8.4. SR 12-07-2015
Request for Action
To Item Number
Mayor and City Council 8.4
Agenda Section Meeting Date Prepared by
General BusinessDecember 7, 2015Matt Stevens, Chief WW Operator
Item Description Reviewed by
Wastewater Treatment Facility Bio-Solids Land Suzanne Fischer, Director, CODD
Lease Agreement
Reviewed by
Cal Portner, City Administrator
Action Requested
Approve, by motion, the Wastewater Treatment Facility Sludge Land Lease Agreement.
Background/Discussion
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The city has leased 132 acres of tillable land located at 165 Street and Jarvis in Elk River to David
Pearson for over 10 years. The city utilizes this property to dispose of sludge material from the
wastewater treatment plant, which otherwise would require disposal at a landfill. In turn, Mr. Pearson
utilizes the land for agricultural purposes. This arrangement has worked well for both the city and the
lessor over the years; however, a current agreement could not be located in city files or in city attorney
files.
Therefore, staff requested assistance from the city attorney to draft the attached agreement. The WWTP
expansion project includes processes to handle sludge materials on site and this agreement will no longer
be needed when the expansion is complete.
Financial Impact
N/A
Attachments
Agreement
8.4at1
LEASE
THIS LEASE
(“Lease”), entered into this 30th day of December, 2015, by and between
CITY OF ELK RIVER
the , whose address is 13065 Orono Parkway, Elk River, Minnesota
55330 (hereinafter referred to as the “City”) and David Pearson, whose address is 2210 Lake
Pulaski Drive, Buffalo, Minnesota 55313 (hereinafter referred to as the “Lessee”).
WITNESSETH:
1.Lease Term
. City hereby leases to the Lessee 132 tillable acres located within
the property legally described in the attached Exhibit “A” and depicted on the map attached
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hereto as “Exhibit B” and made a part hereof (“Leased Premises”), from the 30 day of
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December, 2015 to the 30 day of December, 2016 (“Term”); or, at which time the Wastewater
Treatment Plan expansion project is deemed complete by the City.
2.Rent
. Lessee, in consideration of the leasing of the Leased Premises, hereby
covenants and agrees to pay to the City annual rental of $15.00/acre (“Rent”) for each year
during the term of this Lease. The first year’s Rent shall be payable by Lessee upon execution of
this Lease in three (3) installments of $660.00 each due and payable on or before April 1, 2016;
August 1, 2016, and December 1, 2016 during the Term of this Lease.
3.Care, Maintenance, Use Covenants
. Lessee covenants that Lessee will:
(i) farm and care for the Leased Premises in a good husband-like manner, and in accordance with
good farming and soil conservation practices; (ii) not commit or permit waste on the Leased
Premises; (iii) carefully protect all improvements of every kind that are now on the Leased
Premises; (iv) promptly at the expiration of the term of the Lease yield up possession of the
Leased Premises, without notice, unto the City in as good condition and repair as the Leased
Premises now is or may be at any time during the continuance of this Lease, ordinary wear and
tear excepted; and (v) keep the Leased Premises free from all weeds and destroy all weeds along
the fences and around all improvements thereon.
4.Hunting/Recreational Rights
.This Lease is for agricultural purposes only. No
part of this Lease shall be construed to grant Lessee rights to hunt on the Leased Premises or
allow others to hunt on the Leased Premises without the written permission of the City.
5.Use of Leased Premises
. The City and Lessee shall, as applicable, abide by and
conform to all statutes, ordinances, rules and regulations of duly constituted public authorities
relating to the use or occupancy of the Leased Premises. Lessee acknowledges that the City has
the right to limit crops and cultivating in specific areas to avoid dust, debris, weeds and etc.,
from affecting abutting parcels or right of way. Lessee further acknowledges that City owns the
Leased Premises for the express purpose of spreading bio solids from the City Waste Water
Treatment Plant on the Leased Premises, and that Lessee’s use of the Leased Premises is subject
and subordinate to City’s use of the Leased Premises for this purpose. Accordingly:
(a)City shall have the right to spread bio solids on the Leased Premises each
Spring (May or June) and each Fall (September or October);
(b)Lessee shall plant the Leased Premises each Fall, even if the City does not
spread bio solids until October;
(c)Lessee shall not be allowed to apply any fertilizer to the Leased Premises
without the written permission of the City;
(d)No crops shall be planted on the Leased Premises until City has identified
the amount of nutrients that need to be used up in the soil and has approved a specific
crop for planting;
(e)No crops grown by Lessee on the Leased Premises shall be sold or used
for human consumption; and
(f)No lives stock will be permitted on the Leased Premises at any time for
any reason; and
(g)City reserves the right to impose additional restrictions on Lessee’s use of
the Leased Premises if City determines it necessary to do so to facilitate City’s use of the
Leased Premises for spreading bio solids.
6.Possession/Termination
.
(a)By City. City reserves the right to demand possession of all or any portion
of the Leased Premises at any time for any purpose and to terminate this Lease.
Whenever the City takes possession of all or any portion of the Leased Premises or the
Lease is terminated by the City for any reason (except in the event the Lease is
terminated as a result of an event of default by Lessee), Lessee shall plow under all crop
residue and harrow the surface area smooth, within safety areas. In such events, the City
shall pay reasonable damage for growing crops taken, an agreed value for work done on
planted land.
(b)By Lessee. Lessee shall have the right to terminate this Lease at any time
by giving written notice to City. Upon doing so, Lessee shall plow under all crop residue
and narrow the surface smooth, within safety areas. Provided Lessee is not in default
under this Lease, Lessee shall have no further liability to City.
7.Taxes
. Lessee shall be responsible for all personal property and real estate taxes
incurred as a result of this Lease.
8.Insurance
. Lessee covenants that at Lessee’s own cost and expense Lessee will
purchase and continue in force, in the names of the City and Lessee, general liability insurance
against any and all claims for injuries to persons or damage to property occurring in, upon or
about the Leased Premises during the term of this Lease, such insurance to be in an amount not
less than One Million ($1,000,000.00) Dollars (combined single limit personal injury and
property damage). Such insurance shall be written in a company or companies authorized to
engage in the business of general liability insurance in the State of Minnesota, and there shall be
delivered to the City customary certificates evidencing such paid-up insurance, which
certificates are to be issued by the insurance companies and which certificates shall further
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provide that such general liability insurance may not be cancelled unless the City is notified in
writing thirty (30) days prior to any such proposed cancellation.
9.Environmental Matters and Indemnification
. The term "Environmental Laws"
shall mean all federal, state and local laws, including statutes, regulations, ordinances, codes,
rules and other governmental restrictions and requirements relating to the discharge of air
pollutants, water pollutants or process waste water or otherwise relating to the environment or
hazardous substances, including but not limited to the Federal Solid Waste Disposal Act, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource Conservation and
Recovery Act of 1976, the Federal Comprehensive Environmental Responsibility, Cleanup and
Liability Act of 1980, regulations of the Environmental Protection Agency, regulations of the
Nuclear Regulatory Agency and regulations of any state department of natural resources or state
environmental protection agency now or at any time hereafter in effect.
In order to induce the City to enter into this Lease, the Lessee covenants, represents and
warrants to the City that while this Lease is in effect Lessee will comply with all applicable
Environmental Laws.
Lessee shall indemnify the City against all claims, demands, charges, damages, orders,
judgments, citations, or costs, including reasonable attorneys' fees which the City may incur by
reason of any violation of Environmental Laws occurring on the Leased Premises for which the
City may become responsible by reason of the City’s use of the Leased Premises.
10.Subletting/Assignment
. Lessee shall not sublet the Leased Premises or assign
the Lease without the express written consent of the City.
11.Damage to Lessee Property
. All property belonging to Lessee or any occupant
of the Leased Premises shall be there at the risk of Lessee or such other person only, and the City
shall not be liable for any damage thereto and Lessee waives all claims against the City for
damages to persons or property sustained by Lessee or any occupant of the Leased Premises,
except those claims arising from the gross negligence of the City, its agents or employees.
12.Waiver
. One or more waivers of any covenant, term or condition of this Lease by
either party shall not be construed by the other party as a waiver of a subsequent breach of the
same covenant, term or condition. The consent or approval of either party to or of any act by the
other party of a nature requiring consent or approval shall not be deemed to waive or render
unnecessary consent to or approval of any similar act.
13.Covenants to Hold Harmless
.Except in the case of the gross negligence of the
City, its agents, or its employees, the Lessee agrees to save, hold harmless, and defend the City
against any liability for damages, including reasonable attorneys’ fees and costs, to any person or
property in or about the Lease Premises. The City shall not be liable to the Lessee, its agents,
employees, representatives, customers, or invitees for any personal injury, death, or damage to
property caused by theft, accident, water, gas, electricity, fire, machinery or for any other cause
occurring on or about the Leased Premises. All property kept, stored, or maintained on the
Leased Premises shall be so kept, stored, or maintained at the sole risk of the Lessee.
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14.Relationship of Parties
. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship of principal and
agent or of partnership or of joint venture or of any association whatsoever between the City and
Lessee, it being expressly understood and agreed that neither the payment of rent nor any act of
the parties hereto shall be deemed to create any relationship between the City and Lessee other
than the relationship of landlord and tenant.
15.Events of Default/Remedies
. The following shall be an “Event of Default”
under this Lease:
(a)Lessee fails, neglects or refuses to pay any installment of rent at the time
and in the amount as herein provided;
(b)That any voluntary or involuntary petition or similar pleading under any
section or sections of any bankruptcy act shall be filed by or against Lessee, or any
voluntary or involuntary proceeding in any court or tribunal shall be instituted to declare
Lessee insolvent or unable to pay Lessee's debts, and the same shall not be dismissed or
discharged within thirty (30) days after notice thereof in writing given to Lessee by the
City;
(c)Lessee fails, neglects or refuses to keep and perform any of the other
covenants, conditions, stipulations or agreements herein contained and covenanted and
agreed to be kept and performed by it, and in the event such defaultshall continue for a
period of more than thirty (30) days after notice thereof in writing given to Lessee by the
City;
(d)Lessee makes any assignment of its property for the benefit of creditors or
should the Leased Premises be taken under a levy or execution or attachment in an action
against Lessee and such levy, attachment or assignment is not dismissed and discharged
within thirty (30) days after written notice thereof to Lessee by the City.
The City shall have the right to terminate this Lease if Lessee fails to cure an Event of Default
within ten (10) days written notice. If Lessee fails to cure an Event of Default within the cure
period the City shall have the right to terminate this Lease and exercise any remedies available
under applicable law to regain possession of the Leased Premises. In the event that Lessee is in
default under this Lease and the Lease is terminated and Lessee fails to vacate the Leased
Premises, the City shall be entitled to recover all costs and expenses including reasonable
attorney’s fees incurred by the City in enforcing the terms of this Lease and regaining possession
of the Leased Premises. The reimbursement required under Paragraph 7 shall not apply.
16.Quiet Possession
. If Lessee shall pay promptly when due the rentals herein
agreed to be paid, and shall faithfully keep, abide by and be bound by the conditions and
agreements of this Lease and perform the covenants hereof, the City warrants to Lessee the quiet,
peaceful and undisturbed possession of the Leased Premises during the full term of this Lease,
except as otherwise provided herein, including Paragraph 6 hereof.
17.Attorneys’ Fees
. If any action at law or in equity shall be brought in court to
recover any rent under this rental agreement or for or on account of any breach of or to enforce
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or interpret any of the covenants, terms, or condition of this Lease or for the recovery of the
possession of the Leased Premises, the City shall be entitled to recover from the Lessee as part of
the City’s costs, its reasonable attorneys’ fees, the amount of which shall be fixed by the court
and shall be made a part of any judgment or decree rendered.
18.Binding Effect
. This Lease shall supersede any and all prior leases between the
parties with respect to the Leased Premises and shall extend to and be binding upon the heirs,
executors, administrators, trustees, successors, receivers and assigns of the parties hereto.
19.Notice
. All notices to the parties shall be sent to the addresses set forth herein and
shall be effective upon personal delivery or three (3) business days after placed in the U.S. Mail
postage prepaid.
IN WITNESS WHEREOF,
the parties hereto have executed this lease as of the day and
year first above written.
CITY OF ELK RIVER
By:
John J. Dietz, Mayor
And:
Tina Allard, City Clerk
LESSEE:
By:
And:
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EXHIBIT A
Legal Description of Leased Premises
120 acre parcel
Parcel ID 75-012-4100
Parcel n/a
Parcel Type RE
Property Address
Plat n/a
Sec-Twp-Rng Sec.12 T32N R26W
Legal Description EXEMPT SE 1-4 EX SW 1-4 OF SE 1-4.
Last Recording N/A
Class 776-Municipal - All Other
Occupancy NON-HOMESTEAD
Deeded Acres 120.00
Tax District ELK RIVER CITY
School District 728 - ELK RIVER
25 acre parcel
Parcel ID 75-603-0020
Parcel n/a
Parcel Type RE
Property Address
Plat 603-PARKVIEW ADDITION
Sec-Twp-Rng Sec.13 T32N R26W
Legal Description OUTLOT B
Last Recording N/A
Class 776-Municipal - All Other
Occupancy NON-HOMESTEAD
Deeded Acres 75.07
Tax District ELK RIVER CITY
School District 728 - ELK RIVER
A-1
EXHIBIT B
B-1