CONFIDENTIAL SETTLEMENT AGREEMENT AND RELEASE
This Confidential Settlement Agreement and Release (the Agreement) is made and entered as of August 30, 2019 (the Effective Date) by and between Duke Energy Business Services LLC, as agent for and on behalf of Duke Energy Carolinas, LLC and Duke Energy Progress, LLC (formerly known as Duke Energy Progress, Inc.) (collectively, Duke Energy) and Charah, LLC (formerly, Charah, Inc.) (Charah).
WHEREAS, Duke Energy and Charah (each individually a Party, and collectively the Parties) are parties to that certain Master Contract Number 8323, dated November 12, 2014, by and between Duke Energy Business Services LLC, as agent for and on behalf of Duke Energy Carolinas, LLC and Duke Energy Progress, Inc. and Charah, Inc., as amended pursuant to that certain Amendment No. 1, dated January 7, 2015, that certain Amendment No. 2, dated May 4, 2015, that certain Amendment No. 3, dated June 25, 2015, that certain Amendment No. 4, dated August 20, 2015, that certain Amendment No. 5, dated August 17, 2016, and that certain Amendment No. 6, dated March 5, 2018 (collectively, the Contract). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Contract.
WHEREAS, the Contract terminated on May 29, 2019, based on the occurrence of a Deemed Termination event as defined in Section 1.1 of Exhibit B to the Contract;
WHEREAS, following the termination of the Contract, the Parties were required to mutually determine the Prorated Costs, if any, that were due to Charah, including the various components thereof, through cooperation in good faith;
WHEREAS, the Contract defined the Prorated Costs as the amount of acquisition, development, closure, post-closure monitoring, and leachate collection and disposal costs multiplied by the Prorated Percentage, which Prorated Percentage reduced such costs to the amount not recovered by Charah through Duke Energys payment of the Unloading/Development/Placement portion of the applicable Per Ton Prices for the total tonnage of Beneficial Reuse Ash transported to the Brickhaven and Sanford Clay Mines, but did not define the terms acquisition, development, closure, post-closure monitoring, and leachate collection and disposal;
WHEREAS, Charah was responsible under Section 7.3(a) of Exhibit B to the Contract for providing Duke Energy with reasonable documentation to support any costs for which it sought reimbursement under the Prorated Costs determination and Duke Energy had the right under Section 7.3(a) of Exhibit B of the Contract to verify such costs and the reasonable documentation thereof, and the right under Section 4.8 of Exhibit B to the Contract to inspect, copy, and audit Charahs books and records relevant to the Contract;