Loading...
CCR1991081COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #El-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 landfll for the disposal of municipal, commercial and industrial non-hazardous waste; and 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 citizenry, and by virtue of Chapter 144 of the Wisconsin Statutes, has including the environmental health and economic concerns of its appointed members to a local negotiating committee 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 landfill agreement, copy which is attached hereto, delineating, only those provisions allowable by law. 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 Mayor and Clerk are authorized to sisn the landfill a agreement in the name of the City. - BE IT FURTHER RESOLVED that, pursuant to Section 144.445 Wis. Stats., which authorizes the local negotiating committee to negotiate with respect to the applicability or non-applicability of any which is the subject of the landfill agreement and upon which said pre-existing local approvals, including zoning, the parcel of land Furthermore, Emerald Park, Inc. is hereby granted a conditional use landfill shall be located is hereby zoned as Industrial 1-2 Zoning. 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 use permit and zoning granted by this resolution, and such violation on the part of Emerald Park, Inc. shall The zoning classification and conditional use granted by this authorize the City of Muskego to revoke said Conditional use permit. be enforceable as any other zoning ordinance and conditional use grant resolution shall be placed on the City Zoning map and the same shall in the City of Muskego. DATED THIS 23RD DAY APRIL , 1991. CITY OF MUSKEGO ATTEST: Wayne G. Salentine, Mayor City Clerk 4/91cac 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 "D") 5 . Zoning Approval ............... 11 6 . Final Use .................. 13 I . Direct Payment To City ............ 13 A . Base Formula .............. 13 B . Alternate Formula ........... 13 8 . Direct Payment To County ........... 15 9 . Records ................... 15 10 . Negotiating Committee Expenses ........ 15 11 . Municipal Responsibilities To Constituents ................. 16 12 . Exception .................. 17 13 . Area To Be Served By Facility ........ 18 14 . Assignment, Transfer And Sale ........ 18 i . ?. 15 . 16 . 17 . 18 . 19 . e 20 . 21 . 22 . 23 . 24 . 25 . 26 . 27 . Warranty. Indemnification And Liability .................. 18 Liability Protection In General ....... 23 Covenants Of Landfill Operator Regarding Application. Construction. Use And Operation .............. 24 A . Types of Waste ............. 24 C Traffic Matters 26 B Hours of Operation 25 . ........... . ............ D . Compliance with Applicable Law ..... 27 E . Environmental Monitoring ........ 27 F . Future Environmental Considerations . . 29 G . Waste Stockpiling ........... 30 H . Odor Abatement ............. 30 I . Dust Abatement ............. 31 J . Blowing Debris Control ......... 31 K . Landfill Vector Control ........ 32 M Drainage and Erosion Control 33 L Mud Tracking 32 Contested Case Hearing ............ 33 Property Protection Provision ........ 33 (Incorporating Exhibit "C") Sociological Impacts ............. 36 (Incorporating Exhibit "E") Recycling Agreement ............. 37 Limitations On Future Development ...... 37 Miscellaneous Conditions ........... 38 Applicable Law ............... 38 Failure To Comply With Agreement ....... 38 Local Approvals ............... 39 Termination Of Certain Paragraphs Upon Closure Of Site ............. 39 . .............. . ...... 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 in 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 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 0 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 _th~~i;itre9.:con~nt~cl;i~~~~~~~;~~~~~~~~. The two ( 2 ) resident ,..... .:< ...L /.:< i.. I .:. ...I...... ?. ,.::::... I ....::. I..:.) I.:..: ....:... ..l^l I.... :.:...~..~ ..... I...I: i.i ,..,. :~, .: , ,.... 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. 2 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. a 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. Responsibilitv 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 buildings and shall comply in all respects with local fire protection ordinances that apply to the on-site buildings. 4. Construction and Operation Requirements. 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. ReDhCement of Water Sumly. 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 i) 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 permanent 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 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. a e 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. Drainwav. 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/Operator'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 ;_'::~.,~ ..., ;. I ., ...... ~... ~:.,:: ........ :::::::'. .~:......,..I. .....:. :.: .,...... ~ ............................. .,~~.. :.~...~. under~,~e_-ltetms:,:i#fis.t~~~~:pa,~,~g~~~~... ~.~~~~fter the initial restoration %:; .,.. ~t:~:~.x,:ir.*.*..*.~,..~ ...,. :~:,. ... ~x.: .. .............................. >:,.~.+.~,?:&;?;< of the drainway, Applicant/Operator will be responsible to clean sedimentation caused by the site ~~~~~~:ht?~~~ii~~~~~~~,~~ ~,~.~, .................................................. ,,: li ..,... <,",,.A?> . . . . . .. :.. , . . . . . . . . . ,.. . ... .;,: ,, ......,...., , , , ~ ,... I.I ..............,... : ..........~.~.~.~., 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. Sewer 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 out in 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 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 1.5 years commencing with the date of licensing. If however at any time after 1.5 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. 8 9 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 provided that said relocation of wetlands will have no adverse effect or impact on property off the site, wetlands may be altered accordingly. 0 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/Operator 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. e 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. 10 11 ... development of ity, however, do the landfill site &-ij es not waive any rights that it has which do not violate Wisconsin or federal law. 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. 7. Direct Payment to City. 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 1-A., above, the Applicant/Operator shall pay in accordance with the formula set 13 out here if the dollar amount in a given year exceeds the dollar amount under the “Base Formula”. 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. The fee shall be based upon the following parameters and formula: e 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 landfill resulting in the net tons placed in the shall be multiplied by the total space of the Operator shall pay $1.40 per ton of waste placed landfill for the preceding year. The Applicant/ in the landfill. The $1.40 cost per ton shall be adjusted annually based upon the Consumer Price Index, All Urban Consumers, (CPIAUC). The annual payment would then be based upon the following formula: 14 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 the National Consumer Price Index - All Urban Consumers. However, the annual increase shall not be less than 4% per annum or greater than 7% per annum in any calendar year. 8. Direct Pavment to County. 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. Calculation of the 2.5 cents per ton shall be based on the formula set out in paragraph 7(b). a 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. Neaotiatina committee Expenses. 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 15 representatives for attendance at negotiating committee meetings, and for all other members of the committee the amount of Thirty- five ($35.00) Dollars per meeting. In addition thereto, Applicant/ Operator herein agrees to reimburse the City of Muskego for all reasonable and necessary expenses incurred by the committee, including attorney fees and disbursements, independent consultant fees and disbursements, and other necessary and related expenses incurred by the local negotiating committee. Any outstanding balance not paid during negotiations by Applicant/Operator shall be paid upon the signing of the Agreement by the City of Muskego. Applicant/Operator shall be given a credit against the amounts due and owing under the direct payment to the City for ..I,. ~~&~~&~f;$&~ .... ~,..i ....: ..... ..I: ..~,,;: any amounts paid for negotiating committee expenses, as defined in this ~ <.:,, 11. MuniciDal 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. 16 Nothing in this agreement shall be construed to limit the City in passing any enactment or requiring any condition or permit which is not expressly prohibited by Wis. Stat. 6. 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 Agreement in other respects shall continue in full force and effect . 0 e 12. Exception. 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. 17 13. Area To Be Served BY Facility. Applicant/Operator can accept waste only from a source which is legal to accept under 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. Assianment, 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 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. Warrantv. 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 18 landfill site. Applicant/Operator herein agrees to warrant, indemnify and defend the City of Muskego, County of Waukesha, l:,:.II -,apl:;:i&*ff, 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". Landfill Siting B&~ajjjpc&,&?&tw ::<.:: .... ('.'.'.'.. x.:<.:.??:'.. ". :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, a 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 liabii-ity insurance which names the Additional Insureds ; 2. A letter of credit guaranteed and naming theAdditiona1 Insureds as beneficiaries; 3. Cash escrow account in the names of the Additional Insureds, as beneficiaries; or 19 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 Applicantfoperator under Wis. 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 Applicantfoperator may convert to another form 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 20 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 letter of credit and the financial assurance contract with the guarantor shall so provide. ~ny 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. a The term "Indemnitee" shall include the City of Muskego, its employees, agents, counsel 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 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 21 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. 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, 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 22 Landfill Operator, Indemnitor, for total responsibility for payment 0 of the claim. 16. Liability Protection In General. The Applicant/ Operator will be responsible for injuries, sickness, disease, damage, personal 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 0 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 23 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 Applicant/Operator. 17. Covenants Of Landfill Operator Reqardinq Application, Construction, Use and Operation. A. RrDes 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 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 24 Wisconsin, or Federal Law, whichever requirement is more stringent. Applicant/Operator agrees that no waste will be accepted from any jurisdiction or entity that does not comply with Wisconsin Act 335. If said act is amended, changed or deleted its application will vary accordingly. B. Hours Of Operation. 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/Operator 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 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 25 obtaining the approval of the Chairman of the Standing Committee. If the Chairman denies the approval, the Applicant/Operator may make such request to the entire Standing Committee and have available the normal procedures as outlined under the Standing Committee, Exhibit "B" . 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 Municipal directives concerning traffic controls, site access and traffic safety considerations and shall pay such expenses as necessary to create an appropriate traffic pattern in 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. 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. 26 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 ordinance8 to the extent such ordinances are not in violation of Wis. Stat. s. 144.445. 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 or as set forth in the feasibility study whichever is more restrictive and plan of operations approvals for the landfill, and shall, at a minimum include: ODerational Ground Water and Surface Water Monitoring A. SamDle Locations 1. Monitorinq Wells MW-3A and B MW-4A, B and C MW-5A and B MW-8A and B MW-13A, B and C MW-14A and B MW-16A and B MW-18A and B 2. Gradient Control System At inclined lift station 3. Surface Water At the sedimentation basin outlet 21 B. SamDlinu Parameters 1. Quarterly sampling parameters Field Temperature Field Conductivity (Field at 25'C) Field pH Alkalinity cod Hardness Chloride Dissolved Iron Total Suspended Sediment basin only) (Sedimentation 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 1,2 - Dichlorobenzene 1,3 - Dichlorobenzene Dichdlorodifluoromethane 1,4 - Dichlorobenzene 1,l - Dichloroethene 1,2 - Dichloroethane 1,l - Dichloroethane trans - 1,2 - Dichloroethene 1 , 2 - Dichloropropane cis - 1,3 - Dichloropropene Methylene Chloride trans - 1,3 - Dichloropropene Tetrachloroethene 1,1,2,2 - Tetrachloroethane 1,1,1 - Trichloroethane 1,1,2 - Trichloroethane Trichloroethene Vinyl chloride Trichlorofluoroemethane Chlorobenzene Benzene 1,3 - Dichlorobenzene 1 I 2 - Dichlorobenzene 1,4 - Dichlorobenzene Ethylbenzene Toluene 28 C. Water Level Measurements At all monitoring wells and in gradient control system. D. Frecruency Monitoring wells: Quarterly or Annually During Operation as Noted Sedimentation Basin: Once a year while discharging. Sampling shall continue for the designated parameters even if the DNR determines in the parameters is not required. future that sampling for one or more of such of Natural Resources or the Environmental If at any time it is determined by the Department Protection Agency that additional environmental monitoring requirements are needed, the Applicant/Operatorwill immediatelycomply. Such of the Landfill. to groundwater, leachate, gas or other features 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 29 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. 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 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 Stockpiling. 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 30 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 site 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. 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 Standing Committee shall determine need. Applicant/Operator agrees to maintain a vegetative cover on all areas which are disturbed and not being actively used, and in addition thereto, on all berms constructed around the perimeter of the site. J. Blowina Debris Control. In addition to a berm and appropriate fencing around the perimeter of the site, the Applicant/Operator shall: i. ii. iii. Install additional windbreaks (trees and shrubs. The Applicant/Operator will use portable fencing windscreens in the active areas of the site. The fencing which will be used as controls will be cleaned of litter and debris daily, and returned to the active area for disposal. Further, if any litter escapes the landfill, the 31 Applicant/Operator agrees to pick up prior permission of the owners, and litter on neighboring property with disposal. return it to the active area for iv. During windy weather, the Applicant/ Operator will: a. maintain the disposal area in well-screened areas. b. compact the waste loads immediately after waste is deposited. c. apply liberal quantities of cover soil. In addition, Applicant/Operator agrees to comply with all provisions of NR 504.05(10)(a) regarding fences and windblown debris control. K. Landfill Vector Control. The Applicant/Operator e agrees to control pests or vectors through proper compacting and covering the waste and grading of the site to eliminate ponded water, and by implementing proper rodent baiting program inside the fenced area. The Applicant/Operator further agrees to pay for a professional pest control specialist to regularly monitor the site no less than four times per year. L. Mud Trackinq. The Applicant/Operator agrees to maintain the paved entrance free of mud tracked from vehicles from the landfill. This will be done by maintaining graveled access roads inside the site and sweeping or washing down paved roads inside the site. 32 M. Drainaqe and Erosion Control. The Applicant/ Operator agrees to submit final drainage and erosion control plans for approval by the Waukesha County Soil Conservation Service, and agrees to provide copies to the Standing Committee, the Clerk of the City of Muskego, and the Clerk of the County of Waukesha. 18. Contested Case Hearinq. For and in consideration of the consummation of this Agreement, the City of Muskego agrees to dismiss the contested case hearing concerning the feasibility report, and the City further agrees not to commence any contested case procedures against the Applicant/Operator concerning the plan of operation and/or licensure of the landfill or to petition for judicial review of the Wisconsin Department of Natural Resources decision pertaining to the feasibility report, plan of operation and/or licensure of the landfill. In addition, the City of Muskego agrees to withdraw from the pending litigation challenging either environmental impacts, assessments or feasibility of the proposed landfill. 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 their property tax statement as of December 31, less than the fair market value as calculated on 1990, plus 10% of that amount. This figure shall increase annually based on the Wisconsin 33 Department of Revenue, Index of Economic Factors property shall be listed for a period equal to for like property in the City of Muskego. Said the average listing time then prevailing as recorded by the Milwaukee Realtors Multiple Listing Service, however, not to exceed 150 days. If at the expiration of that period of time the property has not sold at the value Applicant/Operator to pay them the 1990 fair listed, the property owner may request the market value as listed on the real estate property tax statement, plus lo%, plus the Wisconsin Department of Revenue, Index of be eligible the property owner(s) may list the Economic Factors for like property. In order to property themselves but must advertise it in a newspaper of general circulation not less than twice per week. The property owner( s) may choose to use a real estate broker and all advertising and promotion shall be at the discretion of said real estate broker. All property owners within the area above described, to be eligible for said relief, must have owned the property on or before December owned '.said property before December 31, x:3%,% 3 1, ;29g:o ,.:....:. ~.,:,,< .:,.; however if the property owner( s) who made a transfer- a) to a spouse, b) to a parent, c) to a child, d) to a step-parent or step-child, e) to a son-in-law or daughter-in-law, al solelv in order to Drovide a release for f) to a trust, trustee, principal or agent, - iT:i*.,.,." (-I (h) by Will, decent or survivorship, security, debt, or obligation, .. such rights as the principal owner(s) holding the property before December 31, $99@ shall transfer to any new owner under such provlsions and upon their sale they may exercise the option herein stated. Ownership as defined in this section of the Agreement shall include any contract or lease with option to purchase. .i.:,;.ii.: ..,. 34 Applicant/Operator shall not be responsible for the If property is destroyed by any cause, the Applicant/Operator shall not be required to purchase It is herein agreed and understood that the more than five (5) properties in any given calendar year. The order of acquisition of said properties shall be based on the order of date that said property is first advertised or listed for sale. B. All property owners within the area above described. C. Property protection shall commence if the Applicant/ Operator obtains a favorable determination of site feasibility has been concluded or waived by a feasibility and if all litigation on the issue of lapse of time or settlement. Eligibility shall has been accepted into long term care by the continue for five (5) years after the landfill site Wisconsin Department of Natural Resources. The term "Wisconsin Department Of Revenue, Index of Economic Factors" as herein used refers to an annual adjustment based on the percentage of change in stated value of Class T properties in on Wisconsin Department Of Revenue, Bureau of Property Tax the City of Muskego resulting from "economic change", as reported "Statement of Changes in Merged Equalized Value by Type of Change." For reference, the adjustment for the years 1985 through 1990 would have been as follows: Equalized Chanue From Chanue To Value Chnnue Chanqe Economic Percent 1985 1987 1986 1986 $406,627,100 1987 [$12,814,000) 401,919,900 -3.15% 6,072,000 1988 1.51% 415.688.300 28.087.000 6.76a ~~ ~~ ~~. ~~. 1988 1989 1989 457,219,100 1990 499,618,500 34,817,200 18,574,900 6.978 4.069 .~~" 35 20. Socioloaical ImDacts. 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 formula payment, whichever is larger, divided equally on the basis of the number of residential units listed on Exhibit "E" hereto attached and incorporated by reference. "Residential Property" shall include all properties zoned residential with a residence, and all agriculturally zoned properties which contain a residence. To be eligible, the owner must have owned the property.on August 1, 1990. The amount received, 15%, shall be divided by the number of residential properties listed on Exhibit "E". In the event of a transfer of ownership the payment shall run with the land. The payment shall continue as long as funds are received by the City from the Applicant/Operator under this Agreement. Any residences constructed after August I, 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 negotiating committee expenses first before this paragraph will become effective. In the event Applicant/Operator, or any other landfill company, acquires :~~.~~~~~~~.~~~~;:~~gn eligible residential property they shall not qualify to participate in the division of proceeds under this paragraph regardless of the use being made of the property. .................... ..,...,...,.,,.,.., I.I .,... ~ ......................... ~:~ ..... ..^..i.i.i.,~(I; ~ +,:i."*.x.>" ...* ~:-~~" ~..~*~~* 36 21. Recvclina Aureement. The Applicant/Operator shall attempt to make a reasonable effort to recycle materials at the site. All recycling activities shall take place at a separate location on the site away from 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. Applicant/Operator agrees to follow all future rules and regulations regarding recycling that may be imposed by State, Applicant/Operator shall be allowed to compost subject to future rules and enactments for approval. To the extent the City of Muskego has any authority it may regulate composting, however such 0 approval shall not unreasonably be withheld. 22. Limitations on Future DeveloDment. The Applicant/ Operator herein agrees that it will not own, operate or develop, acquire or expand any other landfill site in the City of Muskego, whether such site be non-hazardous or hazardous. This shall apply to Creative Resource Ventures, Ltd., all corporations and individuals holding stock in Creative Resource Ventures, Ltd., Emerald Park, Inc. Said corporations and individuals will sign an authorization allowing Emerald Park, Inc., by the signing of this Agreement, to bind them to this provision. Nothing herein shall be construed to limit or grant future expansion of the subject site. 37 23. Miscellaneous Conditions. The terms of this Agreement shall be incorporated upon the granting of a zoning change as terms 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 Applicant/Operator shall give a minimum of sixty (60) working days notice to the City of Muskego and the Standing Committee prior to the start of construction of any new cells on this site. Applicant/Operator may remove such clay as is necessary from the site for the construction of the landfill. No other clay shall be removed from the landfill site without the expressed written permission, or under the rules and ordinances, of the City of Muskego. 24. ADDlicable Law. The laws of the State of Wisconsin shall govern the terms of this Agreement. 25. Failure To ComDlv With Aareement. If the Applicant/Operator fails to comply with the Agreement, the City of Muskego, County of Waukesha, Citizens Affected, or the Standing Committee, either jointly or severall;, shall have the right to pursue all remedies under the Agreement, and in addition thereto, shall have the right and standing to pursue all remedies at law or at equity. 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 38 equitable under the circumstances. Nothing in this section is to be construed to override the option of the Standing Cormnittee to exercise authority under the Standing Committee Procedures. 26. Local ADprOValS. Applicant/Operator and City acknowledge that there are local approvals which pre-existed all notices by Applicant/Operator in accordance with the provisions of 144.445 as "local approvals" are defined. It is understood by and between the parties that local approvals not expressly waived, modified or changed by this Agreement shall continue in full force and effect. 27. Termination of Certain ParaaraDhs Upon Closure of Site. The provisions of the following paragraphs shall terminate when the active fill operation at the Landfill Site ceases. Those paragraphs are 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 Agreement shall survive the closure of the site. Dated this day of , 1991. ElIERALD PARK, INC. By : President By : Secretary 39 Dated this day of , 1991. CITY OF MUSKEGO By: Mayor By : Clerk 40 APPENDIX EXHIBIT: A Map 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 I Exhibit "A" Each public member of the committee shall serve a term of three (3) years. There shall be no prohibition to reappointment of members of the committee for successive terms. The city shall be allowed to initially stagger the terms of the three (3) appointees. The committee shall elect from amongst its members an individual to function in the capacity of chairperson; however, the chairperson of the committee. The chairpersons of the committee representative of the landfill operator shall not serve as shall have the right to vote on all issues brought before the committee. The Applicant/Operator shall designate a representative to fill a three (3) year term; however, the designated representative may give a proxy to another party, employee or representative of the Applicant/Operator who may act at the meeting under said proxy with the complete authority of the representative of the landfill designated on the committee. C. Replacement and Removal. appointed by the City and County or the Applicant/Operator may A committee member voluntarily resign at any time, and any committee member appointed by the city shall automatically be removed from the committee effective from the date that member no longer resides in the area as above stated. Upon the occurrence of either, the city, or if applicable, the county shall promptly appoint a replacement. good cause and upon a €our/fifths (4/5ths) vote of the entire Any committee member may be removed by the committee for committee. EXHIBIT "B" STANDING COMMITTEE PROCEDURES STANDING COMMITTEE: A. Purpose. The City of Muskego (herein referred to as the "City"), the County of Waukesha (herein referred to as the "County"), and Emerald Park, Inc. (herein referred to as the "Applicant/Landfill Operator") agree to establish and participate closure and long-term care of the landfill site. in a committee to regulate and monitor the construction, operation, either economic or otherwise, affecting their ability to serve the B. MembershiD. Any party having a conflict of interest, best interests of the health and safety of the human environment by virtue of anticipated or pending negotiations for the sale of land, goods or services to, or the receipt of such from the landfill operator shall not be appointed to the Standing Committee. This shall not apply to the Applicant/Operator's representative. 1 r~ a for the purpose of transacting all business before the committee. D. Quorum. Three (3) members shall constitute a quolum E. Documents. Copies of all technical reports and monitoring data supplied to the Federal Environmental Protection Agency or the 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 construction, operation, closure and long-term care. Special meetings of the committee may be called by any member of the 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 condition, a special meeting may be called with less than five (5) event deemed by any committee member to constitute an emergency days notice, provided due diligence is undertaken in an attempt 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 apply. "Due diligence" shall be be personally delivered or sent by certified mail (with a receipt complied with when any notice called for by this agreement shall evidencing notice prior to the meeting) to all members at the address listed by them with the committee. e G. Committee Responsibilitv. The committee shall have of the landfill site or shall have the right to designate a the right and responsibilityto conduct periodic on-sit inspections representative to undertake the inspection. However, the committee apparent authority on the site and advise said employee of any on- or representative shall contact the employee in authority or committee members the landfill site or operations at the site are site inspection. If in the judgment of the majority of the not in compliance with the provisions of this agreement, the committee shall have the right to serve notice of non-compliance directive shall be in writing at which time the Applicant/Operator specifically stating the violation by the Applicant/Operator. Such shall either correct the violation forthwith or indicate in writing any objections it has to the committee's decision. H. Emeraencv Authoritv to Committee. Certain landfill site conditions, such as dust, noise, odor and debris, can present be taken to cause the condition to cease and desist. Upon an immediate noxious condition requiring that emergency measures complaint to the committee, the committee may immediately by majority vote, there is a violation of a condition of this investigate the landfill condition. If in the committee's opinion, Agreement, the committee shall immediately inform the 2 'e 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 correct or cease operation for a period of not less than one (1) day with the days. Nothing herein shall be construed to limit or prevent the exception of Friday and Saturday which shall not exceed three (3) City of Muskego 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/Operator 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 otherwise enforce this Agreement. In the event that said injunction, order or mandamus is granted or that the committee is successful concerning said actual attorney fees incurred to bring said action. Nothing herein litigation the Applicant/Operator shall pay the standing committee shall require the chairperson or the committee to take Court action if they deem appropriate another course of action, either under this Agreement of otherwise. e the construction, operation, closure and long-term care of the I. Committee Powers. In the event of a complaint during landfill site which is brought to the attention of the committee, the committee or designated representative shall have the right to with said investigation. Upon a determination that there is no investigate the complaint. The Applicant/Operator shall cooperate violation, or that said condition has been corrected to the committee shall so advise the complainant. There shall be no satisfaction of the committee at the time the committee meets, the further responsibility on the committee to act concerning said committee concerning any alleged violation by the landfill issue. The public shall have the right to speak before the Applicant/Operator. In the event the committee determines by majority vote that there is a violation, the committee shall order the Applicant/Operator to bring the landfill site into compliance within a reasonable time. The Applicant/Operator shall have a duty to cooperate with the directive of the committee. For a second or continuing violation of a same or similar nature the committee shall have the right to fine the operator. However in no event This shall not limit any other rights of the committee or the shall the fine exceed $400.00 per day for each day of violation. municipalities under the terms of this agreement. ,- shall disagree with the order or directive of the committee under J. Riaht to Review. In the event the Applicant/Operator paragraph I, the Applicant/Operator shall have the right to appeal to arbitrators appointed by mutual consent of the parties. The arbitrators shall determine (a) whether or not the committee has were arbitrary and capricious, or (c) whether or not the abused its discretion, or (b) whether or not the committee actions committees' actions were based on substantial facts in the record. Applicant/Operator agrees to be bound by the determination of the arbitrators. All hearings shall be open to the general public who shall have the right to address the hearing examiner. In the event the arbitrator determines the actions of the committee were in violation of the aforesaid standards, the either dismiss the complaint or remand the matter to the committee arbitrator may enter such findings as he deems appropriate, and for further proceedings not inconsistent with his ruling. In the event the arbitrators determine the findings of the committee were not (a) an abuse of discretion, (b) arbitrary or capricious, or (c) the committees' actions were based on substantial facts in the Applicant/Operator. record, the order of the committee shall be binding on the Arbitrators shall be appointed as follows: Each party shall select an arbitrator. These two arbitrators shall select a third arbitrator. Upon hearing and review the three arbitrators shall decide any issues brought before them. In the event the decision of the arbitrators cannot be unanimous, majority shall rule. e K. Form of Proceedinas Before the Committee. All proceedings before the committee may be informal, however, if the operator or complainant requests, said proceedings shall be conducted in a format comparable to a contested case hearing. The own motion. Minutes of the proceedings shall be kept by a committee shall have the right to adopt a formal procedure on their secretary appointed by the committee. be entitled to the swearing of witnesses, the presentation of Specifically, the complainantorApplicant/Operator shall testimony, the transcription of the proceedings, the right to writing and shall include findings of fact and orders which shall cross-examine witnesses, the findings of the committee shall be in specify the contractual, ordinance, code, or law violation upon which the determination of the committee is made. If no request for such procedure is made either by the complainant or the Applicant/Operator under informal proceedings, the committee shall nevertheless reduce its findings, determination or order to writing. 4 the local committee with the names, addresses and telephone numbers L. Contact Person. The Applicant/Operator shall supply 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 complete authority to act and bind the Applicant/Operator concerning all matters contained in this Agreement and relevant to issues involving the landfill site. December 18, 1990 ‘a EXHIBIT C Property 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: Westerly on Union Church Road, and the South line of Beginning at the Southeast corner of Section 36; thence Sections 35 and 36 to a point of the West l/8 line of Section 35; thence Northerly along said 1/8 line to a point along the centerline of Thode Road to a point 200 feet North of intersection with Thode Road: thence continuing Northerly a line 200 feet parallel to the North right-of-way line of of the centerline of S.T.H. 1’3618; thence Northeasterly along S.T.H. I136l1 to a point of intersection with the East line of Section 25, said point being 200’ North of S.T.H. 183611: thence Southerly along the East line of Sections 25 and 36 to the point of beginning. e NOTE: Attached hereto see pocket part identified as Exhibit C-1, an description above described. aerial photograph showing the boundaries contained in the legal WWJ NIXI? ROCKWWD DHlVE 1414132-5733 WALIKESHA. WISCONSINillW1II:I FAX 14141 X-:Xdl EXHIBIT D EXHIBIT "E" w R,. 08-Apr-PI Property Protection List for Emerald Park Area List No. 1 2 3 4 5 6 7 8 9 10 Tax Key No. Shares 2257 975 2257 985 2257 986 2257 987 2257 989 2257 990 2257 991 2257 992 2259 980 2259 981 Name & Address Margaret Ann Ivers S98 W12532 Loomis Road Muskego, Wisconsin 53150 Clarence J. Wagner 5835 S. 108th Street Hales Corners, Wisconsin 53130 Margaret L. Slak S98 Wl2772 Loomis Drive Muskego, Wisconsin 53150 Karl L. & Dawn Brieu S98 W12808 Loomis Road Muskego, Wisconsin 53150 LaVerne I, Bartes S98 W12878 Loomis Road Muskego, Wisconsin 53150 Mark A. Weissbrodt S98 W12904 Loomis Road Muskego, Wisconsin 53150 Marilyn Canfield S98 W 12932 Loomis Road Muskego, Wisconsin 53150 John F. Eckstein S98 W12970 Loomis Road Muskego, Wisconsin 53150 Robert C. Boehm W124 SI0227 S. 124th Street Muskego, Wisconsin 53150 Sylvia Petroviak W124 SI0077 S. 124th Street Muskego, Wisconsin 53150 1990 Assessed Value 72,200 60,500 82,700 64,800 76,900 63,400 1990 Market Value 83,993 70,382 96,208 75,384 89,460 73,755 1990 Va'lue + 10% 92,392 77,420 105,828 82,922 98,406 81,131 52,500 61,075 67,182 88,600 103,071 113,378 76,700 141,500 89,228 164.611 98,150 18 I .073 * This property is a residential duplex located in commercial zoned area included by mutual agreement EMWN.DP 08-AprVl RgS 2 Property Protection List for Emerald Park Area Tax List Key No. NO. Shares Name & Address 1990 1990 1990 Assessed Market Value Value Value + 10% 11 2259 982 I Claude A. Eigenberger 62,500 72.708 79.979 S99 W13201 Loomis Road Muskego, Wisconsin 53150 12 2259 983 1 Norman Jug 70,000 81,433 89,577 S99 W13277 Loomis Drive Muskego, Wisconsin 53150 13 2259 985 1 Gerald Martins 2259 984 SlOO W13399 Loomis Drive Muskego, Wisconsin 53150 14 2259 986 1 Joseph Len= SlOO W13421 Loomis Drive 0 Muskego, Wisconsin 53150 15 2259 987 1 John Wertz SlOO W13449 Loomis Drive Muskego, Wisconsin 53150 16 2259 988 1 Barbara L. Tesch Sl00 W13475 Loomis Dr Muskego, Wisconsin 53150 17 2259 989 1 Larry & Connie Lossman SlOO W13497 Loomis Road Muskego, Wisconriu 53150 18 2259 990 1 Donald Dibb SlOO W13547 Loomis Drive Muskego. Wisconsin 53150 19 2259 992 1 RusselVDonna Jankowski ~102 ~13815 LOO~~S Drive Muskego, Wisconsin 53150 20 2259 993 001 1 Alice L. Marold 0 . SI02 W13945 Loomis Drive Muskego, Wisconsin 53150 1,200 1,396 1,536 68,800 71,600 83,295 9 1,624 71,300 82,946 91,240 75,700 88,064 96,871 83,300 96,906 106,596 7 1.900 83,644 92.008 142,600 165,891 182,480 99,100 115,286 126.815 a Property Protection List for Emerald Park Area Tax List Key No. No. Shares 21 2259 995 1 22 2259 995 001 1 23 24 25 26 27 28 29 7 1,300 82,946 9 1,240 2259 996 I 2259 997 I 2259 999 1 2260 989 1 2260 993 1 2260 994 1 2260 995 1 1990 1990 1990 Name & Assessed Market Value Address Value Value + 10% Loretta Jung 71,700 83,411 91,752 S99 W13259 Loomis Drive Muskego, Wisconsin 53150 Jeffrey & Kathleen Arbmger S99 W13381 Loomis Drive Muskego, Wisconsin 53150 Verner L. Lund SI00 W13510 Loomis Drive Muskego, Wisconsin 53150 DanieliLynn Fischer Sl00 W13474 Loomis Drive Muskego, Wisconsin 53150 Eugene & V Schultz Sl00 W13402 Loomis Drive Muskego, Wisconsin 53150 Edmund Malkowski W124 S10293 S. 124lb Street Muskego, Wisconsin 53150 Robert I. White S99 W12953 Loomis Drive Muskego, Wisconsin 53150 Ronald Peuse S99 W12917 Loomis Road Muskego, Wisconsin 53150 Gene & Karen Lang S99 W12897 Loomis Road Muskego, Wisconsin 53150 70,100 81,550 89,705 63,300 73,639 8 I ,003 66,000 76,780 84,458 38,800 45,137 49,651 74,800 87,017 95,719 60,400 70,265 77,292 61,400 71,429 78,571 EMERNDP Property Protection List for Emerald Park Area Tax LIS t Key Name & No. NO. Shares Address 1990 1990 1990 Assessed Market Value Value Value + 10% 30 2260 996 1 Ellsworth W. Brace 58,300 67,822 74,604 S99 W12857 Loomis Road Muskego, Wisconsin 53150 31 2260 997 1 David E. Koopmeiners S99 W12817 Loomis Road Muskego, Wisconsin 53150 32 2260 998 1 Evelyn/Margaret Krause W125 59905 North Cape Muskego, Wisconsin 53150 33 2297 993 1 Dale & Maureen Martin S103 SI4578 Muskego, Wisconsin 53150 34 2297 994 1 Thomas P. Campbell S103 W14697 Loomis Drive Muskego, Wisconsin 53150 35 2297 994 001 1 lack Lyman S103 W14727 Loomis Drive Muskego, Wisconsin 53150 36 2297 995 1 Charles Wriedt 5102 W14459 Loomis Drive Muskego, Wisconsin 53150 37 2297 998 2297 999 2 Donald L. Albrecht S103 W14305 Loomis Drive Muskego, Wisconsin 53150 38 2297 999 01 1 Allan & K. Albrecht S103 W14363 Lwmis Drive Muskego, Wisconsin 53150 39 2298 978 1 N.J. Sobieski 0 SI03 W14823 Loomis Drive Muskego, Wisconsin 53150 70,600 82,131 90,344 89.600 104,235 114,658 62,400 72,592 79,851 82,600 96,091 105,700 82,700 96,208 105,828 81,200 94,463 103,909 248,800~. 289,437 318,381 89,100 103,653 114,018 69,800 81,201 89,321 Property Protection List for Emerald Park Area Tax List Key No. No. Shares 40 2298 979 1 41 2298 980 1 42 2298 981 001 1 43 2298 997 001 1 44 2299 999 1 45 2300 999 1 2303 996 46 2301 997 1 47 2302 999 1 2302 997 48 2303 997 I 49 2303 998 1 Name & Address Robert & Sharon Skiff S104 W15043 Loomis Drive Muskego, Wisconsin 53150 Wieselmann Tmst S104 W15169 Loomis Drive Muskego, Wisconsin 53150 Mayme Wieselmann SI04 W15169 Loomis Drive Muskego, Wisconsin 53150 Daryl & Barbara Condon S104 W15020 Loomis Drive Muskego, Wisconsin 53150 Anton Starich SI 10 W 14800 Un’N Church Muskego, Wisconsin 53150 Harvey & Jacqueline Schweitzer SllO W14230 Un’N Church Muskego, Wisconsin 53150 R & D Mitelstaedt 7620 E. Wind Lake Road Wind Lake, Wisconsin 53185 Jos. Leslie Cronin SI03 W13999 Loomis Drive Muskego, Wisconsin 53150 Frank Geboy 1 I1 S. Elm Grove Road Brookfield, Wisconsin 53005 Mary Addy Anderson SI10 W13458 Un’N Church Muskego, Wisconsin 53150 1990 Assessed Value 59,400 1990 Market Value 69,102 RIO J 1990 Value + 10% 76,012 58,300 67,822 74,604 69,100 80,386 88,425 65,000 51,500’ 122,700 58,400 164,300 75,617 59,912 142,741 67,939 191,135 83,178 65,903 157,015 74,732 210,249 69,700 8 1,084 89,193 92,900 108,074 118,881 Value adjusted to reflect 20 rather than 10 acres. OP-Apr-91 Property Protection List for Emerald Park Area Tax Key List 1990 1990 1990 Assessed Market No. No. Shares Address Value Value + 10% Value Name & 50 2304 998 1 Elizabeth Johnson 108,700 126,454 139.100 2304 W. National Avenue Milwaukee, Wisconsin 53204 51 2299 996 1 Ralph Louchbaum 113,800 132,387 145,626 SI10 W14718 Union Church Road Muskego, Wisconsin 53150 52 2264 998 2 Marvin Pellman 179,100 208,353 229,188 2264 988 001 SI02 W14043 Loomis Drive Muskego, Wisconsin 53150 Total Shares 54 Emv.ld RI 08-Apr-91 . Adjusted values are a projection based on increases of 2.5% each year. List NO. 1 2 3 4 5 6 7 8 9 10 .i991 1992 ,1993; 1994 1995 Adjusted Adjusted Adjusted Adjusted Adjusted: .Value Value . value. Value Value '94,im .97,069 99;49.6 .10ii983 :104;533 79,355 81,339 83,373' '85,457, '87;593 ,108,474 111;186. i13.965 116,815 .I 19.735. :i4;995. 87,120 89,298, 91,531 93,819 : ioo,866 1oj,388 105,973 108,622 1.1:1,338 '83;i59 85,238 87,369 s9;553. 91,792 .. .68,8 62 .70,584 72,'348 74; 157 76,011 n16,2i3 '119,118 122,096 125; 148 128,277. :100,604, ,103,119 .. 105,697 .lo8,'j40; ,:111,04!+ :185,599 190,239 s94,995. '199,870 204,867 i993 1994 I995 .Adjusted Adjusted Adjusted. Value Value :Value: 86,129 88,2S2 9.0,'489 96,464 98,876 101,348. 98,669 101,136' 103,664 98,256 100.712 103;230 104,319 ,106,927 '109,600 ~14,792' 117,662 120;604 196,511 201,424. 206,460 EMUULDP Oll-Apr91 Adjlrsted values are a projection based on increases of 2.5% each year. 1991. '1992.. 1993 ,1994 'I995 No. .Value Value ..value Value: Value, LIS t Adjusted AdjKted' .. Adj&ted Adj'uskd Adjusted 22 93,521: 95,859 98,256 ioo,712 103,230 23 .91;947 94,246 96,6m. 99,017 ..101,492. .. 24 83;028. 85,104. '87,231 89.412 91,641 a 25 86,569. 88,734 90,952 93;226 95,556 26 50,892 '52,165:. :53,469 54;aos .56,176 27 98,112 :100,565 '103;079. 105,656 108,297 28 79,224 81,205 83,235 .85,316 .87,449 Adjusted values arc a projection based on increases of 2.5% each year. ,199i: .i992:. ,:1993. ,1994. :I995 List :AdjUSted Adjusted: Adjusted Adjusted .Adjusted No. Value Value Value. Value. Viiue 30 78,470 78,381 80,341 ~2,349: 84,408. 31 :92,603 '94,918, 97,291. 99,723 102,216. 32 117,524: , 120,463. , 123,474 126,561 129,725 33 81,847 83,894 .85,991 88,141: 90,344 34 .108;343 111,051 113,828 116,673, :119,590 35 308,474 111,186. '1i3,965 116,815 119,735.' 36 106,507: 109,i69 111,899 114,696.' ,117,563: 38 116369 '119,790:. i22.785: 125,855 .. i29,oor. 39 '91,554 93,842 :96,1,89 .98,593. 101,058' Adjusted values are a projection based on increases of 2.5% each year List No. 40 41 42 43 45 46 47 48 49 I961 1992. 1993 1994 ,4995 .value : Value .Val& Value Value Adjnjted: .. Adjusted Adjusted AdJwted Adjukted: '77,912 :79;gm. ,81,857: 83;903 86,001; '%si47o 78;38l 80,341 82,349 84,408, 90,635: 92,901. 95,224 97 ,'604 '100,045. .85,258 .87,389 89,574 91;813 .94,109 67,550 69,239 70,970 72.744 74,563 .lbo;940 .i64;964. .169;0S8 173,315. 477,648' .76,601. ..78,516 80,479 .'82,491 84,553 .215,5&5 220,893. ,226,415, 232;076 231,877. .91;422, .??3,7o8. ' 98,051 .98,452 100;913. 121,853, 124,899 128j022 131,222 134,503. EMElULDP . .. W Rrk CS-AprOl Adjusted values are a projection based on increases of 2.5% each year. ..1991 :.1992. 1993 1994: '1995 List .Adj.ustcd .AdJ@ted AdjEted Adjusted: .Adjusted. No. .value Value Value 'Value ..Value 50 142,517 fAb,i41 .. ld9.791: .. .. ... il53.5.40 .157,37a. .. .. 51 149,267 152;99s 156,823 ,bO;jU: .I64,762 52 '234,918 .. 240,791.. 246,810 252,981. 259;305 0 EMERALD PARK LANDFILL EXHIBITF SANITARY SEWER SERVICE CONSTRUrnION PARAMETERS Equioment 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 L.F. 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.