HomeMy WebLinkAbout7.d. USPCI Development Commitment Discussion i � �
ITEM 7
September 29, 1989
T0: Mayor Hoke Na e� ,
Councilmemberss ��borough
Wa1sh
Wipgermann
FROM:
Stephan Jilk, Administrator/Clerk
RE: USFCI
Development Commitment
Trust Agreement
Citp staff has c
ontinned to discuss the gb°vthroughetheir lega�-
documents with representatiee of USP�I bot
couasel and corporate offices.
tion of two items which we are yet discussing
With the excep tters, we have reached con��'�eviewAandth \
regarding procedural ma ou for you
documents and wish to present them to p
consideration.
ment" basicallp ��t� out those financial
The 'tDevelopment Commit �hich USP�I ig �a�ing
and which the
commitments to the citeCt will trigger � The commitment does not
permitting of the groj
an citq action except to cooperate with USPCI in
require p rocessing the permits.
reviewing and P
a ment of funds into ti�e
- Rosemount Community Trust a�d �-�� s
The commitmo�toratedre��rences the p Y +�
"USPCI, Inc p
standing as a separate document. how
s ecificallp how it is created,
The Trust then sets and howpfunds will be expended from it.
it wiil be managed,
ith ou here the basic concepts of the Commitment
I would review W p would affect the city
� Please refer to
document and how thep
specific section number for discussion• • ect �nd statements
Sections 1-2. Are simplY °
v
er
viewing the proj
I about it. rQ ect.
3. Is recognition of aPprovals needed for t�e p j
Section ro ect.
Sec
tion 4. Is the statement on the "benefit" of` �h� p �
_ _ - - - —�—,__ __ - -- - _ -
-- ----_ ___ _ _----_ -- - __, _ __ __
.
z - crrY oF �os�nvrrr �
�te�c�. c�o��rr
r.
�EPT� 29, 1989
CITY CIT][ Z+O�AL TOTAL
SERYIGS FEES SSRVICB t�G. AVAILABLE AVAII�IB�.S
CHARGE QtSDTT AoAt1.�w.F W O TRUST �iITH TRt}5T ___
$121,500 ($45,000) $ 76,Sfl0 $ 93,50Q $16$,540
175,500 ( 5,000� 170,500 187,50� 252,500
202,500 - 202,500 219,500 296,500
202,500 - 202,500 219,500 296,500 •
202,50Q - 2�2,St� 219,500 296,500
' 202,500 - 202,Sfl0 202,5� 303,7Q0
202,500 - 202,500 202,5� 327,700
202,5� - 202,500 202,5� 351,700
202,500 - 202,500 2Q2,500 375.700
2Q2,500 - 202,50Q 202,500 399,7p0
$ 1,867,0� $ 3,073,fl00
$ 2,879,50� � 5,114,930
$ 3,$92,000 $ 7,952,800
Lity does better the City will callect funds at a faster ra�e - conversely, a �
�
aot re�lect any assumed esc�latian in fees as set out in the documents relating to
� i
k�rn on the principal invested. At pear 10 that principle is estimated ta be
�le is estimated to be $5,500,000.
�roperty owner/developer for this pro,�ect with esti.m�te given by Dakota Cc�unty to
r to be the City's share.
�
i
�
I
i
` '' _ � ,
,
D�VEL08M8�I' COkMIT�NT
US�CI, iNC, (herein referred to as "tiSPCI"') a Delawa�e
carperatio� wi�h its princigal affice at Fiaustor�, T�xas and its
lacz�I office at Rosemount, Minneaota, makes the follow�ng
repres�ntations and ao�itsnents to the CITY bF RD�EMOUNT, a
Minnesdta mun�.��pal corpo�;�►tion ioc�ted in Dakota Caunty,
Mirinasota (herain referr�ad to as "'Cit�r�') .
WITNESSETH:
l. Pro�ect - I�acility. USPCI prvposes to locat� in the
City a nan-ha�ardaus indu�triaT waste c+�ntainment t'aGility ('"the
Faci�ity or "the Project") as generally described in bath the
Enviror�menta3 Assessment Report dated Novemb�r 28, 2988, prepared
by Environmenta� Engine�rinq and Manag�ment, Ltd. , a copy of
which Enviranmental Assessmen� F,eport {h�rein referred to as
"'EAR'�} has been provided to the City as well as the Pre].irninary � �
Permit Application d�ted Apri3, 1989 whiGh was a3so prepared by
Environmenta2 Enginaering and Managem�nt, Ltd. The Facility wiil
be located an approximately 240 acres of Zand (pthe Prop�rtyy) as
is more spe�ifica2ly described on the attached Exhihit hA", which
a.s incorporated herein by ref�r�nce. �he proposed Faci2ity is a
Hstate of th� art� praject and will a2low containing of non-
hazardous industria�. waste in a manner vastly superiox to the way
these wastes axe presently being dispased of in Dakota County.
2. Environmental Impact S�.atement. USPCI has affirmatively
request�d an Environmental Impact Stat�mer►t (yETS"j of th�
Praj�Ct which study fs pr�sently underway.
r9/29�89
� : R , . �. . � • . . . . . . . . .
3. � rovals. It is under�taod that variou� gavernmental
appYova�� are required for the Pro�e�t including r�pprovals at the
federt�i, stata, �nd ragiona]. as weli as local l�vel.
4. Economic B+anefits. The F�cility, in additian to
provid;ing a "'stata af tha artx facility for the hans�linq o� non-
hazardous industrial waste, wil� algo pro�r�d� economic benafit to
the City, at� herein provid�d, in addition �o offering th�
potent�.al Po� further encour�g�ment of industrf,al dev�Iopment in
�he City.
NOW, THEREFdRE, UBPCY her+eby represents and Commit� ta the
city as fol2aws:
5. City Approval. Th� commi�:nents herein contained are
subject to USPCI abtaining all governmentaZ approvals requir�d
for the Project, including but not limited tv all germits,
authorizations and approvals from the City required to a12ow
construction, op�ration and maintenance af th� Facili,ty. The �
co�mitments are further canditioned upon the issuance, existence
and cc�ntinuance of a21 p�rmits, approvals and authorizations
required to a21cw construction, operation and maintenance o� said
Facility.
6. USPCI to Prviceed. USPCI agrees to construct, op�ra�e
and maintain the Facility on all or a portion af the Praperty, as
outlined in tha EA.R, subject t� abtaining all necessary approvals
and subject to such modifica�ion, if �ny, as may be required, and
agr�ed to by USPC2 resulting fram the EIS or reasonable mandates
from other approving authorities.
. . . - . � � 2 w . . . . . . . . . .
: `{ • i
?. Tax Tncrement Financinv. USPCI understands the
capabilitiss of the City or ite HRA to establish and operate �AX
INCREMENT IIISTRICT3 in th�ir pxoqram to expand indumtrial �nd
commercial dev�lapment in ths City. =n art effart ta a�ai�t in
this e=fort USPCI will not ohject to the City or its HRA in
establishment of such � dis�rict to i»clude the property.
8. F�rk Dedication Fees. USPCI reco5nizes the City of
Ros�mount's Park and Recreation developmer.t program and the
method�t the City us�ea trx �und thia progr�m by cvll�ctic►n of "Park
DediC�ttion F'eesa. USPCI also recognizes the �quivalant payntent
which woe�Id be requir�d to }ae pai� i� thefr Prc�ject would be
required to go thrQugh a p2atting pxaeess. Because the Ci�y �
could r�quire this platting and a speca.fic park dedication fee
wou?d be rec�uired, although the Gity is not requiring that the
Property be pZatted, USFCI ai�? voluntarily make a nan-refundabl�
payment of $85,000 in lieu of the park dedicatior� fee. This is- �
the am�unt of ten (1a) acres equivalent dedicativn or �en (10)
times the current ger acre value for this purpose. (2.989 value
af $8, 500 per �cre � $85,000) . The payment may b� made in five
(5} equal annual installments of $17,000 each. The �"irst
installment shall be due on the date the City issues a permit for
the Pro�ect and subsequent installm�nts shail be due annually
th�reaftsr on th� sa�e day each year for the next four (4) years.
If USPCx decides to pay the fee in installments, it agre�� to
furnish tha City an irrevocable letter of credit to guarant�e
•. 3 _
`' ;, � •
payment of the unpaid portion o� the �ee. The b�nk iesuing t�e
letter of credit and the form of the letter of credit shall be
apProvsd by the City.
9. option to Purchaee. At 5uch ti.m� as the storag� ce1.1s
are complefi�d and c2osed, and the Faeility w�.11 no �.onger be '
accepting waste, th� Cfty will h�tve an optio� for a period of 12
months immediately subsequen� tc c1csing of th� �.ast cell, to
purchase that portton of th� Pxdperty no� requixed �or closura
and maintenance of the Faci�,ity. Sa3,d option right w�Il
terminate, if not exerci�ed prior therato, 12 month� Qfter
alasura vf the 1�st Cali. Tha purohase price wi3� be an amaunt
equal ta SS percen� of ths value af the gropezty being purchased,
as said value is d�termined by appraisal. USPCI sh�Il se2�ct ane
appraiser �amil#,ar with rea3 estate values in Dakotia County and
the city shall seleet one apprafser famiZiar w�th real e�ta��
values in Dakota County, Th� two appraisers shall select a third \
appraiser and the three appraisers shalZ proceed to determine the
fair market value of the Prop�rty. If the two agpr�tisers
� seZected by the Ci�y and UsPCI are unable to agr�e on the third
appraiser, they shall agply ta the chief Judge of the District
Caurt in Dakota County, Minnesota and the Chief Judge sha12
select the third appraiser. Any valuation agreed upon by a
majority of th� appraisers shalZ be accepted as Einal by both
USPCI and the City. Pa�rment shall be in cash, at closing, unless
otherwise agreed by the parties with the Prapezty being sold in
an "as is"' condition, free of al2 encumbrances and with seal
esLat� taxes due in the year of closing pro-rafied to date of
� 4 _
�' •� • �
ciceing. USPC= shali provide to fi.he City an Ab�tract af Title or
Rsg:stered Property Certificata, +avidencing 'mazketabl� titla, or
title insurance fram a, title insurance company acoep�abl� to the
City. USPC2 �hail have the right �o determ�n� which aareage is
�ot required for clo�ur� and m�int�nanGe a,nd i� theze�'ox� �ub�ect
to th�a terms of th3.s� option, which det�rmination sh�.11 be mad� at
th� tim� o� closure of the l,sst ce1.1, Upan �lo�ure of the la�t
ce�,1, USPCI shall notify �he City in writing of thi�s even�,
areceipt of which notice shall ebainence the 12 month option
period. Hotice of exsrcise of the opt�.c�n, durfng the optian
tarm, sh�?l ba in writing d�livered to USPCZ. Clo�ing shall be
within 94 days of notice of exercise o� the option. The City
may, during the term of th� option, exercise same and purchase
th�. Praperty, but �ha2l� �ot be under any obliga�fon to do sa. Tf
priQr to closure of t�he fina3 ce1.l, a pvrtion of the Praperty has
been conveyed to the Metropolitan Wast�� ControZ Facility foz its �
use and purposes, a� is presently contemplated wzth referenc� to
approximately ten {�,Oj " acres af the suhj�c� Property, said
Property shall be excluded from tha Property to which the option
rights sha1.1 apply. If requested by the City, USpGI will �xecute
and deiiver to the City a reaZ esta�e opt:�on in standard
rQcordable farm, setting forth the terms of this option.
10. City Service Charge.
a. Basis for Char�e, USPC2 recognia�s certain aspects .
af the priar-apprava]. review, placement and op�ration af a
Facility of the nature proposed in a residential/rura]. type city
has required and wil2 furth�r require the City to expend funds
_ � _
�' /� � � �� � . . . . �
for the Pr�-approval revf�w $nd the ongoi�q monitoring of the
operation of the FacilitY, the admi�istration of t.he ps�i�, ��,r
the Fac�.lity and ihteracti.on with USPCI artd atate, Cour�ty and
�ed�ra�, agencies. The Gity m�ty incur other oosts ��BoCiat�d with
tha Facility and i�ts �,�pact an �h� City.
b. Base Sary�,ce Char e. To off�et thase costs, USPCI
wi31, for e�ch ton o� waste deposited into the Facility, pay t,he
Czty a �ity Serv�ce Charge. The City Service Charge wh�ch shall.
initiallY be 1,mposed� cammencing wi�h the first day the Fa�ilft
Y
a�cepts wasta, �shall be computed at th� rate of $2.75 per ton,
t'or each ton �coeptad and diaposad o� in tha Facility. Tonnaq�
camputatien for th� ci�y Servfce charge shall be the same as for
the waste Generation charge. mhis City Service Charg� shall be
sub�eGt to adjust�ent, from tim� to time, and offset, as
hereinafter pravzded, Paym�nts sk��a21 be made monthly to the City
at 2875 - 145th Street West, Rosemount, Minnesot� 55058, or such
other �ocation designated in writ�.ng by the City. Payments for
each montx: shal� be due by the 25th day of the followzng month.
c. Generator Char e Ad�'ustment. At the pr�sent time it
is anticipated that �he initia.2 per ton fee charged by USPCI to
waste qenerators (�Waste Generata� Charge") wi1� be $75.4(� per
ton, and the City Service Charge payable to the City, is
predicated o� that anticzpat�d waste Generator Charge. If the
Waste Generator Charge is �.ncreased or decreased by USPCI (oth�r
than as a resu�,t of an increase in amc�unts due governrnental
entities after the Facility commences aperation, such as �pecia�
taxes, perrnit fees, etc. , which governme.ntally required �ncreases
_ 6 _
' ' � �
�h�11 not �.mpact tha p�r tdn aharge due the C�ty pur�uant to t2iis
paragraph} then the City Sezvice Charge eh�l1. be ad�us�ted pro-
r�ta. Accordingly �rid by way af oxampl�, if th�re _is a ten �10}
perCent increa�e iri the Waste Generatvr Charge (othar than
governmenta2ly mandated) �then the City 5er+✓i�,a Charge� shal�
Zikewise b� increased by �en (ZO) percenfi. Adlustment based on
this subparagraph (a) $hall be applied ta the praviaus3.y existinq
City Service charga, befcre the follcwing adjustments or offsat�,
d. A�justme` n�r Futur� Rsquired, Lec�ir�lativeZy
z_ mposed�ar Neaatiated Pa�ments. If there aze future re irad -
,_�. . � ,
negotiated or legisl�tf.ve].y mandatecl p$yments due to �he City by
uSPCI (other t:�an �s grovided herein) the inten� o� which is ta
respand to impacts rasulti.ng �'rom the Facility, such payntents
sha1.I be an oPfset agains� and a reduction o� the amounts du� the
ei'�l pursuant to this paragraph. Accordzngly and by way of
exampl�+ ff the Minnesota Legislature or oth�r governmental �ntity
With authority to do so mandates that USPCI sha].I pay the City a
tax, or other imposition, the amount at said tax oz imposition
shaZl reduce the City Service Charg�, doZlar for dollar, due :
pursuant ta this paragraph.
e. Consultant Of�se�. Ta assist the City in avaZuating
the App?ication of t�SPCI for necassary r�zoning and permit
issuance, the Ci�y has, and wi11 hereaf�Er retain cutside
consul�ants (e.g. Iegal, envizonmental, etc. ) to assist it.
USPCI has agreed to reimburse the City for these outside
consultant expenses, pursuant tv a letter agreement dat�d in
August i989. pursuant to said letter agreement, USPCX has
_ � ..
, ' � .
deposited funds with the G�ty ahd �ay here�fter d+aposit
additionaZ funds with the City, t� r�imburs�e the Gity �or outside
censu2tant expene�es. At the tim� o� City issuanae of �he Iast
p�rmit required by USPCI to oonstruat the Factlity, the amaunt of
the outside con$ultant expens�e incurred by tho City will be
d�tex�mined and wiz2 be paid by USPCI to the City urt�.es� these
funds advanced by 173pCI to the City exceed said amount, in which
case s�id exGass shall be returned ta USPG2. The �ct�t2 amount
expended or incurred by the City up to the time of 3�sudnce a�
the �,ast pex�mit (tha "Consult�nt O�fa�at^' amount) will be �n
offset agt�inrrt tha City Saxvic� Charga du� the C#.ty by USPC=
pursuant to the precedi.nq pravisions of this paragraph, said
Consult�nt Offset amount wiZl seduce the per ton City Servi�e �
Charge at tihe rate af 25. cents per ton, until th� total
Consultant offset amount has been eli�inated, Accordingly and by
way of exampl� if the total consu?tant eharge amoun�k i� $50, 004, ,
the amount due by USPCZ to the City far fi�h� first 7.00, 00o tons
deposited in �he Facility, determined in accordanc� wxth �he
forego.�.ng subparagxaphs, shaZl be reduced by 25 cents per ton.
f. The City agre�s that the funds ravide
P d ursua
� p nt to
this paragraph wi17, not be used in any manner directly
competitive to the business operations of UsPCI at the Facility.
Nothing in this provi.sion shall be censtrued to limit the City af
Rasemount's partzcipatian in recycZing ��forts.
�?. Cit� a� Rosemount - USP�Z Communit Trust Fund.
a. Establishment. USPCI in conjunction with the City
- 8 -
` ' � �
will estab�ish a CommunitY Tzvst Fur�d which �hall b� known as th�
City oP Ro�emount - USPC2 Community Trust Fund. The trtis� fund
w�21 be a�ninistered bx at board af trustse� ��d� up pf Piye (5)
persans, thzee {3) of whom wi21 be des►ig»ated by the C�,ty and two
(2) by USpCI, The trust w�11 be funded by USpC2 with a payment
ef $4. 00 pez ton (sub�ect to ad�ustment as here3,naft�r prov�.ded)
for e�ch ton of waste accepted ar�d d�c�posed of in th� Faci2lty
during the ye�rs that tha Facility is accepting w�tste. Tonna e
5
computation for the ci�y sery3ce Charge shall be th� �am� $B fo�
the Wa�te Generator Charga, p�yments ta th� true�t �hall be m$de
monthly at such pZacs design�ted in writing by th� trustees.
Payr��nfis for eaGh manth shall, be due by ths ].5th day of the
foll.awing ma;�th.
b• Use. The principal o� the trust may on].y be used at
the determ.ina�ian of �he trustees as set out in the trust
agreeme��. �Detai�ed actzvity of th� trust �und shall be as s�t `
forth on the trust document", a copy of which is attached hereto
as Exhibit "'BN and incorporated herein by reference.
C• Ad ustmer�t Bas�d on Waste Generator Char �. At the
present time it is anticipated that the i.nit�.az per ton fe�
charged to was�e generators �Nwast� Generato� chargey} wiZl be
$75•�0 p�r ton, and the Community ��St �rid Charge payable to
the Trust, is pzedicated on that anticipated Waste Generator
Charge. If the Waste Generator Charge is increased or decreased
by USPCI (other than as a result of an increase in amounts due
governmental. entities after the Facility com2nences operation,
such as permit fees, etc., which governmental].y required
- 9 -
jVi ��{, ` '�{, i� `�I 1 1 : :� �ti� ._�;1 � ;at:. �!'1 l..,d � L , ,. �v r 1 r. :i 1
. .' � •
increai�es sha�.l r�ot impact the per ton chart�e due the City
pursudnt to this paragraph) than t�:e Cammuni�y Trust Fund Charge
ghall be ad�usted pro-rata. Accordingly and by way oP example i�
thgre is a ten {l0} p�rcent increase ir► t�.he Wa�t�e Generatar
Charg� tot�er than qovernm�ntal�y mandated} then the Ccmmunity
Trust Fun� Charge shal2 lYkewise be increased by tan (10)
parcent. Adjustment bas�d on this� subpa�agra�h (c} shall be
applied to the pravi.ously existing Community �rust Fund Char�e,
before the following ad�ustments or offsets.
d. TM� Gity agrees th�t the funds provided pursuant to
this paragx�ph will not be used in any manner dir�ct2y
competi�ive to the business operatians cf USPCI at the �acility.
Nothinq zn this provisican �ha�i �e construed to lim3t the City of
Rosemaunt�� participation xn recycling efforts.
12 . Misaellaneous. �
a. The City will be given access ta operating reeords
of USPCI for the purposa oF verifyi:�g the accuracy of the amaunts
reported to have b�en accepted at the Facility.
b. USPCI �grees that any parmzt i�su�d by the City for
the Project may incorporate th� provisians of this Commitment.
� c. USPCZ agrees not to sell, assign, or trans�er its
interest zn the Facility or Property �aithout the prior consent of
the City. It is further understoad that the City �ay not assign
r�ghts or obligations of the City here�:nder without prior written
cons�nt of USPCI.
- 10 -
�... ��. �.. - . i�i _ y . � _ ���.,ry i .7 1' .i.. v .. . �. . .. i .. .._yvi i � �.
- � e' , .� � � . .
�
13. Summa . USPCI feelg it is 3n the best interest af the
City as weil as �he regf.on and the �tate that �► Facility b�
� canstructed consistent with �state of the axt� technical
knawled�� to accommodate non-haaardous indus*rial waste. The
prcpesed Facility is a p�tata of the art"' projact and will allow
contztinment a£ said non-hazardous waste in a �tann�:r vastly
superiar to tha :��nner in which said wastes are presently being
dispased of in Dakota County. Pcrtfons of the Prdperty have been
desiqnated by the Minnesots po2lution Control Ag�ncy as
Nintrinsica3.ly sv.itab�.e"' for such a Facility. Thus, USPCI �grees
to use th�ir best efforts to accomplish all necessary steps to
al�.aw the canstructian and operation of the Facility fvr the good
ot a13 persons concerned.
This Develapment commitment is ex�cuted by USPCI, INc. this
day of , 198�,
LTSPCI, INC.
By:
Its:
� 11 -
l.I J. �. �. '�' '_,� �. � • L� 'v� :SrlS?� '�"' ���± �l�"..l� �tt� � �.r i�.i�1't1 1 1 �`.1tiV1 r � ,� .
. � • `r� � � � . �
3ubjact to th� above proviaion�s, th� City will coop�rata
with USPGS in the permit appiicatian proces� and prov�,de
rea�ohable �seistanoe to USPCI in �eekinq ali necessary
approvals.
Accept�a ana agraaa ta thi� day og - �
z4as.
CITY OF ROSEMOUNT
By.
�to lx►n Hoke, Mayor
By:
St�e an s 3k, Adm n �tratar/
Cl�rk
_ 12 -
., . �
� ; �
USPCS , INCORP4RATED ROSEMOUNT COMMUNITY TRUST
` This Trust Agreement made this day of ____,
1989, by and between USPCI , INCORPORATED, a carporation organized
under the laws of the State of Delaware (hereinafter referred to
as "Donor" ) , and . ___ �
, , � an
�"""+ ~ ^�here ni a�`ter+co ecti eTy referred
to as�"Truste�j. M�
1 . Purpose of Trust. This trust i5 created and shall be
operated ex�'ic..usiv�eiy-- or the benefit of the citizens of Rc3semount
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
af Rosemount for the general welfare af the citizens of
Rosemount.
(d) To further public educational opportunities, whether by
establi�hing programs or facilities devoted to
educational purposes, or the furnishing of educationai
I scholarships; and
(e) To provide for the eharitable needs of the citizens of
Rosemount and the City of Rosemount, within the meaning
of Seetion 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. Na 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 on behalf of any candidate for public offi�ce .
Aiotwithstanding any other provisions, this trust shall not conduct
or carry on any activities not permitted to be conducted or
carried on by any arganization which is tax exempt or by an
organization to which donatiQns are deductible from taxabie income
to the extent aTlowed by the provisions of the Internal Revenue
Code and other applicable legislation and requlations as they now
exist or may hereafter be amended.
i .. . i .� � � • . . .
2. Name of Trust. The name of this trust shall be the
USPCI, Incorporated Rosemount Cummunity 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 Permit dated issued by the
City of Rosemount to Donor. A onations so received, toqether
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 Trust Fund. The Trustees shall apply the trust
f und, at suc 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 other charitable organizations
to be used within the City of Rosemount. For this purpose, the
term "charitable organizations" shall mean a corporation, trust or
community chest, fund or foundatian, 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 nat participate in, or intervene in (including the
publisha.ng or distributing of statements) , any political campaign
on behalf of any candidate for public office. Subject to the
foregoing, during the first five (5) years after the establishment
of the trust, the Trustees may annually distribute the sum of ,
Seventy-five Thousand DoTlars ($75,000) or the income of the
trust, whichever is greater. Thereafter, the Trustees may
annually distribute an amount not to exceed the income of the
trust. In no event shall the Trustees be required to distribute
sums in excess of the trust principal. Furthermore, in the event
of a catastrophic occurence 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 ($1 ,000,000) or one-third ( 1/3) of the
trust fund, whichever is less, for the uses and purposes set forth
in Paragraph 1 hereof. Any other provisions of this Trust
Agreement notwithstanding, the Trustees shail distribute the trust
income for each taxable year at such time and in such manner as
not to become subject to the tax on undistributed income imposed
by Section 4942 �of the Intern�l Revenue Code of 1986, or
corresponding provisions of any subsequent federal tax laws.
5. Action of Trustees. The Trustees shall meet at least
three (3) times during each calendar year at such times and places
as they may from to time designate. Thirty (30) days written
notice of all meetings of the Trustees shall be given to each
Trustee, except where the meeting is an adjourned meeting and the
date, time and place of the meeting are decided at the time of
adjournment. Written notice shall contain the time and place of
the meeting and shall be signed by at least two (2) Trustees.
Three (3) Trustees must be present at a duly noticed meeting to
constitute a quorum for the transaction of trust business. All
-2-
t' •� �f . . . . . . . � � . . . • . . . .
actions a� �he Traste�� �hsS�, ba t�ken by r�rec�iuti
r�o�l��d meatfr�g �,r b�r a w��,tt�r, r�corQ wiCho�� a m����,n � �u'��`
unan.fmou� e�an��n� o� a11 Tr�aste�$. g wi�h th�
froc� among them�el,v�s a� �earet�ry, w�:a�sh�Z.I�kesp���raaord af �
a�tions �� the �S�ust,ees. ., �P�fnt
but na� �,imited �o d,i�tx�;tbutio�Lof�fneam�,��ha1.��te�s, tn�ludingz
�f�irrnatfve vo�e c� a m��arfty o� the Tru�t��,� tt�sn�ir��a�g�c�
ex�apt for t;�e �ot:cawing �c�iortse
f�} Distri.but�ons� of prin�ip�;, �rom th� �r�st �und $h ,�
r��uire th� af�irm�fi�ve vote af two-thirds (�/3} afzthe
'�ru��ae� th�n ,in OL'g�,C�t� exoep� ��r di�tr3but�Qn� of
prira�ip�I m�de witihfn t�� �,irst �ive (5? years �fter
esta�b�l,si�m�n�. o� the rru�tt and
{b? �He a��►p��,Qn of 4p��`dt�.hc� ru1�s and
r��.es artd �rocedures shaP�, b� in fur�heranae��f,��r�d�r�ot
fr� eantrr�vent�on a�, the terms and p�c�visfons o� t��,�
tru�t, sh�I.1 requ�xe �.h+� vot� c£ two�-��,ird� j2/3} of the
Trustees tnen a.r� off.f��.
� Arty inst�ument r$qufr�d to be �xe�uted by thi� tr��t �ha�1,l be
v�Iid if �xecu�ec3 ir� th� nam� oE tl��a tru,�t by �hre� {3j c�£ th�
Trust$es, A copY o� any resolu��fc�n or ae�ian t�ker, by the
�'rust�es, cez�ti�ied �Y $�Y- th��� (3) o�' �M� Tru�t�e�� %��y be
r��ied upon by �tny p�rson c�ealzng wi�h t:�ia �ru�t. Nt�
sha].1 b� r�q�ixed to s�� to the apr�licatiQn oF any maney�r�an
�secu�it,��� c�� ot}�er r� ��t r�
ta inqu�,�,� �nto any �cti�n,yaec.is�o� 4��ai���a�ity a��the���e�s, a� _
Trugt�es.
6• Tru�tee� ' Pow�rs. Yri �.he administrc�tit�n of this tr�s�t ,
�r�d o� th� t at"�n�;"t�'� ��us�ees shall have alI gawers a�d
a�st�r�ri�y tae�e$sary ar av�ilab,I� to Carry Qut rhe pu�pQse� o� tihi�
trust �nd, withqut limi�ing th� ger.���2�ty of the f���g�1r,g, $hall
h��/+' �h� t�oll�►wir�g pQwers �tYd at�tht��ityr �I1 s��b�eC� , howev9�'� tv
the co;�ciftfon that no pawer ar �utho�ity sh�i.� be exerCised b� �h�
Truste�s in any mann¢r or tc�r a��y pu�rpo�� which may no� be
exe�ci�ed by an argr�r�i�a�ian which fs tax ex��pt or b� �n
org�nization ta wh�.Ch 8o�t�t�.dns are deduc�ible f�^am �$:cab3e income
to the extent a3.iowe�3 by the p���visions c�� t�e Interr�a�I Revenrae
Cad� and o��er applfcai��.e Zegisl���.on and regul��ians es they now
ex�st or m�y her�af��r b� �m�nded:
C�) To re�eiv� ��,e fnca�;e, praf+�s, ��nrs dnd proceeda o�
the tru�t £und;
tb) To purchasa, subs�ribe for, retain, invegt �r�d reinvea�
in �ecuri�ies or ather pr�perty whez�v�r �itua�ted, �nd
wheth�r or no� prodra�tfve or r�f a wa��ir�g �ature, �:,d
afthout any reqcairement �c�� diversificatio:� as to kir�d
or amaun�. The words "se�u�itie8 oY o�he� proper�y" �s
used irt tha,s �gre�m�nG �hal]. be deem�d to includ� real
or persona�. prop�rty, cc�zpor�tie sl�����, �ammon or
prefer�ed, ar any athez interest a.n �,n� co��aoxat#�sn,
as�acie�tion, #.nvestment trust or #.�v�stnz�n�c company,
bon��, rtotes, deben�e�ze� or vther avid�nc�s of
indebtadness or own�rship� secured o� unsec��red, evr_n
i • �
though the same may not be legal investrnents tor a
trustee under the applicabl laws; but securities and
other� property sha11 not be deemed to include shares or
, indPbtedness 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 praperty, or otherwise
dispose of any securities or other property at any time
held by them;
(d) To alter, repair, improve, erect buidings upon,
demolish, manage, partitian, 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 owinq to or from this trust, to commence
or defend suits or legal proceedings, and to represnt
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 advi.sable, and to hold and retain
any securities or other property which they may so
acquire;
tg) 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 laan;
( i) Ta hold part or all of the trust f und uninvested;
-4-
' � ,'� � •
(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 nomi.nee 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 a1I instruments necessary
or proper �or 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;
(mj To exercise any and all powers granted to Trustees under
Minnesota Statutes �501 .66, as it exists at the date of
execution of this 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 subseguent 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 correspanding provisions of any subseguent 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 Rasemount at
the first City Council meeting in January of each year. Class I
shall consist of three (3) Trustees, selected for their knowledge
of the needs of the citizens of Rosemount and the City of
Rosemount, and shall always include one member from the business
community of Rosemount. Class I Trustees shall serve for 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 I Trustees, the Mayor shall designate and
staqger the terms of the initial. Trustees such that in January of
each year a Trustee must be designated and appointed by the Mayor
-5-
, , . ' �
of the City of Rosemount, with the approval of the City Council ot
Rosemount. Class II Trustees, consisting of two (2) Trustees,
shall be designated and appointed by the Donor. C1ass Ii Trustees
shal�l serve at the pleasure af 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
C1ass 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 otfice of Class II Trustees, for whatever cause, sha11 be
filled by the Donar. 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 I
Trustees, the writing shail contain a certified copy of the
resolution of the City Council of Rosemount appointing the Trustee
or successor Trustee. In the case of Class ZI 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 tne Trustees from the trust fund.
9. Accounting b�►�Trustees. The Trustees shall render
accounts of t�f'ieir 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 de�med to have
approved such accaunt; 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 the Donor or the City of
Rosemount do not �pprove 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
xequire an accounting or bring any action against the Trustees
with respect to this trust, The Trustees may at any time initiate
leqal action or proceedings £or the settlement of their accounts
-6-
• . � �
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.
j 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 pesons, 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 $ame 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 Danor, 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 a11 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 hol�, manage and administer the trust fund in accordance with
the terms oF this agreement.
-7-
_ • !
IN WITNESS WHEREOF, this agreement has been executed in
Rosemount, Minnesota, by the Donor and each of the named
Trustees.
Attest: UNITED STATES POLLUTION CONTROL
INCORPORATED
By: _ BY� _
Its: Secretary - Its: President
UNITED STATES POLLUTION CONTROL
iNCORPORATED ROSEMOUNT COMMUNITY
T.RUST FUND
Trustee
Trustee
�.� __
Trustee
-----_�-___�---
. Trustee
�� Trustee
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKnTA )
On this day of , 19$9, before me, a
Notary Public,wit'`Fiin and for sa� Count personally appeared
and ,
the President an�Secretary,respect�.vely, o UNITED STATES
POLLUTION CONTROL INCORPORP,TED, to me known to be the persans
named in and who executed the foregoing instrument and
acknowledged that they executed the same on behalf of the
corporation.
Notary Puk�i 'icl
-8-
. � # •
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKOTA )
�On this day of , 1989, before me, a
�lotary Public,wit�iin and for sai� County, personally appeared
, Trustee for the USPCI , INCORPORATED
ROSEMOUNT OMMUNITY TRUST FUND, to me known to be the person named
in and who executecl the foreqoing instrument and acknowledged that
he executed the same on behalf of the trust fund.
Notary Public
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKOTA )
On this day of , 1989, before me, a
Notary Public, withi.n and for sai�d County, personally appeared
, Trustee for the USPCI , INCORPORATED
R�3( S�EMOUNT COMMUNITY TRUST FUND, to me known to be the person named
in and who executed the faregoing instrument and acknowledged that
he executed the same on behalf of the trust £und.
Notary Pub ic � �
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKOTA )
On this day of , 1989, before me, a I
�lotary Public, wik�iin and for said County, personally appeared
�_._...�_�._.�...�...�
, Trustee for the USPCI , INCORPORATED
ROSEMOUNT COMMUNITY TRUST FUND, 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 £und.
Notary Public
-9-
+ . _ s �
,
.�
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKOTA )
On this day of , 1989, before me, a
Notary Public, wit'—f�iin and for said County, personally appeared
, Trustee for the USPCI , INCORPORATED
ROSEMOUNT COMMUNITY TRUST FUND, to me known ta be the person namec3
in and who executed the foreqoing instrument and acknowledged that
he ,executed the same on behalf of the trust fund.
Notary Public
STATE OF MINNESOTA)
)ss.
COUNTY OF DAKOTA ) -
On this r� day of - �_ , 1989, before me, a
Notary Public, within and for said County, personally appeared
, Trustee for the USPCI , INCORPORATED
ROSE'MOUNT COMMUNITY TRUST FUND, to me known to be the person named
in and who executed the foregaing instrument and acknowledged that
he executed the same on behalf of the trust fund.
Notary'Public �"'
091989
-10-