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HomeMy WebLinkAbout6.h. SKB Rosemount Community Trust AmendmentsMEMORANDUM TO: Mayor and City Council FROM: Jamie Verbrugge, City Administrator DATE: November 3, 2004 RE: Additional Information — November 3, 2004 City Council Meeting Additional information is attached regarding two items on the Consent Agenda: • G. SKB Interim Use Permit Amendment for End Cap Design • H. SKB Rosemount Community Trust Amendments Pertaining to Item G., City Planner Pearson has provided a memo with more information regarding the Addendum to Development Commitment that specifies SKB's intent to provide $25,000 annually over the course of the next 10 years as a monetary consideration for the removal of landscaping requirements in the final end use cap design. Also enclosed is the amended IUP agreement, including that provision and the change of terminology from Landscape Plan to "Final Cover Grades ". Pertaining to Item H., attached are the final agreements related to the Trust Fund amendments executed by the SKB Trustees and ready for execution by the Mayor and City Clerk. As mentioned in the Council Agenda Memo, all of the terms in each of these items are consistent with those agreed to by the City Council in the Memorandum of. Understanding approved by Council in May 2004. ity Administrator Attachments CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION City Council Meeting Date: NOVEMBER 3, 2004 AGENDA ITEM: SKB - ROSEMOUNT COMMUNITY TRUST AMENDMENTS AGENDA SECTION: Consent PREPARED BY JAMIE VERBRUGGE, CITY ADMIN. 91 9A # 6 H ATTACHMENTS: Trust Fund Amendment Language APPROVED BY RECOMMENDED ACTION: MOTION TO APPROVE THE AMENDMENTS T THE SKB- ROSEMOUNT COMMUNITY TRUST FUND ACTION: ISSUE At the time that the City Council approved the Interim Use Permit (IUP) in March 2003 for SKB Environmental to expand the current east side facility, the City and SKB agreed to review the terms of the SKB- Rosemount Community Trust Fund within one year of the approval. The City, SKB representatives, and the Board of Trustees had extensive discussions related to the structure of the SKB Community Trust Fund. The City Council approved a Memorandum of Understanding with SKB and the Trustees on May 4, 2004 regarding the amendments to the agreement and the Interim Use Permit amendment for the SKB facility. The IUP amendments are also on the Council's November 3 Consent Agenda for consideration. BACKGROUND As currently structured, the SKB Trust Fund receives a dedicated contribution from the per tonnage deposits at the SKB Rosemount facility. The Trust Fund has built a healthy reserve of funds for the long -term stability desired by the Trust Board to make annual donations to organizations, events and projects that benefit the Rosemount community. The City Council approved an amendment within the past year that allows the Trust Fund to increase annual distributions to $100,000 per year. The City Council expressed interest in revisiting the terms of the Trust Fund at the time the IUP was approved in March 2003 to provide a more equitable distribution of Fund revenues to provide greater benefit to the community through direct contributions from the Trust Fund to the City for items included in the Capital Improvement Program. The City Council also requested a one -time contribution from the Trust Fund reserve to provide fora large capital investment in the community for acquisition of land to be the site of a future Dakota County SKB Trust Fund Amendment November 3, 2004 Page 2 of 2 branch library in Rosemount. Per the terms of the negotiated agreement, the SKB Trust Fund Board has approved amendments to the Trust agreement that provides the following: a. Fifty percent (50 %) of annual revenues to the Trust Fund from SKB operations will be redirected to the City of Rosemount to be applied toward projects detailed in the City's Capital Improvement Plan (CIP). b. The SKB Trust Fund will make a one -time donation of $500,000 to the City, following the transaction closing on the property, to help pay for the cost of land acquisition for a Dakota County branch library in Rosemount. c. The City will allow the SKB Trust Fund to increase annual community distributions based on the Consumer Price Index or percentage population growth in Rosemount, whichever is greater. SUMMARY The SKB Trust Fund Board approved the Trust Fund amendments in accordance with the terms of the May 4, 2004 MOU committing to amend the Trust Fund distribution formula and providing for a significant one -time contribution to assist the City with library land acquisition, contingent upon the City's amendment of the March 2003 IUP relating to the End Use Plan. The formally signed and notarized agreements will be provided for the Mayor's signature prior to the November 3 meeting. K 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 contributions 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 inures 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) the Trustees shall distribute trust funds in an amount equal to fifty percent (50 %) of the donations received from the Donor each year to the City of Rosemount to be used by the City of Rosemount for capital projects identified in the City of Rosemount's Capital Improvement Program, which trust funds shall distributed no later than January 31 st of the year following the year in which the donations are received; (b) the Trustees shall distribute the sum of Five Hundred Thousand Dollars ($500,000.00) to the City of Rosemount for the acquisition of land and/or a building to be used as a library in the City of Rosemount at the time of the closing on the City of Rosemount's purchase of the land and/or building; (c) the Trustees may, but are not required to, annually distribute trust funds [exclusive of distributions under (a) and (b) above] in an amount not to exceed the sum of One Hundred Thousand Dollars ($100,000.00) or the income of the trust, whichever is greater; and (d) in the event of a catastrophic occurrence as the result of an Act of God adversely affecting the welfare of the City of Rosemount or its citizens, the Trustees may, in their discretion, distribute the sum of One Million Dollars ($1,000,000.00) or one -third (1/3) of the trust fund, whichever is less, for the uses and purposes , set forth in paragraph 1 hereof. In no event shall the Trustees be required to distribute sums in excess of the trust principal. 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. The One Hundred Thousand Dollar ($100,000.00) limitation in (c) above shall be applicable for annual distributions made during the year 2004, and said limitation shall be adjusted annually thereafter to the greater of the following amounts: (i) One Hundred Thousand Dollars ($100,000); the amount which bears the same proportion to $100,000 as the Consumer Price Index, all urban consumers, Midwest urban-all items, of the United States Department of Labor, Bureau of Labor Statistics for January of the year for which the computation is made bears to the Consumer Price Index, all urban consumers, Midwest urban-all items, of the United States Department of Labor, Bureau of Labor Statistics for January, 2004; or the amount which bears the same proportion to $100,000 as the certified annual population estimate for the City of Rosemount determined by the Metropolitan Council for the year for which the computation is made bears to the certified annual population estimate for the City of Rosemount determined by the Metropolitan Council for the year 2004. CITY OF ROSEMOUNT EXECUTIVE SUMMARY FOR ACTION City Council Meeting Date: November 3, 2004. AGENDA ITEM: SKB Interim Use Permit Minor AGENDA SECTION: Amendment. Consent. PREPARED BY: Rick Pearson, City Planner. AGENDA NO. ATTACHMENTS: Draft Addendum to Development Commitment, Interim Use Permit Agreement Reissuance to SKB, Inc. Minnesota Industrial Containment APPROVED BY: Facility, Proposed Exhibit E (drawing and design info), March 6, 2003 City Council minutes RECOMMENDED ACTION: Motion to approve the amendments the Interim Use Permit and the addendum to the Development Commitment for SKB, Inc. Minnesota Industrial Containment Facility. ACTION: ISSUE The application before the Council is to modify the design of the end -cap at the SKB land -fill. The change is to provide a gradual slope with grasses versus a previous plan that had ridges with landscaping to recreate an oak savannah. The previous idea depended on a significant amount of soil being added to the site to provide a sufficient depth for tree roots that would not puncture the end cap liner. The simplified strategy of a uniform 2.5 ft. thick soil layer with 6 inches of top soil, seed and liner will be much easier to maintain, and greatly simplifies repairs to the end cap if necessary. BACKGROUND On March 6, 2003, the Council approved a major amendment to the SKB Interim Use Permit with conditions. The effect of the major amendment was to increase storage capacity by utilizing "saddle" area between cells. The major amendment also approved a new construction demolition cell along the southeast elevation of the land -fill One of the issues discussed by the Council, and noted for further discussion and refinement, was the end use plan for the site. The plan at that time included groupings of trees on ridges that advanced up the slope, allowing for sufficient depth to protect the liners of the end cap from roots. The exact details of the landscape project were not worked out when the IUP was approved. After further examination it became clear that the project entailed more resources than initially expected. For this reason, the city and SKB have been looking at other options that would address previous city concerns. The present concept will allow a more sloped mound that will be easier to maintain. Further, the introduction of trees on the site required a significant amount of fill and dramatically increased the cost. The reason is that a lot of soil was needed to ensure that the end cap was punctured by the tree roots. Applicant & Property Owner(s) Location: Area in Acres: Comp. Guide Plan Desig: Current Zoning: City Council Action: John Domke for SKB Environmental TH 55 Industrial Waste Containment Facility Approx. 235 acres Waste Management Waste Management Approved with conditions 3 -6 -2003. SUMMARY There is the potential for the City to have to become involved with repairs after the cells have been closed. While the tree planting plan can certainly be engineered properly, the cost of maintenance and repairs could be unusually high, particularly on the 4:1 side slopes. Staff is comfortable with the various aspects of the revised proposal; uniform gradients, depth of cover, and turf management. Reasonable visual screening can be accommodated with tree plantings near the highway right -of -way. The changes in the IUP will also be reflected in the SKB Community Trust Management Plan. 2 ADDENDUM TO DEVELOPMENT COMMITMENT This Addendum to that certain agreement entitled Development Commitment dated October 17, 1989, by and between USPCI, Inc. and the City of Rosemount (hereinafter referred to as the "City") (which agreement is hereinafter referred to as the "Development Commitment "), as amended by Addendum dated January 1, 1995, and subsequently assigned to SKB Environmental Inc. (hereinafter referred to as "SKB ") on April 18, 2000, as amended by Addendum to Development Commitment dated , 2003, is made on behalf of the parties to the Development Commitment by the undersigned as of this day of , 2004. WITNESSETH: WHEREAS, in accordance with a "MEMORANDUM OF UNDERSTANDING" by and between the City and SKB dated May 4, 2004, the parties hereto have agreed, among other things, that the Development Commitment should be amended as hereinafter set forth; NOW, THEREFORE, ON THE BASIS OF THE PREMISES AND MUTUAL COVENANTS AND AGREEMENTS HEREINAFTER SET FORTH, IT IS AGREED that the Development Commitment is amended by adding new Section lOg as follows: "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." This Addendum to the Development Commitment is executed as of the date and year above stated on behalf of the parties by the undersigned. SKB ENVIRONMENTAL, INC. By Its CITY OF ROSEMOUNT William H. Droste, Mayor Linda Jentink, City Clerk CLL- 248786v1 RS220 -36 INTERIM USE PERMIT AGREEMENT REISSUANCE to SKB, INC. MINNESOTA INDUSTRIAL CONTAINMENT FACILITY THIS AGREEMENT, originally dated 2003, made by and between SKB Environmental Inc. (hereinafter "SKB ") and the City of Rosemount, a Minnesota municipal corporation (hereinafter the "City ") is restated and amended as follows as of this day of 2004. 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 July 2. 1998 (MPCA Permit) as renewed and amended, and Dakota County Solid Waste License, approved November 26, 2002 (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, III, and IV, dated October 2001, as modified by letter to Mike Lynn of the MPCA from William Keegen, P.E. of SKB, dated January 3, 2003 and attachments thereto and Volume II dated October 2001, updated January 2003 (the "MICF Permit Application "), details the revised design, construction, operation, closure, corrective actions, and revisions thereto, and financial assurances for a five cell non - hazardous industrial waste containment and construction and demolition facility, with an anticipated operating life of twenty- three, (23) years. Construction, operation, and closure of the individual cells will be phased throughout the operating life of the facility. Consistent with the CLL- 227659v4 RS220 -36 term of MPCA Permit and the provisions of Ordinance B, this IUP is valid for five years from 2003, 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 CR 38, lying easterly of the Chicago and Northwestern Railroad. The location of MICF is illustrated on attached Exhibit B. MICF consists of five (5) containment cells, each occupying a surface area and waste volume capacity as follows: (a) Cell 1 contains 5.7 acres and 338,442 cubic yards; (b) Cell 2 contains 17.1 acres and 1,422,199, cubic yards; (c) Cell 3 contains 36.9 acres and 6,002,900, cubic yards; and (d) Cell 4 contains 10.7 acres and 1,679,300, cubic yards; and (e) Cell 5 contains 37.2 acres and 5,471,100 cubic yards. The anticipated operating life of MICF is twenty -three (23) years based on a total capacity of 14,913,941 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. Construction of the construction and demolition recycling/transfer station will require site plan review and approval by the City. Subject to the CLL- 227659v4 2 RS220 -36 provisions of Section 12, this Agreement also allows for the construction, operation, closure and post- closure care of cells 1, 2, 3, 4, and 5 and all related earth work and excavation, subject to the provisions of this Agreement, compliance with City ordinances and issuance of necessary permits. 4. 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. Final cover grades shall be completed in accordance with the approved drawing 11, "top of final cover grades" plan as identified in Exhibit E of this Agreement. 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. 5. 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 approval of the City Administrator. 6. 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. 7. 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 CLL- 227659v4 3 RS220 -36 and enforcement related to construction. 8. 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. 9. 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. 10. 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. 11 Operations and Maintenance. SKB shall operate and maintain MICF in accordance with the "Operational Plans" (volume III, MICF Permit Application), MPCA Permit, and DC License. No amendments may be made to the "Operational Plans" without the written approval of the City Administrator. 12. 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. CLL- 227659v4 4 RS220 -36 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 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. 13. 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 ". 14. 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 CLL- 227659v4 5 RS220 -36 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. 15. 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. 16. Contingency Actions.. SKB shall implement contingency and/or corrective actions as specified in the permit application and MPCA Permit and DC License. SKB shall 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 CLL- 227659v4 6 RS220 -36 approval of the City Administrator. 17. Monitoring/Reporting. SKB shall monitor MICF in accordance with MPCA Permit. Nothing shall be construed to prevent SKB from exceeding MPCA Permit requirements. 18. 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 final 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 final 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. 19. 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. 20. 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. CLL- 227659v4 7 RS220 -36 21. Development Commitment. The provisions of the Development Commitment, approved by the City Council on October 3,1989, and dated October 17, 1989, as amended by Addendum dated , 2003, 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 12. 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 lob 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. 22. 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. 23. 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 CLL- 227659v4 8 RS220 -36 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. 24. 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. 25. Other Laws and regulations. SKB agrees to comply with all other laws, regulation, permits, or licenses that apply to MICF. - 26. 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. 27. 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. 28. 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 , 2003; (2) Upon change in the City's zoning regulation that renders the use nonconforming; CLL- 227659v4 y RS220 -36 (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 NP. 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 NP, 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 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. CLL- 227659v4 10 RS220 -36 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 findings of fact, conclusions, and recommendations to the Council. The hearing examiner shall submit the findings 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 findings 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. H. At the request of the City, SKB, or the hearing examiner, a pre- hearing conference shall be conducted by the hearing examiner, 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, CLL- 227659v4 1 l RS220 -36 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 29. 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. 30. Enforcement. SKB shall reimburse the City for its reasonable costs (including without limitation engineering and legal fees) incurred in the enforcement of the IUP, 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. 31. 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. CLL- 227659v4 12 RS220 -36 32. Assignment. The IUP is not assignable or transferable without the express 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. 33. 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. 34. Recording. This Agreement shall run with the subject land and may be recorded in the Dakota County Recorder's Office. CLL- 227659v4 13 RS220 -36 0 SKB ENVIRONMENTAL, INC. By: Its: And by: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2004, by and , the and , respectively, of SKB Environmental, Inc., a Minnesota corporation, on behalf of the corporation. Notary Public CITY OF ROSEMOUNT By: Its: Mayor And by: _ Its: Clerk STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of , 2004, by William Droste and Linda Jentink, the Mayor and Clerk, respectively, of the City of Rosemount, a Minnesota municipal corporation, on behalf of the corporation. Notary Public CLL- 227659v4 14 RS220 -36 RESOLUTION A RESOLUTION APPROVING THE FIFTH AMENDMENT AND FIRST COMPLETE AND SUPERSEDING AMENDMENT TO SKB ENVIRONMENTAL ROSEMOUNT COMMUNITY TRUST WHEREAS, the Trustees of the SKB Environmental Rosemount Community Trust are desirous of adopting a Fifth Amendment and First Complete and Superseding Amendment to the SKB Environmental Rosemount Community Trust, under Trust Agreement dated November 19,1 992, as amended, pursuant to Paragraph 11 of said Trust Agreement with the unanimous consent of all trustees currently acting, by execution of this Resolution; NOW, THEREFORE, the Trustees of the SKB Environmental Rosemount Community Trust, under Trust Agreement dated November 19, 1992, as amended, hereby adopt the following resolutions: 1. The Trustees hereby adopt the Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust attached hereto. 2. To effect the Resolution in Paragraph I above, the Trustees are hereby authorized and directed to execute the: (a) Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust; and (b) Restated Trust Agreement of the SKB Enviromnental Rosemount Community Trust attached to the Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust. 3. The Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust is effective for the Trust's fiscal year commencing January 1, 2004 and ending December 31, 2004, as of an upon the date the A& Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust is fully executed by all of the Trustees of the SKB Envirommental Rosemount Community Trust, the City of Rosemount, and SKB Envirouunental, Inc. Dated:— �n G Steve Ca�ey, Trustee 1 o Chapdelaine, rustee a� z""-L 1 z Domke, Trustee SKB Environmental Rosemount A FIFTH AMENDMENT AND FIRST COMPLETE AND SUPERSEDING AMENDMENT TO SKB ENVIRONMENTAL ROSEMOUNT COMMUNITY TRUST Pursuant to Paragraph 1 I of the SK 13 Environmental Rosemount Community Trust, tinder Trust Agreement dated November 19, 1992, as amended, said Trust Agreement is amended by means of this Fifth Amendment and First Complete and Superseding Amendment to SKB Environmental Rosemount Community Trust, restating the SKB Environmental Rosemount Community Trust as attached hereto, which restated Trust Agreement shall constitute the complete trust agreement and shall supersede in all respects the provisions of the original Trust Agreement dated November 19, 1992 and any previous amendments thereto. IN WITNESS WHEREOF, this agreement has been executed by SKB Environmental, Inc. and by each of the named Trustees. SKB Environmental, Inc. Richard O'Gara Its: President : B Tm dG� Y John ornke Its: Vi e President City of Rosemount By: William Droste, Mayor By: Linda J. Jentink, City Clerk qz Steve Casey, Trustee O IL A�A� D n Chapdelaiij, Trustee J m Domke, Trustee SKB Environmental Rosemount SKB Environmental Rosemount Community Trust This Restated Trust Agreement made this day of , 2004, by and between SKB Environmental, Inc., acorporation organized Linder the laws of the State of Minnesota (hereinafter referred to as "Donor "), and John Tapper, Matthew Kearney, Steve Casey, Don Chapdelaine, and John Donnke (hereinafter collectively referred to as "Trustees"). 1. Purpose of the 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 in the City of Rosemount; (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 fimnishing 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 nnanner 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 inure 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 our 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 SKB Environmental Rosemount Community Trust, and so far as practicable, the Trustees shall conduct the activities of the trust in that name. 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 terns of this Trust Agreement. 4. Use of the Trust The Trustees shall apply the trust fund, at such times, in such mamler, and in such amounts as they may determine, to the uses and purposes set Forth in paragraph 1, or they may make contributions 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 tern "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 inures 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) the Trustees shall distribute trust funds in an amount equal to fifty percent (50 %) of the donations received from the Donor each year to the City of Rosemount to be used by the City of Rosemount for capital projects identified in the City of Rosemount's Capital Improvement Program, which trust fiends shall distributed no later than January 31 st of the year following the year in which the donations are received; (b) the Trustees shall distribute the stun of Five Hundred Thousand Dollars ($500,000.00) to the City of Rosemount for the acquisition of land and /or a building to be used as a library in the City of Rosemount at the time of the closing on the City of Rosemount's purchase of the land and /or building; (c) the Trustees may, but are not required to, annually distribute trust funds [exclusive of distributions under (a) and (b) above] in an amount not to exceed the sum of One Hundred Thousand Dollars ($100,000.00) or the income of the trust, whichever is greater; and (d) in the event of a catastrophic occurrence as the result of an Act of God adversely affecting the welfare of the City of Rosemount or its citizens, the Trustees may, in their discretion, distribute the sum of One Million Dollars ($1,000,000.00) or one -third (1/3) of the trust fund, whichever is less, for the uses and purposes set forth in paragraph 1 hereof. In no event shall the Trustees be required to distribute sums in excess of the trust principal. 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. The One Hundred Thousand Dollar ($100,000.00) limitation in (c) above shall be applicable for annual distributions made during the year 2004, and said limitation shall be adjusted annually thereafter to the greater of the following amounts: (i) One Hundred Thousand Dollars ($100,000); (ii) the amount which bears the same proportion to $100,000 as the Consumer Price Index, all urban consumers, Midwest urban -all items, of the United States Department of Labor, Bureau of Labor Statistics for January of the year for which the computation is made bears to the Consumer Price Index, all urban consumers, Midwest urban -all items, of the United States Department of Labor, Bureau of Labor Statistics for January, 2004; or (iii) the amount which bears the same proportion to $100,000 as the certified annual population estimate for the City of Rosemount determined by the Metropolitan Council for the year for which the computation is made bears to the certified annual population estimate for the City of Rosemount determined by the Metropolitan Council for the year 2004. 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 except for the following actions: (a) Distributions of principal from the trust fund shall require the affirmative vote of two - thirds (2/3) of the Trustees then in office, except for distributions of the principal made within the first five (5) years after establishment of the trust; and (b) Distributions to or for the benefit of the City of Rosemount for maintenance or repairs, street improvements, utility improvements, employee salary expense, or expenses for similar public works activities shall require the vote of two- thirds (2/3) of the Trustees then in office. Any instnunent 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 limiting 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 mariner 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 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 corrinzence 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 malting 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; (i) To hold part or all of the trust fiend uninvested; 0) 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 §501 B.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 Intenlal 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 Intenlal 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 Intenlal 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 Lit 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 terns and may not serve for more than two (2) consecutive three (3) year terms. Upon the initial appointment and designation of Class I 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, 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. The appointment of Trustees and successor Trustees shall be made by an instrument in writing. In the case of Class 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. S. 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. h1 the event either 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 person, 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 tinge 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 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 terns and provisions of this trust shall be governed by the laws of the State of Minnesota. SKB Environmental Rosemount 14. Acceptance of Trust The Trustees accept this trust, and hold, manage and administer the trust fund in accordance with the tens of this agreement. IN WITNESS WHEREOF, this agreement has been executed by SKB Environmental, Inc. and by each of the named Trustees. SIB Environmental, Inc. B Z Richard O'Gara Its: President By: John mke Its: Vice President Steve Casey, Tru ee v ` Don Chapdelain , Trustee V ��t- Qafx J Domke, Trustee Matthew Kearney, Trustee STATE OF MINNESOTA COUNTY OF DAKOTA On this tsi day of 2004, before me, a Notary Public, Within and for said County, personally appeared Richard O'Gara and John Donike, the President and Vice President, respectively, of SKB Environmental, Inc., to me known to be the persons named in and who executed the foregoing instrument and acknowledged that they executed the same on behalf of the corporation. GERALYN M. NEELEY ■ NOTARY PUBLIC - MINNESOTA My Comm. Expires Jan. 31, 2005 STATE OF MINNESOTA COUNTY OF DAKOTA Notary ublic On this a*ay of , 2004, before me, a Notary Public, within and for said County, personally appeared John Tapper, a Trustee of the SKB Environmental Rosemount Community Trust, to me known to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same on behalf of the trust. s �> F • e e STATE OF MINNESOTA COUNTY OF DAKOTA On this 6 day of 2004, before me, a Notary Public, within and for said County, personally appeared Matthew Kearney, a Trustee of the SKB Environmental Rosemount Community Trust, to me known to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same on behalf of the trust. � 14 e!l1111 STEW B. TOO " M Notary PuW4�esota -`'� %, r`ti a STATE OF MINNESOTA COUNTY OF DAKOTA On this I_J*ay of &� , 2004, before me, a Notary Public, within and for said County, personally appeared Steve Casey, a Trustee of the SKB Enviromnental Rosemount Community Trust, to me laiown to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same on behalf of the trust. i ,N, do T%AWRS Comm 1 F- J , & -, 3„, Z JM otary Public STATE OF MINNESOTA COUNTY OF DAKOTA On this g� y of _ , 2004, before me, a Notary Public, within and for said County, personally appeared Don Chapdelaine, a Trustee of the SKB Environmental Rosemount Community Trust, to me known to be the person named in and who executed the foregoing instrument and aclalowledged that he executed the same on behalf of the trust. 1 Notary Public STATE OF MINNESOTA COUNTY OF DAKOTA On thisay of , 2004, before me, a Notary Public, within and for said County, personally appeared John Doinke, a Trustee of the SKB Environmental Rosemount Community Trust, to me known to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same Oil behalf otary Public 1 t�