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DRAFT 4-17-15 1 459182v4 TJG NE136-8 LAND USE AGREEMENT This Land Use Agreement (“Agreement”) is made and entered into this ___ day of April, 2015 by and between Murlowski Properties Inc. (“Owner”) and the City of New Brighton (“City”). RECITALS A. This Agreement relates to two adjacent properties owned by the Owner and Murco, Inc., an entity related to Owner (“Murco”), the first of which contains approximately 20 acres, is made up of three parcels, and is located at 2200 Old Highway 8 NW in New Brighton, MN (“Existing Property”), and the second is a more recently acquired parcel containing approximately 17 acres and is adjacent to the Existing Property (“New Parcel”). The two properties are legally described in the attached Exhibit A and are hereinafter collectively referred to as the “Property”. B. The underlying zoning district for the Property is I-1, Light Industrial. C. The Existing Property is in the City’s Environmental Constraint Overlay District and the land use approvals being processed by the City would also place the New Parcel in the same overlay district. D. The Existing Property is currently used for an outdoor aggregate crushing/recycling and equipment storage business, including the incidental storage and use of other materials, and Owner has sought approval from the City to expand its operations onto the New Parcel the Owner obtained from the U.S. government and which encompasses an operational railroad track operated by Minnesota Commercial Railway Company (“Track”). E. To the parties’ knowledge, the owner of the Track has no interest in the Property except a possible right to assert a prescriptive easement to allow the continued use of the Track over the New Parcel. F. The City is processing a zoning code amendment, special use permit (“Special Use Permit”), and a site plan (“Site Plan”) related to the Owner’s expansion of its uses onto the New Parcel. In discussions regarding the proposed uses, the issue of federal preemption under the Interstate Commerce Commission Termination Act of 1995 (“Act”) was raised in a letter dated January 16, 2015 and submitted on the Owner’s behalf regarding the proposed uses of the Property and limitations thereon. Given potential uncertainties in attempting to identify the scope of federal preemption, the parties have mutually agreed to address the preemption issue by this Agreement and to proceed with the Owner’s land use requests in a way that avoids the costs and uncertainties associated with litigation. AGREEMENT In consideration of the mutual promises and conditions contained herein, and intending to be legally bound, the parties hereby agree as follows: