HomeMy WebLinkAbout920132.tiff M27179633 RESOLUTION
RE: APPROVE REVISION OF TRUST AGREEMENT AND AUTHORIZE CHAIRMAN TO SIGN -
ENVIRONMENTAL RECYCLING AND DISPOSAL, INC.
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs of Weld County, Colorado, and
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o WHEREAS, by Resolution on December 30, 1991, the Board did approve a Trust
� 0 Agreement between the Board of County Commissioners of Weld County, as Settlor,
U United Bank of Greeley, as Trustee, and Environmental Recycling and Disposal,
o• Inc. , as Operator, and
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O 3 WHEREAS, the County Attorney's staff has informed the Board that certain
o (24 revisions concerning the registration of securities is necessary, and
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0O WHEREAS, the Board has been presented with a revised Trust Agreement dated
W February 12, 1992, and
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N WHEREAS, the Board deems it advisable to rescind the Trust Agreement dated
N x December 30, 1991, and to approve the revised Trust Agreement dated February 12,
% 1992.
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m U NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
Ln z County, Colorado, that the initial Trust Agreement approved on December 30, 1991
OH be, and hereby is, rescinded.
rA co BE IT FURTHER RESOLVED by the Board that the Trust Agreement between the
W Board of County Commissioners of Weld County, as Settlor, United Bank of Greeley,
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Cfl W as Trustee, and Environmental Recycling and Disposal, Inc. , as Operator, dated
co February 12, 1992 be, and hereby is, approved.
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N 4 BE IT FURTHER RESOLVED by the Board that the Chairman be, and hereby is,
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y4 authorized to sign said Trust Agreement.
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a 2. The above and foregoing Resolution was, on motion duly made and seconded,
r. .4. adopted by the following vote on the 12th day of February, A.D. , 1992.
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H H A n BOARD OF COUNTY COMMISSIONERS
00 NATTEST: if/ / ;,'/,/G�� WELD C UNTY, COLORADO
ar1444 /b/Weld County Clerk to the Board
fii1A,d4 ' _-4-zifiZ-1
/ Geor e Kenn y, ChairmanBY: 1%.17--- --,✓.�--- �[ 3 vC!`C.c�Deputy Clerk tDlthed Consfance L. Harbert, Pro-Tem
APPROVED A 0 FORM: '
C. Kirby
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County Attorney Gorden( . Ye-/
t x. IUPPA
W. H. Webster
920132
P(OPP cc - pi , He, 1L1cy
TRUST AGREEMENT
ii This Trust Agreement (Agreement) is made and entered into this
day of v, thk can , 1992 by and between the BOARD OF
o o COUNTY COMMISSIONERS OF°WELD COUNTY, COLORADO, (Board) , as Settlor;
UNITED BANK OF GREELEY, (Trustee) , as Trustee and ENVIRONMENTAL
RECYCLING AND DISPOSAL, INC. , a Colorado corporation, (Operator) ;
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WITNESSETH THAT:
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0 z WHEREAS, Operator has obtained from Board a Certificate of
o a Designation (CD) authorizing Operator to open and operate a Solid
w Waste Disposal Site (Facility) located in Weld County, Colorado,
subject to certain conditions and operation standards, and
U described with particularity by the legal description set forth on
Exhibit A attached hereto.
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WHEREAS, as a condition to approval of the Facility, Operator
x and the Board have entered into a Financial Assurance Agreement,
dated December 30, 1991 pursuant to which Operator has agreed to
N execute a Trust Agreement containing the terms and provisions as
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set forth herein for the purposes set forth in the Financial
o H Assurance Agreement.
r4 u) WHEREAS, this Trust Agreement, together with the Financial
w Assurance Agreement, is intended to comply with the financial
0° assurance requirements of Title 40, Part 258 , Subpart G of the Code
00w of Federal Regulations issued by the United States Environmental
z Protection Agency on September 11, 1991, published October 10, 1991
N z at 56 Federal Register 50978, effective October 10, 1993 (Federal
o Law) .
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WHEREAS, the Operator and Board have selected the Trustee to
be the Trustee under this agreement, and the Trustee is willing to
LEI 1/4D act as trustee.
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NOW, THEREFORE, Operator, Board and Trustee do hereby agree as
follows:
1. Name of Trust. The Trust created by this agreement shall
be called the ENVIRONMENTAL RECYCLING AND DISPOSAL FINANCIAL
ASSURANCE TRUST.
2 . Purpose of Trust. The purpose of this Trust is to provide
Financial Assurance for Closure, Post-Closure, and Corrective
action costs of, or at, Facility as required by the Financial
Assurance Agreement between Operator and Board dated the 30th day
of December 1991, a true and correct copy of which has been
delivered to Trustee receipt of which is hereby acknowledged by
Trustee, and Federal Law. The Financial Assurance Agreement is
delivered to Trustee to advise Trustee of the relationship of
Operator and Board with respect to the Trust and the manner and
purposes for which funds may be disbursed from the Trust. Trustee
shall not be bound by the terms of the Financial Assurance
Agreement except to the extent they are specifically incorporated
0 o into this Trust Agreement.
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3 . Initial Funding. Operator, contemporaneously with the
en execution of this Agreement, has transferred and delivered to
Trustee, IN TRUST, the receipt of which is acknowledged by Trustee,
the sum of Sixty Four Thousand One Hundred Eighty-four and 53\100
0 3 Dollars ($ 64 , 184 . 53) as initial funding of the Trust, Fifty Three
• Thousand Ninety-Six and 53/100 Dollars ($ 53 , 096. 53) of which is
w Financial Assurance for Post-Closure costs and Eleven Thousand
Ninety-One and No/100 Dollars ($ 11, 091. 00) of which is Financial
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p Assurance for Closure costs pursuant to the Financial Assurance
Agreement to be held and administered by the Trustee in accordance
a with this Trust Agreement.
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4 . Future Contributions. Operator shall, on or before thirty
~ w (30) days after each anniversary of this Trust Agreement, transfer
N a and deliver to Trustee additional funds or property as Financial
mu Assurance for Closure, Post-Closure, and Corrective Action costs
wiz for Facility in accordance with the Financial Assurance Agreement.
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Such funds or property shall be held in Trust by the Trustee in
rA E accordance with this Trust Agreement. Operator or Board, or both,
shall advise Trustee as to the allocation of any future
co z contributions between Closure, Post-Closure, and Corrective Action
co w costs.
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M z 5. Limitations of Trustee Responsibilities. Trustee shall
N not be responsible for the amount or adequacy of any funds or
property delivered or transferred to Trustee, nor shall Trustee
w x have any duty to collect from the Operator or enforce any of
a Operators obligations under the Financial Assurance Agreement.
r Trustee shall not be responsible for any losses incurred with
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r- respect to any specifically authorized or otherwise appropriate
investment hereunder, whether due to market fluctuations or
ma otherwise, except in the case of its negligence or misconduct or
that of its agents.
6. Trust Management . The Trustee shall invest and reinvest
the principal and income of the Trust and keep the Trust invested
as a single fund without distinction between principal and income,
except that Trustee must be able to advise Board or Operator of the
allocation of the Trust between Closure, Post-Closure, and
Corrective Action costs and, for that purpose, and income or
capital appreciation in the Trust shall be allocated pro-rata
between the purposes based on the amounts contributed and the time
held. In investing, reinvesting, exchanging, selling, and managing
the Fund, the Trustee shall discharge its duties with respect to
the Trust solely in the interest of the Operator and Board and with
the care, skill, prudence, and diligence under the circumstances
then prevailing which persons of prudence, acting in a like
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capacity and familiar with such matters, would use in the conduct
of an enterprise of a like character and with like aims. For
purposes of investing or reinvesting the monies in the Trust,
Trustee is authorized to invest in the following securities:
a. United States Treasury Bills.
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b. Obligations of the United States of America or any of
o its agencies or instrumentalities backed by the full faith and
V credit of the United States of America.
c. General obligations of any political subdivisions of
0 3 the State of Colorado or any of their agencies or
o x instrumentalities.
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d. Money market mutual funds registered under the
Investment Company Act of 1940, as from time to time amended,
zprovided that the portfolio of any such money market mutual fund is
icirti limited to obligations that are bonds, notes, certificates of
indebtedness, treasury bills or other securities now or hereafter
rig issued, which are guaranteed by the full faith and credit of the
United States of America as to principal and interest. Such money
rn v market mutual funds may also include those which have a portfolio
comprised of repurchase agreements which are fully collateralized
o H by the foregoing and may include those for which the Trustee is the
advisor.
e. Units of a common or collective trust fund estab-
o lished and maintained by the Trustee or an affiliate within the
w
m w meaning of Section 1504 of the Internal Revenue Code, (26 U. S.C.
o z 1504) , provided the only investments of the fund are those
m z described in (a) , (b) , (c) , (d) , or (e) above or in (f) , (g) and
o (i) below.
gf. Interest-bearing accounts maintained by the Trustee
to the extent such are insured by an agency of the Federal or State
government or otherwise secured as provided under the laws of the
M State of Colorado. At no time shall the amounts in said accounts
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exceed the insured and/or secured limits.
g. Commercial paper and prime commercial paper defined
as follows:
(i) Commercial paper, meaning unsecured promissory
notes issued at a discount from pay by an industrial, common
carrier, public utility or finance company.
(ii) Prime commercial paper meaning notes issued by
corporations rated A-1 by Standard and Poor's Corporation and P-1
by Moody' s Investor Service, Inc.
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h. Trustee may hold cash awaiting investment or
distribution for a reasonable period of time without liability for
the payment of interest thereon.
i. In addition to those investments or securities herein
described, Trustee may invest in any security described in CRS 24-
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� V 75-601. 1, as amended.
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n o j . Trustee may register any securities held in the Trust
in its own name or in the name of a nominee and to hold any
security in bearer form or book entry, or to combine certificates
o of the same issue held by Trustee in other fiduciary capacities, or
• to deposit or arrange for the deposit of such securities in a
W qualified central depository even though, when so deposited, such
securities may be merged and held in bulk in the name of the
p nominee of such depository with other securities deposited therein
by another person, or to deposit or arrange for the deposit of any
x securities issued by the United States Government, or any agency or
•• w instrumentality thereof, with the Federal Reserve Bank, provided
the books and records of Trustee shall at all times show that all
such securities are the property of, and a part of, the Trust.
°i• V k. Trustee shall not invest in any securities of Weld
LEI z County, Operator, Mid-American Waste Systems, Inc. , or any
successor operator or owner of Facility.
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7 . Powers of Trustee. Trustee shall have all the powers
n, a conferred upon fiduciaries under the "Colorado Fiduciaries' Powers
m w Act" , C.R. S. 1973 , 15-1-801, et. seq. , as now in effect or
hereafter amended.
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N 8 . Taxes and Expenses. All taxes of any kind that may be
r assessed or levied against or in respect of the Trust and all
w brokerage commissions incurred by the Trust shall be paid from the
x Trust. All other expenses incurred by the Trustee in connection
r- co with the administration of this Trust, including fees for legal
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M r-- services rendered to the Trustee, the compensation of the Trustee
to the extent not paid directly by the Operator, and all other
m w proper charges and disbursements of the Trustee shall be paid from
the Trust.
9 . Valuation. The Trustee shall annually, at least 30 days
prior to each anniversary date of this Trust Agreement, or upon
written request of Board or Operator, furnish to Operator and Board
a statement confirming the total value of the Trust and allocating
that value between Closure, Post-Closure, and Corrective Action
funds. Any securities in the Trust shall be valued at market value
as of no more than 60 days prior to the anniversary date.
10. Successor Trustee. The Trustee may resign or Board may
replace the Trustee, but such resignation or replacement shall not
be effective until Board has appointed a successor trustee and this
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successor accepts the appointment, The successor trustee must be
an institution whose trust operations are regulated and examined by
an agency of the United States or the State of Colorado or both.
The successor trustee shall have the same powers and duties as
those conferred upon the Trustee hereunder. Upon the successor
0 o trustee' s acceptance of the appointment, the Trustee shall assign,
o transfer, and pay over to the successor trustee the funds and
n o properties then constituting the Trust together with the records of
• the Trust. If for any reason Board cannot or does not act in the
ca event of the resignation of the Trustee, the Trustee may apply to
w o a court of competent jurisdiction for the appointment of a
0• 3 successor trustee or for instructions. The successor trustee shall
o w specify the date on which it assumes administration of the trust in
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aa writing sent to Operator, Board, and Trustee by certified mail
p ten (10) days before such change becomes effective. Any expenses
U incurred by the Trustee as a result of any of the acts contemplated
cr. a by this Section shall be paid as provided in Paragraph 8 of this
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no Trust Agreement.
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I=4 il. Instructions to the Trustee. All orders, requests, and
N a instructions by Board to Trustee, including authorizations for
a, 0 disbursement of funds, shall be in writing, signed by the Chairman
n z of Board or a duly designated representative. The Trustee shall be
w fully protected in acting without inquiry in accordance with the
rie-I Board' s orders, requests, and instructions. The Trustee shall
a have the right to assume, in the absence of written notice to the
w a contrary, that no event constituting a change or a termination of
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• w the authority of any person to act on behalf Board hereunder has
o, occurred. All authorizations for disbursement of funds from the
Trust shall specify the amount, payee, and purpose. Trustee may
N 4 rely on such authorizations for all purposes including the
o >+ allocation of any Trust balances between the purposes for which
ci w c4 funds are on deposit in the Trust.
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n O 12 . Amendment of Agreement. This Agreement may be amended by
'^ `° an instrument in writing executed by Operator and Board and
re) r-
r' ^+ accepted by Trustee, or by Board and accepted by Trustee if the
m w Operator has dissolved or is not available after reasonable search.
In the event either (i) Federal Law is amended or (ii) the State of
Colorado adopts any law or regulation pertaining to financial
assurances for solid waste disposal sites and either grants the
United States Environmental Protection Agency (EPA) , the Colorado
Department of Health ("CDH") , or other state of federal agency or
authority responsibility for establishing or supervising Financial
Assurance provision such as that represented by this Trust
Agreement and the Financial Assurance Agreement, then this Trust
Agreement shall be appropriately amended to provide the EPA, CDH or
other agency or authority, as appropriate, to act in lieu of Board
with respect to this Trust Agreement.
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13 . Bankruptcy of Operator.
(a) This Trust is being created and funded pursuant to
the Certificate of Designation granted by Board, the Use By Special
Review granted by Board and Federal Law and is intended to assure
performance of the Operator' s duties as to Closure, Post-Closure,
and Corrective Action of the Facility and to protect the public
o o interests with respect thereto. Operator retains no more rights to
the Trust than has been specified in this Trust Agreement, or as
o may be permitted by Federal Law.
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(b) In the event of bankruptcy, Operator warrants that
Q the Trust shall never be considered or claimed by the Operator as
0 3 being property of any bankruptcy estate under 11 U.S.C. Section
541. Further, Operator agrees that the Trust shall not be the
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subject of any attachment, lien, levy, execution, garnishment, or
assignment by, for, or on behalf of any creditor of Operator to the
o maximum extent allowed by the law or public policy.
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N a (c) In the event of, and during the pendency of,
- 0 bankruptcy, Operator agrees that Board and Trustee shall have fully
performed its obligations under this Agreement and shall no longer
be obligated under any provision of this Agreement to authorize the
m release of any Trust funds or assets to Operator. Therefore,
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Operator agrees that this Agreement shall not be considered or
o z claimed to be an executory contract under 11 U. S.C. Section 365
and will itself assert no rights or claims against the Trust
r contrary to this Agreement.
co a (d) Operator shall notify Board and Trustee of the
m w commencement of a voluntary or involuntary proceeding in bankrupt-
c z cy, wherein the Operator is named as debtor, within ten (10) days
N z after commencement of the proceeding.
14 . Successors and Assigns. All covenants and agree-
ments 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
mor not. Upon transfer of the Facility by Operator to a third party
and upon approval of such transfer by Board, Operator shall be
• w released of and from any further liability hereunder and the
transferee shall be substituted as the Operator.
15 . 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 extent it is prohibited
or invalid and the remaining provisions of this Agreement shall
remain in full force and effect.
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16. Irrevocability and Termination. Except as provided in
O o paragraph 12 of this Trust Agreement this Trust Agreement shall be
o irrevocable and shall continue until terminated by written
o o instruction by Board. Upon termination of the Trust, all remaining
o trust property, less final trust administration expenses, shall be
• delivered to the Operator unless Board otherwise directs.
o 3 17 . Substitute Financial Assurance. This Trust Agreement
o a shall terminate upon receipt by the Trustee from the Board of
w• written notice that the Board has accepted alternate financial
a assurance from Operator concerning the Facility, and all remaining
• Trust property, less final Trust administration expenses, shall be
d, a delivered to the Operator.
a 18 . Notices. All notices, demands or other communications to
• be given or delivered under or by reason of the provisions of this
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O1 C.) Agreement will be in writing and will be deemed to have been given
when (a) delivered personally or by courier, with a signed proof of
0 H receipt, or (b) placed in the U. S. mail by means of certified or
registered mail, return receipt requested and postage prepaid, to
r the recipient. Such notices, demands and other communications
• shall be sent to each party at the addresses indicated below:
w
w w If to Operator:
z
N zEnvironmental Recycling & Disposal, Inc.
O c/o Mid-American Waste Systems, Inc.
v a 1006 Walnut Street
w Canal Winchester, Ohio 43110
If to the Board:
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Board of County Commissioners of Weld County
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P O Box 758
Greeley, Colorado 80632
If to Trustee:
United Bank of Greeley
1025 9th Avenue
Greeley, Colorado 80631
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
party giving notice.
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 and with the care, skill, prudence,
and diligence under the circumstances then prevailing which persons
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of prudence, acting in a like capacity and familiar with such
matters, would use in the conduct of their own affairs.
o o 20. Choice of Law. This Agreement shall be administered,
construed, and enforced according to the laws of the State of
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CA o Colorado.
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21. Interpretation. As used in this Agreement, words in the
o w singular include the plural and words in the plural include the
o S singular. The descriptive headings for each paragraph of this
o x Agreement shall not affect the interpretation or the legal efficacy
"' q of this Agreement.
wIN WITNESS WHEREOF the parties have caused this Agreement to
x be executed by their respective officers duly authorized and their
corporate seals to be hereunto affixed and attested as of the date
first above written.
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UNITED BANK OF GREELEY, NA
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rn U Trustee
�n O H H By
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i a ATTEST:
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00 w Cashier or Assistant Cashier
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o BOARD OF COUNTY COMMISSIONERS OF
V WELD COUNTY, COLORADO
W Settlor
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By .ems
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ENVIRONMENTAL RECYCLING AND DISPOSAL, INC.
a Colorado corporation
Operator
By VP
ATTEST:
Secretary
8
STATE OF GGESRi:HO 10.-P16
}ss
COUNTY OF WELD }M-AJLUd
Subscribed afid sworn to before me this 17 day of January,
1G9�92 ,.. by 1\ RDtoxk GS V lee as President and
J 2n6aic, , l,.>i.-P-..�-P �.1 as secretary of Environmental
R��cycl•it4q 'and Disposal, Inc. , a Colorado corporation.
My' Commission expires: MYComnissionE:;:resJunu^ryigi 0,5
O otary P
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.7 STATE OF COLORADO }
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o a� w COUNTY OF WELD }
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, , i . of JFebru_a�
o `qq subs' ibed and sworn to before me this a day armary,
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�� by ,, eae_G, eI Ve lirJe0'l as Chairman of, and
.cr x i)ot e-,O E*C as Clerk to, The Board of County
N w Commissigners of Weld County, Colorado.
HI W My. geinmission expires: MyComm.i ,j , '
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COW STATE OF COLORADO }
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0 2 COUNTY OF WELD }
`" Subscribed and sworn to before me this day of January,
a 1991, by , an officer of, and
cashier or assistant
aw cashier of, United Bank of Greeley, N.A.
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in M r- My commission expires:
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Notary Public
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