HomeMy WebLinkAbout9C1 - Ryan Contracting
16200 Eagle Creek Avenue S.E.
Prior Lake, MN 55372-1714
CITY COUNCIL AGENDA REPORT
MEETING DATE:
AGENDA #:
PREPARED BY:
December 19, 2005
9C.1
Jane Kansier, Planning Director
AGENDA ITEM:
CONSIDER APPROVAL OF PROPOSED AMENDMENT TO RYAN CONTRACTING
SETTLEMENT AGREEMENT.
DISCUSSION:
Introduction: The purpose of this agenda item is for the City Council to consider an amendment
to the Settlement Agreement previously reached with Ryan Contracting regarding its conditional
use permit for gravel mining operations.
History: On July 18, 2005 the City Council authorized the execution of a settlement agreement
between the City and Ryan Contracting Co. That settlement agreement resolved a lawsuit filed
by Ryan in 2004 after the City cancelled a conditional use permit (CUP) for gravel mining
operations that was issued to Ryan in February 2001. After the City authorized its execution
and the settlement agreement was signed on behalf of Ryan, the agreement was signed on
behalf of the City, and Ryan's lawsuit was dismissed with prejudice upon a joint motion of Ryan
and the City.
Under the settlement agreement, the City paid no money to Ryan. The Settlement Agreement
provided, among other things, that "the City will rescind the cancellation of the Conditional Use
Permit after Ryan completes the preconditions listed in paragraph C of this Agreement."
Paragraph C includes 21 separate subparts, all of which were taken directly from the terms of
the CUP itself. Under both the CUP and the Settlement Agreement, Ryan could conduct no
mining operations if any preconditions remained unsatisfied.
Pursuant to the Settlement Agreement, Ryan provided the City with monthly updates regarding
their progress toward satisfying these preconditions, and requested that the City conduct a site
inspection on November 30, 2005 to assess Ryan's compliance. As part of that process, a
disagreement arose regarding whether all 21 preconditions must be satisfied by November 30,
or whether Ryan could complete five of those conditions at a later point. Specifically, Ryan
noted that the phrase "prior to beginning work" appeared in four of those preconditions (nos. 12,
13, 18, and 19), two of which (18 and 19) Ryan had satisfied, but two of which (12 and 13)
involved the approval by other agencies of applications that Ryan had submitted by November
30 but which had not been issued by those agencies. A fifth condition (requiring Ryan to submit
a letter of credit) provided that it "is to be submitted prior to recording of the resolution."
Recording of the resolution has not happened and is not expected to occur until after the CUP is
reinstated, and shortly before Ryan began work. Ryan complained that submitting a letter of
credit at this point would unreasonably impair its borrowing capacity without benefiting the City.
The only conditions that were not satisfied by the end of the day on November 30 were
conditions that contained language that caused Ryan to dispute whether it had agreed to satisfy
those particular conditions by November 30.
Current Circumstances: On and after November 30, representatives of the City and Ryan
discussed potential solutions to this dispute. The outcome of those discussions is a proposed
www.cityofpriorlake.com
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amendment to the settlement agreement which is before you tonight. The amendments are
shown in redlined format in Exhibit A. They would modify the agreement in the following
respects:
. In place of the disputed language in precondition C (10) about when the letter
of credit must be submitted, the proposed amendment specifies a date (December 13,
2005) by which Ryan must submit it to the City. (The City has now received the letter
of credit from Ryan, and by that date.) To facilitate this, the proposed amendment
includes a stipulation "that, in the period between the date that the letter of credit is
provided to the City and the date upon which the CUP is recorded, the City will take no
steps to draw against the letter of credit." Because Ryan cannot begin mining
operations on the site until the CUP is recorded, and because there are no foreseeable
circumstances in which the City would need to draw upon the letter of credit prior to the
recording of the CUP, this change simply clarifies the City's expectations.
. At the City's request, Ryan has agreed to an amendment to Paragraph B that
provides a specific date by which Ryan must record the CUP resolution (Le. June 1,
2006). Adding a specific date is important to City staff because the one-year term of
the CUP does not begin to run until it is recorded.
. Regarding preconditions C (12) and (13), which involve obtaining permits from
the Minnesota Pollution Control Agency and watershed permits, and which Ryan had
submitted by November 30 but which have not yet been acted upon by those agencies,
two kinds of changes were made. First, Paragraph B was amended to specifically
state that "Ryan may not begin mining operations at the site until after all required
MPCA and Watershed District permits have been obtained." Second, the "prior to
beginning work" language was removed from preconditions (12) and 13), and those
preconditions were modified so that Ryan was required to have submitted the
applications by November 30, but is not required to have obtained those permits by
November 30.
. Regarding preconditions C(18) and (19), which also include references to
"prior to beginning work" but which Ryan satisfied by November 30, the amendment
removes the references to "prior to beginning work."
. As a final step to removing the alleged ambiguity in the settlement agreement
regarding the compliance deadlines, Sections C and D were modified to clarify that the
November 30 deadline applied unless a different date for completion of that
precondition is specified.
ISSUES:
The proposed amendment furthers the City's goals in entering into the Settlement Agreement,
while resolving a dispute regarding the interpretation of the CUP. That dispute regarding
interpretation, if left unresolved, would leave the City in a dilemma as it decides whether to
rescind the cancellation of the CUP. Without the amendment, it would be difficult for the City to
make that choice without causing or prolonging further litigation. The amendment would
thereby enable the City to achieve a primary goal behind the authorization of the Settlement
Agreement in its original form.
FINANCIAL IMPACT:
Authorization of the amendment would contain the amount of future litigation costs, and facilitate
the conclusion of litigation against the City relating to the proposed gravel mine, without
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requiring the City to incur any new expenditures.
ALTERNATIVES:
The City Council has the following alternatives:
1. Authorize the execution of the Amended Settlement Agreement and Release.
2. Deny authorization of the execution of the Amended Settlement Agreement and
Release.
3. Defer action and provide staff with specific direction.
RECOMMENDED
MOTION:
The staff recommends Alternative #1. This requires a motion and second to authorize the
Mayor and City Manager to execute the Amended Settlement Agreement and Release.
Reviewed by:
AMENDED SETTLEMENT AGREEMENT
AND RELEASE
Ryan Contracting Company ("Ryan"), and the City of Prior Lake ("the City"), hereby
agree and covenant as follows:
1. The parties to this Agreement wish to avoid the time, expense, inconvenience and
unceltainties of litigation. Accordingly, without any of the parties admitting any
liability or admitting the validity of any claim, counterclaim, cause of action, or
defense asserted in this action, the parties wish to resolve and settle all disputes,
claims, counterclaims, cause of actions, and defenses arising from the events that
were the subject matter of the lawsuit described in Paragraph 2 of this Agreement.
2. The parties to this Agreement desire to dismiss with prejudice the lawsuit entitled
"Ryan Contracting Company v. the City of Prior Lake and the Shakopee
Mdewakanton Sioux Community," Case No. 2004-05618, in the Scott County
District Court of Minnesota ("the Action").
3.
ThlOlll!h clan l'vil1l'. all1t:ndments to the Settlement A},reement and Release. the
parties wish to resolve a good-hlith dispute rel;arding the interpretation of celtain
language in the Settlement Agreement and Release in its original form. relating to
the tirninl; of satisfaction of certain requirements"
THEREFORE, in consideration of the foregoing, and the mutual covenants and
conditions contained in this Agreement, the parties agree as follows:
A. This Agreement is entered into in good faith for the purpose of settling completely those
disputes of the parties to this Agreement with regard to the matters involved in the Action.
B. The parties agree that the City will rescind the cancellation of the Conditional Use Pemlit
after Ryan completes the preconditions listed in paragraph C of this Agreement. After the City
rescinds the cancellation, the Conditional Use Permit Resolution 01-19 ("CUP") (attached as
Exhibit A) is valid and may be recorded by Ryan. Prior to the commencement of mining
activities, the resolution approving the CUP must be recorded on all affected properties and
proof of such recording presented to the Planning Department. The one-year telm set forth in
Section V of the CUP will begin running when the CUP is recorded. If the City rescinds the
cancellation of the CllP, Rvan must record the CUP and provide to the City proof of its
recording no later th1m June 1. 2006. Rvan mav not begin mining operations at the site until
after all required MPCA and Watershed District permits have been obtained.
c. It Ryan completes the following items before November 30, 2005 (or. if a different date
is specified for that item in a subsection below, bv the date specified in that subsection), and City
staff reviews and approves them, the City will rescind the cancellation of the CUP:
1) The landscape plan must be revised to indicate a one for one replacement of
trees removed (42 caliper inches) as part of the reclamation and staging plan.
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The plan must also indicate that plantings are to be installed upon completion
of each phase.
2) The landscape plan must be revised to include landscaping of 1 tree per 10
lineal feet of berm as per item 7 on Recapitulation of CUP Application
submitted by Ryan Contracting. and to include an additional 10 perimeter trees
as shown on the proposed landscape plan.
3) The plans must be revised to identify a 24' wide paved driveway from the
public street to the parking lot, a paved parking lot, and a paved fueling pad.
4) The parking area must be buffered by screening with additional plantings.
This is to be shown on a revised landscaping plan.
5) Drainage and storm water rate calculations and plans for engineered drainage
and storm water controls must be submitted to the City for review and
approval.
6) The plans must be revised to eliminate the permanent above-ground fuel
storage area.
7) Utility plans indicating electrical line locations must be submitted, if there is to
be electrical equipment on the site.
8) The plans must be revised to identify a monitoring well at the northwest corner
of the site. The exact number, location, depth, and specification are to be
based on recommendations from a certified independent consultant approved
by the City Engineer.
9) The applicant and property owners must enter into a Developer's Agreement
with the City. The Developers Agreement includes provisions dealing with
right of entry and indemnification. Treatment of the required Irrevocable
Letter of Credit is also detailed within the Agreement.
] 0) An hTevocable Letter of Credit. on a fonn prepared by the City and approved
by the City Attorney, is to be submitted ,to the Citvnolater than December 13,
2006. The City stipulates that, in the period between the date that the letter of
credit is provided to the City and the date upon wh,ich the CUP is recorded, the
(;:.i.\y...,will take no st!;J2)J9m~Imw_l!ggj!1~1Jht:;J,~J1.\eL9Lfr,"~EL
(a) The amount of the LOC is for $420,500 (approximately 125% of the
following costs) and ensures the following:
(i) McKenna Road maintenance ($]00,000);
Oi) Paved driveway and parking area ($37,200);
(iii) Landscaping costs ($1] ,687.50);
(iv) Dust contml ($5,000);
(v) Reclamation (final site restoration, grading)($75,000);
(vi) Monitoring of the wetland and ground water (monitoring
well)($7,500);
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(vii) Any environmental contamination, including groundwater
pollution, wetland diminution or destruction ($100,000)
(viii) Any fees incun'ed by the City in the enforcement of the
Conditional Use Pennit.
(b) If the City must draw upon the In'evocable Letter Of Credit, the
applicant shall be responsible for bringing the irrevocable letter of
credit back to $420,500 within 15 days of any draw down.
11) The applicant is responsible to pay the City for all related costs per City Code
Section 1109.902. These costs will include, but are not limited to, fees
incurred by the City for the preparation and recording of the Developer's
Agreement, inspection costs, attorney's fees, and retaining of consultants.
These costs do not include any costs related to the litigation regarding the CUP
in 2001 - 2002 or in 2004 - 2005.
12) ;\pplications for thG,. required PCA permits must be filed /lIId copies provided
to the City.
13) Aptllications for ,the required Watershed permits must be filed, and copies
provided to the. City,
14) An Assent Form, as required by ordinance, is to be signed by the applicant and
all property owners.
15) A wetland delineation report must be prepared and submitted to the City to
determine if jurisdictional wetlands are present on the site, and is to include, if
necessary, wetland replacement or mitigation plans. The monitoring well is to
be installed at the site. Baseline water quality analysis of the DNR protected
wetland is to be completed and results submitted to the City as prepared by an
independent laboratory approved by the City. Testing parameters and
frequencies are identified in IV(e)6 and 7 in the CUP.
16) The operation of the pit cannot result in drainage or other degradation of the
DNR protected wetland. Ryan Contracting is to submit to the City for review
and approval a work plan to evaluate the potential effect of the proposed
mining operation on the DNR protected wetland and any other jUlisdictional
wetlands on the site. The work is to evaluate potential impact from the mining
below the perched elevation of the wetland or by reducing the catchment basin
size of the wetland. At the completion of the work, a report is to be submitted
to the City that summarizes the findings and provides a wetland replacement or
mitigation plan, if needed.
17) Proposed traffic signs require approval from the City Engineer and must meet
MN Uniform Traffic Control Devices standards. Signs must be installed Plior
to beginning work. In addition to those proposed, ''Trucks Hauling" signs
must be placed on McKenna Road south to CSAH 42.
18) A secured gate and 6' high perimeter fence is to be installe<~. The property
must be signed as private propelty.
3
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19) The driveway from the public street to the parking lot, tbe parking lot and the
refueling pad must be hard surfaced (paved) and installed,.
20) The parking area and parking lot screening must be completed.
2l) Prior to beginning work on the site, the City will inspect McKenna Road and
document its current condition. Once work has commenced. the City staff will
inspect the road on an ongoing basis. Repairs required as a result of this use
must be completed no later than October 31 st.
D. Ryan must complete the preconditions listed in paragraph C of this Agreement before
November 30, 200S, unless a different date for completion of that precondition is specified in
Section C above.
J. From July J 5, 2005 until November 30, 2005, Ryan will provide to the City
written reports by the 15th of each month updating the City regarding the status of its
completion of the preconditions.
2. At any time but no later than November 30,2005, Ryan may request the City in
writing to meet in order to conduct an inspection and review for the purposes of
determining whether the preconditions listed in paragraph C of this Agreement have been
completed.
a. If Ryan makes such a written request, the City must convene this meeting
withi n J 0 days of the request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient JO
days after the meeting date unless the City notifies Ryan in writing by that date of
which conditions have not been satisfied and lists all of the ways in which they
are not satisfied, and the actions Ryan must take to satisfy the conditions from the
City's perspective.
3. Ryan will have the oppOltunity to request a reinspection for the purposes of
demonstrating that it has cured the deficiencies listed in the City's notice until November
30, 2005.
a. If Ryan submits such written request for reinspection to the City by
November 30, 2005, the City shall conduct a reinspection within J 0 days of the
request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient JO
days after the reinspection date unless the City notifies Ryan in writing by that
date of which conditions have not been satisfied and lists all of the ways in which
they are not satisfied, and the actions Ryan must take to satisfy the conditions
from the City's perspective..
4
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4. Notwithstanding the process and schedule described above, Ryan must cure any
deficiencies identified in the City's notice of deficiencies by November 30,2005, subject
to subsection 5 below.
5. Without limitation, the deadlines in paragraph D shall be tolled if an injunction is
entered that directly or indirectly prevents activities pursuant to the CUP or completion of
one or more of the paragraph C preconditions. Such tolling shall end upon the vacating
of all such injunctive relief. The deadlines are also tolled by litigation commenced by
one of the parties to this agreement to determine or enforce the rights and obligations of
the parties pursuant to this Agreement, which tolling shall end upon completion of the
litigation. If an action is filed by a third party to challenge this Agreement but no
injunction is entered, the parties agree to meet and confer regarding whether it would be
appropriate to toll the deadlines.
E. Ryan waives its right to challenge all conditions set forth in this Agreement and the
Conditional Use Permit Resolution 01-19 ("CUP") (attached as Exhibit A),inc1uding the one-
year term in Section V of the CUP. This agreement does not in any way impact or prejudice
Ryan's right to apply for a renewal of the CUP.
F. Ryan agrees to conduct its mining activities in compliance with the CUP, and further
agrees that it must comply with all conditions imposed by the Court's Order of November 16,
2002 in State of Minnesota by Shakopee Mdewakanton Sioux Community v. City of Prior Lake
and Ryan Contracting Co., Fi]e No. C-0]-05286.
G. Prior to the parties' execution of this Agreement, the City will have: (I) reviewed
pursuant to Section IV(c)(I)-(8) of the CUP the plan revisions Ryan submitted in December
2004, (2) drafted and submitted to Ryan for its review a Development Agreement for this project
that the City is willing to approve after City staff approves Ryan's plan revisions, and (3)
provided Ryan with a Letter of Credit FOffil and an Assent Form. The City will review the work
plan Ryan is required to submit pursuant to Section IV(d)(2) of the CUP. and provide Ryan with
written feedback about whether the City approves the work plan or the actions that Ryan must
take to obtain the City's approval, within three weeks of its receipt by the City Planning Director.
The City will inspect McKenna Road prior to beginning work on the site and document its
current condition pursuant to Section IV(d)(8) of the CUP, and provide Ryan with that written
documentation of the road's current condition, within three weeks of Ryan's execution of a
Development Agreement with the City. The City will inspect the road on an ongoing basis once
work has commenced pursuant to Section IV(d)(8) of the CUP.
H. The parties agree that the one-year term set forth in Section V of the CUP does not
require Ryan to complete within that one-year period all the cleanup and restoration required by
the CUP or by the Court's Order of November 16, 2002. If the City does not renew a CUP for
Ryan's operations, Ryan is allowed 24 months after expiration of the CUP to complete its
removal of any stockpiles.
1. The parties agree that specific perfoffilance is an available remedy for any violation of
paragraphs C, D, F, or G of this Agreement.
5
J. Except only for the representations or obligations of the parties under this Agreement,
Ryan and the City and any and all of their beneficiaries, employees, agents, representatives.
successors, assignees, transferees, joint ventures, attorneys, and insurers, hereby release and
discharge the other, and their past and present officers, directors, partners, elected officials, board
members. employees, agents, representatives, affiliates, divisions, successors, stockholders,
assignees, transferees, joint ventures, attomeys, insurers, and risk pools (including the League of
Minnesota Cities Insurance Trust) from all manner of claims, demands, actions, causes of
actions, suits, debts, dues, sums of money, accounts, bills, covenants, contracts, rights,
obligations, controversies, agreements, promises, and demands whatsoever, whether in law or
equity, they ever had, or now have, or hereafter may have, whether known or unknown, against
each other, involving the matters involved in the Action.
K. All notifications and rep011s required or provided for under this Agreement shall be made
by fax and U.S. mail to the parties as follows:
a. Notice to the City of Prior Lake shall be provided to the following two
individuals:
I. Suesan Lea Pace, Halleland Lewis, 220 S. Sixth Street, Suite 600,
Minneapolis, MN 55402, fax no. (6]2) 338-7858
ll. Jane Kansier, Planning Director, City of Prior Lake. ] 6200 Eagle Creek
Ave., S.E., Prior Lake, MN 55372, fax no. (952) 447-4245.
b. Notice to Ryan Contracting Co. shall be provided to the following 2 individuals:
I. Tom Ryan, Ryan Contracting Co., 8700 - I3lh Avenue East, Shakopee,
MN 55379, fax no. (952) 894-3207.
]1. Steven J. Weintraut, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300
Washington Square, 100 Washington Avenue South, Minneapolis, MN
55401, fax no. (612) 339-6591.
L. Each party will bear its own costs, expenses and attorney fees that it has incurred in
connection with or arising out of the Action.
M. This Agreement shall be binding upon the successors and assigns of the parties. whether
by way of merger, consolidation, operation of law, assignment, purchase, or other acquisition.
N. All questions with respect to the construction of this Agreement and the rights and
liabilities of the parties to this Agreement shall be governed by the laws of the State of
Minnesota.
O. This Agreement effects the settlement and release of claims and defenses, which are
denied and contested by the parties, and nothing contained in this Agreement shall be construed
as an admission of liability by either party.
6
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P. Ryan and the City will dismiss with prejudice the Action upon execution of this
Agreement.
Q. Each party represents and warrants that it has not assigned or transfelTed, or purported to
assign or transfer, any of the claims released pursuant to this Agreement to any other person and
that it is fully entitled to compromise and settle such claims. Each party shall indemnify the
other against all costs, expenses, and judgments, including all attorneys' fees incurred. in the
event that any third party shall assert any of the claims released pursuant to this Agreement based
on a purported assignment or transfer of rights by a party to this Agreement.
R. This Agreement and its attachments and addenda represent the entire agreement between
the parties with respect to the subject matter of the Agreement and supersedes all prior and
contemporaneous oral and written agreements and discussions. Each of the parties covenants
that it has not entered into this Agreement as a result of any representation. agreement,
inducement, or coercion, except to the extent specifically provided in this Agreement. Each
party further covenants that the consideration recited in this Agreement is the only consideration
for entering into this Agreement, and that no promises or representations of other or further
consideration have been made by any person. This Agreement may be amended only by a
written agreement executed by all parties.
S. This Agreement is the result of arms-length negotiations among the parties. All parties
have participated in the negotiations, have had an equal opportunity to panicipate in the drafting
and revision of this Agreement, and have had the opportunity to review this Agreement with
their counsel. No ambiguity shall be construed against any party based upon a claim that the
party in question drafted the ambiguous language.
T. This Settlement Agreement may be executed by the parties by facsimile and in identical
counterparts, each of which shall constitute an original for all purposes.
WHEREFORE, the patties have executed this Settlement Agreement and Mutual Release
effective as of the date first above written.
RYAN CONTRACTING COMPANY
Dated:
By:
Tom Ryan
President, Ryan Contracting Company
THE CITY OF PRIOR LAKE
Dated:
By:
Jack G. Haugen
7
Dated:
Its Mayor
By:
Frank Boyles
Its City Manager
4iJ.I 6831v:?
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AMENDED SETTLEMENT AGREEMENT
AND RELEASE
Ryan Contracting Company ("Ryan"), and the City of Prior Lake ("the City"), hereby
agree and covenant as follows:
1. The parties to this Agreement wish to avoid the time, expense, inconvenience and
uncertainties of litigation. Accordingly, without any of the parties admitting any
liability or admitting the validity of any claim, counterclaim, cause of action, or
defense asserted in this action, the parties wish to resolve and settle all disputes,
claims, counterclaims, cause of actions, and defenses arising from the events that
were the subject matter of the lawsuit described in Paragraph 2 of this Agreement.
2. The patties to this Agreement desire to dismiss with prejudice the lawsuit entitled
"Ryan Contracting Company v. the City of Prior Lake and the Shakopee
Mdewakanton Sioux Community," Case No. 2004-05618, in the Scott County
District Court of Minnesota ("the Action").
3. Through clarifying amendments to the Settlement Agreement and Release, the
parties wish to resolve a good-faith dispute regarding the interpretation of certain
language in the Settlement Agreement and Release in its original form, relating to
the timing of satisfaction of certain requirements.
THEREFORE, in consideration of the foregoing, and the mutual covenants and
conditions contained in this Agreement, the parties agree as follows:
A. This Agreement is entered into in good faith for the purpose of settling completely those
disputes of the parties to this Agreement with regard to the matters involved in the Action.
B. The parties agree that the City will rescind the cancellation of the Conditional Use Permit
after Ryan completes the preconditions listed in paragraph C of this Agreement. After the City
rescinds the cancellation, the Conditional Use Permit Resolution 01-19 ("CUP") (attached as
Exhibit A) is valid and may be recorded by Ryan. Prior to the commencement of mining
activities, the resolution approving the CUP must be recorded on all affected properties and
proof of such recording presented to the Planning Department. The one-year term set forth in
Section V of the CUP will begin running when the CUP is recorded. If the City rescinds the
cancellation of the CUP, Ryan must record the CUP and provide to the City proof of its
recording no later than _June 1, 2006. Ryan may not begin mining operations at the site until
after all required MPCA and Watershed District permits have been obtained.
C. If Ryan completes the following items before November 30, 2005 (or, if a different date
is specified for that item in a subsection below, by the date specified in that subsection), and City
staff reviews and approves them, the City will rescind the cancellation of the CUP:
1) The landscape plan must be revised to indicate a one for one replacement of
trees removed (42 caliper inches) as part of the reclamation and staging plan.
The plan must also indicate that plantings are to be installed upon completion
of each phase.
2) The landscape plan must be revised to include landscaping of 1 tree per 10
lineal feet of berm as per item 7 on Recapitulation of CUP Application
submitted by Ryan Contracting, and to include an additional 10 perimeter trees
as shown on the proposed landscape plan.
3) The plans must be revised to identify a 24' wide paved driveway from the
public street to the parking lot, a paved parking lot, and a paved fueling pad.
4) The parking area must be buffered by screening with additional plantings.
This is to be shown on a revised landscaping plan.
5) Drainage and storm water rate calculations and plans for engineered drainage
and storm water controls must be submitted to the City for review and
approval.
6) The plans must be revised to eliminate the permanent above-ground fuel
storage area.
7) Utility plans indicating electrical line locations must be submitted, if there is to
be electrical equipment on the site.
8) The plans must be revised to identify a monitoring well at the northwest corner
of the site. The exact number, location, depth, and specification are to be
based on recommendations from a certified independent consultant approved
by the City Engineer.
9) The applicant and property owners must enter into a Developer's Agreement
with the City. The Developers Agreement includes provisions dealing with
right of entry and indemnification. Treatment of the required Irrevocable
Letter of Credit is also detailed within the Agreement.
10) An Irrevocable Letter of Credit, on a form prepared by the City and approved
by the City Attorney, is to be submitted to the City no later than December 13,
2006. The City stipulates that, in the period between the date that the letter of
credit is provided to the City and the date upon which the CUP is recorded, the
City will take no steps to draw against the letter of credit.
(a) The amount of the LOC is for $420,500 (approximately 125% of the
following costs) and ensures the following:
(i) McKenna Road maintenance ($100,000);
(ii) Paved driveway and parking area ($37,200);
(iii) Landscaping costs ($11,687.50);
(iv) Dust control ($5,000);
(v) Reclamation (final site restoration, grading)($75,000);
(vi) Monitoring of the wetland and ground water (monitoring
well)($7,500);
2
(vii) Any environmental contamination, including groundwater
pollution, wetland diminution or destruction ($100,000)
(viii) Any fees incurred by the City in the enforcement of the
Conditional Use Pem1it.
(b) If the City must draw upon the Irrevocable Letter Of Credit, the
applicant shall be responsible for bringing the irrevocable letter of
credit back to $420,500 within 15 days of any draw down.
11) The applicant is responsible to pay the City for all related costs per City Code
Section 1109.902. These costs will include, but are not limited to, fees
incurred by the City for the preparation and recording of the Developer's
Agreement, inspection costs, attomey's fees, and retaining of consultants.
These costs do not include any costs related to the litigation regarding the CUP
in 2001 - 2002 or in 2004 - 2005.
12) Applications for the required PCA permits must be filed and copies provided
to the City.
13) Applications for the required Watershed permits must be filed, and copies
provided to the City.
14) An Assent Form, as required by ordinance, is to be signed by the applicant and
all property owners.
15) A wetland delineation report must be prepared and submitted to the City to
determine if jurisdictional wetlands are present on the site, and is to include, if
necessary, wetland replacement or mitigation plans. The monitoring well is to
be installed at the site. Baseline water quality analysis of the DNR protected
wetland is to be completed and results submitted to the City as prepared by an
independent laboratory approved by the City. Testing parameters and
frequencies are identified in IV(e)6 and 7 in the CUP.
16) The operation of the pit cannot result in drainage or other degradation of the
DNR protected wetland. Ryan Contracting is to submit to the City for review
and approval a work plan to evaluate the potential effect of the proposed
mining operation on the DNR protected wetland and any other jurisdictional
wetlands on the site. The work is to evaluate potential impact from the mining
below the perched elevation of the wetland or by reducing the catchment basin
size of the wetland. At the completion of the work, a repOlt is to be submitted
to the City that summarizes the findings and provides a wetland replacement or
mitigation plan, if needed.
17) Proposed traffic signs require approval from the City Engineer and must meet
MN Uniform Traffic Control Devices standards. Signs must be installed prior
to beginning work. In addition to those proposed, "Trucks Hauling" signs
must be placed on McKenna Road south to CSAH 42.
18) A secured gate and 6' high perimeter fence is to be installed. The property
must be signed as private property.
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19) The driveway from the public street to the parking lot, the parking lot and the
refueling pad must be hard surfaced (paved) and installed.
20) The parking area and parking lot screening must be completed.
21) Prior to beginning work on the site, the City will inspect McKenna Road and
document its current condition. Once work has commenced, the City staff will
inspect the road on an ongoing basis. Repairs required as a result of this use
must be completed no later than October 31 st.
D. Ryan must complete the preconditions listed in paragraph C of this Agreement before
November 30, 2005, unless a different date for completion of that precondition is specified in
Section C above.
1. From July 15,2005 until November 30,2005, Ryan will provide to the City
written reports by the 15th of each month updating the City regarding the status of its
completion of the preconditions.
') At any time but no later than November 30, 2005, Ryan may request the City in
writing to meet in order to conduct an inspection and review for the purposes of
determining whether the preconditions listed in paragraph C of this Agreement have been
completed.
a. If Ryan makes such a written request, the City must convene this meeting
within 10 days of the request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient 10
days after the meeting date unless the City notifies Ryan in writing by that date of
which conditions have not been satisfied and lists all of the ways in which they
are not satisfied, and the actions Ryan must take to satisfy the conditions from the
City's perspective.
3. Ryan will have the opportunity to request a reinspection for the purposes of
demonstrating that it has cured the deficiencies listed in the City's notice until November
30, 2005.
a. If Ryan submits such written request for reinspection to the City by
November 30, 2005, the City shall conduct a reinspection within 10 days of the
request.
b. Ryan's satisfaction of these preconditions will be deemed sufficient 10
days after the reinspection date unless the City notifies Ryan in writing by that
date of which conditions have not been satisfied and lists all of the ways in which
they are not satisfied, and the actions Ryan must take to satisfy the conditions
from the City's perspective..
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4. Notwithstanding the process and schedule described above, Ryan must cure any
deficiencies identified in the City's notice of deficiencies by November 30,2005, subject
to subsection 5 below.
5. Without limitation, the deadlines in paragraph D shall be tolled if an injunction is
entered that directly or indirectly prevents activities pursuant to the CUP or completion of
one or more of the paragraph C preconditions. Such tolling shall end upon the vacating
of all such injunctive relief. The deadlines are also tolled by litigation commenced by
one of the parties to this agreement to determine or enforce the rights and obligations of
the parties pursuant to this Agreement, which tolling shall end upon completion of the
litigation. If an action is tiled by a third party to challenge this Agreement but no
injunction is entered, the parties agree to meet and confer regarding whether it would be
appropriate to toll the deadlines.
E. Ryan waives its right to challenge all conditions set forth in this Agreement and the
Conditional Use Permit Resolution 01-19 ("CUP") (attached as Exhibit A), including the one-
year term in Section V of the CUP. This agreement does not in any way impact or prejudice
Ryan's right to apply for a renewal of the CUP.
F. Ryan agrees to conduct its mining activities in compliance with the CUP, and further
agrees that it must comply with all conditions imposed by the Court's Order of November 16,
2002 in State of Minnesota by Shakopee Mdewakanton Sioux Community v. City of Prior Lake
and Ryan Contracting Co., File No. C-OI-05286.
G. Prior to the parties' execution of this Agreement, the City will have: (1) reviewed
pursuant to Section IV(c)(l)-(8) of the CUP the plan revisions Ryan submitted in December
2004, (2) drafted and submitted to Ryan for its review a Development Agreement for this project
that the City is willing to approve after City staff approves Ryan's plan revisions, and (3)
provided Ryan with a Letter of Credit Form and an Assent Form. The City will review the work
plan Ryan is required to submit pursuant to Section IV(d)(2) of the CUP, and provide Ryan with
written feedback about whether the City approves the work plan or the actions that Ryan must
take to obtain the City's approval, within three weeks of its receipt by the City Planning Director.
The City will inspect McKenna Road prior to beginning work on the site and document its
current condition pursuant to Section IV(d)(8) of the CUP, and provide Ryan with that written
documentation of the road's current condition, within three weeks of Ryan's execution of a
Development Agreement with the City. The City will inspect the road on an ongoing basis once
work has commenced pursuant to Section IV(d)(8) of the CUP.
H. The parties agree that the one-year term set forth in Section V of the CUP does not
require Ryan to complete within that one-year period all the cleanup and restoration required by
the CUP or by the Court's Order of November 16, 2002. If the City does not renew a CUP for
Ryan's operations, Ryan is allowed 24 months after expiration of the CUP to complete its
removal of any stockpiles.
1. The parties agree that specific performance is an available remedy for any violation of
paragraphs C, D, F, or G of this Agreement.
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J. Except only for the representations or obligations of the parties under this Agreement,
Ryan and the City and any and all of their beneficiaries, employees, agents, representatives,
successors, assignees, transferees, joint ventures, attorneys, and insurers, hereby release and
discharge the other, and their past and present officers, directors, partners, elected officials, board
members, employees, agents, representatives, affiliates, divisions, successors, stockholders,
assignees, transferees, joint ventures, attorneys, insurers, and risk pools (including the League of
Minnesota Cities Insurance Trust) from all manner of claims, demands, actions, causes of
actions, suits, debts, dues, sums of money, accounts, bills, covenants, contracts, rights,
obligations, controversies, agreements, promises, and demands whatsoever, whether in law or
equity, they ever had, or now have, or hereafter may have, whether known or unknown, against
each other, involving the matters involved in the Action.
K. All notifications and reports required or provided for under this Agreement shall be made
by fax and U.S. mail to the parties as follows:
a. Notice to the City of Prior Lake shall be provided to the following two
individuals:
1. Suesan Lea Pace, Halleland Lewis, 220 S. Sixth Street, Suite 600,
Minneapolis, MN 55402, fax no. (612) 338-7858
11. Jane Kansier, Planning Director, City of Prior Lake, 16200 Eagle Creek
Ave., S.B., Prior Lake, MN 55372, fax no. (952) 447-4245.
b. Notice to Ryan Contracting Co. shall be provided to the following 2 individuals:
1. Tom Ryan, Ryan Contracting Co., 8700 - 13th Avenue East, Shakopee,
MN 55379, fax no. (952) 894-3207.
11. Steven J. Weintraut, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300
Washington Square, 100 Washington A venue South, Minneapolis, MN
55401, fax no. (612) 339-6591.
L. Each party will bear its own costs, expenses and attorney fees that it has incun'ed in
connection with or arising out of the Action.
M. This Agreement shall be binding upon the successors and assigns of the parties, whether
by way of merger, consolidation, operation of law, assignment, purchase, or other acquisition.
N. All questions with respect to the construction of this Agreement and the rights and
liabilities of the parties to this Agreement shall be governed by the laws of the State of
Minnesota.
O. This Agreement effects the settlement and release of claims and defenses, which are
denied and contested by the parties, and nothing contained in this Agreement shall be construed
as an admission of liability by either party.
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P. Ryan and the City will dismiss with prejudice the Action upon execution of this
Agreement.
Q. Each party represents and warrants that it has not assigned or transferred, or purported to
assign or transfer, any of the claims released pursuant to this Agreement to any other person and
that it is fully entitled to compromise and settle such claims. Each party shall indemnify the
other against all costs, expenses, and judgments, including all attorneys' fees incurred, in the
event that any third party shall assert any of the claims released pursuant to this Agreement based
on a purported assignment or transfer of rights by a party to this Agreement.
R. This Agreement and its attachments and addenda represent the entire agreement between
the parties with respect to the subject matter of the Agreement and supersedes all prior and
contemporaneous oral and written agreements and discussions. Each of the parties covenants
that it has not entered into this Agreement as a result of any representation, agreement,
inducement, or coercion, except to the extent specifically provided in this Agreement. Each
party further covenants that the consideration recited in this Agreement is the only consideration
for entering into this Agreement, and that no promises or representations of other or further
consideration have been made by any person. This Agreement may be amended only by a
written agreement executed by all parties.
S. This Agreement is the result of arms-length negotiations among the parties. All parties
have participated in the negotiations, have had an equal opportunity to participate in the drafting
and revision of this Agreement, and have had the opportunity to review this Agreement with
their counsel. No ambiguity shall be construed against any party based upon a claim that the
party in question drafted the ambiguous language.
T. This Settlement Agreement may be executed by the parties by facsimile and in identical
counterparts, each of which shall constitute an original for all purposes.
WHEREFORE, the parties have executed this Settlement Agreement and Mutual Release
effective as of the date first above written.
RYAN CONTRACTING COMPANY
Dated:
By:
Tom Ryan
President, Ryan Contracting Company
THE CITY OF PRIOR LAKE
Dated:
By:
Jack G. Haugen
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Dated:
Its Mayor
By:
Frank Boyles
Its City Manager
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