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CCR1991064COMMON COUNCIL - CITY OF MUSKEG0 RESOLUTION # 64-91 AN ACCEPTANCE AND APPROVAL OF LANDFILL AGREEMENT BETWEEN EMERALD PARK, INC. AND CITY OF MUSKEGO WHEREAS, Emerald Park, Inc. desires to open and operate a sanitary non-hazardous waste; and landfill for the disposal of municipal, commercial and industrial WHEREAS, Emerald Park, Inc. proposes to locate said landfill in the City of Muskego; and, WHEREAS, The City of Muskego has a duty and obligation to insure the best interest of the health, safety and welfare of the community including the environmental health and economic concerns Statutes, has appointed members to a local negotiating committee of its citizenry, and by virtue of Chapter 144 of the Wisconsin to negotiate with Emerald Park, Inc. concerning the proposed landfill; and, WHEREAS, pursuant to Section 144.445(8), Wis. Stats., Emerald Park, Inc. and the local negotiating committee have negotiated a only those provisions allowable by law. landfill agreement, copy which is attached hereto, delineating, NOW, THEREFORE, BE IT RESOLVED that the Common Council of the City of Muskego does hereby accept and approve the attached landfill agreement and that the MayOK and Clerk are authorized to sign the -0- landfill agreement in the name of the City. I ~ BE IT FURTHER RESOLVED that, pursuant to Section 144.445, Wis. Stats., which authorizes the local negotiating committee to b negotiate with respect to the applicability or non-applicability of land which is the subject of the landfill agreement and upon of any pre-existing local approvals, including zoning, the parcel which said landfill shall be located is hereby zoned as Manufacturer 1-2 Zoning. Furthermore, Emerald Park, Inc. is hereby granted a conditional use permit to operate a sanitary landfill upon the subject premises. This conditional use is subject to and shall be operated according to the attached landfill agreement. Failure of Emerald Park, Inc. to abide by any of the terms of said landfill agreement shall constitute a violation of the conditional violation on the part of Emerald Park, Inc. shall authorize the use permit and zoning granted by this resolution, and such City of Muskego to revoke said conditional use permit. The zoning classification and conditional use granted by this resolution shall be placed on the City Zoning map and the same shall be enforceable as any other zoning ordinance and conditional use grant in the City of Muskego. / DATED THIS DAY OF MARCH , 1991 WAYNE G. SALENTINE, Mayor ATTEST: JEAN K. MARENDA, Clerk Defeated 3/26/91 LANDFILL AGREEMENT Between Emerald Park, Inc. and City of Muskego TABLE OF CONTENTS RECITALS (Incorporating Exhibit "A") ......... 1 GENERAL PROVISIONS .................. 1 SPECIFIC PROVISIONS .................. 2 1 . Commencement Date And Term .......... 2 2 . Standing Committee .............. 2 (Incorporating Exhibit "B") 3 . Responsibility Of Applicant/Operator For Water .................. 3 4 . Construction And Operator Requirements .... 4 A . Replacement of Water Supply ...... 4 B . Drainway ............... 7 C . Sewer ................. 8 D . Traffic and Roads ........... 9 E . Miscellaneous ............. 9 (Incorporating Exhibit "C") (Incorporating Exhibit "F" (Incorporating Exhibit "0") 5 . Zoning Approval ............... 11 6 . FinalUse .................. 12 7 . Direct Payment To City ............ 13 A . Base Formula .............. 13 B . Alternate Formula ........... 13 8 . Direct Payment To County ........... 14 9 . Records ................... 15 10 . Negotiating Committee Expenses ........ 15 11 . Municipal Responsibilities To Constituents ................. 16 12 . Exception .................. 17 13 . kea To Be Served By Facility ........ 17 14 . Assignment, Transfer And Sale ........ 17 i . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 . 25 . 26 . 27 . Warranty. Indemnification And Liability .................. 18 Liability Protection In General ....... 22 Covenants Of Landfill Operator Regarding Application. Construction. Use And Operation ............ A . Types of Waste ........... B . Hours of Operation ......... C . Traffic Matters .......... D . Compliance with Applicable Law ... E . Environmental Monitoring ...... F . Future Environmental Considerations G . Waste Stockpiling ......... H . Odor Abatement ........... I . Dust Abatement ........... J . Blowing Debris Control ....... K . Landfill Vector Control ...... L . Mud Tracking ............ M . Drainage and Erosion Control .... . . 23 . . 23 . . 24 . . 26 . . 25 . . 26 . . 29 . . 30 . . 30 . . 30 . . 31 . . 32 . . 32 . . 32 Contested Case Hearing ............ 32 Property Protection Provision ........ 33 (Incorporating Exhibit "C" ) Sociological Impacts ............. 35 (Incorporating Exhibit "E") Recycling Agreement ............. 36 Limitations On Future Development ...... 36 Miscellaneous Conditions ........... 37 Applicable Law ............... 37 Failure To Comply With Agreement ....... 37 Local Approvals ............... 38 Upon Closure Of Site 38 Termination Of Certain Paragraphs ............. ii . RECITALS WHEREAS, Emerald Park, Inc. , a Wisconsin corporation, herein referred to as "Applicant", "Landfill Operator", and "Operator", desires to open and operate a sanitary landfill for the disposal of municipal, commercial and industrial nonhazardous waste (the "Landfill" ) , and WHEREAS, the applicant proposes to locate said landfill in the City of Muskego, Waukesha County, Wisconsin, on real property more specifically depicted ia Exhibit "A" hereto attached and incorporated by reference and made a part of this Agreement. AND WHEREAS, the City of Muskego is a municipal corporation existing by virtue of the laws of the State of Wisconsin (herein referred to as the "City") , and has a duty and 0 obligation to insure the best interests of the health, safety and welfare of the community including the environmental health and economic concerns of its citizenry, and by virtue of Chapter 144 of the Wisconsin Statutes, has joined the County of Waukesha (herein referred to as the "County") in appointing members to a local negotiating committee to negotiate with the applicant concerning said proposed landfill, NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the parties agree as follows: GENERAL PROVISIONS A. This Agreement shall be applicable to the present Applicant/Operator, its successors and assigns. 1 SPECIFIC PROVISIONS 1. Commencement Date and Term. The commencement date of this agreement shall be the date on which the City formally approves the negotiated agreement between the applicant and the local negotiating committee. The terms of this agreement shall continue in effect until the Applicant/Operator is relieved of the site responsibility by the State of Wisconsin and United States of America notwithstanding other provisions of this Agreement. Where specific terms in the Agreement set a shorter period of time, the time as enumerated in the paragraph shall take precedence over this provision. Terms and conditions of operation and closure required by the State of Wisconsin (DNR) and United States of America (EPA) shall constitute terms and conditions of this Agreement. 2. Standins Committee. The Applicant, City and County agree to the formation of a Standing Committee. Membership on the Committee shall consist of one (1) member appointed by the Waukesha County Board Chairman and approved by the Waukesha County Board of Supervisors, one (1) member of the Muskego City Council appointed by the Mayor, two (2) residents of the City of Muskego residing within one and one quarter ( 1 1/4) miles of the site. The two (2) resident members shall be appointed by the Common Council. In addition, the landfill Applicant/Operator shall appoint one (1) representative who shall also serve on the Committee. The committee shall have the functions and powers enumerated under Exhibit "B" attached to this Agreement. .~ 0 From the direct payment to the City of Muskego, after receipt of payment for a period of six months, the City shall provide $5,000.00 to the Standing Committee. Each year an additional $5,000.00 shall be provided to the Standing Committee until the Standing Committee has received budgeted funds of $15,000.00. Once the $15,000.00 level is reached, the City shall provide only such funds as are necessary to bring the Standing Committee’s budget to $15,000.00 in each successive year, but in no event shall the City have to contribute more than $5,000.00 in any given year in order to maintain the budget. The funds provided to the Standing Committee shall be used to carry out the duties of the Standing Committee, including an appropriate reimbursement for members of the Standing Committee with the exception of the member appointed by the Landfill. In addition, said funds may be used for technical assistance to the Standing Committee which shall include: All scientific testing relevant to the landfill site and all consulting and legal assistance when required to advise the Standing Committee and carry out its powers. Landfill Operator agrees to provide information concerning technical and scientific data to the Standing Committee which it has obtained and has available for its own purposes. 3. Resnonsibilitv of Applicant/Operator for Water. The Applicant/Operator shall install an in-ground water tank, to prevent freezing, with a capacity of not less than 25,000 gallons, or a surface pond which has a stand pipe (dry hydrant) which allows 3 all weather access. The exact size and design of the surface pond shall be approved by the City of Muskego Fire Department prior to construction of the landfill. The pond shall be located within the facility's perimeter fence and, if possible, shall be located within 300 feet of the buildings constructed on the site. In addition, the fire department shall be furnished with a key to the facility gate, or other 'arrangements shall be made to allow the department access to the pond for off-site fires. The operator shall confer with the local fire chief prior to finalizing the design for on-site buildinqs 2?ld shall comply ia all respects with local fire protection ordinances that apply to the on-site buildings. 4. Construction and Operation Reauirements. In the construction and operation of the landfill site the Applicant/Operator agrees to comply with all the requirements of this contract, the ordinances of the City of Muskego and County of Waukesha of general application and such ordinances appropriately within the police powers of the City and County which are not in violation of Wis. Stat. s. 144.445. In addition to such requirements at law the Applicant/ Operator agrees to the following: A. Replacement of Water SuDply. In the event any existing well in the City of Muskego within the area defined in Exhibit "C", herein incorporated by reference and made a part of this Agreement, becomes contaminated after the issuance of a landfill license, the Landfill operator shall be responsible for 4 providing a supply of drinkable water and a new permanent water supply. Time is of the essence and the permanent water supply shall be completed within thirty (30) days or as soon as possible after all necessary approvals are obtained for connection to public or community water supply. The term "permanent water supply" shall include a well, group or common well, area well, or hook up to a public or community water supply. In the event of bacteriological contamination which can be corrected by decontamination procedures Applicant/Operator shall have the opportunity to decontaminate the well. However, if the problem reoccurs a Fermanent solution shall be undertaken. The Applicant/Operator shall have discretion upon the approval of the City of Muskego at the Applicant/Operator's expense to extend the city water to the area or connection to a community well as an alternative to providing new deeper wells or alternative water supply. The Applicant/Operator to the extent desired may pre- test any well or wells within this area for PCB's, pesticides or bacteriological contamination. Such pretest shall take place before site use begins. This testing shall be done at the Applicant/Operator's expense. In the event a well owner does not allow pre-testing of their well, they shall not be eligible for the protections afforded by this paragraph. In the event a test shows contaminants as aforesaid in the well, unless the condition is rectified by the property owner at the property owner's expense, the Applicant/Operator shall not be responsible for the well replacement under this Agreement. 5 After pre-testing which would demonstrate none of the aforesaid contaminants or if no pre-testing is undertaken by the Applicant/Operator of any individual well, and the well is later found to have said contaminants, Applicant/Operator shall supply water under this Agreement. If the Applicant/Operator disputes that their activities were responsible for or caused the contamination, Applicant/Operator shall obtain an assignment from each resident who is serviced by either city water or a community well or who has been provided with a deeper well and bottled water to pursue such rights and actions without recourse to the recipient (unless the recipient has caused the contamination) and may pursue any other parties they deem to be responsible for the cause. The Applicant/Operator shall have no obligation under this paragraph unless and until the affected property owner executes and delivers 0 such assignment of claims. All recovery of its costs had against any third party shall become the property of the Applicant/ Operator. Nothing in this Agreement however shall be construed to affect the right of any citizen to commence suit against Applicant/Operator for any property damage or personal injury associated with their operations and nothing herein shall be construed to require an assignment of any and all claims of the property owner but only an assignment of the claims based on the expenses and other damages which the Applicant/Operator has assumed. The water protection agreement shall continue in full force and effect, and be binding on the Applicant/Operator, for a 6 period of forty (40) years from the date of termination of actual landfilling activities. B. Orainwav. Applicant/Operator shall restore, dredge and improve the primary drainage ditch to Big Muskego Lake to its original depth prior to commencing any operations at the landfill site. The Applicant/Opetator's obligation under this paragraph shall be subject to the City obtaining necessary access and the City obtaining all necessary permits from all local, state and federal regulating agencies, and the Applicant/Operator shall diligently assist the City in preparing and drafting all necessary plans and filling out all applications and in paying all costs of drafting, design, applications, approvals and reviews incurred by the City in processing the necessary permit applications. Applicant/Operator's responsibility shall be limited to $60,000.00 0 under the terms of this paragraph. After the initial restoration of the drainway, Applicant/Operator will be responsible to clean sedimentation caused by the site. Additionally, the Applicant/Operator shall construct and maintain a storm water detention facility capable of detaining on- site storm water flows as provided in the Applicant's feasibility report and required by the Muskego City Engineer, which was approved on the 1st day of August, 1988 and is identified as Drawing Number 1397.03-11, Base Grade/Engineering Modifications Plan Sheet 11 of 15 and is herein incorporated by reference, prior to the date of this Agreement. 7 C. Sewer. Upon direction by the City of Muskego when sewer becomes available the Applicant/Operator shall pay all costs for the design and installation of public sanitary sewers, force mains, lift stations and related facilities to service the landfill site for leachate and effluent disposal from the site. Sever shall be considered "available" when it has been brought to the proximity of the intersection of Ryan Road and North Cape Road. The duty upon the Applicant/Operator to construct and install a public sanitary sewer shall require them to construct a sewer that meets the specifications set oct i?. Exhibit "F" , hereto attached and incorporated by reference as a part of this Agreement. The Applicant/Operator shall be subject to all standard rates, charges and conditions under the City of Muskego sewer use ordinance. Applicant/Operator shall pay all costs for the design 0 and installation of the sanitary sewers, force mains, lift station and related facilities as specified in Exhibit "F" to service the landfill site for leachate and affluent disposal from the site. The plans, specifications and submittal of all documents relating to the sanitary sewer system shall be reviewed and approved by the City Engineer of the City of Muskego. Applicant/Operator shall be bound to install sewer, upon the request of the City, within 7.5 years commencing with the date of licensing. If however at any time after 7.5 years the site capacity remaining is 50% or more of the approved capacity, the City shall have the right to require, and the Applicant/Operator shall install sewer. If other users connect to the sewer extension financed by the Applicant/Operator, the City of Muskego shall assess such users for a portion of the costs financed by the Applicant/Operator on the uniform basis applied by the City of Muskego as of the date of such connection with interest on the unpaid assessments at the City's standard rates. All assessment payments and interest shall be delivered to the Applicant/Operator upon receipt. D. Traffic and Roads. To the extent that improvements are needed for City Streets, County Roads or State Highways as the result of the operation of the landfill site, the Applicant/Operator shall pay for the costs of said improvements. Said improvements shall include all design and construction necessary to provide an adequate ingress and egress to the site as determined by the City of Muskego, County of Waukesha and State of Wisconsin. The landfill operator shall not accept waste from any hauler who hauls waste on Union Church Drive west of S.T.H. "45". E. Miscellaneous. To the extent it is determined that there are any wetlands on the property, landfill operator herein agrees to continue and maintain said wetlands without alteration and no surface water runoff will be allowed from the landfill into the natural drainway which will alter and/or effect in anyway any area determined to be a wetland. Provided, however, that with the approval of the Department of Natural Resources if wetlands located on the subject property are relocated on said property, and 9 provided that said relocation of wetlands will have no adverse effect or impact on property off the site, wetlands may be altered accordingly. In addition thereto, Applicant/Operator agrees that during construction and operation it will not allow water to flow from the landfill site at any excessive rate or at excessive volume into the natural drainway. Excessive rate and volume herein means a rate that will cause the flow of water from the landfill site to spill over the natural banks of the drainway. Such steps and such expense shall be undertaken by the Applicant/Opnrator to insure the adequacy of the drainway to provide for flow from the landfill site. Applicant/Operator will further respect the rights of the City of Muskego off the site to regulate and enforce the appropriate use of the drainway. Applicant/Operator herein agrees that it will follow the construction design plan approved by the Department of Natural Resources after review of the feasibility report and that compliance with those requirements shall become a part of this Agreement. If there is a breach of the construction requirements, that shall constitute a breach of the Agreement. In addition to the berm for site containment, a fence, comparable to the fence bordering the north boundary of said property, shall be placed around the landfill site as set out in Exhibit "D" hereto attached and incorporated by reference as a part of this Agreement. The Applicant/Operator herein agrees that under no circumstances shall the depth of the landfill site exceed that 10 set out in the approved feasibility report. Applicant/Operator herein agrees that the height shall not exceed 875 feet MSL except for cap and final cover. However, Applicant/Operator shall be allowed adjustments in the event WDNR modifies the horizontal limits or design which would reduce the designed capacity. It is mutually agreed, however, that design capacity will not exceed the capacity outlined in the current feasibility report. 5. Zonina ADPrOVal. Applicant/Operator herein respects the duties and responsibilities of the City of Muskego and the County of Waukesha to enforce its laws and ordinances concerning land use in an equal unbiased manner and that said laws were designed to protect the health, safety, welfare and morals of the community. Upon the signing of this agreement by Applicant/Operator e and the City of Muskego after approval by the Siting Committee, all pre-existing local approvals preventing the site shall be modified accordingly. Specifically the zoning for the site shall be modified to Manufacturer 1-2 Zoning to allow the landfill with a conditional use permit. Failure to so remove all pre-existing local approvals shall render the Agreement null and void. Upon the change in zoning the terms of this Agreement shall become the conditional uses under the zoning. Nothing herein shall be construed to eliminate the zoning of the City of Muskego. All non-discriminatory and non-arbitrary provisions of the zoning ordinance, such as set back, side yard, and other such enactments shall continue except for any provisions for local 11 permits or licenses to operate a sanitary landfill such as the provisions of section 11.03 of the City of Muskego Municipal Code. Applicant/Operator may remove clay necessary for the creation of the landfill site, however permitting for the hauling routes under City ordinance shall be approved by the City. In addition, no clay extraction other than that necessary to the creation of the landfill site shall be allowed without a permit of approval by the City of Muskego. Applicant/Operator shall adhere to the building code requirements and shall be required to apply for all building permits. The City of Muskego shall not adopt any ordinance or administrative rule or undertake any act of any arbitrary or discriminatory nature in the review and issuance of such permits designed to frustrate the development of the landfill site. The City, however, does not waive any rights that it has which do not violate Wisconsin or federal law. 0 6. Final Use. After termination of the landfill operation the landfill Operator will take all steps required by law, both State and Federal, to preserve the environmental integrity of the landfill site and to warrant, indemnify and insure the health, safety and welfare of all inhabitants, the City of Muskego and the County of Waukesha. Applicant/Operator further agrees to follow all ordinances, directions and mandates of the City of Muskego and County of Waukesha concerning the land use of the site after landfill activities have terminated. 12 7. Direct Pavment to Citv. Applicant/Operator agrees to pay $2,000,000.00, plus the National Consumer Price Index, over fifteen (15) years, however, payable as follows: A. Base Formula. $66,600.00 per year for the first two years of operation; and $143,600.00 for years three (3)through fifteen (15). All of said payments are to be made monthly, commencing thirty days after receipt of a license to operate the site. The payments shall be indexed annually for inflation in accordance with the National Consumer Price Index, All Urban Consumers (CPIAUC). B. Alternate Formula. As an alternate to the formula in paragraph 7-A., above, the Applicant/Operator shall pay in accordance with the formula set out here if the dollar amount in a given year exceeds the dollar amount under the "Base Formula". 0 Within thirty (30) days, at the end of each year from the commencement of actual fill activities, Applicant/Operator shall provide the City of Muskego with a survey under seal from a licensed surveyor or professional engineer stating the percentage of space remaining in the landfill and the percentage amount of space used during the year. The report shall be based upon the number of tons remaining in the landfill relative to the original design space of 1,420,000 tons reported in the feasibility study. To the extent such space is used by Applicant/Operator, the Applicant/Operator shall pay an annual fee to the City of Muskego. 13 The fee shall be based upon the following parameters and formula: 1. The total space of the landfill shall be considered to be 1,420,000 tons as stated in the feasibility report design capacity. 2. Annually, from the date of commencement of the placement of waste on the site, the applicant shall report: a) Total space in the landfill expressed in b) The total space remaining in the landfill tons = TS c) The difference of space used from prior expressed in percentage = RS years from the current year expressed in percentage = DS The percentage of space used in each calendar year shall be multiplied by the total space of the landfill resulting in the net tons placed in the Operator shall pay $1.40 per ton of waste placed landfill for the preceding year. The Applicant/ adjusted annually based upon the Consumer Price in the landfill. The $1.40 cost per ton shall be Index, All Urban Consumers, (CPIAUC). The annual payment would then be based upon the following formula : DS x TS x $1.40 (CPIAUC) = Annual Payment compaction densities than reported in the In the event the Applicant achieves greater Feasibility Report Design Capacity, there will be no adjustment to the formula. Applicant/Operator upon making the alternate calculations will pay any additional sum over and above the sum paid on the monthly basis to the City of Muskego within sixty (60) days from the end of each annual year. The consumer price index (CPI) to be used shall be Consumers. However, the annual increase shall not the National Consumer Price Index - All Urban be less than 4% per annum or greater than 1% per annum in any calendar year. 8. Direct Pavment to Countv. From the funds paid under paragraph 7 "Direct Payment to the City" there shall be deducted 2.5 cents per ton which shall be paid to the County. The County 14 shall hold said funds in a special budget to be used exclusively for the implementation of environmental and recycling programs. Calculation of the 2.5 cents per ton shall be based on the formula set out in paragraph 7(b). 9. Records. The Applicant/Operator shall allow the Standing Committee, the City of Muskego and the County of Waukesha complete and open access to all of its books, records, documents and reports relating to volume and type of waste received or placed in the landfill site. This information shall be available and provided upon request at all times during normal business operations. 10. Nesotiatins Committee ExDenses. The Applicant/ Operator herein agrees to reimburse the City of Muskego and County of Waukesha for all reasonable and necessary expenses of the local negotiating committee relating exclusively to the negotiation of this Agreement, including the fees paid by the County to County representatives for attendance at negotiating committee meetings, and for all other members of the committee the amount of Thirty- five ($35.00) Dollars per meeting. In addition thereto, Applicant/ Operator herein agrees to reimburse the City of Muskego for all reasonable and necessary expenses incurred by the committee, including attorney fees and disbursements, independent consultant fees and disbursements, and other necessary and related expenses incurred by the local negotiating committee. Any outstanding balance not paid during negotiations by Applicant/Operator shall be paid upon the signing of the Agreement by the City of Muskego. 15 Applicant/Operator shall be given a credit against the amounts due and owing under the direct payment to the City for any amounts paid for negotiating committee expenses, as defined in this paragraph, which exceed $50,000.00. 11. Municiual ResDonsibilities to Constituents. The parties to this agreement understand that the City of Muskego and the County of Waukesha have certain duties and responsibilities to the health, safety and welfare of the community and to enforce its laws, ordinances and regulations, and to seek enforcement of appropriate administrative codes, State and Federal, statutes, laws and ordinances, and that said responsibilities are responsibilities that the municipalities cannot waive or contract away. Nothing in this agreement shall be construed to limit the City in passing any enactment or requiring any condition or permit 0 which is not expressly prohibited by Wis. S'tat. s. 144.445 as it presently exists or as modified in the future. The City of Muskego reserves from this Agreement any future rights they may receive by amendments or deletions to the existing siting laws. All pre- existing local approvals as defined by 144.445(3)(fm) shall continue in force with the exception of those specifically waived by this Agreement. In the event the legislature changes the law allowing local enactments, regulation and permits, nothing in this Agreement shall be construed to limit the authority of the City of Muskego, or County of Waukesha to act under such laws. However, no law shall be enacted designed to prohibit the continuation of the landfill until its approved capacity is completed. The 16 Agreement in other respects shall continue in full force and effect . 12. ExCeDtiOn. In the event the Applicant/Operator has violated either, (a) the terms of this Agreement; (b) a municipal ordinance not expressly prohibited by Wis. Stat. s. 144.445; (c) a State of Wisconsin Administrative Code provision; (d) a State of Wisconsin Statute; (e) a Federal code or regulation, which results in restraint or stay of operation of the site; the Applicant/Operator shall be bound by this Agreement to continue payments on a monthly basis for a period of 90 days. Thereafter, if the facility becomes operative at a later date payment shall commence. 13. Area To Be Served BY Facility. Applicant/Operator can accept waste only from a source which is legal to accept under 0 the laws of the State of Wisconsin, as they now exist or as amended in the future. Failure to comply with the law shall constitute a breach of this Agreement. 14. Assiment, Transfer and Sale. Applicant/Operator shall have the right to transfer, sell, lease or otherwise convey the lands which are the subject of this Agreement to any other person, entity or corporation, provided that the warranties, indemnifications and sureties meet the standards set out in paragraph 16, together with reasonable assurances that said person, entity or corporation can maintain the warranties, indemnifications and sureties during the course of this contract. Applicant/Operator shall not transfer, sell, lease or otherwise 17 convey the lands which are the subject of this Agreement to any other person, entity or corporation, nor shall the Applicant/Operator assign or transfer this Agreement to any other person, entity or corporation unless such other person, entity or corporation is controlled by the Applicant/Operator or is under common control with the Applicant/Operator without said person, entity or corporation verifying to the City of Muskego and County of Waukesha its ability to comply with paragraph 15 of this Agreement. 15. Warranty, Indemnification and Liability. Applicant/ Operator herein agrees to be responsible for all acts involved in the construction, operation, closure, and long-term care of the landfill site. Applicant/Operator herein agrees to warrant, indemnify and defend the City of Muskego, County of Waukesha, a Landfill Siting Committee, their representatives, counsel and agents, against all uninsured or excess claims, demands, suits, damages and legal costs therein, arising out of the construction, operation, closure, and/or long term care of the landfill. The parties herein designated shall be referred to as “Additional Insureds I,. The Applicant/Operator will provide sufficient surety to establish its ability to fund the indemnification contained in this paragraph. The established surety shall be not less than $1,000,000.00 in excess of any insurance the “additional insureds” may have insuring them against liability claims and defense costs, If “additional insureds“ have no insurance insuring them against liability claims or defense costs, the surety in this paragraph shall still apply. Nothing in this paragraph shall be construed to limit the total indemnification provided in the proceeding paragraph. The $1,000,000.00 shall apply in the first year from the signing of this contract and shall be increased annually in each subsequent year based on the NCPIAUC, U. S. Department of Labor, Bureau of Labor Statistics. The surety shall be as follows: 1. Environmental impairment liability insurance which names the Additional Insureds; 2. A letter of credit guaranteed and naming the Additional Insureds as beneficiaries; 3. Cash escrow account in the names of the Additional Insureds, as beneficiaries; or 4. A surety bond naming the Additional Insureds as beneficiaries. The surety shall commence on the date of construction. The NCPIAUC shall apply for each year thereafter until fifteen (15) years after the date of commencement of landfill activities, at which time the amount of the fund shall remain constant continuously thereafter during the period of long term care. The form of financial assurance shall be deposited with the City of Muskego prior to the issuance by the WDNR of an operating license for the landfill or prior to the first act of physical construction of the landfill. The term of financial assurance provided under this paragraph shall commence upon issuance of a WDNR license and continue until the WDNR releases the financial assurances provided by the Applicant/Operator under Wis. 19 Stat. s. 144.443. The financial assurance herein shall be separate from the financial assurance for closure and long term care required by WDNR. Any surety bond, environmental impairment liability insurance or letter of credit, shall provide that such financial assurance may not be modified without the prior written consent of the City and County and may not expire, except upon ninety ( 90) days prior written notice to the City and County. The Applicant/Operator may convert to another forin of surety allowed under the terms of this paragraph. In the event the landfill Operator fails to renew such form of financial assurance, or substitute another form of financial assurance permitted under this paragraph 15, sixty (60) days prior to the expiration of the existing form of financial assurance, the City or County may call the entire amount of such surety bond or lettsr of credit and the financial assurance contract with the guarantor shall so provide. Any cash escrow account shall be held and invested by a third party escrow agent, acceptable to the landfill Operator, the County and the City, pursuant to a mutually agreeable escrow contract entered into by the City, County and landfill Operator. 0 The term "Indemnitee" shall include the City of Muskego, its employees, asents, caunsel and representatives; the County of Waukesha, its employees, agents, counsel and representatives: the Siting Committee, its employees, agents, counsel and representatives; and the Standing Committee, its employees, agents, counsel and representatives. In the event of any uninsured or 20 excess claim or demand against Indemnitee as a result of landfill negotiation, operation, site activity, or closure, the Landfill shall assume the defense to the extent that there is no policy of insurance in effect protecting the Indemnitees from liability and providing a defense. Indemnitee shall, within a reasonable time, notify in writing the Landfill operator of such claim or demand specifying the nature of the claim or demand and the amount or estimate to the extent then feasible (which estimate shall not be conclusive of the final amount of such claim or demand). This indemnification, which shall cover in the event of a suit against the Indemnitees, is not to be construed as a release of any claim the Indemnitees may have against Applicant/Operator for liability damages, and is not to be construed as a release of any right by way subrogation which the insurance provider for the Indemnitees may have by way of subrogation derived from the insured, indemnitee. Any claim, settlement, award or judgment by way of subrogation against the Applicant/Operator paid by the insurance shall not reduce the indemnification provided to the indemnitees herein. 0 If the Landfill Operator believes that the claim is not one for which it has assumed liability, indemnification or surety under this Agreement, it shall notify the Indemnitee within ten (10) days or less, if time is of the essence, from receipt of notice of claim that it will not defend the claim. Such determination shall be made under this Agreement applying the laws of the State of Wisconsin as they apply to contracts of insurance, 21 surety, warranty and indemnification. All disputes shall be resolved in accordance with Wisconsin law. Upon an acceptance of the defense, theApplicant/Operator, hereinafter referred to as "Indemnitor" shall either promptly undertake all legal means of defense or settle the claim without any costs of defense, liability or damage to the Indemnitee. In the event that a claim is lost the Applicant/Operator shall bear sole responsibility for the payment of any claim. Said claim shall be satisfied out of the assets of the Landfill Operator. To the extent the Landfill Operator is unable to satisfy said claims, the Landfill Operator may pay the claim from the surety provided. However, nothing herein shall release the Landfill-Operator, Indemnitor, for total responsibility for payment of the claim. 0 16. Liability Protection In General. The Applicant/ Operator will be resoonsible for injuries, sickness, disease, damage, persona: injury, property damage, property loss, loss in value of property, whether real or personal, as a result of the construction, operation, closure and long-term care of the landfill site. The Applicant/Operator will provide insurance as surety to cover possible claims. The established insurance or surety shall be not less than $1,000,000.00 in the form of Environmental Impairment Liability Insurance, a guaranteed letter of credit, cash escrow account which balance is maintained, surety bond, or guarantee of a corporation qualified and licensed to do business in the State of Wisconsin having a liquid net worth in the State 22 of Wisconsin of at least $2,000,000.00 maintained at all times. In the event of a desire to transfer the property to any other entity, said warranty, indemnification, and surety shall continue in effect unless substituted pursuant to paragraph 15 or otherwise agreed as acceptable to the Standing Committee and the City of Muskego. Any change, alteration or substitution of insurance or surety, shall follow the format set out in paragraph 15 except as to amount which shall follow this paragraph. In addition thereto, the Applicant/Operator herein certifies that prior to operation it will have tangible assets of not less than $950,000 -00 in land, will make improvements on the site in an amount of $3,100,000.00, and the value of tangible assets will be maintained at not less than 1.3 million after depreciation during the active life of the site. The surety provided shall not be construed as a limit of the liability of the Xpplicant/Operator. 17. Covenants Cf Landfill Ouerator ResardinaApplication, Construction, Use and Operation. A. Twes of Waste. The Applicant/Operator shall accept only the following types of "solid waste" as defined in Wis. Stat. s. 144.01(15): 1. Municipal solid waste; 2. Non-hazardous industrial waste; 3. Incinerator ash from Waukesha and Milwaukee Counties. Applicant/Operator will not accept any hazardous waste as defined at the present time by NR 181, or as presently defined by Federal law, and in addition thereto, shall not accept any hazardous waste 23 to the extent future State or Federal enactments will make the requirements more stringent. 0 In addition thereto, Applicant/Operator will not accept any solid waste which exhibits characteristics of a hazardous waste when the criteria of NR 181.14 of the Administrative Code of the State of Wisconsin, March 1988, are applied. Applicant/Operator shall not accept a substance which is a hazardous waste even if reduced in concentration by mixing with a non-hazardous substance either on or off the premises. Applicant/Operator will not accept any solid waste which contains any portion of a substance which is a "hazardous waste" as defined in Chapter 181, Administrative Code of the State of Wisconsin, or Federal Law, whichever requirement is more stringent. Applicant/Operator agrees that no waste will be accepted from any jurisdic:ion or entity that does not comply with Wisconsin Act 335. If szid act is amended, changed or deleted its application wiil vary accordingly. I 0 B. Eours Of Oneration. The Applicant/Operator shall not conduct any physical operations whatsoever on the site other than during the hours commencing at 6:30 a.m. to 5:OO p.m., Monday through Friday, and 7:OO a.m. to 12:OO p.m. on Saturday. Applicant/Qperatoz shall provide a three-day leachate storage capacity as part of the design of the site. During the construction there shall be no physical operation of the site except between the hours of 7:OO a.m. and 5:OO p.m., Monday through Friday, and 7:OO a.m. to 12:OO p.m. on Saturday. There shall be 0 24 no physical activity or operation on the site on New Years Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day or Easter Day. There shall be no physical activity or operation on the site on Sundays. The landfill may be operated from 7:OO a.m. until 5:OO p.m. on Saturdays following a week in which one of the above listed holidays occurs, however, this shall not apply to any Saturday which is part of the holiday weekend. Under special circumstances either as the result of adverse weather conditions or where such operation is in the best interest of the public, the Applicant/Operator shall be allowed to operate at a time outside of the schedule herein imposed upon obtaining the approval of the Chairman of the Standing Committee. If the Chairman denies the approval, the Apglicant/Operator may make such request to the entire Standing Committee and have available the normal procedures as outlined under the Standing Committae, Exhibit "B" . 0 C. Traffic Matters. The Applicant/Operator shall pave all site roads with concrete or asphalt to a distance of 800 feet from State Highway 45. Applicant/Operator shall provide such gravel as necessary to the active area of the landfill site. The service shall be of such a character and shall be maintained in a fashion to abate dust. Applicant/Operator shall comply with all State, County and Xunicipal directives concerning traffic controls, site access and traffic safety considerations and shall pay such expenses as necessary to create an appropriate traffic pattern in 25 compliance with State, County and Local approval and requirements and shall follow such directives concerning access routes to the site by Applicant/Operator and waste haulers. As to County and City ordinances and resolutions, the Applicant/Operator will follow such directives to the extent that such directives are not arbitrary or discriminatory. a The Applicant/Operator shall keep the roads on the site in a good state of repair during construction of the landfill and during the life of the landfill site and after closure for as long as the road is used on the site. The Applicant/Operator shall agree to apply water calcium chloride and such other dust suppressants as needed in the area adjacent to the on site roads. The determination of need shall be made by the Standing Committee or their designated representative. D. ComDliance with ADDlicable Law. The Applicant/ Operator will comply at all times with the terms of this Agreement and shall operate the site at all times in compliance with local ordinances to the extent such ordinances are not in violation of Wis. Stat. s. 141.445. The Applicant/Operator agrees to comply with State Codes, Administrative Codes and Regulations, State Statutes, and Federal Regulations and Codes. Any failure to comply with the aforesaid shall constitute a violation of the Agreement. E. Environmental Monitorinq. All environmental monitoring shall be in accordance with NR 508 and as set forth in the feasibility study whichever is more restrictive and plan of operations approvals for the landfill, and shall, at a minimum 26 include: Onerational Ground Water and Surface Water Monitorinq A. Sample Locations 1. 2. 3. Monitorins Wells MW-3A and B MW-4A, B and C MW-5A and B MW-EA and B MW-13A, B and C MW-14A and B MW-16A and B MW-18A and B Gradient Control System At inclined lift station Surface Water At the sedimentation basin outlet B. Samvlins Parameters 1. Quarterly sampling parameters Field Temperature Field Conductivity (Field at 25°C) Field pH Alkalinity (Sedimentation cod basin only) Hardness Chloride Dissolved Iron Total Suspended Sediment 2. Annual Sampling Parameters (VOC) SCAN using EPA methods 601 and 602 Parameter Bromodichloromethane Bromoform Bromomethane Carbon tetrachloride Chlorobenzenz Chloroethane 2 - Chloroethylvinyl ether Chloroform Chloromethane Dibromochloromethane 27 1,2 - Dichlorobenzene 1,3 - Dichlorobenzene 1,4 - Dichlorobenzene Dichdlorodifluoromethane 1,l - Dichloroethene 1,2 - Dichloroethane trans - 1,2 - Dichloroethene 1,l - Dichloroethane cis - 1,3 - Dichloropropene 1,2 - Dichloropropane Eethylene Chloride trans - 1,3 - Dichloropropene 1,1,2,2 - Tetrachloroethane Tetrachloroethene 1,1,1 - Trichloroethane Trichloroethene 1,1,2 - Trichloroethane Trichlorofluoroemethane Vinyl chloride Benzene Chlorobenzene 1,2 - Dichlorobenzene 1,3 - Dichlorobenzene Ethylbenzene 1,4 - Dichlorobenzene Toluene C. Water Level Measurements At all monitoring wells and in gradient control system. D. Frequency Monitoring wells: Quarterly or Annually Sedimentation Basin: Once a year while During Operation as Noted discharging. Sampling shall continue for the designated parameters even if the DNR determines in the future that sampling for one or more of such parameters is not required. of Natural Resources or the Environmental If at zny time it is determined by the Department 2rotection Agency that additional environmental monitoring requirements are needed, the Applicant/Operatorwill immediatelycomply. Such to groundwater, leachate, gas or other features of the Landfill. 28 F. Future Environmental Considerations. Applicant/ Operator herein agrees that all monitoring procedures and all operation procedures which constitute the latest state of the art will be employed in order to insure the health, safety and welfare of the community, and the natural environment. As new methods of monitoring and operation become available, Applicant/Operator herein agrees to employ the same without reservation. An annual review of the most advanced methods of monitoring and operation shall be undertaken by the Applicant/ Operator, Standing Committee, and the Standing Committee Consultant, and a report of such methods shall be compiled. Applicant/Operator herein agrees that all monitoring procedures and all operation procedures which constitutes the latest state of the art will be employed. As used herein the term "state of the art" shall be the latest and most sophisticated or advanced stage of technology recognized to be effective to a reasonable degree of scientific probability and acceptable to the Wisconsin Department of Natural Resources. a Applicant/Operator agrees that it will prevent the emission into the ambient air of any substance or combination of substances which will cause either an objectionable odor or interpose a danger to the health, safety and welfare of the natural and human environment. Upon complaint to the Standing Committee by any three (3) individuals or any municipality, the Standing Committee shall exercise its powers of review and implement the procedures outlined in this Agreement to the extent it is deemed 29 appropriate concerning such problems. The Applicant/Operator herein agrees to cooperate with and follow the directives and mandates of the Standing Committee, Wisconsin Department of Natural Resources, and the Federal Environmental Protection Agency. G. Waste Stocbilinq. The Applicant/Operator shall not stockpile any waste and all waste shall be covered daily, except as provided under "Recycling". H. Odor Abatement. The Applicant/Operator agrees to control odor from the landfill. All odorous materials shall be buried as soon as they are received at the site and shall not be disturbed thereafter. The Applicant/Operator shall apply daily cover to all solid waste. An active gas system will be built into each phase and will be activated after final cover is installed on each phase. The Applicant/Operator agrees to implement an active state of the art gas and odor control system at the landfill for a period of not less than thirty (30) years after the sit2 has been completely closed. The Standing Committee shall have the right to review the plan of operations including the gas control system, at the time it is submitted to the Department of Natural Resources for approval. 0 I. Dust Abatement. The Applicant/Operator shall adequately gravel all non-paved roads and roadways within the designated landfill area. These roads and roadways shall only be in the immediate vicinity of the active area of the site. Applicant/Operator shall agree to apply water, calcium chloride and other dust retardants as needed. In the event of a dispute the '0 30 Standing Committae shall determine need. Applicant/Operator agrees to maintain a veqetative cover on all areas which are disturbed and not being acti-rely used, and in addition thereto, on all berms constrxtsd ar9,and the perimeter of the site. J. Blowinu Debris Control. In addition to a berm and appropriate fencing around the perimeter of the site, the Applicant/Operator i. Install additional windbreaks and shrubs. ii. The Applicant/Operator will porcable fencing windscreens j active areas of the site. shall: trees L the use iii. The fencing which will be used as cmtrols will be cleaned of litter and debris daily, and returned to the active area for disposal. Further, if any litter escapes the landfill, the Ac?licant/Operator agrees to pick up prior pe-mission of the owners, and liZter on neighboring property with dis-,osal. :ez'xn it to the active area for iv . Suzing windy weather, the Xpglicant/ Ccezator will: a. maintain the disposal area in well-sczeened areas. b. compact the waste loads immediately after waste is deposited. c. ap~ly liberal quantities of cover soil. In addition, X?glicmt/Operator agrees to comply with all provisiocs of NR 50<.05(lO)(a) regarding fences and windblown debris control. 31 K. Lap-dfill Vector Control. The Applicant/Operator agrees to cmtzo1 pests or vectors through proper compacting and covering the waste and grading of the site to eliminate ponded water, and by izqlementing proper rodent baiting program inside the fenced area. The Apglicant/Operator further agrees to pay for a professional pest control specialist to regularly monitor the site no less than four times per year. L. Kuud Trackinq. The Applicant/Operator agrees to maintain the paved entzance free of mud tracked from vehicles from the landfill. T3is will be done by maixtaining graveled access roads insi3e the site 2r.d sweeping or washing down paved roads inside the site. U ". Pzlnace and Erosion Control. The Applicant/ Operator agrses t3 submiz final L-ainage and erosion contzol plans for aporwal by ;:?e Waukosha County Scil Csnserraticn Serrice, and agrses to orovida cqies to the Standing Committee, the Clerk of the City of kske~o, and the Clerk of the County of Waukesha. 18. CorAyestad Crse Xoarlnq. For and in consideration of the consummation of this Agreement, the City of Muskeqo agrees to dismiss the contasted case hearing concerning the feasibility report, and the Cltlr fuzzher agrees not to commence any contested case procsdures z~ainst the Applicant/Ogerator concerning the plan of o?eratlon ar.d/or licemure of the landfill or to petition for judicial review of the Xisconsin Department of Natural Resources decision cer=alnins to =:le feasibility reporz, plan of operation 0 and/or licensuze of the landfill. In addition, the City of Huskego agrees t~ withdraw from the pending litigation challenging either environmental inpacts, assessments or feasibility of the proposed landfill. 19. Prouertv Protsction Provision. All residences within the area defined in Exhibit "C", attached hereto and incorporated herein by reference, shall be eligible for property protection as follows: A. The owner shall cause all or a part of their property to be listed for sale at an amount not less than the fair market value as calculated on their property tax statement as of December 31, l?90, plus 104 of that amount. This figure shall increase annually based on the Wisconsin De?artnent of Revenue, Index of Economic Factors fcr like sroperty in the City of Fuskego. Said pr3perty shall be listed for a period equal to tke averaqe listing tine then prevailing as rscarded by the Xilwaukee Realtors Fultiple LisZing Se,"rice, however, nor, to exceed 150 days. If at the exgiration of that period of tine the 9roFerty has noc sold at the value Xcslicant/Cperator ta pay then the 19?0 fair lisyed, the property ouner may request the mzket value as listed on the real estate ~-2~ansin DerrarLTent of Revenue, Index of 2csnomic Factors for like property. In order to be eligible the oroperty owner(s) may list the 2zzperty themselves but must advertise it in a newspaDer of general circalation not less than twice per week. The property owner(s) may chose to use a real estata broker and all advertising and promotion shall be at the discrstion of said real estate broker. All prggerry owners within the area above desczihed, to be eligible for said relief, must have owned the property on or before Dece-nber cwced said prsperty before December 31, 1989 . 31, 1980; howevez if the progezty owner(s) who mace a tr=r.sfer "- ,".perty tax scatenent, plus 104, plus the T-:" (a) t3 a spouse, (0) ts a parent, 33 (c) to a child, (d) to a stepparent or step-child, (e) to a son-in-law or daughter-in-law, (f) to a trust, trustee, principal or agent, (9) solely in order to provide a release for (h) by Will, decent or survivorship, security, debt, or obligation, such rights as the principal owner( s) holding the property before December 31, 1989 shall transfer to any new owner under such provisions and upon their Ownership as defined in this section of the sale they may exercise the option herein stated. Agreement shall include any contzact or lease with option to purchase. Property zoned residential shall include any property contiguously or adjacently owned with a residence regardless of acreage or zoning classification. This Agreement shall apply if all, wits a residence zoned agricultural shall include or a por-iion of said property, is sold. Property the residential buildings and five acrss only. Applicant/Operator shall not be rssponsible for If properq is destroyed by any cause, the 3ayxent ur,der this section, unless the property is restored to a c3ndition equivalent t3 its prior condition. IC is herein agreed and understood that the k?licant/CFerator shall not be requirad to purchase mozs than five (5) prqerzies in any give2 calendar yea=. mL ,.,e order oi acquisition of said progerties shall he based on the order of date that said przperty is first advertised or listed for sale. 9. ILll pzogerzy owners within the arsa above described. C. Property protection shall commence if the Applicant/ Operstor obtains a favorable detemination of site feasibility has been concluded or waived by a feasibility and if all litigation on the issue of colltinue for five (5) years afzer the landfill site 1a;se of Zime or settlenent. Eligibility shall hzs been accepted into long tern care by the Wisconsi?. Ce,-az+aecC of Natxial Resourcas. The term “Wisconsin Oepartaent Of Revenue, Index of Economic Factors” as herein used refers to an annual adjustnent based on the percentage of chan5e in Statsd value of Class T prooerties in on Wisconsin De?artne2t Of Revenue, Bureau of ProGerty Tax the City of Xuskaq;o resulzing from ‘*economic change“, as reported 34 . Change.” For reference, the adjustment for the years 1985 through ‘Statement of Changes in Merged Equalized Value by Type of 1990 would have been as follows: Chanqe ?ern Chanse To Equalized Value Economic Chanqs Percenc Cha_nqe 1985 1986 1986 1987 $406,627,100 401,919,900 1987 1988 435,688,300 1988 1989 457,219,100 1989 ($12,814,000) -3.158 6,072,000 1.51B 28,087,000 6.769 18,574,900 4.06* 1990 499,618,500 34,817,200 6.97* 20. Socioloaical Impacts. City of Muskego recognizes that the landfill will have an impact on the quality of life of certain residential properties listed on Exhibit ”E“ hereto attached. City of Muskego will pay 15% of the total funds received annually by the application of the direct payment or fomula payment, whichever is larger, divided equally on the basis of the number of residential units listed on Exhibit ”E” hereto attached and incoqorated by reference. “Residential Property“ shall include all properties zoned residential with a residence, and all agricnlt-rally zcned properties which contain a residence. To be eliqijle, :.“,e ow-er must have owned the property on August 1, 1990. The amcunt received, 15%, shall be divided by the number of residential properties listed on Exhibit “E”. In the event of a transfer of omershi? the payment shall run with the land. The payment shall czntinue as long as funds are received by the City from the Applicant/Operator under this Agrsement. Any residences constrxted aftsr August 1, 1990 shall not be added or included in this sociological impact provision. From the first payments made by the Landfill, by Applicant/Operator, all said funds shall apply to pay-off the negotiati-g ccmmittee eqecses fizst before this paragraph will become effective. In the event Applicant/Operator, 0 35 or any other la~dfill company, acquires a eligible residential proper-:r they shall not qualify to participate in the division of proceeds under this paragraph regardless of the use being made of the prope”ty. 21. Recvclinq Aqreement. The ApplicantfOperator shall attempt t3 make a reasonable effort to recycle materials at the site. All recycling activities shall take place at a separate location on the site away fzom the daily landfill operations, All recycling operations shall be conducted in a separate covered building or all recyclable materials shall be stored in containers that may be closed at the end of each days operation. ApDlicant/Ogerator agrees to follow all futurs rules and recplations rzgardlng rscycling that may be imposed by State, Countlr or Loc=l rzqulations. Applicant/O?erator shall be allowed to compost subject to future rules and enac-aents for approval. To the extsnt: ths City of Muskego has any authority it may replat? cmccsti2g, hcvever such aDDroval shall not unreasonably be wit-hheld. 0 22. Lix-llitztior.~ on Futar2 Cevelooment. The Applicant/ ODerator herein agrees that it will not own, operate or develop, acquire or e-xpznd any otker landfill site in the City of Muskego, whether such sits be non-hazardous or hazardous. This shall apply to Creative Resource Ventures, Ltd., all coqorations and individuals holdincj stock in Creative Resource Ventures, Ltd., Emerald PC!<, Inc. Said coqorations and individuals will sign an authorizarion +Ilowing LTerald Par!<, Inc., by the signing of this 36 Agreement, to bhd then to this provision. Nothing herein shall be const-Ted to lhit or grant future eqansion of the subject site. 23. viscellaneous Ccnditions. The terns of this Agreement shall be incoqorated upon the granting of a zoning change as terns of the conditional uses under the zoning of the City of Muskego. The Agreement, upon the signing, shall become effective upon the granting of a zoning change. The Apglicant/Operator shall give a minimum of sixty (60) working days notice to the City of Muskego and the Standing Committee prior t3 the start of const,uction of any new cells on this site. Agplicanz/Cperator may remove such clay as is necessary from the sits for the construction of the landfill. No other clay shall he rezoved fzom the landfill site without the expressed wrizzar. ce-nission, or under the rules and ordinances, of the City of ?111s!<e50. 0 24. A.3clica411 Law. The laws of t?.e State of Wisconsin shall cjovern the tzrms of this Agreement. 25. 7ziiure To Ccmulv With Affreement. If the Applicant/Operator fails to comply with the Agreement, the City of Kuskego, County of Waukesha, Citizens Affectsd, or the Szandinc Committee, either jointly or severally, shall have the richt to _=u=sue all remedies under the Agreement, and in addition t3ezets, shall have the right and, standing to pursue all renediss at l+r or at equity. 37 To the extent costs and disbursements and attorney fees are expended by the City of Muskego, County of Waukesha, Citizens Affected, or the Standing Committee, either jointly or severally, the Court shall have the right to award such fees as are just and equitable under the circumstances. Nothing in this section is to be construed to override the option of the Standing Committee to exercise authority under the Standing Committee Procedures. 26. Local Auurovals. Aoolicant/Operator and City acknowledge that there are local apDrovals which prs-oxisted all notices-by Agglicant/Operator in accordanca with the provisions of 144.445 as "local approvals" are defined. It is understmd by and bet-deen the parties that local aoorovals not eqressly waived, modified or chznqed by this Agreement shall continue in fxll fxze and effect. 0 27. Tzrrnination of Cerzzin Psrscraohs Uuon Closure of Site. The provisions of the following paragraphs shzll te,'minate when the active fill operation at the Landfill Site ceases. Those paragraphs hfe as follows: 4(c) and (d), 5, 7, 8, 10, 12, 13, 14, 17((a), (b), (c) and (g), 18, 20 and 21. All the remaining paragraphs of the Agreenent shall suzJive tSe closuze of the site. 38 Dated this day of , 1990. mRALD PARK, INC. By: President By: Secretary Dated this day of , 1990. CITY OF msmEG0 By : Mayor By : Clerk 39 APPENDIX EXHIBIT: A hp Depicting Site B Standing Committee Procedures C Well And Property Protection Area D Site Survey With Fence Outlined E Properties Eligible For Sociological Impact Funds F Sanitary Sewer Service Construction Parameters ELYIBIT "B" STANDLXG COMXITTEE PROCEDURES STANDING COEETTZE : the "City") , the County of Waukesha (herein referred to as the A. Pu-nose. The City of Muskego (herein referred to as "County") , and Emerald Park, Inc. (herein referred to as the "Applicant/Landflll Operator") agree to establish and participate closure and long-term care of the landfill site. in a committae to regulate and monitor the construction, operation, 9. Eemhershiu. Any party having a conflict of interest, best interests of the health and safety of the human environment either economic or otherdise, affecting their ability to serve the by virtue of anticipated or pending negoriations for the sale of land, gccds cr services to, or the receipt of such fzom the This shall not asply to the Applicant/Operator's representative. landfill operator shall not be appointed to the Standing Committee. Each pklic ne-mker of the committae shall serve a term of tLhrse (3) yeezs. Thers shall be no prohibition to reappointment of me-nbers of tie CommiiZee for successive terns. The city shall be allowed to isitially stagger the terns of the three (3) appointees. The commitzse shall eiect fzom amongst its members an individual to knction iz she capacity of cfiaiqezson; hcwever, the repressntacive of the landfill oFerator shall not serre as chairperscn of t5e cmimittee. The chairpersons of the committee shall havs the ri;ht ~3 vote on all issues brought before the committse. Tie >colic=c:/Operator skalldesiqnata a rapresentative to fill a t:==se representazive zzy give a proxy to another party, employee or ( 3) year tan; however, the designated under szid 2r:ry xith the completa authority of the representative representative cf =he kglicant/Ooerator who may act at the meeting of the ladfill dssignztad on the committee. 0 " C. Xeolacexent and Removal. appointed by the City and County or the Applicant/Operator may A committee member voluntazlly resiq at any time, and any ccmmitcae member appointed by t5e cizy shll autcnatically be removed from the committee effective €=om the date that mernber no longer rasides in the area as above stated. Upon the occurrence of either, the city, or if applicable, tSe cxniy shall promptly appoint a replacement. good cause acd cgcn a fcu=/fifths (1/5ths) vote of the entire Ar.y ccns~itzee xe-nber mey be renoved by the committee for committee. L D. Ouorum. T-hzee (3) members shall constitute a quo= for the puqose of transacting all business before the committee. monitoring data supplied to the Federal Environmental Protection E. Dccuments. Copies of all tecAhnical reports and Agency or tSe State of Wisconsin, Department of Natural Resources, by the Applicant/Operator pertaining to the landfill site described herein shall be provided free of charge to each member of the Committee. F. Meetinas. The committee shall establish a schedule of meetings for the purposes of review, explanation and discussion of said technical data and the status of the landfill site meetings of the committee may be called by any member of the construction, oDeration, closure and long-term care. Special committee upon five (5) days written notice for the purpose of addressing any issue of concern involving the landfill site construction, operation or closure. Upon the occurrence of an event deemed by any committee member to constitute an emergency conditioc, a s2eclal meeting may be called with less th2.r. five (5) dsys Rotice, 2rcvided due diligence is unde--"=.ken in an atteqt to reach each member personally. The public may attend any committee meeting; however, to the extent not required by law, Wisconsin Statutes Chapter 19 shall not appl.1. "Due diligence" shall be be personally delivered or sent by certified mail (with a receipt ccmplied with when any notice called for by this agreenent shall evidencing notics prior to the meeting) to all members at the address listed by them xizh the committee. 0 the ri5ht ad responsijility to cgnduct periodic on-sit inspections G. C~!rnitZs~ 3eszonsibilitv. The committee shall have of the landfill site cz shall have the right to designate a representative t3 under:=:ce the inspection. Eowever, the committee or regrsssntzti-Ts shall contact the employee in authority or apparent aut?.orL:;r on the sita and advise said employee of any on- site insgection. If in the judgment of the majority of the committee members the l;.zcifill site or operations at the sits ars not in compliar.ce wit5 the provisions of this agreement, the commitzee shall kave tk right to serve notice of non-compliance specifically stating the violation by the Applicant/Operator. Such directive shall be in citing at which time the Apolicant/Operator shall either corzsct the violation forthwith or indicate in writing any objecticns i: has t3 the committee's decision. site conditions, such as dust, noise, odor and debris, can present S. Zxercenc-r authorit-7 t3 Ccmmictee. Certain landfill an immediate noxious cardition requixing that emergency measures be taken to cause the condition to cease and desist. Upon complaint to the cmnittee, the ccmmitZse may immediately investigats tke landfil1 condition. If in the committee's opinion, Agreement, t:le c3mni:tee shall inmediately infom the by majority vccs, there is a violation of a condition of this 2 =? .. Applicant/Operator to correct the violation. If said violation is not immediately corrected the Applicant/Operator agrees to comply with orders of the Standing Committee to either corzsct or cease operation for a period of not less than one (1) day with the exception of Friday and Saturday which shall not exceed three (3) days. Nothing herein shall be construed to limit or prevent the City of Xuskego from exercising its rights under the Safety Ordinances if there is a threat to public health or safety. In the event of a special meeting of the committee if the majority of the committee determine there is a violation and the Applicant/Ogerator refuses to correct said condition, the committee by its appropriate representatives may bring an action in the Waukesha County Circuit Court, including an action for temporary injunction, restraint, mandamus or may seek any other relief at law or equity. Nothing herein shall limit the City of Muskego, or County of Waukesha, to othemise enforce this Agreement. In the event that said injunction, order or mandamus is granted or that the camnittee is succsssful concerning said litigation the Applicant/Operator shall pay the standing camittse actual attorney fens inc-=red ta bring said action. Nothing herein shall require the chairperson or the committee to take Court action if they deen a2propriaza another course of action, either under this Agreement of otherdise. I. Committee ?owers. In the event of a complaint during the construction, operation, closure and long-te-m care of the landfill sits which is 5raught to the attention of the committee, the conunittee or designzted representative shall have the right to with said investigation. Upon a deternination that there is no investigate the complaizc. The ApGlicant/Operator shall cooperate violation, or that said condition has bean corrected to the satisfaction of tke comi~tee at the tiqe the cammitten meets, the committze shall so advise the complainant. There shall be no f-zthez =2s;ozsi5iility cn the committse to act concerxing said committae concerning any alleged violation by the landfill issue. The pujlic shall have the right to speak before the Applicant/Operator. in the event the committee deternines by majority vote that there is s. violztion, the camittee shall order the within a reasonable time. The Apglicant/Operator shall have a duty Applicant/Operatsr to 3ring the landfill site into compliance to coocerate wish the dizecti're of the ccmmittse. For a second or continuing vFola=ion of a same or similar nature the committee shall the fine exceed S400.00 per day for each day of violation. shall have the right to fine the operacor. However in no event This shall not lL?it azy other rights of the commit:ee or the municisalitiss under the fe"s of this agzeesent. L. Contact Person. The Applicant/Operator shall supply the local comitiee with the names, addresses and telephone numbers of three representatives of the Applicant/Operator, one of whom shall be available at all times, including weekends, holidays, and non-operative hours. Each of the three parties, individually, shall have cmplete authority to act and bind the Applicant/Operator concerning all matters contained in this Agreement and relevant to issues involving the landfill site. 5 December 18, 1990 EXHIBIT C Prooerty and Well Protection Area All residents within the area defined as follows: All that part of Section 25, 26, 35 and all of Section 36, Town 5 North, Range 20 East, City of Muskego, Waukesha County, Wisconsin, bounded and described as follows: Beginning at the Southeast corner of Section 36; thence Westerly on Union Church Road, and the South line of Sections 35 and 36 to a point of the West 1/8 line of Section 35; thence Northerly along said 1/8 line to a point of intersection wit5 Tho62 Road; thence continuing Northerly along the centarline of Thode Road to a point 200 feet North of the centerline of S.T.H. 1136'1; thence Northeasterly along a line 200 feet parallel to the North right-of-way line of S.T.3. "36" t= a Foizt of intsrsaction with t5e East line of Section 25, said point being 200' Noryh of S.T.H. '13611; thence Southerly along the East line of Sections 25 and 36 t3 the point of beginning. 30E. $ttac!ed k.ersto s2e pocket part idencifisd as Exhibit C-1, an aerial phctsgrzph shockg the bour.dsriss contained i? Lye legal descripticr! move desczibed. EW3iT "E" T'IE P9OPF2T'I LISTING Owner & Tax Kev No. 1. 2. 3. 4. 5. 6. 7. a. 9. 10. Margaret Ann Ivers s9a W12532 Loomis Road Muskego, Wisconsin 53150 2257 975 Judith A. Berka W125 sgaoa ~orth Cape Muskego, Wisconsin 53150 2257 976 Clarence J. Wagner 5835 S. 108th Street Hales Ccrners, WI 53130 2257 gas Mzr3aret L. Slzk S38 W12772 Loomis Drive b!uskaqo, Wisconsin 53150 2257 986 Karl L & Dawn Brien 538 E12806 Loomis Road Xuskqo, Xiscsnsin 53150 2257 087 - 9Ve-z"e d . Bartes ssa ~12878 LOOQ~S .?cad XLikaqo, "I 2257 9a9 XZZk x. xaiss5r=ct SSS iii25C4 Loomis Road 2.i~ika5-3, Wisconsin 53150 2257 990 Marilyn Canfield 538 W12932 Loonis Road Kcskeqo, Kisconsin 53150 2257 991 Jchz F. Zckstein S9a Wi2970 Loonis Road V-skeso, PiisC3Rsin 53150 2257 992 3.5cez= C. 3oeh F:s:car;c, XI 53150 *:24 S13227 5. It:tS St. 2253 sa0 53150 7- 1 A A A A A A A A D E Fl tf .. I. Owner E+ Tax Kev No. - Csde 11. 12 13. 14. 15. 16. 17 19. 19 20. Sylvla Petroviak Muskego, WI 53150 2259 981 Claude A. Eigenberger S99 W13201 Loomis Road Muskego, WI 53150 2259 982 Nornan Jung Muskego, WI 53150 S39 W13277 Loamis Drive 2259 983 Garald Martins SlOO W13399 Loomis Drive Muskego, Wiscansin 53150 2253 495 Josesh Lentz SlOO W13421 Loomis Dr. :?uskego, Xisconsin 53150 W124 Sl0077 S. 124th St. 2259 996 John Wertz SiOO X13449 Locnis Drive F~skeqo, Wisc3nsin 53150 2259 987 aar5ara L. Tesch SiOO X13475 Loccis Drive Eluskeqo, Wisccnsin 53150 2259 999 LZ~FI & Connie Losssan SiOO W13497 Loonis Drive Xuskego, Kisconsin 53150 2259 999 Donald Di3b sioo x13547 Loosis Drive Xuskeqo, Wisconsin 53150 225s 390 F:ssell/Ccrxa Jazkcwski Si02 Vi13915 Loonis Drive Xcs:cqo, Wisccnsin 53150 2253 992 D E ** A A A A x x 21. 22. 23. 24. 25. 25. 27. 28. 29. 30. Alice L. Marold SlO2 W13945 Lomis Drive Muskego, Wisconsin 53150 2259 993 001 Loretta Jug S39 W13259 Loomis Drive Muskego, Wisconsin 53150 2259 995 Jeffrey h Kathleen Arbinger S99 W13381 Loomis Drive Muskeqo, Wisconsin 53150 2259 995 001 Joseph h P. Baillargeon W145 S3675 Grovevay Lane Muskego, Wisconsin 53150 2259 995 003 Verner L. Lund SlOO E13510 Locmis Drive Nuskego, Wisconsin 53150 2259 995 Daniel/Lynn Fischer SiOO X13474 Looinis Drive Kcikegc, Xisccnsin 53150 2259 997 Eqeze S 1. Sc'L-ltz SiOO Wli402 Locnis Drive Fuskezo, Piiscansin 53150 2259 9?9 Zhund Nalkowski W124 S10293 S. 124th Street ~uskaso, Wisconsin 53150 2250 989 2obert Z. Wnite SS.9 W12953 Loomis Drive xcskeqo, ;.risoczsin 53150 2250 993 Ronald ?=us2 S49 E12917 Lcomis Road Xcskego, Piiscansin 53150 2250 994 - Csde A A A A A A A A A A 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. Gme & Karen Lang S99 W12397 Loomis Road Xuskeqo, Wiscansin 53150 2250 995 Zllsvcrth W. Brace S39 Wl2857 Loomis Road Muskecjo, Wisconsin 53150 2260 996 David E. Roopmeiners S39 W12817 Loomis Road Muskacjo, Wisconsin 53150 2260 997 Evelyn/Xargaret Krause Wl25 53905 NoY-3 Cape Muskecjo, Wisc3nsin 53150 i26a $22 Dale & ?!=crao-n Xartin Si03 SI4578 Lacnis Drive 53150 Drive 53150 Drive 53150 Drive 53150 Drive 53150 - Code A A A A A A A A x A \ 41. 42. 43. 44. 45. 46. 41. 4a. 49. 50. N. J. Sobieski S103 W14a23 Loomis Drive Muskego, Wisconsin 53150 2298 978 Robert ti Sharon Skiff 5104 W15043 Loomis Drive Muskego, Wisconsin 53150 2298 979 Wieselsann Trust S104 W15169 Loomis Drive Muskego, Wisconsin 53150 2298 980 Mayme Wieselmann S104 W15169 Loonis Drive Huskego, Visconsin 53150 2298 981 001 S104 W15C20 Loosis Drive Daryl & EarSara Condon Kuskego, Wisconsin 53 150 ~2258 997 001 aton S%rich sll0 Vi1:aoo Un'N chcrch Muskeqc, 'cliscans!.n 53150 2295 959 Ea~~ey & Zacqeline ScYdeitzer SllO WiJi30 Un'N Church ~uskego, Wisconsin 53150 2300 959 R & D Kitdstae.'t 7620 E. Wind La:<% Road Wind Lake, Wisc-nsin 53185 2301 997 JOS. Loslie C"-' & "..,il s103 W13999 Locnis Drive Eluskego, Wiscsnsin 53150 2302 999 Frznlc Gakoy 111 5. ELI Grcrve Road BmckZie2, WZ 53005 2303 997 Code - A A A A A D E F1 ** D A D 0 Fl ** Owner & Tax Kev No. 51. 52. 53. Mary Addy Anderson SllO W13458 Un'N Church Muskego, Wisconsin 53150 2303 998 Colleen Duckwitz c/o Emerald Park, Inc. 6411 Mineral Point Road Suite B Madison, Wisconsin 53705 2303 999 Elizabeth Johnson 2304 W. National Avenue Milwaukee, Wisconsin 53204 2304 998 - Ccde D D D E *t EXHIBIT F EMERALD PARK LANDFILL SANITARY SEWER SERVICE CONSTRUCTION PARAMETERS Eauioment 1 - Pre-fabricated sewage lift station capable of a minimum peak flow design capacity of 156 gallons per minute. 1 - WetwellStructure 1 - Standby Power Source 7050 LF. 6" Sewage Force Main Lift Station location shall be at the approximate center of Section 36 adjacent to US. Highway 45. The 6" forcemain shall parallel U.S. Highway 45. From the point of connection to the intersection of Ryan Road and North Cape Road in the City of Muskego.