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4.1. PCSR 11-28-2017 Request for Action To Planning Commission Item Number 4.1 Agenda Section Public Hearings Meeting Date November 28, 2017 Prepared by BrieAnna Simon, Planner Item Description Conditional Use Permit: Tiller Corporation Reviewed by Amanda Bednar, Environmental Coordinator Reviewed by Zack Carlton, Planning Manager Action Requested Recommend, by motion, approval of the Conditional Use Permit (CUP) authorizing Mineral Excavation and a portable concrete plant, with the following conditions: 1. If the proposed site improvements described in the application and CUP have not been substantially completed within two years of the permit’s date of approval, the permit shall expire and become void. 2. The CUP shall expire if the authorized use ceases for more than six months. Failure to obtain an annual license will be evidence of cessation of use. 3. The applicant must apply for and receive approval of all required permits before any construction may begin. 4. A Mineral Extraction License shall be obtained annually. 5. All activities on the site shall be conducted in a manner that is consistent with operating permits issued by the city, county, state, federal, and other agencies. A copy of any and all permits related to the operation of the site shall be submitted to the city for their reference. 6. Setbacks of 50 feet from Baldwin Ave. and PID#75-103-3100 shall be maintained. Setbacks of 30 feet from US Hwy. 169 and PID#75-103-4201 shall be maintained. Setback of 30 feet from the north property line, unless mining collaboration agreement across property lines is confirmed. No mining activity shall be permitted within the setback area without staff approval. 7. Portable concrete plant shall maintain setbacks of 50 feet from Baldwin Ave and PID#75-103-3100 shall be maintained. Setbacks of 30 feet from US Hwy 169 and PID#75-103-4201 shall be maintained. Setback of 30 feet from the north property line, unless mining collaboration agreement across property lines is confirmed. No mining activity shall be permitted within the setback area without staff approval. 8. The need of buffering and/or screening in light of surrounding land uses shall be evaluated at the time of annual license renewal and shall be installed when directed by the city to protect surrounding land uses. 9. The applicant shall be responsible for the cost and construction of all road improvements, including turn lanes, as required by the township, Sherburne County or MnDOT. The city reserves the right to require the applicant to pay for road maintenance of haul routes. 10. The applicant shall work with the city engineer to locate the berming along Baldwin Street NW. 11. Wash operations shall not be permitted unless a plan for protecting ground water and surrounding environment is approved by the city’s environmental consultant. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-34 Tiller\4-Planning Commission\CU 17-34 Tiller_PC 11-28-17.docx 12. Dust control is required for all roads and within the site in accordance with air pollution standards and to ensure dust does not create a public nuisance or otherwise adversely affecting adjacent properties. 13. Vehicles and equipment not in operable condition or materials not associated with the mineral extraction/excavation activity shall not be kept or stored at the site. 14. The site shall be mowed or maintained to control noxious weeds and other vegetation. Existing trees and ground cover shall be preserved to the maximum extent possible. 15. Fencing shall be installed during extraction operations to ensure the safety of the public and environment as determined by the city engineer and environmental staff. 16. Hours of operation are 4:00 a.m. until 10:00 p.m. Monday-Friday and 7:00 a.m. to 7:00 p.m. on Saturday. 17. Trucking and hauling shall be allowed between the hours of 6:00 a.m. and 7:00 p.m. Monday- Saturday. 18. A reclamation plan that reflects the 63 acre operation shall be approved by the city and completed within six months of cease of operation. 19. A letter of credit or bond in the amount of $157,500 shall be provided to ensure reclamation is completed within six months of cease of operation 20. The previous recorded CUP (CU 17-14), Recording Number 846084 approved on July 17, 2017, has been incorporated into this CUP and will become void. 21. The previous recorded CUP (CU 17-01), Recording Number 841541 approved on February 21, 2017, has been incorporated into this CUP and will become void. 22. The previous recorded CUP (CU 07-08), Recording Number 668970 approved on May 10, 2008, has been incorporated into this CUP and will become void. Background/Discussion Case No. CU 17-34 The applicant is seeking a Conditional Use Permit (CUP) amendment for mineral excavation on 12450 Ranch Road (PID 75-121-2000) and near the northern limits of Elk River. Site operations include stripping, extraction, processing, and recycling of concrete and asphalt reclamation. Materials suitable for reclamation will also be blended onsite with excavated aggregates. The applicant has previously received a CUP for this location. Portable Concrete Plant Portable concrete plants are used to produce materials for road construction, such as concrete pavement and bridge structures. The proposed plant will be located on site near the aggregate being sourced. The applicant has requested the concrete plant be portable and approved for the entirety of the site in order to keep the plant near the aggregate being sourced. Staff is recommending that the portable concrete plant maintain all setbacks outline for this site. The setbacks as they apply to this project are 50 feet along Baldwin Ave. and the first 540 feet from the southern property line from the southwest corner adjacent to PID #75-103-3100. Also, the setback of 30 feet is required along the property line adjacent to US Hwy. 169 and the first 1,150 feet from the southern property line from the southeast corner adjacent to PID #75-103-4201. Because mining is occurring on properties to the north, it is suggested that mining permitted within the setback areas to avoid a windrow situation along the property lines in collaboration with mining operations to the north. Setback from the N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-34 Tiller\4-Planning Commission\CU 17-34 Tiller_PC 11-28-17.docx property line to the north will be 30 feet, unless mining collaboration agreement across property lines is confirmed. Tiller has conducted sound level monitoring for all sites in Elk River and has demonstrated the ability to comply with the nighttime noise standards. This information has been received by the City of Elk River as part of their annual Mineral Excavation License application. Based on this information and monitoring of noise complaints from residents, staff recommends the approval of this request to permit a portable concrete plant on this site. Applicable Regulations The issuance of a Conditional Use Permit can be ordered only if the use at the proposed location: 1. Will not endanger, injure or detrimentally affect the use and enjoyment of other property in the immediate vicinity or the public health, safety, morals, comfort, convenience or general welfare of the neighborhood or the city. The proposed use will not detrimentally affect nearby property as the use fits with the intended use of the development and is located adjacent to other mineral excavation establishments. The annual permitting process takes neighboring properties into account. The proposed use will comply with MN Rules Chapter 7030, Noise Pollution Control for all sites during all operating hours. 2. Will be consistent with the comprehensive plan. The use is consistent with the comprehensive plan. The proposed use fits the mineral excavation guidance for the property through the Gravel Mine Area Study completed in 2014. 3. Will not impede the normal and orderly development and improvement of surrounding vacant property. The proposed use will not affect the surrounding Commercial Reserve Transition (zoning district) and Development Reserve (land use). This area of Elk River and the surrounding Livonia Township land is largely used for gravel mining and landfill operations. 4. Will be served adequately by and will not adversely affect essential public facilities and services including streets, police and fire protection, drainage, refuse disposal, water and sewer systems, parks and schools; and will not, in particular, create traffic congestion or interference with traffic on adjacent and neighboring public thoroughfares. The facility will not be served by city services and there does not appear to be any other potential impacts to public facilities or services. Baldwin St. NW and 225th Ave. NW are currently used for gravel mine hauling from neighboring operations. This operation will meet road restriction rules. 5. Will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons or property because of excessive traffic, noise, smoke, fumes, glare, odors, dust or vibrations. This proposal underwent an Environmental Assessment Worksheet (EAW) with the City of Elk River to determine the potential environmental effects of the operation. The city determined that the proposed operation would not result in non-reclaimable environmental degradation. The conditions outlined in this CUP are in place to minimize the effects of noise, odors, and dust that are common for gravel mine operations. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-34 Tiller\4-Planning Commission\CU 17-34 Tiller_PC 11-28-17.docx 6. Will not result in the destruction, loss or damage of a natural, scenic or historic feature of major importance. This proposal underwent an EAW with the City of Elk River to determine the potential environmental effects of the operation. The city determined that the proposed operation would not result in non-reclaimable environmental degradation. 7. Will fully comply with all other requirements of this Code, including any applicable requirements and Standards for the issuance of a license or permit to establish and operate the proposed use in the city. The applicant is required to comply with all other sections of the code and must apply for all required building permits in addition to the Conditional Use Permit. The proposed use will comply with MN Rules Chapter 7030, Noise Pollution Control for all sites during all operating hours. If denial of such a permit should occur, it shall accompany recommendations or determinations by findings or a report stating how the proposed use does not comply with the standards set forth in Section 30-654. In the review of the standards for CUP as outlined, it appears that the request is consistent with all of these standards. Financial Impact None Attachments  Location Map  Application for Amendment to CUP for Mineral Excavation dated October 2017  Previously recorded document (CU 17-14)  Previously recorded document (CU 17-01)  Previously recorded document (CU 07-08) Tiller Corporation: Elk River Sand and Gravel Mine    1 | Page  Conditional Use Permit Amendment Application  October 17  TILLER CORPORATION    APPLICATION FOR   AN AMENDMENT TO CONDITIONAL USE PERMIT  FOR MINERAL EXCAVATION  ELK RIVER, MINNESOTA    1. Introduction:    Tiller Corporation (Tiller) is requesting an amendment to a Conditional Use Permit (CUP) for  Mineral Extraction for our Site located in Elk River at 12450 Ranch Road (CSAH 33). Site  operations include stripping, extraction, processing, recycling of concrete and asphalt and  reclamation.  These operations are currently permitted to occur from 4:00 A.M. until 10:00 P.M.  Monday through Friday and 7:00 A.M. to 7:00 P.M. on Saturday.  Loading and trucking operations  are currently permitted to occur from 6:00 A.M. to 7:00 P.M. Monday through Saturday.  This  amendment request is limited to adding the ability to locate a portable concrete plant at the Site  on as needed basis for local projects.  No changes are being sought for any other aspect of our  permit.  Figure 1 ‐ General Location Map, illustrates the Site general location.    2. Legal Description of Property:    See Exhibit 1    3. Name and Address of Operator and Property Owner:    Tiller Corporation  7200 Hemlock Lane, Suite 200  P.O. Box 1480  Maple Grove, MN 55311‐6480  (763) 425‐4191    4. Names and addresses of all adjacent land owners within 350 feet of the Site:     See Exhibit 2     5. Detailed Map of Haul Routes:    Figure 2, Haul Routes, illustrates the extent of the haul routes within the City limits. The Site is  located on CSAH 33 (Ranch Road) and the majority of the trucks utilize this to access US 169.  County and state highways will be used for the majority of hauling.  Local roads east of US 169  and west of the Site will be used only as needed for local deliveries.  Proctor Road south of CSAH  33 is posted seven tons per axle; therefore, loaded trucks are prohibited from using this route.    6. Concrete Plant:  Portable concrete plants produce materials for road construction including concrete pavement  and bridge structures.  Concrete consists of entrained air, water, portland cement and aggregate.  Tiller Corporation: Elk River Sand and Gravel Mine    2 | Page  Conditional Use Permit Amendment Application  October 17                      Source: 2017 Portland Cement Association   Plants are sometimes located on or near the construction project and many times they are located  at the aggregate source.  When the majority of the aggregate is being sourced from one site it is  common to position the portable plant at the aggregate source and then transport the concrete  to the project.    Figure 3, Surrounding Area, illustrates surrounding land uses and the permitted area.  The Site  box on Figure 3 indicates the approximate area where a portable concrete plant would likely be  located.     7. Request:    Tiller is respectfully requesting an amendment to the existing CUP for the Site that will allow the  ability to locate a portable concrete plant at the Site on as needed basis for local projects.  No  other changes are being sought for any aspect of the CUP.    The necessary State permits for the portable concrete plant will be in place prior to locating the  plant at the Site.  In addition, Tiller plans to notify City staff on a case by case basis when a plant  is scheduled to be located at the Site.  This will allow an opportunity to communicate the timing  of these projects with various City contacts.       Livonia Big Lake Otsego Ramsey Nowthen Orrock Saint Francis Figure 1Site General LocationSite Cities and Townships $ 0 2 41Miles StanfordZimmerman DaytonSt. Michael Rogers Albertville Elk River Site Livonia Big Lake Otsego Ramsey Nowthen Orrock Saint Francis Elk River Site Figure 2Haul Routes Route for Local Projects Only Route for Majority of Projects Roads Sourced from MnDOT Cities and Townships $ 0 1 20.5 Miles CSAH-33 US 169 US 10 US 10 Imagery ©2017 , DigitalGlobe, U.S. Geological Survey, USDA FarmService Agency Figure 3Site and Surrounding AreaScreening Berms Property Boundary $ 0 1,000 2,000500Feet City Park Residential Site Residential Residential City Park Residential Mining Mining US 169 Office of the County Recorder Sherburne County,MN Doc. No. 846084 Certified,filed,and or recorded on October 4,2017 10:55 AM Michelle Ashe,County Recorder By SD Deputy Fees:$46.00 ill ill 11111 1111111 846084 THIS DOCUMENT IS BEING RECORDED TO CORRECT THE LEGAL DESCRIPTION IN DOCUMENT 845331 RECORDED SEPTEMBER 20,2017 CITY OF ELK RIVER SHERBURNE COUNTY CONDITIONAL USE PERMIT Case No. CU 17-14 Permit. Subject to the terms and conditions set forth herein, the City of Elk River hereby grants a conditional use permit("Permit") requested by Tiller Corporation, for the following use: Conditional Use Permit to allow mineral excavation on the property per the attached Agreement for Issuance of a Conditional Use Permit. Property. The Permit is for the following described property ("Subject Property") in the City of Elk River, Sherburne County,Minnesota: See Attached Agreement for Issuance of a Conditional Use Permit Owner. Owner of the Subject Property at time of the approval of the Permit: Tiller Corporation Conditions. The Permit is issued subject to the following conditions: 1. If the proposed site improvements described in the application and CUP have not been substantially completed within two years of the permit's date of approval, the permit shall expire and become void. 2. The CUP shall expire if the authorized use ceases for more than six months. Failure to obtain an annual license will be evidence of cessation of use. 3. The applicant must apply for and receive approval of all required permits before any construction may begin. 4. A Mineral Extraction License shall be obtained annually. 5. The need of buffering and/or screening in light of surrounding land uses shall be evaluated at the time of annual license renewal and shall be installed when directed by the city to protect surrounding land uses. 6. All activities on the site shall be conducted in a manner that is consistent with operating permits issued by the city, county, state, federal and other agencies. A copy of any and all permits related to the operation of the site shall be submitted to the city for their reference. 7. Hours of operation are 4 a.m. until 10 p.m. Monday-Friday and 7 a.m. to 7 p.m. on Saturday. 8. Trucking and hauling shall be allowed between the hours of 6 a.m. and 7 p.m. Monday-Saturday. 9. A reclamation plan for the property as described in Exhibit 1 of the Tiller Application dated May 2017 including final grades,proposed topography, and a vegetation establishment plan, shall be approved by city staff. This must be received by August 31,2017, and will be added to the approved plans for this site. 10. All conditions from the previous CUP (CU 07-08) Recording No. 668970 approved on May 10,2008,need to be met. Termination of Permit. The Permit shall remain in effect only for so long as the conditions set for the herein are complied with. The City may revoke the Permit following a public hearing for violation of the terms and/or conditions set forth in the Permit. Lapse. If within two (2) years of the issuance of the Permit the proposed work described in a conditional use permit has not been substantially completed, the permit shall expire and become void, except that the council may, following recommendation of the planning commission, extend the permit for an additional period determined by the council on the receipt of a request for a permit extension prior to its expiration. A conditional use permit authorizes only the use specified in the permit and shall expire if, for any reason, the authorized use ceases for more than six (6)months. Criminal Penalty. Both the owner and any occupant of the Subject Property are responsible for compliance with the permit. Violation of the terms of the Permit is a criminal misdemeanor. Recording. The Permit shall be recorded against the tide to Subject Property. Dated:July 17,2017. CITY OF ELK RIVER By. M r By: City Clerk 7 t , STATE OF MINNESOTA ss. COUNTY OF SHERBURNE ) The foregoing instrument was acknowledged before me this /8'of, - ,wggday 2017, by John J. Dietz and Tina Allard,respectively,the Mayor and City Clerk of the City of tlk River,a Minnesota municipal corporation,on behalf of the corporation and pursuant to the authority granted by the City Council. 16`' leVe4 ,tyNotaryPublic DRAFTED BY: DEBORAH KAY HUEBNER NOTARY PUBLIC-MINNESOTA City of Elk River My Commission Expires Am$1,2020 13065 Orono Parkway NW Elk River,MN 55330 Phone: 763-635-1000 CITY OF ELK RIVER AGREEMENT FOR ISSUANCE OF CONDITIONAL USE PERMIT FOR MINERAL EXCAVATION THIS AGREEMENT, made and entered into thisaf4z.e,i-e-,; day of2017 by and between the CITY OF ELK RIVER, a municipal corporation organized under the laws of the State of Minnesota (City), and Tiller Corporation, a Minnesota corporation, hereinafter referred to as (Operator); WITNESSETH: WHEREAS, Operator has made application to City for approval of a conditional use permit to operate a gravel mining operation within the City on property legally described as follows: See Exhibit 1 Legal description of the Tiller Property attached the Property);and WHEREAS, the City of Elk River Planning Commission and City Council have held hearings on Operator's request for a conditional use permit, at which hearings all citizens of the City of Elk River and other interested parties have had the opportunity to be heard on the application;and WHEREAS, the City Council by motion adopted on this 19th day of March, 2007, an amended conditional use permit for the operation of a gravel mining operation (the Operation) on the Property, subject to certain conditions, including that Operator enter into a conditional use permit agreement with City so as to fully comply with the City's Mineral Excavation, Zoning, and other applicable ordinances;and WHEREAS, the City's Zoning Ordinance requires that a conditional use permit be issued and that a conditional use permit agreement for mineral excavation be entered into. NOW, THEREFORE, in consideration of the premises and the mutual promises and conditions hereinafter contained,it is hereby agreed as follows: 1.) Entire Agreement- Except as otherwise provided herein, this Agreement shall constitute the Conditional Use Permit for the Property and, to be executed by City and Operator, shall govern the parties' rights, responsibilities, and obligations with respect to the Page 2 operation, subject to the compliance by all parties with applicable city ordinances and state and federal laws. 2.) Warranty of Operator- Operator hereby warrants and represents to the City, as inducement to the City's entering into this agreement, that the Operator is the fee owner of the subject property or has a valid lease for the operation and the fee owner of the subject property shall also enter into this agreement. 3.) Conditions-The following general conditions shall apply to the Operation: 01) This Conditional Use Permit authorizes mineral excavation (gravel) from the Property. 02) All mineral excavation and processing operations on the property shall comply with the City's Mineral Excavation, Zoning and other applicable ordinances;with the terms of this Conditional Use Permit agreement and the license agreement to be executed by the City and Operator; with the City of Elk River's Environmental Impact Statement on Mineral Excavation; and with the application materials and plans submitted by the Operator, which plans and materials are the basis for the City's approval of the Conditional Use Permit. 03) The Operator shall orally notify the City of any violations of this permit within 24 hours and follow this with notification in writing within four (4) working days of the violation. The Operator shall notify the City annually in writing of the total area and amount of material mined and projected estimates of area and amount of material to be mined in the following year. This is to be done at time of license renewal. 04) The license shall be renewed annually and shall run from June 1st through May 31st. The annual license fee is that which is specified by the Elk River City Council at time of renewal. This license fee is not in lieu of gravel tax collected by the County, a portion of which the City receives. 05) Violations of this Conditional Use Permit may result in suspension or revocation. 06) The City Environmental Administrator and/or his/her agents shall be permitted to inspect the Operation for compliance with the conditions of this permit during normal hours of operation. 07) The City's approval of this Conditional Use Permit is subject to the approval of appropriate permits by other governmental agencies. 08) No explosives shall be allowed for this operation. 09) Any areas where obvious danger to the public exists shall be controlled by a four-foot-tall fence with support posts every ten feet. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 3 10) Reclamation a.Reclamation shall be implemented on an annual basis pursuant to the reclamation plans submitted by the Operator. b.Each year a plan for that year's reclamation shall be approved by the Environmental Administrator prior to issuance of the mineral excavation license. c.A $5,000 letter of credit, bond or other deposit approved by staff shall be required prior to the issuance of the annual license to cover the forth coming year's reclamation. d. The reclamation shall include topsoil from the site being preserved and put back into place after mining. e.The vegetation established for reclamation must be maintained until it is self-sufficient. f.Contours, finished grades, details of erosion control methods, and settling ponds, shall comply substantially with the plans submitted and the City ordinance at the time of reclamation. 11) Groundwater protection measures shall include: a.Extraction and crushing operations shall be maintained at a minimum of 4 feet above the water table. Approval to excavate deeper shall require an amendment to this Conditional Use Permit. b. The Operator shall file with the City an Emergency Spill Response Plan. The Operator shall adhere to these plans in the event there is a spill. c.The Operator shall provide the Fire Department with a copy of their flammable or hazardous materials. d.Fuel tanks shall be above ground, properly diked (if required by law), and registered with MPCA. e.All instances that have the potential to adversely affect groundwater, including, but not limited to spills, shall be verbally reported to the City within 24 hours. This verbal notification shall be followed up in writing within four (4)working days. f.Appropriate Water Appropriation Permit (s) from the Department of Natural Resources (DNR) must be obtained. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 4 g. Water level monitoring and water quality monitoring shall be conducted pursuant to the consultant's recommendations. h. Water usage by mining activities shall not adversely affect adjacent residential wells. Mitigation measures may include, but are not limited to, curtailing of pumping activities until water levels return. i. If it is proven by the City or the DNR, that the mining activities have had a negative affect on adjacent wells that will require remedial actions, it is the responsibility of Operator to take the remedial action within thirty (30) days necessary to correct the situation and pay for both the remedial action and the City's cost for investigation. j. Routine vehicle maintenance shall be performed using Best Management Practices (BMPs). A hazardous waste license through the MPCA will be required as deemed necessary. All waste fluids will be contained, cleaned up, and recycled or disposed of according to appropriate MPCA regulations. Spills must be reported to the State Duty Officer as required. 12) Wetlands a.All wetland impacts must be reviewed under the criteria of the Wetland Conservation Act (WCA). b. All storm water associated with mining activities must receive pre- treatment (where necessary) prior to release to natural wetlands or off-site. c.Best management practices will be used to protect natural wetlands. d. Mining activities shall be adjusted as necessary to avoid negative affects on wetlands,including a decrease in water levels. 13) Oakwilt Cutting of trees between April 15 and July 15 is prohibited. The Operator shall take other measures deemed appropriate by the Sherburne County Forester to control oakwilt, such as, but not limited to: debarking or destroying fallen diseased trees prior to April 15th, not leaving roots exposed and avoiding mechanical damage on remaining trees. 14) Dust Control a.A permit from MPCA regarding air emissions shall be obtained and particulate emission standards shall be met by the Operation. b. All equipment shall be located as to reduce dust to adjacent residential properties. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 5 c.Water, but no chemical agents, shall be used to control dust as necessary. d. The City reserves the right to require additional measures to be taken if warranted by dust problems including, but not limited to, reducing stock pile heights. 15) Traffic a.All traffic associated with the operation shall only use County Road 33 back and forth to U.S. Highway 169. Except for localized jobs, no traffic from this operation shall use Proctor Avenue or County Road 33 to the west of the site. Operator shall post notice of these requirements at the exit from their site. Failure to control traffic from this Operation shall constitute a violation of this Conditional Use Permit. b. The location of the access to the site shall be determined by the Sherburne County Engineer. An access permit from Sherburne County may be required of the operator. 16) Wash water used in the operation shall be recycled in a two- pond system allowing for sedimentation. 17) Noise a.Noise from screening and crushing associated with this operation shall be controlled by location on the site, the placement of stockpiles, type of equipment and ultimately by placing them in soundproof buildings,if necessary as determined by staff. b. Microwave back-up alarms or equivalent alternative technology shall be used as determined necessary by staff. c.A turnaround will be provided within the pit so that trucks not equipped with microwave back-up alarms will not need to back-up. d. The state's noise level standards for daytime and nighttime hours must be adhered to. e.A noise assessment must be completed after sixty (60) days of operation in the season and at other times as deemed necessary. 18) Hours of Operation. All mineral excavation and processing activities shall be conducted N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller A Page 6 between the hours of 4:00AM and 6:00PM,Monday through Friday from mid-March weather permitting) thru mid-July unless prior approval is given by the Environmental Administrator and/or his/her agents. Trucking operations shall be conducted between the hours of 6:00 AM and 7:00 PM, Monday through Saturday unless prior approval is given by the Environmental Administrator and/or his/her agents. 19) Lighting. Lighting from the operation shall be directed away from public right-of-way and nearby or adjacent residential property. Glare, whether directed or reflected as different from general illumination, shall not be visible from beyond the limits of the immediate site. All sources of artificial lights shall be so fixed, directed, designed, or sized, that the minimum subtotal of their illumination shall not increase the level of the illumination on any nearby residential property for more than .1 foot candles in or within 25 feet of a dwelling or more than .5 foot candles on any part of the property. 20) The piling, storing or keeping of old machinery, junk, debris, or abandoned motor vehicles, shall be prohibited on the site. 21) Mining activities shall not cause excessive vibration off-site. 22) Mechanism for responding to complaints. a.Representatives of the Operation shall make themselves available to address complaints. A plan to deal with the complaint shall be developed and implemented. Operator will also follow up with the complainant and all appropriate documents copied to the City within one (1)week. 4.) General Provisions - 01) Permits - Operator agrees to comply with all of the provisions hereof and agrees to save and hold the city harmless from any and all claims or actions arising from the operations of the Operator on the Property. 02) Binding Effect - The terms and provisions hereof shall be binding upon, and inure to the benefit of the heirs, representatives, successors, and assigns of the parties hereto and shall be binding upon all future owners of all or any part of the Operation and shall be deemed covenants running with the land. This Agreement shall be placed of record so as to give notice hereof to subsequent purchasers and encumbrances of all or any part of the Property, and all recording fees, if any, shall be paid by the Operator. 03) Severable - In the event that any portion of this Agreement shall be held invalid for any reason, the same shall not affect any respect whatsoever the validity of the remainder of this Agreement. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Pagel 04) Waiver-Any waiver,whether express or implied, by any party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any subsequent breach of this Agreement. 05) Notices - All notices and demands specified herein shall be deemed appropriately and timely given when delivered personally or deposited in the United States mail to the addresses hereinafter set forth by certified mail (return receipt requested). The addresses of the parties hereto are as follows until changed by . written notice given as above: If to the City at: City of Elk River ATTN: City Environmental Admin. 13065 Orono Parkway Elk River,MN 55330 If to the Operator at: Tiller Corporation 7200 Hemlock Lane, Suite 200 Maple Grove,MN 55311 06) Incorporation by Reference- All plans, special provisions, proposals and specifications, submitted pursuant to this Agreement shall be and hereby are made a part of this Agreement by reference as fully as if set forth herein in full. IN WITNESS WHEREOF, the City and Operator have caused this Agreement to be duly executed on the day and year first above written. CITY OF ELK RIVER B y• r4/Qt(fgI : Ma or By: ist9 Its: City Administrator N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller 4 , 1 Page 8 OPERATOR: TILLER COMPANY 411*lialliti ' 40,.. p, By: N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller ti . i Page 9 STATE OF MINNESOTA ss. COUNTY OF SHERBURNE The foregoing instrument was acknowledged before me this 51-1:#4- day of—.. „1,/,42, ,,, 2017, by John J. Dietz, the Mayor of THE CITY OF ELK RIVER, a Minnesota municipal corporation,on behalf of the corporation. R il,; 11kItia`,/ Y:ti, LI2 Y.c- Notary Public DEBORAH KAY HUEBNER NOTARY PUBLIC-MINNESOTA 4,f. My Commission Expires Jan.31,2020 STATE OF MINNESOTA ss. COUNTY OF SHERBURNE I The foregoinginstrument was acknowledged before me this dayof L.g 2017, by Cal Portner, City Administrator of THE CITY OF ELK RIVER, a ' nesota municipal corporation, on behalf of the corporatio .- fri,A6'1& 11 Ywitty Zitidit„4------L,-, Notary Public DEBORAH KAY HUEBNER STATE OF MINNESOTA NOTARY PUBLIC-MINNESOTA 16i - My Commission Expires Jan.31,2020 COUNTY OF /46-71/AJL--P/A/ The foregoing instrument was acknowledged before me this N dayof 4''4i 7ggg 2017,by .57G- -4) S4k--. the Iiia• of Tiller Corporation, a Minnesota corporation, on behalf of the corporation, fee owner of a portion of the subject property and Operator on the subject property. 41/L ''''t.' This instrument was drafted by: ti--L. City of Elk River RET A. SMITH` ic,State of MinnesotaEnvironmentalDept. 7) 11411......7".:?/ 14-1— otarymptPltlic mmission Expires 13065 Orono Parkway t:.-11.1.i 4 January 31,2020 Elk River,MN 55330 14.41.—4.-41) N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 10 Exhibit 1 Legal description of the Tiller Property The East Half of the Northwest Quarter(E 1 of NW 1/4 )and That part of the West Half of the Northeast Quarter(W 1 2 of NE %)that lies west of the Centerline of U.S. Highway No. all169; in Section Twenty-two(22),Township Thirty-three(33),Range Twenty-six (26),in Sherburne County,Minnesota. The West Half of the Northwest Quarter(W 1/2 of NW'A)of Section Twenty-two (22), Township Thirty-three(33),Range Twenty-six (26)of the County Sherburne,Sherbue,State of Minnesota. The East Half of the Northeast Quarter of Section 21, Township 33,Range 26, except the North 565.71 feet of the East 385 feet, according to the United States Government Survey thereof. South 320.71 feet of North 565.71 feet of East 385 feet of Northeast Quarter of Northeast Quarter of Section 21,Township 33,Range 26,Sherburne County,Minnesota; Parcel 1: That part of the West half of Section 16, Township 33,Range 26,lying South of the Centerline of County Trunk Highway 33,except that part lying West of the Easterly Right of Way line of the railroad. Parcel 2: The Northwest 1/4,except that part lying West of the Railroad;the West 1/2 of the Northeast'4; and the Northwest 1A of the Southwest' the Northwest 1A of the Southeast 1%and the Northeast 1A of the Southwest 1/4, all in Section 21,Township 33, Range 26, according to the United States Government Survey thereof, Sherburne County,Minnesota. EXCEPT The South 700.00 feet of the Northwest Quarter of the Southeast Quarter of Section 21, Township 33, Range 26, Sherburne County, Minnesota. Also the South 700.00 feet of the Northeast Quarter of the Southwest Quarter of said Section 21, except the West 65.00 feet thereof. Also that part of the West 65.00 feet of said Northeast Quarter of the Southwest Quarter and that part of the Northwest Quarter of said Southwest Quarter which lies Southwesterly of a line to be hereinafter referred to as "Line A" and described as follows: N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 11 Line A Beginning at the intersection of the East line of said West 65.00 feet of the Northeast Quarter of the Southwest Quarter and the North line of said South 700.00 feet of the Northeast Quarter of the Southwest Quarter;thence North 53 degrees 33 minutes 47 seconds West, assuming said North line of the South 700.00 feet of the Northeast Quarter of the SouthwestQQuarter bears North 89 degrees 20 minutes 04 seconds East,a distance of 1637.73 feet to the intersection with the Easterly right-of-way line of the discontinued Burlington Railroad formerly known as Great Northern Railroad) and there terminating. Also, that part of the Southwest Quarter of the Northwest Quarter of said Section 21, which lies Easterly of said Easterly right-of-way line of the discontinued Burlington Northern Railroad and which lies Southwesterly of said above referenced "LineA". Parcel 5: The Southwest Quarter of the Southeast Quarter, Section 16,Township 33,Range 26, Sherburne County,Minnesota, lying South of County Trunk Highway 33. Except That part of the West Half of the Northeast Quarter of Section 22,Township 33 North, Range 26 West, shown as Parcel 313 on Minnesota Department of Transportation Right of Way Plat Numbered 71-21 as the same is on file and of record in the office of the County Recorder in and for Sherburne County, Minnesota; Also Except That part of the North Half of Section 22, Township 33,Range 26, Sherburne County, Minnesota described as follows: Beginning at a point on the south line of said North Half distant 2046.43 feet easterly along said south line from the southwest corner of said North Half; thence North 0 degrees 38 minutes 05 seconds West,assumed bearing, perpendicular to said south line 765.00 feet;thence North 89 degrees 21 minutes 55 seconds East parallel with said south line 878.34 feet to the intersection with the westerly line of U.S. Highway No. 169; thence South 4 degrees 13 minutes 36 seconds West along said westerly line 767.76 feet to its intersection with said south line; thence South 89 degrees 21 minutes 55 seconds West along said south line 813.27 feet to the point of beginning. Subject to easements of record, if any. Also Except That part of the East Half of the Northwest Quarter, Section 22, Township 33, Range 26, Sherburne County, Minnesota described as follows: N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller Page 12 Beginning at a point on the South line of the North Half of Section 22 distant 2046.43 feet Easterly along said South line from the Southwest corner of said North Half; thence North 0 degrees 38 minutes 05 seconds West,assumed bearing, perpendicular to said South line 765.00 feet; thence South 89 degrees 21 minutes 55 seconds West, parallel with said South line, 710.76 feet, to the West line of said East Half of the Northwest Quarter; thence South 0 degreesrees 21 minutes 00 seconds West, along said West line,765.11 feet,to the Southwest corner of said East Half of the Northwest Quarter; thence North 89 degrees 21 minutes 55 seconds East, along saidSouthline, 723.91 feet to the point of beginning. N:\Departments\Community Development\Planning\Case Files\CUP\CU 17-14 Tiller