City Council Packet 2006 10-17-06 - Special Meeting D C/T
United City of Yorkville
p 800 Game Farm Road
esr. , ue 1836 Yorkville, Illinois 60560
I�
w Telephone: 630-553-4350
" Fax: 630-553-7575
AGENDA
CITY COUNCIL SPECIAL MEETING
CITY COUNCIL CHAMBERS
6:30 PM
Tuesday, October 17, 2006
Call to Order:
Pledge of Allegiance:
Roll Call by Clerk: WARD I WARD II WARD III WARD IV
Paul James Valerie Burd Marty Munns Joe Besco
Jason Leslie Dean Wolfer James Bock Rose Ann Spears
Establishment of Quorum:
City Council Requests:
1. Discussion of Host Agreement
Adjournment:
HOST CITY AGREEMENT
This HOST CITY AGREEMENT ("Agreement") is made effective thin"day of
6E rsq&—k 2006 ("Effective Date") by and between Fox Moraine, LLC, an Illinois Limited
Liability Corporation, and the United City of Yorkville, Illinois (the"City");
WITNESSETH:
WHEREAS,Fox Moraine, LLC owns parcels of land totaling approximately 453 acres as
described and shown on Attachment A"Property"; and
WHEREAS, the parties to this Agreement understand the need for and desirability of
locating a landfill in the United City of Yorkville to manage the Solid Waste generated in the City,
Kendall County and the region; and
WHEREAS, Fox Moraine, LLC subsequently intends to file an application ("Siting
Application") with the City for siting of the Fox Moraine Landfill (the "Landfill") as a long-term
regional solid waste management solution; and
WHEREAS, the City agrees to consider any request by Fox Moraine, LLC for the
establishment and development of a landfill under the local siting process pursuant to 415 ILCS
5/39.2; and
WHEREAS, in accordance with the solid waste planning requirements of the State of
Illinois, the City desires to secure, and Fox Moraine, LLC is willing to develop disposal capacity
within the jurisdiction of the City for Solid Waste generated by residents, commercial
establishments, institutions and industries located within the United City of Yorkville, Kendall
County and the region; and
WHEREAS, Fox Moraine, LLC is desirous of earning the goodwill of the citizens of the
City by demonstrating its good faith in educating the community as to the nature of its proposed
operations in the City and in demonstrating that its operations will be conducted in an
environmentally sound manner, and a manner that will protect the public health, safety and
welfare; and
WHEREAS, the City and Fox Moraine, LLC are desirous of protecting the health, safety
and welfare of City's citizens, and insuring that factually and technically accurate information is
given to the public, and the City is desirous of receiving a host benefit fee to help meet the costs of
government, including, but not limited to those costs associated with traffic control and roadway
maintenance; and
WHEREAS, the parties hereto have determined that the terms provided for in this
Agreement are in their respective best interests; and
NOW THEREFORE, in consideration of the covenants set forth in this Agreement, the
parties hereto, intending to be legally bound, hereby agree as follows:
1
1. INCORPORATION OF RECITALS
The above recitals are incorporated as part of this Agreement as though fully set for herein.
2. LANDS COVERED
This Agreement covers the Property as described and shown in Attachment A.
3. DEFINITIONS
"Act" is the Illinois Environmental Protection Act, including any future amendments.
"Agency" refers to the Illinois Environmental Protection Agency (IEPA).
"Agreement"means this Host City Agreement.
"Anniversary Date" means the date that Solid Waste is first received at the Landfill for
final disposal.
"Application" refers to the submittal for local siting approval for a pollution control
facility.
"City" refers to United City of Yorkville, an Illinois Municipal Corporation.
"City's Solid Waste" refers to Solid Waste generated for disposal within the corporate
boundaries of the United City of Yorkville.
"Company"refers to Fox Moraine, LLC.
"Daily Waste Volume" means the actual Solid Waste accepted for final disposal at the
Landfill in a given operating day.
"Effective Date" means the date that Fox Moraine, LLC receives non-appealable site
location approval from the City for the Landfill. .
"Expiration Date"means the date that the Landfill ceases to operate.
"Facility" means the Landfill as defined herein.
"Hazardous Waste"means hazardous waste as defined in Section 3.220 of the Act.
"Host Benefit Fee" means the per ton fee payable to the City, commencing on the
Anniversary Date, as more fully set forth in Section 9 herein.
"Host Benefit Fee Adjustment" means the adjustment of the Host Benefit Fee, as set forth
in Section 10.
2
"Landfill" refers to the proposed Fox Moraine Landfill as defined by Section 3.285 of the
Act, including the Property on which the landfill is located, which includes the property as
described and shown in Attachment A.
"Landscape Waste"means landscape waste as defined in Section 3.270 of the Act.
"Property"means the site described and shown in Attachment A.
"Solid Waste' means municipal waste as defined in Section 3.290 of the Act, non-
hazardous industrial waste, and non-hazardous special waste.
4. EFFECTIVE DATE
This Agreement shall be deemed incorporated into any application for site location
approval for the Landfill filed with the City. This Agreement shall become effective, if and only if
the City grants site location approval for the proposed Landfill, in which event the terms of this
Agreement shall become a condition upon the granting of site location approval, and shall become
a contract binding upon both the City and Fox Moraine, LLC. This Agreement shall be effective
as of the date on which the proposed Landfill receives non-appealable local siting approval from
the City ("Effective Date"), provided, however, the City has not, by entering into this Agreement,
predetermined whether it will grant or deny local siting approval or whether Fox Moraine, LLC
can (or cannot) establish any of the criteria related to local siting approval, and the City retains all
of its authority to grant, deny or grant with conditions local siting approval in accordance with
Section 39.2 of the Illinois Environmental Protection Act, 415 ILCS 511 et seq. (the"Act").
5. TERM OF AGREEMENT
This Agreement commences on the Effective Date and shall remain in force and effect
until the Landfill ceases to operate ("Expiration Date").
6. AUTHORIZED WASTE
The Landfill shall receive only waste that is acceptable pursuant to permits issued by the
Illinois Environmental Protection Agency for the Facility, which is anticipated to be Solid Waste.
The Landfill shall not knowingly receive any "Hazardous Waste" as that term is defined by this
Agreement. If any waste (other than Solid Waste) is received at the Facility, it shall be promptly
removed from the waste stream, segregated and secured, and transferred to an appropriate facility
for treatment and/or disposal within an appropriate timeframe, and, in any event, as soon as
practicable under the circumstances.
7. BAN ON HAZARDOUS WASTE
Fox Moraine, LLC shall not knowingly accept, treat, or dispose of any waste which is
defined as "hazardous" by the Act or the regulations adopted thereunder ("Hazardous Waste") at
the Property. Fox Moraine, LLC shall comply with all regulations of the Illinois Pollution Control
Board ("IPCB") relative to load checking, and shall immediately inform the City orally and in
writing of any Hazardous Waste that has been received at or transported to or from the Property.
In the event that Hazardous Waste is unknowingly received at the landfill, Fox Moraine, LLC
3
agrees to segregate, secure, remove and arrange for proper offsite transport and disposal of such
materials as soon as practicable under the circumstances.
S. DISPOSAL GUARANTEE
For at least 20 years after the Anniversary Date, or for the life of the Landfill (if a longer
period of time), Fox Moraine, LLC shall allow the City access to disposal capacity at the Landfill
for all of the Solid Waste which is generated within the City's boundaries and which is not defined
as Hazardous Waste, provided, however, that Fox Moraine, LLC is permitted to receive said Solid
Waste. Fox Moraine, LLC's obligation to allow the City access Solid Waste to disposal capacity
shall extend only to Solid Waste which is generated within the City. At all times during which the
Landfill is in operation, Fox Moraine, LLC shall provide first priority to the disposal of the City's
Solid Waste.
Commencing with the start of operations of the Landfill, and until the Expiration Date of
this Agreement, Fox Moraine, LLC shall provide the City with an annual estimate of remaining
disposal capacity at the Landfill.
Not less than sixty (60) days prior to January 1 of each calendar year, the City shall
provide Fox Moraine, LLC with a written estimate for the amount of non-hazardous Solid Waste it
expects to be generated within the City and require disposal for that coming calendar year. The
estimate shall include a description of assumptions utilized and show calculations supporting that
estimate. Fox Moraine, LLC shall reserve sufficient capacity to dispose of the quantity of non-
hazardous Solid Waste estimated by the City, to be generated in that coming calendar year,
provided that the estimated amount does not exceed the permitted capacity of the Landfill. The
reservation of landfill capacity for the City's Solid Waste shall not be cumulative, and should the
estimated capacity not be utilized by the City during any calendar year, that capacity may be
utilized for Solid Waste other than City Solid Waste.
9. HOST BENEFIT FEE AND ADDITIONAL COMPENSATION
a. Commencing on the Anniversary Date, Fox Moraine, LLC shall pay the City a per
ton Host Benefit Fee calculated as follows:
TABLE 1
HOST BENEFIT FEE SCHEDULE
Daily Waste Volume Host Benefit Fee Per Section 22.156) Fee Total Fees Per Ton
Ton Per Ton
0—2,000 tpd $2.50 $1.27 $3.77
2,001 -3,000 tpd $3.00 $1.27 $4.27
>3,000 tpd $3.25 $1.27 $4.52
4
The Host Benefit Fee shall be payable to the City on a quarterly basis (the 1 st quarter being
January-March, the 2nd quarter being April-June, the 3rd quarter being July-September, and the
4th quarter being October-December), on or before the 30th day following the end of the quarter
for which payment is due. The Host Benefit Fee may be used by the City for such benefits,
services and facilities as are customarily and legally permitted to be funded from the City's
general fund. The Host Benefit Fee shall be reduced by the amount of any other fees and/or
surcharges assessed by the City, other than general real estate taxes and fees assessed pursuant to
Section 22.156) of the Act.
The Host Benefit Fee shall be applied to each ton of Solid Waste accepted at the Landfill
for final disposal and shall be the actual Daily Waste Volume multiplied by the corresponding fee
on the schedule in Table 1 for the Daily Waste Volume on that day. For purposes of determining
Daily Waste Volume, all trucks and trailers arriving at the Landfill prior to closing shall be
weighed on the scale and included in that day's volume; however, the trailers may be parked and
dumped the following work day. Every trailer must be dumped within 18 hours of its arrival.
The Host Benefit Fee shall not be applied to any Recyclables, Landscape Waste or other
materials accepted at and/or removed from the Solid Waste at the Landfill, and not finally
disposed of at the Landfill nor shall it be applied to any Solid Waste generated by or within the
City's boundaries for which no charge is made by Fox Moraine.
The Host Benefit Fee provided for herein shall be in addition to any fee collected by the
City pursuant to Section 22.150) of the Act (currently $1.27). If the City takes action to rescind
its ordinance to assess the fee provided by Section 22.150) of the Act, Fox Moraine, LLC agrees
to add the amount of the fee assessed under Section 22.150) to the per ton Host Benefit fees listed
in Table 1. The City and Fox Moraine, LLC agree to allocate all or a portion of the Section
22.150) fee to other entities as deemed appropriate solely by the City.
b. The parties agree that upon expiration of the City's present Municipal Solid Waste
Collection and Recycling Contract ("Collection Contract"), dated May 1, 2002, Fox Moraine,
LLC shall have the option of entering into one or more Collection Contracts with the City during
the term of this Agreement upon terms and conditions mutually agreeable to the parties ("Future
Collection Contracts'. Fox Moraine, LLC shall have the right to assign any Future Collection
Contracts with the consent of the City, which consent shall not be reasonably withheld. The rates
to be charged for services to be rendered under such Future Collection Contracts shall be
equivalent to or better than those generally available for similar services provided to other
communities located or principally located within Kendall County. In no event shall the rates
charged for the services in the Future Collection Contracts exceed the rates charged in the present
Collection Contract, adjusted from year to year by the percentage of increase during the previous
year in the Consumer Price Index (CPI-U) for Chicago—Kenosha--Gary - All Items (the Index)
published by the United States Department of Labor Statistics and other applicable fees, taxes and
surcharges. If the Index shall cease to be published, the parties shall designate a comparable index
which will then be used for determining the annual rate of adjustment for collection rates in each
year of Future Collection Contracts.
During the term of this Agreement, including any extensions thereof, and provided that
Solid Waste is being collected by Fox Moraine, LLC or its assignee pursuant to the Future
5
Collection Contracts, and is being delivered to the Landfill for disposal, Fox Moraine, LLC shall
pay to the City an additional host benefit fee ("Supplemental Host Benefit Fee") equal to fifteen
cents ($0.15) for each ton of the City's Solid Waste collected by the Company or its assignee
pursuant to Future Collection Contracts and received at the Landfill for disposal. The
Supplemental Host Benefit Fee shall not escalate. The Supplemental Host Benefit Fee shall be
payable to the City on a quarterly basis, as described in Section 9(a), by the 30th day of the month
following the end of each calendar quarter.
c. As further consideration for this Agreement, Fox Moraine, LLC agrees to cause the
donation of 16 acres of land suitable for a City Public Works and/or Parks Department facility.
The location shall be agreed upon by Fox Moraine, LLC and the City based upon a compact site,
with frontage on Walker Road, generally described as `north of Walker Road and east of the
proposed Prairie Parkway'.
d. Fox Moraine, LLC will offer use of its facility as the host for those residential recycling,
reclamation, and/or reuse activities (as defined by Section 3.380 of the Act) which may from time
to time be planned and conducted by the City. Such activities will be conducted in a frequency
and manner that is reasonably acceptable to the City and Fox Moraine,LLC.
10. HOST BENEFIT FEE ADJUSTMENT
The Host Benefit Fee shall be adjusted on an annual basis from the Anniversary Date by
the percentage change, either an increase or decrease, during the previous calendar year in the
Consumer Price Index (CPI-U) for Chicago—Kenosha—Gary - All Items published by the United
States Department of Labor Statistics. If the Index shall cease to be published, the parties shall
designate a comparable index which will then be used for determining the annual rate of
adjustment for the If the Index shall cease to be published,the parties shall designate a comparable
index which will then be used for determining the annual rate of adjustment for the Host Benefit
Fee. The percentage increase or decrease shall be the increase or decrease in the CPI-U, or five
percent (5%),whichever is less.
The City agrees that it will neither levy nor collect, or attempt to levy or collect, any
additional fees, assessments or taxes other than those. specifically provided for herein, or increase
or attempt to increase the amount of fees, assessments or taxes impacting the City, other than as
specifically provided for herein.
11. RECORDS
a. Fox Moraine, LLC shall maintain daily records of the amounts and types of waste
received at the Landfill, the source of the waste, the entity bringing such Waste, and the source
and hauler of any waste brought to the Landfill but rejected from the Landfill. Such records shall
be maintained at the Landfill for a period of at least two (2) years from the date of their
origination. Such records shall include disposal tickets or logs showing the amount in tons of
Solid Waste initially received at the Facility, as well as that amount of Solid Waste ultimately
disposed of in the Landfill. In addition, records shall be kept and shall be provided to the City
upon written request regarding: (i)the hours of operation of the Facility, and (ii) the amount of the
6
Host Benefit Fee payable on each ton of Solid Waste disposed of a the Landfill in each calendar
quarter, and the total Host Benefit Fee payable during each calendar quarter.
b. The City shall have the right to audit the records of the Facility, related to the
payment of the Host Benefit Fee, upon five (5) business days notice. At the City's discretion, and
under strict confidentiality,the records audit may be performed by an accountant or other qualified
consultant selected by the City upon five (5)business days notice to the Company.
C. Fox Moraine, LLC covenants and agrees to fully cooperate with the City or its
designee during any audit and/or inspection, to respond timely and fully to any questions or
request, and to make pertinent Company employees and/or representatives available for
interviews.
d. Where such audit determines that Fox Moraine, LLC has underpaid the Host
Benefit Fee Fox Moraine, LLC shall pay the reasonable costs of the audit, if it has underpaid Host
Benefit Fees by 1% or more.
e. The City shall have the right to contest the accuracy and/or sufficiency of Host
Benefit Fees paid in any quarter by Fox Moraine, LLC to the City, provided, however, that the
City must contest and dispute the validity of any such payment within two (2) years of receipt of a
payment statement for such amount from the Company.
f. Any additional Host Benefit Fee amounts determined to be due and owing from the
Company to the City shall bear interest at the non-compounded rate of one and one half percent(1
''/a%)per month until paid in full.
g. Upon twenty-four (24) hours advance business day notice, the City, its authorized
agents and representatives shall be permitted to inspect such records maintained by Fox Moraine,
LLC. The City shall also be permitted to inspect any and all records maintained by Fox Moraine,
LLC concerning compliance with any and all applicable federal, state and local laws, statutes,
regulations, rules and/or ordinances relating to the operation of the Facility.
Fox Moraine, LLC shall provide the City, free of charge, copies of all of the following
documents in any manner connected with the Landfill, within a reasonable period and upon
written request of the City:
A. Those submitted by Fox Moraine, LLC or its agents or consultants to any state or
federal environmental regulatory agency.
B. Correspondence with any state or federal environmental regulatory agency.
C. Those filed with or received from any state or federal regulatory agency relevant to
charges, complaints or citations or environmental violations made by any
governmental authority.
D. Those deemed reasonably adequate and sufficient by the City pertaining to the
amount of non-hazardous Solid Waste received.
7
E. Reports on compliance with State post-closure fund requirements.
12. PROPERTY VALUE GUARANTEE
Fox Moraine, LLC agrees to provide a property value protection plan to owners of
residential properties with lot lines located within one thousand (1,000) feet of the lot lines of the
Property, said program to be described as the "Residential Property Value Protection Plan" set
forth in Attachment B and hereby incorporated by reference herein.
13. GROUNDWATER PROTECTION
Fox Moraine, LLC agrees to provide a groundwater protection plan to owners of
residences located within one thousand (1,000) feet of the Property, said program to be described
as the "Groundwater Protection Plan" set forth in Attachment C and incorporated by reference
herein.
14. LITTER CONTROL
The Fox Moraine, LLC will perform the following to help control blown liter:
a. Provide a fence around the entire perimeter of the active landfill disposal area.
b. Inspect trucks exiting the facility for remaining debris.
C. Appropriately phase operations.
d. Restrict disposal vehicles to untarping at the active area during windy conditions.
e. Reduce the size of the active area during windy conditions and/or employ
additional temporary litter fences as necessary.
15. ROAD DEBRIS AND MUD
Fox Moraine, LLC shall take all reasonable efforts to ensure that mud and other debris is
not left on Illinois Route 71, adjacent to the landfill entrance, by traffic to and from the landfill,
and shall remove the same if found on said roadway.
16. RODENT/VECTOR CONTROL
The Company shall retain a pest control service on an on-going basis to address the
potential for rodent/vector infestation, whereby such service shall inspect the Landfill Facility on
an as needed, but no less than monthly basis.
17. INDEMNIFICATION AND ENFORCEMENT
Fox Moraine, LLC agrees that it shall defend, indemnify and hold the City and its officers,
agents and employees harmless from any and all claims, actions, costs, expenses, attorneys' fees,
other fees, damages and judgments ("Liabilities") asserted against or incurred by the City and/or
its officers, agents or employees by reason of any and all operations by Fox Moraine, LLC and/or
8
its officers, agents or employees at the Property, except to the extent such Liabilities arise from
and as a result of the acts or conduct of the City or its officers, agents, representatives or
employees.
City shall give Fox Moraine written notice of any violation of the terms of this Agreement
or any applicable City Ordinances or State Laws within 48 hours of the violation occuring, and
Fox Moraine shall have 72 hours thereafter to: a) remedy the violation, or b) initiate remedy of
such violation if such remedy will take longer than 72 hours to complete. Should Fox Moraine
fail to remedy the violation, the City may, but is not required to, take such actions as are
reasonable to cure the situation and may pay for same. Accordingly, Fox Moraine shall deposit,
and the City shall maintain in a separate dedicated account, the sum of $10,000.00 to assure
faithful compliance the terms of this Agreement and applicable ordinances and laws. The City
shall not draw upon the deposit except after an administrative hearing where Fox Moraine is given
the opportunity to present evidence and rebut any testimony or evidence. The administrative
hearing shall be before the Mayor, the Director of Public Works and the City Manager (or their
equivalent or designee). Any amounts drawn by the City after such hearing shall be promptly
replenished by Fox Moraine. Fox Moraine shall have the right of appeal in accordance with
Section 27 of this Agreement.
This Agreement does not create any legal relationship between Fox Moraine, LLC and the
City (such as a joint venture or partnership) with regard to operation of the Landfill, nor does the
City undertake, by virtue of this Agreement, any responsibility or liability for compliance with any
laws, rules or regulations relating to the operation of said Landfill or the depositing, storage or
control of any Solid Waste within the area of the Landfill.
9
18. INSURANCE
Fox Moraine, LLC shall obtain and maintain the following minimum limits of
liability insurance:
Per Occurrence/Aggregate
Automobile Liability $1,000,000/$1,000,000
Worker's Compensation Statutory
General Liability
Premises and Operations $1,000,00033,000,000
Completed Operations $1,000,0003,000,000
Personal Injury $1,000,00033,000,000
Umbrella Liability $10,000,000
(including Environmental Pollution Liability)
Upon written request from the City, Fox Moraine, LLC shall provide certificates of
insurance to the City of the insurance coverage required to be maintained hereunder. The City
shall be named as an additional named insured on all such certificates of insurance.
19. INSPECTIONS BY CITY OFFICIALS
The City shall have the right to inspect the Landfill at anytime during the Facility's
permitted hours of operation. The City agrees that any such City official shall be accompanied by
at least one (1) Company representative during the site inspection, and that all applicable safety
rules and regulations will be followed and observed by the City.
20. COMPLIANCE WITH APPLICABLE LAWS,RULES AND REGULATIONS
Fox Moraine, LLC warrants that it will at all times conduct its operations at the Landfill in
material compliance with all of the ordinances, laws, rules and regulations of the City,the State of
Illinois and the United States of America relevant thereto. The acceptance of payment of the Host
Benefit Fee under this Agreement shall not be construed as a waiver by the City of material
compliance by Fox Moraine, LLC with all said laws,rules and regulations; nor shall acceptance of
said payment by the City otherwise restrain or prohibit the City from taking such legal action as
may be necessary to protect the health safety and general welfare of the residents of the City in the
event of any material violation of any said laws,rules or regulations by Fox Moraine, LLC.
10
Fox Moraine, LLC shall meet or exceed all State and Federal requirements pertaining to
closure and post-closure care. These requirements include Title 35 111. Adm. Code, Subtitle G,
Section 811, Subpart F and 40 CFR 258.60 and 258.61 as may be amended from time to time.
21. PRE-FILING REVIEW OF SITING APPLICATION
The City and Fox Moraine, LLC agree that prior to the formal submittal of a Facility siting
application by the Company to the City pursuant to Section 39.2 of the Act, there shall be an
opportunity for a pre-filing review to be conducted. The pre-filing review shall consist of the
Company submitting a final draft of the siting application to the City for its review and comment.
The City shall have up to thirty (30) days from the date the final draft is provided to the City to
conduct its review and provide comments to the Company. The Company and the City agree to
communicate and meet as necessary in order to complete the review process within not more than
the 30-day time limit. The Company and the City acknowledge that the Company may, at its sole
discretion,make changes in the siting application as may be recommended by the City.
22. CITY DUTIES OR RESPONSIBILITIES
The terms of this Agreement shall not be construed in any manner to impose upon the City
any duties or responsibilities to provide any services or facilities to Fox Moraine, LLC beyond
those which the City customarily provides to residents and businesses of a similar nature within
the United City of Yorkville. However, provided that the Application for the Landfill is approved,
the City shall use its best efforts to assist Fox Moraine, LLC in obtaining all necessary permits
from the Illinois Environmental Protection Agency for the construction and operation of the
Landfill.
23. COVENANT
Except as provided for in Section 24, this Agreement shall constitute a covenant in the
nature of a covenant running with the land. Fox Moraine, LLC agrees to execute all additional
documents necessary for the recording of this Agreement in the chain of title of the Property.
24. ASSIGNMENT OF RIGHTS
This Agreement shall be binding upon Fox Moraine, LLC and its successors and assigns.
No transfer of an ownership or other interest in the Landfill may be made, unless to an affiliate,
without the prior written approval of the City, which approval shall not be unreasonably withheld.
The City shall consider in deciding whether to grant such approval the ability of the transferee,
both financially and operationally, to comply with the terms of this Agreement, the terms of all
licenses and permits, and all other applicable federal and state statutes and regulations, and local
ordinances. The City shall have 90 days from its notification (via certified mail, return receipt
requested, to the City) of the proposed transfer in which to notify Fox Moraine, LLC that the City
does not approve of the transfer. The City shall state in writing its reasons for not approving the
transfer. If Fox Moraine, LLC has not received such written notice within 90 days of its
notification of the City of the proposed transfer, the transfer will be deemed approved. The City
may require an additional written signature commitment by the transferee to assume and comply
with the duties and obligations of this Agreement.
11
25. DELIVERY OF NOTICES
Any notices to be given hereunder by either party to the other shall be in writing, and shall
be sent by personal delivery, by overnight delivery service or by registered or certified mail,
postage prepaid, return receipt requested. Such notice shall be deemed communicated when
delivered or three (3) business days from the date of mailing, whichever is earlier. Notices shall
be addressed as set forth below, but each parry may change its address upon written notice to the
other in accordance with this Section.
TO THE CITY AT: Mayor's Office
United City of Yorkville
800 Game Farm Road
Yorkville, IL 60560
TO FOX MORAINE, LLC AT: 6110 Route 71
Oswego, IL 60542
26. FORCE MAJEURE
The obligations with respect to performance of this Agreement by either party (except for
the payment of money) shall be suspended and extended in the event, and during the period that
such performance is prevented, hindered, or delayed by a cause or causes beyond the reasonable
control of either party including, without limitation, Acts of God (except weather conditions
normal for the geographic area of the facility); epidemic, landslide, lightning, hurricane,
earthquake, fire, explosion, flood or similar occurrence; an act of the public enemy, war, blockade,
insurrection, riot, general unrest, civil disturbance or other similar occurrence that may have a
material adverse effect on the construction or operation of the Landfill; and any change in Law
which has a material effect on the construction or operation of the Landfill, including the order or
judgment of any court, provided such order or judgment is not the result of negligence, failure or
wrongful action or omission on the part of the party involved. In the event of disruption of
services under any such circumstances, each party will make every reasonable effort and steps to
overcome the cause of cessation of services and to reopen the Landfill as soon as practicable after
the cessation of the cause of suspension of services.
27. ARBITRATION
Any controversy, dispute or claim arising out of or relating to this Agreement or the breach
thereof, not settled through negotiations, shall be submitted to mediation or other alternative
dispute resolutions procedure upon mutual agreement of the parties. Any dispute, controversy or
claim arising out of or relating to this Agreement, or the breach thereof, not settled through
negotiation or other mutually agreed alternative dispute resolution procedure, shall be settled by
arbitration administered by the American Arbitration Association. This agreement to resolve any
disputes by binding arbitration shall extend to claims against any shareholder, brother-sister
company, subsidiary or affiliates, any officers, directors, employees or agents or any of the above
and shall apply as well to claims arising out of state and federal statutes and local ordinances as
well as to claims arising under common law. The parties intend that this provision to arbitrate be
12
valid, enforceable and irrevocable and that it provide the exclusive remedy with respect to all
disputes within its scope. Any arbitration and award hereunder shall be final and binding upon the
parties, a judgment on the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
28. ANNEXATION AGREEMENT
This Agreement is subject to the Property being annexed into the City pursuant to a
mutually agreeable Annexation Agreement.
29. SEVERABILITY AND APPLICABLE LAW
If any provision or subsection hereof or the application thereof to any person or
circumstances is held invalid, the other provisions of this Agreement and/or their applicability to
other persons or circumstances shall not be affected thereby. It is declared to be the intent of this
Agreement that the same would have been adopted had such invalid provision, if any, not been
included herein. This Agreement shall be governed by the laws of the State of Illinois.
30. AUTHORITY TO ENTER INTO AGREEMENT
Fox Moraine, LLC hereby represents and warrants that it is a valid and existing
corporation authorized to do business in Illinois and that the individuals executing this Agreement
have been duly authorized by the corporation to act on its behalf and enter into this Agreement.
Fox Moraine, LLC agrees to provide the City with sufficient proof of said authorization which
proof shall include but not be limited to an appropriate corporate resolution authorizing the
execution of this Agreement. The City shall approve this Agreement by City ordinance, a certified
copy of which shall be provided to Fox Moraine, LLC.
IN WITNESS WHEREOF, the parties hereto have caused the signatures of their legally
authorized representatives to be affixed hereto on the day and year indicated on the first page of
this Agreement.
UNITED CITY OF YORKVILLE FOX RAINE,LLC
BY: BY:
ITS: ITS:
ATTEST: ATTEST:
BY: BY:
ITS: ITS LIPiCZ2 'y`1/
13
ATTACHMENT A
PROPERTY DESCRIPTION
14
ATTACHMENT B
RESIDENTIAL PROPERTY VALUE PROTECTION PLAN
15
ATTACHMENT B
RESIDENTIAL PROPERTY VALUE PROTECTION PLAN
Fox Moraine, LLC shall protect, in the manner provided herein, the value of Eligible
Residences (as defined below), in the event of sale during the active life of the Landfill. Each
owner of a residence which is located within the area identified as being within one thousand
(1,000) feet of the property lines of the Landfill Property as of the date that the siting application is
filed (hereinafter "Eligible Residence"), is eligible to qualify for the benefits of this Residential
Property Value Protection Plan (hereinafter "Plan"), subject to the terms and conditions stated in
this Plan, and subject to the owner's compliance with the requirements of this Plan. The benefits
of the Residential Property Value Protection Plan shall inure to an owner's lawful heirs or
devisees who inherit the subject property during the time this Agreement is in effect. Unless
otherwise defined herein, all capitalized terms used herein shall have the meanings ascribed to
them in the Host City Agreement between the City and Fox Moraine, LLC.
1. General Procedure for Qualification.
A. Within ten (10) days following the Anniversary Date, Fox Moraine, LLC shall
notify each Eligible Residence, by certified mail, about the Residential Property
Value Protection Plan and how to enroll in the Plan. Each Eligible Residence must
formally enroll in the Plan, following the procedures outlined in the notification,
within 365 days of receiving the notification. If such enrollment is not made within
the 365 day timeframe, the Eligible Residence, and all subsequent owners, will no
longer be eligible to qualify for the Plan.
B. To qualify for fair market value protection under this Plan, the owner must place
the Eligible Residence on the market for sale. The owner shall provide Fox
Moraine, LLC with the name of the broker (if any) with which such residence is
listed for sale, the proposed terms of sale, and the date on which the residence was
placed on the market.
C. Within sixty (60) days of such notice, Fox Moraine, LLC shall cause the Eligible
Residence to be appraised at its fair market value both(1) as of the date the Eligible
Residence was placed on the market, and, (2) as of the date the Eligible Residence
was placed on the market, but making the sole additional assumption that the
Landfill did not exist. The former value shall represent the "Diminished Value" of
the Eligible Residence. If the Diminished Value falls within 5 percent of the latter
value, then no impact shall be deemed to have occurred, and no payment shall be
due to the owner under this Plan. The appraisal shall take into account all factors
having a material effect on the value of the Eligible Residence, including, but not
limited to, liens, easements and other encumbrances on the Eligible Residence.
D. Fox Moraine, LLC shall provide a copy of such appraisal to the affected owner
within ten (10) days of the completion of said appraisal. In the event that the
affected owner disagrees with the values set forth in Fox Moraine, LLC's appraisal
or otherwise wishes to have his or her own appraisal made, the owner may have an
appraiser of his or her own choosing value the subject Eligible Residence in the
16
same manner as it was valued by the appraiser for Fox Moraine, LLC. The owner
shall have such appraisal performed anytime between a date thirty (30) days prior
to offering said Eligible Residence for sale as provided in Subparagraph(A) above,
to a date forty-five (45) days following the receipt of Fox Moraine, LLC's
appraisal.
E. All appraisers shall be duly licensed to appraise residences in Illinois, and shall
work independently. The cost for appraisals made under Subsection (C) above
shall be paid by Fox Moraine, LLC. The cost for appraisals made under Subsection
(D) above shall be paid by the owner.
2. Determination of Fair Market Value. For purposes of this Section 2 and Section 3 below,
the term "Fair Market Value" shall mean the value of the Eligible Residence as if the
Landfill did not exist. Fair Market Value shall be established by:
A. A single appraisal under Subsection 1 (C) above if such appraisal is acceptable to
the owner; or
B. Agreement by both appraisers retained under Subsection 1 (C) and (D) above.
If the appraisers retained under Subsections 1 (C) and (D) above do not agree, but the
lower of the appraised Fair Market Values is ninety (90) percent or more of the higher of
such values, the Fair Market Value shall be deemed to be the average of the Fair Market
Values determined by said appraisals.
If the lower of the appraised Fair Market Values is less than ninety (90) percent of the
higher, a third appraiser shall be selected by Fox Moraine, LLC and the owner by
alternately striking names from a list of appraisers developed jointly by Fox Moraine, LLC
and the owner. The third appraiser shall review the existing appraisal reports and
determine the Fair Market Value of the residence. This Fair Market Value shall not exceed
the higher nor be less than the lower of the Fair Market Values set forth in the two existing
appraisal reports. The Fair Market Value established by the third appraisal shall be
binding on Fox Moraine, LLC and owner. The cost of the third appraisal shall be shared
equally be the Fox Moraine, LLC and the owner.
The Diminished Value of the Eligible Residence, which is defined in Subsection 1 (C)
above, shall be established in the same manner as described in this Section 2.
3. Obligation to Pay Compensati on. In order to receive compensation under the Plan, an
Eligible Residence must have been continuously offered for sale for a period of one (1)
year. At the end of the one year period, compensation may be paid based on the following:
A. The owner sells the Eligible Residence for a cash price equal to or greater than the
Fair Market Value, in which case no payment shall be due from or made by Fox
Moraine, LLC; or
B. The owner receives a Bona Fide Offer ("Offer") to purchase the Eligible Residence
17
for cash for a price that is less than the Fair Market Value. Bona Fide Offer shall
be defined as an arms length transaction documented by a standard real estate sales
agreement and supported by a reasonable earnest money deposit. The owner shall
then notify Fox Moraine, LLC of the Offer and the amount thereof and Fox
Moraine, LLC shall have ten (10) days to elect in writing to purchase the Eligible
Residence for a cash price equal to the amount of such Offer,plus $500.00. If Fox
Moraine, LLC exercises such election, the owner shall sell and Fox Moraine, LLC
shall purchase the Eligible Residence within thirty (30) days after Fox Moraine,
LLC exercises its option (or on such other date mutually agreed to by the parties).
At the closing, Fox Moraine, LLC shall pay the owner an additional amount equal
to the excess of the Fair Market Value over the price set forth in the Offer,
provided, however, that such amount payable by Fox Moraine, LLC to the owner
shall not be in excess of the Fair Market Value less the Diminished Value. If Fox
Moraine, LLC does not exercise its election to purchase the Eligible Residence, the
owner may sell the Eligible Residence to the purchaser identified in the Offer, and
Fox Moraine, LLC shall pay the owner within thirty (30) days of receipt of notice
of the closing an amount equal to the excess of the Fair Market Value over the price
set forth in the Offer; provided, however, that such amount payable by Fox
Moraine, LLC to the owner shall not be in excess of the Fair Market Value less the
Diminished Value.
C. Any compensation paid by Fox Moraine, LLC to the owner under this Section 3
shall be reduced by an amount equal to six percent of any portion of such
compensation with respect to which the owner is not required to pay commission to
any real estate broker.
D. The obligation to make the payments required by this Plan shall terminate after the
date the Landfill receives the final receipt of Solid Waste. However, the owner of
any Eligible Residence who has notified Fox Moraine, LLC that the Eligible
Residence is listed with a licensed residential real estate broker for sale prior to the
expiration of the period of this Agreement shall entitled to receive payment under
the Plan even if the Eligible Residence is actually sold after final closure of the
Landfill.
E. In the event any offer to purchase an Eligible Residence provides for seller
financing, adjustments shall be made to determine the equivalent present day cash
value.
4. Scope of Agreement.
A. Only owners of record as of the date Fox Moraine, LLC files a siting permit
application with the County to develop the Landfill, or any party inheriting an
interest in an Eligible Residence by reason of the death of such an owner, shall be
eligible for residence value guarantees under this Plan.
B. Payment of residence value guarantees shall be made only once for any individual
tax parcel. In the event that a portion of a parcel is offered by the owner for sale,
18
Fox Moraine, LLC, at its discretion and to avoid subsequent appraisal costs, may
decide to have appraisals made for that portion and simultaneously for the rest of
the parcel. If Fox Moraine, LLC chooses to proceed in this manner, it shall make
any payment as if both the portion severed and the rest of the parcel had been
conveyed at that time.
C. The compensation payable under this Plan shall apply only to conveyance of a fee
simple interest made by deed or land contract or similar instruments, and shall not
apply to conveyances of leasehold interests.
S. Miscellaneous Provisions.
A. If Fox Moraine,LLC purchases an Eligible Residence under this Plan,the purchase
shall be in accordance with customary terms and conditions regarding sales of
similar residences, including, but not limited to the sellers furnishing of customary
title insurance and a survey, pro-ration of taxes and utilities and the payment of
transfer taxes in accordance with applicable laws. Fox Moraine, LLC shall be
entitled to full occupancy rights with respect to the Eligible Residence after the date
of closing.
19
ATTACHMENT C
GROUNDWATER PROTECTION PLAN
20
ATTACffiVIENT C
GROUNDWATER PROTECTION PLAN
If, at any time after the date that Fox Moraine, LLC first accepts waste at the Landfill
(Anniversary Date), and until Fox Moraine, LLC concludes its post-closure care as required by the
IEPA, any water supply wells currently in use as a residential drinking water supply located within
1,000 feet of the property boundaries of the Landfill ("Covered Wells") are alleged to be
contaminated by the Landfill, Fox Moraine, LLC, agrees to provide an alternate potable water
supply to that owner, which may include a new well to replace the contaminated well, within
twenty-four (24) hours of notification to Fox Moraine, LLC from the owner of said well. The
owner and Fox Moraine shall cooperate to submit, within 24 hours of notification, a sample of
water from said well to an accredited laboratory for analysis and the rendering of a professional
opinion that said well has been contaminated by the Landfill. Fox Moraine LLC shall continue to
provide potable water to the owner during the time required for the analysis, the rendering of the
opinion, remediation, or hearings on causation. Should the aforesaid laboratory analysis show that
water from any Covered Well is in violation of the United States Environmental Protection
Agency or IEPA health advisory, then Fox Moraine, LLC shall have 30 days from the date Fox
Moraine, LLC is notified of the results to take action to remedy the causes of said violation or to
prove to the satisfaction of the City, in accordance with the hearing procedures set forth in the
Host Agreement, that the Landfill is not the cause of said contamination. A failure to remedy the
causes of the violation or prove that the contamination is not caused by the Landfill shall result in
a permanent and ongoing obligation upon Fox Moraine to provide potable water to the affected
owner. Fox Moraine, LLC shall not be responsible to provide an alternative potable water supply
for any wells that Fox Moraine, LLC can prove were not contaminated by the Landfill
21
D' 1100'
GRAPHIC�
iR
0"112
t
r : ♦mil' Ji/I )t�l �t tt / 5+=.�. r
1 1 1/ t t /�.�;iJ1I 1. ♦ .Jj -. �. �. _ .a 1.
I
/idyl r1 '/'' J'I �\�% �� tii "i ��\♦ �'_5' t _ t �I \1r
`� `��.��\♦1�rL�i;i`I.l`♦ (�i-��J-� .r///�� .1 �:.t t ` �\ wt..�.'♦ r�.l 't r'
(r
', ' -
�f�.. ` � ♦�; `) t III _�It / r(r ( t4 r"'1� � 4 ✓ 1
V '
,)�I�flrr ` '3`�`~'�\�'L �/♦ 1�(>}r:l�l'rll�'`IL. -���\L 2 r � �}�I �� �\\.:
ll \�\Jt G.� ` 1 � � �l Jr i7�/n%rl('', ✓'\'ice `l�` \E ( � �
� ♦l�}J}t1�V, 1 l� .\� - ..1 U r r' 1.-_ ",�^'^V/ri � jt _
rj n`"t V ,1t ��� II` �7i�p �r) 1��`l� �+'n�1\✓ .� ! ri/` j 1 � � f
'���..���
1(( /' J�(li2\ rY� )~�i Ii( \� \Kill, " 1i #�IJ. _ U ': \_
( > � ix kv
°o
LEGEND NOTES
—••—••----••— APPROXIMATE FACILITY BOUNDARY �, LEGAL DESCRIPTION FOR FACILITY BOUNDARY
9
FOX MORAINE LANDFILL
YORKVILLE, ILLINOIS
o & Shaw FACILITY LEGAL DESCRIPTION S Environmental, Inc.
r APPROVED BY: DAM I PROJ. NO.: 115942 DATE: OCTOBER 20D6
MEMORANDUM
To: John Wyeth
From: Derke J. Price
Brooke Beal
Subject: Education Component#1
Date: October 16,2006
John:
Attached is the first of many-to-come memoranda to educate the City and the public on the process of where
we have been and where we are going. In particular,this memo concerns the Host Agreement,what we have
committed to,and what we need to be looking for once the application process begins. It does make some
comparisons to the County's agreement for the sake of understanding.
A graph and table has also been included and should be part of this memo to the Council.
Call with any questions.
Derke
r
THE YORKVILLE HOST CITY AGREEMENT
Focus on Local Impacts
Although we recognize you are comfortable with the terms you agreed to, we thought
that it would be prudent—as part of the educational component of this lengthy
process—to highlight for you the approach we took in the Host Agreement, the
consequences of that approach and its importance for you going forward. We also
thought it would be useful to contrast that approach (and its results) with that of the
County in its Host Agreement with WMI.
Our goal in the Host Agreement was to set some rules by which we could minimize
the negative impacts of the siting process and, if approved, to set the framework and
rules for a 20-50 year relationship between the City and the landfill operator. We
sought to minimize the various negative impacts and maximize those positive
impacts that would become available to the City. Based on our review of your
policies and discussions with Staff, we concluded that the Host Agreement should
maximize local control, be readily accessible for your constituents, be predictable and
stable in achieving an actual result, and most of all be efficient (by which we mean, it
would give the City the ability to quickly address any issue, even where the Applicant
did not).
Further, we have observed first hand the power of public input into the land use
process. Accordingly, in both the siting ordinance and in the Host Agreement we
sought to maximize the amount of public input and to maximize the actual impact
that the public's input would have on the landfill operation or design.
A Host Agreement can be a two-edged sword in this regard. A Host Agreement
commits the other party to certain standards but it also limits what the City can do by
way of imposing further conditions of approval—at least on those items that are
already included in the Host Agreement. Thus, the more detailed a Host Agreement
is up front, the less flexibility the City would have to impose conditions after listening
to the public and the experts. Our goal, therefore, was to commit the Applicant to the
core safety, environmental and procedural terms and to leave room for you—the
elected officials—to make policy decisions and impose conditions on any approval
after you have heard from the public and the experts. We also made the Agreement
nimble enough to take advantage of all future advances in science, engineering,
technology and best practices.
We believe that you must make the sorts of policy decisions that have to be made
about any such relationship and not have them made for you by your lawyers. We
further believe you should only do so after you receive all of the information.
Because of the nature of the process, you cannot have all of the information
necessary to make all of the decisions at the time of the Host Agreement. We
understand that you look to us for expertise to protect the City. We have done that.
But we do not believe that we—simply because we are lawyers and engineers—know
precisely how to strike the balance on all the matters of policy that flow from this
1
important process. We will make recommendations, but only after we all see all of
the information and evidence from the applicant and the public.
While we sought to maximize the speed with which the City could intervene with
actual solutions on site (as opposed to relying upon post-hoc/ post judgment
penalties to control the Operator's behavior), we also recognized that (if sited) this
would be a 50 year relationship. Consequently our approach was to create a
relationship in which the City would be vigilant and cautious, but not necessarily
adversarial in its dealings. Likewise, we wanted (and we think we obtained) the
Operator to commit to an open and professional relationship.
Below is a more detailed comparison of the two approaches and their results in the
two documents:
1. POLICE POWER
Police power is the power or authority to regulate behavior and, where necessary, to
assert physical control over persons and things in order to promote the safety, health
and welfare of persons and property. The City of Yorkville's Host Agreement
Administrative Hearing/Arbitration Approach does NOT relinquish police power;
rather, it enhances the City's police power to take physical control quicker and
thereby ensure a quicker response time.
A. Applicable Regulations:
The Standards and Regulations to which the operation of any landfill must conform
are set by the State of Illinois through the Environmental Protection Act, the Illinois
Pollution Control Board Regulations; the permitting requirements of the Illinois
Environmental Protection Agency. If you violate these regulations, you violate the
City's Host Agreement and you violate the County's Host Agreement.
References:
City Host Agreement: Section 6 (permitted waste); Section 7 (Ban on
Hazardous Waste) and Section 20: "Fox Moraine, LLC warrants that it will at
all times conduct its operations at the Landfill in material compliance with all
of the ordinances, laws, rules and regulations of the City, the State of Illinois
and the United States of America relevant thereto."
County Host Agreement: Article 4 (authorized waste/ ban on waste/ design &
operating standards); Article 5 (5.1 same general language) (5.2 listing of
current State performance standards ("the parties acknowledge that the
above-referenced Performance Standards are required by the Act, the IPCB
regulations and relevant permit requirements that IEPA will issue with respect
to the Landfill.")
2
B. Monitoring:
The Host should have the right to monitor and audit the operations and books and
records of the operators. Neither the City nor the County has the in-house expertise
to do this and both must retain and use outside consultants to perform this task.
Both Host Agreements safeguard this right.
References:
City Host Agreement: Section 11 (Books and Records anytime, audit with 5
days notice); and Section 19 ("The City shall have the right to inspect the
Landfill at anytime during the Facility's permitted hours of operation.")
County Host Agreement: 4.7 (inspections during hours of operation upon
advance telephonic notice/ immediate access for emergencies/
unannounced inspections but advance notice of audits/ contact person at
operator to be designated)
Note on costs: The County Host Agreement (6.4) does provide for reimbursement by
the Operator of up to $100,000 per year for reasonable inspection and monitoring of
the operations; however, the Operator has some say over the meaning of
"reasonable". We have recommended and negotiated a completely independent
monitoring scheme funded by the Host fees and over which the Operator has no say
whatsoever. This "independent approach" is the method used by Lake County, for
example, to monitor and inspect the landfills present there.
C. Enforcement:
The Host must be able to compel compliance. There are many ways that local
government attempts to guide behavior and compel compliance with its various laws:
one is the prospect of large fines or monetary damages for violation (the approach of
the County), another is the power to assume physical control over persons and things
to change behavior (the approach taken by the City). This area represents perhaps
the biggest difference in the divergent approaches taken by the two units of
government. The County has taken an adversarial approach to the Operator and
back-loaded the consequences for proven failures. The City has taken a more
proactive business relationship approach to the Operator and front loaded the right
of the City to take control of a problem and make such physical changes as are
necessary to correct a problem.
More specifically, the State's regulatory framework will oversee the major issues and
any substantial threat to health, safety or welfare will involve the State's apparatus
(including the Attorney General, the IEPA and PCB). The State acts independently of
the City or County. The Operator under both agreements is required to notify the
State of a whole host of problems or events. The County's enforcement scheme
requires notification to the State at the same time it notifies the Operator of any
breach or issue. The City's enforcement scheme permits notification to the State at
3
any time (there is nothing in the City's Agreement that prohibits such notification).
But this is where the two agreements diverge in their approach.
City: (Section 17) The City is to notify the Operator within 48 hours of being
made aware of any violation and the Operator has 72 hours thereafter to a)
remedy the violation, or b) initiate a remedy if such remedy will take longer
than 72 hours to complete. Should the Operator fail to remedy or initiate a
remedy within the time prescribed, then the City is authorized to take such
actions and assume control over the operation or site as necessary to cure
the violation.(Section 17). Thus, in a situation in which the Host and the
Operator are at odds over a perceived violation of a standard, the City has the
right to take such physical action as it deems appropriate on day 6.
County: (5.3) The County is to notify the Director of the IEPA, the IEPA regional
field office and the Operator. The County then must wait for the IEPA to Act. If
the IEPA does not act within 30 days (or does not act in a way the County
wishes)then the County must wait until 60 days after the date on which the
Operator received the notice to file an action for enforcement. Thus, in a
situation in which the Host and the Operator are at odds over a perceived
violation of a standard, the County cannot even seek injunctive relief until day
60.
A word on "injunctive relief'. Injunctive relief is the Court ordering a certain person to
take a certain action. To obtain injunctive relief, the party seeking it must know what
it is they want the court to order. In the case of violations of the State standards, it
would take engineers and environmental experts to determine what course of action
is needed. The City has the right to act on those recommendations beginning on day
6 without needing the blessing of the Court. The County, by contrast, has to wait until
at least day 60 to ask the Court—in an adversarial situation where the Operator is
contesting the claim—to grant permission to take the action it desires.
The City also has on deposit, a revolving fund of $10,000.00 of the Operator's money
upon which the City can draw to pay the consulting costs (engineers, experts,
lawyers) and contractors involved in analyzing, prosecuting and fixing the problem.
The $10,000 is only the deposit; the Operator is responsible for all costs incurred by
the City to corrector handle a violation. Before drawing on the funds, an
administrative hearing before a Board composed of the Mayor, the Manager, and the
Director of Public Works must be held and they must find that the City is entitled to
draw upon the fund. If the Operator does not like their decision, they can appeal to
an arbitration proceeding.
Why arbitration? Because of the speed and general background expertise it offers
any dispute. While the Kendall County Circuit Court certainly has the acumen and
ability to handle any disputes, those excellent jurists are not engineers or
environmental scientists and they also have full dockets (indeed, the need for
additional judges in this Circuit is well documented). To bring a dispute before them
requires educating the judges on the general scientific background of the operation
4
and regulatory framework as well as the specifics of the dispute. It also means that
the dispute is in a queue with the other citizens and entities of Kendall County—all of
whom believe that their cases are important and they they too warrant the attention
of the Judges. This combination of education and docket inevitably means a longer
time to a decision on the dispute.
We compared that to the timeline available through the American Arbitration
Association where a panel of environmental law, engineering and science experts are
available to decide the dispute and the dispute is one of perhaps a dozen matters
the arbitrator has as opposed to one of many hundreds. We are attempting to put
science and engineering first (and legal formalities second) because the landfill will
still be there and still operating after this one dispute is resolved—and we are trying
to make a difference in the operation going forward as quickly as possible, not just
punish for past wrongs. Notably, under the County's agreement, if the Operator
chooses to pay the stipulated damages, then no further action by the County is
permitted.
2. WELL PROTECTION
This is another area where the difference in approach between the City and the
County is manifest. Both Agreements contain a Domestic Well Protection Agreement,
but they differ dramatically on how they treat the well owner who thinks he has a
problem.
City: Complaint received at City Hall generates obligation on Operator to
provide potable water within 24 hours and then send sample of well water out
for testing. Alternate potable water supply obligation on the Operator
continues until test results show that landfill is not the cause of the problem.
City program continues through post-closure (30 years after closure).
County: Complainant must first obtain laboratory analysis that shows landfill
is responsible before Operator has obligation to provide an alternate potable
water supply. County program only when landfill "active."
3. HOST BENEFIT FEE
The pay scales differ but, for comparison purposes, if we assume 1 million tons per
year, the City receives $4.02 per ton and the County receives $3.89 per ton. Brooke
has prepared a projection based upon an anticipated CPI of 3% and anticipated
volumes and it is depicted in the attached Graph and Table.
Both Agreements provide for an upfront payment: City's Agreement calls for the
donation of 16 acres of land suitable for a public works/parks department facility in
order to solve a pressing and immediate need of the entire City. County's Agreement
calls for cash: $500,000 plus 5 more payments of $100,000 for each of the first 5
yea rs.
5
The County Agreement sets a minimum payment equal to the amount generated by a
million tons per year. The City agreement sets no minimum and adopts the
proportional benefit philosophy(create no financial incentives to shortcuts on any
operational expenditures). The County Agreement also substantially modifies the
force majeure clause to create exceptions that relieve the Operator from the
minimum payment obligation (e.g., new technology or new laws).
The County Agreement also sets forth what purports to be a waste stream
commitment. As the Application defining service area does not exist—and the
proposed landfill is not identified in the hauling contracts WMI has now—this provision
has little substantive effect at this stage. The City will address any issues on waste
stream and service area after reviewing the Application and the evidence submitted
thereon.
4. SHARING HOST FEE
City Agreement creates possibility of sharing 22.15 fee with other units of
government. The County Agreement(diverging from requirements of County Solid
Waste Plan) does not provide for sharing of Host Fees.
5. DISPOSAL GUARANTEE
The City Agreement contains a guarantee for 20 years of access for MSW generated
within the City limits. The County Agreement has a contingency that may lead to
guaranteed capacity for Kendall County municipalities.
6. ASSIGNMENT OF RIGHTS
Both Host Agreements prevent the assignment of any interests in the landfill without
City's consent. County restates specific requirements for transfer of rights to gas
(although already covered). County has a filing fee and option to hold a hearing.
Hearing option and Operator covering the costs of the review and hearing is a good
idea and we will recommend that as a condition of siting.
7. PROPERTY VALUE PROTECTION PROGRAM
Both Agreements contain a property value protection program
8. PREFILING REVIEW
The City Agreement permits a "staff review" by experts in advance. The issue is
safety and the City Agreement believes it is best to get as many expert eyes reviewing
the ideas before any part of the process commences. The siting authorities are not
included in these discussions and their impartiality is preserved. The County
6
Agreement is silent, but the County apparently does do some prefiling review (e.g.,
traffic)
9. INSURANCE
Both Agreements contain indemnification and insurance requirements. Often these
requirements are the subject of the conditions of the siting.
10. END USE
Required in application. City Agreement: Contemplates as a condition that will
further define the end use after public input during process.
11. MATERIAL RECOVERY/RECYCLE
City Agreement provides for material recovery activities and public convenience
center for recycling drop off. County Agreement (deviating from its own SWMP) is
silent.
12. MISCELLANEOUS.
The County Agreement sets for terms that the City anticipates being the subject of
conditions of any approval after the Application is filed, facts about the operation are
known, and the public has had a chance to speak on the issues. Examples include:
Traffic Issues
Spill Reimbursement
Truck Tarping Plan
Communications (Hotline/Internet Site/Tours/Community outreach group)
7
i
Q
LO
cc
}
O
L � N
CL I } co
�O L m
LL
V � �
� C
J
0 C @
N
O Y
a ■ �
� � U
N J
C J
N C
f0
G } O
O
V O
LL
N ■
O
2
}
I
I
C
O
w
a
e\
O O O O O O O O O O O
O O O O O O O O O O V3
O O O O O O O O O O
O L O LQ Lq O O O N
U) d' Cl) M N N _
ffl fR fR fA fA ER eq ER b3
°oow3c) GGo rn
fl o r a to 0) {O r
n o o ri ao v r" eo
O
Mk
Y k # k
# k k # #
d
p O O N T Co N N
O O N V r <
C
O O r N 0) M OO T N
U ti v on" vvro m o
OaoON V r m
r A N O N M r N C �p
o
CL
O d U o
J 0 Y w m o d
O Co
a = : n o
C 10 m -
o O
d 7 ory
Y � 000 �O m rr v oo ,=
C J O N tD 47 0 m r (h p
Q O W o M M w 'p co O
d d 10 O co eD r M I C y
p� O r r N M r N a\
o m o ° E
x x a`) 0 y
o a ° Cl
U. lL LL w E
0 a) —
o w c
A o 00
o
N O
O � O
tD O N O
0 y
CD to
0 ID
d C r N
d
o d R m c
a c ° ' > v
7 0 LL E Q k * k
k