Loading...
7.a)1) CUP Compliance and Reclamation Agreement , � CONDITIONAL USE PERMIT COMPLIANCE AND RECLAMATION AGREEMENT THIS CONDITIONAL USE PERMIT COMPLIANCE AND RECLAMATION AGREEMENT (the "Agreement") is made and entered into this day of , 2013, by and between JAMES ZAVORAL and KATHLEEN ZAVORAL, husband and wife (collectively, the "Owner"); TILLER CORPORATION, a Minnesota corporation (the"Operator")(collectively, the Owner and the Operator shall be referred to herein as the"Applicant"); and the CITY OF SCANDIA, a Minnesota municipal corporation(the"City"). ARTICLE ONE RECITALS 1. The following Recitals contain capitalized terms which, if not defined in such Recital are defined in subsequent portions of this Agreement including but not limited to Article Two hereof and are hereby made a part of this Agreement: 1.1 Owner's Propert� The Owner is the fee title owner of the Owner's Property located in the City, County of Washington, State of Minnesota and legally described on Exhibit A attached hereto. The Owner's Property consists of approximately 114 acres and is located on State Trunk Highway 95 east of its intersection with State Trunk Highway 97. 1.2 Zonin�. The Owner's Property is and at all times material to this Agreement has been zoned agricultural (AG) under the City's zoning map and development code (the"Code"). 1.3 Pro�ect• Operator proposes to use the approximately 64 acre Project Site portion of the Owner's Property as identified on the sketch attached hereto as Exhibit B for a Project consisting of the Permitted Activities both as hereinafter defined and generally consisting of and limited to gravel mining operation in the manner and subject to the limitations provided in this Agreement. 1.4 CUP Requirement. Under the City's Comprehensive Plan in place at the time the initial application for the Project was submitted by the Applicant to the City and under the Code, the Project proposed by the Applicant was a conditionally permitted use in the AG zone and required that a CUP be issued by the City. The City's current comprehensive plan adopted after the Applicant initially applied for the CUP, prohibits the Project however, the City has elected to proceed with consideration and approval of the Applicant's request for the CUP. 1.5 AOP Requirement. In addition to the CUP, the City's Code requires the Operator to obtain from the City and to comply with an AOP initially prior to the commencement of the Project on the Project Site and annually thereafter. 1.6 Citv Approval. On or about February , 2013, the City Council of the City adopted the Approval Resolution No. approving: (a) the CUP for the Project with conditions; (b) the initial AOP for the Project; and (c) this Agreement (collectively, the Approval Resolution, CUP, AOP and this Agreement may be referred to herein as the "Applicable Documents"). In general, the Applicable Documents set forth the Conditions, requirements and limitations which must be met and which must be complied with by the Applicant to conduct or continue to conduct the Permitted Activities and for the continued validity of the CUP. The Applicable Documents further identify: (a) the limitations imposed by the City on the Project and 1 � � the Project Site during the conduct of the Permitted Activities and (b) the Monitoring Actions required by the City to determine the actual operating conditions and project impacts in comparison to those modeled in the EIS and the Applicant's compliance with such Conditions, requirements and limitations in the manner set forth in the AOP from time to time and at the Applicant's expense. 1.7 Incorporation and Interpretation. Each of the Applicable Documents including but not limited to the AOP as initially approved and as approved annually thereafter are hereby incorporated into this Agreement as if set forth herein in full. To the extent of a conflict between any one or more of the Applicable Documents, the terms of the most restrictive of such Applicable Documents shall be deemed to apply. 1.8 Intent. Without limiting the foregoing, the parties to this Agreement desire to set forth herein: (a) the consent by the Applicant to each of the Conditions, requirements and limitations identified herein; (b) the continued compliance by the Applicant with each of such Conditions, requirements and limitations until the Termination Date provided herein; (c) the City's monitoring of the Applicant's compliance with such Conditions, requirements and limitations; (d) the Applicant's responsibility for all of the cost incurred in complying with such Conditions, requirements and limitations and the City's Monitoring Activities with respect thereto; (e) the mechanism for the payment of the City Costs by the Applicant; (fl the Applicant's reclamation of the Project Site including the scope, timing and standards thereof; and(g) the Applicant's posting of security to cover the described Reclamation Actions. ARTICLE TWO DEFINITIONS 2. Where used in this Agreement the following terms shall have the meanings set forth herein: 2.1 "AOP" means the annual operating permit granted by the City to the Operator from time to time including but not limited to the initial annual operating permit approved by the City by its adoption of the Approval Resolution. 2.2 "Annlicable Documents" shall mean collectively, the Approval Resolution, the CUP, the AOP and this Agreement. 2.3 "Anplicant" means collectively the Owner and the Operator and their respective heirs, personal representatives, successors and assigns. 2.4 "Apnroval Resolution" means City Resolution No. adopted by the City Council of the City on February_, 2013 a copy of which is on file with the City. 2.5 "Citv"means the City of Scandia, Minnesota, a Minnesota municipal corporation. 2.6 "Citv Costs" means all costs incurred by the City in the negotiation and drafting of and the Owner's and Operator's compliance with the CUP, the AOP and this Agreement including but not limited to the Monitoring Activities (including but not limited to the costs of equipment, installation, site visits, data collection, data analysis, reporting and all other costs associated with monitoring activities) and the Reclamation Actions and further including those City Costs paid by the Applicant to the City prior to the date hereof. Without limiting the foregoing, City Costs shall include the costs charged by any third party consultant (e.g. attorney, engineer etc.) and the wages, 2 salaries, benefits and the expenses paid by the City to any of its employees to conduct any portion of the Monitoring Activities including but not limited to costs charged by the the City's surface water, wetland, ground water,noise, air quality and traffic consultants. 2.7 "Code" means the City's development code as applied, interpreted and amended from time to time by the City consistent with this Agreement. 2.8 "Conditions" means those conditions, limitations and requirements specifically identified in or otherwise referred to in the Applicable Documents. 2.9 "CUP" means the Conditional Use Permit approved by the City by the adoption of the Approval Resolution and a copy of which is attached hereto as Exhibit C. 2.10 "Escrow" means the non-interest bearing account established by the City to hold the amount required from time to time by Section 5.1 of this Agreement to secure the Applicant's payment of the City Costs. 2.11 "Monitoring Activities" means those activities reasonably deemed necessary by the City to monitor the compliance by the Applicant with the Conditions, the Applicable Documents and applicable laws, ordinances, rules and regulations and the reporting of the results of such activities to the City. In addition to the requirements of the Code and applicable law, the Monitoring Activities will be identified in the AOP as issued from time to time by the City. 2.12 "Operator" means Tiller Corporation, a Minnesota corporation and its successors and assigns. 2.13 "Owner" means James Zavoral, a single person and his heirs, personal representatives, successors and assigns with respect to the ownership of the Owner's Property. 2.14 "Owner's Propertv" means the approximately 114 acres of real property owned in fee title by the Owner located in the City, County of Washington, State of Minnesota and legally described on Exhibit A hereto and upon a portion of which the Permitted Activities and the Reclamation Actions will be conducted. 2.15 "Permits" means any and all permits required for the conduct of the Project on the Project Site from time to time including but not limited to: (a) CUP; (b) AOP; (c) Minnesota Department of Transportation Access Permit; (d) Minnesota Department of Natural Resources Endangered Species Take Permit, if necessary; and (e) Stormwater Management Permit from Carnelian-Marine on St. Croix Watershed District. (� National Pollutant Discharge Elimination System (NPDES) Permit from the Minnesota Pollution Control Agency 2.16 "Permitted Activities" means the mining, stock piling and removal of gravel from the Project Site by the Applicant in accordance with and as limited by the Applicable Documents 3 including but not limited to the Conditions. Permitted Activities specifically does not include the mining of any minerals other than gravel or sand, including "frac" sand, hydraulic fracturing activities or any processing activities of any kind including but not limited to asphalt or concrete processing. 2.17 "Plans" means those plans submitted to the City by or on behalf of the Applicant in connection with the Applicable Documents in the form approved and accepted by the City from time to time including, but not limited to: (a) Groundwater Quality Protection Plan; (b) Site Plan; (c) Reclamation Plans; (d) Surface Water Plan; (e) Stormwater Pollution Prevention Plan; (� Dust Control Plan; (g) Emergency/Contingency Response Plan. 2.18 "Project"means the Applicant's conduct of Permitted Activities on the Project Site in accordance with and subject to the Applicable Documents, the Code and applicable laws, rules and regulations. 2.19 "Project Site" means the approximately 64 acres of the Owner's Property upon which the Project will be permitted to be conducted as identified on Exhibit B hereto. 2.20 "Reclamation Actions"means the actions, including the scope and timing thereof, set out in the Plans, the Applicable Documents including but not limited to the Reclamation Plans in order to reclaim the portions of the Property described and in the manner including the scope and timing thereof, identified in the foregoing Plans and Applicable Documents. Reclamation Actions shall include such actions as are necessary, in the reasonable opinion of the City, to meet the required timing, performance standards, successful reclamation and reporting of such Reclamation Actions. 2.21 "Reclamation Plans" means the plan of reclamation of the Project Site as prepared and submitted by Operator and approved by the City on , as duly revised and amended from time to time at the request and with the approval of the City. 222 "Securit " means the letter of credit in the form attached to this Agreement as Exhibit D to be delivered to the City to secure the completion of the Reclamation Actions on the Owner's Property. ARTICLE THREE APPLICANT AGREEMENTS 3. The following identify the agreements of the Applicant with respect to the matters identified in this Agreement: 3.1 Acknowledgement and Consent. The Applicant acknowledges having received, reviewed, read and understood each of the Applicable Documents. The Applicant hereby consents to and agrees with each of the Conditions, requirements and limitations imposed on them by the Applicable Documents in relation to the conducting of the Permitted Activities on the Owner's 4 Property including the Project Site. Without limiting the generality of the foregoing, the Applicant agrees to the limitations on the Project Activities on the Owner's Property to those provided in and allowed by the Applicable Documents including but not limited to the termination of the Permitted Activities, the CUP and the AOP for the reasons identified in this Agreement and as otherwise allowed by the Code and any applicable ordinances, statutes, rules and regulations. 3.2 Standard of Performance. The Applicant agrees to fizlly and faithfully comply in all material respects with all of the terms, Conditions, requirements and limitations of the Applicable Documents. The Applicant shall at all times conduct and shall require any employees, agents, consultants and third parties to conduct the Permitted Activities and the Reclamation Actions in a safe and workmanlike manner and in accordance with the Applicable Documents and all applicable ordinances, laws, rules and regulations. The Applicant shall make all of its employees, agents, consultants and third parties aware of all such requirements and limitations and shall be responsible for the failure of any such employees, agents, consultants and third parties to comply with all such requirements and limitations, including but not limited to the Conditions and the Reclamation Actions. 3.3 License to Enter. By executing this Agreement, the Applicant hereby grants the City, its agents, employees, contractors and consultants, the right to access the Owner's Property and the Operator's facilities on the Owner's Property at any time and without notice for the purpose of conducting the Monitoring Activities and otherwise to ensure the continued compliance by the Applicant with the Applicable Documents. 3.4 Permits. Unless otherwise required by the permitting agency, prior to commencement of any Permitted Activities, the Applicant will secure all permits necessary for the conduct of the Permitted Activities on the Project Site and the Reclamation Actions on the Owner's Property including, but not limited to the Permits. Prior to commencement of any Permitted Activities and not less frequently than annually thereafter, the Applicant shall provide copies of all such permits including the Permits to the City and notify the City within ten (10) days of the Applicant's (or either one of the Owner's or the Operator's) receipt thereof, of any notice of any violation or claim of violation or other matter which could affect the Applicant's (or either one of the Owner or the Operator) continued compliance with the requirements of each of such permit including the Permits. ARTICLE FOUR REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS BY APPLICANT 4. The Owner individually, the Operator individually and the Applicant (meaning both of the Owner and Operator) hereby represent and warrant and acknowledge to the City intending that the City rely thereon, each of the following to be true and accurate in all material respects on the date of this Agreement and while this Agreement remains in effect thereafter: 4.1 By Owner. (a) The Owner is the fee title owner of the Owner's Property free and clear of any encumbrance which could cause this Agreement to be of no force and effect as to the holder thereof or otherwise impair or restrict the City's ability to at any time enforce the provisions hereof. 5 (b) The consent of no other person or entity other than the Owner is required to enter into this Agreement and bind the Owner and Owner's Property to the requirements hereof. (c) The CUP granted by the City and the right to conduct Permitted Activities on the Owner's Property will terminate on the Termination Date and no activities including but not limited to Permitted Activities may be conducted on the Owner's Property except in full compliance with the then applicable ordinances of the City which, the Owner acknowledges presently prohibit the conduct of the Permitted Activities on the Owner's Property. (d) The Owner hereby waives any claim that the Conditions, limitations and requirements of this Agreement including the termination of the CUP as provided herein are void, unconstitutional or unenforceable against Owner. 4.2 Bv Operator. (a) The Operator: (i) is a Minnesota corporation duly organized under the laws of the State of Minnesota, (ii) is in good standing and duly authorized to conduct business in the State, (iii) has duly approved of this Agreement and (iv)has by proper action authorized the execution and delivery of this Agreement. (b) Operator has adequate power, authority and financial ability to use the Owner's Property for the purposes set forth in this Agreement. (c) The Operator hereby waives any claim that the Conditions, limitations and requirements of this Agreement including the termination of the CUP as provided herein are void, unconstitutional or unenforceable against Operator. 4.3 Bv Applicant. ' (a) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, the limitations proposed, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provisions or any contractual restriction, evidence of indebtedness, agreement or instrument of whatever nature to which the Owner or Operator is now a party or by which either of them is bound, or constitutes a default under any of the foregoing. (b) The Applicant will cause the Project, Permitted Activities and Reclamation Actions to be constructed, operated and maintained in accordance with the Applicable Documents, the Permits and all local, state and federal laws and regulations, including but not limited to, environmental, zoning, energy, conservation and public health laws and regulations. (c) The Applicant will use its best efforts to obtain, or cause to be obtained, the Permits and all other required permits, licenses and approvals and will meet, in a 6 timely manner all requirements of such permits including but not limited to the Permits. (d) The Applicant will cooperate fully with the City with respect to any litigation commenced with respect to the Project or any of the Applicable Documents. (e) The Applicant has the funds sufficient for compliance with the Applicable Documents including but not limited to the funding of the Escrow, the payrnent of City Costs and the posting of the security. (fl The Applicant will cooperate fully with the City in the resolution of any traffic, parking, noise, dust, air quality, public safety, or reclamation problems which may arise in connection with the construction and operation of the Project. (g) The Applicant will not assign, transfer or convey any interest or right in the Owner's Property or any Applicable Document without the City's consent which consent may be conditioned on the City's approval of such proposed Assignee's ability to perform under such Applicable Documents and on the proposed assignee's written acceptance of all of the terms and conditions of the Applicable Documents. 4.4 Indemnification. The Applicant shall indemnify and defend the City, its elected and appointed officials, agents, employees, successors and assigns ("Indemnified Parties") against, and shall hold the Indemnified Parties harmless from, any costs, expenses or damages of any kind or nature, including court costs and reasonable attorney's fees, which the Indemnified Parties may incur because of any breach of any of the agreements, covenants, representations or warranties herein contained,whether prior to or after the date hereof ARTICLE FIVE PAYMENTS OF CITY COSTS; SECURITY FOR RECLAMATION ACTIONS 5. The following provisions identify the obligations of and mechanism for the Applicant to pay for the City Costs incurred in the negotiating, drafting, approval and monitoring of the Applicable Documents and the Security to be posted by the Applicant to secure completion of the Reclamation Actions: 5.1 Escrow for CitY,Costs. The Applicant shall establish the Escrow with the City in the initial amount of $ ("Escrow Amount") for the payment of all City Costs actually incurred by the City in connection with the Applicable Documents, the Project operations and monitoring, supervision and inspection of the Applicant's compliance with the Applicable Documents and the Project operations. As part of the City's consideration of each AOP, the Escrow Amount shall be reviewed by the City annually during the term of this Agreement to reflect the City's best estimate of the City Costs anticipated to be incurred during the upcoming year. City Costs shall be paid and the Escrow shall be used in accordance with the following: (a) City Costs shall be documented to and may in the City's discretion be initially paid by the City from the Escrow or other City funds with such documentation 7 being sent to the Applicant by United States mail for reimbursement to the City by the Applicant pursuant to this Agreement. (b) Payment of any such City Costs by the Applicant hereunder shall be deemed to be acceptance by the Applicant of both the reasonableness of such City Costs and the City's entitlement to reimbursement thereof. Accordingly, as to any such sums paid by the Applicant, the Applicant hereby waives any right to challenge either the amount of or the City's entitlement to the reimbursement of such City Costs. (c) If the City pays any City Costs directly from the Escrow or if the City reimburses itself from the Escrow then, in that event, the Applicant agrees within thirty (30) days of notice from the City to deposit into the Escrow the amount necessary to replenish the Escrow to the then applicable Escrow Amount. (d) Upon the termination of this Agreement, any funds remaining in the Escrow after the payrnent of any outstanding City Costs shall be paid to the Applicant. (e) If the Applicant refuses or fails to make any payment of City Costs or to replenish the Escrow as above required, the City may, but shall not be obligated to draw upon the Security required by 5.2 below the amount of such unpaid City Costs or unreplenished Escrow. 5.2 Securitv. (a) As security for: (1) the completion of the Reclamation Actions as and when required by the Applicable Documents; (2) the payment of the costs of constructing and inspecting the Reclamation Actions incuding, but not limited to the same cost items identified in the City Costs by Section 2.6above ; (3) any unpaid City Costs after e�austion of the Escrow established in Section 5.1 above and (4) the Applicant's compliance with each of the Applicable Documents, the Applicant shall furnish the City with the Security in the form of Exhibit D attached hereto or other financial guarantee (or combination thereo fl acceptable to the City in its sole discretion in an amount equal to $ which the parties agree is one hundred twenty-five percent (125%) of the estimated costs of completion of the Reclamation Actions (the "Security Amount"). Such Security in a form acceptable to the City, in its sole discretion, shall be provided to the City on or before and shall be a condition to the actual commencement of the Project by the Applicant. The Applicant shall name the City as obligee or primary beneficiary of the amount reflected by such instrument. (b) Upon completion of each phase of the Reclamation Actions, the Applicant may provide evidence of the completion of such phase (including the passage of any warranty period) and may in writing request that the Security be reduced by the portion of the original amount thereof represented by such completed portion of the Reclamation Actions. The City will within thirty (30) days of the receipt of such request inspect the completed portion of the Reclamation Actions and the amount proposed by the Applicant for reduction of the Security (the "Reduction Amount"). Until a Certificate of Completion is issued by the City, approval of 8 any Reduction Amount and any reduction in the Security does not constitute a waiver by the City of the right to draw funds under the Security on account of any defect in or failure of the Reclamation Actions that is detected or which occurs after the approval of such Reduction Amount. (c) Subject to the foregoing, after approval of each Reduction Amount in accordance with this Article, the amount, which the City is entitled to draw on the Security, will be reduced by an amount equal to one hundred percent (100%) of the Reduction Amount approved by the City. (d) If the Applicant is in default under this Agreement, the Applicant will have no right to request such approval or reduction by the City and the City shall have no liability for refusing to grant such Reduction Amount. (e) Upon the approval of all of the Reclamation Actions an amount equal to twenty- five percent (25%) of the Security will be available to the City for ninety (90) days after expiration of the later of(1) the date of such approval or (2) the last of any warranty period provided in the Applicable Documents regarding such Reclamation Actions. ARTICLE SIX EVENTS OF DEFAULT; REMEDIES 6. The following provisions shall govern default by the Applicant (meaning either or both of the Owner or Operator) and the City's remedies for defaults under this Agreement: 6.1 Event of Default. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement (unless the context otherwise provides), any one or more of the following events: 6.1.1 Breach of Warrantv or Representation. A breach by Applicant of any warranty or representation made by the Applicant in any of the Applicable Documents. 6.1.2 Failure to Meet Any Condition. The failure of the Applicant to meet any of the Conditions, requirements and limitations of any of the Applicable Documents. 6.1.3 Failure to Complv. The failure of the Applicant at any time to comply with any of the Conditions, requirements or limitations required of the Applicant under any of the Applicable Documents. 6.1.4 Failure to Perform. Failure by the Applicant to observe and substantially perform any covenant, condition, obligation or agreement on its part to be observed or performed under any of the Applicable Documents. 6.1.5 Failure to Post. Failure by the Applicant to fund or replenish the Escrow or to post the Security as, when, in the amount and in the form provided herein. 9 6.1.6 Failure to Pav. Failure by the Applicant to pay when due the payments required to be paid or secured under any provision of any of the Applicable Documents, including the payment of any City Costs or other payment required with respect to the Owner's Property or any portion thereof or otherwise required by this Agreement. 6.1.7 Prohibited Assignment• The Applicant shall make an assignment which is not in compliance with Section 4.3(g) hereof. 6.1.8 Insolvencv. If the Applicant shall admit in writing its inability to pay its debts generally as they become due, or shall file or be involuntarily named as a debtor in a petition in bankruptcy, or shall make an assignment for the benefit of creditors, or shall consent to the appointment of a receiver of itself or of the whole or any substantial part of the Owner's Property. 6.19 Court Order. If the Applicant, on a petition in bankruptcy filed against it, be adjudicated a bankrupt, or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of the Applicant, a received of the Applicant or of the whole or substantially all of its properly, or approve a petition filed against the Applicant seeking reorganization or reairangement of the Applicant under the federal bankruptcy laws, and such adjudication, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of entry thereof. 6.2 Remedies on Default. Whenever any Event of Default occurs, the City may, in addition to any other remedies or rights given the City under this Agreement or available at law or in equity but only after the Applicant's failure to cure such Event of Default within thirty (30) days of written notice of default which notice shall be effective on the date mailed or hand delivered to the Applicant, take one or more of the following actions in the City's sole discretion: 6.2.1 Draw Upon Escrow or Securitv. Draw upon the Escrow or the Security or both as provided herein. 6.2.2 Suspend Project Activities. Suspend the Applicant's performance of Project Activities under this Agreement until the City receives assurances from the Applicant, deemed reasonably adequate by the City, that the Applicant will cure its default and continue its performance under this Agreement in accordance with its terms. 62.3 Terminate Applicable Documents. After giving the Applicant: (a) written notice of its intent to do so and (b) an opportunity to present its case to the City Council, the City may revoke the Applicable Documents including, but not limited to the CUP and the AOP. The revocation of the Applicable Documents shall not require the City to release the Escrow or the Security until the later of City determining that all City Costs have been paid and all Reclamation Actions have been fully completed either by the Applicant or the City and such revocation may no longer be challenged by the Applicant or any other party. 6.2.4 Action. Take any action, including legal or administrative action, which the City determines is necessary or desirable. 10 6.2.5 Enforce A�reement. Take whatever action at law or in equity appearing necessary or desirable to the City to collect any payments due under this Agreement, or to enforce performance or observance of any obligation, agreement or covenant of the Applicant under this Agreement including but not limited to collection or other enforcement against the Escrow or the Security. 6.2.6 Withhold Certificate or Permit. Withhold any certificate or permit required hereunder including, without limitation the AOP and the Certificate of Completion. 6.3 No Remedv Exclusive. No remedy herein conferred upon or reserved to the City is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission in exercising any right or power accruing upon any Event of Default shall impair any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the City to exercise any remedy reserved to it, it shall not be necessary for the City to give notice, other than such notice as may be required in this Article Six. 6.4 Threat to Safetv. In the event that the City reasonably determines that the continuance of the Project Activities as and in the manner conducted by the Applicant present and imminent risk to health or safety, the City may immediately and without notice require that the Project, Permitted Activities and/or Reclamation Actions be suspended until the City is satisfied that such risk no longer exists. ARTICLE SEVEN CERTIFICATE OF COMPLETION 7. Upon the Applicant's satisfactory performance of all of the requirements of the Applicable Documents, including but not limited to the Reclamation Actions, the City will, at the request of the Applicant, approve and execute a Certificate of Completion in the form of Exhibit E hereto which Certificate of Completion may be recorded by Applicant at its expense and shall serve to terminate the obligations of the Applicant hereunder. ARTICLE EIGHT TERM AND TERMINATION 8. This Agreement including the Applicable Documents may be terminated by the City and shall terminate automatically as to each of the Permitted Activities and Reclamation Actions as follows: 8.1 As to Permitted Activities. As to Permitted Activities, this Agreement and the Applicable Documents will terminate on the earlier of the following and upon such termination the Applicant shall have no further right to conduct such Permitted Activities: 8.1.1 The termination thereof as and in the manner allowed by Section 6.2.3 hereof; 8.1.2 The mining of yards of gravel on the Project Site; or 8.1.3 il 8.2 As to Reclamation Actions. As to Reclamation Actions, this Agreement and the Applicable Documents shall terminate upon completion of all such Reclamation Actions, the approval thereof by the City and the expiration of any warranty periods set forth in the Reclamation Plans. ARTICLE NINE MISCELLANEOUS 9. The following miscellaneous provision are hereby made a part of this Agreement: 9.1 Restrictions on Use. The Owner, Operator and/or Applicant each agrees for itself, its assigns and every successor in interest to the Project Site, or any part thereof, that the Owner, Operator and/or the Applicant and such successors and assigns shall during the term of this Agreement devote the Project Site to, and in accordance with, the uses specified in this Agreement as amended from time to time. 9.2 Conflicts of Interest. No member of the governing body or other official of the City shall have any financial interest, direct or indirect, in this Agreement, the Project Site or any contract, agreement or other transaction contemplated to occur or be undertaken thereunder or with respect thereto, nor shall any such member of the governing body or other official participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. No member, official or employee of the City shall be personally liable to the Applicant in the event of any default or breach by the City under the terms of this Agreement. 9.3 Titles of Articles and Sections. Any titles of the several parts, articles and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. 9.4 Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and In the case of the Owner is addressed to or delivered personally to: James Zavoral Kathleen Zavoral Tiller Corporation l2 With a copy to the attorney for Tiller Corporation: In the case of the City is addressed to or delivered personally to the City at: City of Scandia 14727 209`h Street Scandia, MN 55073 Attn: City Clerk/Administratar With a copy to the City Attorney for the City: Eckberg, Lammers, Briggs, Wolff&Vierling, PLLP 1809 Northwestern Avenue Stillwater, MN 55082 Attn: Nick Vivian 9.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. 9.6 Modification. If the Applicant is requested by the holder of a Mortgage or by a prospective holder of a prospective Mortgage to amend or supplement this Agreement in any manner whatsoever, the City will, in good faith, consider the request with a view to granting the same unless the City, in its reasonable judgment, concludes that such modification is not in the public interest, or will significantly and undesirably weaken the financial security provided to the interests of the City by the terms and provisions of this Agreement. 9.7 Law Governin�. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. 9.8 Reports. The Owner, Operator and/or the Applicant shall provide the City reports in a timely manner with such information about the Project as the City may reasonably request. 9.9 City Approvals. Any approval, execution of documents, or other action to be taken by the City pursuant to this Agreement, for the purpose of carrying out the terms of this Agreement or far the purpose of determining sufficient performance by Owner, Operator and/or the Applicant under this Agreement, may be made, executed or taken by the Mayor and Clerk of the City without further approval by the City Council. The Mayor and Clerk of the City may,but shall not be required to, consult with other City staff with respect to such matters. 9.10 Rule of Construction. The parties agree that this Agreement is not intended, nor shall it be construed, as a joint venture or other partnership between the City and the Owner, Operator 13 andlor the Applicant or as empowering the Owner, Operator and/or the Applicant to act as an agent of the City. 9.11 Bindin E�ct. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. 14