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is not obligated to do these things until the following occur: a) there <br />i~ no litigation pending or threatened by the City relating to the Projee. t <br />which would prohibit Vertical Expansion, substantially increase the cost of <br />Vertical Expansion or prevent the operation of the ski hill. That pending <br />or threatened litigation does include litigation initiated by a third <br />party. If a group of citizens commence litigation that would prohibit or <br />make Vertical Expansion economically impractical for the Developer, Waste <br />Management has the option to get out of the agreement. The City has no <br />control over third parties and Staff is not sure what "threatened" means, <br />but up until that point, the City would have been 'cooperating'. Waste <br />Management does not have to go forward until MPCA has approved the Remedial <br />Action Plan, Metro Council has extended the Certificate of Need and the <br />City has granted all necessary approvals. Waste Management does not have <br />to move forward in the event there has been some subsequent action which <br />prevents or increases the cost of operating the landfill. Again, the City <br />will have cooperated up to that point and Waste Management will be getting <br />their part of the bargain but the City will not have gotten their's at this <br />point. <br /> <br />Article III indicates that the City is obligated to cooperate with the <br />Developer to obtain any governmental approvals necessary for development of <br />the Project; Project being defined as the entire existing landfill. <br /> <br />Article IV indicates what the City will get if the agreement is executed <br />and each party performs. The Developer will construct one tow rope at <br />least 650 feet long and has sole discretion over the plans and specs; will <br />construct a warming house at least 1,000 square feet that may be a mobile <br />home and may or may not have indoor plumbing facilities and has sole <br />discretion of plans and specs; will rough grade the extension of 153rd <br />Avenue; will grant the City fee title to the road right-of-way parcel; <br />construct a site access control fence at least six feet high; operate the <br />recrecational parcel for five years beginning from an estimated first day <br />of operation date of November 30, 1991 with the fees charged being <br />reasonable for a facility of this nature. Ramsey's concern is to make sure <br />that the fees charged, if the project goes forward, are fees similar to <br />that charged at similar facilities. If the fees are too high, the people <br />won't use the facility and it won't break even and the Developer can close <br />the facility. If the fees are too low, the facility won't break even and <br />the Developer can close the facility. <br /> <br />Article IV also states that the Developer does not have the obligation to <br />begin construction of the project if it is concluded, and agreed to by the <br />City, that the project is not going to be feasible or 'break-even'. If the <br />project is constructed, the Developer is not obligated to continue <br />operation of the ski hill if a break-even point is not reached after the <br />third skiing season. The project is not obligated to go forward if the <br />Developer does not receive approval from MPCA and other governmental <br />authorities to operate the recreational parcel and rough grade the road or <br />if the Developer is unable to obtain liability insurance or if the <br />Developer is unable to enter into a reasonable and acceptable agreement <br />with an operator for the ski hill. These provisions allow excessive <br />latitude for the Developer and Staff has been unsuccessful in negotiating <br />for the deletion of the liability insurance and reasonable operator <br />City Council/March 9, 1988 <br /> <br />Page 5 of 14 <br /> <br /> <br />