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HomeMy WebLinkAbout6.i. Reqeust by SKB Environmental, Inc. to Extend the Expiration Date of their Interim Use Permit from October 7, 2013 to December 31, 2013, Case 8-18-IUP 4 ROSEMOUNT EXECUTIVE SUMMARY CITY COUNCIL City Council Regular Meeting: October 1, 2013 AGENDA ITEM: Case 8-18-IUP; Request by SKB Environmental, Inc. to Extend the AGENDA SECTION: Expiration Date of their Interim Use New Business Permit from October 7, 2013 to December 31, 2013. PREPARED BY: Eric Zweber, Senior Planner AGENDA NO. ( . ATTACHMENTS: Resolution; SKB Five-Year Interim Use Permit Issued October 7, 2008; Excerpt APPROVED BY: of the August 27 Planning Commission Meeting Minutes. ODJ RECOMMENDED ACTION: Motion to Adopt a Resolution Extending the Interim Use Permit and Attachments Including the Development Commitment to SKB Environmental, Inc. for the Operation of a Waste Facility to December 31, 2013. ISSUE On October 7, 2008, the City Council approved a five-year Interim Use Permit (IUP) to SKB Environmental, Inc. for the operation of an industrial waste and construction&demolition debris landfill at 13425 Courthouse Boulevard with a total capacity of 26,874,103 cubic yards. SKB has submitted a request for a new IUP that would expand their landfill including filling slightly over 9 acres of wetlands. SKB has submitted a wetland replacement plan on September 13 and the comment period for the application expires on October 2. Due to the timing for review of the wetland plan, staff is not recommending taking action on the requested expansion at this time. To ensure that SKB's current IUP does not expire, staff recommends that the City Council approve a resolution extending the expiration date for the current IUP to December 31,2013. The Planning Commission conducted a public hearing on August 27 for the extension request in which no residents spoke. The Planning Commission unanimously recommended approval of the extension. The extension will give staff and SKB sufficient time to evaluate the wetland mitigation plan and any comments received from agencies through the technical advisory panel. SKB will need to continue operating under the conditions of the existing IUP until a new IUP is approved. RECOMMENDATION Staff recommends that the City Council adopt the Resolution to extend the SKB IUP to December 31, 2013. CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2013 - A RESOLUTION TO EXTENDTHE INTERIM USE PERMIT AND ATTACHMENTS INCLUDING THE DEVELOPMENT COMMITMENT TO SKB ENVIRONMENTAL, INC. FOR THE OPERATION OF A WASTE FACILITY TO DECEMBER 31, 2013. WHEREAS, SKB Environmental, Inc. has submitted an application for a five-year interim use permit (IUP) to expand their landfill at 13425 Courthouse Boulevard that includes filling more than 9 acres of wetlands;and WHEREAS, the current SKB IUP expires on October 7,2103; and WHEREAS, SKB has submitted a wetland mitigation plan on September 13,2013 which has a comment period that will expire on October 2, 2013; and WHEREAS, on August 27, 2013, the Planning Commission conducted a Public Hearing regarding extending the IUP and the Planning Commission recommended approval the extension. NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Rosemount hereby extend the existing SKB IUP until December 31, 2013. ADOPTED this 1st day of October, 2013. William H. Droste,Mayor ATTEST: Amy Domeier, City Clerk INTERIM USE PERMIT AGREEMENT REISSUANCE to SKB,INC. MINNESOTA INDUSTRIAL CONTAINMENT FACILITY THIS AGREEMENT, is made this RY 1 day of (+pl r , 2008 by and between SKB Environmental Inc. (hereinafter "SKB") and the City of Rosemount, a Minnesota municipal corporation(hereinafter the "City"). 1. Interim Use Permit. SKB assumed the obligations of an Interim Use Permit (IUP) originally granted by the City on March 19, 1992 (Resolution 2000-29) for the construction, operation, and maintenance of the Minnesota Industrial Containment Facility (MICF). The execution of this Agreement by the parties shall constitute approval and reissuance of the IUP by the City subject to the provision of this Agreement. This Agreement constitutes the reissued IUP, as amended. Compliance with Minnesota Pollution Control Agency Permit No. SW-383, dated May 8, 2008 (MPCA Permit) as renewed and amended, and Dakota County Solid Waste License associated with SW-383 (DC License) as renewed and amended, which are incorporated herein by reference, and conformance with the application of SKB to the City as amended by the plan for finished design approved by the MPCA and Dakota County, are conditions of the IUP. This IUP is issued by the City in accordance with Ordinance B, City of Rosemount Zoning Ordinance, adopted September 19,1996, as amended, including Section 11.3. 2. Term. The MICF Permit Renewal Application for Permit No. 383 Minnesota Industrial Containment Facility, Rosemount, Minnesota Volumes I, II, III, and IV, dated April 2008, (the "MICF Permit Application") and revised plan sheets dated September 24, 2008 in response to the Planning Commission review, details the revised design, construction, operation, closure, corrective actions, and revisions thereto,and financial assurances for a six cell non-hazardous industrial waste containment and construction and demolition facility, with an anticipated operating life of forty one (41) years. Construction, operation, and closure of the individual cells will be phased throughout the operating life of the facility. Consistent with the term of MPCA Permit and the provisions of Ordinance B, this IUP is valid for five years from October 7, 2008, or until terminated or amended by the City. Prior to expiration of the IUP, or to apply for an amended IUP, SKB shall request that the City review and reissue the IUP. To avoid possible termination of the IUP at the time the IUP expires, an application for reissuance of the permit must be submitted no later than 180 calendar days before the expiration date of the permit. The reissuance of the IUP may, at the option of the City,be approved without modification to this Agreement,or the City may require SKB to modify this Agreement. 3. MICF Description. MICF is located on property legally described on attached Exhibit A. The 236-acre site is located between TH55 and 140th Street East, lying easterly of the Chicago and Northwestern Railroad. The location of MICF is illustrated on attached Exhibit B. MICF consists of six (6) containment cells, each occupying a surface area and waste volume capacity as follows: (a) Cell 1 contains 5.1 acres and 338,442 cubic yards; (b) Cell 2 contains 17.1 acres and 1,422,199 cubic yards; (c) Cell 3 contains 39.3 acres and 7,245,253 cubic yards; and (d) Cell 4 contains 12.3 acres and 2,648,950 cubic yards; and (e) Cell 5 contains 41.2 acres and 8,790,300 cubic yards; and (f) Cell 6 contains 36.0 acres and 6,428,959 cubic yards. The anticipated operating life of MICF is forty one (41) years based on a total capacity of 26,874,103 cubic yards. The facility also consists of an office/laboratory building, a container management building, rail and truck unloading facilities, leachate storage tanks and on-site stormwater retention areas.The general site plan is illustrated on attached Exhibit C. This Agreement allows for the construction and maintenance of all the roadways, railways, buildings, leachate storage tanks, stormwater retention structures, sanitary sewer, berming, landscaping, and other ancillary components of MICF. Such construction and maintenance is subject to the provisions of this Agreement, compliance with City ordinances and issuance of necessary permits. Subject to the provisions of Section 14, this Agreement also allows for the construction, operation, closure and post-closure care of cells 1, 2, 3, 4, 5, and 6 and all related earth work and excavation, subject to the provisions of this Agreement, 2 compliance with City ordinances and issuance of necessary permits. 4. Environmental Assessment Worksheet (EAW). The City, as the Responsible Unit of Government(RGU), conducted on EAW in accordance with State Rules for the proposed landfill expansion to create Cell 6. On October 7,2008,the City Council found that the proposed expansion does not have the potential for significant environmental effects and issued a negative declaration of need for an Environmental Impact Statement(EIS). 5. Design Plans and Specifications. SKB shall construct MICF in accordance with plans, specifications and procedures approved by the Minnesota Pollution Control Agency (MPCA), Dakota County(DC) and the City. Landscaping shall be completed in accordance with the plan for finished design approved by the MPCA, DC and the City. Any exceptions to the approved plans and specifications made during construction shall be listed in the Construction Certification provided pursuant to Section 9. SKB shall not make any alteration or addition to MICF that would materially alter the method or effect of disposal without first obtaining the written approval of the City Administrator. 6. Tree Replacement. SKB has provided a landscape and tree replacement plan that meets the Ordinance requirement of 769 replacement trees. The landscaping and tree replacement plans are intended to serve as a guideline, not the exact location of all the replacement trees. City staff will work with SKB to determine beneficial locations for the replacement trees to be planted so long as the fmal replacement continues to meet ordinance requirements. If significant modifications to the tree replacement plan are requested, final approval by the City Council is required. SKB shall submit a financial security acceptable to the City in the amount of$50,000 to guarantee that the trees will be planted and survive a one year warranty period. The financial security will be released on a pro-rated basis as the trees are installed. 7. Quality Assurance/Quality Control. SKB shall construct, operate, and monitor MICF in accordance with the quality assurance/quality control plan(s) approved by MPCA. Any modifications to the quality assurance/quality control plan(s) require the written 3 approval of the City Administrator. 8. Additional Construction Permits. SKB shall obtain all required construction permits, such as grading, excavation, building, plumbing, heating, electrical, and occupancy permits, in accordance with the adopted standards, procedures and requirements of the City. All construction permits for improvements identified in Section 3 and authorized by Issuance of the IUP are administratively issued and administered. 9. Construction Inspection. SKB shall instruct its contractors and subcontractors to contact the City at least two (2) working days in advance of routine inspections (building, plumbing, electrical, etc.) required by the City. SKB shall contact the City at least ten (10)working days in advance of the commencement of construction of liner installations, leachate collection systems, and final cell cover.During hours of construction, SKB shall grant the City and its agent, upon presentation of proper credentials, access to MICF for the purpose of inspections and enforcement related to construction. 10. Sanitary Sewer Connection. MICF shall remain connected to the Metropolitan Interceptor and the Rosemount Wastewater Treatment Plant. SKB will be responsible for all costs resulting from the sewer connection including, but not limited to, the City's engineering,construction,permitting,easement,and legal costs. 11. Construction Certification. Within thirty (30) days of construction completion, SKB shall submit to the City a copy of the construction certification as required by MPCA. 12. Soil Protective Cover. The City acknowledges the ongoing nature of soil cover placement and will not require notice for inspections. The City and its agents may make random inspections throughout the life of MICF. 13. Operations and Maintenance. SKB shall operate and maintain MICF in accordance with the "Operational Plans" (volume III, MICF Permit Application), MPCA Permit, 4 and DC License. No amendments may be made to the "Operational Plans" without the written approval of the City Administrator. 14. Waste Acceptance. SKB shall accept reject, and manage wastes according to the approved "Waste Acceptance Plan" (Volume II MICF Permit Application). SKB shall not dispose of any wastes identified as unacceptable wastes in the "Waste Acceptance Plan", City Zoning Ordinance, DC License or MPCA Permit. No amendments may be made to the "Waste Acceptance Plan"without the written approval of the City Administrator. A. Disposal of Ash/Conditions. Despite the provision of Section 12 above, SKB may dispose of ash at MICF,but only pursuant to the following conditions: 1) SKB shall not use ash as cover over waste when fill heights exceed the height of the perimeter berm at the MICF. 2) During transport of all ash to the MICF, trucks carrying ash must be covered with tarpaulins adequate to limit dusting. 3) SKB shall take adequate steps to prevent dust migration from ash disposal at the MICF. SKB may utilize,but is not limited to, one or more of the following methods for dust control: a) conditioning the ash by addition of moisture; b) handling ash when wind conditions are calm;c)immediately covering ash with cover materials. All methods utilized must be in conformance with all other provisions of the permit. 4) Ash disposal at MICF must not result in leachate discharges to the Rosemount Waste Water Treatment Plant (WWTP) that fail to comply with Industrial Discharge Permit requirements of the MWCC. 5) SKB shall submit with its annual report a summary of the quantity(in tons and cubic yards), type and source of ash deposited into MICF and shall provide an 5 evaluation of the effects of ash on the chemical composition of leachate discharged from the MICF to the Rosemount WWTP. 6) Any ash disposal that requires an Environmental Assessment Worksheet (EAW)and/or an Environmental Impact Statement(EIS)shall not be permitted under this permit without first securing approval by the City Council following completion of the environmental review process. 15. Recycling/ Transfer Facility. SKB shall operate and maintain the Recycling/Transfer Facility in accordance with Section 10,Volume I, MICF Permit Application, subject to the following conditions: A. Any MSW brought to the recycling and transfer facility shall be stored indoors during the entire time that it is on site. B. A vermin control plan for the recycling and transfer facility shall be prepared and approved by City staff that may include the plan being prepared by a pest and vermin control professional and periodic inspections of the facility by a pest or vermin control professional. C. The recycling and transfer facility shall be constructed of a minimum of 40% masonry for each side of the facility. 16. Wetland Mitigation. Wetland mitigation shall comply with the conditions and standards Minnesota Wetland Conservation Act Notice of Wetland Conservation Act Decision/Findings and Conclusions dated October 7,2008. 17. Personnel Training. All SKB personnel involved in the operations and maintenance of MICF shall be trained, qualified, and certified as identified in the "Operational Plans". 6 18. Incident Reporting. For any incident during operations at MICF resulting in emergency shutdown, personal injury, release, explosion or fire, SKB shall notify the City's Police Department by telephone within two (2) hours of the detection of the incident; emergencies shall require immediate notification. SKB shall promptly furnish the City with written reports of the incident,as specified in the plans. 19. General inspections, Records, Reporting, Enforcement. SKB shall, during normal operating hours, grant the City and its agents, upon presentation of proper credentials, access to MICF for the purpose of inspections and enforcement of this agreement. Except for information deemed privileged in accordance with state law, SKB shall allow the City to inspect written documentation pertaining to compliance by SKB with the terms of this IUP. Records pertaining to compliance at MICF shall include but are not limited to, operating records as described in the "Operational Plans", the "Corrective Action Plan", and MPCA Permit; inspection records; monitoring, investigation and modeling data; personnel training records, reports and plans required by regulatory agencies; correspondence with regulatory agencies; and records and correspondence regarding waste characterization, evaluation, management, inspection and acceptance/rejection. All information obtained during the course of inspections shall be used solely by the City or its agents for matters pertaining to this IUP. SKB shall simultaneously submit to the City a copy of all reports required to be submitted to the MPCA, Dakota County, OSHA and any other governmental regulatory agencies,unless such submission is waived in writing by the City Administrator. Copies of all inspection or incident reports received by SKB from the MPCA,Dakota County, OSHA and any other governmental regulatory agencies shall be forwarded to the City within five working days of receipt by SKB, unless forwarding of such reports is waived in writing by the City Administrator. 20. Contingency Actions. SKB shall implement contingency and/or corrective actions as specified in the permit application and MPCA Permit and DC License. SKB shall 7 furnish the City with a copy of the remedial measures report or remedial measures plan, according to the timetable specified in MPCA Permit. No amendments may be made to the Corrective Action Plan" or the "Postclosure Contingency Action Plan" without the written approval of the City Administrator. 21. Monitoring/Reporting. SKB shall monitor MICF in accordance with MPCA Permit. Nothing shall be construed to prevent SKB from exceeding MPCA Permit requirements. 22. Closure. SKB shall close MICF in accordance with the Requirements of MPCA Permit. SKB shall notify the City at least ten(10)working days prior to the date closure activities for each cell are scheduled to begin. SKB shall notify the City at least ninety(90) days prior to the date fmal closure activities for MICF are scheduled to begin. Upon completion of closure of a cell or MICF, SKB shall notify the City to provide the opportunity for a fmal inspection. A copy of the closure certification and supporting documentation that is required by MPCA Permit shall be submitted to the City upon submittal to the MPCA.No amendment may be made to the "Closure Plan" (Volume I, MICF Permit Application), as amended by Exhibit E of this Agreement,without the written approval of the City Administrator. Closure under previously approved plans would have required expenditure of approximately three to four million dollars (expressed in 2003 dollars). Because the closure plans approved by this Agreement will be substantially less expensive and of less benefit to the City, the Development Commitment is amended to provide for the payment to the City of an additional payment of$25,000 per year for 10 years commencing on July 1,2004,to be used by the City for landscaping and natural resource projects. 23. Postclosure. SKB shall provide postclosure care of MICF in accordance with the requirements of MPCA Permit.No amendments may be made to the "Postclosure Plan" (Volume I,MICF Permit Application)without the written approval of the City Administrator. 8 24. Financial Assurances. SKB shall comply with the financial assurance requirements of the MPCA and DC.No reduction in the financial assurance requirements may be made without the written approval of the City Administrator. 25. Development Commitment. The provisions of the Development Commitment, approved by the City Council on October 7,2008 are incorporated by reference as conditions of the IUP and attached as Exhibit D. With respect to the disposal of ash as authorized in Section 14. A. of this Agreement, SKB shall pay the sum of$3.25 per ton, based upon a waste generator charge of$75.00 per ton for the City base service charge,as identified in Section 10b of Exhibit D. The ash disposal charges set forth in this Section are subject to the generator charge adjustments set forth in Section 10c of Exhibit D. In addition, with respect to the disposal of construction and demolition waste, SKB shall pay the sum of$ .85 per cubic yard of construction and demolition waste deposited in the Facility, as identified in Section 10b of Exhibit D. The provisions of this Section and Sections 9, 10, and 11 of Exhibit D shall survive the termination of the Agreement and shall remain in effect for one year following closure of the MICF. Notwithstanding any provision of Section 2 of this Agreement, the City will not require any amendment of the Development Commitment for 15 years from the date of this Agreement. 26. Responsibility for Costs. SKB and the City agree to fund the out-of-pocket expenses incurred by the City in the review and issuance of the reissued IUP, according to the provisions of the Development Commitment. Costs incurred by the City for ongoing monitoring of the operation of MICF and administration of the IUP shall be paid by the City. Notwithstanding any provision of Section 2 of this Agreement, the City will not require any amendment of the Development Commitment for 15 years from the date of this Agreement. 9 27. Hours of Operation and Traffic Control. MICF operations are restricted to the hours of 6: 00 a.m.to 8: 00 p.m.,Monday through Saturday. The hours of operation may be amended by the City Council for reasonable cause. The City Council may impose traffic circulation and routing requirements on the operation of MICF at any time it deems such requirements necessary or convenient in the public interest. Such requirements, which may include restricting trucks entering or leaving MICF to right-in and right-out turning movements to and from CR 42 and TH 55, shall be given in writing and shall specify the days, times or circumstances during which such requirements apply. 28. Indemnification. SKB shall defend, indemnify and save the City, its officers, and employees harmless from and against any and all claims, suits, demands, actions, fines, damages and liabilities, and all costs and expenses related thereto (including, without limitation,reasonable attorneys'fees)arising out of or in any way related to MICF. The provisions of the Section shall survive the termination of this Agreement and shall remain in effect until final resolution of any and all of the various claims and actions made as defined in this Section. 29. Other Laws and regulations. SKB agrees to comply with all other laws, regulation,permits,or licenses that apply to MICF. 30. Severability. If any provision of this Agreement is found to be invalid, such finding shall have no effect on the validity of the remainder of this Agreement. 31. Notice of Violation. Notice of violation of any provision of the IUP shall be given to SKB by the City in writing. Such written notice shall specify the violation and request that the violation be corrected. SKB shall have ten (10) days after receipt of notice to correct the violation. Upon evidence that the health, safety, and welfare of the public is not in jeopardy and upon evidence of diligent cooperation by SKB to correct the violation, the City Administrator may agree in writing to extend the ten-day period. 10 32. Termination. This IUP shall terminate on the happening of any of the following events,whichever first occurs: (1) Five(5)years from the date of October 7,2008; (2) Upon change in the City's zoning regulation that renders the use nonconforming; (3) By the City Council(Council)for violation of any provisions of the IUP, in accordance with the following procedures:Termination shall not occur earlier than ten(10) working days from the time the written notice of termination is served on SKB or, if a hearing is requested, until written notice of the Council action has been served on SKB.Notice to SKB shall be served personally or by registered or certified mail at the address designated in the IUP. Such written notice of termination, the nature of the violation or violations constituting the basis for the termination, the facts that support the conclusion that a violation or violations has occurred and a statement that if SKB desires to appeal, it must within ten (10) working days, exclusive of the day of service, file a request for a hearing. The hearing request shall be in writing stating the grounds for appeal and be served personally or by registered or certified mail on the City by midnight of the tenth (10th)working day following service. Following receipt of a request for a hearing, the City shall set a time and a place for the hearing. HEARINGS: A. If SKB properly requests a hearing on termination of the IUP, such hearing shall be held before the Council, or a hearing examiner as provided below, and shall be open to the public. B. Unless an extension of time is requested by SKB in writing directed to the City and is granted, the hearing will be held no later than forty-five (45) calendar days after the date of service of request for a hearing,exclusive of the date of such service. In any event, such hearing shall be held no later than sixty (60) calendar days after 11 the date of service of request for a hearing,exclusive of the date of such service. C. The city shall mail notice of the hearing to SKB at least fifteen(15)working days prior to the hearing. Such notice shall include a statement of time,place, and nature of hearing. D. Hearing Examiner. The Council may by resolution appoint an individual, to be known as the hearing examiner, to conduct the hearing and to make fmdings of fact, conclusions, and recommendations to the Council. The hearing examiner shall submit the fmdings of fact, conclusions and recommendations to the Council in written report,and the Council may adopt,modify,or reject the report. E. Conduct of the Hearing. SKB may be represented by counsel. The City, SKB, and additional parties, as determined by the Council or hearing examiner, in that order, shall present evidence. All testimony shall be sworn under oath. All parties shall have full opportunity to respond to and present evidence, cross examine witnesses,and present argument. The Council or hearing examiner may also examine witnesses. F. The City shall have the burden of proving its position by a preponderance of the evidence, unless a different burden is provided by substantive law, and all fmdings of fact, conclusions, and decisions by the Council shall be based on evidence presented and matters officially noticed. G. All evidence that possesses probative value, including hearsay, may be admitted if it is the type people are accustomed to rely on in the conduct of their serious affairs. Evidence that is incompetent, irrelevant, immaterial, or unduly repetitious may be excluded. The hearing shall be confined to matters raised in the City's written notice of termination or in SKB's written request for a hearing. 12 H. At the request of the City, SKB, or the hearing examiner, a pre-hearing conference shall be conducted b y the hearing n examiner,g e arruner, if the Council has chosen to use one, or by a designated representative of the Council. The pre-hearing conference shall be held no later than five (5) working days before the hearing. The purpose of the pre-hearing conference is to: (1) Clarify the issues to be determined at the hearing. (2) Provide an opportunity for discovery of all relevant documentary, photographic, or other demonstrative evidence in the possession of each party. The hearing examiner or City's representative may require each party to supply a reasonable number of copies of relevant evidence capable of reproduction. (3) Provide an opportunity for discovery of the full name and address of all witnesses who will be called at the hearing and a brief description of the facts and opinions to which each is expected to testify. If the names and addresses are not known, the party shall describe them thoroughly by job duties and involvement with the facts at issue. I. If a pre-hearing conference is held, evidence not divulged as provided above may be excluded at the hearing. J. If SKB fails to appear at the hearing, it shall forfeit any right to a hearing before the Council or hearing examiner. 33. Amendments. Any changes in the provisions of this Agreement requested by SKB require the express written consent of the City. The City may at its option impose addition requirements for the IUP when changes or amendments in waste management rules, laws, or technology are in the best interest of public health, safety, and welfare, or if there are changes in the MPCA Permit or DC License. The procedure to amend the IUP shall be the same as the procedure required to issue the IUP. 13 34. Enforcement. SKB shall reimburse the City for its reasonable costs (including without limitation engineering and legal fees) incurred in the enforcement of the RIP, that results in a City Council decision to terminate the IUP. Payment of these costs will be in addition to the City Service Charge,provided for in the Development Commitment. 35. Interpretation. In any challenge of the provisions of this Agreement, the interpretation of the provisions shall be liberally construed to protect the public health, safety, and welfare. 36. Assi gnm ent. The IUP is not assignable or transfera b le without the ex p ress written consent of the City.In the event an assignment of the IUP is proposed,the City may at its option impose additional requirements to this Agreement or may require a new agreement. 37. Notice. Notices given pursuant to this Agreement shall be personally delivered or sent by certified mail to City of Rosemount, 2875 145th St. W., Rosemount, Minnesota 55068-0510 and to SKB, Inc., 13425 Courthouse Boulevard, Rosemount, Minnesota 55068. All notices shall be effective upon receipt. 38. Recording. This Agreement shall run with the subject land and may be recorded in the Dakota County Recorder's Office. 14 SKB ENVIRONMENTAL,INC. —, /,.,, By: Its: /1!1-4 /2Lf1/C7- And by: / Qoyetag/ Its: V f L,,,,,z STATE OF MINNESOTA ) )ss. COUNT OF RAw.s.e 1 ) zoo 9 The foregoing instrument was acknowledged before me this t�t day of 1(�'MO N , �8, by e.c( -4 b.(oara and TA1%„ o w•k, , the P✓Y s t.dc�F- and \ Ace Pry b 1 ct Q,.4- , respectively, of SKB Environmental, Inc., a Minnesota corporation, on behalf of the corporation. 4 - 1 / /- Notary-; blic i GERALYN M. NEELEY NOTARY PUBLIC-MINNESOTA � ' ,:�Trnssicr:Jokes Jan.31,201 / • CITY OF ' *S * to T By: z,,.._, .A(,..4 . r A Its: Mayor And by: jj(I YInf i Its: Clerk STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this 1; \day of Ny-1,q , 2008, by William Droste and Amy Domeier, the Mayor and Clerk, respectively, of the City of Rosemount,a Minnesota municipal corporation,on behalf of the corporation. 4 r i P' lyi��.k.i_ A.A. 1/l—... Not. Pubhi ti KATHIE J.HANSON ti 1 NOTARY PUBL IC-MINNESOTA Q My Commission E spires Jan.31,2010 15 EXHIBIT A That part of the E1/2 of the SE1/4 of Section 19,the NW of the SW '/4 and the SW'A of the NW'/4 of Section 20, all in Township 115 North,Range 18 West of the Fifth Principal Meridian, Dakota County, Minnesota,bounded and described as follows: Commencing at the West Quarter section line thereof, a distance of 347.4 feet to a post, the East and West Quarter Section line thereof, a distance of 347.4 feet to a post,said post being the point of beginning of the parcel of land herein described;thence deflecting 135 degrees 41 minutes to the right running Southwesterly along a straight line parallel with and distant 170 feet Southeasterly,measured at right angles,from the center line of the tangent portion of the Chicago and North Western Transportation Company (formerly the Chicago Great Western Railway Company)belt line track to the West line of said East Half of the SE '/4 of Section 19;thence Northerly along said West line of the East Half of the SE '/4 of Section 19 to the center line of said belt line track;then Northeasterly along said belt line track center line to a point in the Southwesterly right-of-way line of Minnesota Trunk Highway No. 55; thence Southeasterly along said right-of-way line to an iron monument, said monument being 170 feet Southeasterly,measured at right angles, from the center line of said belt line track;thence Southwesterly parallel with said belt line track center line a distance of 1009.2 feet to the point of beginning. And That part of the E1/2 of the SE1/4 of Section 19,Township 115 North,Range 18 West of the fifth Principal Meridian,which lines southeasterly of the following described line: Commencing at the West Quarter corner of said Section 20,Township and Range aforesaid; thence easterly along the east and west quarter section line thereof a distance of 347.4 feet to a post, which post is the point of beginning;thence deflecting 135 degrees 41 minutes to the right running southwesterly on a straight line parallel to and 170 feet distance from,measured at right angles,the center line of the Chicago and North Western Railway Company(formerly Chicago Great Western Railway Company)belt line track, to the west line of the SE1/4 of the SE1/4 of said Section 19 and there terminating. Subject to existing public roads and all easements of record. And Beginning at the SE corner of the SW 'A of the NW '/4 of Section 20,Township 115, Range 18 west of the Fifth Principal Meridian; thence west along the south line of said quarter section to a point which is 347.4 feet east of the southwest corner of said SW1/4 of the NW 1/4 of Section 20;thence northeasterly in a straight line to a point on the southerly line of State Trunk Highway No. 55, which point is 203.25 feet southeasterly of a point where the center line of the United States Government Road intersects the southerly line of Highway 55; thence southeasterly along the southerly line of said State Highway No. 55,to the east line of said SW1/4 of the NW1/4 of said Section 20; thence south along the said east line to the place of beginning,all according to the Government Survey thereof. Subject to existing public roads and all easements of record. And All that part of the NW1/4 of the SE1/4 of Section 20,Township 115 North,Range 18 West,described as follows: Beginning at a point on the North and South Quarter section line of said Section 20, 330 feet South of the intersection of said Quarter line with the Southerly right-of-way line of S.A.R.No. 55,thence North along said Quarter line to the center of said highway,thence Southeasterly along said centerline 660 feet,thence South and parallel with said Quarter line to a point 330 feet South of the Southerly right-of-way line of said highway,thence Northeasterly 652.81 feet to the point of beginning, according to the Government Survey thereof. And All of the SE1/4 of the NW1/4 and the E1/2 of the SW1/4 lying Southerly of S.T.H.No. 55, Section 20,Township 115,Range 18. Also that part of the E1/2 of the NW1/4 of Section 29, Township 115 North,Range 18 West of the Fifth Principal Meridian which lies northerly of County Road 38. Subject all easements of record. And That part of the SE1/4 of the NW1/4 of Section 20,Township 115 North,Range 18 West, Dakota County,Minnesota,described as follows: Beginning at the point of intersection of the west line of said SE1/4 of the NW1/4 with the southerly right of way line of the St. Paul Southern Electric Railway as it was located on January 1, 1931;thence run south along said west line of 293.13 feet;thence run easterly at an angle of 76 degrees 30 minutes 00 seconds to said west line (measured from north to east)for 305 feet to an intersection with the southerly line of said railway;thence run westerly along the southerly line of said railway for 372 feet to the point of beginning; which lies southerly of a line run parallel with and distant 50 feet southwesterly of Line 1 described below: Beginning at a point on the west line of said Section 30,distant 1117 feet south of the northwest corner thereof; thence run southeasterly at an angle of 53 degrees 02 minutes 00 seconds from said west section line(measured from south to east) for 3000 feet and there terminating; containing 0.65 acre,more or less. And The W1/2 of the S W 1/4 of Section 20, Township 115,Range 18,according to the Government Survey thereof,excepting therefrom the part lying northwesterly of the following described line: Commencing at the west quarter corner of said Section 20; thence easterly along the east and west quarter section line thereof,347.4 feet to a post, which post in the point of beginning;thence deflecting 135 degrees 41 minutes to the right running southwesterly on a straight line,parallel to and 170 feet distant from, measured at right angles,the centerline of the tangent portion of the Chicago and North Western Railway Company(formerly Chicago Great Western Railway Company)belt line track,to the west line of said Section 20 and there terminating. EXf6IT6 ` SKB Environmental i 441411114441\441 /AN., N-NJM • ‘110011111111.11■. \2 i . _ / , IL I / 0 E{ S 1'(6 f,\S .\: [4 �,, \ , . c uN7r Roith5 42. ✓, ( / — . __, N L Copyright 2008, Dakota County-Map Date: July 7,2008 1 \1 \�1 ` 1.r. .<1-\',44\g`S' \.., Ufl !D; r a � » z i I ! 1.10 t. 'tit ^'T \\� 3 9 , ! I! 0 I/ ° t, r ". g g \ ' i\ it �; }b g . x. `\;• i/'" //7- 7'� `r_4- -r /• \�i'� ",'`' `\ ., . • , .t,gs. '.--.. . • • o' .., t;;EIP 1,2 \ ` T�. AymnC NSnQ� • 0..., .. • �\ ,\ ./ it-1 •\ Q0.•. �`�• , ' - ./, 1.\\ , • // \'• c\ i maw. • / S r n {j? ♦ Cyr P \ '....* P i; 1///,"/" \\\:...7\.,..F.r. ■-1, _--',. st : ....,;... li •.N.,...">- :.:: ---,,,,,,..:K. '------::- •/ .� N.,,,,,:.:,`.,.., . ym \ t t )2i1 N-' \, \j 4-' � ;, , m / • 4Q \ \\\\ `• �- \\\ v2S'\ iIi: `. if Itttt' /-/ ''''-'\„, ..›.'\-.,\ ''.•:....' ‘.=s ''''.,•1,:c.■:•.;:..-...----,.....___7;!--i • ..•,\. \ -4S 0 .-. ®. ,N.• _ tO spa mN r-eo - /: ‘,>‘ ‘.. / / /:: ,� s ue' m s1°`\, RA f1LT •I.1• 1' I' -: \ Aw•r7nr ni 1 ..23w2:::•• 1 - • •Y • s g :kb ILIO c'"i O /•1• 1.1' i r' NI:\\< o •• N • I _ �1 n �� DESCRIPTION 1111 ° PERMIT REISSUANCE ADDENDUM ;,"'w°�'"' �'^ °"l RECYCLING&TRANSFER FACILITY •.. Foth : : 4 :�• ■ , ..rrra.a...e.rr.as yg,N �' • SI®ROSEMOIJNT R.,e.Rw.r Fors Nwawuaq.w en✓•nroswf.ice ig'" 4 ,4,.. . — INDUSTRIAL WASTE liatag,}1,9�iCA.a.. o............oam rw Raven wcrs n a.rm.r mea o4...Non warmr nos om.or w sr i nr'r UT ni rE NSOT.COUNTY IroSEwWT, utucsor. ...1.0 IM 6�me o .cnnr s toe uwnxan®M. EY f tr AMENDED AND RESTATED DEVELOPMENT COMMITMENT BY AND BETWEEN • SKB ENVIRONMENTAL, INC. AND • CITY OF ROSEMOUNT SKB ENVIRONMENTAL, INC., a corporation organized under the laws of the State of Minnesota (hereinafter referred to as "SKB"),makes the following amended and restated representations and commitments to the CITY OF ROSEMOUNT, a Minnesota municipal corporation located in Dakota County,Minnesota (hereinafter referred to as "City"),as of the • date of execution hereof by both parties. WITNESSETH: 1. Project-Facility. SKB proposes to locate in the City a non-hazardous industrial waste containment facility(the "Facility" or the "Project") as generally described in both the Environmental Assessment Report dated November 28, 1988,prepared by Environmental Engineering and Management,Ltd., a copy of which Environmental Assessment Report (herein referred to "EAR") has been provided to the City as well as the Preliminary Permit Application dated April, 1989 which was also prepared by Environmental Engineering and Management, Ltd. The Facility will be located on approximately 240 acres of land (the "Property") as is more specifically described on the attached Exhibit A,which is incorporated herein by reference. The proposed Facility is a "state of the art"project and will allow containing of non-hazardous waste in a manner vastly superior to the way these wastes are presently being disposed of in Dakota County. 2. Approvals. It is understood that various governmental approvals are required for the Project including approvals at the federal, state,and regional as well as local level. 3. Economic Benefits. The Facility,in addition to providing a"state of the art" facility for the handling of non-hazardous industrial waste,will also provide economic incentives from SKB as delineated in this Commitment to the City as required in conjunction with permits and approvals required under the City Zoning Ordinance. NOW,THEREFORE, SKB hereby represents and commits to the City as follows: • 4. City Approval. The commitments herein contained are subject to SKB obtaining all governmental approvals required for the Project, including but not limited to all permits, authorizations and approvals from the City required to allow construction, operation and maintenance of the Facility. The commitments are further conditioned upon the issuance, existence and continuance of all permits, approvals and authorizations required to allow construction, operation and maintenance of said Facility. 1 5. SKB to Proceed. SKB agrees to construct, operate and maintain the Facility on all or a portion of the Property, as outlined in the EAR, subject to obtaining all necessary approvals and subject to such modification,if any,as may be required,and agreed to by SKB resulting from reasonable mandates from other approving authorities. 6. Tax Increment Financing. SKB understands the capabilities of the City or its Port Authority to establish and operate TAX INCREMENT DISTRICTS in their program to expand industrial and commercial development in the City. In an effort to assist in this effort SKB will not object to the City or its Port Authority in establishment of such a district to include the Property. 7. Park Dedication Fees. SKB recognized the City of Rosemount's Park and Recreation development program and the methods the City uses to fund this program by collection of"Park Dedication Fees". SKB also recognized the equivalent payment which would be required to be paid if their Project would be required to go through a platting process. Because the City could require this platting and a specific park dedication fee would be required, although the City is not requiring that the Property be platted, SKB voluntarily made a non- refundable payment of$85,000 in lieu of the park dedication fee.This was the amount of ten (10) acres equivalent dedication or ten(10) times the current per acre value for this purpose. (1989 value of$8,500 per acre = $85,000). The payment was made in five (5) equal annual installments of$17,000 each. The first installment was due on the date the City issues a permit for the Project and subsequent installments were due annually thereafter on the same day each year for the next four (4)years. If SKB had decided to pay the fee in installments,it agreed to furnish the City an irrevocable letter of credit to guarantee payment of the unpaid portion of the fee. The bank issuing the letter of credit and the form of the letter of credit was approved by the City. The City acknowledges that this condition has been met. 8. Option to Purchase. At such time as the storage cells are completed and closed, and the Facility will no longer be accepting waste,the City will have an option for a period of 12 months immediately subsequent to closing of the last cell, to purchase that portion of the Property not required for closure and maintenance of the Facility. Said option right will terminate,if not exercised prior thereto, 12 months after closure of the last cell. The purchase price will be an amount equal to 85 percent of the value of the Property being purchased,as said • value is determined by appraisal. SKB shall select one appraiser familiar with real estate values in Dakota County and the City shall select one appraiser familiar with the real estate values in Dakota County. The two appraisers shall select a third appraiser and the three appraisers shall proceed to determine the fair market value of the Property. If the two appraisers selected by the City and SKB are unable to agree to the third appraiser, they shall apply to the Chief Judge of the District Court in Dakota County,Minnesota and the Chief Judge shall select the third appraiser. Any valuation agreed upon by a majority of the appraisers shall be accepted as final by both SKB and the City. Payment shall be in cash, at closing,unless otherwise agreed by the parties with the Property being sold in an "as is" condition, free of all encumbrances and with real estate taxes due in the year of closing pro-rated to date of closing. SKB shall provide to the City an Abstract of Title or Registered Property Certificate, evidencing marketable title, or title insurance from a title insurance company acceptable to the City. SKIT shall have the right to determine which acreage is not required for closure and maintenance and is therefore subject to the terms of this option,which determination shall be made at the time of closure of the last cell. Upon closure of the last cell, SKIS shall notify the City in writing of this event,receipt of which 2 notice shall commence the 12 month option period. Notice of exercise of the option, during the option term shall be in writing delivered to SKB. Closing shall be within 90 days of notice of exercise of the option. The City may, during the term of the option, exercise same and purchase the Property,but shall not be under any obligation to do so. If requested by the City,SKB will execute and deliver to the City a real estate option in standard recordable form, setting forth the terms of this option. 9. City Service Charge. a. Basis for Charge. SKB recognizes certain aspects of the prior-approval review,placement and operation of a Facility of the nature proposed in a residential/rural type city has required and will further require the City to expend funds for the pre-approval review and the ongoing monitoring of the operation of the Facility, the administration of the permit for the Facility and interaction with SKB and state, county and federal agencies. The City may incur other costs associated with the Facility and its impact on the City. b. Base Service Charge. To offset those costs, SKB will, for each ton of waste deposited into the Facility, pay the City a City Service Charge. The City Service Charge that shall initially be imposed, commencing with the first day the Facility accepts waste, shall be computed at the rate of$2.75 per ton for all industrial waste except municipal solid waste (MSW) incinerator ash and $3.25 per ton for MSW incinerator ash, for each ton accepted and disposed of in the Facility. Tonnage computation for the City Service Charge shall be the same as for the Waste Generation Charge. This City Service Charge shall be subject to adjustment, from time to tune,and offset, as hereinafter provided. In addition, SKB will pay a City Service Charge of$.85 per cubic yard of construction and demolition waste deposited in the Facility. The $.85 City Service Charge shall be paid monthly on an estimated in place volume,and verified and adjusted based upon a certified annual survey (the certified survey is a component of the annual report required by the Minnesota Pollution Control Agency). Payments shall be made monthly to the City at 2875 145th Street West,Rosemount,Minnesota 55068, or such other location designated in writing by the City. Payment for each month shall be due by the 15`x' day of the following month. c. Generator Charge Adjustment. At the present time,it is anticipated that the initial per ton fee charged by SKB to waste generators ("Waste Generator Charge")will be $75.00 per ton, and the City Service Charge payable to the City,is predicated on that anticipated Waste Generator Charge. If the Waste Generator Charge is increased or decreased by SKB (other than as a result of an increase in amounts due governmental entities after the Facility commences operation, such as special taxes, permit fees, etc.,which governmentally required increases shall not impact the per ton charge due the City pursuant to this paragraph) then die City Service Charge shall be adjusted prorate. Accordingly and by way of example,if there is a ten (10) percent increase in the Waste Generator Charge (other than governmentally mandated) then the City Service Charge shall likewise be increased by ten (10) percent. Adjustment based on this subparagraph (c) shall be applied to the previously existing City Service Charge, before the following adjustments or offsets. d. Adjustment for Future Required,Legislatively Imposed, or Negotiated Payments. If there are future required, negotiated or legislatively mandated payments due to the City by SKB (other than as provided herein) the intent of which is to respond to impacts 3 resulting from the Facility, such payments shall be an offset against and a reduction of the amounts due the City pursuant to this paragraph. Accordingly and by way of example if the Minnesota Legislature or other governmental entity with authority to do so mandates that SKB shall pay the City a tax, or other imposition, the amount of said tax or imposition shall reduce the City Service Charge,dollar for dollar, due pursuant to this paragraph. e. Consultant Offset. To assist the City in evaluating the Application of SKB for necessary rezoning and permit issuance, the City has, and will hereafter retain outside consultants (e.g. legal, environmental, etc.) to assist it. SKB has agreed to reimburse the City for these outside consultant expenses,pursuant to a letter agreement dated in August 1989. Pursuant to said letter agreement, SKB has deposited funds with the City and may hereafter deposit additional funds with the City,to reimburse the City for outside consultant expenses. At the time of City issuance of the last permit required by SKB to construct the Facility, the amount of the outside consultant expense incurred by the City will be determined and will be paid by SKB to the City unless these funds advanced by SKB to the City exceed said amount,in which case said excess shall be returned to SKB. The total amount expended or incurred by the City up to the time of issuance of the last permit(the "Consultant Offset" amount) will be an offset against the City Service Charge due the City by SK pursuant to the preceding provisions of this paragraph. Said Consultant Offset amount will reduce the per ton City Service Charge at the rate of 25 cents per ton,until the total Consultant Offset amount has been eliminated. Accordingly and by way of example if the total consultant charge amount is $50,000, the amount due by SKB to the City for the first 200,000 tons deposited in the Facility,determined in accordance with the foregoing subparagraphs, shall be reduced by 25 cents per ton. f. The City agrees that the funds provided pursuant to this paragraph will not be used in any manner directly competitive to the business operations of SKB at the Facility. Nothing in this provision shall be construed to limit the City of Rosemount's participation in recycling efforts. g. SKB will pay to the City the amount of $25,000 per year for 10 years commencing on July 1, 2004, to be used by the City for landscaping and natural resource projects. 10. City of Rosemount—SKB Environmental Trust Fund. a. Establishment. SKB in conjunction with the City will establish a Trust Fund which shall be known as the "City of Rosemount—SKB Environmental Trust Fund". The Trust Fund will be administered by a board of trustees made up of five (5) persons, three (3) of whom will be designated by the City and two (2) by SKB. SKIT will make a payment of $4.00 per ton (subject to adjustment as hereinafter provided) for each ton of waste accepted and disposed of in the Facility during the years that the Facility is accepting waste to the Trust Fund and to the City as hereinafter provided (the"Trust/City Payment"). Tonnage computation for the Trust/City Payment shall be the same as for the Waste Generator Charge. Payments to the Trust and the City shall be made monthly at such place designated in writing by City and the Trustees. Payments for each month shall be due by the 15`x' day of the following month. 4 b. Use. The principal and income of the Trust may only be used at the determination of the trustees as set out in the Trust agreement. Detailed activity of the Trust Fund shall be set forth on the Trust document, a copy of which is attached hereto as Exhibit B and incorporated herein by reference. Payments made to the City may be used for any lawful • public purpose. c. Adjustment Based on Waste Generator Charge. At the present time,it is anticipated that the initial per ton fee charged to waste generators ("Waste Generator Charge") will be $75.00 per ton, and the Trust/City Payment payable to the Trust and the City,is predicated on that anticipated Waste Generator Charge. If the Waste Generator Charge is increased or decreased by SKB (other than a result of an increase in amounts due governmental entities after the Facility commences operation, such as permit fees, etc., which governmentally required increases shall not impact the per ton charge due the City pursuant to this paragraph) then the Trust/City Payment shall be adjusted pro-rata. Accordingly, and by way of example,if there is a ten (10) percent increase in the Waste Generator Charge (other than governmentally mandated) then the Trust/City Payment shall likewise be increased by ten (10) percent. Adjustment based on this subparagraph (c) shall be applied to the previously existing Trust/City Payment, before the following adjustments or offsets. d. The City agrees that the funds provided pursuant to this paragraph will not be used in any manner directly competitive to the business operations of SKB at the Facility. Nothing in this provision shall be construed to limit the City of Rosemount's participation in recycling efforts. e. Prior to January 1, 2009, the Trust/City Payment shall be paid to the Trust. On and after January 1, 2009, 50%of the Trust/City Payment shall be paid to the City and 50% of the Trust/City Payment shall be paid to the Trust until payments to the Trust are terminated as follows: Commencing on the first January first occurring after the value of the Trust assets equals or exceeds One Million Five Hundred Thousand Dollars ($1,500,000) and thereafter,payments of the Trust/City Payment to the Trust shall cease and 100% of the Trust/City Payment shall be paid to the City. Payments made under this Section 10 to the Trust fund before that date will be used by the trustees in accordance with the Trust Agreement. f. After December 31, 2011,representatives of the City and SKB will meet to consider whether the allocation of the Trust/City Payment continues to best meet the needs of the community; however, the payment of the Trust/City Payments will not be changed without the mutual consent of the City and SKB. 11. Miscellaneous. a. The City will be given access to operating records of SKB for the purpose of verifying the accuracy of the amounts reported to have been accepted at the Facility. b. SKB agrees that any permit issued by the City for the Project may incorporate the provisions of this Commitment. 5 c. SKB agrees not to sell, assign, or transfer its interest in the Facility or Property without the prior consent of the City. It is further understood that the City may not assign rights or obligations of the City hereunder without prior written consent of SKB. d. SKB will continue to honor the commitment made in this Development Commitment as long as the Project continues to operate in the City of Rosemount. 12. Summary. SKB feels it is in the best interest of the City as well as the region and the state that a Facility be constructed consistent with "state of the art" technical knowledge to accommodate non-hazardous industrial waste. The proposed Facility is a "state of the art" project and will allow containment of said non-hazardous waste in a manner vastly superior to the manner in which said wastes are presently being disposed of in Dakota County. Portions of the Property have been designated by the Minnesota Pollution Control Agency as "intrinsically suitable" for such a Facility. Thus, SKB agrees to use their best efforts to accomplish all necessary steps to allow the construction and operation of the Facility for the good of all persons concerned. This Development Commitment is executed by SKIT Environmental, Inc. this tik. day of OCfifb,r ,2008. SKB ENVIRONMENTAL, INC. By %c / C/ f 1,41 ._ Its 14d0,4a.W4K7- Subject to the above provisions, the City will cooperate with SKB in the permit application process and provide reasonable assistance to SKB in seeking all necessary approvals. Accepted and agreed to thirst''\ day ofr , 2008. CITY OF RO ' MOUN 4 By __ _ w�s:_ _ __1-��� Its WNW- 1 ai And By AA 1 A! /A Its VIP • 6 EXHIBIT A Description of Property That part of the E1/2 of the SE1/4 of Section 19, the NW of the SW 1/4 and the SW 1/4 of the NW 1/4 of Section 20,all in Township 115 North,Range 18 West of the Fifth Principal Meridian, Dakota County,Minnesota,bounded and described as follows: Commencing at the West Quarter section line thereof,a distance of 347.4 feet to a post, the East and West Quarter Section line thereof,a distance of 347.4 feet to a post,said post being the point of beginning of the parcel of land herein described;thence deflecting 135 degrees 41 minutes to the right running Southwesterly along a.straight line parallel with and distant 170 feet Southeasterly,measured at right angles, from the center line of the tangent portion of the Chicago and North Western Transportation Company(formerly the Chicago Great Western Railway Company) belt line track to the West line of said East Half of the SE 1/4 of Section 19;thence Northerly along said\Vest line of the East Half of the SE 1/4 of Section 19 to the center line of said belt line track;then Northeasterly along said belt line track center line to a point in the Southwesterly right-of-way line of Minnesota Trunk Highway No. 55; thence Southeasterly along said right-of-way line to an iron monument, said monument being 170 feet Southeasterly,measured at right angles, from the center line of said belt line track; thence Southwesterly parallel with said belt line track center line a distance of 1009.2 feet to the point of beginning. And That part of the E1/2 of the SE1/4 of Section 19,Township 115 North,Range 18 West of the fifth Principal Meridian,which lines southeasterly of the following described line: Commencing at the West Quarter corner of said Section 20,Township and Range aforesaid;thence easterly along the east and west quarter section line thereof a distance of 347.4 feet to a post,which post is the point of beginning; thence deflecting 135 degrees 41 minutes to the right running southwesterly on a straight line parallel to and 170 feet distance from,measured at right angles, the center line of the Chicago and North Western Railway Company(formerly Chicago Great Western Railway Company) belt line track, to the west line of the SE1/4 of the SE1/4 of said Section 19 and there terminating. Subject to existing public roads and all easements of record. And Beginning at the SE corner of the SW 1/4 of the NW 1/4 of Section 20,Township 115,Range 18 west of the Fifth Principal Meridian;thence west along the south line of said quarter section to a point which is 347.4 feet east of the southwest corner of said SW1/4 of the NW1/4 of Section 20;thence northeasterly in a straight line to a point on the southerly line of State Trunk Highway No. 55,which point is 203.25 feet southeasterly of a point where the center line of the United States Government Road intersects the southerly line of Highway 55; thence southeasterly along the southerly line of said State Highway No. 55, to the east line of said SW1/4 of the NW1/4 of said Section 20; thence south along the said east line to the place of beginning,all according to the Government Survey thereof. Subject to existing public roads and all easements of record. And 7 All that part of the NW1/4 of the SE1/4 of Section 20,Township 115 North,Range 18 West, described as follows: Beginning at a point on the North and South Quarter section line of said Section 20,330 feet South of the intersection of said Quarter line with the Southerly right-of-way line of S.A.R.No. 55, thence North along said Quarter line to the center of said highway,thence Southeasterly along said centerline 660 feet, thence South and parallel with said Quarter line to a point 330 feet South of the Southerly right-of-way line of said highway, thence Northeasterly 652.81 feet to the point of beginning,according to the Government Survey thereof. And All of the SE1/4 of the NW1/4 and the E1/2 of the SW1/4 lying Southerly of S.T.H. No. 55, Section 20,Township 115,Range 18. Also that part of the El/2 of the NW1/4 of Section 29, Township 115 North,Range 18 West of the Fifth Principal Meridian which lies northerly of County Road 38. Subject all easements of record. And That part of the SE1/4 of the NW1/4 of Section 20,Township 115 North,Range 18 West, Dakota County,Minnesota,described as follows: Beginning at the point of intersection of the • west line of said SE1/4 of the NW1/4 with the southerly right of way line of the St. Paul Southern Electric Railway as it was located on January 1, 1931;thence run south along said west line of 293.13 feet;thence run easterly at an angle of 76 degrees 30 minutes 00 seconds to said west line (measured from north to east) for 305 feet to an intersection with the southerly line of said railway; thence run westerly along the southerly line of said railway for 372 feet to the point of beginning;which lies southerly of a line run parallel with and distant 50 feet southwesterly of Line 1 described below: Beginning at a point on the west line of said Section 30,distant 1117 feet south of the northwest corner thereof;thence run southeasterly at an angle of 53 degrees 02 minutes 00 seconds from said west section line(measured from south to east) for 3000 feet and there terminating; containing 0.65 acre,more or less. And The W1/2 of the SW1/4 of Section 20,Township 115,Range 18,according to the Government Survey thereof,excepting therefrom the part lying northwesterly of the following described line: Commencing at the west quarter corner of said Section 20;thence easterly along the east and west quarter section line thereof,347.4 feet to a post,which post in the point of beginning; thence deflecting 135 degrees 41 minutes to the right running southwesterly on a straight line, parallel to and 170 feet distant from,measured at right angles, the centerline of the tangent portion of the Chicago and North Western Railway Company(formerly Chicago Great Western Railway Company) belt line track,to the west line of said Section 20 and there terminating. 8 EXHIBIT B City of Rosemount—SKB Environmental Trust Fund 9 CITY OF ROSEMOUNT—SKB ENVIRONMENTAL TRUST FUND This Restated Trust Agreement made this 7 th day of October, 2008,by and between SKB ENVIRONMENTAL, INC., a corporation organized under the laws of the State of Minnesota (hereinafter referred to as "Donor"), and City of Rosemount (hereinafter collectively referred to as "Trustees"). 1. Purpose of Trust. This trust is created and shall be operated exclusively for the benefit of the citizens of Rosemount and the City of Rosemount,including,but not limited to, the following purposes: (a) To provide for the construction and maintenance of facilities for public recreation; (b) To further community,industrial,governmental and physical planning for the City of Rosemount and all other lawful public purposes of the City; (c) To improve living and working conditions within the City of Rosemount for the general welfare of the citizens of Rosemount; (d) To further public educational opportunities,whether by establishing programs or facilities devoted to educational purposes, or the furnishing of educational scholarships;and (e) To provide for the charitable needs of the citizens of Rosemount and the City of Rosemount,within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, and amendments supplementary thereto. This trust is formed for and shall be operated exclusively for such purposes and in such a manner as shall make this trust tax exempt and the donations to it deductible from taxable income to the extent allowed by the provisions of the Internal Revenue Code of 1986 and such other applicable legislation and regulations as they now exist or as they may be amended. No part of the trust fund shall insure to the benefit of any private shareholder or individual, and no part of the activities of this trust shall consist of carrying on propaganda, or otherwise attempting, to influence legislation, or of participating in,or intervening in (including the publication or distribution of statements), any political campaign on behalf of any candidate for public office. Notwithstanding any other provisions, this trust shall not conduct or carry on any activities not permitted to be conducted or carried on by any organization which is tax exempt or by an organization to which donations are deductible from taxable income to the extent allowed by the provisions of the Internal Revenue Code and other applicable legislation and regulations as they now exist or may hereafter be amended. 2. Name of Trust. The name of this trust shall be the City of Rosemount- SKB Environmental Trust Fund,and so far as practicable, the Trustees shall conduct the activities of the trust in that name. 1 • 3. Trust Fund. The Trustees shall accept only donations made in cash from the Donor pursuant to the terms and provisions of that certain Interim Use Permit dated November 10, 1992 (originally issued by the City of Rosemount to USPCI, Inc.), as amended from time to time. All donations so received, together with the income derived therefrom, herein referred to as the trust fund, shall be held,managed, administered and paid out by the Trustees pursuant to the terms of this Trust Agreement. 4. Use of the Trust. The Trustees shall apply the trust fund, at such times,in such manner, and in such amounts as they may determine, to the uses and purposes set forth in paragraph 1, or they may make distributions to the City of Rosemount or to other charitable organizations to be used within the City of Rosemount, for the uses and purposes set forth in paragraph 1. For this purpose,the term"charitable organizations" shall mean a corporation, trust or community chest, fund or foundation, created or organized in the United States or under the law of the United States or any state, organized and operated exclusively for charitable and educational purposes,no part of the net earnings of which insures to the benefit of any private shareholder or individual, and no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. Subject to the foregoing limitations: (a) During calendar year 2009,the Trustees shall distribute trust funds in an amount equal to fifty percent (50%) of the donations received from the Donor during 2008 to the City of Rosemount to be used by the City of Rosemount for any lawful public purpose,which trust funds shall be distributed no later than January 31,2009. Total distributions from the Trust during 2009 shall not exceed One Hundred Thousand Dollars ($100,000), excluding the amount distributed to the City; (b) During calendar year 2010,total distributions from the Trust shall not exceed Eighty Thousand Dollars ($80,000). Any part of such distributions may be,but is not required to be,made to the City; (c) Trustees will endeavor to so manage the Trust assets as to maintain a Trust value, in assets invested as the Board deems prudent and meets the objective of the Fund, of at least One Million Five Hundred Thousand Dollars ($1,500,000) as of December 31, 2010, and at all times thereafter. Each year, commencing on December 31, 2010, the Trustees will determine the value of the Trust assets as of December 31" of that year. (d) Distributions for each calendar year commencing in 2011 and thereafter shall be made as follows: (i) If the value of the Trust assets at any time is equal to or less than One Million Five Hundred Thousand Dollars ($1,500,000), no distributions will be made until the value increases to such amount. (u) If the value of the Trust assets exceed One Million Five Hundred Thousand Dollars ($1,500,000), the Trustees shall make distributions as follows: 2 Up to Sixty-Two Thousand Dollars ($62,000) may be distributed during the calendar year in accordance with this instrument to parties or entities other than the City. Any distribution in excess of Sixty-Two Thousand Dollars ($62,000) in any calendar year shall be made to the City. • An amount equal to any excess of the fund value over One Million Five Hundred Twenty-Five Thousand Dollars ($1,525,000) on any December 31'shall be paid to the City by the following January 31". In no event shall the Trustees be required after January 31, 2009,to distribute sums that will reduce the value of the Trust assets to an amount less than One Million Five Hundred Thousand Dollars ($1,500,000). Any other provisions of this Trust Agreement notwithstanding, the Trustees shall distribute the trust income for each taxable year at such time and in such manner as not to become subject to the tax on undistributed income imposed by Section 4942 of the Internal Revenue Code of 1986, or corresponding provisions of any subsequent federal tax laws. 5. Action of Trustees. The Trustees shall meet at least three (3) times during each calendar year at such times and places as they may from time to time designate. Thirty (30) days written notice of all meetings of the Trustees shall be given to each Trustee, except where the meeting is an adjourned meeting and the date, time and place of the meeting are decided at the time of adjournment. Written notice shall contain the time and place of the meeting and shall be signed by at least two (2) trustees. Three (3)Trustees must be present at a duly noticed meeting to constitute a quorum for the transaction of trust business. All actions of the Trustees shall be taken by resolution at a duly noticed meeting or by a written record without a meeting with the unanimous consent of all Trustees. The Trustees shall appoint from among themselves a secretary,who shall keep a record of all actions of the Trustees. All actions of the Trustees, including,but not limited to distribution of income, shall require the affirmative vote of a majority of the Trustees then in office. Any instrument required to be executed by this trust shall be valid if executed in the name of this trust by three (3) of the Trustees. A copy of any resolution or action taken by the Trustees, certified by any three (3) of the Trustees, may be relied upon by any person dealing with this trust. No person shall be required to see to the application of any money, securities or other property paid or delivered to the Trustees, or to inquire into any action, decision or authority of the Trustees. 6. Trustees'Powers. In the administration of this trust and of the trust fund, the Trustees shall have all powers and authority necessary or available to carry out the purposes of this trust and,without limited the generality of the foregoing, shall have the following powers and authority, all subject,however, to the condition that no power or authority shall be exercised by the Trustees in any manner or for any purpose which may not be exercised by an organization which is tax exempt or by an organization to which donations are deductible from 3 taxable income to the extent allowed by the provisions of the Internal Revenue Code and other applicable legislation and regulations as they now exist or may hereafter be amended: (a) To receive the income, profits, rents and proceeds of the trust fund; (b) To purchase, subscribe for,retain,invest and reinvest in securities or other property wherever situated, and whether or not productive or of a wasting nature, and without any requirement for diversification as to kind or amount. The words "securities or other property" as used in this agreement shall be deemed to include real or personal property, corporate shares, common or preferred, or any other interest in any corporation, association,investment trust or investment company,bonds, notes, debentures or other evidences of indebtedness or ownership, secured or unsecured, even though the same may not be legal investments for a trustee under the applicable laws; but securities and other property shall not be deemed to include shares or indebtedness of the Donor unless the same is donated to this trust; (c) To sell for cash or on credit,convert,redeem, exchange for other securities or other property, or otherwise dispose of any securities or other property at any time held by them; (d) To alter, repair, improve, erect buildings upon, demolish,manage, partition,mortgage, lease, exchange, grant options to lease or to buy, and sell or dispose of at public or private sale, and upon such conditions and such terms as to cash and credit as they may deem advisable,real property; (e) To pay all administration expenses of this trust and any taxes imposed upon it,and to settle, compromise or submit to arbitration,any claims, mortgages, debts or damages, due or owing to or from this trust, to commence or defend suits or legal proceedings,and to represent this trust in all suits or legal proceedings; (f) To exercise any conversion privilege or subscription right available in connection with any securities or other property;to consent to the reorganization, consolidation,merger or readjustment of the finances of any corporation, company or association or to the sale, mortgage, pledge or lease of the property of any corporation, company or association any of the securities of which may at any time be held by them and to do any act, including the exercise of options, the making of agreements or subscriptions,and the payment of expenses,assessments or subscriptions which may be deemed necessary or advisable,and to hold and retain any securities or other property which they may so acquire; (g) To vote personally, or by general or limited proxy, any shares of stock, and similarly to exercise personally, or by general or by limited power of attorney, any right appurtenant to any securities or other property; (h) To borrow money in such amounts and upon such terms and conditions as shall be deemed advisable or proper to carry out the purpose of this trust and to pledge any securities or other property for the repayment of any such loan; 4 (1) To hold part or all of the trust fund uninvested; (j) To employ suitable accountants, agents, counsel and custodians and to pay their reasonable expenses and compensation; (k) To register any securities held by them in their own name, or, to the extent permitted by law,in the name of a nominee with or without the addition of words indicating that such securities are held in a fiduciary capacity and to hold any securities unregistered or in bearer form; (1) To make, execute and deliver all instruments necessary or proper for the accomplishment of the purpose of this trust or of any of the foregoing powers,including deeds,bills of sale, transfers,leases,mortgages, security agreements, assignments, conveyances, contracts,purchase agreements,waivers,releases and settlements; (m) To exercise any and all powers granted to Trustees under Minnesota Statutes 5 501B.81, as it exists at the date of execution of this Restated Trust Agreement; and (n) Any other provisions of this agreement notwithstanding, the Trustees shall not engage in any act of self-dealing as defined in Section 4941(d) of the Internal Revenue Code of 1986, or corresponding provisions of any subsequent federal tax laws; nor retain any excess business holdings as defined in Section 4943(c) of the Internal Revenue Code of 1986, or corresponding provisions of any subsequent federal tax laws; nor make any investments in such manner as to incur tax liability under Section 4944 of the Internal Revenue Code of 1986, or corresponding provisions of any subsequent federal tax laws; nor make any taxable expenditures as defined in Section 4945(d) of the Internal Revenue Code of 1986, or corresponding provisions of any subsequent federal tax laws. 7. Trustees Designation and Succession. The trust shall be managed and administered by five (5) Trustees. Class I Trustees,shall be nominated and appointed by the Mayor of the City of Rosemount,with the approval of the City Council of Rosemount at the first City Council meeting in January of each year. Class I Trustees shall consist of three (3) Trustees who are residents of the City of Rosemount, selected for their knowledge of the needs of the Citizens of Rosemount and the City of Rosemount. No more than one Class I Trustee may be either a member of the Rosemount City Council or an employee of the City of Rosemount. Class I Trustees shall serve three (3) year terms and may not serve for more than two (2) consecutive three (3) year terms. Upon the initial appointment and designation of Class 1 Trustees, the Mayor shall designate and stagger the terms of the initial Trustees such that in January of each year a Trustee must be designated and appointed by the Mayor of the City of Rosemount,with the approval of the City Council of Rosemount. Class II Trustees, consisting of two (2)Trustees, shall be designated and appointed by the Donor. Class II Trustees shall serve at the pleasure of the Donor. Any Trustee may resign his office at any time without leave of Court by written notice to all Trustees then in office. The resignation shall be effective as of the time set forth in said notice of resignation. Vacancies existing in the office of Class I Trustees, for whatever cause, 5 shall be filled by appointment by the Mayor of the City of Rosemount, subject to approval by the City Council of Rosemount. Vacancies existing in the office of Class II Trustees, for whatever cause, shall be filled by the Donor. The Trustees may act notwithstanding the existence of any vacancies so long as there shall continue to be at least three (3)Trustees in office. ce. The appointment of Trustees and successor Trustees shall be made by an instrument in writing. In the case of Class I Trustees, the writing shall contain a certified copy of the resolution of the City Council of Rosemount appointing the Trustee or successor Trustee. In the case of Class II Trustees, the writing shall be signed by an executive officer of the Donor and appoint the Trustee or successor Trustee. Trustees shall assume office immediately upon their appointment, unless the notice of appointment provides otherwise. Every successor Trustee shall have the same powers and duties as those conferred upon the Trustees named in this Trust Agreement. 8. Bond and Compensation. No Trustee shall be required to furnish any bond or surety. Each Trustee shall serve without compensation for services, but all expenses of this trust or of any Trustee shall be paid by the Trustees from the trust fund. 9. Accounting by Trustees. The Trustees shall render accounts of their transactions to the Donor and the City of Rosemount at least annually, and the Donor and the City of Rosemount shall approve such accounts by an instrument in writing delivered to the Trustees. In the absence of the filing in writing with the Trustees by the Donor or the City of Rosemount of exceptions or objections to any such account within sixty (60) days, the Donor and the City of Rosemount shall be deemed to have approved such account;and in such case or upon the written approval of the Donor and the City of Rosemount of any such account, the Trustees shall be released with respect to all matters and things set forth in such account as though such account had been settled by the decree of a court of competent jurisdiction. In the event either Y p 1 the Donor or the City of Rosemount do not approve such account, both the Donor and the City of Rosemount shall have such rights as are granted by law to the beneficiaries and Trustees of the trust to require an accounting. No persons other than the Donor and the City of Rosemount may require an accounting or bring any action against the Trustees with respect to this trust. The Trustees may at any time initiate legal action or proceedings for the settlement of their accounts and,except as otherwise required by law, the only necessary parties defendant to such action or proceeding shall be the Donor and the City of Rosemount. 10. Liability of Trustees. No Trustee shall be answerable for loss in investments made in good faith. No Trustee shall be liable for the acts or omissions of any other Trustee, or of any accountant, agent, counsel or custodian selected with reasonable care. Each Trustee shall be fully protected in acting upon any instrument, certificate or paper, believed by him to be genuine and to be signed or presented by the proper person or persons, and no Trustee shall be under any duty to make any investigation or inquiry as to any statement contained in any such writing but may accept the same as conclusive evidence of the truth and accuracy of the statements. 11. Amendment. This Trust Agreement may be amended or modified from time to time by the unanimous consent of the Trustees, together with the approval of the City of Rosemount and the Donor,whenever necessary or advisable for the more convenient or 6 efficient administration of this trust or to enable the Trustees to carry out the purpose of this trust more effectively,but no such amendment or modification shall alter the intention of the Donor that this trust be operated exclusively for the purposes set forth in Section 1 hereof, and in a manner which shall make this trust tax exempt and the donations to it deductible from taxable income to the extent allowed by the provisions of the Internal Revenue Code of 1986 and other applicable legislation and regulations as they now exist or as they may be amended. Every amendment or modification of this agreement shall be made in writing, and shall be signed by the City of Rosemount,by two (2) officers of the Donor pursuant to authority of its Board of Directors, and by all Trustees, and shall be delivered to each of the Trustees then in office. 12. Irrevocability and Termination. This trust shall be irrevocable, but may be terminated at any time by unanimous action of the Trustees,with the approval of the City of Rosemount and the Donor. Upon any such termination, the Trustees shall promptly distribute the entire trust fund to qualified recipients under the terms of this trust. 13. Situs. This Agreement is executed and delivered in the State of Minnesota, the situs of the trust shall be in the State of Minnesota, and all terms and provisions of this trust shall be governed by the laws of the State of Minnesota. 14. Acceptance of Trust. The Trustees accept this trust, and hold, manage and administer the trust fund in accordance with the terms of this agreement. IN WITNESS WHEREOF, this agreement has been executed by SKB Environmental,Inc. and by each of the named Trustees. SKB ENVIRONMENTAL,INC. �"� GERALYN M. NEELEY NOTARY"PUBLIC•MINNESOTA M fonrrssgn Exaires Jan.31,2111 BY ��Its ;171/d 0 ,�'�T ---"41t(4 h kede...„ /3 / /201D CITY OF ROSEMOUNT-SKB n `"`"t ENVIRONMENTAL TRUST FUND �'`, ...g,'1, JAMES G.THOMMES F2 ND --o NOTARY PUBL►C•MINt4ESOTA / ."T WCOMM IC14WIRES1-31-2olo . Bar 4,04/ T stee •4,.4„ JAMES O.THOMMES 4'„-.... 11"."- '' -c`; NOTARYPUBLIC-MNESOA .`.^ ' r yi. �.o ►© /hL.t. Trustee e '"` THOMMES JN1soj B y/ Y ikt-77:71l .-1-("10 Trustee .•:; ,k JAMES G.THOMMES a / ,/ �/� � '"'`( NOTARYPUPUC4IINNESOTA By .."J i..r�.i��! ��f' .✓i - — -. _• i" 3 1— ..v�€) `�°7? ' InaoMw oNExP1RES 131,20to Trustee IF 0 ��' ' • `. i �� ;l�. JAMES D.THOMME3 B j� _. _ iI t.,., ,`t NOTARY PUBIJC.MINNESOTA '-3 I- 2-u L 4 b MYCCMMMSIONE71VIRES 131-2010 Trustee [NOTARY BLOCKS] 8 EXCERPT OF DRAFT MINUTES PLANNING COMMISSION REGULAR MEETING AUGUST 27, 2013 5.a. Request by SKB Environmental to Extend the Expiration Date of their Interim Use Permit from October 7, 2013 to December 31, 2013(Case 08-18-IUP). Senior Planner Zweber stated that on October 7, 2008, the City Council approved a five-year Interim Use Permit (IUP) to SKB Environmental, Inc. for the operation of an industrial waste and construction &demolition debris landfill at 13425 Courthouse Boulevard with a total capacity of 26,874,103 cubic yards. SKB has submitted a request for a new IUP that would expand their landfill including filling slightly over 9 acres of wetlands. SKB is preparing a wetland mitigation plan,but that plan has yet to be submitted. For that reason, staff cannot support a recommendation for the requested expansion at this time. Commissioner Husain asked when the wetland mitigation plan would be available. Mr. Zweber stated the applicant will have the wetland plan available in time for the Planning Commission meeting on September 10th Commissioner Miller asked if continuing the item to the September 10th meeting would leave sufficient time to make any changes between that meeting and the Council meeting. Mr. Zweber responded that staff would prefer to have it continued to the 10th so there may not be a need to have meeting at the end of September and the applicant would prefer to have the item go to Council on October 1st to potentially have the 5 year IUP approved before their current IUP expires. Mr. Zweber further stated that staff does not anticipate there being any changes to the request between meetings. The applicant,Jon Penheiter of SKB Environmental,was present and stated they will have the wetland plan available at the end of this week. Commissioner Miller asked the applicant if they expect any public comment on this matter and Mr. Penheiter replied that they had an open house for the public to attend and receive some comment,but do not expect anything further. The public hearing was opened at 6:40p.m. There were no public comments. MOTION by Kurle to close the public hearing. Second by Weber. Ayes: 4. Nays: None. Motion approved. Public hearing was closed at 6:41p.m. Commissioner Husain asked for an explanation of the rates referenced in the Development Commitment of the current Interim Use Permit. Mr. Zweber explained how landfills in Dakota County have host agreements with the community they are located in which include fees based upon the amount and type of waste at the landfill. He explained how in the agreement with the City and SKB, those fees are paid to the City and to the SKB Trust,but that the City Council monitors the rates and the Planning Commission does not have any control over that part of the agreement. MOTION by Kurle to recommend that the City Council Extend the Expiration Date of their Interim Use Permit from October 7, 2013 to December 31, 2013. Second by Husain. Ayes: 4. Nays: None. Motion approved. 5.b. Request by SKB Environmental for an Interim Use Permit including an Expansion to their Landfill which would Fill Wetlands(Case 13-16-EAW, 13-17-IUP). Senior Planner Zweber reviewed the staff report stating SKB Environmental, Inc. (SKB)is requesting a revision to their Interim Use Permit (IUP) to allow an expansion to their facility at 13425 Courthouse Boulevard from 151 acres of disposal area to 167 acres of disposal area. The proposal includes an expansion in total disposal volume from almost 27 million cubic yards to a little more than 35 million cubic yards,representing a 32%increase in volume. The increased volume is accomplished by expanding the footprint of the landfill by 16 acres and an increase in the finished height of the landfill by 50 feet. Increasing the footprint of the landfill will require filling 9.19 acres of designated wetlands. The public hearing was opened at 6:47p.m. There were no public comments. MOTION by Weber to Continue the Public Hearing for the SKB Environmental, Inc. Interim Use Permit request to September 10, 2013. Second by Husain. Ayes: 4. Nays: None. Motion approved. Public hearing was continued.