Exhibit 10.2


 


CONFIDENTIAL
SETTLEMENT AGREEMENT AND MUTUAL RELEASE


 


I.                                         Parties


 


The Parties to this Settlement Agreement and Mutual Release (“Agreement”)
are:


 


A.                                   Atlantic Richfield Company (“AR”), a corporation
incorporated in Delaware and having its principal place of business in
Illinois, and


 


B.                                     NorthWestern Corporation (“NOR”), a corporation
incorporated in Delaware and having its principal place of business in South
Dakota.


 


C.                                     Clark Fork and Blackfoot, LLC (the “LLC”), a
Delaware limited liability company having its principal place of business in
Montana.


 


II.                                     Effective Date


 


This Agreement is effective on September 10, 2003.


 


III.                                 Recitals


 


WHEREAS, NOR, or its wholly owned subsidiary, the LLC, has owned and
operated since February 15, 2002, a Federal Energy Regulatory Commission (“FERC”)
licensed hydroelectric dam at the confluence of the Clark Fork River and
Blackfoot River at Milltown, Montana, known both as the Milltown Dam and the
Milltown Project.


 


WHEREAS, in the period after the construction of the Milltown Dam,
which occurred between 1906 and 1908, several million cubic yards of sediments
from upstream sources, including without limitation mining and milling
operations, settled in the Milltown Reservoir, located behind the Milltown Dam.


 


WHEREAS, AR has been identified as a potentially responsible party (“PRP”)
by the United States Environmental Protection Agency (“EPA”) and the State of
Montana Department of Environmental Quality (“DEQ”) for the alleged release of
wastes containing hazardous substances from upstream mining and mineral
processing


 





















 


operations near Butte and Anaconda, Montana, which are alleged to have
contaminated on a continuing basis, the Clark Fork River and the Milltown
Reservoir and associated alluvial groundwater with hazardous substances
including arsenic, cadmium, copper, lead and zinc.


 


WHEREAS, AR has denied it is liable for such alleged releases.


 


WHEREAS, the Milltown Reservoir and the Clark Fork River upstream of
the Milltown Reservoir were listed as a National Priorities List Site (the “Milltown
Site”) by publication in the Federal Register on September 8, 1983, at 48
Fed. Reg. 40658.  The Milltown Reservoir
Sediments Operable Unit and the Water Supply Operable Unit are separate,
operable units of the Milltown Site.


 


WHEREAS, since 1983, AR, at the direction of the EPA and DEQ, has
extensively studied the sediments, groundwater and surface water at and in the
vicinity of the Milltown Reservoir as part of a remedial investigation and
feasibility study that was issued in final form in November, 2002.  EPA issued the Proposed Plan for remediation
of the Milltown Reservoir Sediments Operable Unit on April 14, 2003, and
the proposed remedy requires, in part, removal of approximately 2.6 million
cubic yards of sediments from the Milltown Reservoir, removal of the spillway
and radial gate section of the Milltown Dam, and subsequent periodic
monitoring and review of remedy effectiveness. 
It is expected that EPA will issue a Record of Decision for the Milltown
Site during the first half of 2004.


 


WHEREAS, in the course of a repair project during 1988 and 1989 carried
out in compliance with the FERC Milltown Project license, Montana Power Company
removed contaminated sediments from the Milltown Reservoir and placed those
sediments in the Upland Disposal Area constructed by the Montana Power Company
for that purpose.


 


WHEREAS, AR and EPA have alleged that as a result of those activities,
NOR is a PRP with respect to the Milltown Site.


 


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WHEREAS, AR has also alleged that NOR is liable as an owner and
operator of the Milltown Project and that, in particular, NOR’s periodic
drawdowns of the Milltown Reservoir to perform maintenance activities resulted
in the exacerbation of the Reservoir’s contamination and the release of
hazardous substances downstream of the Milltown Dam. NOR denies all such
allegations and asserts that it has performed all dam maintenance activities in
accordance with its FERC license and that section 118(G) of the
Superfund Amendments and Reauthorization Act provides it with an exemption from
CERCLA liability for releases related to the ownership and operation of the
Milltown Project, including liability based on such maintenance activities, and
that a similar provision of CECRA provides an exemption from liability for such
releases under that statute.


 


WHEREAS, both AR and NOR have asserted that the other Party is a party
liable for the costs of remediating the Milltown Site and for any other costs
or damages resulting from the presence of mine wastes in the Clark Fork River
or Milltown Reservoir and each has denied such liability.


 


WHEREAS, on April 12, 2002, FERC extended the term of NOR’s
license through December 31, 2007 (FERC Docket No. P-2543-053),
and NOR intends to continue operating the Milltown Project pursuant to the
terms and conditions of the existing license unless and until cessation is
required by the Milltown Site RD/RA and NOR surrenders that license.  On January 27, 2003, NOR requested that
FERC extend the termination date of its license from December 31, 2007, to
December 31, 2008.  This application
is currently pending (FERC Docket No. P-2543-059).


 


WHEREAS, AR and NOR believe that both EPA, in administering the CERCLA
remediation process, and FERC, in considering the fate of the Milltown Project
through the licensing process, should adopt a coordinated approach in
implementing the proposed partial removal of sediments from the Milltown
Reservoir, removal of the Milltown Dam spillway and radial gate, reclamation of
the reservoir lands and river channel areas, decommissioning of the Milltown
Project, and surrender of NOR’s license for the Milltown Project.


 


3





















 


 


WHEREAS, at the time this Agreement is signed, AR and NOR are
negotiating the Milltown Consent Decree with the United States, the State and
The Confederated Salish and Kootenai Tribes of the Flathead Nation (“Tribes”)
to resolve issues related to AR’s and NOR’s alleged liability for the Milltown
Site, including claims for damages against NOR asserted by the State and the
Tribe, and to provide for coordination of implementation of the ROD at such
Site with FERC’s regulation of the Milltown Project and the State’s
implementation of its Draft Conceptual Plan for Restoration of the Clark Fork
River and Blackfoot River Near Milltown Dam (“Conceptual Restoration Plan”).


 


WHEREAS, AR and NOR wish to enter into this Agreement in order to
resolve their disagreements, including any claims for contribution, satisfy, in
full, NOR’s contribution to Milltown Site past and future RD/RA costs, and
establish norms for cooperation between themselves and with other parties
regarding the future of the Milltown Project, insurance coverage for Milltown
Site RD/RA and other related matters.


 


IV.                                Definitions


 


A.                                   “AIG” means American International Group, Inc.,
American International Specialty Lines Insurance Co. (“AISLIC”), and any parent
companies, subsidiaries, affiliates, predecessors, successors, transferees, or
assigns of American International Group, Inc.


 


B.                                     “Agreement” means this Confidential Settlement Agreement and Mutual Release
and all appendices attached hereto.


 


C.                                     “AR” means the Atlantic Richfield Company and any
affiliates, parent companies, predecessors, successors, transferees, assigns or
shareholders of Atlantic Richfield Company.


 


D.                                    “CECRA” means the Montana Comprehensive
Environmental Cleanup and Responsibility Act, as amended, MCA §§ 75-10-701
et seq.


 


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E.                                      “CERCLA” means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675.


 


F.                                      “Clean-Up” shall have the same meaning as “Clean-Up”
is defined by the Milltown Policy, attached hereto as Attachment B to this
Agreement.


 


G.                                     “Conceptual Restoration Plan” means the Conceptual
Restoration Plan for Restoration of the Clark Fork River and Blackfoot River
Near Milltown Dam transmitted to NOR by the State of Montana on February 28,
2003.


 


H.                                    “Day” means a calendar day unless expressly stated
to be a working day.  In computing any
period of time under this Agreement, where the last day would fall on a
Saturday, Sunday, or State or Federal holiday, the period shall run until the
close of business of the next working day.


 


I.                                         “DEQ” means the Montana Department of Environmental
Quality and any predecessor or successor departments or agencies of the State
of Montana.


 


J.                                        “Downstream Response Costs” means costs associated
with any action related to environmental contamination or alleged environmental
contamination of the Clark Fork River, or other associated areas, located
downstream of the Milltown Site, including but not limited to, cleanup and
other costs of response, actual or punitive civil damages or criminal
penalties, and costs related to any other form of relief awarded by any
competent authority with jurisdiction over the Parties and such matters,
including injunctive relief.


 


K.                                    “Envirocon” means Envirocon, Inc., and any
predecessors, successors, transferees, or assigns.


 


L.                                      “EPA” means the United States Environmental
Protection Agency and any successor departments or agencies of the United
States.


 


5





















 


M.                                 “FERC” means the Federal Energy Regulatory
Commission and any predecessor or successor commissions, agencies or
departments of the United States.


 


N.                                    “Milltown Additional Response Costs” means costs
associated with the Milltown Site RD/RA pursuant to any “round-robin” cost
sharing provisions of the Milltown CD or costs not within the coverage of any
cost cap insurance policy purchased by AR for the Milltown Site.  “Milltown Additional Response Costs” does not
include, among other things, costs incurred as a result of any violation by NOR
of any terms, conditions or requirements contained in the Milltown CD, nor does
the term include any costs for which there is not coverage under the residual
liability provisions of an insurance-based settlement where coverage for such
liability is not available and the lack of availability is due primarily to NOR’s
conduct.


 


O.                                    “Milltown CD Effective Date” means 60 days from the
date that the District Court for the District of Montana enters the Milltown
Consent Decree, unless an appeal of the entry and judgment is filed during the
60-day period; if an appeal is taken, the “Milltown CD Effective Date”
means the date on which the District Court’s judgment is affirmed, with no
right of further appeal.


 


P.                                      “Milltown Consent Decree” and “Milltown CD” means a
consent decree concerning the Milltown Site RD/RA and related issues, including
claims against NOR for natural resource damages (“NRD”), entered in the matter
of the United States v. Atlantic Richfield
Co., Civil Action No. CV-89-039-BU-SEH (D.
Mont.), among the United States, the State, the Tribes, AR, and NOR.


 


Q.                                    “Milltown Future Response Costs” means all costs,
other than Milltown Project Costs, paid or incurred by AR, NOR, EPA and DEQ on
or after August 1, 2002, related to Milltown Site response actions prior
to issuance


 


6





















 


of the Milltown ROD, all response costs
incurred at or in connection with the Milltown Site by EPA and DEQ before the
Milltown CD Effective Date but paid after such Effective Date, and all costs
incurred in the performance of Milltown Site RD/RA, including wetland
mitigation required by the Milltown ROD.


 


R.                                     “Milltown Site” means the Water Supply Operable Unit
and the Milltown Reservoir Sediments Operable Unit of the Milltown
Reservoir/Clark Fork River National Priorities List Site, and any other
geographic area where Milltown Site RD/RA is required.


 


S.                                      “Milltown Past Response Costs” means all costs
incurred by AR, NOR, EPA and DEQ before August 1, 2002, to conduct
response actions at the Milltown Site.


 


T.                                     “Milltown Policy” means the insurance policy issued
by AIG related to the Milltown Site, attached hereto as Attachment B to this
Agreement.


 


U.                                    “Milltown Project” and “Project” means the
hydroelectric generating dam and associated facilities and appurtenant real and
personal property licensed by FERC under license No. 2543 located at the
confluence of the Clark Fork River and the Blackfoot River near Milltown,
Montana.


 


V.                                     “Milltown Project Costs” means all costs, including
any costs of financial assurance, associated with any activity required by
federal, state or local law relating to administration, operation and
maintenance of the Milltown Project, and appurtenant real and personal property
presently owned and operated by NOR, except activities listed on Attachment A
hereto.


 


W.                                “Milltown Record of Decision” and “Milltown ROD” means the record of
decision to be issued by EPA, in which the final remedial action for the
Milltown Site will be set forth, and all attachments, explanations of
significant differences, and amendments thereto.


 


7





















 


X.                                    “Milltown Site RD/RA” means the remedial design and
remedial action required by the Milltown ROD and implementing documents and any
government mandated revision of the Milltown ROD.


 


Y.                                     “NOR” means NorthWestern Corporation, Clark Fork and
Blackfoot, LLC, and any affiliates, parent companies, predecessors, successors,
transferees, assigns or shareholders of Northwestern Corporation.


 


Z.                                     “Party” means either AR or NOR.  “Parties” means AR and NOR.


 


AA.                         “Remedial Plan” shall have the same meaning as “Remedial Plan” as defined
by the Milltown Policy, attached hereto as Attachment C to this Agreement.


 


BB.                             “State” means the State of Montana, including all of its departments, agencies
and instrumentalities.


 


CC.                             “Tribes” means The Confederated Salish and Kootenai Tribes of the      Flathead Nation.


 


DD.                           “Upland
Disposal Area” and “UDA” means that disposal facility, located approximately
one-half mile upstream from the Milltown Dam, which was constructed by Montana
Power Company and contains excavated sediments and debris from the Milltown
Reservoir.


 


V.                                    Circumstances in Which Agreement is Void or Voidable


 


A.                                   If either Party to this Agreement after good faith
negotiation does not sign the Milltown CD, or any signatory to the Milltown CD
exercises, pursuant to the CD’s terms, a right to void that CD, this Agreement
will be voidable by either AR or NOR.


 


VI.                                Commitments by AR and NOR


 


A.                                   NOR’s Contribution to Milltown Response Costs 


 


1.                                       Subject to the terms, conditions and reservations
set forth in this Agreement, NOR agrees to pay at least $7.5 million, but no
more


 


8





















 


than $10
million to AR as its contribution for Milltown Past Response Costs and Milltown
Future Response Costs, the amount paid to ARCO above $7.5 million to be the
residual of the $2.5 million remaining after NOR’s payments to resolve its
obligations to the State and Tribe in this matter, including the integration of
the remedy selected by EPA for the Site and the implementation of the
Conceptual Restoration Plan whether imposed in connection with that ROD or
through the FERC decommissioning process. 
Beginning January 15, 2004, NOR shall pay $500,000 to an escrow
account, and shall make additional deposits of $500,000 the 12th business day
of each month thereafter until the entire sum due has been paid.  The parties acknowledge that such payment is
intended to be NOR’s total contribution to the estimated, as yet unknown, actual
costs of remedial design and remedial action for the Milltown Site, including
but not limited to removal of the spillway and radial gate section of
Milltown Dam and wetland mitigation required by the Milltown ROD.


 


2.                                       In the event this Agreement is voided by either
Party,  payments made by NOR to the
escrow account with accrued interest less any reasonable administrative costs
incurred for management of the escrow account shall be returned by the escrow
agent to NOR by wire transfer not later than thirty (30) days following receipt
of a notice of voiding of this Agreement.


 


3.                                       The entire balance of the escrow account shall be
paid to AR within ten (10) working days following the Milltown CD
Effective Date.  In the event the
Milltown CD Effective Date occurs prior to the escrow’s receipt of the entire
payment due under Paragraph VI.A.1 above, the unpaid balance shall be
accelerated and paid to the escrow such that the unpaid balance is received by
AR within ten (10) working days following the Milltown CD Effective Date
and


 


9





















 


the amount
received in escrow shall be released to AR. 
In the event such accelerated payment is not timely made to the escrow
by NOR as provided by this Paragraph VI.A.3 or NOR defaults and fails to make
any payment required by this Paragraph VI.A, the balance of the remainder due
to AR shall accrue interest at a rate equal to 5 percentage points above
the prime rate in effect on the Milltown CD Effective Date or the default date,
said interest to be compounded monthly until the entire sum due under Paragraph
VI.A.1 is paid by NOR.


 


B.                                     Payment of Milltown Past Response Costs, Milltown
Future Response Costs, Milltown Additional Response Costs and UDA Costs


 


1.                                       AR agrees to pay all Milltown Future Response Costs,
Milltown and UDA Past Response Costs, and Milltown Additional Response Costs,
if any, required by the Milltown CD.


 


C.                                     Payment of Project Costs 


 


1.                                       NOR agrees to pay all Milltown Project Costs.  AR and NOR agree jointly to make all
reasonable good faith efforts to convince the United States to include a
provision in the Milltown CD providing that any Milltown Project Costs incurred
by NOR after December 31, 2010, shall be reimbursed from the Hazardous
Substances Superfund without recourse for recovery of such costs from AR.


 


2.                                       NOR
acknowledges that Project Costs that it will pay pursuant to this Agreement are
reasonable and necessary costs to be incurred by it in resolution of its
alleged liability as a PRP with respect to the Milltown Site and as an owner
and operator of the Milltown Project.


 


10





















 


D.                                    Cooperation


 


1.                                       AR and NOR agree to cooperate in preparation of a
draft Milltown CD for submittal to the United States.  The AR/NOR draft Milltown CD will include
provisions intended to create strong incentives for completion of spillway and
radial gate removal as part of the Milltown Site RD/RA before the filing
deadline for submittal of an application to re-license the Milltown Project under
the current FERC-approved schedule.  As
of the date of this Agreement, the current FERC-approved schedule requires
an application for relicensing to be filed on January 1, 2011.


 


2.                                       NOR agrees to use commercially reasonable efforts to
cooperate with AR and Envirocon on Milltown Site RD/RA, including, without
limitation:


 


a.                                       by providing access to the Milltown Project and
appurtenant real and personal property owned or controlled by NOR to AR, AIG,
Envirocon and its subcontractors, the United States and the State and placing
use restrictions on said property, as required by the Milltown CD and the
Milltown ROD;


 


b.                                      by facilitating Milltown RD/RA through alteration,
suspension or termination of Milltown Project operations as required by the
Record of Decision, the Statement of Work for Milltown Site RD/RA, the
Biological Assessment or other requirements of EPA, and as approved or required
by  FERC ;


 


c.                                       by granting to AR and its designees access across
the easement granted in favor of The Montana Power Company (Book 131 of Deeds
at Page 625, Missoula County), for the purpose of removing soil and rock
as necessary for Milltown Site RD/RA from the easement property and adjacent
lands.  NOR waives any claim to
compensation for its grant of access across said easement and the removal of
borrow materials therefrom.  In the event
NOR holds a fee simple interest in lands from which borrow materials are
required for Milltown RD/RA, NOR shall be entitled to compensation


 


11





















 


at the prevailing market rate for borrow
materials from said lands, and


 


d.                                      by participating in community relations activities
as required by the Milltown CD and the Milltown ROD and implementing documents.


 


3.                                       NOR agrees to use commercially reasonable efforts to
name AR as an additional insured under its catastrophic release policy issued
by AIG.  In the event removal of the
Milltown Dam does not occur before the expiration of the term of the current
insurance policy providing such coverage, and NOR is required pursuant to the
Milltown CD to renew the policy or provide similar coverage from a different
insurer, NOR will use commercially reasonable efforts to name AR as an
additional insured party for such insurance.


 


4.                                       Given the likelihood that the radial gate and
spillway of the Milltown Dam will be removed pursuant
to the Milltown Site RD/RA, AR agrees to cooperate with and support NOR in NOR’s
efforts to obtain FERC approval to delay capital improvements and dam upgrades
for the Milltown Project, for so long as the United States and the State
support a dam removal remedy.


 


5.                                       AR agrees that all costs for the Milltown Site
Policy, including increased costs of the Remedial Plan covered under
Endorsement No. 3, are to be borne by AR and that it shall direct AIG to
name NOR as an additional Insured under its Milltown Site Policy issued by AIG.


 


6.                                       AR and NOR agree to cooperate by participating in
the initiation and/or defense of, or participation in any appropriate
administrative or judicial proceedings in which they are named as plaintiffs,
defendants, third parties or otherwise are necessary parties regarding the
subject matter of this Agreement.  AR and
NOR each will bear its own costs of participating in such proceedings.


 


12





















 


E.                                      Releases and Reservations of Rights


 


1.                                       AR releases all of its claims against NOR, including
claims for contribution, for all costs, loss or damages whatsoever, including
Milltown Past Response Costs, Milltown Future Response Costs, Milltown
Additional Response Costs, and Milltown Project Costs, relating to the Milltown
Site RD/RA and the Milltown Site and past and future Upland Disposal Area
Costs, but not including Downstream Response Costs; provided, however, that if
NOR breaches any material term of this Agreement (including, specifically,
Sections VI A and VI C hereof), such release shall be null and void.


 


2.                                       AR reserves, and this Agreement is without prejudice
to, the right to institute proceedings against NOR for Downstream Response
Costs and any other costs, loss or damages relating to areas downstream or
downgradient from the boundary of the Milltown Site as that term is defined in
the Milltown CD.


 


3.                                       NOR releases all claims against AR, including claims
for contribution, for all costs, loss or damages whatsoever, including Milltown
Past Response Costs, past and future Upland Disposal Area Costs, Milltown
Future Response Costs, Milltown Additional Response Costs, and Milltown Project
Costs, relating to the Milltown Site RD/RA and the Milltown Site, but not
including Downstream Response Costs; provided, however, that if AR breaches any
material term of this Agreement, such release shall be null and void.


 


4.                                       NOR reserves and this Agreement is without prejudice
to, the right to institute proceedings against AR for Downstream Response Costs
and any other costs, loss or damages relating to areas


 


13





















 


downstream
or downgradient from the boundary of the Milltown Site as that term is defined
in the Milltown CD.


 


F.                                      Effect of Bankruptcy of AR or NOR


 


NOR and AR acknowledge that they have each exercised reasonable
business judgment in entering into this Agreement.  They further agree that should either of them
file a petition for bankruptcy under Title 11 of the U.S. Code, each will use
best efforts to assume or have assumed the terms of this Agreement in its
entirety pursuant to 11 U.S.C. § 365.


 


G.                                     Dispute Resolution


 


1.                                       AR and NOR agree that if any disputes arise between
them concerning matters covered by this Agreement, then those disputes shall:


 


a.                                       First, be subject to informal dispute resolution
between the Parties’ designated project managers for a period of 7 days from
the date on which one Party notifies the other Party in writing of the dispute;


 


b.                                      Second, be subject to informal dispute resolution
between the Parties’ designated senior managers for a period of 7 days
following the expiration of the period set forth in paragraph G(1)(a) above;


 


c.                                       Third, be subject to mediation by a mediator
acceptable to AR and NOR during the course of a 30-day dispute resolution
period immediately following the period of dispute resolution set forth in
paragraph G(1)(b) above.  AR and NOR
shall share equally the costs of mediation.


 


2.                                       The Parties may by mutual written agreement extend
any of the periods of dispute resolution provided for in paragraph G(1).  If a dispute concerning a matter covered by
this Agreement is not resolved through


 


14





















 


such mechanisms,
then either Party may file an action seeking adjudication of such matter
consistent with the terms of this Agreement in a court located in the State of
Montana having jurisdiction of the Parties and such matters.


 


H.                                    Confidentiality


 


1.                                       The Parties agree to hold in confidence, and not to
disclose this Agreement to third parties. 
The Agreement may only be disclosed by a party with the prior written
consent of the other party, which consent shall not be unreasonably withheld;
provided however, nothing herein precludes either party from disclosure of this
Agreement to the extent such disclosure is compelled by applicable laws, rules or
regulation of any federal or state agency or agencies.


 


VII.                            Notices and Submissions


 


Whenever under the terms of this Agreement, written notice is required
to be given, or a document is required to be sent, by one Party to another
Party, it shall be directed to the individual at the addresses specified below,
unless those individuals or their successors give notice of a change to the
other Party in writing.  All notices and
submissions shall be considered effective upon receipt.  Written notice specified in this Section VII
shall constitute complete satisfaction of any written notice requirements of
this Agreement.


 


	
  As to AR:

  	
   

  	
  Stephen A. Elbert

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  	
  GEM

  
	
   

  	
   

  	
  801 Warrenville Road

  
	
   

  	
   

  	
  Mail Code 80

  
	
   

  	
   

  	
  Lisle, IL 60532

  



 


15





















 


	
   

  	
   

  	
  Robin J. Bullock

  
	
   

  	
   

  	
  Portfolio
  Manager, OBC

  
	
   

  	
   

  	
  Atlantic
  Richfield Company

  
	
   

  	
   

  	
  317 Anaconda
  Rd.

  
	
   

  	
   

  	
  Butte, MT 59701

  
	
   

  	
   

  	
  Tel: 406-782-9964
  x414

  
	
   

  	
   

  	
  Fax: 406-782-9980

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  David L. Bell

  
	
   

  	
   

  	
  Senior Legal
  Counsel

  
	
   

  	
   

  	
  Atlantic
  Richfield Company

  
	
   

  	
   

  	
  4101 Winfield
  Road

  
	
   

  	
   

  	
  Mail Code 4
  West

  
	
   

  	
   

  	
  Warrenville, IL
  60555

  
	
   

  	
   

  	
  Tel: 630-434-6164

  
	
   

  	
   

  	
  Fax: 630-821-3406

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  As to NOR:

  	
   

  	
  Michael J. Hanson

  
	
   

  	
   

  	
  President and CEO

  
	
   

  	
   

  	
  125 S. Dakota Avenue

  
	
   

  	
   

  	
  Sioux Falls, SD 57104-6403

  
	
   

  	
   

  	
  Tel: 605-978-2903

  
	
  Fax: 605-978-2963

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lee Graves

  
	
   

  	
   

  	
  Principal Attorney

  
	
   

  	
   

  	
  619 W. Water Street, Suite 3C

  
	
   

  	
   

  	
  Peoria, IL 60602

  
	
   

  	
   

  	
  Tel: 309-673-8422

  
	
   

  	
   

  	
  Fax: 309-673-8432

  



 


VIII.                        Miscellaneous


 


A.                                   AR and NOR each acknowledge that they have read and
understand this Agreement and that they have been represented in the
negotiation of this Agreement by counsel of their own choosing.


 


B.                                     This Agreement represents and expresses the entire
agreement of the Parties and may be modified only by written instrument signed
on behalf


 


16





















 


of the Parties.  No promises or inducements have been offered
or made except as set forth in this Agreement.


 


C.                                     No waiver by either Party of any of the provisions
of this Agreement constitute a continuing waiver or prevent such Party from
enforcing all provisions of this Agreement.


 


D.                                    If any part, term or provision of this Agreement,
other than a provision upon which this Agreement is expressly made contingent
or voidable, is held by a court to be illegal or unenforceable, the validity of
the remaining provisions of this Agreement shall not be affected and the rights
and obligations of the Parties shall be construed as if this Agreement did not
contain the part, term or provision held to be invalid.  If any provision on which this Agreement is
made contingent, void or voidable is held to be illegal or unenforceable, then
this entire Agreement shall be voidable at the election of either Party.


 


E.                                      This Agreement shall be governed by the laws of
Montana.


 


F.                                      This Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument. 
A fax copy shall be accepted by each party as binding the other to all
rights and obligations arising under this Agreement.


 


G.                                     The execution, delivery and performance of this
Agreement by NOR and AR has been duly authorized by all necessary corporate
action, and by their signature below constitutes a legal, valid and binding
obligation of NOR and AR, enforceable in accordance with its terms.


 


17





















 


	
   

  	
   

  	
  For: Atlantic Richfield Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September           ,
  2003

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Joan L. Wales

  
	
   

  	
   

  	
   

  	
  Executive Vice President and Chief

  
	
   

  	
   

  	
   

  	
  Operating Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  For: NorthWestern Corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September           ,
  2003

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Michael J. Hanson

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  For: Clark Fork and Blackfoot,
  L.L.C.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September           ,
  2003

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Michael J. Young

  
	
   

  	
   

  	
   

  	
  Assistant Secretary

  



 





















 


 


Attachment A


 


Work Activities Which are Not Milltown
Project Costs


 


Design and Removal
of Milltown Dam Spillway and Radial Gate as required by the USEPA Remedial Plan
including:


 


•                  Engineering design.


 


•                  All activities, studies, and designs associated with
dam removal as required by the USEPA Remedial Plan.


•                  Conversion of powerhouse inlets to low-level
outlets.


•                  Over excavation of radial gate, and installation of
diversion culverts, as necessary.


•                  Trash Boom Removal.


•                  Installation and removal of cofferdams upstream of
the spillway and radial gate.


•                  Removal and onsite disposal of panel gate spillway,
spillway bridge, radial gate and radial gate bay.


•                  Spillway removal to existing downstream channel
grade, including channel excavation and/or backfilling where necessary.


•                  Powerhouse, Powerhouse Forebay and Right abutment
embankment stabilization.


•                  Closure of powerhouse inlets.


•                  Providing site security and restricting public
access on the Milltown Site RD/RA work areas located within the NOR property
during all aspects of dam removal activities. 
NOR will continue to maintain its standard maintenance and security
measures throughout its property. 
Coordination will be undertaken to ensure management of site security
where those requirements overlap.


 


Mitigation of
rivers and associated property resulting from removal of Milltown Dam Spillway
and Radial Gate as required by the Remedial Plan including:


 


•                  Engineering Design.


 


•                  All required activities, studies and designs related
to mitigation resulting from dam removal, as required by the USEPA Remedial
Plan, excluding FERC PME requirements. 


•                  CFR and BFR channel excavation and routing.


•                  Grade control and drop structure construction.


 





















 


•                  Design, installation and removal of sheetpile and
turbidity curtains around Area 1.


•                  Floodplain backfill haul and placement/contouring.


•                  Streambank construction/stabilization/armoring in
areas affected by excavation and other remedial activities.


•                  Clark Fork and Blackfoot River Floodplain
Re-vegetation, including wetland mitigation, within the Milltown Site RD/RA
work areas.