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is not obligated to do these things until the fOllowing occur: a) there is no litigation pending or threatened by the City relating to the Project which would prohibit Vertical Expansion, substantially increase the cost of Vertical Expansion or prevent the operation of the ski hill. That pending or threatened litigation does include litigation initiated by a third party. If a group of citizens camnence litigation that would prohibit or make Vertical Expansion economically impractical for the Developer, Waste Management has the option to get out of the agreement. The City has no control O\Ter third parties and Staff is not sure what "threatened" means, but up until that point, the City would have been 'cooperating'. Waste Management does not have to go forward until MPCA has approved the Remedial Action Plan, Metro Council has extended the Certificate of Need and the City has granted all necessary approvals. Waste Management does not have to move forward in the event there has been some subsequent action which prevents or increases the cost of operating the landfill. Again, the City will have cooperated up to that point and Waste Management will be getting their part of the bargain but the City will not have gotten their's at this point. Article III indicates that the City is obligated to cooperate with the Developer to obtain any goverrunental approvals necessary for developnent of the Project; Project being defined as the entire existing landfill. ArtiCle IV indicates what the City will get if the agreement is executed and each party performs. The Developer will construct one tow rope at least 650 feet long and has sole discretion over the plans and specs; will construct a warming house at least 1,000 s:;uare feet that may be a mobile home and mayor may not have indoor plumbing facilities and has sole discretion of plans and specs; will rough grade the extension of 153rd Avenue; will grant the City fee title to the road right-of-way parcel; construct a site access control fence at least six feet high; operate the recrecationalparcel for five years beginning fram an estimated first day of operation date of November 30, 1991 with the fees charged being reasonable for a facility of this nature. Ramsey's concern is to make sure that the fees charged, if the project goes fon,'ard, are fees similar to that charged at similar facilities. If the fees are too high, the people won't use the facility and it won't break even and the Developer can close the facility. If the fees are too lCM, the facility won't break even and the Developer can close the facility. Article IV also states that the Developer does not have the obligation to begin construction of the project if it is concluded, and agreed to by the City, that the project is not going to be feasible or 'break-even'. If the project is constructed, the Developer is not obligated to continue operation of the ski hill if a break-even point is not reached after the third skiing season. Tne project is not obligated to go forward if the Developer does not receive approval from MPCA and other governmental authorities to operate the recreational rarcel and rough grade t.'l1e road or if the Developer is unable to obtain liability insurance or if the Developer is unable to enter into a reasonable and acceptable agreement with an operator ror the ski hill. These provisions allow excessive latituoe ror the Develo~r and Staff has been unsuccessful in negotiating for the deletion of the liability insurance and reasonable operator City Council/March 9, 1988 Page 5 of 14 ~b