respect to any matter,

transaction, or occurrence relating in any way to the PROPERTY TO BE TRANSFERRED

against any person not a Party hereto.

ARTICLE XXVI. SEVERABILITY

121. If a court issues an order that invalidates any provision of this AOC or finds that

TRANSFEREE or NNSA has sufficient cause not to comply with one or more provisions of this

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AOC, TRANSFEREE and NNSA shall remain bound to comply with all provisions of this AOC

not invalidated or otherwise affected by the court’s order.

ARTICLE XXVII. NOTICES

122. All documents, including reports, approvals, or disapprovals required hereunder,

shall be directed to the following individuals or to such other individuals as NNSA,

TRANSFEREE or MDNR may designate in writing. Such documents shall be sent by certified

mail, return receipt requested, to:

MDNR:

Chief, Permits Section

Hazardous Waste Program

Missouri Department of Natural Resources

P.O. Box 176

Jefferson City, MO 65102

TRANSFEREE:

Bannister Transformation & Development LLC

Attn: Kevin P. Breslin

With a copy to:

CenterPoint Properties Trust

Attn: James S. Cross

1301 Burlington Street

Suite 200

North Kansas City, Missouri 64116

NNSA:

ARTICLE XXIII. EFFECTIVE DATE

123. This AOC may be executed in any number of counterparts, each of which when

executed and delivered to MDNR shall be deemed to be an original, but such counterparts shall

together constitute one and the same document.

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124. This AOC shall be effective five days after NNSA and TRANSFEREE receive a

fully executed copy of this AOC signed by _________ on behalf of the STATE and by the

MDNR Director (the date so determined being herein called the “Effective Date”).

125. The undersigned representatives of TRANSFEREE, NNSA, the STATE and

MDNR certify that they are fully authorized to enter into the terms and conditions of this AOC

and to bind their respective Parties to this document.

ARTICLE XXIX. MODIFICATION AND AMENDMENT

126. This AOC may be amended only by agreement of all of the Parties. Any such

amendment shall be in writing and shall be effective when all of the Parties have received a copy

of the fully executed amendment.

127. MDNR is authorized to extend in writing any date, deadline, or schedule

contained in this AOC or any MDNR approved work plan or report. No amendment of this AOC

is required for such extension of time.

128. In addition to the provisions of ARTICLE VIII and the authority of MDNR with

respect to the MHWMF Permit, MDNR is authorized to administer this AOC on behalf of the

STATE, and in that capacity, to review and approve routine adjustments to the Demolition Plan

and the Site Civil Plans, and to approve adjustments to the Schedule of Activities under

Paragraph 40, so long as the scope of the WORK and its implementation are materially in

accordance with this AOC.

ARTICLE XXX. TERMINATION

129. This AOC shall terminate when MDNR issues its Final Certification of

Completion, provided, however, that the following provisions shall also survive termination of

this AOC: ARTICLE XVI (Covenant Not to Sue), ARTICLE XVII (Reservation of Rights),

ARTICLE XVIII (Contribution Protection), and ARTICLE XIX (Record Retention).

CONTINUED ON NEXT PAGE

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ARTICLE XXXII. SIGNATURES

SO ORDERED:

STATE OF MISSOURI

Date

DEPARTMENT OF NATURAL RESOURCES

Date Carol S. Comer, Director

Missouri Department of Natural Resources

BANNISTER TRANSFORMATION & DEVELOPMENT, LLC:

Date Name:

Title:

NATIONAL NUCLEAR SECURITY ADMINISTRATION

Date Name:

Title:

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LIST OF ATTACHMENTS

Attachment 1: BFC Property Description

Attachment 2: Schedule of Activities

Attachment 3: D&R-Phase Approved Cost Estimate

Attachment 4: LTOM&M and Post Closure Care Cost Estimates

Attachment 5: Forms of Payment & Performance Bonds

Attachment 6: Pollution Legal Liability Insurance Coverage Binder

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Attachment 1

*

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Attachment 2

*

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Attachment 3

Note: As stated in the proposed contingent modifications to the MHWMF Permit: “This

estimate includes $11,700,000 for vapor intrusion protection that may need to be installed in any

new buildings constructed on the transferred property following demolition of current buildings,

implementation of the proposed remedy and regrading of the property. As such, the estimated

cost for vapor intrusion protection is only a tentative cost that will not initially be placed in the

Bannister Remedial Fund discussed below.”

Note: The above table also includes the LTOM&M cost estimates for Years 1-30.

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Attachment 4

See attachment 3 above, which includes a table containing the LTOM&M cost estimates for

Years 1-30.

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Attachment 5

*

*

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Attachment 6

*

*