HomeMy WebLinkAbout901167.tiff ARy3p9844
RESOLUTION
RE: APPROVE FINANCIAI, ASSURANCE AGREEMENT WITH WASTE SERVICES
CORPORATION AND AUTHORIZE CHAIRMAN TO SIGN
WHEREAS, the Board of County Commissioners of Weld County,
N o Colorado, pursuant to Colorado statute and the Weld County Home
N v Rule Charter, is vested with the authority of administering the
• . affairs of Weld County, Colorado, and
�• o
U WHEREAS, the Board has been presented with a Financial
O• Assurance Agreement from Waste Services Corporation, and
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WHEREAS, said Agreement is a Condition of Approval in the Use
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,,,. w by Special Review Permit which was granted to Waste Services/
a Corporation by the Board of County Commissioners on June 27 , 1990 ,
o and
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Log WHEREAS, the terms and conditions are as stated in said
N w Agreement, a copy of which is attached hereto and incorporated
herein by reference, and
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N a WHEREAS, after study and review, the Board deems it advisable
al u to approve said Financial Assurance Agreement.
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NOW, THEREFORE, BE IT RESOLVED by the Board of County
ri m Commissioners of Weld County, Colorado, that the Financial
a Assurance Agreement from Waste Services Corporation be, and hereby
v w is , approved.
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o z BE IT FURTHER RESOLVED by the Board that the Weld County
r, z Treasurer be, and hereby is , authorized to sign said Agreement.
N 4
a
a The above and foregoing Resolution was, on motion duly made
w and seconded, adopted by the following vote on the 14th day of
xz November, A.D. , 1990 . ,
ro n
Pe, CO ( :� f i BOARD OF COUNTY COMMISSIONERS
r-4 'i ATTEST: i ;,„ 4 ; • WELD OUNTY, COLORADO
W W
Weld County C;cpec to the Board
Gene R. Bran ner, Chairman
EXCUSED DATE OF SIGNING - AYE
-BY: George Kennedy, Pro-Tem
puty clerk to he Board fiarato— e66A.
APPR ED AS 79, FORM: Constance L. Harbert
_— C.eK�n
v �
County Attorney EXCUSED DATE OF SIGNING - AYE
Gordon E. Lacy
901167
TRUST AGREEMENT
This Trust Agreement (the "Agreement" ) is entered into as of
November 9 , 1990 by and between WASTE SERVICES CORPORATION, a
N o Colorado corporation ( the "Grantor" ) and TREASURER, OF WELD
N v COUNTY (the "Trustee" ) .
O
\ -
N o WHEREAS, Grantor has obtained from the Board of County
o
Commissioners of Weld County, Colorado ( the "Board " ) a
o Certificate of Designation (the "CD" ) authorizing Grantor to open
a W and operate a solid waste disposal site and facility ( the
0 3 "Disposal Site" ) located in Weld County, Colorado, and described
o w with particularity by the legal description set forth on Exhibit
z A attached hereto.
0
Uw WHEREAS, as a condition to approval of the Disposal Site,
a Grantor and the Board have entered into a Financial Assurance
`.. Agreement, dated November 9, 1990, pursuant to which has agreed
x to execute a Trust Agreement containing the terms and provisions
w as set forth herein, which trust is to provide the financial
rn u assurance required by the Financial Assurance Agreement dated
\ November 9, 1990, between Grantor and the Board ( a copy of which
m z is attached hereto as Exhibit B) .
O H
\ W
H WHEREAS, this Trust Agreement, together with the Financial
a Assurance Agreement, is intended to comply with the financial
p assurance requirements which may be imposed by Proposed Part 258
m w of Title 40 of the Code of Federal Regulations ( "Proposed Part
rn 258" ) , as such part is finally adopted by the Environmental
M 2 Protection Agency ( "EPA" ) .
N 4
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a WHEREAS, the Grantor, acting through its duly authorized
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officers, has selected the Trustee to be the trustee under this
a agreement, and the Trustee is willing to act as trustee.
N �
el CO NOW, THEREFORE, the Grantor and the Trustee agree as
rA H follows:
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Section 1. Definitions. As used in this Agreement:
( a) The term "Grantor" means the owner or operator who
enters into this Agreement and any successors or assigns of the
Grantor.
(b) The term "Trustee" means the Trustee who enters into
this Agreement and any successor Trustee.
Section 2. Identification of Facilities and Cost Estimates.
This Agreement pertains to ( i ) the Disposal Site and ( ii ) the
cost estimates identified on Exhibit C attached hereto.
Section 3 . Establishment of Fund. The Grantor and the
Trustee hereby establish a trust fund ( the "Fund" ) for the
benefit of the Board. The Grantor and the Trustee intend that no
P'tf '+ �'
third party have access to the Fund except as herein provided.
The Fund is established initially as consisting of the property,
which is acceptable to the Trustee, described in Exhibit D
N U attached hereto. In addition, Grantor shall collect and pay to
o the Trustee for deposit with the Fund, on a quarterly basis, an
o amount equal to the Quarterly Gate Payment ( as such term is
U defined from time to time under the Financial Assurance
q Agreement) . Such property and any other property subsequently
o w transferred to the Trustee is referred to as the Fund, together
0 3 with all earnings and profits thereon, less any payments or
o x distributions made by the Trustee pursuant to this Agreement.
'Pr A The Fund shall be held by the Trustee, IN TRUST, as hereinafter
provided. The Trustee shall not be responsible nor shall it
O
U undertake any responsibility for the amount or adequacy of, nor
t any duty to collect from the Grantor, any payments necessary to
c� discharge any liabilities of the Grantor established by the Board
N or the Financial Assurance Agreement . Trustee hereby
"' z acknowledges and agrees to abide by the terms of the Financial
N a Assurance Agreement as such terms affect the Fund, and Trustee
a u agrees ( i ) to take any action required by, and ( ii ) not to take
z any action not in conformance with, the Financial Assurance
Lc)o H Agreement.
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a Section 4 . Payment for Closure and Post-Closure Care;
Payment After Cessation of Operations.
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0344 ( a) The Trustee shall make payments from the Fund as the
o z Board shall direct, in writing, to provide for the payment of the
cn N z costs of closure and/or post-closure care of the Disposal Site.
o The Trustee shall reimburse the Grantor or other persons as
U Z specified by the Board from the Fund for closure and post-closure
a expenditures in such amounts as the Board shall direct in
writing. In addition, the Trustee shall refund to the Grantor
u M such amounts as the Board specifies in writing. Upon refund,
m co such funds shall no longer constitute part of the Fund as defined
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herein.
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(b) In the event Grantor fails to comply with paragraph 4C
of the Financial Assurance Agreement, the Board may make written
demand upon the Trustee (which demand shall state that, after
notice to Grantor, it was determined at a public hearing that
Grantor had ceased operations at the Disposal Site and that final
closure activity and post-closure care should be initiated at the
Disposal Site pursuant to paragraph 4C of the Financial Assurance
Agreement) for disbursement from the Trust of funds sufficient to
pay the costs of closure and post-closure care, to undertake and
pay for any needed corrective actions for releases from the
Disposal Site, and to initiate closure of the Disposal Site.
2
Section 5. Payment for Noncompliance or Emergency Event.
(a) Whenever Grantor gives notice to the Board of any Non-
compliance Event ( as defined in the Financial Assurance
Agreement) , Grantor shall simultaneously give notice of such Non-
N compliance Event to Trustee. In the event Grantor fails within
N U 60 days of notice of the Noncompliance Event to submit a plan of
remediation and commence corrective action, then the Board (upon
d' V written notice to Trustee stating that Grantor has failed within
such 60 day period to submit a plan o£ remediation and commence
A corrective action) may make written demand upon Trustee for
a
0 3 disbursement from the Trust of funds sufficient ( as determined by
the Board ) to pay the costs associated with the necessary
• w corrective action. Trustee shall, upon receipt of such demand
JA- a (which demand shall state that the Board has simultaneously given
p notice to Grantor of its request for funds to correct the
v Noncompliance Event) , disburse to the Board the funds requested
w
n a thereby to the Board.
..
x (b) Upon the occurrence of an Emergency Event ( as defined
W in the Financial Assurance Agreement) , the Board may make written
N a demand upon Trustee for disbursement from the Trust of funds
" V sufficient ( as determined by the Board ) to pay the costs
to Z associated with the actions necessary to correct or remediate the
H
Emergency Event. Upon receipt of such demand (which demand shall
H state that the Board has simultaneously given notice to Grantor
~ a of its request for funds to remediate the Emergency Event) , the
d. p Trustee shall disburse the funds requested thereby to the Board.
-cr w
rn w Section 6. Payments Comprising the Fund. Payments made to
oiz the Trustee for the Fund shall be those which are in conformance
N RC with the specifications of paragraph 3 of the Financial Assurance
col r Agreement.
41 .4
Section 7 . Trustee Management. The Trustee shall invest
� M and reinvest the principal and income o£ the Fund and keep the
� m Fund invested as a single fund without distinction between
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r+ principal and income. In investing, reinvesting, exchanging,
ma selling, and managing the Fund, the Trustee shall discharge his
duties with respect to the Fund solely in the interest of the
beneficiary and with the care, skill, prudence, and diligence
under the circumstances then prevailing which persons of
prudence, acting in a like capacity and familiar with such
matters, would use in the conduct of an enterprise of a like
character and with like aims; except that:
(i) The Trustee is authorized to invest the Fund in time
or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or State government; and
( ii ) The Trustee is authorized to hold cash awaiting
investment or distribution uninvested for a reasonable time and
3
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without liability for the payment of interest thereon.
Section 8 . Commingling and Investment . The Trustee is
expressly authorized in its discretion to transfer from time to
time any or all of the assets of the Fund to any common,
N o commingled, or collective trust fund created by the Trustee in
Na which the Fund is eligible to participate, subject to all of the
provisions thereof, to be commingled with the assets of other
trusts participating therein.
A
o w Section 9. Express Powers of Trustee. Without in any way
o g limiting the powers and discretions conferred upon the Trustee by
o a the other provisions of this Agreement or by law, the Trustee is
w expressly authorized and empowered:
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a
u ( a) To sell , exchange, convey, transfer, or otherwise
aw dispose of any property held by it, by public or private sale .
N No person dealing with the Trustee shall be bound to see to the
N application of the purchase money or to inquire into the validity
x or expediency o£ any such sale or other disposition;
a
w
rn u (b) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
o H instruments that may be necessary or appropriate to carry out the
w powers herein granted;
ti E
w (c) To register any securities held in the Fund in its own
d 5 name and to hold any security in bearer form or in book entry, or
cow to combine certificates representing such securities with
o z certificates of the same issue held by the Trustee in other
N zz fiduciary capacities, or to deposit or arrange for the deposit of
o such securities in a qualified central depository even though,
v a when so deposited, such securities may be merged and held in bulk
a in the name of the nominee of such depository with other
securities deposited therein by another person, or to deposit or
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M arrange for the deposit of any securities issued by the United
Crl CO States Government, or any agency or instrumentality thereof, with
a Federal Reserve bank, but the books and records of the Trustee
w shall at all times show that all such securities are part of the
Fund;
(d) To compromise or otherwise adjust all claims in favor
of or against the Fund.
Section 10. Taxes and Expenses. All taxes of any kind that
may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from
the Fund. All other expenses incurred by the Trustee in
connection with the administration of this Trust, including fees
for legal services rendered to the Trustee, the compensation of
the Trustee to the extend not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall
4
be paid from the Fund.
N U Section 11. Annual Valuation. The Trustee shall annually,
o at least 30 days prior to the anniversary date o£ establishment
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of the Fund, furnish to the Grantor and to the Board a statement
O0 confirming the value of the Trust. Any securities in the Fund
q shall be valued at market value as of no more than 60 days prior
o w to the anniversary date of establishment of the Fund.
0 3
o a Section 12. Successor Trustee. The Trustee may resign or
tA- w the Grantor may replace the Trustee, but such resignation or
2 replacement shall not be effective until the Grantor has
oo appointed a successor trustee and this successor accepts the
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a appointment. The successor trustee must be the trust department
N of a federally-chartered bank located and legally chartered to
operate in one of the 48 contiguous states of the United States,
a having capital and surplus of not less than $7 , 000, 000, and
cv a reasonably acceptable to the Board. The successor trustee shall
o, v have the same powers and duties as those conferred upon the
Z Trustee hereunder. Upon the successor trustee ' s acceptance of
CD H the appointment, the Trustee shall assign, transfer, and pay over
--L w to the successor trustee the funds and properties then
z constituting the Fund. If for any reason the Grantor cannot or
w does not act in the event of the resignation of the Trustee, the
� c21Trustee may apply to a court of competent jurisdiction for the
rn w appointment of a successor trustee or for instructions. The
o z successor trustee shall specify the date on which it assumes
N z administration of the trust in a writing sent to the Grantor, the
CD Board, and the present Trustee by certified mail 10 days before
a such change becomes effective . Any expenses incurred by the
z l Trustee as a result of any of the acts contemplated by this
� Ln
Section shall be paid as provided in Section 10.
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`n °° Section 13 . Instructions to the Trustee. All orders,
requests, and instructions by the Grantor to the Trustee shall be
CQP" in writing, signed by Grantor. The Trustee shall be fully
protected in acting without inquiry in accordance with the
Grantor ' s orders, requests, and instructions . All orders,
requests, and instructions by the Board to the Trustee shall be
in writing, signed by the Board, or its designees, and the
Trustee shall act and shall be fully protected in acting in
accordance with such orders, requests, and instructions. The
Trustee shall have the right to assume, in the absence o£ written
notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of
the Grantor or the Board hereunder has occurred. The Trustee
shall have no duty to act in the absence of such orders ,
requests, and instructions from the Grantor and/or the Board,
except as provided for herein.
Section 14. Notice of Nonpayment. The Trustee shall notify
the Grantor and the Board, by personal delivery or certified mail
5
within 5 days following the expiration of the 30-day period after
the end of the quarter for which a Quarterly Gate Payment was
N o due, if no such payment has been received.
N ()
O
o Section 15. Amendment of Agreement. This Agreement may be
u amended by an instrument in writing executed by the Grantor, the
a Trustee, and the Board, or by the Trustee and the Board i£ the
a Grantor ceases to exist. In the event either (i) the provisions
O 3 of Proposed Part 258 are finally adopted or ( ii ) a State of
° a Colorado law or regulation pertaining to financial assurances for
'o- w solid waste disposal sites is enacted, and either grants the EPA
a or the Colorado Department of Health (the "CDH" ) , the authority
(u) over financial assurance provision such as that represented by
Ln
a this Agreement, then this Agreement shall be appropriately
N revised to provide the Regional Director of the EPA and/or the
no Director of the CDH, as appropriate, with authority to demand
m a from the Fund in the event of a Noncompliance Event or Emergency
N a Event (each as defined in the Financial Assurance Agreement) .
rn U
� Z Section 16 . Trust Fund Replenishment . After the Fund
CD H reaches $113, 172 and thereafter it should fall below $113, 172
� H
(whether because of disbursements from the Fund, losses incurred
H a by the Fund, or otherwise ) , then Trustee shall promptly mail
w notice to both Grantor and the Board of the occurrence and the
d, W amount of such deficiency.
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o z Section 17. Irrevocability and Termination. Subject to the
`:1 right of the g provided in
N g parties to amend this Agreement as
o Section 15 and the provision of substitute financial assurance as
w provided in Section 18, this Trust shall be irrevocable and shall
a continue until terminated at the written agreement of the
Grantor, the Trustee, and the Board, or by the Trustee and the
In M Board, if the Grantor ceases to exist. Upon termination of the
m co Trust , all remaining trust property , less final trust
w administration expenses, shall be delivered to the Grantor.
Section 18 . Substitute Financial Assurance. This Trust
Agreement shall terminate upon receipt by the Trustee from the
Board of written notice that the Board has accepted alternate
financial assurance from Grantor concerning the Disposal Site,
and all remaining Trust property, less final Trust administration
expenses, shall be delivered to the Grantor.
Section 19 . Immunity and Indemnification. The Trustee
shall not incur personal liability of any nature in connection
with any act or omission , made in good faith, in the
administration of this Trust, or in compliance with the Financial
Assurance Agreement, or in carrying out any directions by the
Grantor or the Board issued in accordance with this Agreement .
The Trustee shall be indemnified and saved harmless by the
Grantor or from the Trust Fund, or both, from and against any
personal liability to which the Trustee may be subjected by
6
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reason of any act or conduct in its official capacity, including
all expenses reasonably incurred in its defense in the event the
N Grantor fails to provide such defense.
0
w O Section 20 . Choice of Law. This Agreement shall be
o administered, construed, and enforced according to the laws of
A the State of Colorado.
a
oo
Section 21 . Interpretation. As used in this Agreement,
49-
o w words in the singular include the plural and words in the plural
2 include the singular. The descriptive headings for each Section
O of this Agreement shall not affect the interpretation or the
legal efficacy of this Agreement.
N
IN WITNESS WHEREOF the parties have caused this Agreement to
x be executed by their respective officers duly authorized and
x their corporate seals to be hereunto affixed and attested as of
N a the date first above written.
m U
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E Attest:, WASTE SERVICES CORPORATION
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a w a C: iturnS By
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m01 N Attest: TREASURER , WELD COUNTY ,
COLORADO
W W
STATE OF COLORADO )
} ss.
COUNTY OF WELD }
On this /ye`" day of AL-c _ ,,t. c_c ` , 1990, before me
personally came C. Bradley Keirnes to me known, who, being by me
duly sworn, did depose and say that he resides at 6037 77th
Avenue, Greeley, CO 80631 , that he is the President of Waste
Services Corporation, the corporation described in and which
executed the above instrument; that he knows the seal of said
corporation; that the seal affixed to such instrument is such
7
seal; that it was so affixed by order of the Board of Directors
of said corporation, and that he signed his name thereto by like
order.
N O
N
o My commission expires:
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00 3 Notary Public J
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69- q STATE OF COLORADO }
x } ss.
COUNTY OF WELD }
cv Oa..,"this is -{-6,
�' day of 43,1,y-,�--v,,t.le-e , 199O, before me
x p®rsonsky came Frances M. Loustalet to me known, who, being by
x me duly sworn, did depose and say that he is the Treasurer of
c4 a Weld County, Colorado, and that he signed his name thereto.
m U
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My commission expires:
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a Notary Public
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ow Lots 3 and 4 and the E1/2 of the SW1/4 of Section 7, Township 7 North,
O 3 Range 66 West of the 6th P . M. ;
° Z EXCEPT that portion thereof conveyed to The Department of Highways,
o State of Colorado by Special Warranty Deed recorded in Book 1483 , Page
I:4 93 , described as follows :
U BEGINNING at a point on the West line of said Section 7 from which
u.) 1 the Southwest corner of Section 7 bears South a distance of 116 . 6 feet;
N 0 thence N89' 321E, a distance of 1 , 537 . 4 feet;
N x thence S88 . 29 ' 30"E, a distance of 521 . 2 feet;
w thence N82 . 211E, a distance of 903 feet to the East line of the SW1/4
N a of said Section 7;
U thence along the East line of the SW1/4 of Section 7 S1 . 47 ' W, a distance
iz of 181 . 5 feet to the South quarter corner of said Section 7;
o\ w thence along the South line of Section 7 S88 . 57 ' W, a distance of 2 , 948 : 1
r+ El feet to the Southwest corner of Section 7;
w thence along the West line of said Section 7 North a distance of 116 . 6
., t.1 feet, more or less , to the POINT OF BEGINNING, all located in Weld County,
w Colorado.
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EXHIBIT A
Ci p
Industrial Compliance Inc.
N MEMORANDUM
O
o
' To: Mr: Brad Keirnes, waste services Corporation
T.. From: Michael H. Stewart, P.E. Kos
O Date: October 25, 1990
o Subject: Closure/Post-closure Costs for the North weld Landfill
Based Upon 2.5 Acre Areas.
o W
"' Q Assumptions:
a
1) Maximum of 2.5 acres to fully close @ $11, 300/acre.
2) Maximum of 2.5 acres requiring regrading @ $6,300/acre.
N 3) Maximum of 7.5 acres to revegetate @ $500/acre.
4) Monitoring requirements:
z two "wetu ground water well requiring monitoring.
u remainder restricted to testing for the presence of liquids
CA
; z 10-year post-closure monitoring: Semi-annual tor 2 years
o w (modified from original quarterly) , semi-annually for the
next 5 years, annually for the remaining 3 years.
w $900 for 5-year full suite: done twice/well in PC
] period.
� w $360 for annual suite: done S times/well in PC period
$225 for semi-annual suite: done 16 times/well
o z 5) Semi-annual post-closure inspections for 10 years
N @1,500/inspection
O
w
a 1) 2.5 acres * $11,300
x 2) 2.5 acres * $6,300 $ 28, 250
O 3) 7.5 acres * $500 $ 15,?50
4) 2 wells * $900 * 2 $ 3,750
01 03 2 wells * $360 * 8 $ 3,600
w 2 wells * $225 * 16 $ 5,760
5) 20 inspections * $1500 $ 7, 200
$ 30,000
ESTIMATED CLOSURE/POST CLOSURE COST $ 94, 310
Contingency i.z
PREDICTED CLOSURE/POST-CLOSURE COST
$113, 172
note: all costs based upon 1990 dollars
Dedicated to solving your waste management problems. cue 1
1746 Cole Blvd., Bldg. 21 *300 Golden, CO 80401 303/777.1400 A
EXHIBIT C.
N Q
N U FINANCIAL ASSURANCE AGREEMENT
0
(1 U This Agreement is made this 9th day of November, 1990,
o between WASTE SERVICES CORPORATION ( "Operator" ) , a Colorado
,.a corporation, and the BOARD OF COUNTY COMMISSIONERS OF WELD
03 COUNTY, COLORADO (the "Board" ) .
o %
W RECITALS
2
o Whereas , Operator has been granted by the Board a
w Certificate of Designation ( the "CD" ) and a Site Specific
N x Development Plan and a Use By Special Review permit ( "USR" )
n o authorizing Operator to open and operate a Solid Waste Disposal
x Site and Facility (the "Disposal Site" ) located in Weld County,
w Colorado , and described with particularity by the legal
N a description set forty. on Exhibit A attached hereto;
mu
in• Z CD H Whereas, as a condition of approval of the Disposal Site,
w the Board is requiring Operator to provide sufficient financial
assurance for the payment of the estimated costs of closing the
a Disposal Site and post-closure care thereof, for any additional
4s. 0 or increased closure and/or post closure costs, for then current
co w uses of the Disposal Site ( as approved by the Board) , and for
om corrective actions for known or reasonably suspected releases of
m z regulated substances at the Disposal Site ( collectively, the
o44 "Closure and Remediation Costs" ) . Said Closure and Remediation
a Costs, as presently estimated, are set out in Exhibit B attached
a hereto which Exhibit contains the assumptions upon which this
agreement is based;
r �
mco co Whereas , Operator has elected to establish a trust to
provide all or a part of such financial assurance for the
m w Disposal Site;
Whereas , Operator and the Board also desire by this
Agreement, and the Trust Agreement contemplated herein, to comply
with the financial assurance requirements which may be imposed by
proposed Part 258 of Title 40 of the Code of Federal regulations
( "proposed Part 258" ), as such part is finally adopted by the
Environmental Protection Agency ( "EPA" ) ; and
Whereas , this Agreement , and the Trust Agreement
contemplated herein, are not intended to duplicate or supplant
258 as finally adopted or imposed by the State. To the extent
that the terms of this Agreement or the Trust Agreement are
duplicative of or otherwise provide financial assurance similar
to that required by the terms of proposed Part 258 as finally
adopted or any similar state statutory or regulatory
requirements, then this Agreement and the Trust Agreement shall
be appropriately amended, transferred, or, if necessary,
terminated by the Board, to eliminate such duplication or excess
financial assurance.
TERMS AND CONDITIONS
THEREFORE, in consideration o£ the Board' s issuance of a
Certificate of Designation to the Operator for the operation of a
N o Solid Waste Disposal Site and Facility described in Exhibit A and
N v the Operator ' s obligation to provide financial assurances in
compliance with the requirement of the USR, the Operator and the
m ov Board enter this Agreement upon the terms and conditions provided
below:
A
a
0 w 1. Subject & Basis of Agreement; Costs Estimates. This
Agreement pertains only to the Disposal Site legally described in
w Exhibit A and the Closure and Remediation Costs set out in
Exhibit B, as it may be amended in writing from time to time, as
o provided by this Agreement. This Agreement, and the Trust
w Agreement contemplated herein, are intended to comply, at a
Ln x minimum, with the financial assurance provisions of proposed
- 0 Section 258.32 of Title 40 of the Code of Federal Regulations .
Until such time as state or federal law or regulation provides
w otherwise, the cost estimate provisions proposed for Section
N a 258 . 32 of Title 40 of the Code of Federal Regulations, as
C presented on pages 33409-10 O£ Volume 53 of the Federal Register
Lin H (August 30, 1988) , shall be utilized for estimating Closure and
w Remediation Costs herein.
E
H
W 2. Execution of Trust Agreement.
v. a
co 44
w (a) Form of Trust Agreement . Operator agrees to
o z execute a Trust Agreement, the terms of which will be, except as
N z otherwise provided by this Agreement, substantially as set forth
at Section 264. 151(a)-( 1 ) of Title 40 of the Code of Federal
Regulations. The trust created by such Trust Agreement is
w referred to herein as the "Trust" .
c4
NN (b) Modification to Form of Trust Agreement. The
'rya Trust Agreement shall contain the following additional
provisions:
mw
(i ) In the event either ( i ) the provisions of
proposed Part 258 are finally adopted, or (ii ) a Colorado law or
regulation pertaining to financial assurances for solid wastes
disposal sites is enacted, and either grants the EPA or the
Colorado Department of Health ( the " CDH" ) authority over
financial assurance provisions such as that represented by the
Trust, then the Trust Agreement shall be appropriately revised to
provide the Regional Director of the EPA and/or the director of
the CDH, as appropriate, with authority to demand disbursements
of Trust funds from the Trust in the event of a Noncompliance
Event or Emergency Event (each as defined in paragraph 4 below) .
If sole or primary authority over financial assurances for solid
wastes disposal sites is vested with the EPA or CDH, the Board
shall make arrangements, as agreed with the EPA or CDH, for the
2
transference of all or a specified portion of the Trust Funds to
the appropriate federal or state agency.
(ii) The Trustee shall be the Treasurer of Weld
County, Colorado. The Trustee shall direct the investment of
funds in the Trust. No funds shall be released, disbursed, or
N O transferred by the Trustee from this Trust without the express
N written authorization of the Board.
O
▪ oU ( iii ) The Trust Agreement shall contain a
A provision whereby the Trustee acknowledges this Financial
o w• Assurance Agreement and agrees not to take or to fail to take any
o g action not in conformance with this Agreement.
o rz
toi- A (iv) Any other substantial changes, beyond those
a expressed in this paragraph 2, to the language of the Trust
aO Agreement form as set forth at Section 264. 151(a)-( 1 ) of Title 40
of the Code of Federal Regulations shall require the review and
N approval of the Weld County Attorney' s Office.
.. w
N
+ x 3. Funding of Trust. Operator shall provide the following
w funding for the Trust:
N o-7
rn U
• Z (a) Letter of Credit . Operator shall provide the
tr)o H Trust with an irrevocable $50,000 letter of credit, drawable on a
F Colorado or federally-chartered bank with capital and surplus of
not less than $7, 000, 000. The letter of credit shall be
w delivered prior to Operator accepting wastes at the Disposal Site
d w and shall be maintained at such amount until the fund created
w w pursuant to paragraph 3(b) below reaches the sum of $113, 172 at
O1 which time it shall be released and terminated.
0z
m
N
(b) Quarterly Gate Payment. During the term of the
U a Trust (except as provided by paragraphs 5 and 6 below), Operator
a shall collect and pay to the Trust on a quarterly basis, an
amount equal to $.025 per cubic yard of solid waste received at
,m g. the Disposal Site during such quarter ( the "Quarterly Gate
m co Payment" ) ; provided, however, that the aggregate payment made by
Operator during such calendar year pursuant to this Section 3(b)
444 shall be not less than $5,000.00 and that each quarterly payment
shall not be less than $1 , 250. 00 . Operator shall provide
quarterly reports to the Board detailing the volumes of solid
waste received at the Disposal Site during the preceding quarter.
The Quarterly Gate Payment shall be deposited to the Trust not
less than 30 days after the end of the quarter giving rise to the
payment. Failure to make the payment within 30 days after the
end of the quarter shall be cause for the Board to schedule a
hearing for the suspension of the Operator' s CD for the Disposal
Site, following notification by the Board to the Operator of the
default and pending suspension hearing and the allowance of ten
( 10 ) days, from the date of mailing the notification, for the
Operator to fully cure the default. At any suspension hearing,
3
the Board shall consider the following factors: whether or not
Operator has cured the default prior to the date o£ the hearing;
and any mitigating facts offered by Operator in explanation of
the default. Unless this Agreement is modified pursuant to
N O paragraph 5 hereof, Operator's obligation to pay the Quarterly
O Gate Payment shall cease when the Trust has a corpus of
$113, 172.00.
in o
U
ca (c) Trust Fund Replenishment . Once the trust fund
0 w reaches $113, 172 . 00 and if thereafter the Trust falls below
0 g $113, 172.00 (whether because of disbursements from the Trust to
to a fund corrective actions necessitated by a Noncompliance Event or
vrw an Emergency Event, Trust fund losses, or otherwise ) , then
a Operator shall, within 30 days after mailing of notice by Trustee
U or the Board o£ a deficiency, present to the Board a plan for
w replenishment of the Trust funds to eliminate the deficiency ( a
' a "replenishment Plan" ) . Upon approval by the Board of such
N Replenishment Plan, Operator shall make additional payments (if
� a4 any) to the Trust as required by the Replenishment Plan.
a
w
N U (d) Income Retained. All income earned on the Trust
cr, funds shall be retained by the Trust and added to the Trust
"' z funds.
O H
� W
• a4. Monitoring; Event Response; Failure to Operate; Trust
w Disbursement.
-tr o
co w ( a) Monitoring. Operator shall monitor the Disposal
o z Site to ensure its compliance with all federal, state and local
m zz environmental regulations.
0
v a (b) Event Response & Trust Disbursement. Operator
a shall promptly ( but in no event later than 10 days after
knowledge thereof ) notify the Board of any material non-
cLn
ompliance with federal, state or local environmental regulations
m co ( a "Noncompliance Event" ) . Within 30 days after notice of a
Noncompliance Event, Operator shall submit to the Board a plan of
ma remediation designed to rectify the Noncompliance Event. The
Trust Agreement shall provide that, in the event Operator fails
within 60 days of notice of the Noncompliance Event to submit a
plan of remediation and commence corrective action, then the
Board may make written demand upon Trustee for disbursement from
the Trust of funds sufficient to pay the costs associated with
the necessary corrective action. Such disbursement shall be made
by the Trustee, upon notice being concurrently provided to
Operator but without the concurrence of Operator. In addition,
if the Board becomes aware of a Noncompliance Event which, based
upon then applicable federal , state or local environmental
regulations, requires immediate corrective action (an "Emergency
Event " ) , then the Board may make demand upon Trustee for
disbursement from the Trust of funds sufficient to pay the costs
associated with the actions necessary to correct or remediate the
4
k
Emergency Event. Such disbursement shall be made by the Trustee,
upon notice being concurrently provided to Operator but without
N o the concurrence of Operator. This provision in no way connotes
o the assumption of any duty or obligation on the part of the Board
� o to undertake any remedial action at the Disposal Site.
H U
a (c) Failure to Operate & Trust Disbursement. In the
o w event that the Operator ceases landfilling operations at the
0 3 Disposal Site for in excess o£ one year without any clear
o a evidence that operations will be resumed within a brief time, the
"1- Q Board may demand, in writing, that Operator initiate final
a closure activity or resume landfilling operations by a date
U certain. Failure by Operator to comply with this demand shall
in a enable the Board, after notice to Operator and a public hearing,
N to make a written demand upon Trustee for disbursement from the
" ° Trust of funds sufficient to pay costs of closure and post-
•' a closure activity, to undertake and pay for out of the Trust any
a needed corrective actions for releases from the Disposal Site,
N
a, V and to initiate closure of the Disposal Site. This provision
� Z shall not apply to cessation of landfilling operations due to
o H temporary closure by court order or government authority.
--- w
e-i E
ri a (d) All Remedial Rights Retained. In addition to all
o
rights provided in this paragraph 4, the Board shall have the
-I, w right to pursue any other remedies available under law.
co a
o z 5. Periodic Review & Modification. On or about every
N z fifth anniversary of the CD approval for this Disposal Site, the
o Board may review, in consultation with Operator, the adequacy of
U a the funds accumulating in the Trust in regard to the Trust funds '
F;41 potential ability to cover all anticipated closure and post-
closure costs and any known or reasonably suspected remediation
,� � costs. Included in this review are factors such as inflation,
mccoo increased or additional closure, post-closure, remediation costs,
any changes in the operations of the Disposal Site, any federal
w a or state financial assurance requirement, and any other costs,
incurred or expected, not previously foreseen for this Disposal
Site. The Board may modify the quarterly and yearly amounts
specified under paragraph 3 of this Agreement and the Closure and
Remediation Costs set out in Exhibit B to this Agreement, to
reasonably reflect any adjusted costs estimates. Should any
state or federal law or regulation impose material new or
different closure or post-closure requirements on the Disposal
Site, review and modification described in this paragraph shall
occur within a time appropriate under the law or regulation.
6. Partial Withdrawal or Reduction. At any time the
Operator may submit a written request to the Board requesting
release of that amount of the Trust fund in excess of the then
current estimate of the remaining Closure and Remediation Costs.
Operator may also request that the Quarterly Gate Payment be
reduced to reflect the then current estimate of the remaining
5
Closure and Remediation Costs. The Board shall authorize partial
release( s ) of Trust funds and/or permit reduction of the
Quarterly Gate Payment as is reasonable under the then existing
N o circumstances, and the Trustee shall release funds as directed by
N C..) the Board. Upon release to Operator, the funds released shall no
o - longer constitute a part of the funds of the Trust. The Board
r- O shall instruct the Trustee regarding its decision on release of
m the funds within 60 days after receiving the request for release.
a
0 w 7. Substitute Financial Assurance. Operator may at any
time provide alternate financial assurance concerning the
a c4
at CA o Disposal Site as specified in proposed Part 258 as finally
m adopted or as may be acceptable to the Board. Such alternate
uo financial assurance must be reviewed and approved by the County
Lila
w Attorney as to its adequacy and dependability in comparison to
N the then existing financial assurance. The Trust will terminate
•• w upon provision to and acceptance by the Board of such alternate
,Nig financial assurance, and all funds then held by the Trust shall
x be distributed to Operator upon the direction of the Board. No
N U existing form of financial assurance shall be terminated or
� cancelled unless and until an alternate financial assurance has
Ln z been received and accepted by the Board.
O H
\ W
�
8. Request for Closure and Post Closure Costs. Following
w commencement of partial or final closure of the Disposal Site,
.44 the Operator or other person authorized to conduct partial or
�
w final closure may request reimbursements for partial or final
o z closure expenditures or post-closure expenditures by submitting
rn N itemized bills to the Board . The Operator may request
Z
o reimbursement for partial closure only if sufficient funds are
u a remaining in the Trust to cover the estimated costs of closing
w g the Disposal Site over its remaining operating life plus the cost
x of monitoring and conducting other post-closure care of the
Nu, Disposal Site thereafter. Within 30 days after receiving bills
M co for partial or final closure or post-closure activities, the
r' "' Board shall instruct the Trustee to make reimbursements to
m w Operator in those amounts as the Board specifies in writing, if
the Board determines that the partial or final closure
expenditures and post-closures costs are in accordance with the
then approved closure plan, or otherwise justified. If, however,
the Board has reason to believe that the maximum cost of closure
over the remaining life of the Disposal Site plus attendant post-
closure costs may be significantly greater than the value of the
funds in the Trust, it may withhold reimbursement of such amounts
as it deems prudent until it determines that Operator is no
longer required to maintain financial assurance for final closure
of the Disposal Site. If the Board does not instruct the Trustee
to make such reimbursements, the Board will provide Operator with
a written statement of its reasons for denial.
6
r i �„
9. Limited Rights of Operator to Trust Corpus; Bankruptcy.
( a) The Trust described in this Agreement is being
provided in conformance with the County ' s Certificate of
Designation requirements as to an operator ' s obligation to
NI
provide financial assurances for Solid Waste Disposal Sites and
o Facilities and is intended to assure performance of the
co p Operator' s regulatory duties as to closure and post-=closure
activity at the Disposal Site and to protect the public trust.
A As such, Operator retains no more rights to the corpus of the
c Trust than has been specified by the proposed Part 258, as
provided in Paragraph 1 above , and as reflected in this
o a Agreement.
t, w
a
a (b) In the event of bankruptcy, the Operator warrants
oo that the corpus of the Trust shall never be considered or claimed
a by the Operator as being property of any bankruptcy estate under
11 U. S.C. Section 541 . Further, the Operator agrees that the
corpus of the Trust shall not be the subject of any attachment,
r lien, levy, execution, garnishment, or assignment by, for, or on
N a behalf of any creditor of the Operator.
m0
N z (c) In the event of, and during the pendency of,
a H bankruptcy, the Operator agrees that the Board shall have fully
tiEw+ performed its obligations under this Agreement and shall no
longer be obligated under any provision of this Agreement to
authorize the release of any Trust moneys to Operator .
vr
v w Therefore, Operator agrees that this Agreement shall not be
� 44 considered or claimed to be an executory contract under 11 U.S.C.
o z Section 365 and will itself assert no rights or claims against
m z the Trust contrary to this Agreement.
0
U a (d) The Operator shall notify the Board of the
a commencement of a voluntary or involuntary proceeding in
bankruptcy, wherein the Operator is named as debtor, within ten
in v ( 10) days after commencement of the proceeding.
M Co
r-I r-I
XI 44 10. Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed
or not . Upon transfer o£ the Disposal Site by Operator to a
third party after approval of such transfer by the Board,
Operator shall be released of and from any further liability
hereunder and the transferee shall be substituted as the
Operator.
11 . Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the
7
12. Descriptive Headings. The descriptive headings of this
o Agreement are inserted for convenience only and do not constitute
cv U a part of this Agreement.
0
ri u 13. Governing Law . All questions concerning the
A construction, validity and interpretation of this Agreement, and
o w the Trust Agreement, will be governed by the federal laws of the
o United States and the internal laws of the State of Colorado.
o
rn w 14. Entire Agreement ; Amendments . This Agreement
a constitutes the entire agreement of the parties hereto. no
U change, alteration, amendment, modification or waiver of any term
r or provision hereof shall be valid unless the same is set forth
N in writing and signed by the parties.
Hg 15. No Waiver. No portion of this Agreement shall be
w deemed to constitute a waiver of any immunities the parties or
s c.) their officers or employees may possess, nor shall any portin of
this Agreement be deemed to have created a duty of care or rights
o H as third party beneficiaries with respect to any persons or
w entities not a party to this Agreement.
rim
, m
w 16. Notices. All notices, demands or other communications
a A to be given or delivered under or by reason of the provisions of
CO w this Agreement will be in writing and will be deemed to have been
o given when (a) delivered personally or by courier, with a signed
N Z proof of receipt, or (b) placed in the U. S . mail by means of
c certified or registered mail , return receipt requested and
U a postage prepaid, to the recipient. Such notices, demands and
z other communications shall be sent to each party at the addresses
indicated below:
roo
Lin .er
en oo If to Operator: If to the Board:
HIHI
w w WASTE SERVICES CORPORATION BOARD OF COUNTY COMMISSIONERS
6037 77th Avenue OF WELD COUNTY
Greeley, CO 80634 P. O. Box 758
Greeley, CO 80632
or to such other address or to the attention of such other person
as the recipient party has specified by prior written notice to
the sending party.
IN WITNESS WHEREOF, Operator and the Board have executed
this Agreement as of the date and year first written above.
8
Operator: Board:
WASTE SERVICES CORPORATION BOARD OF COUNTY COMMISSIONERS
OF WELD OUNTY, COLORADO
1
N U s r
o B : L By:
0 o Presid t Chai n
N U
A ATTEST
a
0 3tr. VII
Xerk t the Board
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N x Lots 3 and 4 and the E1/2 of the SW1/4 of Section 7; Township 7 North,
.. 0 Range 66 West of the 6th P . M. ;
x EXCEPT that portion thereof conveyed to The Department of Highways,
w State of Colorado by Special Warranty Deed recorded in Book 1483 , Page
N a 93 , described as follows :
v BEGINNING at a point on the West line of said Section 7 from which
CD H the Southwest corner of Section 7 bears South a distance of 116 . 6 feet;
---- id thence N89' 321E, a distance of 1 , 537 . 4 feet;
Him thence 888' 29 ' 30"E, a distance of 521 . 2 feet;
w thence N82 ' 21 ' E, a distance of 903 feet to the East line of the SW1/4
d' o of said Section 7;
cow thence along the East line of the SW1/4 of Section 7 S1 ' 47 'W, a distance
o z of 181 . 5 feet to the South quarter corner of said Section 7;
M Z thence along the South line of Section 7 S88' 57 'W, a distance o£ 2 , 948 . 1
o feet to the Southwest corner of Section 7;
a thence along the West line of said Section 7 North a distance of 116 . 6
a 4 feet, more or less, to the POINT OF BEGINNING, all located in Weld County,
Colorado.
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CA G4
EXHIBIT A
£4
Industrial Compliance Inc.
MEMORANDUM
To: Mr: Brad Keirnes, waste Services Corporation
N o From: Michael H. Stewart, P.E. m61
Date: October 25, 1990
N o Subject: Closure/Post-closure Costs for the North weld Landfill
Based Upon 2.5 Acre Areas.
4
0 3 Assumptions:
w 1) Maximum of 2.5 acres to fully Close ! $11,300/acre.
2 2) Maximum of 2.5 acres requiring regrading 6 $6,300/acre.
O 3) Maximum of 7.5 acres to revegetate Q $500/acre.
w 4) Monitoring requirements:
a two "wet" ground water well requiring monitoring.
N n remainder restricted to testing for the presence of liquids
N
~ 10-year post-closure monitoring: Semi-annual for 2 years
N 4 (modified from original quarterly) , semi-annually for the
next 5 years, annually for the remaining 3 years.
Ln z $900 for 5-year full suite: done twice/well in PC
H
period.
$360 for annual suite: done s times/well in PC period
a $225 for semi-annual suite: done 16 times/well
w5) Semi-annual post-closure inspections for 10 years
c
w 61,500/inspection
co
M z 1) 2.5 acres * $11,300 $ 28, 250
N � 2) 2.5 acres * $6,300 $ 15,750
N 3) 7.5 acres * $500
600
z 4) 2 wells * $900 * 2 $ 3,750
2 wells * $360 * 8 $ 5,760
2 wells * $225 * 16 $ 7, 200
LO U1
,., m 5) 20 inspections * $1500 $ 30,000
r,
m w ESTIMATED CLOSURE/POST CLOSURE COST $ 94, 310
Contingency 1.2
PREDICTED CLOSURE/POST-CLOSURE COST $113, 172
note: all costs based upon 1990 dollars
Dedicated to solving your waste management,problems.
1746 Cole Blvd.. Bldg. 21 #'300 Golden, CO 80401 303/277.1400
EXHIBIT .B
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