4.5. SR 07-21-2003River
MEMORANDUM
Item ~ 4.5.
TO:
FROM:
DATE:
SUBJECT:
Mayor and City Council
Stephen Rohlf, Building and Environmental Administrator
July 21, 2003
Elk River Landfill Host Fee
The city collects a surcharge of $1.00 for each cubic yard of mix solid waste brought to the
Landfill. Current disposal rates at the Landfill are approximately 1,200,000 cubic yards
annually. Twenty-five percent of the surcharge is placed in a the special fund and may only
be used for landfill abatement and for the mitigation local risk from the operation. The
remaining 75% may be used at the discretion of the City Council.
The proposal is to replace the surcharge with a host fee at the same $1.00 per cubic yard
rate. The entire sum collected as a host fee may be used at the discretion of the City
Council. Attached to this memo is a draft host fee agreement between the City of Elk River
and the Elk River Landfill. Staff recommends the city enter into this agreement contingent
on the Landfill not requesting any sustentafive changes. If any significant changes are
proposed, the agreement will be brought back to the Council for their consideration.
S:\B&Z\STEVER\CC1.DOC
HOST COMMUNITY AGREEMENT
BETWEEN
ELK RIVER LANDFILL, INC.
AND
THE CITY OF ELK RIVER, MINNESOTA
HOST COMMUNITY AGREEMENT
BETWEEN ELK RIVER LANDFILL, INC. AND
THE CITY OF ELK RIVER, MINNESOTA
TABLE OF CONTENTS
Page
SECTION 1
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
SECTION 2.
2.01
2.02
SECTION 3.
3.01
3.02
3.03
SECTION 4.
4.01
4.02
SECTION 5.
5.01
5.02
SECTION 6.
6.01
6.02
RECITALS .......................................................................................................... 1
Parties .................................................................................................................. 1
The Landfill ......................................................................................................... 1
Landfill Regulation .............................................................................................. 1
City Authority ...................................................................................................... 1
City Regulation of Solid Waste Facilities ........................................................... 1
Conditional Use Permits and Licenses Issued to the Landfill ............................. 2
Landfill Expansions. and New Uses ..................................................................... 2
Future Expansions and Changes at the Landfill .................................................. 2
City Involvement with Remediation .................................................................... 2
Parties' Cooperative Efforts ................................................................................ 3
Ongoing City Involvement with Land Use and Zoning ...................................... 3
Ongoing City Involvement with County Issues and Solid Waste
Permits for the Landfill ....................................................................................... 3
Ongoing City Involvement in Response and Remediation Actions ....................4
Firefighting at Landfill ........................................................................................ 4
Ongoing Emergency Planning ............................................................................. 4
Purpose ......................................................... ~ ...................................................... 4
AUTHORITY ...................................................................................................... 5
ERL ...................................................................................................................... 5
City ..................................................................................................................... 5
ADMINISTRATION .......................................................................................... 5
Primary Responsibility ........................................................................................ 5
Points of Contact ................................................................................................. 5
Notices ................................................................................................................. 5
OPERATIONS AND CONSULTATIONS ........................................................ 5
Operational Compliance ...................................................................................... 5
Consultation ......................................................................................................... 6
ASSURANCES ................................................................................................... 6
Indemnification and Release ............................................................................... 6
Financial Assurances ........................................................................................... 7
HOST COMMUNITY FEE ............................................................................. 7
Host Community Fee .......................................................................................... 7
Use of Fee ............................................................................................................ 8
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6.03
6.04
6.05
SECTION 7
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
SECTION 8
Fee is in Lieu of Abatement Fees ........................................................................ 8
Reversion to Abatement Fees .............................................................................. 9
ERL to Forego Legal Challenges ................................................................... 9
GENERAL PROVISIONS .................................................................................. 9
Agreement Not to Alter or Amend Other ERL Legal Responsibilities ............... 9
Governing Law .................................................................................................... 9
Entire Agreement; Amendments ......................................................................... 9
Successors and Assigns ....................................................................................... 9
Authorization ..................................................................................................... 10
ERL's Obligations ............................................................................................. 10
Term/Termination .............................................................................................. 10
Recording .......................................................................................................... 10
SIGNATURES ................................................................................................ 10
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HOST COMMUNITY AGREEMENT
BETWEEN ELK RIVER LANDFILL, INC. AND
THE CITY OF ELK RIVER, MINNESOTA
SECTION 1.
1.01.
this
RECITALS.
Parties. This HOST COMMUNITY AGREEMENT (Agreement), dated as of
__ day of ., 2003, is entered into by and between the city of Elk River
(City), a Minnesota municipal corporation, and Elk River Landfill, Inc. (ERL), a Minnesota
corporation, which is a wholly-owned subsidiary of Waste Management, Inc., a
corporation.
1.02. The Landfill. ERL owns and operates a sanitary landfill known as the Elk
River Landfill (Landfill), located within the city of Elk River, Sherburne County, Minnesota.
1.03. Landfill Regulation. ERL operates the Landfill pursuant to a solid Waste
permit issued by the Minnesota Pollution Control Agency (MPCA), various licenses issued by
Sherburne County, a Conditional Use Permit and License issued by the City, and other
applicable laws and regulations.
1.04. City Authority. The City possesses certain regulatory authority over the
Landfill, including, but not limited to, zoning and licensing authority.
1.05. City Regulation of Solid Waste Facilities. In 1987, the City, in response to a
number of solid waste facilities proposed to be located within the City limits, modified its City
code to enable it to exercise greater control over solid waste facilities within the City. The code
amendments require conditional use permits and licenses for the establishment and operation of
certain solid waste facilities within the City.
1.06. Conditional Use Permits and Licenses Issued to the Landfill. Following
adoption of the City's code amendments in 1987, a Conditional Use Permit (CUP) and License
(License) for operation of the Landfill were issued in 1988. The CUP and License have
subsequently been renewed every two to four years and are currently scheduled to be renewed
again in 2004 and every four years thereafter. The CUP and License have also been amended,
from time to time, to accommodate expansions and new uses on the Landfill property. It is
anticipated that there will be future amendments of the CUP and License as the Landfill
continues to expand and establishes new uses related to solid waste management and disposal.
1.07. Landfill Expansions and New Uses. Since the adoption of the City's Code
amendments in 1987, the boundary of the Landfill has expanded from approximately 60 acres to
over 140 acres. Amendments to the CUP and License for the Landfill have been approved to
expand the capacity of the Landfill and to allow new uses, including increasing the approved
height of the Landfill, adding new disposal cells for mixed municipal solid waste and demolition
debris, adding a yard waste and composting area and adding a recycling center.:
1.08. Future Expansions and Changes at the Landf'fll. Future expansions and
changes at the Landfill may include, among others, expansion of the approved area for disposal
of mixed municipal solid waste and establishment of an additional area for disposal of
demolition debris. Continued expansion and transformation of the Landfill will have varying
impacts on the City's human, physical, natural, and financial resource environments which the
City must anticipate and which the City desires to address in cooperation with ERL.
1.09. City Involvement with Remediation. The City has also been involved in and
has participated significantly in the cost of addressing a number of response and remediation
issues pertaining to the Landfill. These issues have included:
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· investigation and remedial action to address leachate and other contaminants,
including volatile organic compounds, found in ground water under and
adjacent to the Landfill;
· installation of an active venting system to control the release of pollutants
from the Landfill;
· development of aerobic treatments to control the release of pollutants from the
Landfill;
· investigation of the need to install a pump and treatment system to intercept
and stop the offsite migration of polluted groundwater.
1.10. Parties' Cooperative Efforts. The Parties have worked together to expedite
the processing of City CUP and License renewals and amendments for the Landfill as well as
amendments to the Landfill's county licenses and state solid waste permits. The Parties have
also cooperated in addressing the response and remediation issues which have arisen in the past.
It is the Parties' intent to continue and to strengthen these cooperative efforts as the Landfill
continues to operate and expand.
1.11. Ongoing City Involvement with Land Use and Zoning. The continued
operation and expansion of the Landfill will require ongoing City participation in negotiations
with ERL, further study of the City's zoning and other ordinances, periodic review, renewal and
amendment of the CUP and License for the Landfill, and continuing substantial involvement by
City staff, the City Attorney, the City's environmental advisors, its Planning Commission, and
the City Council.
1.12. Ongoing City Involvement with County Issues and Solid Waste Permits
for the Landfill. The City anticipates that the issuance of county licenses and MPCA solid
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waste permits for the Landfill will require continuing participation by the City, City staff, the
City Attorney, and the City's enviromnental advisors in the county and MPCA permitting
processes.
1.13. Ongoing City Involvement in Response and Remediation Actions. The
City anticipates that response and remediation actions over the next decade will necessitate a
continuing high level of City involvement and participation by/city staff, the City Attorney and
the City's environmental consultants to assure the protection of the public health, safety, and
welfare.
1.14. Firefighting at Landfill. The City's Fire Department has responded to several
fires at the Landfill. Landfill fires can present unique challenges. The City, therefore, wants to
assure that certain fire prevention actions are undertaken by ERL. The City further wants to
assure that a sufficient water supply is present at the Landfill for future firefighting and that
other firefighting and communication equipment is available.
1.15. Ongoing Emergency Planning. The City anticipates that ERL and the City's
Fire Department will need to engage in ongoing planning and communication about fire
prevention and firefighting at the Landfill.
1.16. Purpose. This Agreement is entered into for the purposes of: (1) establishing
the principles of association between the City as the host community to the Landfill and ERL as
the owner and operator of the Landfill; and (2) providing compensation to the City for the
anticipated direct and indirect costs associated with the presence and operation of the Landfill in
the City, including the social and economic effects of the Landfill on the city and the City's
image and the City's costs for response and remediation activities, ongoing permitting activities,
and emergency preparedness planning.
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SECTION 2. AUTHORITY.
2.01. ERL. ERL enters into this Agreement pursuant to the powers granted to it by
Minnesota Statutes and by authorization of its Board of Directors.
2.02.
Minn. Stats.
Council.
City. The City enters into this Agreement pursuant to powers granted to it by
Chapters 412, 429, 444, 462, 465, and 471 and by authorization of the City
SECTION 3.
ADMINISTRATION.
3.01. Primary Responsibility.
Parties' Points of Contact.
3.02. Points of Contact.
This Agreement shall be administered by the
3.02.1. The City's Point of Contact. The City's Point of Contact shall be its
Building and Environmental Administrator, 13065 Orono Parkway, Elk River,
Minnesota 55330, Telephone: (763) 635-1061, Fax (763) 635-1090.
3.02.2. ERL's Point of Contact. ERL's Point of Contact shall be its Site
Manager, 22460 Highway 169 NW, Elk River, Minnesota 55330, Telephone (763) 441-
2464, Fax (763)
3.03. Notices. Any notice, demand, direction, request, or other instrument
authorized or required by this Agreement to be given to or filed with any Party or any agency,
shall be deemed sufficiently given or filed if and when sent by United States mail, addressed to
the Party to receive the same, to the attention of that Party's Point of Contact.
SECTION 4. OPERATIONS AND CONSULTATIONS.
4.01. Operational Compliance. The Landfill shall be operated in accordance with
its MPCA Solid Waste Permit, as amended and reissued from time to time, its CUP and License
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issued by the City, as amended from time to time, applicable Sherburne County licenses, and all
other applicable laws and regulations.
4.02. Consultation.
4.02.1. Regular Consultation. The Parties will use their best, good faith
efforts to resolve informally any dispute arising under the CUP, the License, or this
Agreement. The Parties shall meet as needed to review compliance with the CUP, the
License and this Agreement, and to review general operational and regulatory matters.
Either party may schedule such a meeting by giving the other party written notice at least
10 business days prior to the proposed meeting.
SECTION 5. ASSURANCES.
5.01. Indemnification and Release. ERL shall release, defend, indemnify, and
hold harmless the City, its officers, agents, employees, elected and appointed officials, boards,
political bodies, and volunteers (Indemnified Parties) from and against any and all causes of
action of any nature, claims, costs, executions, expenses (including reasonable attorneys' and
witnesses' fees and costs), judgments, liabilities, liens, or losses (collectively, Damages) based
upon or arising out of the following, whether or not ERL otherwise has any responsibility
therefor and whether occurring in the past, present, or future:
ERL's conduct of operations of the Landfill;
waste or substances treated, stored, disposed, recycled or contained at
ao
b.
the Landfill;
C.
d.
waste or substances emanating or released from the Landfill;
a failure of ERL to satisfy any legal requirements related to the
foregoing and/or a failure of ERL to satisfy its duties and obligations under this
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Agreement or any other federal, state, county or city license or permit applicable to
the Landfill.
This section shall not be deemed to abrogate the sovereign immunity enjoyed by the City or the
statutory liability limits provided by Minn. Stat. Chap. 466, as amended from time to time.
ERL's responsibility for indemnification under this section is limited to the City's liability limits
set forth in Minn. Stat. Chap. 466, as amended from time to time. ERL shall not be responsible
for the Indemnified Parties' gross negligence and shall not release, defend, indemnify, or hold
harmless the Indemnified Parties for Damages based on or arising from gross negligence.
5.02. Financial Assurances. ERL shall maintain in full force and in effect all
insurance, bonds, letters of credit, or cash deposits required to be maintained by city, county,
state, and federal law in order to assure completion, closure, and post-closure care and
maintenance of the Landfill as required by law. ERL shall also provide the City with such
copies as it may request of all insurance policies, bonds, letters of credit, and any other financial
assurance instruments and documents on a timely basis.
SECTION 6. HOST COMMUNITY FEE.
6.01. Host Community Fee. In consideration for the City serving as the host
community to the Landfill, in consideration for the City's ongoing direct and indirect costs
associated with the presence and operation of the Landfill in the City, in consideration for the
City's response and remediation activities and its emergency preparedness planning, and in
consideration of all other matters as set forth in this Agreement, ERL shall pay to the City
during the term of this Agreement a Host Community Fee (HCF) of $1.00 per cubic yard of
municipal solid waste (MSW) disposed of at the Landfill. The HCF shall be paid directly to the
City on a monthly basis and shall be accompanied by an accurate report on the amount and type
of solid waste disposed of in the Landfill each day during the month. The HCF due for each
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month shall be received by the City no later than the thirtieth calendar day of the succeeding
month. The first monthly payment shall be made on the thirtieth day of the month this
Agreement is executed.
The Parties agree that the HCF shall be the only fee charged by the City for solid waste
disposal at the Landfill. However, the Landfill shall remain responsible for all other applicable
and customary fees, including building permit fees, zoning application fees, Conditional Use
Permit application fees and cost reimbursement requirements, solid waste facility license fees
and cost reimbursement requirements, utility use fees, platting and subdivision fees, including
park dedication and other fees incident to platting and subdivision, real estate taxes, special
assessments for public improvements and all other applicable fees.
The amount of the HCF may be increased or decreased only by mutual agreement of the
parties, at the time of renewal of this Agreement or at any other time agreed to by the parties.
6.02. Use of Fee. The HCF may be used by the City for any lawful public purpose,
including general fund purposes.
6.03. Fee is in Lieu of Abatement Fees. The Parties agree that the City has
statutory authority to impose abatement fees on the Landfill and has done so in the past.
However, that authority may be subject to legal challenge and is subject to legislative scrutiny
and alteration. Therefore, the City agrees, for so long as ERL makes timely payment of the
HCF, to waive its right to impose such fees and to accept, in lieu thereof, the HCF described in
this Agreement. If the City shall be required by law to collect from ERL an abatement fee or
similar landfill fee in addition to the HCF, the HCF due and owing to the City shall be reduced
by an amount equal to the amount of such required abatement fee collected by the City.
The HCF is in lieu of the statutory landfill abatement fee for the disposal of solid waste
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only. All other fees applicable to the Landfill, including those set forth in Section 6.01 above
and all applicable fees for the disposal of demolition debris, shall remain in effect and applicable
to the Landfill.
6.04. Reversion to Abatement Fees. If the HCF should not be paid by ERL for
any reason, including expiration or termination of this Agreement, the statutory abatement fee
previously imposed by the City on the Landfill shall be automatically reinstated and payable as
provided in the CUP for the Landfill..
6.05. ERL to Forego Legal Challenges. ERL agrees that, with respect to the City,
it will forego any legal or legislative challenges, direct or indirect, to the imposition of
abatement fees, past, present, or future. ERL reserves the right to make such challenges as
respects any parties other than the City
SECTION 7. GENERAL PROVISIONS.
Except as this Agreement may specifically provide to the contrary, the following
provisions shall apply to all parties to this Agreement:
7.01. Agreement Not to Alter or Amend Other ERL Legal Responsibilities.
This Agreement does not shift, alter, amend or lessen ERL's duties and responsibilities as set
forth in the CUP and City License for the Landfill, Sherburne County's solid waste license(s), or
the MPCA's solid waste permit.
7.02. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of Minnesota.
7.03. Entire Agreement; Amendments. This Agreement may not be modified
except by an instrument in writing and duly executed by the Parties.
7.04. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and assigns. ERL may assign
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this Agreement only with the express written consent of the City. In the event of any
assignment, however, ERL shall remain fully responsible to assure that its duties and
responsibilities as expressed in this Agreement are fully performed.
7.05. Authorization. The City and ERL (and each person executing this
Agreement) warrant each to the other that each has taken all actions necessary to authorize it to
execute, deliver, and carry out this Agreement.
7.06. ERL's Obligations. The City shall have no obligation to pay any part of
ERL's expenses in carrying out their obligations under this Agreement.
7.07. TernffTermination. The term of this Agreement shall commence on the date
set forth above, and shall end on the earlier of the date on which the existing CUP or the date on
which the existing City License for the Landfill expires. It is the intent of the parties that this
Agreement will be renewed at the same time and for the same term as the CUP and license.
This Agreement may not be terminated before the end of its term by any Party without the
express, written consent of the other Parties.
7.08. Recording. Within 30 days after execution of this Agreement the City shall
record a summary memorialization of this Agreement with the Sherbume County Recorder
against the Landfill.
SECTION 8. SIGNATURES.
By their signatures below, the undersigned represent that they have authority to bind the
Parties that they represent, their agents, subsidiaries, successors, and assigns with respect to the
performance of this Agreement.
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IT IS SO AGREED:
CITY OF ELK RIVER:
Dated:
By
Stephanie Klinzing, Mayor
Dated:
By
Patrick D. Klaers, City
Administrator/Acting Clerk
ELK RIVER LANDFILL, INC.:
Dated:
By
Its
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