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