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HomeMy WebLinkAbout6733RESOLUTION NO. 6733 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND ZUPAN ENTERPRISES, INC. RELATING TO A SOLID WASTE DISPOSAL OPERATION AT THE PUEBLO SOUTHSIDE SOLID WASTE LANDFILL AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The Agreement dated April 22, 1991 between Pueblo, a Municipal Corporation and Zupan Enterprises, Inc. relating to a solid waste disposal operation at the Pueblo southside solid waste landfill in substantially the same form and content of the Agree- ment presented to this meeting, having been approved as to form by the City Attorney, is hereby approved, authorized and confirmed. The President of the City Council is authorized and directed to execute the Agreement in the name of and on behalf of the City but with such changes, modifications, additions or deletions therein as the President of the City Council and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Agreement presented to this meeting. The City Clerk is directed to affix the seal of the City thereto and to attest same. SECTION 2 This Resolution shall become effective upon final passage. INTRODUCED: April 22, 1991 ti ATTEST: FBI' TJ 50.13 By KENNETH HUNTER Councilperson APPROV Press ent of the City Council -2- i TfIIS AG JMDG I.', is made and entered into as of the 22nd day of April, 1991, by and between Pueblo, a Municipal Corporation, hereafter called "City," and Zupan Enterprises, Inc., hereafter called "Zupan," all of Pueblo, Colorado, WHEREAS, City is the owner of property known as the Pueblo Solid Waste Landfill located off Beulah Highway No. 78 approximately 7.8 miles from Pueblo City Hall described in attached Exhibit "B" (hereafter called "Landfill "), which can be geographically divided into distinct areas called Phases, and WHEREAS, City presently has an existing Agreement with Zupan to conduct a solid waste disposal and landfill operation within Phase I of the Landfill; and WHEREAS, Zupan has presented a proposal to acquire and thereafter conduct a solid waste disposal and landfill operation within Phases II and III of the Landfill utilizing new and existing equipment to be located at the Landfill, which proposal has been examined by City, and WHEREAS, the parties desire to incorporate within this Agreement the parties' obligations to one another as set forth in previous agreements and amerxtnents to these agreements, NOW, T EFORE, for mutual considerations, the parties agree as follows: 1. As used in this Agreement, the following terms shall have the following meaning: "Equipnently means and includes the Shredder Plant, one steel wheeled refuse compactor, four elevating earth movers, one motor grader, two lame water trucks with attached fire fighting equipment, two front -end loaders, earth compaction equipment, dump trucks, three large D -size or lamer crawler tractors and pickup trucks. "Rules and Regulations" means and includes all federal, state and local laws, rules and regulations applicable to solid waste disposal sites and facilities within Pueblo, Colorado. Ir-ertificate of Designation" or 11 OW 1 means and includes the terms, provisions, conditions, and grading, drainage and closure plans contained in the certificate of designation and special use permit approved by the County of Pueblo for Phases I, II and III of the landfill and all amendments and modifications thereto, and where the context requires, any other certificate of designation hereafter issued pursuant to applicable law for a solid waste disposal site and facility on Zupan's land. "Phase" means Phase I, II, or III of the Landfill shown on Drawing " A " attached hereto and incorporated herein. "Shredder Plant" or ' NPlant" means and includes Zupan's existing solid waste shredding facility with an original rated capacity of fifty (50) tons per hour consisting of 2 Model 42F mills and conveyors, three 70 cubic yards refuse transfer trailers, two compactor and one electromagnetic separator, and all modifications thereto. "solid Waste" means and includes refuse, garbage, rubbish, debris, trash, mineral or vegetable waste, and other discarded materials from commercial, industrial or household activities, including but not limited to paper, cans, bottles, tree trimmings, tree limbs and stumps, discarded appliances and furniture. '$Solid Waste'@ does not include hazardous waste regulated under E Subtitle C of the Resource Conservation and Recovery Act or defined in §25-15 - 101(9)(a) CRS, or solid or dissolved materials in domestic sewage or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to permits under the provisions of the Colorado Water Control Act, or source, special nuclear, or byproduct materials as defined by the Atomic Energy Act of 1954, or infectious waste as defined in §25- 15- 402(1), CRS. IlSanitary Landfill" means and includes the depositing of Solid Waste in natural or man made depressions or trenches, or dumping it at ground level, compacting it to the smallest practical volume, and covering it with compacted earth or other approved material, not classified as Solid Waste, in a systematic and sanitary manner in conformity with the COD and this Agreement. "Solid Waste Disposal Operation" means and includes a Solid Waste disposal site and facility and sanitary landfill operations conducted thereon. 'Mupants Lan& means and includes the land conveyed to Zupan pursuant to this Agreement, the approximately 560 acres awned or controlled by Zupan located west and north of Phase I, and any other land owned or controlled by Zupan adjacent to or near the Landfill. F. • a r •• •I] ti 2. Solid Waste Disposal Operation - Phase I Zupan shall continue to conduct for the residents of the City and County of Pueblo a Solid Waste Disposal Operation within Phase I of the Landfill in compliance with the terms and conditions of this Agreement, the Rules and Regulations, and the ODD for Phase I. Zupan shall furnish, install and provide all labor, supplies, services and equipment including the Equipment and Plant required and necessary for such Solid Waste Disposal Operation. The Equipment and Plant to 3 be furnished by Zupan shall remain the property of Zupan and shall be operated and maintained by Zupan at the Landfill in good working condition. Zupan shall continue the Solid Waste Disposal Operation within Phase I until such time as another Phase is prepared and available for use as a Solid Waste Disposal operation or until Phase I can no longer be used as a Solid Waste Disposal operation in accordance with the Certificate of Designation for Phase I, whichever occurs first. Zupan shall perform and conduct routine monitoring (both ground water and methane gas) services and programs within Phase I as required by applicable Rules and Regulations and ODD as long as Zupan conducts a Solid Waste Disposal Operation within either Phase I or within Zupan's Land. Zupan will close Phase I in accordance with applicable Rules and Regulations and COD. Zupan will, within thirty working days after Solid Waste Disposal operation within Phase I has ceased, cm plete cover of Phase I and continence revegetation of Phase I (except the westerly area of Phase I which will be covered and revegetated prior to June 1, 1991) and thereafter diligently pursue reclamation and revegetation requirements for Phase I. It is anticipated that, subject to events beyond the reasonable control of Zupan, Zupan will close Phase I by July 1, 1991 and ccuplete final cover of Phase I (including side slopes) by September 1, 1991 and shall complete revegetation of Phase I (including side slopes) by December 1, 1991. After closure of Phase I, Zupan will assist City in repairing any minor erosion damage, rills or minor revegation requirements as long as a Solid Waste Disposal Operation is conducted within Zupan's Land. Once Phase I is closed in accordance with applicable Rules and Regulations and COD, Zupan shall be under no obligation to expend monies for any major damage suffered within Phase I such as severe subsidence or damage to the revegetation. 4 3. Solid Waste Disposal Operation and Acquisition of Phases II and III• The City hereby sells and Zupan hereby purchases the real property c m nonly known as Phases II and III together with Borrow Area A shaven on Drawing " A " consisting of approximately 90 acres for a purchase price of $250.00 per acre. The purchase price shall be paid in cash or certified funds upon delivery of the Deed. A general description of the location of these parcels is shown on Drawing " A " attached hereto. City agrees to create a legal description of the property being sold and to take such steps as may be necessary to transfer these parcels to Zupan. Title shall be conveyed by City by Quit Claim Deed. City grants to Zupan an easement for access purposes by Zupan and the public along such locations as the parties shall mutually determine, providing access to Phases I, II and III and Borrow Area A. City hereby leases to Zupan the ground and building upon which the Plant is located (shown on Drawing " A " as the Shredder), together with access thereto for a term comiencing May 1, 1991 and ending at the time Zupan ceases to operate a Solid Waste Disposal Operation within Zupan's Land which incorporates the use of the Plant. Zupan will maintain, repair and keep the building in at least its present condition. Zupan will insure the building against loss by fire and other casualty and pay all taxes assessed against the building. All proceeds from fire and extended coverage insurance shall be payable to the City and will be released to Zupan to repair or rebuild the building. The Quit Claim Deed from City to Zupan shall include reservations to the City for such easements for roads (including the Hog Farm Road) and utilities as City may deem necessary. The parties acknowledge that City has obtained a Certificate of Designation for Phases II and III. Zupan agrees to complete at Zupan's sole 5 cost and expense any additional engineering requirements with respect to Phases II and III and to prepare those Phases for Solid Waste Disposal Operation in accordance with Environmental Protection Agency's Subtitle D Regulations. (40 CFR 258, Solid Waste Disposal Facility Criteria) (EPA's Regulation) and the COD. City, pursuant to §30 -20- 102(2), C.R.S., does hereby approve Phases I, II and III as sites for solid waste disposal and facilities and authorizes Zupan to conduct Solid Waste Disposal Operation therein. Zupan shall complete at its expense any additional engineering requirements with respect to Phases II and III and to prepare those Phases for Solid Waste Disposal Operation in accordance with Environmental Agency's Subtitle D Regulations (40 CFR Part 258, Criteria for Municipal Solid Waste Landfills) (EPA's Regulations) and the COD, including the installation of water monitoring wells and leachate collection tanks at such locations, either on Zupan's Land or City's land, as City and Zupan shall mutually agree. City hereby transfers and assigns to Zupan all of its right, title and interest in and to the existing COD for Phases II and III and Zupan does hereby accept such assignment and transfer. Zupan assumes and agrees to perform all obligations imposed by the COD and Rules and Regulations including EPA's Regulations with respect to Phases II and III and to indemnify and save harmless the City and County of Pueblo therefran. The assignment of the COD for Phases II and III shall not relieve City from any responsibility or liability with respect to Phase I except those responsibilities and liabilities assumed by Zupan under this Agreement or for which Zupan was responsible and liable under prior Agreements between City, County of Pueblo and Zupan. 0 Zupan will not make a substantial change in operational defined in §1.2.64, 6CCR1007 -2 to Phases II and III of the existing COD without first obtaining approval therefor from the City and the Colorado Department of Health. Zupan acknowledges the urgency of having Phase I closed as soon as possible and will immediately cxmmience work to prepare either Phase II or Phase III, at Zupan's option, for a Solid Waste Disposal operation and thereafter diligently pursue such work to completion on a seven day per week basis. Subject to acts of God, inclement weather and other causes beyond the reasonable control of Zupan, Zupan will close Phase I and commence a Solid Waste Disposal operation within either Phase II or Phase III on or before July 1, 1991. Zupan will conduct for the residents of the City and County of Pueblo a Solid Waste Disposal operation within Phases II and III of the Landfill, in compliance with terms and conditions of this Agreement, Rules and Regulations, and the COD. Zupan will furnish, install and provide all labor, supplies, services and equipment including the Equi pment and Plant required and necessary for said Solid Waste Disposal operation. On May 1, 1991 City's and County's obligation to pay Zupan Enterprises, Inc., under the existing Agreement between City and County and Zupan terminates. On May 1, 1991 Zupan may establish and collect a tipping fee fran users of the Landfill. The initial tipping fees and user fees will be those presently established by City. Except for increases resulting from increases in the Colorado State User Fees imposed by §25 -16 -104.5 C.R.S. or as same may be subsequently amended (the "State Users Fee "), the amount of the tipping fee will not be increased for twelve months fraan the date of this Agreement. The 7 previous sentence shall not preclude Zupan from establishing an increased fee to be imposed upon those trash haulers who came to the Landfill in uncovered vehicles in violation of the City's ordinances. If the cost of operation or utilization of the Landfill substantially changes during the first six months of this Agreement, the City agrees to meet and confer with Zupan with regard to the amount of the tipping fee. After May 1, 1992, Zupan agrees not to increase the tipping fee without first meeting and conferring with the City and giving City sixty days advance notice of any proposed increase. Until such time as an alternate solid waste disposal site or facility, including without limitation a transfer station (Alternate Site) is available within the City or County of Pueblo, Zupan will allow the City and County of Pueblo to utilize the Landfill as those entities have utilized it in the past for governmental use with regard to frequency and volume, without charge. Once an Alternate Site is available within the City or County of Pueblo, Zupan agrees to grant to the City and County a discount for utilization of the Southside Landfill for governmental use in an amount to be determined by mutual agreement of the City and Zupan. Additionally, Zupan agrees to grant a discount in the amount of 10% of the established tipping fee to Pueblo Goodwill Industries, the Pueblo Salvation Army and to those Pueblo businesses whose principal business is tree removal. Zupan shall pay to City, without setoff or deduction, on or before the 15th day of each calendar month, an amount equal to ten (10) percent of all tipping or user fees, excluding State User Fees, collected during the preceding month from persons disposing of Solid Waste within Phase I or within Zupan's Land. All delinquent payments shall accrue interest at the rate of ten (10) percent per annum. The obligation to pay such percentage of fees to 8 the City shall ccumence June 1991 and continue each calendar month thereafter until Solid Waste Disposal Operation are no longer conducted within Phase I or within Zupan's Land. The monies paid to the City nay be deposited by City into a special fund under the exclusive control of City for such purpose as City may determine including, without limitation, meeting the City's long -term obligation with respect to Phase I and, without releasing Zupan from any obligation or liability hereunder, to secure to the City and the County Zupan's indemnification provisions established by this Agreement. Zupan will maintain complete and accurate books and records with regard to the tipping and user fees which shall be open to the inspection and audit by City's authorized representatives at reasonable times. During the period May 11 through 18, 1991, Zupan will accept for disposal at the Landfill at no charge except State User Fees, yard and neighborhood refuse collected during City sponsored campaigns to clean up the Pueblo community, excluding household waste, tires, furniture, appliances and similar items of Solid Waste and Solid Waste delivered to the Landfill by commercial haulers. Between May 1 and December 31, 1992, and each year thereafter, City may designate, after consultation with Zupan, up to two non- consecutive days for the purpose of allowing private, non- ercial trash haulers to utilize the landfill at no charge in conjunction with Citywide caYpaigns to clean up the Pueblo community. Such days shall be mutually agreed upon. 4. RecyclIM and Composting Zupan, at its cost and expense, shall establish a recycling buy-back center at the landfill for the purpose of purchasing materials such as aluminum, clean glass, newsprint, certain cardboards and other materials that may have commercial recycling value wt (Recycling Center). Zupan reserves the right to determine which materials shall be purchased based on available markets for resale. This Recycling Center will be opened within sixty days from the date either Phase II or Phase III, whichever occurs first, is open for use. Zupan will provide four lame containers near the present gate house at a location convenient for traffic pull -off and parking. Zupan's employees will man a scale during all operating hours of the Solid Waste Disposal Operation, and Zupan will purchase recyclabale materials at current local market rates. Zupan will expand the Recycling Center if needed to accoamodate public demand. Zupan agrees to establish a pilot program composting facility for manufacturing approximately fifty tons of ccnposting material. The purpose of this pilot program is to establish the cost per ton to produce the composting material. Zupan will hire a composting consultant to advise as to the best possible way of achieving success in this pilot program. If required, Zupan (with City's assistance) agrees to take such steps as are necessary to amend the Certificate of Designation to obtain the approval of the Colorado Department of Health for the composting pilot program. Zupan will designate one of its two shredders for composting purposes. Ham wx patterns will be tried in order to gain cptim m particle size for composting. Zupan will provide equipment and labor necessary for the pilot composting program. Zupan will select and direct qualified loads of compostable materials to a designated composting area at the Landfill to store the material being composted. Zupan will cause said material to be watered on a periodic basis to help maintain proper moisture content, provided, however, that the watering does not adversely affect the overall Solid Waste Disposal Operation and safety. City agrees to study the feasibility of marketing the composted 10 material or finding alternative uses for said material. Zupan assumes no obligation to market the material or to create more than fifty tons of material for the pilot program. City shall be entitled to any profits generated from the sale of the materials generated in the pilot program and the materials generated from any subsequent ongoing composting program. Should an ongoing composting program be developed, Zupan agrees to cooperate with City and to provide the use of Zupan's equipment and labor for the purpose of the ongoing cxmposting program at Zupan's cost for same so that any profits generated from the program may be realized by City. Within 12 months from the date of this Agreement, Zupan will engage a qualified consultant and submit to City a detailed report and analysis of other recycling and composting possibilities at the Landfill together with cost analysis of proposed activities. City and Zupan will jointly select the consultant for such purpose. Zupan agrees to cooperate with City concerning the implementation of any of the proposed recycling and composting activities disclosed in the report. In order to monitor and determine whether or not hazardous waste is being disposed of at the Landfill, Zupan agrees to establish a program of random inspections and inspections of suspicious loads hauled by commercial haulers originating from industrial and manufacturing sources. Zupan will coordinate with the Pueblo City - County Health Department concerning inspections, number of inspections, docmentation of inspections and identification of possible hazardous waste. Zupan will maintain a log of random inspections performed and train its employees to recognize hazardous waste and establish procedures for notifying the proper authorities in the event a hazardous waste is discovered. 11 5. Other Solid Waste Disposal Operation Upon the execution of this Agreement, Zupan may perform such engineering studies as may be required to determine the acceptability for use of Zupan's land for a Solid Waste Disposal Operation. Prior to conducting a Solid Waste Disposal Operation within Zupan's land, except Phases II and III, Zupan shall furnish engineering and geologic studies to the City to assure that such Solid Waste Disposal Operation will not affect groundwater beneath the Phase I area or cause the Phase I area to become subject to EPA's Regulations if not otherwise subject thereto. Should Zupan's land be determined to be suitable for a Solid Waste Disposal Operation from an engineering standpoint, Zupan may proceed to annex Zupan's Land to the City of Pueblo and to obtain a Certificate of Designation and approval from the State of Colorado and City for a Solid Waste Disposal Operation within Zupan's Land. All costs of obtaining the Certificate of Designation and engineering costs and land preparation costs and operation costs shall be borne by Zupan. Should Zupan determine that a Solid Waste Disposal operation is more advantageous within Zupan's land rather than within Phases II and III, Zupan, at its option, may conduct a Solid Waste Disposal operation within Zupan's Land after they are properly approved and permitted, including the issuance of a COD therefor. Zupan shall conduct such Solid Waste Disposal operation in compliance with the conditions and requirements of all applicable Rules and Regulations, approvals and COD's. 6. Solid Waste Process : From and after the effective date hereof Zupan shall dispose of all Solid Waste of the residents of the City and County of Pueblo, State of Colorado delivered to the landfill utilizing the Plant and employing a method of sanitary landfill as follows: the end product of the 12 Plant and all Solid Waste which is not capable of being processed by the Plant shall be disposed of by Zupan at the Landfill by method of sanitary landfill in conformity with the Certificates of Designation issued for the Phase within which Solid Waste is being deposited and this Agreement. 7. Operating Hours The landfill shall be open to the public for disposal of solid waste six days each week, Monday through Saturday, from 8:00 o'clock A.M. to 5:00 P.M. The Landfill and Plant may be closed to the public on Thanksgiving, Christmas, New Year's Day, Memorial Day, July 4th, Labor Day and Sundays for repair of operator's equipment and movement of fill material and solid waste. Zupan shall limit and control access to the Landfill during hours the Landfill is not opened to the public. Zupan will maintain and keep in good repair (including repaving) the access road from Highway 78 to the Landfill and Zupan shall maintain and snow plow all roads located on the Landfill which are used by the public to obtain access to the Landfill, including Hog Farm Road which is used by adjacent landowners for access to their properties. In addition to Zupan's requirement to maintain such roads, Zupan shall perform all litter removal and litter monitoring with respect to said roads and the access road fram Beulah Highway No. 78. The Landfill will be temporarily closed when winds reach a velocity of or in excess of 25 miles per hour. If utilization of the Landfill substantially changes, City agrees to confer with Zupan concerning the possibility of changing the days and/or hours of operation. 8. Solid Waste Disposal Operation Zupan is to use the method of conducting a Solid Waste Disposal Operation best suited to the existing dominant physical features of the Landfill in conformity with approved drainage and grading plans and applicable OED's. Solid waste not to be 13 processed at the Plant shall be deposited at locations designated by Zupan. Appropriate signs shall be posted to indicate clearly where vehicles are to unload solid waste. Solid Waste shall be deposited, spread and thoroughly compacted to firmness before being timely covered with approved cover material. Zupan shall be responsible for furnishing and providing all cover material. City shall allow Zupan to remove soil material for operations and final cover within Phase I and clay material for liners within Phases II and III from the Zupan Borrow Area shown on Drawing " A " and Zupan shall revegetate all areas within Zupan Borrow Area disturbed by Zupan. Zupan shall cover all active Solid Waste Disposal Operation sites with at least six inches of approved cover material each working day. Zupan shall cover all filled and inactive Solid Waste Disposal Operation sites with at least twenty -four inches of approved cover material on a systematic basis within thirty days after the site becomes inactive. Zupan shall not set or permit anyone else to set on fire any solid waste at the site and shall take immediate steps after discovery thereof to extinguish any fire or smoke conditions which may occur. on discovery of any subsurface fire at the Landfill, operations shall be immediately discontinued in the immediate area and Zupan shall extinguish the fire. Hot materials including ashes may be rejected by Zupan if not enclosed in metal containers for disposal at a specified site on the Landfill. Hot materials shall be handled by Zupan in such a manner as to prevent combustion or ignition of solid waste. Conditions creating or tending to create air pollution or air pollution nuisance, whether odor, smoke or otherwise, shall not be permitted 14 to develop. Zupan shall comply with all provisions of the Colorado Department of Health Air Pollution Permit for the Landfill. Zupan will adept for disposal only Solid Waste. No radioactive or toxic wastes or liquids will be accepted for disposal. No hazardous wastes or sludges will be accepted unless approved by Zupan and the State Health Department or the Pueblo City -County Health Department on a case-by-case basis and Zupan may change a special burial fee for such wastes or sludges. Tires capable of being processed through the Plant shall be processed and shredded by Zupan. Tires and shredded parts thereof shall be disposed of in such a manner that tires will not float to the surface. Storm water run -off and surface water courses through the Landfill and Zupan's Land shall be controlled so as to avoid contamination of any water supplies, prevent mosquito and disease vectors breeding, prevent air pollution or other nuisance conditions, and prevent pollution of ground water. Solid Waste Disposal Operation shall be so conducted as to prevent stagnant water pools, erosion and the washing of Solid Waste or cover material onto or across adjacent lands by surface run-off waters. Effective measures shall be taken at the Plant site and Landfill to prevent breeding or harborage or infestation by rodents, insects or disease vectors. Portable fencing of adequate height, shall be installed to confine paper and other windborne materials to the active dumping area. The portable fence and the surrounding area shall be policed daily and all scattered material collected and placed in the Plant or Solid Waste Disposal operation sites. Zupan shall keep the Landfill and Solid Waste Disposal Operation sites in a neat and orderly condition. 15 9. Salvage Recycling Rights Zupan shall be entitled to all salvage rights frrnn the Solid Waste Disposal Operation except rights to methane, carbon dioxide and other hydrocarbon substances and materials whether in a liquid, solid or gaseous state, and rights to composted materials generated by the Solid Waste Disposal Operation within the land acquired by Zupan from City pursuant to this Agreement. rcl:pkiai ;i0)4M(k 10. Compliance With Ordinances, Regulations and Iaws a. Zupan will maintain a Certificate of Designation for the Solid Waste Disposal Operation on Zupan's Land pursuant to the provisions of applicable laws and ordinances. In addition, Zupan will meet, perform and comply with the terms, provisions and conditions of all applicable Rules and Regulations, this Agreement and the ODD including drainage, grading and closure plans therefor, except that City, with respect to Phase I, will (i) absorb the cost of laboratory tests for ground water and (ii) will retain a consultant to provide quality control and verify in writing to the State that the specification for soil type, runoff diversion berms, final cover contours, final cover compaction and monitor well construction have been achieved. b. Zupan shall not use a firm name containing "City", or "Pueblo" or other words implying municipal ownership. This shall not preclude the utilization of the name "Pueblo Southside Landfill" for the Landfill site. 11. Maintenance of Office During operating hours Zupan will provide the necessary office or working headquarters with sufficient personnel and facilities to receive all telephone calls connected with the solid waste disposal and landfill operations and shall efficiently conduct all matters pertaining to such operations. 16 12. Indemnity and Insurance a. Indemnity (i) Zupan shall indemnify and save harmless the City and County of Pueblo and their respective officers, agents, and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received or sustained by any person or persons or property, on account of any negligent act, omission or fault of Zupan, his agents or employees, in performance of or arising out of this Agreement and Zupan shall forthwith pay any judgment, with costs, which may be obtained against City or the County of Pueblo or their agents, officers or employees including all reasonable attorney fees incurred by City or County of Pueblo or their respective agents, officers or employees, arising out of said suits, actions or claims. (ii) Zupan shall further indemnify and save the City and the County of Pueblo harmless fraln any penalty or damages assessed or attempted to be assessed against the City or County of Pueblo, including costs and reasonable attorney fees incurred by City or County of Pueblo in defending against any such penalty or damage assessment resulting from or arising out of Zupan's failure or alleged failure to conduct the Solid Waste Disposal Operation in conformity with the COD or applicable Federal or State laws, Rules and Regulations. b. Insurance Zupan shall not cence work under this Agreement until it has obtained, at its own expense and without cost to the City all insurance required under this paragraph and such insurance has been approved by the City's Director of Finance. Zupan shall maintain such insurance until such time as Zupan is no longer conducting a Solid Waste Disposal Operation at 17 the Landfill or at Zupan's Land and Zupan has Meted all work required under this Agreement. (i) Zupan's General Public Liability and Property D�amacLe Insurance Zupan's general public liability and property damage insurance issued to and covering the liability of Zupan with respect to all work performed by it under the Agreement, shall be written with a limit of liability or not less than $1,000,000 for all damages arising out of bodily injury, including death, at any time resulting therefrom, sustained by any one or more persons in any one occurrence; and not less than $1,000,000 for all damages arising out of injury to or destruction of property in any one occurrence. (ii) Automotive Liability and Property Damage Insurance Whenever the work covered by the Agreement shall involve the use of automotive equipment, Zupan shall maintain automotive public liability and property damage insurance. This insurance shall be written with a limit of liability of not less than $500,000 for all damages sustained in any one occurrence. This insurance shall protect Zupan from any and all claims arising front the use of the following in the execution of the work included in the Agreement: (a) Zupan's own automobiles and trucks and all other equipment. (b) Hired automobiles and trucks and all other equipment. (c) Automobiles and trucks and other equipment not awned by Zupan. Such insurance shall cover the use of automobiles and trucks and all other equipment both on and off of the Landfill. 18 (iii) Worker's Compensation Insurance Worker's Caq)ensation Insurance, including Occupational Disease Provisions, covering the obligations of Zupan in accordance with the provisions of the Worker's Compensation Act, as amended, of the State of Colorado, or any alternate coverage allowed by law. (iv) Any Subcontractor Performing Work for Zupan Any subcontractors performing work for Zupan under the Agreement shall provide certificates of insurance protection to Zupan and to the City of the same type and in the same amounts as required fret Zupan. (v) The Insurance Coverage The insurance coverage enumerated in the above subparagraphs constitutes the minimum requirements and said enumeration shall in no way lessen or limit the liability of Zupan under the terms of the Agreement. Zupan shall procure, and maintain, at its own cost and expense, any additional kinds and amounts of insurance that, in its own judgment, may be necessary for its protection in the prosecution of the work. (vi) Certificates of Insurance Certificates of Insurance for Workmen's Compensation, Public Liability and Property Damage and Automotive Liability shall be filed with the City. Said insurance shall not be cancelled, permitted to expire, or be changed without ten (10) days notice in advance to the City and consented to by the City. 13. Verbal Aaraements No verbal agreements or conversations with any officer, agent or employee of the City, either before or after execution of the Agreement, shall affect or modify any of the terms or obligations contained in this Agreement. 14. Zupan Not an IImloyee It is expressly agreed and understood that Zupan is, in all respects, an independent contractor, notwithstanding that in 19 certain respects Zupan is bound to follow the directions of the City. Zupan's relationship with City is purely contractual and Zupan is in no respect an agent, servant or employee of the City. This Agreement shall not create nor be deemed to create a partnership or joint venture between City and Zupan. 15. Subcontracts and Subcontractors a. Subcontractors (i) This Agreement, or any part thereof, shall not be sublet, except with the prior written consent of the City. (ii) Zupan agrees to be fully responsible to the City for the acts or omissions of its subcontractors and of anyone employed directly or indirectly by it or them and this Agreement obligation shall be in addition to the liability imposed upon Zupan. (iii) Nothing contained in this Agreement shall create any contractual relationship between any subcontractor and the City. (iv) Zupan agrees to bind every subcontractor (and every subcontractor of a subcontractor) by the terms of the Agreement and specifications as far as applicable to this work, unless specifically noted to the contrary in a subcontract approved in writing as adequate by the City. b. Assignment of Contract No assignment or subletting by Zupan of this Agreement or any part hereof or the sale or transfer of the land conveyed by City to Zupan hereunder will be recognized unless such assignment or subletting or sale or transfer has had the written approval of the City. Such written approval by the City shall not relieve Zupan of the obligations incurred by it under the terms of this Agreement. Any assignment, subletting or transfer by Zupan without the written approval of City shall constitute a default hereunder. 20 c. Other Contracts The City may award other contracts or issue approvals for Solid Waste Disposal Operation at other sites. d. The terms and conditions of this Agreement shall survive the closing of the purchase and sale of land set forth herein. 16. Authority of City Manager If, in the opinion of the City Manager, the work being done by Zupan is in violation of any of the terms or provisions of this Agreement, he shall forthwith notify Zupan to cease said violation. Failure of Zupan to immediately cease such violation shall constitute a default hereunder. 17. Specific Performance If either party shall be in default hereunder or shall fail or refuse to perform any provision of this Agreement on its part to be performed, the other party may enforce this Agreement by an action for specific performance or for damaes, or both, after giving to the defaulting party 30 days prior written notice specifying the default, failure or omission. Zupan's delay in the performance of any provision of the Agreement other than making payments to the City, based upon unavoidable fire or other casualty to the Building or Plant or based upon causes not reasonably anticipated and beyond the control of Zupan shall not constitute a default hereunder, provided such cause or casualty is not occasioned by Zupan's fault or negligence, and further provided, Zupan diligently pursues performance of such provision by all legal means available to Zupan. In the event of any litigation arising out of this Agreement, including an action for specific performance or damages, or both, the prevailing party shall be entitled to recover fran the other party in addition to specific performance and all damages resulting from the other party's 21 default or breach of this Agreement, costs, including reasonable attorney's fees. «Di ia. 18. Zupan and City warrant that they have full and legal right, power and authority to execute this Agreement. 19. Zupan has established a working relationship with Fuel Resources Development Co. (Fuelco), the operator of a methane gas recovery plant and activities at the Landfill. Zupan acknowledges that Fuelco has a contract with City for use of the Landfill for methane gas recovery, and Zupan will cooperate with Fuelco in its use of the Landfill and will not interfere with Fuelco's activities and operations at the Landfill. 20. Upon discontinuance by Zupan of Solid Waste Disposal operations within Phase I or within Zupan's Land, and performance of its obligations hereunder, Zupan will be entitled to remove the Plant from the building located on the Landfill provided Zupan repairs all damages caused by such removal. Zupan shall have a reasonable time to remove the Plant and Zupan's equipment. Zupan will expeditiously remove the Plant from the Building if Zupan discontinues use of the Plant for six (6) months. 21. This Agreement shall terminate all prior Agreements relating to the Landfill between the parties, including the County of Pueblo, as to all future rights and liabilities thereunder, provided, that notwithstanding any provision of this Agreement to the contrary, such termination shall not constitute a release or discharge of any party's past rights, duties, obligations or liabilities under such prior Agreements. 22. Zupan as part of its closure obligations for Phase I shall provide proper closure and revegetation of those areas outside the Landfill designated 22 on Drawing A as Disturbed Areas which have been disturbed by previous operations and activities. 23. City hereby sells and transfers "AS IPI Wrnio T WRRAM, EXPRESSED OR IKPLIM to Zupan the two pieces of earth equipment (two (2) Michigan Model 210 H Scrapers) and related parts and accessories previously made available to Zupan by City and the existing toll booth and related facilities, excluding office equipment and furniture. 24. In the event Zupan discontinues Solid Waste Disposal Operations within Phase I and Zupan's Iand, Zupan grants to City the non- assignable right to purchase back from Zupan at the same purchase price the land being sold to Zupan pursuant to this Agreement. In the event Zupan ceases to conduct Solid Waste Disposal Operations, Zupan shall be released from all monitoring obligation with respect to Phase I. 25. If any provision of this Agreement is in conflict with an applicable COD or Rules and Regulations, the COD or Rules and Regulations shall control. 26. This Agreement is binding on and shall inure to the benefit of the parties hereto and the successors and assigns of the City and the successors and approved assigns of Zupan. Executed the day and year first above written. - AdAa,ic X - City Clerk Pr&ddent of the City Council - 23 City Atto (SEAL) ZUPAN IIV'ItPRIS INC. By Secretary President In consideration of the City of Pueblo entering into the foregoing Agreement, Joe P. Zupan does hereby personally guarantee the performance of the Agreement by Zupan Enterprises, Inc. In the event of default by Zupan Enterprises, Inc., under the Agreement and written notice thereof is given to Joe P. Zupan, Joe P. Zupan will perform all the terms and provisions of this Agreement to be performed by Zupan Enterprises, Inc. thereunder. SIGNED this a1a day of , 1999- v Joe . Zupan 24 E OMIT IgrI The parcel of land located in Pueblo County, Colorado and described as: The S, of the NW,, the N, of the S2, and the S, of the SW,, all in Section 18, Township 21 South, Range 65 West of the 6th P.M.; and a portion of the E, of the E, of Section 13, Township 21 South, Range 65 West of the 6th P.M. being the East 600 feet of the South 2,975 feet of said Section 13; Pueblo County, Colorado, containing approximately 361 acres, excepting existing roads and rights of way and subject to easements, restrictions, reservations and rights of way of record. Recorded at o'clock M., Reception No. Recorder. f THIS DEED, Made this 1 s t day of May ,1991 , between Pueblo, a Municipal Corporation f KDD1Wi}i NOC duly organized and existing under and by virtue of the laws of the State of Colorado, of the first part, and Zupan Enterprises, Inc. a Colorado Corporation whose legal address is of the Countyof Pueblo State of Colorado, of the second part, WITNESSETH, That the said party of the first part, for and in considera- tion of the sum of TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION XXOMXM, to the said party of the first part in hand paid by the said part y of the second part, the receipt whereof is hereby confessed and acknowledged, hath remised, released, sold, conveyed and QUIT CLAIMED, and by these presents doth remise, release, sell, convey and QUIT CLAIM unto the said party of the second part, its SUc fiaRp assigns forever, all the right, title, interest, claim and demand which the said party of the first part hath in and to the following described real property situate, lying and being in the County of and State of Colorado, to wit: The real property described in the attached Exhibit "A ", reserving to the party of the first part all rights to methane, carbon dioxide and other hydrocarbon substances and materials whether in a liquid, solid or gaseous state and whether now or hereafter located on the real property, and rights of way and easements for roads and utilities over, under, across and upon the real property at such locations as party of the first part shall deem necessary and hereafter designate. This conveyance is subject to the condition that the party of the second part will not, without prior approval of the Colorado Department of Health, make a substantial change in operations as defined in §1.2.64, 6 CCR 1007 -2 to Phases II and III of the existing Certificate of Designation approved by Resolution No. 85 -Z -1 and amended by Resolution 88 -2 -85 of the Board of County Commissioners of Pueblo County also known as street and number none TO HAVE AND TO HOLD the same, together with all and singular the appurtenances and privileges thereunto belonging, or in anywise thereunto appertaining, and all the estate, right, title, interest and claim whatsoever, of the said party of the first part, either in law or equity, to the only proper use, benefit and behoof of said part y of the second part, its S A2FCAM 'P Ps; - A%s forever. IN WITNESS WHEREOF, The said party of the first part bath caused its corporate name to be hereunto subscribed by i7 X * WX"Kt, and its corporate seal to be hereunto affixed, attested by its City Clerk 7IWcW( 3fX, the day and year first above written. * the President of its City Council Attest: , 12 A A i y erk STATE OF COLORADO ss. Countyof Pueblo Pueblo,-.)a Mu nicipal Corporation B y _. _._e�. -e ident of the "x City Council The foregoing instrument was acknowledged before me this / !� day of May 19 91 by Michael Occhiato as PresidentXYZ of the City Council and Marian D. Mead as City Clerk of Pueblo, a Municipal Corporation we XXN4ra a corporation. My notarial commission expires `f Witness my hand and official seal. Notary Public. No. 1 08-B. QUITCLAIM DEED. — Corporation Form– Bradford Publishing Co., Denver, Colorado —11 -79