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Home My WebLink About20132496.tiffRESOLUTION RE: APPROVE SETTLEMENT AGREEMENT AND AUTHORIZE CHAIR TO SIGN - ABOUND SOLAR, INC. / ABOUND SOLAR MANUFACTURING, LLC / ABOUND SOLAR TECHNOLOGY HOLDINGS, LLC WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Settlement Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Treasurer's Office, Jeoffrey L. Burtch, in his capacity as Chapter 7 Trustee appointed in the cases of Abound Solar, Inc., Abound Solar Manufacturing, LLC, and Abound Solar Technology Holdings, LLC, and the United States, acting on behalf of the U.S Department of Energy commencing upon full execution of signature, with further terms and conditions being as stated in said Settlement Agreement, and WHEREAS, after review, the Board deems it advisable to approve said Settlement Agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Settlement Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Treasurer's Office, Jeoffrey L. Burtch, in his capacity as Chapter 7 Trustee appointed in the cases of Abound Solar, Inc., Abound Solar Manufacturing, LLC, and Abound Solar Technology Holdings, LLC, and the United States, acting on behalf of the U.S Department of Energy be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said Settlement Agreement. W • l/YI ktfl ttf 2013-2496 CA0014 SETTLEMENT AGREEMENT - ABOUND SOLAR PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 4th day of September, A.D., 2013. ATTEST: Weld County Clerk to the Boar'' eputy Cler.To the Board APP-+sVED AS TO FORM: County Attorney Date of signature: %/0,_ BOARD OF WELD COU AUNTY COMMISSIONERS Y, COLORADO a ' Garc ., Chair .ug as a•emac er, Pro- em Sean P. Conway ilyILLE Mike Freeman arbara Kirkmeyer r -T T 2013-2496 CA0014 MEMORANDUM DATE: June 10, 2013 TO: Board of County Commissioners FR: Stephanie Arries, Assistant Weld County Attorney RE: Abound Solar Settlement of Personal Property Tax Claim Some time ago the Board determined that Weld County's personal property tax claim should be settled for the amount of $100,000. After some negotiation, with the Department of Energy and the Bankruptcy Trustee, a final agreement was reached. At this time, there is an outstanding claim against the bankruptcy estate for the clean-up of contamination at the site of the building at 9586 I-25, Longmont, Colorado. According to one of the attorneys involved in the claim, the amount sought is somewhere between $1-2 million dollars. The claim has also been filed against the insurance company which provided coverage for Abound Solar prior to the bankruptcy. — Thus, the expense of clean-up may be paid by insurance proceeds and not through the funds held by the Department of Energy. In conversation with the attorney for the property owner, I was also advised that the fire department and other emergency responders who could be called to the site have been advised of the status of the property and have received notices like the one attached to this Memo. I sent an email to Mark Lawley to confirm that such information had been provided, and I sent him a copy of the claim information setting forth evidence of the contamination found in the facility. 2013-2496 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is executed by and between (i) the Board of County Commissioners of the County of Weld, State of Colorado, by and on the behalf of Weld County, Colorado and the Treasurer of Weld County, Colorado ("Weld County"), (ii) Jeoffrey L. Burtch, in his capacity as Chapter 7 Trustee (the "Trustee") appointed in the Chapter 7 cases of Abound Solar, Inc. ("ASI"), Abound Solar Manufacturing, LLC ("ASM"), and Abound Solar Technology Holdings, LLC ("Holdings") (collectively, the "Debtors"), and (iii) the United States, acting on behalf of the U.S. Department of Energy ("DOE"). Weld County, Trustee, and DOE shall individually be referred to as a "Party" and collectively as the "Parties." WHEREAS, On July 2, 2012, the Debtors filed a voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code (the "Petition Date") in the United States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"). WHEREAS, on the Petition Date, the Trustee was appointed as interim Chapter 7 Trustee in the Chapter 7 case of each Debtor (collectively, the "Cases") pursuant to section 701 of title 11 of the United States Code (the "Bankruptcy Code"). The Trustee is duly qualified pursuant to section 322 of the Bankruptcy Code, and serves as the trustee for each of the Cases pursuant to section 702(d) of the Bankruptcy Code. WHEREAS, DOE, through a series of interim stipulations and a Final Funding Agreement with the Trustee, agreed to a limited use of its Cash Collateral (as defined therein)I to fund an orderly liquidation by the Trustee of the Debtors' assets pursuant to the terms of such agreements and in accordance with an agreed budget (the "Final Funding Agreement"). See D.I. Nos. 13, 18, 25, and 54. WHEREAS, the Final Funding Agreement established certain Reserved Amounts (as defined therein). WHEREAS, as more fully set forth in the Pre -Petition Funding Documents, prior to the Petition Date, each of ASM and ASI granted to the Collateral Agent for the benefit of DOE a security interest in and first priority lien upon all the assets of the Debtors. Subsequently, on April 11, 2013, the Bankruptcy Court entered an order granting DOE, as of the Petition Date, pursuant to sections 361 and 363(e) of the Bankruptcy Code, additional and replacement continuing, valid, binding, enforceable, non -avoidable and automatically perfected post -petition security interests in liens on all pre- and post -petition assets of the Debtors. See D.I. No. 256 at ¶ 3. WHEREAS, on August 6, 2012, on behalf of Weld County, the Treasurer filed a Motion for Relief from the Automatic Stay (the "Lift -Stay Motion") alleging, among other things, that ASI owed ad valorem personal property taxes (the "Accrued Taxes") on account of certain personal property located at 9586 East I-25 Frontage Road, Longmont, Colorado and 2950 Colorful Avenue, Longmont, Colorado (the "Longmont Locations") and seeking modification of the automatic stay to permit the Treasurer, on behalf of Weld County, to exercise its alleged rights and remedies, I Capitalized terms not otherwise defined herein shall have the meanings ascribed in the Final Funding Agreement. For purposes of this Agreement, Cash Collateral also includes Gross Proceeds as defined in Final Funding Agreement. including the distraint and sale of certain personal property at the Longmont Locations in satisfaction of the Treasurer's alleged tax liens (the "Weld Liens"). See D.I. 48. WHEREAS, on August 16, 2012, the Parties agreed to adjourn the hearing on the Lift -Stay Motion until the conclusion of the liquidation period or such other date as agreed by the Parties (the "Adjournment Agreement"). See D.I. 60, at 112. The Parties also authorized the Trustee to reserve from the Net Proceeds to be disbursed to DOE an amount sufficient to pay s Weld County's alleged Accrued Taxes identified in the Lift -Stay Motion (the "Weld Dispute Reserve"). See id. at 113. WHEREAS, the Parties, to avoid the time, expense, and uncertainty associated with the lien - priority and associated disputes raised by the Lift -Stay Motion, desire to settle their disputes amicably in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby irrevocably acknowledged, the Parties agree as follows: 1. Incorporation. The Parties adopt the foregoing recitals as part of this Agreement. 2. Effective Date. This Agreement becomes effective on the date it is fully executed by the Parties and approved by the Bankruptcy Court by the entry of a final order (the "Effective Date"). 3. Lift -Stay Motion. Upon the Effective Date, the Lift -Stay Motion will be deemed withdrawn with prejudice. Without limiting the releases contained herein and for the avoidance of doubt, Weld County will not assert any liens on the Taxable Personal Property (as defined in the Lift -Stay Motion) or any other personal property located at the Longmont Locations or the proceeds of any such personal property, including without limitation tax liens under Colo. Rev. Stat. §§ 39-1- 105 and 39-1-107. 4. Payment and Final Settlement. Upon the Effective Date, DOE will consent to use of its Cash Collateral to pay Weld County the sum of $100,000 [ONE -HUNDRED THOUSAND DOLLARS] (the "Settlement Amount"). The Trustee will pay from Cash Collateral that is not Reserved Amounts the Settlement Amount to Weld County within five (5) business days of the Effective Date in full and final satisfaction of any and all Claims (as defined in section 101(5) of the Bankruptcy Code) of Weld County against the Trustee, the Debtors, and the Chapter 7 estates of ASI, ASM and Holdings (collectively, the "Estates"). The Trustee will pay the Settlement Amount by check. The funds will be allocated by Weld County first to pay all legal and administrative expenses incurred by Weld County in the pursuit of its claim in this bankruptcy case, with the balance of the funds allocated toward the unpaid 2011 property taxes. 5. Weld Dispute Reserve. Upon the Effective Date, to the extent the Trustee has set aside funds in the Weld Dispute Reserve, the Trustee shall dissolve the Weld Dispute Reserve and the funds shall be comingled and treated together with the Gross Proceeds in accordance with the Bankruptcy Court's prior orders (including, without limitation, the Final Funding Agreement) and any further orders the Bankruptcy Court, the Bankruptcy Code, or the Bankruptcy Rules. Nothing in this paragraph shall affect, diminish, impair, or otherwise alter DOE's rights in such funds as Cash Collateral. 2 6. Release by Weld County in favor of DOE. Upon the Effective Date, Weld County, as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases DOE .of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which Weld County ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 7. Release by Weld County in favor of Trustee and the Estates. Upon the Effective Date, Weld County, as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases the Trustee and the Estates of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which Weld County ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 8. Release by the Trustee. Upon the Effective Date, the Trustee, as well any agents, successors, assigns, affiliates, members, officers, directors, agents, attorneys, or predecessors, releases Weld County of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which the Trustee ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 9. Release by DOE. Except for the obligations of the Parties under this Agreement and subject to Paragraph 10, DOE as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases Weld County of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which DOE ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 10. Limitation on the DOE's Release. Notwithstanding any other provision of this Agreement, as between the DOE and any other Party to this Agreement, it is expressly acknowledged and agreed that the DOE does not release or compromise any of the following 3 claims: (a) Any claims arising under criminal law; (b) any criminal, civil, or administrative claims, rights or defenses arising under Title 26, United States Code (Internal Revenue Code); (c) any claims, rights or defenses arising under 31 U.S.C. §§ 3729 et seq. (False Claims Act), 31 U.S.C. §§ 3801 et seq. (Program Frauds Civil Remedies Act), 42 U.S.C. §§ 1320a -7a (Civil Monetary Penalties Statute), or any common law cause of action for fraud; and (d) any claim by any agency other than the DOE. 11. Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 12. Final Funding Agreement. This Agreement effects no amendment, modification, limitation, or impairment of the rights, obligations, and remedies of the parties specified in the Final Funding Agreement. 13. Governing Law and Jurisdiction. This Agreement shall be governed by the federal laws of the United States (including the federal common law of contracts) and, to the extent such federal laws are not applicable, by the internal laws of the State of Delaware. 14. Entire Agreement; Agreement to be Construed as a Whole. This Agreement contains the entire understanding between the Parties as to all matters referred to herein. No other representations, covenants, undertakings or prior or contemporaneous agreements, whether oral or written, regarding any matters that are not specifically contained and incorporated in this Agreement, shall be deemed to have any effect or binding impact upon the Parties. This Agreement has been jointly negotiated by the Parties and is agreed to by these Parties. The language of this Agreement shall be construed as a whole according to its fair meaning and in accordance with its purpose and without regard to who may have drafted any particular provision herein. 15. Adjournment Agreement. In the event of any conflict between this Agreement and the Adjournment Agreement, this Agreement supersedes and replaces the Adjournment Agreement. 16. Counterparts. This Agreement may be executed by the parties in three counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. 17. No Third Party Beneficiary Enforcement. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 4 IN WITNESS HEREOF, the parties have executed and delivered this Agreement as of this 4th day of September 2013. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: r Weld County Clerk to tlfe ito By: Deputy Clerk to the Boar Date: Date: --7 William F. Garcia , Chair SEP 0 4 2013 Jeoffrey L. Burtch, Chapter 7 Trustee By: Printed: Adam Singer Title: Counsel to the Chapter 7 Trustee On Behalf of the United States By: Printed: J. Taylor McConkie Title: Trial Attorney, U.S. Department of Justice 5 J, 1N WITNESS HEREOF, the parties have executed and delivered this Agreement as of this t day of September 2013. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: , Chair Weld County Clerk to the Board By: Deputy Clerk to the Board Jeoffrey L. Burtch, Chapter 7 Trustee Date: By: Printed: Adam Singer Title: Counsel to the Chapter 7 Trustee On Behalf of the United States Date: 1 13 By: 7c Pfl'nted: J. Taylor McConkie Title: Trial Attorney, U.S. Department of Justice 5 C&IH CHFMISTRYir INDUSTRIAL HYGIFNF.INC. July 19, 2013 Bruce Barker, Esq. Weld County District Attorney 1150 O Street P.O. Box 758 Greeley, CO 80632 Re: Abound Solar Manufacturing Facility, 9586 I-25 Frontage Road, Longmont, Colorado Dear Mr. Barker: On behalf of the property owner, 9586 LLC, of the above -referenced property, this letter would like to inform you of the community relations activities that the owner is undertaking as part of its investigation and cleanup of the property contaminated by Abound Solar, who had manufactured solar panels at the property and is now in bankruptcy. We would like to arrange an interview of a representative of yours to solicit your concerns and information needs, if any, about the investigation and cleanup, and to learn how and when you would like to be involved in this process, if at all. Manufacturing of solar panels conducted by Abound Solar at the Site entailed use of cadmium, tellurium and other trace metals. Prior investigations have identified the presence of these substances on and within equipment that has been abandoned at the site, on the walls, floors, and ceilings inside the building, within the heating, ventilation, and air conditioning (HVAC) systems inside the building, within floor drains inside of the building and in drains located at the base of the loading docks outside of the building. The next phase of the investigation is being planned and performed by Engineering Management Support, Inc. (EMSI) in conjunction with Chemistry& Industrial Hygiene, Inc. (C&IH) on behalf of 9586 LLC. The investigation is being conducted by 9586 LLC on a voluntary basis consistent with the Colorado Hazardous Waste Act (CHWA), the Resource Conservation and Recovery Act (RCRA), and the National Contingency Plan (NCP) (40 CFR 300) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCIA). The overall purpose of the investigation is to determine the nature and extent of contamination, decide if remediation is necessary, and, if so, plan for remediation so that the facility may be beneficially used again. The investigation will evaluate whether chemicals of concern from manufacturing operations at the former Abound Solar facility 10201 West 43rd Avenue • Wheat Ridge, Colorado 80033 (303) 420-8242 • (800) 420-9311 • Fax (303) 431-4602 • www.c-ih.com Page 2 of 2 and/or post -bankruptcy petition activities present a significant risk, or pose a threat of a significant risk, to public health and/or the environment, or could potentially be released to the environment, at levels necessitating remedial action or corrective action to protect human health and the environment. Sampling for the investigation is scheduled for Monday July 29, 2013. We would like to obtain your input before sampling begins. If you are interested, would you please ask your representative to call or email me at 303-802-8127 or RStrodePC-IH.com. We are available to meet or have a telephone conversation at your convenience but would like to do so before sampling begins on July 29. Legal questions and comments may be directed to Maki latridis at 303-245-4560 or adi@bhgrlaw.com. Sincerely, A fl.sif% Rob Strode Technical Director, IH Services Chemistry & Industrial Hygiene, Inc. Chemistry & Industrial Hygiene, Inc. July 19, 2013 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 1 of 11 IN THE UNTIED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: Abound Solar Manufacturing, LLC, Abound Solar Technology Holdings, LLC, Abound Solar, Inc., Debtors. 9586 LLC, A COLORADO LIMITED LIABILITY ; COMPANY, Plaintiff, v. ; Adv. Proc. No. 13-5 (PJW) CHUBB CUSTOM INSURANCE COMPANY, A ; NEW JERSEY CORPORATION; ABOUND SOLAR MANUFACTURING, LLC, ; DEBTOR, Chapter 7 Case No. 12-11974 (PJW) Jointly Administered Defendant(s). COMPLAINT Plaintiff 9586 LLC ("Plaintiff"'), through its undersigned counsel, and pursuant to Fed. R. Bantu. P. 7001O) and (9), hereby respectfully submits this Complaint, and states as follows: INTRODUCTION 1. This adversary proceeding arises out of the voluntary Chapter 7 bankruptcy case In re Abound Solar Manufacturing, LLC, et al., Case No. 12-11974 (PJW) (the "Case"), filed in the United States Bankruptcy Court for the District of Delaware on July 2, 2012, and the insurance policy issued to Abound Solar Manufacturing, LLC ("Debtor" or "Abound Solar"), Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 2 of 11 by Defendant Chubb Custom Insurance Company ("Chubb"), under which Plaintiff 9586 LLC is an intended third party beneficiary and/or is insured as the owner of an "insured site" which has been contaminated by cadmium during and after Abound Solar's manufacturing operations. PARTIES 2. Plaintiff is a Colorado limited liability company with a business address of 1375 Walnut Street, Suite 10, Boulder, Colorado 80302. 3. Upon information and belief, Defendant Chubb is a New Jersey corporation with its principal place of business at 15 Mountain View Road, Warren, New Jersey 07059. 4. Upon information and belief, Abound Solar is a Delaware limited liability company that operated a solar panel manufacturing plant in Longmont, Colorado. Abound Solar is included as a party herein because it is a necessary party pursuant to Fed. R. Bankr. P. 7019. JURISDICTION AND VENUE 5. This adversary proceeding is brought pursuant to Fed. R. Bankr. P. 7001 and Del. Bankr. L.R. 7003-1 et seq. 6. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(b) and 1334(b). This is a core proceeding pursuant to 28 U.S.C. §§ 157 (b)(2)(A), (B), and (O). 7. Venue is proper in this Court pursuant to 28 U.S.C. § 1409. GENERAL ALLEGATIONS A. The Property and the Lease 8. This action arises out of cadmium contamination at Plaintiff 9586 LLC's property at 9586 1-25 Frontage Road, Longmont, Colorado (the "Property"), caused by its former tenant, Abound Solar, who manufactured solar panels on the Property and who is insured under a pollution insurance policy issued by Defendant Chubb (the "Policy"). 2 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 3 of 11 9. Plaintiff owns the Property. 10. The Property includes a manufacturing building (the "Building"), a parking lot, and unimproved land. 11. Pursuant to that certain Industrial Building Lease ("Lease") (attached hereto as Exhibit A and incorporated by reference as if fully set forth herein), Abound Solar leased the Property from Plaintiff and manufactured solar panels at the Property. 12. Section 9.2 of the Lease requires Abound Solar to "investigate, clean up and otherwise remediate at Tenant's sole expense, any release of Hazardous Materials caused, contributed to, or created by" Abound Solar or its agents or representatives. 13. Under Section 17.2 of the Lease, Abound Solar is obligated to defend and indemnify Plaintiff for any losses arising from or in connection with, among other things, Hazardous Materials, such as cadmium. B. The Policy 14. Chubb issued policy number 37312497 to Abound Solar for the term of March 31, 2011 to March 31, 2014 (previously defined as the "Policy") (attached hereto as Exhibit B and incorporated by reference as if fully set forth herein). 15. The delineation date of the Policy is March 31, 2008. 16. Under the Policy, the Property is specifically identified as an "insured site," thereby rendering Plaintiff a direct and third -party beneficiary of Chubb's obligations under the Policy. 17. Through the Policy, Chubb is, among other things, both the intended and actual guarantor of Abound Solar's indemnity obligations under the Lease, thereby rendering Plaintiff a direct and third -party beneficiary of those obligations. 3 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 4 of 11 18. Through the Policy, Chubb is also, among other things, the insurer for Plaintiff in Plaintiff's capacity as the owner of an "insured site" under the Policy. 19. Under the Policy, Chubb agreed to pay any "loss that the insured becomes legally obligated to pay as a result of a claim for bodily injury, property damage, or remediation costs, resulting from a pollution incident that commenced on or after the delineation date, and is on, under or migrating beyond the boundaries from the insured site, provided such claim is first made against the insured and reported to us in writing during the policy period, or extended reporting period if applicable." 20. Under the Policy, Chubb also agreed to "pay remediation costs resulting from discovery of a pollution incident that commenced on or after the delineation date, and is on or under the insured site, provided that such pollution incident is reported to us in writing as soon as possible after discovery and in any event during the policy period." 21. Under the Policy, a "Pollution Incident" is defined as "a discharge, dispersal, seepage, migration, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste into or upon land, or any structure on land, the atmosphere or any groundwater, watercourse or body of water." 22. Under the Policy, "remediation costs" means "reasonable and necessary costs to investigate, neutralize, remove, and remediate ... contamination." 23. Upon information and belief, the Property is contaminated from Abound Solar's manufacturing operations, including but not limited to the discharge, dispersal, and release or escape of the contaminant cadmium upon the Building, the migration of cadmium throughout the Building and outside the Building. 4 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 5 of 11 24. Upon information and belief, such discharges, dispersals and releases originated in equipment and tools and other facilities used by Abound Solar to manufacture solar panels on or after the delineation date of the Policy. C. The Bankruptcy and Chubb's Actions 25. Upon information and belief, Abound Solar ceased manufacturing operations in 2012 and petitioned on July 2, 2012 for Chapter 7 bankruptcy protection in Delaware, Case No. 12-11974. 26. Upon information and belief, Jeoffrey Burtch was appointed the Chapter 7 Trustee (the "Trustee") of the Abound Solar bankruptcy on July 2, 2012. 27. On December 12, 2012, Plaintiff provided statutory notice to the Trustee of Plaintiffs claims against Abound Solar under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6972(1)(A) and (B), and under several common law theories ("Notice of Claim") (attached hereto as Exhibit C and incorporated by reference as if fully set forth herein). 28. In the Notice of Claim, Plaintiff demanded that Abound Solar, at its own expense, investigate and remediate all contamination at the Property, bring the Property into compliance with all federal and state laws, and close the Property in a safe manner to eliminate risks to human health or the environment. 29. Upon information and belief, Abound Solar tendered the Notice of Claim to Chubb. 30. In a letter dated February 19, 2013, Chubb denied coverage for the contamination, stating that "the presence of containers containing hazardous waste at the [Property] is not a pollution incident" and that it was "unclear whether a pollution incident has occurred at the 5 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 6 of 11 properties ..." ("Initial Denial") (attached hereto as Exhibit D and incorporated by reference as if fully set forth herein). 31. On April 10, 2013, counsel for Plaintiff sent a response letter to Chubb, stating that Chubb's coverage positions were based on conclusory statements and an incomplete investigation, which constitute a breach of Chubb's duties and obligations under the Policy and applicable Colorado law, and demanding that Chubb immediately reconsider its coverage position and take all steps to immediately remediate the contamination ("Response Letter") (attached hereto as Exhibit E and incorporated by reference as if fully set forth herein). 32. Chubb did not respond directly to the Response Letter and has yet to provide coverage to remediate contamination at the Property as required by the Policy. 33. On June 24, 2013, Chubb sent a letter to counsel for Plaintiff stating that it "has not issued an absolute denial of coverage" and that the "matter is still being investigated to determine if coverage is available" ("Second Denial") (attached hereto as Exhibit F and incorporated by reference as if fully set forth herein). 34. Upon information and belief, as of the filing of this Complaint, Chubb has yet to send anyone to the Property to investigate contamination thereon. 35. Due to Chubb's failure to timely investigate this matter and provide coverage, Plaintiff has been forced to retain consultants to begin formulating a plan to remediate the contamination. 36. As such, Plaintiff has suffered damages caused by Chubb's failure to promptly provide coverage under the Policy and will continue to suffer damages in an amount to be proven at trial. 6 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 7 of 11 37. Upon information and belief, the Trustee has also authorized the expenditure of funds to investigate some of the cadmium contamination on the Property. 38. Plaintiff seeks to recover from Chubb expenses incurred and to be incurred by Plaintiffs investigation and remediation of the cadmium contamination on the Property, and all other recoverable costs and fees related thereto. Plaintiff is not seeking to recover expenses incurred by the Estate. 39. Funds paid to Plaintiff from Chubb pursuant to the Policy are independent of and will not affect any proceeds to be paid from the Policy to Debtor or any other party having an interest in the Policy, should such proceeds be sought. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF Declaratory Judgment against Chubb and Abound Solar 40. Plaintiff hereby incorporates all previous allegations in this Complaint as if fully set forth herein. 41. The discharges, releases, and abandonment of cadmium on the Property constitute one or more Pollution Incident(s) under the Policy. 42. Under the terms and conditions of the Policy issued by Chubb to Abound Solar, there is coverage for the foregoing Pollution Incident(s) and Chubb owes coverage to Plaintiff as the owner of an "insured site." 43. Under the terms of the Policy, Chubb owes insurance coverage to both Abound Solar and to Plaintiff to the extent they have expended funds investigating and remediating Pollution Incident(s) on the Property under the Policy. 44. Furthermore, Plaintiff is a third party beneficiary of the insurance contract between Chubb and Abound Solar. 7 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 8 of 11 45. On or about December 12, 2013, Plaintiff timely sent the Notice of Claim to Abound Solar. 46. Upon information and belief, Abound Solar and/or the Trustee timely sent the Notice of Claim to Chubb. 47. Chubb has wrongfully denied coverage and/or wrongfully delayed investigating and/or providing coverage. 48. There exists an actual controversy between Plaintiff and Chubb regarding Chubb's obligations and duties under the Policy. 49. Plaintiff hereby seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 et seq. to determine the parties' respective rights and obligations under the Policy. SECOND CLAIM FOR RELIEF Breach of Insurance Contract against Chubb 50. Plaintiff hereby incorporates all previous allegations in this Complaint as if fully set forth herein. 51. The Policy was and is a valid and binding insurance contract. 52. None of the exclusions in the Policy apply to the claims stated herein. 53. Plaintiff is the owner of an insured site under the Policy and/or an intended third party beneficiary of the Policy. 54. Plaintiff and Abound Solar have performed and continue to perform under the Policy, and have met all conditions precedent with respect to providing notice of the Pollution Incident(s). 55. Chubb failed to perform under the Policy, in that it has failed to provide coverage for the Pollution Incident(s). 8 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 9 of 11 56. Chubb's failure to perform under the Policy constitutes a breach of the insurance contract. 57. As a result of Chubb's breach of insurance contract, Plaintiff has been damaged and continues to incur damages in an amount to be proven at trial. THIRD CLAIM FOR RELIEF Bad Faith Breach of Insurance Contract against Chubb 58. Plaintiff hereby incorporates all previous allegations in this Complaint as if fully set forth herein. 59. Chubb owes its insured and/or third party beneficiaries, including Plaintiff, a duty of good faith and fair dealing, which duty is breached if Chubb delays or denies coverage without a reasonable basis for its delay or denial. 60. Chubb acted unreasonably in delaying and/or denying coverage to investigate and/or remediate contamination at the Property. 61. Chubb knew that its conduct was unreasonable and/or Chubb recklessly disregarded the fact that its conduct was unreasonable. 62. Chubb's failures constitute unfair claims settlement practices under Colo. Rev. Stat. § 10-3-1104(h), in that, among other things, Chubb failed to acknowledge and act reasonably promptly upon receiving notice of claims under the Policy; Chubb willfully refused to pay claims without conducting a reasonable investigation based upon all available information; and Chubb willfully did not attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear. 63. Chubb's failures also constitute unfair claims settlement practices under Colo. Rev. Stat. § 10-3-1104(h), in that Chubb willfully failed to promptly provide a reasonable 9 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 10 of 11 explanation of the basis in the Policy in relation to the facts or applicable law for denial of a claim. 64. Chubb's delay and/or denial of coverage constitutes breach of the duty of good faith and fair dealing as codified in Colo. Rev. Stat. § 10-3-1113(1). 65. Chubb's delay and/or denial of coverage constitute a willful and wanton breach of the Policy. 66. As a result of Chubb's breach of the duty of good faith and fair dealing and willful and wanton breach of the Policy, Plaintiff has been damaged and continues to incur damages in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays for judgment in its favor and against Chubb on its claims for breach of insurance contract, bad faith breach of insurance contract, and declaratory relief as requested hereinabove. Plaintiff further requests that the Court enter judgment in its favor and against Chubb for damages in an amount to be proven at trial, for all reasonable attorney fees and costs, for pre- and post judgment interest at the highest allowable rate, and for such other and further relief that the Court deems just and appropriate. 10 Case 12-11974-PJW Doc 289 Filed 07/26/13 Page 11 of 11 Respectfully submitted this 26th day of July, 2013. PHILLIPS, GOLDMAN & SPENCE, P.A. /s/ Lisa C. McLaughlin Lisa C. McLaughlin, Esquire (#3113) 1200 North Broom Street Wilmington, DE 19806 Phone: (302) 655-4200 Fax: (302) 655-4210 -and- BERG HILL GREENLEAF & RUSCITTI, LLP Giovanni M. Ruscitti 1712 Pearl Street Boulder, CO 80302 Phone: (303) 402-1600 Fax: (303) 402-1601 Co -counsel for Plaintiff 11 Case 12-11974-PJW Doc 330 Filed 09/25/13 Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE In re: ABOUND SOLAR MANUFACTURING, LLC, et al., Debtors. Chapter 7 Case No. 12-11974 (PJW) (Jointly Administered) Related Docket No. 306 ORDER APPROVING SETTLEMENT AGREEMENT BETWEEN TRUSTEE, BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD, AND UNITED STATES This matter has come before the Court upon the Motion Of Chapter 7 Trustee To Approve Settlement Agreement with the Board of County Commissioners of the County of Weld and the United States (the "Motion") filed by Jeoffrey L. Burtch, Chapter 7 Trustee (the "Trustee"), pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure. The Court rules as follows. IT IS FOUND1 AND ORDERED THAT: 1. This Court has jurisdiction, pursuant to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United States District Court for the District of Delaware dated as of February 29, 2012. This is a core proceeding under 28 U.S.C. § 157(b)(2). 2. Proper notice of the Motion was provided. 3. The Court finds that the Settlement Agreement2, attached hereto as Exhibit A, was negotiated at ann's length and entered into in good faith by the parties. The consideration to be received by the bankruptcy estates of Abound Solar, Inc., Abound Solar Manufacturing, LLC, and Abound Solar Technology Holdings, LLC is fair and reasonable, and falls above the lowest point in the range of reasonableness. To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. See Fed. R. Bankr. P. 7052. 2 Capitalized terms not otherwise defined herein shall retain the meanings set forth in the Motion. Case 12-11/74-PJW Doc 330 Filed 09/25/13 Page 2 of 3 4. Approval of the Settlement Agreement is in the best interests of the Abound Solar, Inc. Chapter 7 estate and its creditors. To the extent applicable, approval of the Settlement Agreement is in the best interests of the Abound Solar Manufacturing, LLC estate and its creditors. To the extent applicable, approval of the Settlement Agreement is in the best interests of the Abound Solar Technology Holdings, LLC estate and its creditors. 5. Trustee has exercised proper business judgment in entering into the Settlement Agreement. 6. The Motion is GRANTED. Any objections to the Motion with respect to the entry of this Order approving the Settlement Agreement that have not been withdrawn, waived or settled are hereby denied and overruled. 7. The Trustee is authorized, nunc pro tune, to enter into the Settlement Agreement. The Settlement Agreement is approved. All the parties to the Settlement Agreement are authorized to implement its terms. The Trustee is further authorized, nunc pro tune to the date of the filing of the Motion, to execute any reasonably necessary documents (solely in his capacity as the Trustee) to implement and effectuate the Settlement Agreement. 8. The Trustee has shown proper business judgment in connection with the proposed use of cash. Section 363(b)(1) of title 11 of the United States Code is satisfied. 9. The Trustee is authorized to pay out of Cash Collateral that is not Reserved Amounts the amount of $100,000.00 ("Settlement Amount") to Weld County in full and final satisfaction of the Trustee's obligations under the Settlement Agreement. 10. The Trustee is further authorized to dissolve the Weld Dispute Reserve, and any remaining funds from the Weld Dispute Reserve shall be commingled and treated together with Gross Proceeds in accordance with this Court's prior orders in these cases. 2 Case 12-11974-PJW Doc 330 Filed 09/25/13 Page 3 of 3 11. The Weld County Lift -Stay Motion currently pending in the Abound Solar Manufacturing, LLC case, case no. 12-11974 (PJW), at Docket Item 48 is hereby deemed withdrawn with prejudice. 12. Aside from the Trustee's payment of the Settlement Amount to Weld County, Weld County shall not be entitled to any other distribution from the Estates. Any and all claims of Weld County against the Estates are hereby satisfied. 13. This Order shall be effective and enforceable immediately upon entry. To the extent that Federal Rule of Bankruptcy Procedure 4001(a)(3), 6004(h),7062, or any other Federal Rule of Bankruptcy Procedure applies to stay this Order for 14 days after the entry of this Order, such 14 day stay is waived. 14. This Court shall retain jurisdiction to hear and determine all matters arising from the implementation of this Order. Dated: Septembero?S, 2013 Hon. Peter J.`Walsh' United States Bankruptcy Judge 3 Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 1 of 7 EXHIBIT "A" Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 2 of 7 SETTLEMENT AGREEMENT This Settlement Agreement ("Agreement") is executed by and between (i) the Board of County Commissioners of the County of Weld, State of Colorado, by and on the behalf of Weld County, Colorado and the Treasurer of Weld County, Colorado ("Weld County"), (ii) Jeoffrey L. Burtch, in his capacity as Chapter 7 Trustee (the "Trustee") appointed in the Chapter 7 cases of Abound Solar, Inc. ("ASI"), Abound Solar Manufacturing, LLC ("ASM"), and Abound Solar Technology Holdings, LLC ("Holdings") (collectively, the "Debtors"), and (iii) the United States, acting on behalf of the U.S. Department of Energy ("DOE"). Weld County, Trustee, and DOE shall individually be referred to as a "Party" and collectively as the "Parties." WHEREAS, On July 2, 2012, the Debtors filed a voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code (the "Petition Date") in the United States Bankruptcy Court for the District of Delaware (the `Bankruptcy Court"). WHEREAS, on the Petition Date, the Trustee was appointed as interim Chapter 7 Trustee in the Chapter 7 case of each Debtor (collectively, the "Cases") pursuant to section 701 of title 11 of the United States Code (the `Bankruptcy Code"). The Trustee is duly qualified pursuant to section 322 of the Bankruptcy Code, and serves as the trustee for each of the Cases pursuant to section 702(d) of the Bankruptcy Code. WHEREAS, DOE, through a series of interim stipulations and a Final Funding Agreement with the Trustee, agreed to a limited use of its Cash Collateral (as defined therein)1 to fund an orderly liquidation by the Trustee of the Debtors' assets pursuant to the terms of such agreements and in accordance with an agreed budget (the "Final Funding Agreement"). See D.I. Nos. 13, 18, 25, and 54. WHEREAS, the Final Funding Agreement established certain Reserved Amounts (as defined therein). WHEREAS, as more fully set forth in the Pre -Petition Funding Documents, prior to the Petition Date, each of ASM and ASI granted to the Collateral Agent for the benefit of DOE a security interest in and first priority lien upon all the assets of the Debtors. Subsequently, on April 11, 2013, the Bankruptcy Court entered an order granting DOE, as of the Petition Date, pursuant to sections 361 and 363(e) of the Bankruptcy Code, additional and replacement continuing, valid, binding, enforceable, non -avoidable and automatically perfected post -petition security interests in liens on all pre- and post -petition assets of the Debtors. See D.I. No. 256 at ¶ 3. WHEREAS, on August 6, 2012, on behalf of Weld County, the Treasurer filed a Motion for Relief from the Automatic Stay (the "Lift -Stay Motion") alleging, among other things, that ASI owed ad valorem personal property taxes (the "Accrued Taxes") on account of certain personal property located at 9586 East I-25 Frontage Road, Longmont, Colorado and 2950 Colorful Avenue, Longmont, Colorado (the "Longmont Locations") and seeking modification of the automatic stay to permit the Treasurer, on behalf of Weld County, to exercise its alleged rights and remedies, ' Capitalized terms not otherwise defined herein shall have the meanings ascribed in the Final Funding Agreement. For purposes of this Agreement, Cash Collateral also includes Gross Proceeds as defined in Final Funding Agreement. Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 3 of 7 including the distraint and sale of certain personal property at the Longmont Locations in satisfaction of the Treasurer's alleged tax liens (the "Weld Liens"). See D.I. 48. WHEREAS, on August 16, 2012, the Parties agreed to adjourn the hearing on the Lift -Stay Motion until the conclusion of the liquidation period or such other date as agreed by the Parties (the "Adjournment Agreement"). See D.I. 60, at ¶ 2. The Parties also authorized the Trustee to reserve from the Net Proceeds to be disbursed to DOE an amount sufficient to pay s Weld County's alleged Accrued Taxes identified in the Lift -Stay Motion (the "Weld Dispute Reserve"). See id. at ¶ 3. WHEREAS, the Parties, to avoid the time, expense, and uncertainty associated with the lien - priority and associated disputes raised by the Lift -Stay Motion, desire to settle their disputes amicably in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby irrevocably acknowledged, the Parties agree as follows: 1. Incorporation. The Parties adopt the foregoing recitals as part of this Agreement. 2. Effective Date. This Agreement becomes effective on the date it is fully executed by the Parties and approved by the Bankruptcy Court by the entry of a final order (the "Effective Date"). 3. Lift -Stay Motion. Upon the Effective Date, the Lift -Stay Motion will be deemed withdrawn with prejudice. Without limiting the releases contained herein and for the avoidance of doubt, Weld County will not assert any liens on the Taxable Personal Property (as defined in the Lift -Stay Motion) or any other personal property located at the Longmont Locations or the proceeds of any such personal property, including without limitation tax liens under Colo. Rev. Stat. §§ 39-1- 105 and 39-1-107. 4. Payment and Final Settlement. Upon the Effective Date, DOE will consent to use of its Cash Collateral to pay Weld County the sum of $100,000 [ONE -HUNDRED THOUSAND DOLLARS] (the "Settlement Amount"). The Trustee will pay from Cash Collateral that is not Reserved Amounts the Settlement Amount to Weld County within five (5) business days of the Effective Date in full and fmal satisfaction of any and all Claims (as defined in section 101(5) of the Bankruptcy Code) of Weld County against the Trustee, the Debtors, and the Chapter 7 estates of ASI, ASM and Holdings (collectively, the "Estates"). The Trustee will pay the Settlement Amount by check. The funds will be allocated by Weld County first to pay all legal and administrative expenses incurred by Weld County in the pursuit of its claim in this bankruptcy case, with the balance of the funds allocated toward the unpaid 2011 property taxes. 5. Weld Dispute Reserve. Upon the Effective Date, to the extent the Trustee has set aside funds in the Weld Dispute Reserve, the Trustee shall dissolve the Weld Dispute Reserve and the funds shall be comingled and treated together with the Gross Proceeds in accordance with the Bankruptcy Court's prior orders (including, without limitation, the Final Funding Agreement) and any further orders the Bankruptcy Court, the Bankruptcy Code, or the Bankruptcy Rules. Nothing in this paragraph shall affect, diminish, impair, or otherwise alter DOE's rights in such funds as Cash Collateral. 2 Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 4 of 7 6. Release by Weld County in favor of DOE. Upon the Effective Date, Weld County, as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases DOE of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which Weld County ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 7. Release by Weld County in favor of Trustee and the Estates. Upon the Effective Date, Weld County, as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases the Trustee and the Estates of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which Weld County ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations,or the Weld Dispute Reserve. 8. Release by the Trustee. Upon the Effective Date, the Trustee, as well any agents, successors, assigns, affiliates, members, officers, directors, agents, attorneys, or predecessors, releases Weld County of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which the Trustee ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued Taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 9. Release by DOE. Except for the obligations of the Parties under this Agreement and subject to Paragraph 10, DOE as well any agents, successors, assigns, affiliates, members, officers, directors, employees, agents, attorneys, or predecessors, releases Weld County of any and all rights, claims, demands, damages, costs, expenses, promises, defenses, recoupments, deductions, setoffs, actions, causes of action, or liabilities of whatsoever nature, whether known or unknown and whether accrued or unaccrued, disclosed or undisclosed, which DOE ever had, now has, or may hereafter have, existing by virtue of statutory, common law, or equitable rights or principles, arising out of or related to the lien -priority dispute between Weld County and DOE (including, without limitation, the Weld Liens), accrued but unpaid taxes of any kind (including, without limitation, the Accrued taxes), the Lift -Stay Motion, the Longmont Locations, or the Weld Dispute Reserve. 10. Limitation on the DOE's Release. Notwithstanding any other provision of this Agreement, as between the DOE and any other Party to this Agreement, it is expressly acknowledged and agreed that the DOE does not release or compromise any of the following 3 Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 5 of 7 claims: (a) Any claims arising under criminal law; (b) any criminal, civil, or administrative claims, rights or defenses arising under Title 26, United States Code (Internal Revenue Code); (c) any claims, rights or defenses arising under 31 U.S.C. §§ 3729 et seq. (False Claims Act), 31 U.S.C. §§ 3801 et seq. (Program Frauds Civil Remedies Act), 42 U.S.C. §§ 1320a -7a (Civil Monetary Penalties Statute), or any common law cause of action for fraud; and (d) any claim by any agency other than the DOE. 11. Governmental Immunity. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 12. Final Funding Agreement. This Agreement effects no amendment, modification, limitation, or impairment of the rights, obligations, and remedies of the parties specified in the Final Funding Agreement. 13. Governing Law and Jurisdiction. This Agreement shall be governed by the federal laws of the United States (including the federal common law of contracts) and, to the extent such federal laws are not applicable, by the internal laws of the State of Delaware. 14. Entire Agreement; Agreement to be Construed as a Whole. This Agreement contains the entire understanding between the Parties as to all matters referred to herein. No other representations, covenants, undertakings or prior or contemporaneous agreements, whether oral or written, regarding any matters that are not specifically contained and incorporated in this Agreement, shall be deemed to have any effect or binding impact upon the Parties. This Agreement has been jointly negotiated by the Parties and is agreed to by these Parties. The language of this Agreement shall be construed as a whole according to its fair meaning and in accordance with its purpose and without regard to who may have drafted any particular provision herein. 15. Adjournment Agreement. In the event of any conflict between this Agreement and the Adjournment Agreement, this Agreement supersedes and replaces the Adjournment Agreement. 16. Counterparts. This Agreement may be executed by the parties in three counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same instrument. 17. No Third Party Beneficiary Enforcement. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties that any entity other than the undersigned parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 4 Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 6 of 7 IN WITNESS HEREOF the parties have executed and delivered this Agreement us of this 4th day of September 11113. BOARD OP COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: Weld County Clerk to tl Deputy Clerk to the Bbaari Date: r 51%a 613 Date: J Aiiiiam F. Garcia . Chair SEP 0 4 2013 Jeolfrey L. Burtch, Chaplet 7 Trustee Printed: Adam Singer Title: Coumel to the Chapter 7 Trustee On Behalf of the United States By: Printed. J, Taylor McConkie Title: That Attorney. U.S. Deportment of Justice Case 12-11974-PJW Doc 330-1 Filed 09/25/13 Page 7 of 7 "( l IN WITNESS HEREOF, the parties have executed and delivered this Agreement as of this day of September 2013. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: , Chair Weld County Clerk to the Board By: Deputy Clerk to the Board Jeoffrey L. Burtch, Chapter 7 Trustee Date: By: Printed: Adam Singer Title: Counsel to the Chapter 7 Trustee Date: CIA / !-3 On Behalf of the United States By: Pouted: J. Taylor McConkie Title: Trial Attorney, U.S. Department of Justice 5 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 1 of 38 Exhibit "C" Case 12-11974-PJW- R-Do0-289=4=-KFiled=07/26/13 Page 2 of 38 THE COMPANIES December 12, 2012 Via Email: jburtch&Icooclttaylor.co,n; asineer@coachtalar.coin Abound Solar Manufacturing, LLC clo Jeoffrey L. Burtch, Esq. Trustee P.O. Box 549 Wilmington, DE 19899 c/o Adam Singer, Esq. Counsel for the Trustee Conch and Taylor Simultaneous copy to: 1000 West Street, 10th Floor Wilmington, 1)E 19801 Re: Claim re Abound Solar Dear Abound Solar Manufacturing, LLC, Mr. Burtch, and Mr. Singer: As you know, 9586 LLC owns the land and building at 9586 1-25 Frontage Road, Longmont, Colorado (the "Property"). The Property is leased to Abound Solar Manufacturing, LLC ("Abound Solar") and was used for the manufacture of solar panels. Abound Solar ceased manufacturing operations :earlier in 2012 and petitioned, on July 2, 2012, for bankruptcy protection in Delaware, Case No. 12- 11974. Mr. Burtch was appointed the Chapter 7 Trustee (the "Trustee"). This letter submits the following claim to Abound Solar to investigate, neutralize, remove and remediate all contamination and pollution issues at the Property, and reimburse 9586 LLC for its expenses and damages related to the same. This letter relates only to environmental and pollution issues. Other non -environmental issues will be addressed under separate cover. FACTS Counsel to the Trustee and counsel to the U.S. Department of Energy ("DOE") informed 9586 LLC of numerous environmental problems at the Property. These problems include, but may not be limited to, the discharge, dispersal and release or escape of the contaminant cadmium upon the building, the. Migration of cadmium throughout the building (and potentially outside the building) and the release of cadmium contaminated water into tanks outside the building. Such discharges, dispersals and releases are believed to have originated in equipment and tools used to manufacture solar panels as well as from broken solar panels. On November 30, 2012, the Trustee sent a list of numerous environmentally impaired assets at the Property, which is attached hereto as Exhibit 1. For example, the list identifies 7 large contaminated tanks, 48 barrels of chemical waste, hundreds of pallets with Waste, and 5;000 gallons of contaminated water, among other things. In addition, on November 29, 2012, the Trustee sent a report from ACT showing that there is significant hazardous waste containing cadmium that has migrated to or was directly REAL !STATE SERVICES. LLC CREATING VALUE THROUGH CHEERFUL, INNOVATIVE AND SUSTAINABLE REAL ESTATE PRACTICES rEL.303.442.S6S7 Eax:303.4-12.S7S7 1373 WALNUT STREET. SUITE 10. BOULDER, CO 80302 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 3 of 38 December 12. 2012 Page 2 released upon the floors and walls in the restricted areas of the Property, at concentrations in excess of health standards, Exhibit 2. On December 7, 2012, ACT sent 9586 LLC a copy of sampling results from another Abound Solar facility in Ft. Collins, Colorado. Exhibit.3, The results of particular concern are the two samples taken outside of the restricted area in the Ft. Collins facility. They are 380 ug/ 100 cm2 on the floor and 69 in the carpet for cadmium. ACT's Phase I report for the Longmont facility states that ACT was cleaning floors and walls to 3 4100 cm2 for cadmium to render the restricted area safe for human access without personal protective equipment (PPE), however, no investigation or testing has been performed outside the restricted area to date. The Ft. Collins results demonstrate that there is likely .a contamination problem at the Longmont facility at some locations outside of the restricted areas due to migration of cadmium or otherwise, and that these areas cannot be assumed to be safe or clean until an investigation is performed in the unrestricted areas and the results demonstrate the areas are clean, Both Ms. Carolyn Beoris of ACT and Mr. David Foster, the hazardous waste inspector for the Colorado Department of Public Health and Environment ("CDPHE"), confirmed that the cadmium -laden waste at the Property is regulated as hazardous waste pursuant to federal (42 U.S.C. §§ 6901 et: seq.) and state law (§§ 25-15-10 et. seq., C.R.S.), and Abound Solar is a large quantity generator of hazardous waste. The uncontained migration of hazardous waste throughout the facility, including upon the stricture, and improper storage of waste outside the building, is illegal disposal of hazardous waste, among other things. Ms. Beoris confirms that a comprehensive investigation of the nature and extent of all contamination at the Property has not been performed and she recommends that such an investigation be performed so that the Property may be cleaned up and closed without any risk to public health or the environment, including the removal and remediation of all waste currently present on the Property. Mr. Foster also confirms that CDPHE will want remedial actions taken at the Property to bring the facility into compliance with laws. CDPHE's inspection report should issue in the next week or two, according to Mr. Foster, Additionally, it is 9586 LLC's understanding that Abound Solar personnel transferred materials and/or solar panels from the building at the Property to structures on the adjacent lot to the south located at 95361-25 Frontage Road ("Adjacent Property') for storage and/or additional operations. Given the numerous violations set forth below, 9586 LLC is justifiably concerned that such activities may have caused a discharge, dispersal, migration, release or escape of contamination upon the land and/or structures of the Adjacent Property. VIOLATIONS The results from ACT show that hazardous waste exists at the Property in concentrations that place humans at imminent and significant health risk. Section 9. of the March 18, 2008 Industrial Building Lease ("Lease") for the. Property requires Abound Solar to comply, at its own expense, with all laws, including Hazardous Materials laws as that term is defined at Section 9.2. of the Lease. As the broad definition of Hazardous Materials in the Lease unquestionably includes the regulated hazardous waste cadmium, Abound Solar is required to comply with all state and Federal law regulating such waste. As set forth in detail below, Abound Solar appears to be in violation of numerous state and Federal laws regulating such waste and demand is hereby made to Abound Solar to cure such violations. The failure to cure such violations may be deemed to be a breach of the Lease. Furthermore, Section 92 of the Lease requires Abound Solar to "investigate, clean up and otherwise remediate at Tenant's sole expense, any release of Hazardous Materials caused, contributed to, or created by" Abound Solar or its agents or representatives and Abound Solar has also violated this provision of the Lease and demand is hereby made to cure. Finally, it should be noted that Abound Solar is obligated to defend and indemnify 9586 LLC under Section 17.2 for any losses arising f .oat or in connection with, among other things, Hazardous Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 4 of 38 December 12, 2012 Page 3 Materials, and 9586 LLC hereby tenders its request for defense and indemnity. CDPHE's regulatory inspection is ongoing and enforcement may be against 9586 LLC as the owner. To the extent Abound Solar may be in breach of other provisions in the Lease, 9586 LLC. expressly reserves all rights and available remedies under the Lease, including the right to provide additional notices of default, and the foregoing is. not intended to waive or otherwise limit 9586 LLC's rights, claims or remedies with respect to any such breaches. To more specifically address violations of state and Federal law, as a large quantity generator of hazardous waste, Abound Solar has treated, stored, and disposed of hazardous waste at the Property without a permit as such waste has undoubtedly remained on the Property since Abound Solar ceased operations sometime prior to filing for bankruptcy in July of 2012. See C.R.S. § 25-15-303(1); 42 U.S.C. § 6925(a); 6 CCR 1007-3, 264.111, 265.111. Accordingly, Abound Solar violated and is .still violating. the 90 -day accumulation limit that requires Abound Solar as the generator to dispose of the hazardous waste 'at an off -site permitted TSD facility within 90 days of generating the waste. 6 CCR 1007-3, Section 262.34(a). Storage in excess of 90 days requires a permit; and Abound Solar is also in violation of this requirement. 6 CCR 1007-3, Section 100.10. Furthermore, upon information and belief, Abound Solar has violated the following storage container requirements: a. Hazardous waste accumulation containers must be marked or labeled with the words "Hazardous Waste" and Abound Solar has not marked or labeled all such containers. 6 CCR 1007-3, Section 262.34(a)(3); b. The date when accumulation began must be clearly marked on the container and Abound Solar has not marked the date of accumulation on ali such containers. 6 CCR 1007-3, Section 262.34(a)(2); c. Containers used to store the hazardous waste must be in good condition and not leaking. 6 CCR 1007-3, Sections 262.34(a)(1) and 265.171; d. Containers must be kept closed except when waste is being added or removed. 6 CCR 1007-3, Sections 262,34(a)(1) and 265.173(a); e. Containers cannot be stored in a manner to cause a rupture or leak. 6 CCR 1007-3, Sections 262.34(a)(1) and 265.173(b); f. The hazardous waste must not cause the container to rupture, leak or corrode. The containers must be inspected weekly for leaks, deterioration, and whether it is closed. 6 CCR 1Q07-3, Sections 262.34(a)(l), 265.172 and 265.174. Among other containers, the tools and equipment that contain hazardous waste are improper containers for storage of hazardous waste, and are in violation of the above -referenced requirements. Furthermore, a large quantity generator must clearly mark the accumulation start date on or attached to each tank or maintain a tank log sheet to ensure that waste has not been accumulated in the tank for more than 90 days. 6 CCR 1007-3, Section 262.34(a)(2). In addition to the container violations noted above, the waste in the tanks outside the building has been there for more than 90 days and they Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 5 of 38 December 12, 2012 Page 4 should be inspected daily. The failure to monitor such tanks outside the building is also a release of hazardous waste. Abound Solar has also violated accumulation requirements. A large quantity generator may accumulate as much as 55 gallons of a hazardous waste or one quart of an acutely hazardous waste in containers at or near any point of generation where wastes initially accumulate (satellite accumulation area). The container in the satellite accumulation area must be moved inunediately from the satellite area to a 90 -day or permitted area when it becomes full. ("Immediately" is interpreted by the CDPHE Hazardous Materials and Waste Management Division to mean within 24 hours.) 6 CCR 1007-3, Section 262.34(c). The quantity of waste set forth in Exhibit 1 clearly demonstrates violations of such requirements. Additionally, Abound Solar violated the following release response requirements. A large quantity generator must have an emergency response/contingency plan for the facility. The contingency plan must be designed to minimize hazards to human health or to the environment in the event of an accident involving hazardous wastes.. 6 CCR 1007-3, Section 262.34(a)(4) and Part 265, Subpart D. The emergency coordinator must have the authority to commit resources needed to implement the contingency • plan. There must be one employee designated as the primary emergency. coordinator who is on -site or on call at all times. The emergency coordinator must aSSOSS possible hazards to human health or the environment whenever there is a release. The emergency coordinator must notify the appropriate authorities if the facility has had a release that could threaten human health or the environment outside the facility. The emergency coordinator must take measures to ensure that releases do not occur, recur or spread to other areas at the facility. The emergency coordinator must provide measures to properly manage hazardous waste generated as a result of the incident. 6 CCR 1007-3, Sections 265.55 and 265.56. The discharge, dispersal, migration, release or escape of cadmium from equipment, tools and broken solar panels upon the floors and walls of the structure, and migration. to other areas of the structure, and to tanks and containers outside the structure, constitute a release triggering the requirements set forth above and Abound Solar has not complied with those requirements. For the same reasons, Abound Solar violated the following requirements. The operator of the facility must notify the Hazardous Materials and Waste Management Division and appropriate local authorities that after a release the facility is in compliance before operations are resumed in affected areas. 6 CCR 1007-3, Section 265.56(i). The owner or operator of the facility must submit a written report to the Hazardous Materials and Waste Management Division within 15 days after an incident (see Section 265.56(j) for the details that must be included in this report). 6 CCR 1007-3, Section 265.56(j). The facility must be maintained and operated in a manner to minimize the possibility of any release of hazardous waste or hazardous waste constituents. 6 CCR 1007 :3, Section 265.31. These violations, along with the untreated and uncontained source areas of contamination at the Property, may present an imminent and substantial endangerment to health or the environment. Abound Solar is liable for correcting its violations. See 42 U.S.C. § 6972(a)(1)(A) and (B); Sierra Club v: Chetniccrl handling Corp., 824 F. Supp. 195, 197 (D. Colo. 1993); Raymond K Hoxsie Real Estate .Trust v. Exxon Educational Foundation, 81 F. Supp. 2d 359, 365-67 (D.1ZI. 2000); Wilson v. Amoco Corp, 989 F. Supp, 1159, 1175-77 (D. Wyo. 1998); City of Toledo v. Beazer Materials and Services, Inc., 833 F. Supp. 646, 655-656 (N.D. Ohio 1993); United States v. Power Engineering Co., 191 F.3d 1224, 1228 (10th Cir. 1999).. In addition, Abound Solar is liable for civil penalties as well as injunctive relief and attorney fees and costs. See 42 U.S.C. § 6972(a)(1)(A) and (B) and § 6972(e); Nashua Corp. v. Norton Co., 116 F. Supp. 2d 330, 357-359 (N.D.N.Y. 2000). Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 6 of 38 December 12, 2012 Page 5 For the reasons set forth above, Abound Solar is currently violating numerous standards, regulations, conditions, requirements, prohibitions, and/or orders which have become effective pursuant to the Resource Conservation and Recovery Act (RCRA), including without limitation State and federal regulations, because, inter alia, it has illegally released solid and hazardous waste at the Property and into the environment, because. Abound Solar has.failed and continues to fail to obtain the proper federal and state permits and approval for the disposal of hazardous waste at the Property and the closure of a facility that generated such hazardous waste located at the Property.. In addition, Abound Solar is liable for the correction of the solid waste and/or hazardous waste releases which may present an imminent and substantial endangerment. To the extent Abound Solar's activities on the Adjacent Property caused a discharge, dispersal, migration, release or escape of any contamination upon the land or structures at the Adjacent Property, this also constitutes a violation of many of the aforementioned regulations and Abound Solar is obligated to investigate and remediate any such contamination. CLAIMS This letter notifies Abound Solar of 9586 LLC's intent to commence a citizen suit after 90 days from the date of this letter in either the United States District Court for the District of Colorado or the Bankruptcy Court in Delaware pursuant to, inter edict, the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6972(a)(1)(A) and (B), against Abound Solar if Abound Solar does not reimburse 9586 LLC for its retnediation costs, including environmental investigation costs incurred to date, and agree to cover all future investigation and remediation costs that are reasonable and necessary to investigate, neutralize, remove, remediate (including necessary monitoring) and dispose of all contamination to the extent required by state and Federal law,including investigation and remediation at the Adjacent Property. 9586 LLC also has common law claims against Abound Solar for breach of contract, negligence, trespass, nuisance, strict liability for abnormally dangerous activities, and unjust enrichment, among other claims, and nothing contained herein is intended to waive or otherwise limit any rights, claims, defenses or causes of action available to 9586 LLC by contract, statute or in equity. All such rights, claims, defenses and/or causes of action are hereby expressly reserved. CONCLUSION 9586 LLC requests Abound Solar, at its expense, to investigate and remediate all contamination at the Property and the Adjacent Property, bring the Property into compliance, and close the Property in a safe manner to eliminate risk to human health or the environment. We ask that you notify Abound Solar's insurance carriers about our claims, especially Chubb who issued Abound Solar's Environmental Site Liability policy. We also ask Abound Solar to reimburse 9586 LLC for it expenses .and damages incurred as a result of the pollution issues. As you know, 9586 LLC's legal counsel is Berg Hill Greenleaf & Ruscitti LLP, 1712 Pearl Street, Boulder, CO 80302. You may call Maki Iatridis for these environmental matters, or Jason Pink or Giovanni Ruscitti at 303-402-1600. We appreciate the dialogue to date regarding possible solutions to these issues without resorting to litigation. 9586 LLC hopes to continue discussions in that vein,. however, this letter is submitted to preserve 9586 LLC's rights and all possible claims in the event that parties are unable to amicably resolve these issues. Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 7 of 38 December 12, 2112 Page 6 Pursuant to Section 9 of the lease, 9586 LLC also requests from Abound Solar and the Trustee copies of all documents related to environmental, health and safety matters at the Property. We also remind you that Section 9.2 of the Lease requires our consent to (1) settle any claims (such as any CDPHE or EPA claims) relating to Hazardous Materials and to (2) perform investigation and remediation of the Property. Jeffrey Win ert WWR Real Late Services, LLC Proprty Manager for 9586 LLC cc: U.S. Enviromnental Protection Agency U.S. Department of Justice Colorado Department of Public Health and Environment Scott Schultz, Colorado Department of Law FR Investments, LLC First Industrial, L.P. Brett A. Feinberg, Barack Farrazzano Kirschbaum & Nagelberg LLP Berg Hill Greenleaf Rc Ruscitti LLP Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 8 of 38 sz re 3 V no \\a 0§ 00 on co NI en ti grC) 78 o 2 :9 actelEiti7,0 co EXHIBIT 1 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 9 of 38 Advanced Chemical Transport Phase 1 Final Pass Decontamination and Clean-up Activities at Abound Solar Project Dates: 9/11/2012 - 9/20/12 Project Location: former site of Abound Solar, 95861-25 Frontage Road, Longmont, CO Report By: Adam Brandin Report Date: 9/21/2012 EXHIBIT 2 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 10 of 38 Summary As described in the letter agreement dated September 10, 2012, Advanced Chemical Transport (ACT) contracted for a final pass cleaning and decontamination of cadmium - contaminated manufacturing areas ("Regulated Areas" — RAs) at the Abound Solar manufacturing facility in Longmont, Colorado in order for personnel to safely enter these areas without the use of protective clothing or respiratory protection. Spot -Cleaning activities were conducted from September 12 — September 13 and again on September 18, 2012. The cleaning activities were focused on the sections of the RAs which reported high cadmium content from previous decontamination efforts. It has been determined that personnel entering the regulated area to evaluate and/or inspect equipment will have minimal cadmium exposures. Additional precautions, such as use of protective clothing and respiratory protection are not required for personnel to walk through the area to inspect and evaluate tools and equipment in the RAs, although additional precautions may be necessary for other tasks (such as tool dis-assembly). In addition, new work activities in the RAs, such as disassembly or tools or other tasks, could re -contaminate the area. If these (or similar) activities are conducted, the level of protective equipment will need to be re-evaluated. Contents Summary 1 Background 2 ACT Work Activities 2 Results of ACT Work Activities 2 Conclusions 4 Attachment 1 — Wipe Sample Laboratory Reports 5 Attachment 2 — Wipe Sample Results 6 Attachment 3 — Map of Regulated Areas, showing sample locations 6 Attachment 4 - Cadmium Orientation for Bidders Entering Regulated Areas 10 Page 1 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 11 of 38 Background Please refer to Phase 1 Summary ("First Report") submitted to Abound Solar September 3, 2012. ACT Work Activities ACT proposed a "final pass" of the Phase 1 decontamination to reduce removable surface contamination to an acceptably low level ("clearance level") — a target level of 3µg/100 cm2 on accessible floors, walls and tools in the RAs and associated areas. This target level was established to allow customers to inspect equipment for resale. To accomplish this goal, ACT mobilized a project team including a Senior Project Manager and Technician as well as necessary equipment and supplies. The general process to remove cadmium contamination was to spray accessible surfaces with decontamination agents and cleaning agents, such as "Hygenall" or Simple Green, agitate and scrub the surfaces using abrasive pads and then wipe them with clean cotton clothes. For this final pass, additional agitation to certain surfaces was created utilizing wire brushes in order to remove the embedded cadmium. All work activities in regulated areas were conducted using "Level C" personal protective equipment — disposable coveralls, shoe/boot covers, gloves, and full -face respirators. Dust -generating activities, such as dry sweeping, dry sanding of contaminated surfaces and similar activities, were prohibited and smoking, eating, applying cosmetics and all use of food or cosmetics was prohibited in Regulated areas. Potentially contaminated PPE was not worn outside of Regulated Areas, specific de -gowning procedures were followed when employee left RAs, as described in the "Cadmium Exposure Control and Compliance Program". All used PPE was either cleaned and decontaminated or disposed of at the job site. Results of ACT Work Activities Follow-up, "Third -pass" clean-up activities were conducted from September 12- September 13 and again on September 18, 2012. 2 ACT employees were used to conduct focused cleaning activities on areas which reported level of cadmium higher than the target level from previous cleaning passes. All areas were re -cleaned at least once using the procedures as detailed in the previously submitted Phase 1 Summary ("First Report"). Cleaning focused on floor -accessible areas and workers changed cloths more frequently and used greater quantities of the decontamination solution. In addition, all floors were cleaned using a stripping pad on a commercial buffer and wire brushes were utilized, followed by wiping with clean cloths. Once cleaning activities were completed in each area, wipe samples were collected in the same general area as the previous samples, using the same sampling procedure and the same laboratory for analysis. Page 2 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 12 of 38 Wipe test clearance samples (100 cm2 area) were collected using Brookhaven National Laboratories (BNL) sampling procedures (BNL Surface Wipe Sampling Procedure, document #IH75190). Samples were submitted to an accredited laboratory (Torrent Laboratory, Inc., ELAP #1991) on Friday, September 14, 2012 and Tuesday September 18, 2012. These sampling results showed that the decontamination achieved average levels below the target cleaning goal of 3 Rg/100 cm2. Table 1 (below) shows the average results of wipe tests on floors, walls and tools in East and West RAs as well as other areas. Wipe Test laboratory reports are included as Attachment 1, a summary of results is included as Attachment 2 and a map of the Regulated Areas, showing sample locations, is included as Attachment 3. Summary of Average Wipe Test Results RA Type Avg. Results - Initial Wipes (pg/100 cm2) Avg. Results - second Pass Wipes (pg/100 cm2) Avg. Results - Third Pass Wipes (pg/100 cm2) # follow - up Samples East Floor 139.58 27.95 1.41 11 Pass -Through Floor 430.00 16.73 2.05 4 Pellet Room Floor 720.00 10.00 <0.05 1 West Floor 437.69 5.78 1.84 9 East Tool 13.27 1.07 <0.05 1 Pellet Room Tool 690.00 16.00 <0.05 1 West Tool 125.91 5.32 2.57 4 East Wall 12.40 0.63 Not retaken 0 Pass -Through Wall 2.70 2.40 Not retaken 0 Pellet Room Wall 200.00 7.00 1.6 1 West Wall 186.67 5.20 2.3 2 Average wipe test results in most areas were significantly above the target clearance level of 3µg/100cm2 after 1st -pass cleaning (see Table 1). Contamination was heaviest on floors with average levels in the areas sampled ranging from 139 — 720 pg/100cm2. Contamination on tools ranged from 13.27 — 125.91 pg/100cm2, excluding the heavily contaminated Pellet Room and contamination on walls ranged from 2.7 -200 µg/100cm2 with the highest observed contamination again in the Pellet Room. As shown in Chart 1 (below), levels of contamination were reduced by 80% — 99% after 2"d - pass cleaning activities (except for the Pass -Through area, which had very low contamination to begin with). After 2"d -pass cleaning, average floor contamination ranged Page 3 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 13 of 38 from 5.78 — 27.95 µg/100cm2, average tool contamination ranged froml — 16 µg/100cm2 and average wall contamination ranged from 0.63 — 7µg/100cm2. These levels approach (and in some cases are below) the target value of 3 µg/100cm2. After the third and final pass cleaning, all average levels of contamination were below the target value of 3 µg/100cm2. Conclusions Personnel can be exposed to cadmium by breathing cadmium -containing dust or by ingesting cadmium contaminated materials; however cadmium is much more dangerous by inhalation than by ingestion. After cleaning by ACT, airborne cadmium levels in the RAs are significantly below applicable airborne exposure limits and surface contamination is sufficiently low that incidental activities, such as walking through the facility for tool inspection, are not likely to re -suspend significant amount of dust. ACT activities did remove surface contamination which is documented by the analytical reports. Use of respiratory protection and protective clothing are not required for entry into Regulated Areas to examine and inspect equipment however, to control potential exposures from that the low level of surface contamination that remain in the RAs, the following procedures should be adopted for personnel entering Regulated Areas: Basic Practices for entry: • Personnel should enter through the gowning areas • Food, drink, cosmetics and tobacco should not be allowed into the RAs • Cell phone use should not be allowed in the RAs Practices for exiting: • Personnel should exit through the de -gowning areas • Personnel should wash hands before exiting gowning area Note that the phase 1 cleaning activities only addressed accessible areas — areas that could easily be reached by personnel walking through the facility and handling exposed areas of process tools. If personnel climb on the top of tools, crawl under tools or move in to other areas with limited accessibility, additional precautions may be required. Also, if new work activities are conducted in the RA that release contamination, for example if process tools are opened (releasing internal contamination) or if tools are moved (exposing previously inaccessible areas), respiratory protection requirements will need to be re-evaluated. Attachment 4 (below) includes basic information on cadmium exposures as well as the protective measures recommended in this report that can be used for this purpose. Page 4 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 14 of 38 Attachment 1 — Wipe Sample Laboratory Reports Page 5 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 15 of 38 Attachment 2 — Wipe Sample Results Sample # Type RA Location Initial Results (µg/100cm2) Second pass results (µg/100cm2 Third pass results (µg/100cm2 34 Floor East Isle F, Middle 13 9.2 <0.05 37 Floor East Isle G, Middle 250 33 < 0.05 40 Floor East Isle H, Middle 98 11 3.1 43 Floor East Isle I, Middle 230 76 2.1 46 Floor East Isle J, Middle 55 22 1.1 49 Floor East Isle H, South End 220 44 5.2 50 Floor East Isle J, South End 140 40 < 0.05 52 Floor East South East 200 17 1.9 53 Floor East East Mid -South 130 38 < 0.05 55 Floor East East Middle 160 26 < 0.05 56 Floor East Pass through to gowning room 79 1.2 Not retaken 57 Floor East South 100 18 2.1 East RA Floor Average 139.58 27.95 1.41 35 Tool East Isle F, Middle 2.7 <0.05 Not retaken 38 Tool East Isle G, Middle 7.5 < 0.05 Not retaken 39 Tool East Isle G, Middle 12 <0.05 Not retaken 41 Tool East Isle H, Middle 5.4 < 0.05 Not retaken 42 Tool East Isle H, Middle 6.3 2.5 Not retaken 44 Tool East Isle I, Middle 5.1 1.1 Not retaken 45 Tool East Isle I, Middle 42 1.8 Not retaken 47 Tool East Isle J, Middle 5.7 <0.05 Not retaken 51 Tool East South East 34 5 < 0.05 58 Tool East South 12 < 0.05 Not retaken Tool East RA Tool Average 13.27 1.07 < 0.05 36 Wall East Isle F, Middle 3.1 <0.05 Not retaken Page 6 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 16 of 38 Sample it Type RA Location Initial Results (µg/100cm2) Second pass results (µg/100cm2 Third pass results (µg/100cm2 48 Wall East Isle J, Middle 30 1.8 Not retaken 54 Wall East East Mid -South 4.1 < 0.05 Not retaken East RA Wall Average 12.40 0.63 Not retaken 31 Floor Hall room Hall room, Middle 220 4.9 3.1 32 Floor Pass through Parts room, Middle 1100 19 1.4 33 Floor Pass through Pathway, Middle 240 16 3.7 59 Floor Pass through Pass through, South East 160 27 <0.05 Pass -Through Floor Average 430 16.725 2.05 60 Wall Pass through Pass through, South East 2.7 2.4 Not retaken Pass -Through Wal Average 2.7 2.4 Not retaken 28 Floor Pellet Room South, Middle 720 10 < 0.05 Pellet Room Floor Average 720 10 <0.05 30 Tool Pellet Room South, Middle 690 16 <0.05 Pellet Room Tool Average 690 16 <0.05 29 Wall Pellet Room South, Middle 200 7 1.6 Pellet Room Wall Average 200 7 1.6 2 Floor West Janitor closet, Southwest 1400 Not retaken Not retaken 5 Floor West Isle A, North 380 3.5 <0.05 8 Floor West Isle A, South 220 14 1.7 9 Floor West Isle B, North 370 5.1 <0.05 12 Floor West Isle B, South 390 4.6 3.0 Page 7 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 17 of 38 Sample # Type RA Location Initial Results (µg/100cm2) Second pass results (µg/100cm2 Third pass results (µg/100cm2 13 Floor West Isle C, North 160 4.2 2.4 16 Floor West Isle C, South 580 5.2 1.2 17 Floor West Isle D, North 470 2.7 Not retaken 20 Floor West Isle D, South 170 5.6 <0.05 21 Floor West Isle E, North 430 6.6 <0.05 24 Floor West Isle E, South 240 13 <0.05 25 Floor West Isle C, South 640 1.9 Not retaken 26 Floor West South West 240 3 Not retaken West RA Floor Average 437.69 5.78 1.84 1 Tool West South West 180 19 2.8 4 Tool West South West 20 9.9 < 0.05 7 Tool West Isle A, Middle 240 1.6 Not retaken 10 Tool West Isle B, Middle 130 9 2.6 11 Tool West Isle B, Middle 290 8.4 2.3 14 Tool West Isle C, Middle 57 1.6 Not retaken 15 Tool West Isle C, Middle 38 1.9 Not retaken 18 Tool West Isle D, Middle 180 < 0.05 Not retaken 19 Tool West Isle D, Middle 180 2.3 Not retaken 23 Tool West Isle E, Middle 51 1.5 Not retaken 27 Tool West South West 19 3.3 Not retaken West RA Tool Average 125.91 5.32 2.57 3 Wall West South West 140 Not retaken Not retaken 6 Wall West Isle A, North 200 5.8 1.4 22 Wall West Isle E, Middle 220 4.6 3.2 West RA Wall Average 186.67 5.20 2.3 See Attachment 4, Map of Regulated Areas, for wipe sample locations • The analytical detection limit (0.05 pg/100cm2) was used fir calculations where sample results were less than the limit of detection Page 8 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 18 of 38 Attachment 3 — Map of Regulated Areas, showing sample locations Page 9 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 19 of 38 Attachment 4 - Cadmium Orientation for Bidders Entering Regulated Areas Manufacturing activities in the "Regulated Areas" at Abound Solar created cadmium contamination on surfaces of tools, walls, ceilings, etc. Cadmium is a hazardous material and over -exposure to cadmium can have adverse health effects. Since manufacturing activities have ceased, extensive cleaning and decontamination has taken place, wipe sample results show minimal surface contamination and air sample results show potential inhalation exposures for personnel entering these areas would be less than regulatory limits. While there is minimal risk for personnel entering the RA to look at or inspect equipment, basic precautions should still be followed: Basic Practices for entry into Regulated Areas: • Personnel should enter through the gowning areas • Food, drink, cosmetics and tobacco should not be allowed into the RAs • Cell phone use should not be allowed in the RAs Practices for exiting Regulated Areas: • Personnel should exit through the de -gowning areas • Personnel should wash hands before exiting gowning area Additional precautions may be required to climb on the top of tools, crawl under tools or move in to other areas with limited accessibility. If new activities are conducted that release contamination, respiratory protection requirements will need to be re-evaluated. Information on Cadmium and Cadmium Exposures: • Cadmium can affect your health if you inhale it or if you swallow it. • Cadmium is much more dangerous by inhalation than by ingestion. • Severe exposure may occur before symptoms appear. Early symptoms may include mild irritation of the upper respiratory tract, a sensation of constriction of the throat, a metallic taste and/or a cough. • Repeated or long-term exposure to cadmium, even at relatively low concentrations, may result in kidney damage and an increased risk of specific cancers. Page 10 of 10 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 20 of 38 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 21 of 38 -Torrent LAaO1i.PT©RV, INC. Advanced Chemical Transport (Sunnyvale) 1210 Elko Dr. Sunnyvale, California 94089 Tel: 408 548 5050 Fax: 408 548 5052 RE: Abound Solar Work Order No.: 1210191 Dear Carolyn Beoris: Torrent Laboratory, Inc. received 19 sample(s) on October 22, 2012 for the analyses presented in the following Report. All data for associated QC met EPA or laboratory specification(s) except where noted in the case narrative. Torrent Laboratory, Inc. is certified by the State of California, ELAP #1991. If you have any questions regarding these test results, please feel free to contact the Project Management Team at (408)263-5258; ext 204. October 29, 2012 Patti Sandrock QA Officer Date 483 Sinclair Frontage Fick, Milpitas, CA 95035 P tag. 4OB. 253_5258 I €ax: 405.263.8293 ( www.torrent]ab.cam Total Page Count: 18 EXHIBIT 3 Page 1 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 22 of 38 Torrent LA5CT+,ATORV, IM1:O. Date: 10/29/2012 Client: Advanced Chemical Transport (Sunnyvale) Project: Abound Solar Work Order: 1210191 CASE NARRATIVE No issues encountered with the receiving, preparation, analysis or reporting of the results associated with this work order. Unless otherwise indicated in the following narrative, no results have been method and/or field blank corrected. Reported results relate only to the items/samples tested by the laboratory. 483 Sinclair Frontage Set, Milpitas, CA 98035 I WI' 438.263.5258 I fax:408.263.8293 I wwiv:torrantlab.cam Total Page Count 18 Page 2 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 23 of 38 r _ nt LAsOsAtmre. IN�` Sample Result Summary Report prepared for: Carolyn Beoris Date Received: 10/22/12 Advanced Chemical Transport (Sunnyvale) Date Reported: 10/29/12 FC Floor 1 1210191-001 Parameters: Cadmium Analysis OF MDL PQL Results Unit Method SW6010B 10 0.5 10 29000 ug/Wipe FC Floor 2 1210191-002 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 10 0.5 10 11000 ug/Wipe FC Floor 3 1210191-003 Parameters: Cadmium Analysis DF MDL PSG L Results Unit Method SW6010B 50 3 60 110000 ug/Wipe FC Wall 1 1210191-004 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 1 0.05 1 93 ug/Wipe FC Wall 2 1210191-005 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 1 0.05 1 2200 ug/Wipe Fume Hood 1210191-006 Parameters: Cadmium Analysis DF MDL PSG L_ Results Unit Method SW6010B 10 0.5 10 14000 ug/Wipe PT 1 -Interior Air Lock 1210191-007 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 1 0.05 1 2300 ug/Wipe 483 Sinc,air Frontage Rd-, Milpitas, CA 95035 s rat' 40S8. 253.5258 I fax. 408.253.8293 I www-torrantiab-corn Total Page Count: 18 Page 3 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 24 of 38 aTorrent * IaI Arollr, IpC. Sample Result Summary Report prepared for: Carolyn Beads Date Received: 10/22/12 Advanced Chemical Transport (Sunnyvale) Date Reported: 10/29/12 PT 2 1210191-008 Parameters: Cadmium Ana sis DF MDL IQL_ Results Unit Method SW6010B 1 0.05 1 1500 ug/Wipe PT 3 1210191-009 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 10 0.5 10 5700 ug/Wpe Exterior Floor 1210191-010 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 1 0.05 1 380 ug/Wipe Carpet 1210191-011 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 1 0.05 1 69 ugWpe Line 324 P 5.579 1210191-012 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 50 3 60 140000 ug/Wpe Line 324 P 9-583 1210191-013 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 50 3 60 85000 ugnNpe Line 324 P 15-589 1210191-014 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW60106 50 3 60 180000 ug/Wipe 483 Sinclair Frontage rid-, Milpitas, CA 95035 Y rat 408.253.5258 I tax 408263:8293 I wvww.torrontlab.cam Total Page Count: 18 Page 4 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 25 of 38 orrent ��. LAaildiArarib it.ac Sample Result Summary Report prepared for: Carolyn Beoris Date Received: 10/22/12 Advanced Chemical Transport (Sunnyvale) Date Reported: 10/29/12 3 CdS 124 1210191-015 Parameters: Cadmium Analysis DF MDL FSL. Results Unit Method SW6010B 50 3 60 200000 ug/Wipe 8 CdCl2-4 124 1210191-016 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 50 3 60 120000 ugA/Vipe Old Line 13-124 1210191-017 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 10 0.5 10 39000 ugpe M Bridge 1 21 01 91-01 8 Parameters: Cadmium Analysis DF MDL PQL Results Unit Method SW6010B 10 0.5 10 20000 ug/Wipe Final Tool 1210191-019 Parameters: Cadmium Analysis OF MDL P L Results Unit Method SW6010B 10 0.5 10 33000 ug/Wipe 483 Sinclair Frontage Rte.,, Milpitas, CA 95035 ; re,' 409 263 5258 I fox. 408.263.8293 I wwwctorrentla4-corn Total Page Count: 18 Page 5 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 26 of 38 Torrent LA ,0 ATOV, INC, SAMPLE RESULTS Report prepared for: Carolyn Beoris Advanced Chemical Transport (Sunnyvale) Date Received: 10/22/12 Date Reported: 10/29/12 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: FC Floor 1 Abound Solar 10/19/12 / 11:30 Abound Solar Lab Sample ID: Sample Matrix: 1210191-001A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 29000 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: FC Floor 2 Abound Solar 10/19/12 / 11:31 Abound Solar Lab Sample ID: Sample Matrix: 1210191-002A Ghost Wpe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium S W6010 B 10/26/12 10/27/12 10 0.5 10 11000 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: FC Floor 3 Abound Solar 10/19/12 / 11:32 Abound Solar Lab Sample ID: Sample Matrix: 1210191-003A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 50 3 60 110000 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: FC Wall 1 Abound Solar 10/19/12 / 11:33 Abound Solar Lab Sample ID: Sample Matrix: 1210191-004A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 1 93 ugANipe 412249 6979 483 Sinclair Frontage Rd-, Milpitas, CA 96035 I W,. 469.269_5258 I M9'409.263.9203 www.torrentiab.com Total Page Count: 18 Page 6 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 27 of 38 _'Torrent LAaOAATOUV. NC, SAMPLE RESULTS Report prepared for: Carolyn Beoris Advanced Chemical Transport (Sunnyvale) Date Received: 10/22/12 Date Reported: 10/29/12 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: FC Wall 2 Abound Solar 10/19/12 / 11:34 Abound Solar Lab Sample ID: Sample Matrix: 1210191-005A Ghost Wpe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 1 2200 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Fume Hood Abound Solar 10/19/12 /11:35 Abound Solar Lab Sample ID: Sample Matrix: 1210191-006A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 14000 ug/VVipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: PT 1 -Interior Air Lock Abound Solar 10/19/12 /11:36 Abound Solar Lab Sample ID: Sample Matrix: 1210191-007A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 1 2300 ugWpe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: PT 2 Abound Solar 10/19/12 / 11:37 Abound Solar Lab Sample ID: Sample Matrix: 1210191-008A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 1500 ug/VVipe 412249 6979 483 Sinclair Frontage Rd., Milpitas, CA 95935 "„ tei. 408.263.5258 I fax 408.-263.8293 I www.torrentrzb.com Total Page Count: 18 Page 7 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 28 of 38 LAsd}fA'ra,RY, INC. SAMPLE RESULTS Report prepared for: Carolyn Beoris Advanced Chemical Transport (Sunnyvale) Date Received: 10/22/12 Date Reported: 10/29/12 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: PT 3 Abound Solar 10/19/12 / 11:38 Abound Solar Lab Sample ID: Sample Matrix: 1210191-009A Ghost Wpe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 5700 ug/Wpe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Exterior Floor Abound Solar 10/19/12 / 11:39 Abound Solar Lab Sample ID: Sample Matrix: 1210191-010A Ghost Wpe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 380 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Carpet Abound Solar 10/19/12 / 11:40 Abound Solar Lab Sample ID: Sample Matrix: 1210191-011A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 1 0.05 1 69 ugM/ipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Line 324 P 5-579 Abound Solar 10/19/12 / 13:25 Abound Solar Lab Sample ID: Sample Matrix: 1210191-012A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 50 3 60 140000 ug/Wipe 412249 6979 883 Sinclair Frontage Rd-, Milpitas, CA 55035 I rot: 4©8.263.5258 I fax: 408.263.8293 www.torrenttab-con, Total Page Count: 18 Page 8 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 29 of 38 Torrent 4A5CaATnR'Y, SAMPLE RESULTS Report prepared for: Carolyn Beoris Advanced Chemical Transport (Sunnyvale) Date Received: 10/22/12 Date Reported: 10/29/12 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Line 324 P 9-583 Abound Solar 10/19/12 / 13:30 Abound Solar Lab Sample ID: Sample Matrix: 1210191-013A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 50 3 60 85000 ugl wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Line 324 P 15-589 Abound Solar 10/19/12 / 13:35 Abound Solar Lab Sample ID: Sample Matrix: 1210191-014A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 50 3 60 180000 ug/Wipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number 3 CdS 124 Abound Solar 10/19/12 / 13:40 Abound Solar Lab Sample ID: Sample Matrix: 1210191-015A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch aamium 0106 10/26/12 10/27/12 50 3 60 200000 ugiWpe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: 8 CdCl2-4 124 Abound Solar 10/19/12 / 13:45 Abound Solar Lab Sample ID: Sample Matrix: 1210191-016A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch admium 12 10/27/12 50 3 60 120000 ug/Wipe 412249 6979 4SS Sinclair Frontage Rd, Milpitas, CA 55035 I t&.' 4O8.263.5258 I fee' 4tae. 263.8293 I w+vtr.torrantlab.com Total Page Count: 18 Page 9 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 30 of 38 To r rent lASGR,ATnn'd, INf C. SAMPLE RESULTS Report prepared for: Carolyn Beoris Advanced Chemical Transport (Sunnyvale) Date Received: 10/22/12 Date Reported: 10/29/12 Client Sample ID: Project Name/Location: Project Number: DatelTime Sampled: Tag Number: Old Line 13-124 Abound Solar 10/19/12 / 14:00 Abound Solar Lab Sample ID: 1210191-017A Sample Matrix: Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 39000 ug/l/Vipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: M Bridge Abound Solar 10/19/12 / 14:05 Abound Solar Lab Sample ID: Sample Matrix: 1210191-018A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 20000 ugM/ipe 412249 6979 Client Sample ID: Project Name/Location: Project Number: Date/Time Sampled: Tag Number: Final Tool Abound Solar 10/19/12 / 14:10 Abound Solar Lab Sample ID: Sample Matrix: 1210191-019A Ghost Wipe Analysis Prep Date DF MDL PQL Results Lab Unit Analytical Prep Parameters: Method Date Analyzed Qualifier Batch Batch Cadmium SW6010B 10/26/12 10/27/12 10 0.5 10 33000 ug/Wipe 412249 6979 483 Sinclair Frontage . Hit, Moieties, CA 95035 d rai; 4458.263.5255 I tax.408.253.8233 I www:totrentlaO:com Total Page Count: 18 Page 10 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 31 of 38 k r ent LABORATORY, U C.. MB Summary Report Work Order: Matrix: Units: 1210191 Wpe ug/Wipe Prep Method: 3010B_Wipe Prep Date: 10/26/12 Prep Batch: 6979 Analytical SW6010B Analyzed Date: 10/27/12 Analytical 412249 Method: Batch: Method Lab Parameters MDL PQL Blank Qualifier Conc. Cadmium 0.05 1 0.48 483 Sinclair Frontage Eid-, Milpitas, CA 95035 I ref' 446.258.5258 fax: 408.263.8293 www.torrentlab.com Total Page Count: 18 Page 11 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 32 of 38 LABORATORY, INC. LCS/LCSD Summary Report Raw values are used in quality control assessment Work Order: Matrix: Units: 1210191 Wipe ug/Wipe Prep Method: 3010B_Wipe Prep Date: 10/26/12 Analytical SW6010B Method: Analyzed Date: 10/27/12 Prep Batch: 6979 Analytical 412249 Batch: Method Spike LCS % LCSD % LCSILCSD % Parameters MDL PQL Blank Conc. Recovery Recovery % RPD Recovery % RPD Lab Conc. Limits Limits Qualifier Cadmium 0.05 1 0.48 50 97.3 108 10.3 80-120 20 453 Sinclair Frontage Rd., Milpitas5, 0.4 96035 S to** 405.263.5258 I Fax_ 409.263.8293 I www_torrentlab_com Total Page Count 18 Page 12 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 33 of 38 Torrent t LA8'.]fi ATent, INC, Laboratory Qualifiers and Definitions DEFINITIONS: Accuracy/Bias (% Recovery) - The closeness of agreement between an observed value and an accepted reference value. Blank (Method/Preparation Blank) -MB/PB - An analyte-free matrix to which all reagents are added in the same volumes/proportions as used in sample processing. The method blank is used to document contamination resulting from the analytical process. Duplicate - a field sample and/or laboratory QC sample prepared in duplicate following all of the same processes and procedures used on the original sample (sample duplicate, LCSD, MSD) Laboratory Control Sample (LCS ad LCSD) - A known matrix spiked with compounds representative of the target analyte(s). This is used to document laboratory performance. Matrix - the component or substrate that contains the analyte of interest (e.g., - groundwater, sediment, soil, waste water, etc) Matrix Spike (MS/MSD) - Client sample spiked with identical concentrations of target analyte (s). The spiking occurs prior to the sample preparation and analysis. They are used to document the precision and bias of a method in a given sample matrix. Method Detection Limit (MDL) - the minimum concentration of a substance that can be measured and reported with a 99% confidence that the analyte concentration is greater than zero Practical Quantitation Limit (PQL) - a laboratory determined value at 2 to 5 times above the MDL that can be reproduced in a manner that results in a 99% confidence level that the result is both accurate and precise. PQLs reflect all preparation factors and/or dilution factors that have been applied to the sample during the preparation and/or analytical processes. Precision (%RPD) - The agreement among a set of replicate/duplicate measurements without regard to known value of the replicates Surrogate (S) or (Surr) - An organic compound which is similar to the target analyte(s) in chemical composition and behavior in the analytical process, but which is not normally found in environmental samples. Surrogates are used in most organic analysis to demonstrate matrix compatibility with the chosen method of analysis Tentatively Identified Compound (TIC) - A compound not contained within the analytical calibration standards but present in the GCMS library of defined compounds. When the library is searched for an unknown compound, it can frequently give a tentative identification to the compound based on retention time and primary and secondary ion match. TICs are reported as estimates and are candidates for further investigation. Units: the unit of measure used to express the reported result - mg/L and mg/Kg (equivalent to PPM - parts per million in liquid and solid), ug/L and ug/Kg (equivalent to PPB - parts per billion in liquid and solid), ug/m3, mg.m3, ppbv and ppmv (all units of measure for reporting concentrations in air), % equivalent to 10000 ppm or 1,000,000 ppb), ug/Wipe ( concentration found on the surface of a single Wipe usually taken over a 100cm2 surface) LABORATORY QUALIFIERS: B - Indicates when the anlayte is found in the associated method or preparation blank D - Surrogate is not recoverable due to the necessary dilution of the sample E - Indicates the reportable value is outside of the calibration range of the instrument but within the linear range of the instrument (unless otherwise noted) Values reported with an E qualifier should be considered as estimated. H- Indicates that the recommended holding time for the analyte or compound has been exceeded J- Indicates a value between the method MDL and PQL and that the reported concentration should be considered as estimated rather the quantitative NA - Not Analyzed N/A - Not Applicable NR - Not recoverable - a matrix spike concentration is not recoverable due to a concentration within the original sample that is greater than four times the spike concentration added R- The % RPD between a duplicate set of samples is outside of the absolute values established by laboratory control charts S- Spike recovery is outside of established method and/or laboratory control limits. Further explanation of the use of this qualifier should be included within a case narrative X -Used to indicate that a value based on pattern identification is within the pattern range but not typical of the pattern found in standards. Further explanation mayor may not be provided within the sample footnote and/or the case narrative. 483 Sinclair Frontage rice., Milpitas. CA 95035 Y WY: 4'3S.253.5258 I tat: 4OS.263.9293 I www.torrentlab.com Total Page Count: 18 Page 13 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 34 of 38 o rre L,AS t5RAT ORY. Sample Receipt Checklist Client Name: Advanced Chemical Transport (Sunnyvale) Date and Time Received: 10/22/2012 11:55 Project Name: Abound Solar Received By: l Work Order No.: 1210191 Physically Logged By: Lig Checklist Completed By: gg Carrier Name: Client Drop Off Chain of Custody (COC) Information Chain of custody present? Yes Chain of custody signed when relinquished and received? Yes Chain of custody agrees with sample labels? Yes Custody seals intact on sample bottles? Not Present Sample Receipt Information Custody seals intact on shipping container/cooler? Shipping Container/Cooler In Good Condition? Samples in proper container/bottle? Samples containers intact? Sufficient sample volume for indicated test? Not Present Yes Yes Yes Yes Sample Preservation and Hold Time (HT) Information All samples received within holding time? Yes Container/Temp Blank temperature in compliance? No Temperature: 18 °C Water -VOA vials have zero headspace? No VOA vials submitted Water -pH acceptable upon receipt? N/A pH Checked by: n/a pH Adjusted by: n/a 483 Sinclair Frontage Rd_, Milpitas, CA 95035 3 M0'4O5.283,5258 I tax. 408.263.8293 I www.torrt ntiab.cam Total Page Count 18 Page 14 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 35 of 38 a_ 'rr. �LABnanTOFY, INC. Login Summary Report Client ID: TL5111 Advanced Chemical Transport (Sunnyvale) Project Name: Abound Solar Project # : Report Due Date: 10/29/2012 Comments: Test for Cadmium for all 19 samples. Work Order # : 1210191 QC Level: TAT Requested: Date Received: Time Received: 5+ day:0 10/22/2012 11:55 WO Sample ID Client Collection Matrix Scheduled Sample Test Requested Sample ID Date/Time Disposal On Hold On Hold Tests 1210191-001A FC Floor 10/19/12 11:30 Wipe Sample Note: Test for Cadmium for all 19 samples. 1210191-002A FC Floor2 10/19/12 11:31 Wipe 1210191-003A FC Floor 3 10/19/12 11:32 Wipe 1210191-004A FC Wall 1 10/19/12 11:33 Wipe 1210191-005A FC Wall 2 10/19/12 11:34 Wipe 1210191-006A Fume Hood 10/19/12 11:35 Wipe 1210191-007A PT 1 -Interior Air Lock 10/19/12 11:36 Wipe 1210191-008A PT 2 10/19/12 11:37 Wipe 1210191-009A PT 3 10/19/12 11:38 Wipe 1210191-010A Exterior Floor 10/19/12 11:39 Wipe 1210191-011A Carpet 10/19/12 11:40 Wipe 1210191-012A Line 324 P 5-579 10/19/12 13:25 Wipe 1210191-013A Line 324 P 9-583 10/19/12 13:30 Wipe 1210191-014A Line 324 P 15-589 10/19/12 13:35 Wipe 1210191-015A 3 CdS 124 10/19/12 13:40 Wipe 1210191-016A 8 CdCl2-4 124 10/19/12 13:45 Wipe 1210191-017A Old Line 13-124 10/19/12 14:00 Wipe 1210191-018A M Bridge 10/19/12 14:05 Wipe Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 Wipe_6010LUFT5 ASS Sinc¢air Frontage Rd_, Melpitas, CA. 95035 ! ter:4{10.263.525S I tat: 448.263..8293. I www.torrentla6:corn Subbed Total Page Count: 18 Page 15 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 36 of 38 Torrent LAa nn ToRY. ive. Login Summary Report Client ID: TL5111 Advanced Chemical Transport (Sunnyvale) Project Name: Abound Solar Project # : Report Due Date: 10/29/2012 Comments: Test for Cadmium for all 19 samples. Work Order # : 1210191 QC Level: TAT Requested: 5+ day:0 Date Received: 10/22/2012 Time Received: 11:55 WO Sample ID Client Sample ID 1210191-019A Final Tool Collection Matrix Scheduled Sample Test Requested Date/Time Disposal On Hold On Hold Tests Wipe_6010LUFT5 10/19/12 14:10 Wipe Wipe_6010LUFT5 483 5inclar Frontage Fla., Milpitas, CA 95035 5 re-x.1.4O5.253 .5258 l tau: 498.263.8293 I wwwaorrentlab.cpm Subbed Total Page Count: 18 Page 16 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 37 of 38 LTorrent LA9t7 i{Arolr-.f, INC. Torrent LABORATORY, lNC. 483 Sinclair Frontage Road Milpitas, CA 95035 Phone: 408.263.5258 FAX: 408.263.8293 wv w.tcrrentlab.LOm CHAIN OF CUSTODY • NOTE: SHADED AREAS ARE FOR TORRENT LAB USE ONLY • j LAB WORK ORDER NO Company Name: 41 /, ap G � Q Food LI Spacial Location of Sampling: SA &O Address: IN 6�# 15Ive- Purpose: wT CeLLIKS P/- 1M City: -gittiVIVAte i State: Zip Code: ? i 97 Special Instructions / Comments: Telephone: 4'c g „NI as -6 FAX: l c1,18 f--2- REPORT TO: e8apcl g--ip SAMPLER: 0 Ta`'ivglN P.O. it: EMAIL: TURNAROUND TIME: / SAMPLE TYPE: LI 10 Nei( Days Q 4 Work Days Q 1 Work Day Q Stan Weer Q Air Li WasteL� l'WorkDays Q 3VtakDays El Noon - Nx.Day Ground Waie OG�.er LIt GroundWa'er VI 5'Wcrk Days 0 2 Work (lays Li 2 -Slicers LI Scii REPORT FORMAT: Q DC Level IV LIEN Excel 1 EDD LAB ID CANISTER LD. CLIENT'S SAMPLE I.D. DATE / TIME MATRIX SAMPLED # OF CONT CONT TYPE Q1 ANALYSIS REQUESTED REMARKS 061 0038 054 :. ra {(O0r.2 Fa amp- 3 16�a/t2 Ifs �1y� isjfg112 �fy wi fe, 1 to ji'y1 Z fi 'tviPe, I re viku,2 o frf f (7) k/ip4, tJM % O 002,1(4 A- NOV 0o7/� rj-iitraigifte, taj(9jz-43 oceri Piz PT3 10/i9JR.t p.e., I P clog E nv-10/NR-Et'Y wfp e 964 I 1'1 P 1 R 'shed By. "i'is t Print: . ,, `Jl"o Dial 7`7Jt j l z_ Tim',' , S S Received By: Pri Date: 2 1� Time: 1: �7 #P 2 Relinquished By: Print: Date: Time: Received By: Prin Date: Date: Time: Were Samples Received in Good Condition? es Q NO Samples an Ice? Q Yes D NOr Method of Shipment NOTE: Sarrples )are discarded by the laboratory 30 days from date of receipt unless other arrange )meats are mad_ e. Log In By: Date. /13 Z 2-'1 - I Log In Reviewed By: Sampe seals Intact' Yes Q NO alCl/A Temp—l� °C--! Page I )of Date: 483 Sinclair Frontage Bd., Milpitas, CA 95035 6 rar:4OB.263.5258 I fax: 408-263-9293 I www-torrentfab.com TORRENT !AB Total Page Count: 18 Page 17 of 18 Case 12-11974-PJW Doc 289-4 Filed 07/26/13 Page 38 of 38 rrent LA"0,9AToar, i:ac. Torrent LABORATORY. INC. LABORATORY. INC. 483 Sinclair Frontage Road Milpitas, CA 95035 Phone: 408.263.5258 FAX: 408.263.8293 www.torrentlab.com CHAIN OF CUSTODY 1. NOTE: SHADED AREAS 'ARE..FO iTORRENT LAB USE ONLY LAB WORK ORDER NO 1lot 1 Company Name: Af) `f J f) l I, e4v fovrot'�t Q Env.0 Ili Q Food Q special ' I Location ofSampling: , 13jrUKCI g^�t v ftJ Address: 1� U y 6� D p f v e F'4 Purpose: POISE feiTl'rVw h/y. 4 wI'i 6 ptrCi uA City: se�VNi� State: ell Zip Code: cycbgJ Special Instructions / Comments: Telephone: qD s1co so FAX: IR) D J tO ca c2_ REPORT TO: `. I /A.,Q,Q4 Q AMPLER: P, �{a� vrI'- cwREPORTFORMAT: P.O.#: EMAIL: TURNAROUND TIME: 0icWarkDays D4'WcrkBays La1WorkDay LI 7 Work Days 0 3 Wcri Days Q Noon - Nr Day Iciti 5 Work Days 02WcrtDays Q2-BHo--rs SAMPLE TYPE: L.rSlam 'Na:er QAir Waste Water 0 Olive 1=1,--, La GroundWa:e• QSa1 QQCLevel IV I EDF r-� L.' Excel/EDO ri, 4 i ee ANALYSIS REQUESTED LAB ID AN[5TER CANISTER. ID CLIENT'S SAMPLE I.D.DATE 1 TIME SAMPLED SAMPLED MATRIX # OF CONT COtdT TYPE t�(9 Quin _ COPUF 101110 apt 1 p X 4 '� l' 011532-11Pc-571tgiiilz- I w'ip4 P INC 379 PI- 583 Ld f Ij(Z I mPe , x, _ , o,, 4A = 1/46PK 32, - 5� tdl{q({2 ( wrie C Cii ! = 3 COS i'z - !o jtg1i2 y' 'let 4 F (% i 1614 : �coccz'� lick to 4 1{a�% � wire— � I � � Y. �r o�. _ jA 6V -4D cr Z (d/I1(IZ to -p-2- 7 i otgA pt vAL t iciii2 t i,/,,e.- e ReEln ed By: Print Date/1 id Time:, Sr Received By: ( Pri • ' Date: Time: Relinquished By: 2 Print: Date: Time: Received By: Prin • J Date: Time: NOTE: Samples re discarded the laboratory 30 days from date of receipt unless other gran q ants are made. ITemp °C r... � � —..-..._�,.._ �Page t )` _ 2 Log In By: �7D Date: /4/22//7 Log In Reviewed By: — Date:- Were Samples Received in Good Condition? Yes Q NO Samples on ice? LI Yes Q NO Method of Shipment Sample seals intact? Q Yes Q NO 'NIA 483 .eiireiJair Frontage F 5_, Milpitas, CA 95035 i ref: 408.263.5258 I tax: 4108.263.^0293 I vnnvw.tarrerntiab-wrn TORRENT LAB Total Page Count: 18 Page 18 of 18 Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 1 of 6 Exhibit "D" Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 2 of 6 CHUBB GROUP OF INSURANCE COMPANIES 2.001 &,O(n Slreet, Suite 34a), Dailas, TX t, - 3063 PXci'e: , February 19, 2013 CERTIFIED MAIL — RRR #7008 1 140 0002 9778 7450 Mr. Greg Fischer Cooch & Taylor P.A. 1000 West Street, 10th Floor P.O. box 1680 Wilmington, DE 19899-1680 Re: Our File Number: Policyholder: Claimants: Sites: Company: Dear Mr. Fischer, 3731-24-97/001 Abound Solar, Inc. 9586 LI,C, Colorado Department of Public Health and Environment 9586 1-25 Frontage Road, Longmont, Colorado 4557 Denrose Ct., Unit E, Fort Collins, Colorado Chubb Custom Insurance Company ("Chubb Custom") This correspondence will provide you with Chubb Custom's coverage position for the above referenced matter, which involves premises formerly occupied by Abound Solar, Inc. where manufacturing of solar panels or research and development of solar panels took place. Some contamination of the premises with cadmium has been detected and excessive amounts of hazardous waste have been observed to be stored there. Eased upon investigation of these matters and review of the policy, Chubb Custom will continue to monitor these matters subject to a reservation of rights, as will be stated below. Chubb Custom issued policy number 3731-24-97 to Abound Solar, Inc. for the term of March 31, 2011 to March 31, 2014. The policy is subject to limits of liability in the amount of 52.000,000 Each Pollution Incident Loss Limit and 56.000,000 Aggregate as well as a deductible in the amount of 525,000 Each Pollution Incident. The delineation date on the Declarations is March 31, 2008. The insuring agreement of the policy reads: We will pay loss that the insured becomes legally obligated to pay as a result of a claim for bodily injury, property damage or remediation costs, resulting from a pollution incident that commenced on or after the delineation date, and is on, under or migrating Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 3 of 6 beyond the boundaries. from the insured site, provided such claim is first made against the insured and reported to us in writing during the policy period, or extended reporting period if applicable. We will also pay remediation costs resulting from discovery of a pollution incident that commenced on or after the delineation date, and is on or under the insured site, provided that such pollution incident is reported to us in writing as soon as possible after discovery and in any event during the policy period. Please refer to the attachment to this correspondence for a listing of pertinent definitions contained in the policy. At present, it is unclear whether a pollution incident has occurred at the properties and Chubb Custom reserves the right to raise this issue further at a later date. However, it is Chubb Custom's position that the presence of containers containing hazardous waste at the premises is not a pollution incident and any costs associated with the removal of such containers are not costs incurred due to property damage, nor are such costs remediation costs. Policy number 3731-24-97 contains the following exclusion: This insurance does not apply to any loss or business interruption expense: Arising from a pollution incident: (I) existing prior to the inception date; (March 31, 2011) (2) known by a responsible insured; and (3) not disclosed in the application for this policy or any previous policyPr this policy is a renewal thereof Chubb Custom reserves the right to raise the above exclusion as a bar to coverage. As it is indicated that hazardous waste has been improperly contained and is stored in amounts excess of regulation, Chubb Custom reserves the right to raise the following exclusion to bar or limit coverage. This insurance does not apply to any loss or business interruption expense: Arising from a responsible insured's intentional, knowing, willful or deliberate noncompliance with any statute, regulation, ordinance, administrative complaint, notice of violation, notice letter, instruction of any governmental agency or body, or executive,. judicial or administrative order. Chubb Custom's coverage position is based on the facts as known at this writing. Should you be aware of additional information that you feel should be taken into consideration, please advise at your earliest opportunity. This correspondence is not intended to be. nor should it be construed as, an exhaustive recitation of all potential coverage issues which may arise. Chubb Custom reserves the Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 4 of 6 right to cite additional policy language, terms, conditions, definitions or exclusions at a later date. If you wish to discuss this matter, please feel free to contact the undersigned at (800) 873-0777 or (214) 754-8584. Sincerely, Robert Townsend Environmental Examiner Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 5 of 6 A TTACHMENT Policy number 3731-24-97 Claim means a written demand or notice received by the insured asserting liability or responsibility on the part of the insured for loss. Claim does not include a potential claim that was reported under a prior policy as described in Section II, Paragraph 2, (Reporting A Potential Claim), but which has become a claim during the policy period. Discovery means discovery by a responsible insured during the policy period. Emergency expense means reasonable and necessary expenses incurred to respond to an imminent and substantial endangerment to the public health, safety or welfare or to the environment. Environmental laws means any federal, state, provincial or local laws, statutes, rules, regulations, ordinances, guidance documents, and governmental, judicial or administrative orders and directives. Loss means: A. monetary awards or settlements of compensatory damages; civil fines, penalties, and assessments; and where allowable by law, punitive, exemplary or multiple damages; B. legal expense; remediation costs; or D. emergency expense. Natural resources means land, fish, wildlife, biota, air, surfacewater, groundwater, drinking water supplies and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States, any state or local government, any foreign government, any Indian tribe, or. if such resources are subject to a trust restriction on alienation, any member of an Indian tribe. Pollution incident means a discharge, dispersal, seepage, migration, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste into or upon land, or any structure on land, the atmosphere or any groundwater, watercourse or body of water. Case 12-11974-PJW Doc 289-5 Filed 07/26/13 Page 6 of 6 Attachment Page 2 Potential claim means a pollution incident that commenced on or after the inception date that the insured reasonably expects may result in a claim. Property damage means: physical injury to or destruction of natural resources and other tangible property including the resulting loss of use, and in the case ofproperty located beyond the boundaries of the insured site, diminution in value of such property; or B. loss of use of natural resources and other tangible property that has not been physically injured or destroyed, but not diminution in value of such property. Property damage does not include remediation costs. Remediation costs means: reasonable and necessary costs to investigate, neutralize, remove, remediate (including associated monitoring) or dispose of soil, surfacewater, groundwater or other contamination to the extent required by environmental laws or that have been actually incurred by the government or any political subdivision of the United States of America or any state thereof or Canada or any province thereof or by third parties; B. restoration costs; and legal expense incurred with our consent. Responsible insured means: A. an officer, director or partner of the named insured; B. any manager of the insured site; or C. the manager or supervisor of the named insured responsible for environmental affairs, control or compliance. Restoration costs means reasonable and necessary costs incurred by the insured with our consent, which shall not he unreasonably withheld or delayed, to restore, repair or replace real or personal property to substantially the same condition it was in prior to being damaged during work performed in the course of incurring remediation costs. However, such restoration costs shall not exceed the appraised market value of such property immediately prior to incurring remediation costs or include costs associated with improvements or betterments Stephanie Arries From: Sent: To: Subject: Mark Lawley [mlawley@mvfpd.org] Wednesday, August 28, 2013 5:17 PM Stephanie Arries RE: Abound Solar Longmont Facility Hi Stephanie, I will get back with you early next week. Our folks are reviewing the case file. Best regards, Mark A. Lawley Fire Chief From: Stephanie Arries [mailto:sarries@co.weld.co.us] Sent: Tuesday, August 27, 2013 10:27 AM To: Mark Lawley Cc: Bruce Barker Subject: Abound Solar Longmont Facility Mark The County is in the process of settling its claim against the bankruptcy estate of Abound Solar. I spoke with the attorney for the owner of the Longmont facility (9586 1-25 Frontage Road) about their claims against the bankruptcy estate to remove the contamination from the building. I asked him if they had worked with local fire departments to ensure the safety of anyone who might be required to respond to an emergency at the facility. He indicated that they had provided you with a great deal of information. Before we finalize our settlement, I would like to be certain that they have cooperated with you and provided you with sufficient data to ensure your safety. Please let me know if what he represented to me is correct. Stephanie L. Arries Assistant Weld County Attorney 1150 "O" Street P.O. Box 758 Greeley, Colorado 80632 Tel: 970-356-4000 ext 4394 Fax: 970-352-0242 Email: sarries@co.weld.co.us STATEMENT OF CONFIDENTIALITY & DISCLAIMER:The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or 1 Hello