CCR2000034e
1/2000jep
AMENDED
COMMON COUNCIL - CITY OF MUSKEG0
RESOLUTION #34-2000
APPROVAL OF SUPERIOR EMERALD PARK LANDFILL
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
WHEREAS, the City of Muskego, hereinafter referred to as "City", is a municipal corporation organized
under the laws of the State of Wisconsin with its principal place of business located at W182 S8200
Racine Avenue, Muskego Wisconsin, 53150 and is an "Affected Municipality." as that term is defined in
Section 289.0(1), Wis. Stats., with respect to the siting of the landfill expansion in Muskego, Wisconsin
by Superior Emerald Park Landfill, Inc., hereinafter referred to as "SEPLI". a for-profit corporation
organized under the laws of the State of Wisconsin with its principal place of business located at W124
S10629 South 124Ih Street, Muskego, Wisconsin, 53150; and SEPLI; and
WHEREAS, on July 21, 1999, the City commenced a lawsuit against SEPLI in the Circuit Court for
Waukesha County, entitled City of Muskego v. Superior Emerald Park Landfill. Case No.:99-CV-1476,
asserting various claims against SEPLI in connection with the siting of the landfill expansion in the City;
and
WHEREAS, on or about September 15, 1999, SEPLI served Notices of Claims upon the City and other
Affected Municipalities, pursuant to Section 893.80. Wis. Stats., asserting that SEPLI had various
claims for damages against the Affected Municipalities, arising out of the proceedings for the siting of
the landfill expansion in the City; and
WHEREAS, SEPLI, the City and the other Affected Municipalities desire to avoid litigation and settle
their mutual disputes and claims by entering into a Settlement Agreement and Mutual Release:
NOW, THEREFORE, BE IT RESOLVED that:
1 The Settlement Agreement and Mutual Release, a copy of which is attached and incorporated by
reference into this Resolution, is hereby approved.
2. The Mayor is authorized and directed to take the actions necessary to effectuate this Resolution
and the terms of the Settlement Agreement and Mutual Release.
BE IT FURTHER RESOLVED that the approval mentioned in No. 1 above and the authorization
to the Contract approved by Resolution #37-2000.
mentioned in No. 2 above are contingent upon Browning Ferris, Inc. having executed the Amendment
DATED DAY OF FEBRUARY ,2000.
SPONSORED BY:
David L. De Angelis, Mayor
Deferred 1/25/2000
This is to certify that this is a true and accurate copy of Resolution #34-2000 which was adopted by the
Common Council of the City of Muskego.
a COMMON COUNCIL -CITY OF MUSKEG0
RESOLUTION #34-2000
APPROVAL OF SUPERIOR EMERALD PARK LANDFILL
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
WHEREAS, the City of Muskego, hereinafter referred to as "City", is a municipal corporation
organized under the laws of the State of Wisconsin with its principal place of business located
at W182 S8200 Racine Avenue, Muskego Wisconsin, 53150 and is an "Affected Municipality,"
as that term is defined in Section 289.0(1), Wis. Stats., with respect to the siting of the landfill
expansion in Muskego, Wisconsin by Superior Emerald Park Landfill, Inc., hereinafter referred
to as "SEPLI", a for-profit corp\oration organized under the laws of the State of Wisconsin with
its principal place of business located at W124 S10629 South 124Ih Street, Muskego,
Wisconsin, 53150; and SEPLI; and
WHEREAS, on July 21, 1999, the City commenced a lawsuit against SEPLI in the Circuit Court
for Waukesha County, entitled City of Muskego v. Superior Emerald Park Landfill, Case No.:99-
CV-1476, asserting various claims against SEPLI in connection with the siting of the landfill
expansion in the City; and
WHEREAS, on or about September 15, 1999, SEPLI served Notices of Claims upon the City
and other Affected Municipalities, pursuant to SFction 893.80. Wis. Stats., asserting that SEPLI
had various claims for damages against the Affected Municipalities, arising out of the
proceedings for the siting of the landfill expansionhn the City; and
WHEREAS, SEPLI. the City and the other Affected Munlclpalitles deslre to avoid litigation and
settle their mutual disputes and claims by entering into'
Release:
NOW, THEREFORE, BE IT RESOLVED that:
'\
\ .. .. .
1 The Settlement Agreement and Mutual Release,
incorporated by reference into this Resolution, i
2. The Mayor is authorized and directed to take th
Resolution and the terms of the Settlement Agr
DATED DAY OF ,2000.
SPONSORED BY:
David L. De Angelis. Mayor
Deferred 1/25/2000
This is to certify that this is a true and accurate copy of Resolution #34-2000 which was adopted
by the Common Council of the City of Muskego.
Clerk-Treasurer
1/2000jep
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (hereinafter the“Agreement”) is entered into
as of the date of execution by the last signatory, by and between SUPERIOR EMERALD PARK
LANDFILL, INC. (hereinafter “Superior”), a Wisconsin corporation, with its principal place of
business located at W124 SI0629 South 124Ih Street, Muskego, Wisconsin, 53 150; the CITY OF
MUSKEGO, a municipal corporation, organized and existing under the laws of the State of
Wisconsin, with its principal place of business located at Wl82 S8200 Racine Avenue, Muskego,
Wisconsin, 53 150; the CITY OF FRANKLIN, a municipal corporation, organized and existing
under the laws of the State of Wisconsin, with its principal place of business located at 9229 West
Loomis Road, Franklin, Wisconsin, 53 132; WAUKESHA COUNTY, a political subdivision of the
State ofWisconsin, with its principal place ofbusiness located at 1320 Pewaukee Road, Waukesha,
Wisconsin, 53 186; RACINE COUNTY, a political subdivision of the State of Wisconsin, with its
principal placeofbusiness locatedat 730 Wisconsin Avenue, Racine, Wisconsin, 53403; the TOW
OF NORWAY, a township, organized and existing under the laws of the State of Wisconsin, with
its principal place of business located at 5419 Heg Park Road, Wind Lake, WI 53185; and the
SUF’ERIOR EMERALD PARK LANDFILL SITING COMMITTEE (hereinafter the “Siting
Committee”), a landfill siting committee formed pursuant to $ 289.33, Wis. Stats., consisting of
representatives appointed by the City of Muskego, the City offranklin, Waukesha County, Racine
County and the Town of Norway.
WHEREAS, on April IO, 1999, Superior and the Siting Committee entered into a contract
known as the Interim Construction Agreement, which contract was also entered into by the City of
Muskego on April 14, 1999, and which contract was, according to its terms, independently
enforceablebyeachoftheCityofMuskego,theCityofFranklin, WaukeshaCounty,RacineCounry
and the Town of Norway; and
WHEREAS, on July 21, 1999, the City ofMuskego commenced an action against Superior
in the Circuit Court for Waukesha County, claiming that Superior had breached the Interim
Construction Agreement, which claim is vigorously disputed by Superior; and
WHEREAS, on or about September 15, 1999, Superior gave notice to each of the City of
Muskego, the City of Franklin, Waukesha County, Racine County, the Town of Norway and the
Siting Committee, pursuant to 5 893.80, Wis. Stats., that Superior had specific claims for damages
and other relief against each of them, which claims they vigorously dispute; and
WHEREAS, in order to avoid costly and protracted litigation, Superior, the City of
Muskego, the City of Franklin, Waukesha County, Racine County, the Town of Norway and the
Siting Committee are all mutually desirous ofresolving their disputed claims according to the terms
of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants exchanged herein, as well
as other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each of the parties hereto, Superior, the City of Muskego, the City of Franklin,
Waukesha County, Racine County, the Town of Norway and the Siting Committee, do hereby
mutually covenant and agree as follows:
I, Definitions. As used herein, the following terms shall be defined as follows:
a. Affected Municipalities shall mean the City of Muskego, the City of Franklin,
Waukesha County, Racine County, the Town of Norway, and their respective officers,
employees, agents and elected officials.
b. Arbitration Award shall mean that certain arbitration award issued by the
Wisconsin Waste Facility Siting Board on September 1, 1999, which incorporated by
reference the final offer in arbitration submitted by Superior Emerald Park Landfill, Inc.. and
the terms and conditions ofthe Negotiated Agreement that was stipulated to by Superior and
the Superior Emerald Park Landfill Siting Committee, by a Stipulation tiled with the Waste
Facility Siting Board on June 24, 1999.
c. Design Capacity shall mean the total waste disposal capacity of the Expansion, as
determined by the approved Plan of Operation for the Expansion and any modifications
thereto, exclusive of daily, intermediate and final cover.
d. Expansion shall mean the expansion to the existing Superior Emerald Park Landfill
that was the subject of the Feasibility Approval issued by the Wisconsin Department of
Natural Resources on July 29, 1999, and the Plan of Operation that will be issued by the
Wisconsin Department of Natural Resources to permit construction and operation of the
expansion that was the subject of the Feasibility Approval.
e. Feasibility Approval shall mean the final determination of feasibility issued by the
Wisconsin Department of Natural Resources on July 29, 1999, for an expansion of the
Superior Emerald Park Landfill.
f. Plan of Operation shall mean the Plan of Operation, and all conditions attendant
thereto, that is issued by the Wisconsin Department of Natural Resources to permit
construction and operation of the expansion to the Superior Emerald Park Landfill that was
the subject of the Feasibility Approval.
g. Superior shall mean Superior Emerald Park, Inc., together with its parent, subsidiary
and affiliated corporations, and its officers, directors, employees. and agents.
2. Pavments bv SuDerior. Beginning with the commencement of waste disposal in the
Expansion, and continuing until the Design Capacity of the Expansion is consumed, Superior shall
pay to the Affected Municipalities the sum of SO. IO per ton for each ton of solid waste disposed of
in the Expansion, exclusive of 68,750 tons per year of Beneficially Reused Materials. The SO. IO
per ton of solid waste shall be increased at the rate of 5.2% compounded annually, every January 1,
beginning the year 2000. Such payment shall be independent of and in addition to any other
obligations that Superior may have under the Arbitration Award. Payment shall be made on a
monthly basis, and the first payment shall be due thirty (30) days after the close of the first month
that waste is first disposed of in the Expansion. Thereafter, payment shall be received within thirty
(30) days from the date that the actual tonnage is to be determined for each monthly payment period.
-1 -
In the event more than 68,750 tons of Beneficially Reused Material, including contaminated
soils, foundry sands, shredder fluffs, or other high volume industrial waste as defined by applicable
regulations promulgated by the Wisconsin Department of Natural Resources, is brought to the
landfill and beneficially reused in construction and/or operation within the Design Capacity of the
Expansion in any calendar year, then for each ton of Beneficially Reused Material placed in the
Expansion, over and above 68,750 tons per calendar year, Superior shall pay the Affected
Municipalities the sum of $2.47 per ton. The $2.47 per ton for Beneficially Reused Materials
exceeding 68,750 tons per calendar year shall be increased at the rate of5.2% compounded annually,
every January 1, beginning with the year 2000. Such payment shall be independent of and in
addition to any other obligations that Superior may have under the Arbitration Award. Payment
shall be made on a monthly basis, and the first payment shall be due thirty (30) days after the close
of the first month that waste is first disposed of in the Expansion. Thereafter, payment shall be
received within thirty (30).days from the date that the actual tonnage is to be determined for each
monthly payment period.
3. Continuation of Free Waste Disoosal. In the event the Design Capacity of the Expansion
is consumed before a period of ten (IO) years from the date waste is first placed in the Expansion,
Superior shall continue to provide free solid waste disposal for City of Muskego residential waste,
City of Muskego governmental and departmental waste, MuskegoNorway School District Waste,
Drought School District Waste, and Waukesha County Waste, for the remainder of such IO-year
period, at the tonnage rates established by the Arbitration Award. Superior’s obligation in this
regard is independent of and in addition to any other obligation it may have under the Arbitration
Award.
Superior shall have no obligation to make any payments or pay any tees to the Affected
Municipalities with regard to solid waste for which Superior provides free solid waste disposal
service to the City of Muskego, the MuskegoNorway School District Waste, the Drought School
District Waste, or Waukesha County, under this Agreement or the Arbitration Award. With respect
to any solid waste for which free disposal service is provided, the Affected Municipalities shall
notify Superior of the identity and contact information of the solid waste transporter, the type and
frequency of the collection and transportation service, and the number and size ofcontainers utilized
in the collection and transportation of any solid waste for which free disposal service is to be
provided. The Affected Municipalities shall also promptly notify Superior of any changes in such
information. At the time that it calculates and makes Direct Payments to the Affected
Municipalities, Superior shall provide the Affected Municipalities with a summary report of the
amount of solid waste for which free disposal service was provided and was excluded from the
calculation of payments or fees paid to the Affected Municipalities.
In the event that Superior applies for a further expansion of the landfill, the Affected
Municipalities covenant and agree that they will not unreasonably withhold any local approval or
permit required for the further expansion of the landfill. If any of the Affected Municipalities
unreasonably withholds, as determined by a court of competent jurisdiction. a local approval or
permit for the further expansion of the landfill, then Superior shall have no obligation whatsoever
to provide free solid waste disposal to any person after the Design Capacity of the Expansion is
consumed.
3 -J-
4. Dismissal of Pending Litimtion. As soon as this Agreement has been executed by all
parties, the City of Muskego, Superior and the Affected Municipalities shall forthwith prepare and
tile in the Circuit Court for Waukesha County, in Case No. 99-CV-1476, a stipulation and order to
allow the intervention of the Affected Municipalities in the action, to vacate the Order for Default
Judgment entered by the Hon. Patrick L. Snyder in the action, and for the entry of jud, ament
dismissing, on the merits and with prejudice, any claims that were or might have been asserted by
the City of Muskego or the Affected Municipalities in the action. Within five (5) days after this
Agreement has been executed by all parties, the Superior Emerald Park Landfill Siting Committee
shall file a motion for the entry ofjudgment voluntarily dismissing, on the merits and with prejudice,
the actions styled: In the Matter of the Arbitration of a Dispute Between. Superior Emerald Park
Landfill Negotiating Commitlee and Superior Emerald Park Landfill Inc., Dane County Circuit
Court Case No. 99-CV-2841, and In the Marter of the Arbitratio11 of a Dispute Between: Superior
Emerald Park Landfill Negotiating Committee andsuperior Emerald Park Landfill, lnc., Waukesha
County Circuit Court Case No. 99-CV-2376.
5. Mutual Releases. Superior, each of the individual Affected Municipalities, and the Siting
Committee, do hereby mutually, fully, finally and forever release, dismiss, discharge and relinquish,
any claims, counterclaims, cross-claims, or causes ofaction, whether known or unknown, that any
of them may have against any other parry to this Agreement. in any way whatsoever related to or
arising out of the siting and approval of the Expansion, the proceedings before the Waste Facility
Siting Board that resulted in the Arbitration Award, or the Interim Construction Agreement. It is
the parties' intent that this mutual release be construed as broadly as possible to include, but not be
limited to, any claim, counterclaim, cross-claim, or cause ofaction fordamages, costs, loss or other
legal relief, equitable or injunctive relief, or any other type ofreliefavailable at common law, or in
equity, or under any state or federal statute or regulation, or under any municipal or county
ordinance.
The mutual releases exchanged hereunder shall not be construed to in any way affect the
legal effect or enforceability of the Arbitration Award or the legal effect or enforceability of this
Agreement.
6. Notice to Parties. Under this Agreement, any notices required by the terms and conditions
ofthis Agreement are, at a minimum, to contain the address and names ofthe parties as noted below,
are to be sent by certified mail, return receipt requested to such parties and are to be considered by
each party as written notice when received, except as othenvise specifically provided herein. It is
hrther understood that Superior, the Affected Municipalities and the Siting Committee shall each
be responsible to provide to the other parties any appropriate change of address or any appropriate
change of name by providing the other panies with a written "Yotice of Address Change" or "Notice
of Xame Change" Such notices shall be sent by certified mail, return receipt requested to the
addresses noted below. The current names and addresses are:
a. Affected Municipalities:
I.
.. 11.
... 111.
iv
V.
City of Muskego
Attn: City Clerk-Treasurer
P.O. Box 749
Muskego, WI 53 150
City of Franklin
Attn: City Clerk
9229 West Loomis Road
Franklin, WI 53 132
County of Waukesha
Attn: Parks & Land Use Department
c/o County Clerk
1320 Pewaukee Road, Room 120
Waukesha, WI 53 188
Town of Norway
Atm: Town Clerk
64 19 Heg Park Road
Wind Lake, WI 53 185
Racine County
Attn: County Clerk
730 Wisconsin Avenue
Racine. WI 53403
b. Superior Emerald Park Landfill, lnc
Superior Emerald Park Landfill, Inc.
Attn: Gene Kramer, General Manager
W124 SI0629 South 124th Street
Muskego, WI 53 150
7 Headings. The titles to the paragraphs of this Agreement are for informational purposes
only.
8. Governing Law. This Agreement and the provisions contained therein will be construed,
enforced and governed, in all respects, in accordance with the laws and statutes of the State of
Wisconsin.
9. Waiver. Any waiver by any party to a breach of any term or condition of this Agreement
shall not be considered a waiver of any subsequent breach by a party of the same term or any other
term or condition of this Agreement.
-5-
10. Amendment. This Agreement may be amended only by a written agreement between the
Affected Municipalities that are signatories to this Agreement and the Operator, except as expressly
otherwise provided for herein.
1 I Binding Effect. This Agreement will bind Superior, the Affected Municipalities, the Siting
Committee, and their respective legal heirs, representatives, successors and assigns.
12. Execution In Counterparts. This Agreement may be executed in separate counterparts,
each of which shall be deemed an original.
[The remainder of this page is intentionally left blank]
-6-
SUPERIOR EMERALD PARK LANDFILL. NC.
Approved this - day of , 1999.
BY:
NAME:
TITLE:
ATTEST:
NAME:
TITLE:
CITY OF MUSKEG0
Approved this - day of , 1999.
BY:
, Mayor
ATTEST:
, Clerk
(A certified copy of the approving resolution shall be attached and appended to this Agreement and
incorporated by reference.)
-8-
CITY OF FRANKL.IN
Approved this -day of , 1999.
ATTEST:
, Clerk
(A certified copy of the approving resolution shall be attached and appended to this Agreement and
incorporated by reference.)
e
-9-
WAUKESHA COUNTY
Approved this - day of , 1999.
BY:
, Mayor
ATTEST:
, Clerk
(A certified copy of the approving resolution shall be attached and appended to this Agreement and
incorporated by reference.)
-10-
RACME c0ml-Y
Approved this - day of , 1999.
BY
, Mayor
ATTEST:
, Clerk
(A certified copy ofthe approving resolution shall be attached and appended to this Agreement and
incorporated by reference.)
-11-
TOWN OF NORWAY
Approved this - day of , 1999.
BY
, Mayor
ATTEST:
, Clerk
(A certified copy of the approving resolution shall beattached and appended to this Agreement and
incorporated by reference.)
-12- .. .-
SUPERIOR EMERALD PARK LANDFILL SITNG COMMITTEE
Approved this - day of , 1999.
BY
, Chair
ATTEST
-13-