Loading...
5.1 Item 5.1. ( MEMORANDUM ityof �/ .lkRiver TO: PLANNING COMMISSION FROM: STEPHEN ROHLF, BUILDING AND ZONING ADMINISTRATORSR DATE: JULY 22, 1997 SUBJECT: CONDITIONAL USE PERMIT FOR MINERAL EXCAVATION AND HOT-MIX ASPHALT PLANT BY TILLER CORPORATION CU 97-19 REQUEST: Tiller Corporation is seeking a conditional use permit for mineral excavation (gravel mining) on a 133 acre site. The proposed site is Zoned ME- "Mineral Excavation Overlay District" and was studied as part of the City's Environmental Impact Statement (EIS) on Mineral Excavation. • In addition, Tiller is proposing to relocate their hot-mix asphalt plant to this site. This plant is currently located in the southwest corner of the intersection of Co. Rd. #33 and Highway 169. The hot-mix plant is considered a related facility to the gravel mining and may be reviewed under the same conditional use permit process. ATTACHMENTS: Mineral excavation application by Tiller corporation, dated June 24, 1997. This document contains a description of the proposed operation including reclamation plans. The legal description and a vicinity map of the subject property is also included in Tiller's application. A letter dated, July 14, 1997 from John Lichter of B. A. Liesch and Associates, City Environmental Consultant. A letter dated, July 15, 1997 form Terry Maurer, City Engineer. Draft conditional use permit. The draft conditional use permit attached contains staffs recommended conditions of operation for this request. s:\b&z\stever\tilrcup.doc 13065 Orono Parkway • P.O. Box 490 • Elk River, MN 55330 • TDD & Phone: (612) 441-7420 • Fax: (612) 441-7425 REVIEW: • Wetlands, g round water and surface run-off: Review of aerial photos and the wetland inventory map have not indicated the presence of any wetlands on the subject property. Some intermittent wetlands are difficult to identify without field research. Staff has no reason to believe there are any wetlands on site, but if one is discovered appropriate actions will be taken according to the Wetland Conservation Act. Tiller is proposing to have a 5 foot separation between ground water and mining activities. If mining was proposed to take place into the ground water additional stipulations would have been placed on the operation. The attached conditional use permit states that an amendment is required to mine into ground water. Wash operations are not being requested at this time. Staff is concerned with the effect a wash operation at this site would have on the lateral migration of ground water contamination associated with the Elk River Landfill. To allow gravel washing in the future it will take an amendment to this permit and in depth analysis. IDStaff is not recommending periodic well sampling as a condition on this operation. The landfill samples wells within 2,000 feet of their property yearly, which will most likely include the potable water supply at this site. The lack of wash operations at this site and a five foot buffer between mining activities and ground water further reduces concerns. Above ground fuel tanks and a septic system are proposed at the site. Staff has requested a site plan of the hot-mix asphalt plant that shows these details, which includes a proposed building. If there are concerns regarding these issues, staff will address them to the Planning Commission at the meeting. The operation is required to have a NPDES permit from the Minnesota Pollution Control Agency (MPCA). This permit regulates storm water run- off. As part of the NPDES permit a "Storm Water Pollution Prevention Plan" is required. The City Engineer also reviewed storm drainage on the site. Tiller's plan will necessitate a storm water retention pond without an outlet in the northwest corner of the intersection of 221st Ave. and Highway 169. This is not necessarily a problem, but rather is it is Tiller's decision. • f:\shrdoc\b&z\stever\tilrcup.doc Roads and traffic: rAt a minimum, Tiller is proposing to pave 221st Ave. from their pit entrance to Highway 169. Two other mining companies, Midwest Asphalt Corporation and C. S. McCrossan Const., Inc., own the land west of Tiller to the city's railroad hiking trail. Tiller has indicated that they may try to get these companies to cooperate in a project that would pave 221st from the hiking trail to the highway. The specifications for doing this must be approved by the city engineer. Tiller's alternative reclamation plan also shows 221st Ave. being lowered. This will have to be reviewed and approved at a later date with the ultimate end use of the property in mind. There are currently south bound and north bound turn lanes on Highway 169 at the intersection 221st Ave. Tiller is proposing to add an acceleration and deceleration lane, such as those at intersections on Highway 169 with similar traffic. The City Engineer has made initial contact with MNDOT regarding these lanes. Tiller will also be pursuing this issue. The subject property is located both north and south of 221st Ave.. Tiller is seeking permission to transport product from the south side of 221st Ave. to • the north side via a culvert and conveyor under the road. This is similar to what they are doing under Proctor Ave. now and eliminates a good deal of traffic crossing 221st. Staff is recommending berms that are a minimum of 4 foot high along the roadways adjacent to the project for safety and also screening. These berms will be constructed as overburden material from adjacent phases is generated. However, the berms adjacent to the hot-mix asphalt plant will be constructed by the end of the 1998 construction season. Guardrail may be used in lieu of berms at locations such as the proposed culvert under 221st Ave. Tiller is currently mining product at the Elk River Landfill site adjacent to the northern boundary of this proposed pit. An internal roadway from the Landfill to this site is proposed. This roadway will eliminate the need for trucks to go onto Highway 169 to gain access to the scales on the proposed site. Staff is not opposed to this road, but is recommending it is not located in the 200 foot buffer area required of the landfill or on Tiller's property within the 200 feet adjacent to the railroad hiking trail. • f:\shrdoc\b&z\stever\tilrcup.doc Trees and screening: • "The Natural Communities and Rare Species of Sherburne CountyMap" p p identifies an oak forest, mesic subtype, on the subject property. The removal of these trees was identified and reviewed in the City of Elk River's Environmental Impact Statement on Mineral Excavation. Staff is recommending a 200 foot strip of trees is left in the northwest corner of the site to act as a buffer for the city's railroad hiking trail. The other areas it would be logical to leave trees where they would not interfere with mining activities are adjacent to 221st Ave. and Highway 169. Regrettably, very few trees exist in these areas. Staff is recommending trees be planted within the required 50 foot setback adjacent to these roadways. Further, staff is recommending spruce be planted on the berms as they are constructed. The draft CUP reflects these recommendations. Hours of operation: Staff is recommending that mining activities take place during the normal hours allowed, 7:00 a.m. to 7:00 p.m. However, in addition to these hours staff is recommending the asphalt plant be allowed extra hours to operate on special occasions. An example of a special case was the recent paving of IIHighway 101, which had to take place at night because of traffic concerns. Noise, vibration and lighting: The conditions in the draft CUP regarding these issues are typical language for a gravel mining permit and have worked well in the past. Fencing: Tiller is proposing to fence their entire site with a four foot high woven wire fence. Warning signs should also accompany this fence. Odor: The conditions regarding odor in Tiller's current asphalt plant permit have been added to their new permit. These conditions include a review process by the city and ultimately revocation of the permit, if necessary to resolve odor problems. • \shrdoc\b&z\stever\tilrcup.doc Signage: • Although the subject property is zoned agricultural, the use is industrial in nature. Staff feels it is legitimate to allow the same signage as allowed in an industrial zone, except for billboards. This is consistent with similar requests. Air emissions: Besides the normal concerns with gravel mining regarding air quality, mostly dust, there are an entire host of additional concerns with the asphalt plant. The recommended conditions in the draft CUP adequately address these concerns. Reclamation: Tiller indicated in their application that the projected life of the operation is 20 to 25 years and the site will be mined in phases. However, the application lacks a plan showing the phasing of their operation. There is no reason for this site to wait until all of the property is mined before reclamation begins. Staff has requested a phasing plan from Tiller and will report to you on its adequacy at your meeting. • Tiller's application actually contains two reclamation plans. There is sheet 2 of 2, which acts as an interim reclamation plan until the properties adjacent to the subject property are mined, and the alternate reclamation plan (Figure 4) which reflects the true proposed final contours. Tiller's reclamation plan is somewhat inconsistent with the final contours shown in the city's EIS on mineral excavation. Both plans show Highway 169 at its current elevation. Both plans also have about the same elevation proposed on the west side of the subject property. But, the plan in the EIS shows this loss of elevation a lot more gradual. Further, the Tiller plan for their property north of 221st Ave., unlike the EIS plan, shows a loss of elevation from west to east. This will necessitate the retention pond previously discussed. However, staff is okay with Tiller's plan. The main purpose of the elevations in the EIS are to ensure consistency from one pit to the next. Tiller's elevations on the west side of their property are close enough to tie into the adjacent parcel and needing a retention pond on their site is their decision. Tiller's plans appropriately reflect the berms and trees being left after reclamation in the 50 feet adjacent to 221st Ave. and Highway 169 as well as • in the 200 foot buffer adjacent to the city's railroad hiking trail. f:\shrdoc\b&z\stever\tilrcup.doc RECOMMENDATION: • Staff feels thea application submitted byTiller Corporation for mineral PP p excavation and a hot-mix asphalt plant, under the conditions stipulated in the attached conditional use permit, is in compliance with the City of Elk River's Mineral Excavation, Zoning, and other applicable ordinances and the City's Environmental Impact Statement on Mineral Excavation. Therefore, staff is recommending approval of Tiller's request. • • f:\shrdoc\b&z\steve r\tilrcup.doc U\_ Iv) \"1 LIE CH B.A. LIESCH ASSOCIATES, INC. 13400 15TH AVE. N. MINNEAPOLIS, MN 55441 612/559-1423 FAX:612/559-2202 July 14, 1997 Mr. Steve Rohlf Building and Zoning Administrator City of Elk River 13065 Orono Parkway Elk River, MN 55330 RE: Tiller Corporation, Application for Mineral Extraction and Hot-Mix Asphalt Plant License Dear Steve: I am writing to recap items we discussed today concerning this application dated June 24, 1997. Plan Review A mineral extraction phasing plan was not included in the application. The hot mix plant site plan was not included in the application. Utilities Tiller proposes one well and a septic tank to provide water supply and sanitary facilities. No washing operation is proposed. If any truck maintenance or garage floor drains are proposed Liesch suggests the use of an oil water separator or holding tank be considered. Wetlands I reviewed the wetland maps included in the EIS and concluded no apparent wetlands are located on the property included in the application. Environmental Compliance Based on the facilities described in the application, Liesch suggests the City request the following documents as part of the licensing process. 1. Air pollution permit applications. 2. Stormwater pollution prevention plan required in the Stormwater NPDES permit. 3. Spill Prevention Control and Countermeasure Plan required if aboveground storage tanks exceed regulated volumes. 110 Page 2 July 14, 1997 • Steve, please call if you have any questions. Thanks. Sincerely, B.A. LIESCH ASSOCIATES, INC. {/W &/hã�/a/4 John Lichter, P.E. maw:1t970714a.wp/GO • • B.A. LIESCH ASSOCIATES, INC. 13400 15TH AVENUE NORTH MINNEAPOLIS, MINNESOTA 55441 rmst • r4;f:etel, CONK� - - Howard RGreen Company Form CONSULTING ENGINEERS. l►ssNCISA Formerly MSA July 16, 1997 Consulting Engineers File: 800720J-0240 Mr. Steve Rohlf Building & Zoning Administrator City of Elk River 13065 Orono Parkway P.O. Box 490 Elk River, MN 55330 RE: TILLER CORPORATION MINERAL EXTRACTION AND HOT-MIX ASPHALT PLANT PERMIT APPLICATION Dear Mr. Rohlf: As you requested, we have reviewed the package of information submitted by Tiller Corporation concerning their request for a mineral extraction and hot-mix asphalt plant permit. As you are aware, the property in question is approximately 130 acres of land located in the northwest • quadrant of 221st Avenue and TH 169. There is a small portion of the property in question that is south of 221st Avenue. Much like the plant along Proctor Avenue, the proposal is to operate both sides of the road utilizing a culvert conveyor system under 221st Avenue. The application indicates that it will take approximately 20 to 25 years to complete mining the entire site. We have reviewed this permit application from two standpoints, one being drainage and the other being transportation considerations. With regard to these two issues, we would offer the following comments: 1. DRAINAGE The permit indicates that during the mining operation, surface water drainage will be directed to low areas within the property. No surface water drainage is expected to be directed off-site. Sedimentation would occur in these temporary ponding areas. The permit application indicates the ponds could be readily cleaned by on-site equipment. Erosion will be minimized by seeding and mulching side slopes as appropriate. The reclamation plan for the site indicates a lowest finished elevation of approximately 956 in the northeast quadrant of 221st and TH 169. The Highway 169 intersection elevation is approximately 1,010. This would indicate that the finished mine elevation will be approximately 50 feet below TH 169. It appears that the only reasonable long-term drainage scenario for this site would be an on-site retention basin preceded by appropriately sized sedimentation basins for quality control. This type of drainage pond • with no outlet would have to be appropriately sized for the worst storm event that might be 1326 Energy Park Drive • St.Paul, MN 55108 • 612/644-4389 fax 612/644-9446 toll free 800/888-2923 Mr. Steve Rohlf July 16, 1997 Page Two envisioned in the future, depending upon the end land use of the property. This type of drainage facility is not uncommon in the City of Elk River. Many of the rural areas that are currently developed utilize on-site retention basins with no permanent outlet. 2. TRANSPORTATION The permit application indicates that dust will be controlled by bituminous paving of 221st Avenue from the entrance of the proposed pit to TH 169. From the drawing submitted, it appears that this distance would be between 700 and 1,000 feet. It also indicates that exit roads to the plant area will also be paved. We would suggest that the paving of 221st Avenue be to a MnDOT 10-ton design to limit City maintenance expenditures because of the anticipated heavy truck traffic. As you are aware, 221st Avenue was recently upgraded. Therefore, the existing gravel base should be reasonably good for paving operations, although it may take some fine tuning prior to paving. The permit application indicates that the site is expected to handle an average of 100 trucks per day. This would result in 200 trips per day into and out of the plant. As the permit application indicates, there currently are turn lanes in place on TH 169 to 221st Avenue. During the City's recent meeting with MnDOT personnel, we made them aware of this pending application and the desire for northbound and southbound acceleration lanes. We • would suggest that as part of this application, the applicant pursue the construction of these acceleration lanes with MnDOT. If you have any questions regarding these comments or would like further analysis of other issues, please call. Sincerely, Howard R. Green Company /�G�'Glilvc� Terry J. Maurer, P.E. TJM:tw o:\proj\800720J\720-1606.j u I • Howard R. Green Company CONSULTING ENGINEERS • CITY OF ELK RIVER AGREEMENT FOR ISSUANCE OF CONDITIONAL USE PERMIT FOR MINERAL EXCAVATION THIS AGREEMENT, made and entered into this day of , 1997, 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: • The Northwest Quarter of the Southeast Quarter of Section 4, Township 33, Range 26, lying east of railroad right-of-way, except the North 525 feet thereof; and The East Half of the Southwest Quarter of Section 3, Township 33, Range 26 lying west of US Highway 169, except the North 525 feet thereof; and The West Half of the Southwest Quarter of Section 3, Township 33, Range 26, except the North 525 feet thereof; and That part of the North 1121.92 feet of the Northwest Quarter of Section 10, Township 33, Range 26 lying east of a line which begins at a point on the north line of said Northwest Quarter distant 965.801 feet east, as measured along the north line from the northwest corner thereof; thence south at a right angle 1121.92 feet; and lying west of the westerly right of way line of US highway 169 as laid out and traveled in 1963; All in Sherburne County, Minnesota. • (the Property); and Page 2 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 August 18, 1997, approved a conditional use permit for the operation of a gravel mining operation and hot-mix asphalt plant (the Operation) on the Property, subject to certain conditions, including that Operator enter into a License Agreement and 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, • together with the License Agreement to be executed by City and Operator, shall govern the parties rights, responsibilities, and obligations with respect to the 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. 3.) Conditions- The following general conditions shall apply to the Operation: (01) This Conditional Use Permit authorizes Mineral Excavation (gravel) from the Property and the operation of a hot-mix asphalt plant. (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 \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 3 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 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 must be renewed annually and shall run from January 1st through December 31st. The annual license fee is that which is specified by City Code at time of renewal. This license fee is not in lieu of gravel tax collected by the County and a portion of which the City receives. (05) Violations of this Conditional Use Permit may result in suspension or revocation. (06) The City Building and Zoning 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) 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 Building and Zoning Administrator prior to issuance of the annual mineral excavation license. c. The reclamation shall include top soil from the site being preserved and put back into place after mining. • d. The vegetation established for the reclamation must be maintained until it is self sufficient. \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 4 e. Contours, finished grades, details of erosion control • methods, and settling ponds, shall comply with the plans submitted and the City ordinance at the time of reclamation. f. Mixed species of trees shall be planted in a dense pattern within the required fifty (50) foot setback adjacent to US Trunk Highway 169 and 221st Ave. (10) Traffic a. Except for localized jobs, traffic through Elk River associated with this operation shall be limited to U.S. Highway 10 and 169. b. 221st Ave. from the pit entrance to US Highway 169 shall be prepared and paved by the Operator according to City specifications which shall include a ten (10) ton design. This work shall be completed by the end of the 1998 construction season. c. Minimum four (4) foot high berms shall be installed along . US Trunk Highway 169 and 221st Ave. These berms shall be constructed as overburden from adjacent phases is generated, except that the berms adjacent to the hot-mix asphalt plant shall be constructed by the end of the 1998 construction season. Guardrails may be used in lieu of these berms. Interim slopes from the berms to the pit bottom shall be maintained at no greater than 3 to 1 and stabilized. Final slopes shall be no greater than 4 to 1. d. The operator shall cooperate with the Minnesota Department of Transportation, including easements if necessary, regarding the construction of an acceleration lane and deceleration lane on US Highway 169 at its intersection with 221st Ave. e. The internal road between the Property and the Elk River Landfill site shall not be located within the 200 foot buffer strip on either property. (11) Dust Control • a. All equipment shall be located as to reduce dust to adjacent properties. \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 5 b. Water, but no chemical agents, shall be used to control • dust as necessary. c. 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. d. 221st Ave. from the entrance to the pit to US Trunk Highway 169 as well as the parking and drive for the hot- mix asphalt plant shall be paved. (12) Hours of Operation All mineral excavation, processing, and sales activities shall be conducted between the normal hours of 7:00 a.m. and 7:00 p.m., Monday through Saturday, except the hours for the hot-mix asphalt plant can be extended by the Building and Zoning Administrator for special cases. (13) Noise a. The noise from screening and crushing associated with • this operation shall be controlled by equipment location on site, the placement of stock piles, and the type of equipment used. b. Noise levels associated with this operation, shall at no time exceed State standards. c. The City reserves the right to require additional measures be taken, if warranted by noise. (14) Air Emissions a. The MPCA air emission permits for all equipment associated with the mining and hot-mix asphalt operations shall remain current. b. Lead concentration in fuel oil for the hot-mix plant comply with current MPCA regulations or be no more than 4,000 MG/KG, whichever is less. c. A maximum of 20 % opacity is allowed for IIIemissions form the hot-mix plant. \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 6 d. Baghouse fines are allowed to be used in the hot-mix III asphalt. e. That the baghouse is inspected once per month during the construction season for leaks with the results copied to the city. f. Particulate emission standards shall be met by the operation (maximum of.04 GR/DSCF for the hot-mix plant). g. That all correspondence between the operator and MPCA be copied to the city. (15) Lighting Lighting from the operation shall be directed away from adjacent residential property. Glare, whether directed or reflected as different from general illumination, shall not be visible beyond the limits of the immediate site. All sources of artificial light shall be so fixed, directed, designed, or sized that the minimum subtotal of their illumination shall not increase • the level of the illumination on nearby residential property by more than .1 foot candles in or within 25 feet of a dwelling, or more than .5 foot candles on any part of the adjacent property. (16) The piling, storing, or keeping of old machinery, junk, debris, or abandoned motor vehicles, shall be prohibited on this site, with the exception that reusable parts may be stored on the mineral excavation site provided that it is in a location that cannot be viewed from adjacent properties or is totally screened. (17) Mining activities shall not cause excessive vibration off site. If excessive vibration becomes an issue, the City reserves the right to take appropriate measures to alleviate the problem. (18) Groundwater protection measures shall include: a. The Operator shall file with the City an emergency spill response plan. The operator shall adhere to this plan in the event there is a spill. b. The Operator shall provide the Fire Department with a • copy of their flammable or hazardous materials. \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 7 c. Fuel tanks shall be above ground, properly diked (if • required by law), and registered with MPCA. d. All incidences 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 4 working days. e. The appropriate storm water permits shall be obtained by the Operator from MPCA. f. Stockpiles of recyclable asphalt not be placed in surface water and run-off from these stockpiles shall be directed away from surface waters. Further, the size of the stock piles is limited to the amount of material that can be used in one year, but need not necessarily be used in one year and can be stored over winter. g. That the mining and hot-mix asphalt operations take place a minimum of five (5) feet above the water table. Any deviation to this requirement will require an • amendment to this permit. h. Gravel washing operations are prohibited at this site and will require an amendment to this permit to be allowed in the future. i. The Operator shall have an approved hazardous waste license for this facility and properly dispose of or recycle all waste. j. Floor drains from maintenance facilities shall not be allowed to discharge untreated to a septic system. (19) Signage Signage for the gravel and asphalt hot-mix plant shall be allowed as per the I-2 zone. Further, no bill boards are allowed on the subject property. (20) Odor 111 Odor from the hot-mix operation must be controlled. If weather conditions make odor noticeable, the percentage of recycled asphalt must be reduced. If odor problems can not be resolved \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 8 by the Operator, the Planning Commission for the City shall • review with the situation with a public hearing and make a recommendation to the City Council on whether or not the operation of the hot-mix asphalt plant shall be allowed to continue. (21) 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 or eradicate oakwilt. (22) Fencing and Screening a. The perimeter of the entire site shall be fenced with a four foot high woven wire fence with warning signs placed where appropriate. b. A minimum four foot high berm with 3 rows of spruce at a 10 foot spacing shall be constructed adjacent to US Highway 169 and 221st Ave. • c. A 200 foot wide buffer strip adjacent to the City's railroad hiking trail shall have the natural vegetation retained on it. (23) Other Permits The Operator shall obtain all state and federal permits appropriate to their operation and file copies of said permits with the City. 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 \\e lkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 9 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 in any respect whatsoever the validity of the remainder of this Agreement. (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: Building and Zoning Administrator 13065 Orono Parkway ,P.O. Box 490 Elk River, Minnesota 55330-0490 • If to the Operator at: Tiller Corporation Attn: Brent Schlueter PO Box 1480 Maple Grove, Minnesota 55311-6480 (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. 0 \\elkrive r\sys\shrdoc\b&z\stever\gravcup.doc Page 10 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 By: Its: Mayor By: Its: City Administrator OPERATOR: TILLER CORPORATION By: By: STATE OF MINNESOTA ss. COUNTY OF SHERBURNE • The foregoing instrument was acknowledged before me this day of , 1997, by Henry A. Duitsman, the Mayor of THE CITY OF ELK RIVER, a Minnesota municipal corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA ss. COUNTY OF SHERBURNE The foregoing instrument was acknowledged before me this day of , 1997, by Patrick D. Klaers, the City Administrator of THE CITY OF ELK RIVER, a Minnesota municipal corporation, on behalf of the corporation. s Notary Public \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc Page 11 STATE OF MINNESOTA • COUNTY OF ss. The foregoing instrument was acknowledged before me this day of , 1997, by , the of Tiller Corporation, a Minnesota corporation, on behalf of the corporation. Notary Public STATE OF MINNESOTA ss. COUNTY OF SHERBURNE The foregoing instrument was acknowledged before me this day of , 1997, by , the of Tiller IllCorporation, a Minnesota corporation, on behalf of the corporation. Notary Public This instrument was drafted by: City of Elk River Building and Zoning Department 13065 Orono Parkway PO Box 490 Elk River, MN 55330 Ill \\elkriver\sys\shrdoc\b&z\stever\gravcup.doc