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HomeMy WebLinkAbout02.04.13 Council Packet City of Farmington Mission Statement 430 Third Street Through teamwork and cooperation, Farmington,MN 55024 the City of Farmington provides quality services that preserve our proud past and foster a promising future. FARMINGTON CITY COUNCIL Todd Larson, Mayor Jason Bartholomay Douglas Bonar Terry Donnelly Christy Fogarty AGENDA REGULAR CITY COUNCIL MEETING February 4, 2013 7:00 P.M. CITY COUNCIL CHAMBERS Action Taken 1. CALL TO ORDER 7:00 P.M. 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. APPROVE AGENDA 5. ANNOUNCEMENTS/COMMENDATIONS 6. CITIZEN COMMENTS/RESPONSES TO COMMENTS(This time is reserved for citizen comments regarding non-agenda items. No official Council action can be taken on these items. Speakers are limited to five minutes to address the Council during"Citizen Comment"time.) 7. CONSENT AGENDA a) Approve Council Minutes (1/22/13 Regular) Approved b) Adopt Resolution—Accept Donation 2012 Youth Scholarship Program from Rotary Club of Farmington—Parks and Recreation R4-13 c) Approve Agreement 2013 Inflow and Infiltration Grant-Engineering Approved d) Adopt Ordinance—Criminal History Background Checks Amendment— Police Department Ord 013-658 e) Adopt Resolution—Accept Donations Rambling River Center—Parks and Recreation R5-13 f) Approve Revision of Business Development Grant Program- Planning Approved g) Approve Position Reclassification Engineering—Human Resources Approved h) Approve Position Reclassification Human Resources—Human Resources Approved i) Approve Bills Approved REGULAR AGENDA (The Council takes a separate action on each item on the Regular Agenda. If you wish to address the Council regarding any or all of the items on the Regular Agenda,please address the item when the item is discussed Speakers will be given at least three minutes to speak per item.Additional time may be granted to speakers representing two or more persons.) 8. PUBLIC HEARINGS 9. AWARD OF CONTRACT 10. PETITIONS,REQUESTS AND COMMUNICATIONS a) Animals Within the City-Administration March Planning Commission b) Approve Elimination of Ice Arena Interfund Payable - Finance Approved 11. UNFINISHED BUSINESS 12. NEW BUSINESS a) Approve Easement Payment Steve and Susan Finden—Engineering Approved b) Approve Executive Estates Settlement Agreement-Engineering Approved 13. COUNCIL ROUNDTABLE 14. EXECUTIVE SESSION a) AFSCME Labor Negotiations 15. ADJOURN Persons with a disability may request a reasonable accommodation by contacting the City Administrator's office at 651-280-6803. Request should be made 24 hours in advance or as early as possible to allow time to arrange accommodation. Table of Contents Agenda 2 Approve Council Minutes (1/22/13 Regular) Minutes 4 Adopt Resolution Accept Donation to the 2012 Youth Scholarship Program from the Rotary Club of Farmington memo 8 resolution 9 Approve Agreement-2013 Inflow and Infiltration Grant 2013 I&I Grant 020413 10 MCES Grant Agreement 11 Adopt Ordinance - Criminal Histoy Background Checks Amendment criminal background ord 60 Ordinance 61 Adopt Resolution Accept Donations to the Rambling River Center Memo 66 resolution 67 Approve Revision of Business Development Grant Program Memo 68 Approve Position Reclassification - Engineering Keller Reclass Memo 82 Approve Position Reclassification - Human Resources Linnane Reclass Memo -2013 83 DBMEval_HRAdminSupp_19Oct2012_B2 85 Approve Bills Bills 87 Animals Within the City Memo 113 Approve Elimination of Ice Arena Interfund Payable CMResolution -Ice Arena Eliminate Interfund Payable 20130204 131 Approve Easement Payment-Steve and Susan Finden Finden Easement 020413 133 Executed Finden Easement 135 Finden Easement Exhibit A 020413 137 Mortgage Holder Consent to Easement-Finden 138 Approve Executive Estates Settlement Agreement Executive Estates Settlement Agreement Memo 020413 139 Executive Estates Settlement Agreement and Release 142 Map of Recommended Park Dedication from PRAC Oct 10 2012 Meeting 147 AFSCME Labor Negotiations Memo 148 1 COUNCIL MINUTES REGULAR January 22, 2013 1. CALL TO ORDER The meeting was called to order by Mayor Larson at 7:00 p.m. 2. PLEDGE OF ALLEGIANCE Mayor Larson led the audience and Council in the Pledge of Allegiance. 3. ROLL CALL Members Present: Larson, Bartholomay, Bonar, Donnelly,Fogarty Members Absent: None Also Present: David McKnight, City Administrator;Robin Hanson,Finance Director;Randy Distad, Parks and Recreation Director;Kevin Schorzman, City Engineer;Cynthia Muller, Executive Assistant Audience: Mary Scheide 4. APPROVE AGENDA Councilmember Donnelly asked to comment on 7e)Accept Donation Farmington Fire Relief Association. Councilmember Bartholomay pulled item 7k)Proposal to Complete Master Plan for Jim Bell Park and Preserve, for discussion. MOTION by Fogarty, second by Donnelly to approve the Agenda. APIF,MOTION CARRIED. 5. ANNOUNCEMENTS Ms. Mary Scheide,representing the Dakota County Farmington Library, highlighted their upcoming programs. The library is partnering with the City's Park and Rec department for youth programs. January—May they will be offering Story Time in the Park and the event will be held at the Trinity Care Center in the cottages area. There are also children's programs at the library. Teen programs are offered at the library and they are also partnering with Parks and Recreation to offer Wii games at the Rambling River Center. There is a program for adults on smart money management. On April 27, 2013, the library is offering a shred fest where residents can bring papers for shredding. 6. CITIZEN COMMENTS 7. CONSENT AGENDA MOTION by Fogarty, second by Bartholomay to approve the Consent Agenda as follows: a) Approve Council Minutes(1/7/13 Regular)(1/14/13 Special) b) Approved Appointments to Boards and Commissions-Administration c) Received Information Fourth Quarter 2012 and End of Year New Construction Report and Population Estimate—Building Inspections d) Approved School and Licensing—Building Inspections 4 Council Minutes(Regular) (DATE) Page 2 e) Adopted RESOLUTION R2-13 Accepting Donation Farmington Fire Relief Association-Finance Councilmember Donnelly noted the City received a donation of$14,000 from the Farmington Fire Relief Association to be used for fire safety equipment. He thanked them for this donation. It shows a commitment to our fire department and to the safety of our residents. Mayor Larson noted as of last year they have been running pull tabs in various locations in town which takes a lot of work and their efforts have paid off. f) Approved Rambling River Center Payoff of the Storm Water Fund Loan- Finance g) Approved School and Conference-Finance h) Approved School and Conference-Municipal Services i) Approved School and Conference—Fire Department j) Received 2012 Fire Department Annual Report—Fire Department 1) Approved 2013 Sentence to Service Contract—Natural Resources m) Approved Request to Waive Rambling River Center Rental Fees—Parks and Recreation n) Adopted RESOLUTION R3-13 Approving Wetland Health Evaluation Program Joint Powers Agreement—Natural Resources o) Approved Appointment Recommendation Police Department—Human Resources p) Approved Bills APIF,MOTION CARRIED. k) Approve Proposal to Complete Master Plan for Jim Bell Park and Preserve— Parks and Recreation Councilmember Bartholomay asked if this can wait a few years. Parks and Recreation Director Distad noted we can wait, but we can get good pricing today rather than waiting three years and paying more. We have already completed two out of the three parcels. As we have a new park area, staff wanted to update the Master Plan so the documents are up to date and reflect what is out in the field. The$2,800 is a fair price and something staff wants to do so we have accurate documents on the website and in the comp plan. Councilmember Bartholomay asked if it was possible the plans could change in three to five years. Staff did not envision any changes. This is the direction the community wanted. Councilmember Bonar agreed with Councilmember Bartholomay. While it is important we do planning and staff and the commissions do an excellent job in planning for facilities, it is his understanding we are going through an RFP process which will be decided next month when it comes to an ag lease for a portion of this land. He asked to consider deferring any action for three years assuming the ag lease is approved. Staff explained the master plan is a long range plan that lasts longer than three to five years; it will be there forever until staff needs to make any adjustments. The ag lease agreement contains a provision to get out of the lease if the park acreage were to be developed. Councilmember Bonar stated his experience has been with planning within a five year window, 5 Council Minutes(Regular) (DATE) Page 3 you will need to refresh it after five years. It is uncommon that a plan will be able to remain a constant after five years. It will require some updating. Mayor Larson asked about two master plans that are completed. Parks and Recreation Director Distad stated it is the Meadow Creek Park and the Fairhill Community Park. The Meadow Creek Park area has been built out,however the master plan does not reflect what is actually there. As part of the master plan update,we would revise that plan to reflect what is currently in the park. Some changes were made to that plan due to drainage issues. Mayor Larson asked when the park would be developed. Staff stated the estimated cost in 2007 was $6.5 million. Councilmember Bartholomay asked about the difference in pricing if we wait. Staff noted it should not be a large amount,but it will increase. Mayor Larson asked what we will receive for$2,800. Staff replied we will have an overall master plan that reflects current completed park improvements, it will incorporate the ponds and wooded area in Autumn Glen into the master plan for the Fairhill Park and the Meadow Creek Park. It will reflect the boundary of the Jim Bell Park and Preserve. The main purpose is to revise the master plan to reflect the boundary for the new park. Councilmember Fogarty was not a big fan of paying contractors to do this work. As it will not be immediately put into place and we are not short on time, she felt it could be done inhouse and take a couple years to do it. Redoing schematics on the Meadow Creek Park could be done inhouse because we know where the amenities are located. This could be a backburner project to work on when staff has time. We have a community center in the plan and she does not see that as a reality in the next 20 years. She has never been a big fan of master plans. Councilmember Donnelly agreed there is no urgency. He could understand wanting to get the plan in place,but we don't know when it will be executed. Mayor Larson asked if this could be done inhouse. Staff stated we could look at it,but in the past Hoisington Koegler has done the fmal rendering of the master plans and they convert it to electronic format for the City's website and to respond to requests for it. MOTION by Bonar, second by Bartholomay to deny the proposal submitted by HKGI for services related to the rendering of a master plan for Jim Bell Park and Preserve. Voting for: Bartholomay, Bonar,Donnelly, Fogarty. Voting against: Larson. MOTION CARRIED. 8. PUBLIC HEARINGS 9. AWARD OF CONTRACT 6 Council Minutes(Regular) (DATE) Page 4 10. PETITIONS,REQUESTS AND COMMUNICATIONS a) November 2012 Financial Report-Finance The general fund at this point should be at 92%of budget. The general fund is at 57%as second half property taxes are not received until December. Once taxes are received, that number will be in line with the budget. Expenses totaled 86% of budget. Numbers for the Rambling River Center have changed, as donations received above the $90,000 were moved to a separate Rambling River Center Improvement Fund. Regarding the EDA, at the beginning of the year there was a negative fund balance. The budget adopted identified money to be transferred in to eliminate the negative balance. The EDA has enough to pay off their loan which was approved tonight. The only inter-fund loan outstanding will be for the fire truck. The arena has a$40,000 deficit. Once November and December revenues are received,the arena should break even. Liquor stores revenue exceeded expenses by$200,000 for the year compared to $70,000 a year ago. The general fund has dipped below zero in November and will be restored in December with the second half taxes. Finance Director Hanson suggested moving this review to quarterly rather than monthly. Council agreed with this change. 11. UNFINISHED BUSINESS 12. NEW BUSINESS 13. COUNCIL ROUNDTABLE Councilmember Donnelly: Urged residents to be careful as it is cold and icy in spots. Councilmember Fogarty: Encouraged resident to come to the Community Expo this Saturday at the Farmington High School. There will be performances and vendors. Applications are being accepted for the Farmington Royalty until February 18, 2013, and can be done online. Councilmember Bonar: Thanked the Fire Relief Association for the invitation to their Annual Banquet. Mayor Larson: Reminded residents to shop local and thanked residents for supporting the Farmington liquor stores as the proceeds do help with taxes. 14. ADJOURN MOTION by Fogarty, second by Bartholomay to adjourn at 7:27 p.m. APIF,MOTION CARRIED. Respectfully submitted, Cynthia Muller Executive Assistant 7 / ffJ 7-414, City of Farmington .� 1� 430 Third Street P'I !'!_ Farmington,Minnesota 651.28015400•Fax 651.280.6899 www.ci.tarmingum mn.us TO: Mayor,Council Members and City Administrator FROM: Randy Distad,Parks and Recreation Director SUBJECT: Adopt Resolution Accept Donation to the 2012 Youth Scholarship Program from the Rotary Club of Farmington DATE: February 4,2013 INTRODUCTION Previously the City Council approved in 2006 the Rotary Club of Farmington's proposal to provide annual sponsorship of the Rotary Club of Farmington Parks and Recreation Department Youth Scholarship Program(Youth Scholarship Program). DISCUSSION In 2012 Rotary Club of Farmington donated$852.69 to cover 22 youth scholarships that were approved and given in 2012. The following comparison shows the number of Rotary Club of Farmington youth scholarships that have been granted since the sponsorship of the program began in 2006: Number of Total Cost Scholarships of All Year Provided Scholarships 2006 67 $2,523.00 2007 69 $3,437.00 2008 44 $2,114.00 2009 31 $1,748.00 2010 45 $1,500.00 2011 20 $ 350.00 2012 22 $ 852.69 Totals 298 $12,524.69 Because the Rotary Club of Farmington has made a commitment to sponsoring the Parks and Recreation Department's Youth Scholarship Program you can see that 298 youths in the community have benefited from their sponsorship since 2006. ACTION REQUESTED Adopt the attached resolution accepting the generous donation of$852.69 from the Rotary Club of Farmington for the 2012 Parks and Recreation Department's youth scholarship sponsorships. Respectfully Submitted, Randy Distad Parks and Recreation Director 8 RESOLUTION No. R4-13 ACCEPTING DONATION OF$852.69 FROM THE ROTARY CLUB OF FARMINGTON TO THE ROTARY CLUB OF FARMINGTON AND PARKS AND RECREATION DEPARTMENT YOUTH SCHOLARSHIP PROGRAM Pursuant to due call and notice thereof, a regular meeting of the City Council of the City of Farmington,Minnesota, was held in the Council Chambers of said City on the 4th day of February,2013 at 7:00 p.m. Members Present: Larson, Bartholomay, Bonar, Donnelly, Fogarty Members Absent: None Member Fogarty introduced and Member Bartholomay seconded the following: WHEREAS, a donation of$852.69 has been given to the Rotary Club of Farmington Parks and Recreation Department's Youth Scholarship Program by the Rotary Club of Farmington; and, WHEREAS, it is required by State statute and it is in the best interest of the City to accept such donation. NOW,THEREFORE,BE IT RESOLVED that the City of Farmington hereby accepts with gratitude the generous donation of$852.69 from the Rotary Club of Farmington. This resolution adopted by recorded vote of the Farmington City Council in open session on the 4th day of February 2013. Mayor Attested to the (4 day of February 2013. Administrat',r SEAL 7 o EA �, City of Farmington P I 430 Third Street P ,w .. Farmington,Minnesota `� .° 651.280.6800•Fax 651.280,6899 4i��A w ww C[I armington.mnu.S TO: Mayor, Councilmembers, City Administrator FROM: Kevin Schorzman, P.E., City Engineer SUBJECT: Approve Agreement-2013 Inflow and Infiltration Grant DATE: February 4, 2013 INTRODUCTION At the December 3, 2012, meeting, Council indicated their continued support of the project to replace the sewer line that crosses TH-3 at Oak Street. Council also indicated support for the grant that the City had been preliminarily awarded by the Metropolitan Council. The City of Farmington has been awarded a grant from the Metropolitan Council for Inflow and Infiltration (I&I)reduction in our sanitary sewer system in the amount of$23,328 for the project. DISCUSSION The attached agreement is a requirement of receiving the grant. Staff has reviewed the agreement and is recommending that the Council approve the agreement and authorize the Mayor and Administrator to execute the agreement. BUDGET IMPACT Although full funding for the project has been included in the 2013 budget,this grant will reduce the amount of money used from the Sanitary Sewer Fund, thereby reducing the City's contribution to the project by$23,328. ACTION REQUESTED By motion, authorize execution of the attached agreement related to the 2013 Inflow and Infiltration Grant program. Respectfully Submitted, Kevin Schorzman, P.E. City Engineer cc: file 10 CONTRACT NO.SG2013-008 Metropolitan Council Municipal Publicly Owned Infrastructure Inflow/Infiltration Grant Program State of Minnesota General Obligation Bond Proceeds Grant Agreement — Construction Grant for the Farmington - Trunk Highway 3 East Frontage Road Sanitary Replacement Project 11 TABLE OF CONTENTS RECITALS Article I-DEFINITIONS Section 1.01—Defined Terms Article II-GRANT Section 2.01 —Grant of Monies Section 2.02—Public Ownership Section 2.03—Use of Grant Proceeds Section 2.04—Operation of the Real Property and Facility Section 2.05—Grantee Representations and Warranties Section 2.06—Ownership by Leasehold or Easement Section 2.07—Event(s)of Default Section 2.08—Remedies Section 2.09—Notification of Event of Default Section 2.10—Survival of Event of Default Section 2.11—Term of Grant Agreement Section 2.12—Modification and/or Early Termination of Grant Section 2.13—Excess Funds. Article III—USE CONTRACTS [NOT TO BE USED IN THIS AGREEMENT] Section 3.01—General Provisions Section 3.02—Initial Term and Renewal Section 3.03—Reimbursement of Counterparty Section 3.04—Receipt of Monies Under a Use Contract Article IV—SALE Section 4.01 —Sale Section 4.02—Proceeds of Sale Article V—COMPLIANCE WITH G.O. COMPLIANCE LEGISLATION AND THE COMMISSIONER'S ORDER Section 5.01 —State Bond Financed Property Section 5.02—Preservation of Tax Exempt Status Section 5.03—Changes to G.O. Compliance Legislation or the Commissioner's Order Article VI—DISBURSEMENT OF GRANT PROCEEDS Section 6.01—The Advances Section 6.02—Draw Requisitions Section 6.03—Additional Funds Section 6.04—Condition Precedent to Any Advance Section 6.05—Construction Inspections 1 12 • J Article VII-MISCELLANEOUS Section 7.01—Insurance Section 7.02—Condemnation Section 7.03—Use,Maintenance,Repair and Alterations Section 7.04—Records Keeping and Reporting Section 7.05—Inspections by Council Section 7.06—Data Practices Section 7.07—Non-Discrimination Section 7.08—Worker's Compensation Section 7.09—Antitrust Claims Section 7.10—Review of Plans and Cost Estimates [NOT TO BE USED] Section 7.11 —Prevailing Wages Section 7.12—Liability Section 7.13—Indemnification by the Grantee Section 7.14—Relationship of the Parties Section 7.15—Notices Section 7.16—Binding Effect and Assignment or Modification Section 7.17—Waiver Section 7.18—Entire Agreement Section 7.19—Choice of Law and Venue Section 7.20—Severability Section 7.21 —Time of Essence Section 7.22—Counterparts • Section 7.23—Matching Funds Section 7.24—Source and Use of Funds Section 7.25—Project Completion Schedule Section 7.26—Third-Party Beneficiary Section 7.27—Grantee Tasks Section 7.28—.Council and Commissioner Required Acts and Approvals Section 7.29—Applicability to Real Property and Facility Section 7.30—E-Verification • Section 7.31—Additional Requirements Section 7.32—Termination Due to Lack of Funds Section 7.33—Grant Program Remainder Funds Attachment I—DECLARATION Attachment I-A-CERTIFICATION Attachment II—LEGAL DESCRIPTION OF REAL PROPERTY Attachment III—SOURCE AND USE OF FUNDS Attachment N—PROJECT DESCRIPTION AND COMPLETION SCHEDULE 2 13 GENERAL OBLIGATION GRANT PROCEEDS MUNICIPAL PUBLICLY OWNED INFRASTRUCTURE INFLOW/INFILTRATION GRANT PROGRAM INTERGOVERNMENTAL GRANT AGREEMENT BETWEEN METROPOLITAN COUNCIL AND FARMINGTON This Intergovernmental Grant Agreement ("Grant Agreement") is made this 4th day of February ,2013, and entered into by and between Metropolitan Council a public corporation and political subdivision of the State of Minnesota ("Council") and Farmington,a Minnesota Municipal corporation("Grantee"). BACKGROUND RECITALS 1. The Minnesota Legislature has appropriated to the Council in the 2012 Session Laws Chapter 293, Section 17, subdivision 3, $4,000,000 for a grant program to be administered by the Council for the purpose of providing grants to municipalities for capital improvements to public municipal wastewater collection systems to reduce the amount of inflow and infiltration to the Council's metropolitan sanitary sewer disposal system("I/I Municipal Grant Program"). 2. The monies allocated to fund the appropriation to the Council are proceeds of state general obligation bonds authorized to be issued under Article XI, § 5(a) of the Minnesota Constitution. 3. The Council has gone through a public process and formally adopted Guidelines for the I/1 Municipal Grant Program. Grantee has read and understands the Council Guidelines("Council Guidelines"). 4. Council has identified Grantee as a contributor of excessive inflow and infiltration to the Council's metropolitan sanitary sewer disposal system and thus an eligible applicant for grant funds under the I/I Municipal Grant Program. 5. Pursuant to its authority under Minnesota Statutes §444.075 [or other authority, if different], Grantee operates a municipal wastewater collection system 3 14 identified as Farmington Wastewater Collection System("Wastewater System") and has submitted an application for grant funds including a timeline for an inflow and infiltration mitigation capital improvement project to the Wastewater System to the Council in accordance with Council's Guidelines. For purposes of this Agreement, the term "Governmental Program"means the Wastewater System. 6. Council has reviewed and found eligible Grantee's application for grant funds and has awarded such grant funds ("G.O. Grant") to Grantee to construct a capital improvement project to Grantee's pipeline as described in and in accordance with the terms and conditions of this Grant Agreement. 7. The Grantee's receipt and use of the 1/1 Municipal Grant Program to acquire an ownership interest in and/or improve real property(the"Real Property")and structures situated thereon(the"Facility")will cause the Grantee's ownership interest in all of such real property and structures to become "state bond financed property", as such term is used in Minn. Stat. § 16A.695 (the "G.O. Compliance Legislation") and in that certain "Third Order Amending Order of the Commissioner of Finance Relating to Use and Sale of State Bond Financed Property" executed by the Commissioner of Minnesota Management and Budget and dated June 19, 2012 (the "Commissioner's Order"), even though such funds shall only be a portion of the funds being used to acquire such ownership interest and/or improve such real property and structures and that such funds may be used to only acquire such ownership interest and/or improve a part of such real property and structures. 8. Council and Grantee desire to set forth herein the provisions relating to the granting of such G.O. Grant and the disbursement thereof to Grantee and the operation of the Real Property and the Facility. NOW, THEREFORE, in consideration of the G.O. Grant described and other provisions in this Agreement,Council and Grantee agree as follows: 4 15 Article I DEFINITIONS Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set out respectively after each such term (the meanings to be equally applicable to both the singular and plural forms of the terms defined), unless the context specifically indicates otherwise: "Advance(s)"—means an advance made or to be made by the Council to the Grantee and disbursed in accordance with the provisions contained in Article VI hereof. "Agreement" - means this Metropolitan Municipal Publicly Owned Infrastructure Inflow/Infiltration Grant Program Grant Agreement - Construction Grant for the Farmington - Trunk Highway 3 East Frontage Road Sanitary Replacement Project, as such exists on its original date and any amendments, modifications or restatements thereof. "Approved Debt" —means public or private debt of the Public Entity that is consented to and approved,in writing,by the Commissioner of MMB,the proceeds of which were or will used to acquire an ownership interest in or improve the Real Property and Facility, other than the debt on the G.O. Bonds. Approved Debt includes, but is not limited to, all debt delineated in Attachment III to this Agreement; provided, however, the Commissioner of MMB is not bound by any amounts delineated in such attachment unless he/she has consented, in writing, to such amounts. "Architect",if any-means ,which will administer the Construction Contract Documents on behalf of the Grantee. "Certification" — means a certification in the form contained in Attachment 1-A to this Agreement and all amendments thereto, acknowledging that the Real Property and Facilities is state bond financed property within the meaning of Minn. Stat. § 16A.695,is subject to the requirements imposed by such statutes and cannot be sold, encumbered or otherwise disposed of without the approval of the Commissioner of the MMB. "Code"-means the Internal Revenue Code of 1986, as amended from time to time, and all treasury regulations, revenue procedures and revenue rulings issued pursuant thereto. "Commissioner of MMB" - means the commissioner of the Minnesota Department of Management and Budget, and any designated representatives thereof. 5 16 "Commissioner's Order" - means that certain "Third Order Amending Order of the Commissioner of Finance Relating to Use and Sale of State Bond Financed Property" executed by the Commissioner of Minnesota Management and Budget and dated June 19,2012. "Completion Date" — means November 30, 2014 the date of projected completion of the Project. "Contractor" - means any person engaged to work on or to furnish materials and supplies for the Construction Items including,a general contractor. "Construction Contract Documents" - means the document or documents, in form and substance acceptable to the Council, including but not limited to any construction plans and specifications and any exhibits, amendments,change orders, modifications thereof or supplements thereto, which collectively form the contract between the Grantee and the Contractor or Contractors for the completion of the Construction Items on or before the Completion Date for either a fixed price or a guaranteed maximum price. "Construction Items" — means the work to be performed under the Construction Contract Documents. "Council" - means the entity identified as the "Metropolitan Council" in the lead-in paragraph of this Agreement. "Declaration" -means a declaration, or declarations, in the form contained in Attachment I to this Agreement and all amendments thereto, indicating that the Grantee's ownership interest in the Real Property and Facility is state bond financed property within the meaning of the G.O. Compliance Legislation and is subject to certain restrictions imposed thereby. "Draw Requisition" - means a draw requisition that the Grantee, or its designee, submits to the Council when an Advance is requested, as referred to in Section 6.02. "Easement Premises" - means the real estate and structures, granted to the Grantee under an easement. "Event of Default" - means one or more of those events delineated in Section 2.07. "Facility" means, the Wastewater Systems identified in Recital No. 5 of this Agreement which is located, or will be constructed and located, on the Real Property and all equipment that is a part thereof that was purchased with the proceeds. "Fair Market Value" — means either (i) the price that would be paid by a willing and qualified buyer to a willing and qualified seller as determined by an 6 17 appraisal that assumes that all liens and encumbrances on the property being sold that negatively affect the value of such property, will be paid and released, or (ii) the price bid by a purchaser under a public bid procedure after reasonable public notice, with the proviso that all liens and encumbrances on the property being sold that negatively affect the value of such property, will be paid and released at the time of acquisition by the purchaser. "G.O. Bonding Legislation"—means the legislation delineated in Recital Nos. 1 and 2 hereinabove as the G.O.Bonding Legislation. "G.O.Bonds"-means that portion of the state general obligation bonds issued under the authority granted in Article XI, § 5(a) of the Minnesota Constitution, the proceeds of which are used to fund the G.O. Grant and any state bonds issued to refund or replace such bonds. "G.O. Compliance Legislation" - means Minn. Stat. § 16A.695 as such may subsequently be amended, modified or replaced from time to time unless such amendment, modification or replacement imposes an unconstitutional impairment of a contract right. "G.O. Grant"means a grant of monies from the Council to the Grantee in the amount identified as the "G.O. Grant" in Section 2.01 (b)to this Agreement, as the amount thereof may be modified under the provisions contained herein. "Governmental Program" means the operation of the Real Property and the Facility for the purpose specified and identified in Recital No. 5 of this Agreement as the Governmental Program. "Grantee" - means the entity identified as the "Grantee" in the lead-in paragraph of this Agreement. "Initial Acquisition and Betterment Costs" — means the cost to acquire the Grantee's ownership interest in the Real Property and Facility if the Grantee does not already possess the required ownership interest, and the costs of betterments of the Real Property and Facility; provided, however, the Council and the Commissioner of MMB are not bound by any specific amount of such alleged costs unless consented to in writing. "Inspecting Engineer", if any- means the Council's construction inspector, or its designated consulting engineer. • "Outstanding Balance of the G.O. Grant—means the portion of the G.O. Grant that has been disbursed to or on behalf of the Grantee minus any portion thereof previously paid back to the Commissioner of MMB. 7 18 "Ownership Value", if any — means the value, if any, of the Grantee's ownership interest in the Real Property and Facility that existed concurrent with the Grantee's execution of this Agreement. Such value shall be established by way of an appraisal or by such other manner as may be acceptable to the Council and the Commissioner of MMB. The parties hereto agree and acknowledge that such value is $90,000 X or_ Not Applicable;provided,however,the Commissioner of MMB is not bound by any inserted dollar amount unless he/she has consented, in writing, to such amount. If no dollar amount is inserted and the blank "Not Applicable" is not checked, a rebuttable presumption that the Ownership Value is $0.00 shall be created. (The blank "Not Applicable" should only be selected and checked when a portion of the funds delineated in Attachment Ill attached hereto are to be used to acquire the Grantee's ownership interest in the Real Property and Facility, and in such event the value of such ownership interest should be shown in Attachment HI and not in this definition for Ownership Value). - "Project" - means the Grantee's acquisition, of the ownership interests in the Real Property and, Facility denoted in Section 2.02 along with the performance of activities denoted in Section 2.03. (If the Grantee is not using any portion of the G.O. Grant to acquire the ownership interest denoted in Section 2.02, then this definition for Project shall not include the acquisition of such ownership interest, and the value of such ownership interest shall not be included in Attachment IH hereto and instead shall be included in the definition for Ownership Value under this Section) "Real Property" - means the real property located in the County of Dakota , State of Minnesota and identified in Attachment II to this Agreement by legal description,narrative description or diagram. "Subsequent Betterment Costs"—means the costs of betterments of the Real Property and Facility that occur subsequent to the date of this Agreement, are not • part of the Project, would qualify as a public improvement of a capital nature (as such term in used in Minn. Constitution Art. XI, §5(a) of the Minnesota Constitution), and the cost of which has been established by way of written documentation that is acceptable to and approved,in writing,by the Council and the Commissioner of MMB. "Useful Life of the Real Property and Facility"—means (i) 30 years for Real Property that has no structure situated thereon or if any structures situated thereon will be removed, and no new structures will be constructed thereon, (ii) the remaining useful life of the Facility as of the effective date of this Agreement for Facilities that are situated on the Real Property as of the date of this Agreement, that will remain on the Real Property, and that will not be bettered, or (iii) the useful life of the Facility after the completion of the construction or betterments for Facilities that are to be constructed or bettered. 8 19 Article II GRANT Section 2.01(a). Grant of Monies. The Council shall make and issue the G.O. Grant to the Grantee, for payment of Project items as described in Attachment W to this Agreement and disburse the proceeds in accordance with the provisions of this Agreement. The G.O. Grant is not intended to be a loan even though the portion thereof that is disbursed may need to be returned to the Council or the Commissioner of MMB under certain circumstances. Section 2.01(b). Maximum Expected Grant Amount ("Maximum Grant Amount"). The Council will pay to Grantee a Maximum Grant Amount during the Grant Project activity period of up to$23,328("Maximum Grant Amount"). However,in no event will the actual amount that the Council will pay to the Grantee for this Agreement exceed one-half of the actual amount expended by the Grantee on eligible expenses as specified in Section 2.01(a). Neither the Council nor the MMB shall bear any responsibility for a cost overrun which may be incurred by the Grantee in performance of the Project. The actual Grant Amount will be determined by the Council upon submission by Grantee to Council of reasonable, eligible and verifiable costs submitted in accordance with the terms of this Agreement for the Grant Project as described in Attachment IV. Section 2.02 Public Ownership. The Grantee acknowledges and agrees that the G.O. Grant is being funded with the proceeds of G.O.Bonds, and as a result thereof all of the Real Property and Facility must be owned by one or more public entities. Such ownership may be in the form of fee ownership or an easement. In order to establish that this public ownership requirement is satisfied,the Grantee represents and warrants to the Council that it has, or will acquire,the following ownership interests in the Real Property and Facility, and, in addition, that it possesses, or will possess, all easements necessary for the operation, maintenance and management of the Real Property and Facility in the manner specified in Section 2.04: (Check the appropriate box for the Real Property for the Facility.) Ownership Interest in the Real Property. Fee simple ownership of the Real Property. 9 20 An easement for the Real Property that complies with the requirements contained in X Section 2.06. (If the term of the easement is for a term authorized by a Minnesota statute, rule or session law,then insert the citation: .) Permit for pipe in [Permittor] right-of-way that complies with the requirements contained in Section 2.06. Ownership Interest in the Facility. X Fee simple ownership of the Facility. Not applicable because there is no Facility. Section 2.03 Use of Grant Proceeds. The Grantee shall use the G.O. Grant solely to reimburse itself for expenditures it has already made in the performance of the Project as described in Attachment IV to this Agreement,and may not use the G.O. Grant for any other purpose. The Project as described in Attachment IV consists of the following: (Check all appropriate boxes.) ❑ Acquisition of fee simple title to the Real Property. Acquisition of an easement for the Real Property. ❑ Improvement of the Real Property. ❑ Acquisition of fee simple title to the Facility. Construction of the Facility. © Renovation of the Facility. (Describe other or additional purposes.) Further, Grantee agrees to perform and complete in a satisfactory manner the Project as described in Grantee's application for assistance under the Council's I/I Municipal Grant Program, which application is incorporated into Attachment IV of this Agreement by reference, and in accordance with the terms and conditions of this 10 21 Agreement. Specifically,the Grantee agrees to perform the Project in accordance with a specific timeline, all as described in Attachment N and to undertake the financial • responsibilities described in Attachment III to this Agreement. The Grantee has the responsibility for and obligation to complete the Project as described in Attachment III and N. The Council makes no representation or warranties with respect to the success and effectiveness of the Project. The G.O. Grant cannot be used for normal municipal operating or overhead costs related to the Project. G.O. Grant funds cannot be used for the costs of studies or for engineering or planning costs, or for equipment, machinery, supplies or other property necessary to conduct the Project except for equipment, supplies or other property which will be used primarily for the Project and that are specifically listed in Attachment N. Section 2.04 Operation of the Real Property and Facility. The Real Property and Facility must be used by the Grantee or the Grantee must cause such Real Property and Facility to be used for the operation of the Governmental Program or for such other use as the Minnesota legislature may from time to time designate, and for no other purposes or uses. Grantee must annually determine that the Real Property and Facility is being used for the purpose required by this Agreement, and has or has not been sold, abandoned, leased or subjected to a management contract or an agreement for use of the Real Property and Facility and shall annually supply a statement from an.officer of the Grantee, sworn to before a notary public, to such effect to the Council and the Commissioner of MMB. For those programs, if any, that the Grantee will directly operate on all or any portion of the Real Property and Facility, the Grantee covenants with and represents and warrants to the Council that: (i) it has the ability and a plan to fund such programs, (ii)it has demonstrated such ability by way of a plan that it submitted to the Council, and(iii) it will annually adopt, by resolution, a budget for the operation of such programs that clearly shows that forecast program revenues along with other funds available for the operation of such program will be equal to or greater than forecast program expenses for each fiscal year, and will supply, upon request, to the Council and the Commissioner of MMB certified copies of such resolution and budget. For the purpose of this paragraph only, the budget(s) for the specific Governmental Program(s) supported by this G.O. Grant may be combined with other programs of the Grantee. Section 2.05 Grantee Representations and Warranties. The Grantee further covenants with,and represents and warrants to the Council as follows: A. It has legal authority to enter into, execute, and deliver this Agreement, the Certification or Declaration, and all documents referred to herein,has taken all actions necessary to its execution and delivery of such documents, and provided to the Council a copy of a resolution by its governing body which authorizes Grantee to enter into this Agreement, to undertake the I/I Municipal Grant Program and • 11 22 • Project, including the Grantee financial responsibilities as shown in Attachment IV and which also designates an authorized representative for the Project who is authorized to provide certifications required in this Agreement and submit pay claims for reimbursement of Project costs. B. It has legal authority to use the G.O. Grant for the purpose or purposes • described in this Agreement and has received a copy of, has read and understands the Council Guidelines for the Council's I/I Municipal Grant Program. C. It has legal authority to operate the Governmental Program. D. This Agreement, the Declaration or Certification as applicable and all other documents referred to herein are the legal, valid and binding obligations of the Grantee enforceable against the Grantee in accordance with their respective terms. E. It will comply with all of the terms, conditions, provisions, covenants, requirements, and warranties in this Agreement, the Declaration or Certification as applicable and all other documents referred to herein. F. It will comply with all of the provisions and requirements contained in and imposed by the G.O. Compliance Legislation, the Commissioner's Order, and the G.O.Bonding Legislation. G. It has made no material false statement or misstatement of fact in connection with its receipt of the G.O. Grant, and all of the information it has submitted or will submit to the Council or Commissioner of MMB relating to the G.O. Grant or the disbursement of any of the G.O. Grant is and will be true and correct. It agrees that all representations contained in its application for the G.O. Grant are material representations of fact upon which the Council relied in awarding this G.O. Grant and are incorporated into this Agreement by reference. H. It is not in violation of any provisions of its charter or of the laws of the State of Minnesota,and there are no material actions, suits, or proceedings pending, or to its knowledge threatened,before any judicial body or governmental authority against or affecting it relating to the Real Property and Facility, or its ownership interest therein, and it is not in default with respect to any order, writ, injunction, decree, or demand of any court or any governmental authority which would impair its ability to enter into this Agreement, the Declaration or Certification as applicable, or any document referred to herein, or to perform any of the acts required of it in such documents. I. Neither the execution and delivery of this Agreement,the Declaration or Certification, or any document referred to herein nor compliance with any of the terms, conditions, requirements, or provisions contained in any of such documents is prevented by, is a breach of, or will result in a breach of, any term, condition, or 12 23 provision of any agreement or document to which it is now a party or by which it is bound. J. The contemplated use of the Real Property and Facility will not violate any applicable zoning or use statute,ordinance,building code,rule or regulation, or any covenant or agreement of record relating thereto. K. The Project will be completed in full compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Project. L. All applicable licenses, permits and bonds required for the performance and completion of the Project have been,or will be, obtained. M. All applicable licenses, permits and bonds required for the operation of the Real Property and Facility in the manner specified in Section 2.04 have been, or will be,obtained. N. It will operate, maintain, and manage the Real Property and Facility or cause the Real Property and Facility, to be operated, maintained and managed in compliance with all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the Real Property and Facility. 0. It has complied with the financial responsibility requirements contained in Section 7.23. P. While this Agreement is in effect, it will not, without the prior written consent of the Council and the Commissioner of MMB, allow any voluntary lien or encumbrance or involuntary lien or encumbrance that can be satisfied by the payment of monies and which is not being actively contested to be created or exist against the Grantee's ownership interest in the Real Property or Facility. Provided, however,the Council and the Commissioner of MMB will consent to any such lien or encumbrance that secures the repayment of a loan the repayment of which will not impair or burden the funds needed to operate the Real Property and Facility in the manner specified in Section 2.04, and for which the entire amount is used(i)to acquire additional real estate that is needed to so operate the Real Property and Facility in accordance with the requirements imposed under Section 2.04 and will be included in and as part of the Grantee's ownership interest in the Real Property and Facility, and/or (ii) to pay for capital improvements that are needed to so operate the Real Property and Facility in accordance with the requirements imposed under Section 2.04. Q. It reasonably expects to possess the ownership interest in the Real Property and Facility described Section 2.02 for the entire Useful Life of the Real 13 24 Property and Facility, and it does not expect to sell, transfer or abandon such ownership interest: R. It does not reasonably expect to receive payments under a contract for use of the Real Property or Facility, including leases or management contracts, in excess of the amount the Grantee needs and is authorized to use to pay the operating expenses of the portion of the Real Property and Facility that is the subject of such contract or to pay the principal, interest, redemption premiums, and other expenses on any Approved Debt. S. It will supply, or cause to be supplied,whatever funds are needed above and beyond the amount of the G.O. Grant to complete and fully pay for the Project. T. The Construction Items will be completed substantially in accordance with the Construction Contract Documents by the Completion Date, and all such items along with the Facility will be situated entirely on the Real Property. U. It will require the Contractor or Contractors to comply with all rules, regulations, ordinances, and laws bearing on its performance under the Construction Contract Documents. V. If all or any portion of the Governmental Program does not qualify for the Waiver of Real Property Declaration granted by MMB, a copy of which is attached to and incorporated hereto as Attachment V, it has submitted to the Commissioner of MMB a written request that a declaration need not be recorded against the Real Property and if applicable, the Facility because such recording would be unduly onerous or impracticable and has received from the Commissioner of MMB a written waiver stating that a Declaration need not be recorded against the Real Property and if applicable,the Facility, a copy of which waiver is attached to the Certification submitted as Attachment IA of this Agreement. [Grantee should delete this Section is Grantee does not intend to apply for Waiver or intends to apply under Council's Waiver.] W. It has executed and submitted a copy of one or more of the following to the Council and Minnesota Management and Budget, such that all parts of the facility are covered by one of the following: 1. For all or part of the Governmental Programs which qualifies for the Waiver of Real Property Declaration granted by Minnesota Management and Budget to the Council and attached as Attachment V, the Certification attached as Attachment IA of this Grant Agreement; or 2. For all or part of the Governmental Program which does not qualify for the Waiver of Real Property Declaration granted to the Council, but for which Grantee has obtained a Waiver of Real Property Declaration from the Minnesota Management and Budget pursuant to Section 2.05 (V) of 14 25 this Agreement, the Certification attached as Attachment IA, together with a copy of the waiver; or 3. A fully executed Declaration in the form attached to this Agreement as Attachment I, such Declaration recorded or to be promptly recorded with the appropriate governmental office, and a copy of such recorded Declaration to be delivered to the Council and Minnesota Management and Budget. X. It shall furnish such satisfactory evidence regarding the representations and warranties described herein as may be required and requested by either the Council or the Commissioner of MMB. Section 2.06 Ownership by Easement. A. A Real Property/Facility easement must comply with the following provisions. 1. The Grantee is the grantee of easement and the easement creates the functional equivalency of fee ownership for the length of its term. 2. It must be permanent for a term that is equal to or greater than 125% of the Useful Life of the Real Property and Facility, or such other period of time specifically authorized by a Minnesota statute, rule or session law. 3. It must not contain any requirements or obligations of the Grantee that if not complied with could result in a termination thereof. 4. It must contain a provision that provides sufficient authority to allow the Grantee to operate the Real Property and Facility in accordance with the requirements imposed under Section 2.04. 5. It must not contain any provisions that would limit or impair the Grantee's operation of the Real Property and Facility in accordance with the requirements imposed under Section 2.04. 6. It must allow for a transfer thereof in the event that the grantee under the easement makes the necessary determination to sell its interest therein, and allow such interest to be transferred to the purchaser of such interest. B. The provisions contained in this Section are not intended to and shall not prevent the Grantee from including additional provisions in the easement that are not inconsistent with or contrary to the requirements contained in this Section. 15 26 C. The Grantee shall fully and completely comply with all of the terms, conditions and provisions contained in the easement, and shall file the easement in the Office of the County Recorder or the Registrar of Titles. Section 2.07 Event(s) of Default. The following events shall, unless waived in writing by the Council and the Commissioner of MMB, constitute an Event of Default under this Agreement upon either the Council or the Commissioner of MMB giving the Grantee 30 days written notice of such event and the Grantee's failure to cure such event during such 30 day time period for those Events of Default that can be cured within 30 days or within whatever time period is needed to cure those Events of Default that cannot be cured within 30 days as long as the Grantee is using its best efforts to cure and is making reasonable progress in curing such Events of Default, however, in no event shall the time period to cure any Event of Default exceed 6 months unless otherwise consented to,in writing,by the Council and the Commissioner of MMB. A. If any representation, covenant, or warranty made by the Grantee in this Agreement, in any Draw Requisition, in any other document furnished pursuant to this Agreement, or in order to induce the Council to disburse any of the G.O. Grant shall prove to have been untrue or incorrect in any material respect or materially misleading as of the time such representation,covenant, or warranty was made. B. If the Grantee fails to fully comply with any provision, term, condition, covenant, or warranty contained in this Agreement, the Declaration, or any other document referred to herein. C. If the Grantee fails to fully comply with any provision,term, condition, covenant or warranty contained in the G.O. Compliance Legislation, the Commissioner's Order,or the G.O.Bonding Legislation. D. If the Grantee fails to complete the Project, or cause the Project to be completed,by the Completion Date. E. If the Grantee fails to provide and expend the full amount of the financial responsibilities required under Section 7.23 for the Project. F. If a Declaration is required,if the Grantee fails to record the Declaration and deliver copies thereof as set forth in Section 2.05.V. Notwithstanding the foregoing, any of the above delineated events that cannot be cured shall, unless waived in writing by the Council and the Commissioner of MMB, constitute an Event of Default under this Agreement immediately upon either the Council or the Commissioner of MMB giving the Grantee written notice of such event. Section 2.08 Remedies. Upon the occurrence of an Event of Default and at any time thereafter until such Event of Default is cured to the satisfaction of the Council,the Council or the Commissioner of MMB may enforce any or all of the following remedies. 16 27 • A. The Council may refrain from disbursing the G.O. Grant provided, however, the Council may make such disbursements after the occurrence of an Event of Default without thereby waiving its rights and remedies hereunder. B. If the Event of Default involves a failure to comply with any of the provisions contained herein other then the provisions of Sections 4.01 or 4.02,then either the Council or the Commissioner of MMB,as a third party beneficiary of this Agreement, may demand that the Outstanding Balance of the G.O. Grant be returned to it, and upon such demand the Grantee shall return such amount to the Council or the Commissioner of MMB. C. If the Event of Default involves a failure to comply with the provisions of Sections 4.01 or 4.02,then either the Council or the Commissioner of MMB,as a third party beneficiary of this Agreement, may demand that the Grantee pay the amounts that would have been paid if there had been full and complete compliance with such provisions, and upon such demand the Grantee shall pay such amount to the Council or the Commissioner of MMB. D. Either the Council or the Commissioner of MMB, as a third party beneficiary of this Agreement,may enforce any additional remedies they may have in law or equity. The rights and remedies herein specified are cumulative and not exclusive of any rights or remedies that the Council or the Commissioner of MMB would otherwise possess. If the Grantee does not repay the amounts required to be paid under this Section or under any other provision contained in this Agreement within 30 days of demand by the Council or the Commissioner of MMB, or any amount ordered by a court of competent jurisdiction within 30 days of entry of judgment against the Grantee and in favor of the Council and/or the Commissioner of MMB,then such amount may, unless precluded by law,be taken from or off-set against any aids or other monies that the Grantee is entitled to receive from the Council or State of Minnesota. In addition, the Council may use the provisions of Minn. Stat. §473.521, subd.4 to collect the amounts required to be paid under this Section or under any other provision contained in this Agreement. Section 2.09 Notification of Event of Default. The Grantee shall furnish to the Council and the Commissioner of MMB, as soon as possible and in any event within 7 days after it has obtained knowledge of the occurrence of each Event of Default or each event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement setting forth details of each Event of Default or event which with the giving of notice or upon the lapse of time or both would constitute an Event of Default and the action which the Grantee proposes to take with respect thereto. 17 28 Section 2.10 Survival of Event of Default. This Agreement shall survive any and all Events of Default and remain in full force and effect even upon the payment of any amounts due under this Agreement, and shall only terminate in accordance with the provisions contained in Section 2.12 and at the end of its term in accordance with the provisions contained in Section 2.11. Section 2.11 Term of Grant Agreement. This Agreement shall, unless earlier terminated in accordance with any of the provisions contained herein,remain in full force and effect for the time period starting on the effective date hereof and ending on the date that corresponds to the date established by adding a time period equal to 125% of Useful Life of the Real Property and Facility to the date on which the Real Property and Facility is first used for the operation of the Project after such effective date. If there are no uncured Events of Default as of such date this Agreement shall terminate and no longer be of any force or effect, and the Commissioner of MMB shall execute whatever documents are needed to release the Real Property and Facility from the effect of this Agreement and any Declarations or Certifications,as applicable. Section 2.12 Modification and/or Early Termination of Grant. If the Project is not started on or before the date that is six (6) months from the effective date of this Agreement or all of the G.O. Grant has not been disbursed as of the date that is two (2) years from July 1, 2012, or such other date to which the Grantee and the Council may agree in writing,then the Council's obligation to fund the G.O. Grant shall terminate. In such event, (i) if none of the G.O. Grant has been disbursed by such dates then the Council's obligation to fund any portion of the G.O. Grant shall terminate and this Agreement shall terminate and no longer be of any force or effect, and (ii) if some but not all of the G.O. Grant has been disbursed by such dates then the Council shall have no further obligation to provide any additional funding for the G.O. Grant and this Agreement shall remain in full force and effect but shall be modified and amended to reflect the amount of the G.O. Grant that was actually disbursed as of such date. This provision shall not,in any way,affect the Grantee's obligation to complete the Project by the Completion Date. This Agreement shall also terminate and no longer be of any force or effect upon the Grantee's sale of its ownership interest in the Real Property and Facility in accordance with the provisions contained in Section 4.01 and transmittal of all or a portion of the proceeds of such sale to the Commissioner of MMB in compliance with the provisions contained in Section 4.02, or upon the termination of Grantee's ownership interest in the Real Property and Facility if such ownership interest is by way of an easement. Upon such termination the Commissioner of MMB shall execute, or have executed, and deliver to the Grantee such documents as are required to release the Grantee's ownership interest in the Real Property and Facility, from the effect of this Agreement and the Declaration. Section 2.13 Excess Funds. If the full amount of the G.O. Grant and any matching funds referred to in Section 7.23 are not needed to complete the Project,then, unless language in the G.O. Bonding Legislation indicates otherwise, the G.O. Grant 18 29 shall be reduced by the amount not needed. Any funds awarded by the Council under this Agreement that have i) not been properly expended for the Project in accordance with Attachments III and IV; ii) were expended by the Grantee but subsequently reimbursed to Grantee or its agents, or iii) constitute a total reimbursement in excess of 50%of the actual eligible spending will be repaid to the Council if paid and the unearned part of the award canceled. Article III. Contents of Article III have.been deliberately omitted from this Agreement. Article IV SALE Section 4.01 Sale. The Grantee shall not sell any part of its ownership interest in the Real Property and Facility unless all of the following provisions have been complied with fully. A. The Grantee determines, by official action,that such ownership interest is no longer usable or needed for the operation of the Governmental Program, which such determination may be based on a determination that the portion of the Real Property or Facility to which such ownership interest applies is no longer suitable or financially feasible for such purpose. B. The sale is made as authorized by law. C. The sale is for Fair Market Value. D. The written consent of the Commissioner of MMB has been obtained. The acquisition of the Grantee's ownership interest in the Real Property and Facility at a foreclosure sale, by acceptance of a deed-in-lieu of foreclosure, or enforcement,of a security interest in personal property used in the operation thereof, by a lender that has provided monies for the acquisition of the Grantee's ownership interest in or betterment of the Real Property Facility shall not be considered a sale for the purposes of this Agreement if after such acquisition the lender operates such portion of the Real Property and Facility in a manner which is not inconsistent with the requirements imposed under Section 2.04 and the lender uses its best efforts to sell such acquired interest to a third party for Fair Market Value. The lender's ultimate sale or disposition of the acquired interest in the Real Property and Facility shall be deemed to be a sale for the purposes of this Agreement, and the proceeds thereof shall be disbursed in accordance with the provisions contained in Section 4.02. 19 30 The Grantee may participate in any public auction of its ownership interest in the Real Property and Facility and bid thereon; provided that the Grantee agrees that if it is the successful purchaser it will not use any part of the Real Property or Facility for the Governmental Program. Section 4.02 Proceeds of Sale. Upon the sale of the Grantee's ownership interest in the Real Property and Facility the proceeds thereof after the deduction of all costs directly associated and incurred in conjunction with such sale and such other costs that are approved, in writing, by the Commissioner of MMB, but not including the repayment of any debt associated with the Grantee's ownership interest in the Real Property and Facility,shall be disbursed in the following manner and order. A. The first distribution shall be to the Commissioner of MMB in an amount equal to the Outstanding Balance of the G.O. Grant, and if the amount of such net proceeds shall be less than the amount of the Outstanding Balance of the G.O. Grant then all of such net proceeds shall be distributed to the Commissioner of MMB. B. The remaining portion, after the distribution specified in Section 4.02A, shall be distributed to (i)pay in full any outstanding Approved Debt, (ii)reimburse the Grantee for its Ownership Value, and (iii) to pay interested public and private entities, other than any such entity that has already received the full amount of its contribution(such as the Council under Section 402.A and the holders of Approved Debt paid under this Section 4.02.B), the amount of money that such entity contributed to the Initial Acquisition and Betterment Costs and the Subsequent Betterment Costs. If such remaining portion is not sufficient to reimburse interested public and private entities for the full amount that such entities contributed to the acquisition or betterment of the Real Property and Facility, then the amount available shall be distributed as such entities may agree in writing and if such entities cannot agree by an appropriately issued court order. C. The remaining portion, after the distributions specified in Sections 4.02.A and B, shall be divided and distributed to the Council,the Grantee, and any other public and private entity that contributed funds to the Initial Acquisition and Betterment Costs and the Subsequent Betterment Costs, other than lenders who supplied any of such funds, in proportion to the contributions that the Council, the Grantee, and such other public and private entities made to the acquisition and betterment of the Real Property and, Facility as such amounts are part of the Ownership Value, Initial Acquisition and Betterment Costs, and Subsequent Betterment Costs. The distribution to the Council shall be made to the Commissioner of MMB, and the Grantee may direct its distribution to be made to any other entity. 20 31 All amounts to be disbursed under this Section 4.02 must be consented to, in writing, by the Commissioner of M1VIB, and no such disbursements shall be made without such consent. The Grantee shall not be required to pay or reimburse the Council or the Commissioner of MMB for any funds above and beyond the full net proceeds of such sale,even if such net proceeds are less than the amount of the Outstanding Balance of the G.O. Grant. Article V. COMPLIANCE WITH G.O.COMPLIANCE LEGISLATION AND THE COMMISSIONER'S ORDER Section 5.01 State Bond Financed Property. The Grantee and the Council acknowledge and agree that the Grantee's ownership interest in the Real Property and Facility is, or when acquired by the Grantee will be, "state bond financed property", as such term is used in the G.O. Compliance Legislation and the Commissioner's Order, and, therefore, the provisions contained in such statute and order apply, or will apply,to the Grantee's ownership interest in the Real Property and Facility. Section 5.02 Preservation of Tax Exempt Status. In order to preserve the tax- exempt status of the State G.O.Bonds,the Grantee agrees as follows: A. It will not use the Real Property or Facility, or use or invest the G.O. Grant or any other sums treated as"bond proceeds"under Section 148 of the Code including "investment proceeds," "invested sinking funds," and "replacement proceeds," in such a manner as to cause the G.O. Bonds to be classified as • "arbitrage bonds"under Section 148 of the Code. B. It will deposit into'and hold all of the G.O. Grant that it receives under this Agreement in a segregated non-interest bearing account until such funds are used for payments for the Project in accordance with the provisions contained herein. C. It will, upon written request, provide the Commissioner of MMB all information required to satisfy the informational requirements set forth in the Code including,but not limited to, Sections 103 and 148 thereof,with respect to the G.O. Bonds. D. It will, upon the occurrence of any act or omission by the Grantee that could cause the interest on the State G.O. Bonds to no longer be tax exempt and upon direction from the Commissioner of MMB,take such actions and furnish such documents as the Commissioner of MMB determines to be necessary to ensure that the interest to be paid on the State G.O. Bonds is exempt from federal taxation, which such action may include either: (i)compliance with proceedings intended to • classify the State G.O. Bonds as a"qualified bond" within the meaning of Section 21 32 141(e) of the Code, (ii) changing the nature of the use of the Real Property or Facility so that none of the net proceeds of the State G.O. Bonds will be used, directly or indirectly, in an "unrelated trade or business" or for any "private business use" (within the meaning of Sections 141(b) and 145(a) of the Code), or (iv) compliance with other Code provisions, regulations, or revenue procedures which amend or supersede the foregoing. E. It will not otherwise use any of the G.O. Grant, including earnings thereon, if any, or take or permit to or cause to be taken any action that would adversely affect the exemption'from federal income taxation of the interest on the G.O. Bonds, nor otherwise omit,take, or cause to be taken any action necessary to maintain such tax exempt status,and if it should take,permit, omit to take,or cause to be taken,as appropriate,any such action,it shall take all lawful actions necessary to rescind or correct such actions or omissions promptly upon having knowledge thereof. Section 5.03 Changes to G.O. Compliance Legislation or the Commissioner's Order. In the event that the G.O. Compliance Legislation or the Commissioner's Order is amended in a manner that reduces any requirement imposed against the Grantee, or if the Grantee's ownership interest in the Real Property or Facility is exempt from the G.O. Compliance Legislation and the Commissioner's Order,then upon written request by the Grantee the Council shall enter into and execute an amendment to this Agreement to • implement herein such amendment to or exempt the Grantee's ownership interest in the Real Property and Facility from the G.O. Compliance Legislation or the Commissioner's Order. Article VI. DISBURSEMENT OF GRANT PROCEEDS Section 6.01 The Advances. The Council will make no advances of the G.O. Grant to Grantee. The disbursement of the G.O. Grant shall be in the form of reimbursement for eligible costs as provided ahead in this Article VI. Section 6.02 Draw Requisitions. Whenever the Grantee desires a disbursement of a portion of the G.O. Grant, which shall be no more often than once each calendar quarter, the Grantee shall submit to the Council a Draw Requisition duly executed on behalf of the Grantee or its designee. Each Draw Requisition with respect to construction items shall be limited to amounts equal to: (i) the total value of the classes of the work by percentage of completion as approved by the Grantee and the Council, plus (ii) the value of materials and equipment not incorporated in the Project but delivered and suitably stored on or off the Real Property in a manner acceptable to the Council. Notwithstanding anything herein to the contrary,no Draw Requisition for materials stored on or off the Real Property will be made unless the Grantee shall advise the 22 33 Council, in writing, of its intention to so store materials prior to their delivery and the Council has not objected thereto. At the time of submission of each Draw Requisition, other than the final Draw Requisition,the Grantee shall submit to the Council such supporting evidence as may be requested by the Council to substantiate all payments which are to be made out of the relevant Draw Requisition or to substantiate all payments then made with respect to the Project. At the time of submission of the final Draw Requisition which shall not be submitted before completion of the Project,including all landscape requirements and off- site utilities and streets needed for access to the Real Property and Facility and correction of material defects in workmanship or materials (other than the completion of punch list items) as provided in the Construction Contract Documents, the Grantee shall submit to the Council: (i) such supporting evidence as may be requested by the Council to substantiate all payments which are to be made out of the final Draw Requisition or to substantiate all payments then made with respect to the Project, and (ii) satisfactory evidence that all work requiring inspection by municipal or other governmental authorities having jurisdiction has been duly inspected and approved by such authorities, and that all requisite certificates of occupancy and other approvals have been issued. Section 6.03 Additional Funds. If the Council shall at any time in good faith determine that the sum of the undisbursed amount of the G.O. Grant plus the amount of all other funds committed to the Project is less than the amount required to pay all costs and expenses of any kind which reasonably may be anticipated in connection with the Project, then the Council may send written notice thereof to the Grantee specifying the amount which must be supplied in order to provide sufficient funds to complete the Project. The Grantee agrees that it will, within 10 calendar days of receipt of any such notice, supply or have some other entity supply the amount of funds specified in the Council's notice. • Section 6.04 Conditions Precedent to Any Draw. The obligation of the Council to make Draws hereunder (including the initial Advance) shall be subject to the following conditions precedent: A. The Council shall have received a Draw Requisition for such amount of funds being requested, which such amount when added to all prior requests for Draws shall not exceed the amount of the G.O. Grant delineated in Section 1.01. B. For all or any portion of the Governmental Program which qualifies for a waiver of Real Property Declaration granted to either the Council(Attachment V) or Grantee, the Council shall have either received the duly executed Certification attached to this Agreement as Attachment lA or for all or any portion of the Governmental Program which does not qualify for a Waiver of Real Property Declaration, a copy of duly executed Declaration that has been duly recorded in the appropriate governmental office, with all of the recording information displayed 23 34 thereon, or evidence that such Declaration will promptly be recorded and delivered to the Council. C. The Council shall have received evidence upon request, and in form and substance acceptable to the Council, that (i) the Grantee has legal authority to and has taken all actions necessary to enter into this Agreement and the Certification or the Declaration, as applicable, and (ii) this Agreement and the Declaration or Certification,as applicable,are binding on and enforceable against the Grantee. D. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, that the Grantee has sufficient funds to fully and completely pay for the Project and all other expenses that may occur in conjunction therewith. E. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, that the Grantee is in compliance with the matching funds requirements,if any, contained in Section 7.23. F. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, showing that the Grantee possesses the ownership interest delineated in Section 2.02. G. The Council shall have received evidence upon request, and in form and substance acceptable to the Council, that the Real Property and Facility, and the contemplated use thereof are permitted by and will comply with all applicable use or other restrictions and requirements imposed by applicable zoning ordinances or regulations, and, if required by law, have been duly approved by the applicable municipal or governmental authorities having jurisdiction thereover. H. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, that that all applicable and required building permits, other permits, bonds and licenses necessary for the Project have been paid for, issued, and obtained, other than those permits, bonds and licenses which may not lawfully be obtained until a future date or those permits, bonds and licenses which in the ordinary course of business would normally not be obtained until a later date. I. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, that that all applicable and required permits, bonds and licenses necessary for the operation of the Real Property and Facility in the manner specified in Section 2.04 have been paid for,issued, and obtained, other than those permits, bonds and licenses which may not lawfully be obtained until a future date or those permits, bonds and licenses which in the ordinary course of business would normally not be obtained until a later date. 24 35 J. The Council shall have received evidence upon request,and in form and substance acceptable to the Council,that the Project will be completed in a manner that will allow the Real Property and Facility to be operated in the manner specified in Section 2.04. K. The Council shall have received evidence upon request, and in form and substance acceptable to the Council, that the Grantee has the ability and a plan to fund the operation of the Real Property and Facility in the manner specified in Section 2.04. L. The Council shall have received evidence upon request,and in form and substance acceptable to the Council, that the insurance requirements under Section 7.01 have been satisfied. M. CONTENTS HAVE BEEN DELIBERATELY OMITTED FROM THIS AGREEMENT. N. No Event of Default under this Agreement or event which would constitute an Event of Default but for the requirement that notice be given or that a period of grace or time elapse shall have occurred and be continuing. O. The Council shall have received evidence upon request, and, in form and substance acceptable to the Council, that the Contractor will complete the Construction Items substantially in conformance with the Construction Contract Documents and pay all amounts lawfully owing to all laborers and materialmen who worked on the Construction Items or supplied materials therefore, other than amounts being contested in good faith. Such evidence may be in the form of payment and performance bonds in amounts equal to or greater than the amount of the fixed price or guaranteed maximum price contained in the Construction Contract Documents that name the Council and the Grantee dual obligees thereunder, or such other evidence as may be acceptable to the Grantee and the Council. P. No determination shall have been made by the Council that the amount of funds committed to the Project is less than the amount required to pay all costs and expenses of any kind that may reasonably be anticipated in connection with the Project, or if such a determination has been made and notice thereof sent to the Grantee under Section 6.03, then the Grantee has supplied, or has caused some other entity to supply, the necessary funds in accordance with such section or has provided evidence acceptable to the Council that sufficient funds are available. Q. The Grantee has supplied to the Council all other items that the Council may reasonably require. Section 6.05 Construction Inspections. The Grantee and the Architect, if any, shall be responsible for making their own inspections and observations of the 25• 36 Construction Items, and shall determine to their own satisfaction that the work done or materials supplied by the Contractors to whom payment is to be made out of each Advance has been properly done or supplied in accordance with the Construction Contract Documents. Article VII. NIISCELLANEOUS Section 7.01 Insurance. The Grantee shall, upon acquisition of the ownership interest delineated in Section 2.02, insure the Facility, if such exists, in an amount equal to the full insurable value thereof(i) by self insuring under a program of self insurance legally adopted, maintained and adequately funded by the Grantee, or (ii) by way of builders risk insurance and fire and extended coverage insurance with a deductible in an amount acceptable to the Council under which the Council and the Grantee are named as loss payees. If damages which are covered by such required insurance occur, then the Grantee shall, at its sole option and discretion, either: (y) use or cause the insurance proceeds to be used to fully or partially repair such damage and to provide or cause to be provided whatever additional funds that may be needed to fully or partially repair such damage, or(z) sell its ownership interest in the damaged Facility and portion of the Real Property associated therewith in accordance with the provisions contained in Section 4.01. • If the Grantee elects to only partially repair such damage, then the portion of the insurance proceeds not used for such repair shall be applied in accordance with the provisions contained in Section 4.02 as if the Grantee's ownership interest in the Real Property and. Facility had been sold, and such amounts shall be.credited against the amounts due and owing under Section 4.02 upon the ultimate sale of the Grantee's ownership interest in the Real Property and Facility. If the Grantee elects to sell its ownership interest in the damaged Facility and portion of the Real Property associated therewith, then such sale must occur within a reasonable time period from the date the damage occurred and the cumulative sum of the insurance proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 4.02, with the insurance proceeds being so applied within a reasonable time period from the date they are received by the Grantee. If the Grantee elects to maintain general comprehensive liability insurance regarding the Real Property and Facility,then the Grantee shall have the Council named as an additional named insured therein. At the written request of either the Council or the Commissioner of MMB, the Grantee shall promptly furnish to the requesting entity all written notices and all paid premium receipts received by the Grantee regarding the required insurance,or certificates of insurance evidencing the existence of such required insurance. If the Grantee fails to provide and maintain the insurance required under this Section, then the Council may, at its sole option and discretion, obtain and maintain 26 37 • insurance of an equivalent nature and any funds expended by the Council to obtain or maintain such insurance shall be due and payable on demand by the Council and bear interest from the date of advancement by the Council at a rate equal to the lesser of the maximum interest rate allowed by law or 18% per annum based upon a 365-day year. Provided, however, nothing contained herein, including but not limited to this Section, shall require the Council to obtain or maintain such insurance,and the Council's decision to not obtain or maintain such insurance shall not lessen the Grantee's duty to obtain and maintain such insurance. Section 7.02 Condemnation. If after the Grantee has acquired the ownership interest delineated in Section 2.02 all or any portion of the Real Property and Facility is condemned to an extent that the Grantee can no longer comply with the provisions contained in Section 2.04,then the Grantee shall, at its sole option and discretion,either: (i)use or cause the condemnation proceeds to be used to acquire an interest in additional real property needed for the Grantee to continue to comply with the provisions contained in Section 2.04 and to fully or partially restore the Facility and to provide or cause to be provided whatever additional funds that may be needed for such purposes, or(ii) sell the remaining portion of its ownership interest in the Real Property and Facility in accordance with the provisions contained in Section 4.01. Any condemnation proceeds which are not used to acquire an interest in additional real property or to restore the Facility shall be applied in accordance with the provisions contained in Section 4.02 as if the Grantee's ownership interest in the Real Property and Facility had been sold, and such amounts shall be credited against the amounts due and owing under Section 4.02 upon the ultimate sale of the Grantee's ownership interest in the remaining Real Property and Facility. If the Grantee elects to sell its ownership interest in the portion of the Real Property and Facility that remains after the condemnation, then such sale must occur within a reasonable time period from the date the condemnation occurred and the cumulative sum of the condemnation proceeds plus the proceeds of such sale must be applied in accordance with the provisions contained in Section 4.02, with the condemnation proceeds being so applied within a reasonable time period from the date they are received by the Grantee. As recipient of any of condemnation awards or proceeds referred to herein, the Council agrees to and will disclaim, assign or pay over to the Grantee all of such condemnation awards or proceeds it receives so that the Grantee can comply with the requirements that this Section imposes upon the Grantee as to the use of such condemnation awards or proceeds. Section 7.03 Use, Maintenance, Repair and Alterations. The Grantee shall (i) keep the Real Property and Facility, in good condition and repair, subject to reasonable and ordinary wear and tear, (ii) complete promptly and in good and workmanlike manner any building or other improvement which may be constructed on the Real Property and promptly restore in like manner any portion of the Facility which may be damaged or destroyed thereon and pay when due all claims for labor performed and materials furnished therefore, (iii) comply with all laws, ordinances, regulations, requirements, covenants, conditions and restrictions now or hereafter affecting the Real 27 38 Property or Facility, or any part thereof, or requiring any alterations or improvements thereto, (iv)keep and maintain abutting grounds,sidewalks,roads,parking and landscape areas in good and neat order and repair, (v) comply with the provisions of any easement if its ownership interest in the Real Property and Facility is by way of such easement,and (vi) comply with the provisions of any condominium documents and any applicable reciprocal easement or operating agreements if the Real Property and Facility,is part of a condominium regime or is subject to a reciprocal easement or use agreement. • The Grantee shall not, without the written consent of the Council and the Commissioner of MMB, (a) permit or suffer the use of any of the Real Property or Facility, for any purpose other than the purposes specified in Section 2.04, (b) remove, demolish or substantially alter any of the Real Property or Facility, except such alterations as may be required by laws,ordinances or regulations or such other alterations as may improve such Real Property or Facility by increasing the value thereof or improving its ability to be used to operate the Governmental Program thereon or therein, (c) do any act or thing which would unduly impair or depreciate the value of the Real Property or Facility, (d) abandon the Real Property or Facility, (e) commit or permit any waste or deterioration of the Real Property or Facility,(f)remove any fixtures or personal property from the Real Property or Facility, that was paid for with the proceeds of the G.O. Grant unless the same are immediately replaced with like property of at least equal value and utility, or (g) commit, suffer or permit any act to be done in or upon the Real Property or Facility,in violation of any law,ordinance or regulation. If the Grantee fails to maintain the Real Property and Facility in accordance with the provisions contained in this Section,then after a notice and a reasonable time to cure the deficiency, the Council may perform whatever acts and expend whatever funds that are necessary to so maintain the Real Property and Facility and the Grantee irrevocably authorizes and empowers the Council to enter upon the Real Property and Facility, to perform such acts as may to necessary to so maintain the Real Property and Facility. Any actions taken or funds expended by the Council hereunder shall be at its sole option and discretion, and nothing contained herein, including but not limited to this Section, shall require the Council to take any action, incur any expense, or expend any funds, and the Council shall not be responsible for or liable to the Grantee or any other entity for any such acts that are undertaken and performed in good faith and not in a negligent manner. Any funds expended by the Council to perform such acts as may to necessary to so maintain the Real Property and Facility shall be due and payable on demand by the Council and bear interest from the date of advancement by the Council at a rate equal to the lesser of the maximum interest rate allowed by law or 18%per annum based upon a 365 day year. Section 7.04 Records Keeping and Reporting. The Grantee shall maintain or cause to be maintained books, records, documents and other evidence pertaining to the costs or expenses associated with the Project and operation of the Real Property and Facility.needed to comply with the requirements contained in this Agreement, the G.O. Compliance Legislation, the Commissioner's Order, and the G.O. Bonding Legislation, and upon request shall allow or cause the entity which is maintaining such items to allow 28 39 the Council, auditors for the Council, the Legislative Auditor for the State of Minnesota, or the State Auditor for the State of Minnesota,to inspect, audit, copy, or abstract, all of such items. The Grantee shall use or cause the entity which is maintaining such items to use generally accepted accounting principles in the maintenance of such items, and shall retain or cause to be retained(i) all of such items that relate to the Project for a period of 6 years from the date that the Project is fully completed and placed into operation, and (ii) all of such items that relate to the operation of the Real Property and Facility for a period of 6 years from the date such operation is initiated. Grantee shall maintain and provide to the Metropolitan Council, as reasonably requested, documentation that determines for capital projects where the 2012 State bond grant funding is insufficient by itself to complete the project, whether additional funding from other sources (including any required match) is sufficient and has been committed to fund the project as required by M.S. Sec. 16A.502. Grantee shall collect, maintain and, upon completion of the Project, provide to the Council written documentation of the jobs created or retained as a result of the Project as required by Minn. Stat. § 16A.633. The documentation must include,but is not limited to,the following information: the number and types of jobs for the Project,whether the jobs are new or retained, where the jobs are located and the pay ranges of the jobs. The Grantee shall provide the documentation to the Council at the time and in the manner required by the Council. Section 7.05 Inspections by Council. Upon reasonable request by the Council and without interfering with the normal use of the Real Property and Facility,the Grantee shall allow the Council to inspect,take and use photos of the Real Property and Facility. Section 7.06 Data Practices. The Grantee agrees with respect to any data that it possesses regarding the G.O. Grant,the Project, or the operation of the Real Property and Facility, to comply with all of the provisions and restrictions contained in the Minnesota Government Data Practices Act contained in Chapter 13 of the Minnesota Statutes that exists as of the date of this Agreement and as such may subsequently be amended, modified or replaced from time to time. Section 7.07 Non-Discrimination. The Grantee agrees to not engage in discriminatory employment practices regarding the Project, or operation or management of the Real Property and Facility,and it shall,with respect to such activities,fully comply with all of the provisions contained in Chapters 363A and 181 of the Minnesota Statutes that exist as of the date of this Agreement and as such may subsequently be amended, modified or replaced from time to time. Section 7.08 Worker's Compensation. The Grantee agrees to comply with all of the provisions relating to worker's compensation contained in Minn. Stat. §§ 176.181 subd. 2 and 176.182, as they may be amended, modified or replaced from time to time, with respect to the Project and the operation or management of the Real Property and Facility. Section 7.09 Antitrust Claims. The Grantee hereby assigns to the Council and the Commissioner of MMB all claims it may have for over charges as to goods or 29 40 services provided with respect to the Project, and operation or management of the Real Property and Facility that arise under the antitrust laws of the State of Minnesota or of the United States of America. Section 7.10. CONTENTS OF SECTION 7.10 HAVE BEEN DELIBERATELY OMITTED FROM THIS AGREEMENT. Section 7.11 Prevailing Wages. The Grantee agrees to comply with all of the applicable provisions contained in Chapter 177 of the Minnesota Statutes, and specifically those provisions contained in Minn. Stat. §§ 177.41 through 177.435, as they may be amended, modified or replaced from time to time with respect to the Project and the operation of the Governmental Program on or in the Real Property and Facility. By agreeing to this provision, the Grantee is not acknowledging or agreeing that the cited provisions apply to the Project or the operation of the Governmental Program on or in the Real Property and Facility. Section 7.12 Liability. The Grantee and the Council agree that they will, subject to any indemnifications provided herein,be responsible for their own acts and the results thereof to the extent authorized by law, and they shall not be responsible for the acts of the other party and the results thereof. The liability of the Council and the Commissioner of MMB is governed by the provisions contained in Minn. Stat. § 3.736,Minn. Stat. and chapter 466 as it may be amended, modified or replaced from time to time. If the Grantee is a"municipality"as such term is used in chapter 466 of the Minnesota Statutes that exists as of the date of this Agreement and as such may subsequently be amended, modified or replaced from time to time,then the liability of the Grantee,including but not limited to the indemnification provided under Section 7.13,is governed by the provisions contained in such Chapter 466. Section 7.13 Indemnification by the Grantee. The Grantee shall bear all loss, expense (including attorneys' fees), and damage in connection with the Project and operation of the Real Property and Facility, and agrees to indemnify and hold harmless the Council, the Commissioner of MMB, and the State of Minnesota, their agents, servants and employees from all claims, demands and judgments made or recovered against the Council,the Commissioner of MMB, and the State of Minnesota,their agents, servants and employees,because of bodily injuries, including death at any time resulting therefrom, or because of damages to property of the Council, the Commissioner of MMB, or the State of Minnesota, or others (including loss of use) from any cause whatsoever, arising out of,incidental to, or in connection with the Project or operation of the Real Property and Facility,whether or not due to any act of omission or commission, including negligence of the Grantee or any contractor or his or their employees, servants or agents, and whether or not due to any act of omission or commission (excluding, however, negligence or breach of statutory duty) of the Council, the Commissioner of MMB,or the State of Minnesota,their employees,servants or agents. The Grantee further agrees to indemnify, save, and hold the Council, the Commissioner of MMB, and the State of Minnesota, their agents and employees, 30 41 harmless from all claims arising out of, resulting from, or in any manner attributable to any violation by the Grantee, its officers, employees, or agents, of any provision of the Minnesota Government Data Practices Act, including legal fees and disbursements paid or incurred to enforce the provisions contained in Section 7.06. The Grantee's liability hereunder shall not be limited to the extent of insurance carried by or provided by the Grantee, or subject to any exclusions from coverage in any insurance policy. Section 7.14 Relationship of the Parties. Nothing contained in this Agreement is intended or should be construed in any manner as creating or establishing the relationship of co-partners or a joint venture between the Grantee, the Council, or the Commissioner of MMB, nor shall the Grantee be considered or deemed to be an agent, representative, or employee of the Council, the Commissioner of MMB, or the State of Minnesota in the performance of this Agreement, the Project, or operation of the Real Property and Facility. The Grantee represents that it has already or will secure or cause to be secured all personnel required for the performance of this Agreement and the Project, and the operation and maintenance of the Real Property and Facility. All personnel of the Grantee or other persons while engaging in the performance of this Agreement, the Project, or the operation and maintenance of•the Real Property and Facility shall not have any contractual relationship with the Council,the Commissioner of MMB,or the State of Minnesota,and shall not be considered employees of any of such entities. In addition, all claims that may arise on behalf of said personnel or other persons out of employment or alleged employment including, but not limited to, claims under the Workers' Compensation Act of the State of Minnesota, claims of discrimination against the Grantee, its officers, agents, contractors, or employees shall in no way be the responsibility of the Council, the Commissioner of MMB, or the State of Minnesota. Such personnel or other persons shall not require nor be entitled to any compensation, rights or benefits of any kind whatsoever from the Council,the Commissioner of MMB, or the State of Minnesota including,but not limited to,tenure rights,medical and hospital care, sick and vacation leave,disability benefits,severance pay and retirement benefits. Section 7.15 Notices. In addition to any notice required under applicable law to be given in another manner, any notices required hereunder must be in writing and shall be sufficient if personally served or sent by prepaid, registered, or certified mail (return receipt requested), to the business address of the party to whom it is directed. Such business address shall be that address specified below or such different address as may hereafter be specified,by either party by written notice to the other: To the Public Entity Grantee at: City of Farmington 430 Third Str Farmington ,MN-55024 Attention: Kevin Schorzman 31 42 • • To the State Entity Council at: Metropolitan Council 390 Robert Street North St.Paul,MN 55101 Attention: Regional Administrator To the Commissioner of MMB at: Minnesota Department of Management and Budget 400 Centennial Office Bldg. 658 Cedar Street St.Paul,MN 55155 Attention: Commissioner Section 7.16 Binding Effect and Assignment or Modification. This Agreement and the Declaration shall be binding upon and inure to the benefit of the Grantee and the Council,and their respective successors and assigns. Provided,however, that neither the Grantee nor the Council may assign any of its rights or obligations under this Agreement or the Declaration without the prior written consent of the other party. No change or modification of the terms or provisions of this Agreement or the Declaration shall be binding on either the Grantee or the Council unless such change or modification is in writing and signed by an authorized official of the party against which such change or modification is to be imposed. Section 7.17 Waiver. Neither the failure by the Grantee, the Council, or the Commissioner of MMB, as a third party beneficiary of this Agreement, in any one or more instances to insist upon the complete and total observance or performance of any term or provision hereof,nor the failure of the Grantee,the Council,or the Commissioner of MMB, as a third party beneficiary of this Agreement,to exercise any right,privilege, or remedy conferred hereunder or afforded by law shall be construed as waiving any breach of such term, provision, or the right to exercise such right, privilege, or remedy thereafter. In addition, no delay on the part of the Grantee, the Council, or the Commissioner of MMB, as a third party beneficiary of this Agreement,in exercising any right or remedy hereunder shall operate as a waiver thereof,nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. Section 7.18 Entire Agreement. This Agreement, the Declaration or Certification,as applicable,and the documents,if any,referred to and incorporated herein by reference embody the entire agreement between the Grantee and the Council, and there are no other agreements,either oral or written,between the Grantee and the Council on the subject matter hereof. 32 43 Section 7.19 Choice of Law and Venue. All matters relating to the validity, construction,performance, or enforcement of this Agreement or the Declaration shall be determined in accordance with the laws of the State.of Minnesota. All legal actions initiated with respect to or arising from any provision contained in this Agreement shall be initiated, filed and venued in the State of Minnesota District Court located in the City of St.Paul,County of Ramsey, State of Minnesota. Section 7.20 Severability. If any provision of this Agreement is finally judged by any court to be invalid, then the remaining provisions shall remain in full force and effect and they shall be interpreted, performed, and enforced as if the invalid provision did not appear herein. Section 7.21 Time of Essence. Time is of the essence with respect to all of the matters contained in this Agreement. Section 7.22 Counterparts. This Agreement may be executed in any number of counterparts,each of which when so executed and delivered shall be an original,but such counterparts shall together constitute one and the same instrument. Section 7.23 Grantee Financial Responsibilities. The Grantee must fulfill its financial responsibilities for the Project as shown on Attachment III to this Agreement. (If there are no matching funds requirements then insert the word"NONE") Section 7.24 Source and Use of Funds. The Grantee represents to the Council and the Commissioner of MMB that Attachment III is intended to be and is a source and use of funds statement showing the total cost of the Project and all of the funds that are available for the completion of the Project, and that the information contained in such Attachment III correctly and accurately delineates the following information. A. The total cost of the Project detailing all of the major elements that make up such total cost and how much of such total cost is attributed to each such major element. • B. The source of all funds needed to complete the Project broken down among the following categories: (i) State funds including the G.O. Grant, identifying the source and amount of such funds. (ii) Matching funds,identifying the source and amount of such funds. (iii) Other funds supplied by the Grantee, identifying the source and amount of such funds. (iv) Loans, identifying each such loan, the entity providing the loan, the amount of each such loan, the terms and conditions of each such loan, and all collateral pledged for repayment of each such loan. 33 44 (v) Other funds,identifying the source and amount of such funds. C. Such other financial information that is needed to correctly reflect the , total funds available for the completion of the Project,the source of such funds and the expected use of such funds. If any of the funds included under the source of funds have conditions precedent to the release of such funds, then the Grantee must provide to the Council and the Commissioner of MMB a detailed description of such conditions and what is being done to satisfy such conditions. The Grantee shall also supply whatever other information and documentation that the Council or the Commissioner of MMB may request to support or explain any of the information contained in Attachment III. The value of the Grantee's ownership interest in the Real Property and Facility should only be shown in Attachment III if such ownership interest is being acquired and paid for with funds shown in such Attachment III, and for all other circumstances such value should be shown in the definition for Ownership Value in Section 1.01 and not included in such Attachment III. The funds shown in Attachment III and to be supplied for the Project may, subject to any limitations contained in the G.O. Bonding Legislation, be provided by either the Grantee. Section 7.25 Project Completion Schedule. The Grantee represents to the Council and the Commissioner of MMB that Attachment IV correctly and accurately delineates the projected schedule for the completion of the Project. Section 7.26 Third-Party Beneficiary. The Governmental Program will benefit the State of Minnesota and the provisions and requirements contained herein are for the benefit of both the Council and the State of Minnesota. Therefore, the State of Minnesota, by and through its Commissioner of MMB, is and shall be a third-party beneficiary of this Agreement. Section 7.27 Grantee Tasks. Any tasks that this Agreement imposes upon the Grantee may be performed by such other entity as the Grantee may select or designate, provided that the failure of such other entity to perform said tasks shall be deemed to be a failure to perform by the Grantee. Section 7.28 Council and Commissioner Required Acts and Approvals. The Council and the Commissioner of MMB shall not (i)perform any act herein required or authorized by it in an unreasonable manner, (ii)unreasonably refuse to perform any act that it is required to perform hereunder, or (iii)unreasonably refuse to provide or withhold any approval that is required of it herein. 34 45 Section 7.29 Applicability to Real Property and Facility. This Agreement applies to the Grantee's ownership interest in the Real Property and if a Facility exists to the Facility. The term"if applicable"appearing in conjunction with the term"Facility"is meant to indicate that this Agreement will apply to a Facility if one exists, and if no Facility exists then this Agreement will only apply to the Grantee's ownership interest in the Real Property. Section 7.30 E-Verification. The Grantee agrees and acknowledges that it is aware of Governor's Executive Order 08-01 regarding e-verification of employment of all newly hired employees to confirm that such employees are legally entitled to work in the United States, and that it will, if and when applicable, fully comply with such order and impose a similar requirement in any Use Agreement to which it is a party. Section 7.31 Additional Requirements. The Grantee and the Council agree to comply with the following additional requirements. In the event of any conflict or inconsistency between the following additional requirements and any other provisions or requirement contained in this Agreement, the following additional requirements contained in this Section shall control. Section 7.32 Termination Due to Lack of Funds. Grantee recognizes that Council's obligation to reimburse Grantee for eligible Project costs is dependent upon Council's receipt of funds from the State of Minnesota appropriated to Council under 2010 Session Laws Chapter 189, Section 16, subdivision 3. Should the State of Minnesota terminate such appropriation or should such funds become unavailable to Council for any reason, Council shall, upon written notice to Grantee of termination or unavailability of such funds, have no further obligations for reimbursement or otherwise under this Grant Agreement. In the event of such written notice to Grantee by Council of termination or unavailability of funds, Grantee has no further obligation to complete the Grant Program as required by this Grant Agreement. Section 7.33 Grant Program Remainder Funds. Subsequent to Council approval of the final certifications of project completion submitted by all grant recipients of I/I Municipal Grant Program funds, the Council will determine whether any I/I Municipal Grant Program funds remain available for allocation and distribution to Grantees("Remainder Funds"). In the event Remainder Funds are available,the Council may, at its sole discretion, allocate and distribute the Remainder Funds to grantees who have received I/I Municipal Grant Program funds, provided, however, that such distribution,when added to the Grant Funds already received by any I/I Municipal Grant Program grantee shall not exceed fifty percent (50%) of the eligible expenses for the Project. The Council will make such allocation and distribution of the Remainder Funds in accordance with the Council Guidelines for the I/I Municipal Grant Program. Alternatively, at its discretion, the Council may roll the Remainder Funds into a subsequent I/I Municipal Grant Program or similar eligible program. 35 46 IN TESTIMONY HEREOF, the Grantee and the Council have executed this General Obligation Bond Proceeds Grant Agreement Construction Grant for the Farmington-Trunk Highway 3 East Frontage Road Sanitary Replacement Project on the day and date indicated immediately below their respective signatures. GRANTEE: City of Farmington a Minnesota Municipal Corporation By: Todd Larson Its: Mayor Dated: And: David McKnight Its: City Administrator Dated: METROPOLITAN COUNCIL: By: Its: Dated: 36 47 Attachment I to Grant Agreement State of Minnesota General Obligation Bond Financed DECLARATION The undersigned has the following interest in the real property located in the County of , State of Minnesota that is legally described in Exhibit A attached and all facilities situated thereon (collectively referred to as the "Restricted Property"): (Check the appropriate box.) ❑ a fee simple title, . a lease,or Elan easement, and as owner of such fee title,lease or easement, does hereby declare that such interest in the Restricted Property is hereby made subject to the following restrictions and encumbrances: A. The Restricted Property is bond financed property within the meaning of Minn. Stat. § 16A.695 that exists as of the effective date of the grant agreement identified in paragraph B below, is subject to the encumbrance created and requirements imposed by such statutory provision, and cannot be sold,mortgaged,encumbered or otherwise disposed of without the approval of the Commissioner of Minnesota Management and Budget, or its successor, which approval must be evidenced by a written statement signed by said commissioner and attached to the deed,mortgage, encumbrance or instrument used to sell or otherwise dispose of the Restricted Property; and B. The Restricted Property is subject to all of the terms, conditions, provisions, and limitations contained in that Municipal Publicly-Owned Infrastructure Inflow/Infiltration Grant Agreement [No. ] between [Grantee] and Metropolitan Council dated , (the"G.O. Grant Agreement"). The Restricted Property shall remain subject to this State of Minnesota General Obligation Bond Financed Declaration for as long as the G.O. Grant Agreement is in force and effect; at which time it shall be released therefrom by way of a written release in recordable form signed by both the of Metropolitan Council and the Commissioner of Minnesota Management and Budget, or their successors, and such written release is recorded in the real estate records relating to the Restricted Property. This Declaration may not be terminated, amended, or in any way modified without the specific written consent of the Commissioner of Minnesota Management and Budget ATTACHMENT I 48 GRANTEE: a By: Its: Dated: And: • Its: Dated: STATE OF MINNESOTA ) )ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 20 , by , the , and , the , of [Grantee], a Notary Public This instrument was drafted by: Gay Greiter Capital Budget Coordinator Minnesota Management and Budget 400 Centennial Office Building 658 Cedar St. St.Paul,MN 55155 ATTACHMENT I 49 Exhibit A to Declaration LEGAL DESCRIPTION OF RESTRICTED PROPERTY EXHIBIT A 50 Attachment I-A State of Minnesota General Obligation Bond Financed CERTIFICATION The undersigned hereby certifies as follows: © This Certification is being submitted pursuant to the Waiver of Real Property Declaration granted by Minnesota Management and Budget to Metropolitan Council for Municipal Publicly-Owned Tnfrastructure Inflow/Infiltration projects or the portions thereof which lie entirely within public road, street and highway rights-of-way and utility easements. Farmington certifies that Farmington has read and will comply with the terms and conditions of the Waiver of Real Property Declaration, a copy of which is attached as Attachment V to the Municipal Publicly-Owned Infrastructure Inflow/Infiltration Grant Agreement [No. SG2013-008] between Farmington and Metropolitan Council(the "G.O. Grant Agreement") and further, that the Governmental Program which is the subject of and described in the G.O. Grant Agreement qualifies for the Waiver of Real Property Declaration. The undersigned owns El fee title to property and/or El permanent easement and/or ©other easement which meets the requirements of this Agreement for wastewater collection purposes and/or permit for pipe in [identify Permittor, e.g., Hennepin Co.] public right of way which meets the requirements of this Agreement for wastewater collection purposes and a wastewater collection system within the fee title, permanent easement, and/or the other easement and wastewater collection system being located in Dakota County, Minnesota. The fee title property, permanent easement and/or other easement and the wastewater collection system therein is referred to as "Restricted Property" and is described in Exhibit A attached hereto by legal description, narrative description or diagram. As the owner of the Restricted Property,the undersigned hereby acknowledges the following restrictions and encumbrances with respect to the Restricted Property: • A. The Restricted Property is State bond financed property within the meaning of Minn. Stat. § 16A.695 that exists as of the effective date of the grant agreement identified in paragraph B below, is subject to the encumbrance created and requirements imposed by such statutory provision, and cannot be sold,mortgaged,encumbered or otherwise disposed of without the approval of the Commissioner of Minnesota Management and Budget, or its successor, which approval must be evidenced by a written statement signed by said commissioner and attached to the deed,mortgage, encumbrance or instrument used to sell or otherwise dispose of the Restricted Property; and ATTACHMENT 1-A 51 B. The Restricted Property is subject to all of the terms, conditions, provisions, and limitations contained in the G.O. Grant Agreement. The Restricted Property shall remain subject to this State of Minnesota General Obligation Bond Financed Declaration for as long as the G.O. Grant Agreement is in force and effect; at which time it shall be released therefrom by way of a written release in recordable form signed by both the Metropolitan Council and the Commissioner of Minnesota Management and Budget, or their successors, and such written release is recorded in the real estate records relating to the Restricted Property. This Certification may not be terminated, amended, or in any way modified without the specific written consent of the Commissioner of Minnesota Management and Budget,or its successor. City of Farmington [Grantee], a Minnesota Municipal Corporation • By: Kevin Schorzman Title: City Engineer • Dated: ATTACHMENT 1-A 52 Exhibit A to Certification DESCRIPTION OF RESTRICTED PROPERTY The proposed facilities will be installed along the east frontage road (Eighth Street) of Trunk Highway 3 in approximately the eastern 35-40 ft of right-of way then crossing the City-owned Outlot I of the East Farmington First Addition and connecting with existing facilities located in the Spruce Street right-of-way east of Trunk Highway 3 (see Attachment Diagram). EXHIBIT A 53 • Attachment II to Grant Agreement LEGAL DESCRIPTION OF REAL PROPERTY (For Projects for which a Certification is being submitted,use the description attached to the Certification submitted.) The proposed facilities will be installed along the east frontage road (Eighth Street) of Trunk Highway 3 in approximately the eastern 35-40 ft of right-of way then crossing the City-owned Outlot I of the East Farmington First Addition and connecting with existing facilities located in the Spruce Street right-of-way east of Trunk Highway 3 (see Attachment Diagram). ATTACHMENT II 54 0a d I I— 4:1 0 w g _ cie � a b� •0 a al 0w 14 1.41 a '''`4, $24 r I- , �}:✓,gyp° �\ .. N d 4 of 4 p '._a ('c ice+ Uf"j� `: % 42,4 an o w m a a in r q; thy} N y O El 11d) 1 04 1 cu x � � ya °' :� a) C iy r- b P � U Q s _: •=� c)1 894 jii' '3 U O .4 . i..,,,,,teAr,_ -,1,,,, h til pis ; ..„,r,,,,, m ,;,„pti-c%'..----4-v. ri i. .• O ry t'.. .., .,?i W Q 21 Mkt Identify Source of Amount Identify Items Amount Funds State G.O.Funds Ownership Acquisition G.O.Grant $23, 328 . 00 and Other Items Paid for with G.O.Grant Funds Other State Funds Purchase of $ Ownership $ Interest $ Other Items of a Capital _ $ Nature Sub-Total $23, 328 . 00 Sewer Construction $23, 328 . 00 Matching Funds $ Sub Total $23 , 328 . 00 Sub Total $ Items Paid for with Non-G.O. Grant Funds Other Grantee Funds Sewer Construction $69, 985 . 75 City Sewer Utility Fund $69, 985 . 75 $ $ $ Sub-Total $69, 985 . 75 Sub Total $ 69, 985 .75 Loans Sub-Total Other Funds Sub-Total $ Prepaid Project Expenses Sub-Total $ TOTAL FUNDS $93, 313 . 75 TOTAL COSTS $93 , 313 .75 ATTACHMENT III 56 • Attachment IV to Grant Agreement PROJECT DESCRIPTION AND PROJECT COMPLETION SCHEDULE Project Description The Trunk Highway 3 East Frontage Road Sanitary Replacement Project will extend a new standard depth 8" PVC sanitary main from an existing manhole in Spruce Street just east of Trunk Highway 3 approximately 500 ft north along the eastern frontage road(Eighth Street)where it will intercept an existing PVC sanitary main. In the process the vitrified clay pipe main that is shallow will be removed along the west side of the frontage road and the existing sanitary services will be reconnected to the new sanitary main located in the center. The current downstream pipe crossing Trunk Highway 3 will be bulk headed and filled with sand. The project ultimately reroutes the sanitary flow from going west across Trunk Highway 3 so that it flows south to Spruce St and continues east. Any utilities or features affected by the installation will be restored with the project(see Attachment Diagram). Project Completion Schedule Spring 2012 -City Staff performed preliminary feasibility work Fall 2012/Winter 2013 -City Staff finalizes project plans and specifications Winter 2013 -City Staff solicits bids from contractors for project work Summer 2013 -Selected contractor begins and substantially completes project work Spring 2014 -Selected contractor finishes project work -- ATTACHMENT IV 57 Attachment V to Grant Agreement WAIVER OF REAL PROPERTY DECLARATION ill MINNESOTA management &Budget Iune 19,2012 John Atkins MCES Budget Manages Metropolitan Council 390 Robeat StN St Paul,MN 55101 Re. Waiver of Real Property Declaration—2012 M Cites Inflow and In#ilhratioo Gnats Dear Mr.A lime reviewed your le*dated Joe 13.2012 waivreparanmi to Section 7.02(r)once�d Order A Q of Team dated Alf 282010 a oft the requirement tint a real be!acceded in *A grants to metropolinserea Ito address its into local twittery NW collection system front the Metropolitan Consul appropriation in Laws 2012..ch..293.sen 17,scbd.3. In.response to your wawa.I waive the requiremeat that a be worded fai the portion of such projects which her entirely within public road,met and highway z of wa andtffity eased Ham,a declaration will need lobe mended andzecordad for tiny portion eta project which is on land onside of such amts. Place note that this letter ally micas the repiresnent that a deelinnien.be receded. The property will remmin bond-financed properiy mid Ito all the other requinginents online.St.See.16A,695 and the Coonnissioner's . This waiver is condilionalupou oar receiving a sib copy of property Certification in the form which the Mabwolitan Connell has b r. for its watt freerite201011abonding aprwilitim from each gnite®wha receives a grant from this proven,in which such grentre acknowledgel thatthe raja et rrtYis bow ropily and ln1v is subject to all Ow other nariemento diem fit.Sec.16A. Coranaterionses Aplurtocopy of each of each signed Certification should be sent to Gay Capital Budget Coordinator at ifuntatata Maniraneuf&Budget,atthes addEets below_ Sincerely, ti, Jan Cr:Ccelanissioner Gay d Jason Wily blettopellenc Coma J • s - Ceder Stole- Ped 55155 0151)2014 1100 am(651) -err:t 35 o • 58 w c _ s w �✓ c� 17, V CONNECT EXISTING 6'PIPE �Q � INTO PROPOSED MH 4 1�' BULKHEAD EXISTING 8"PIPE REMOVE EX.SANITARY }0SgPp MH AND 6'PIPE y�Y _EXISTING 8"VCP SANITARY SEWER < 41111 BULKHEAD EXISTING 6'PIPE OAK ST ABANDON EXISTING 8'PIPE CROSSING REMOVE EX.8'PIPE A V K Qw 1Z_a- Z C Q F I V j W 2 (/) x w 2 C9 • 2 n v Z 3 H REMOVE EX.IT PIPE/ 3 n V Q C7 U' REMOVE EX. • CITY-OWNED OUTLOT SANITARY MANHOLE V 0 PROPOSED MH I-O A� '50 SAO • „"1 RIGHT-0F-WAY 40 20 0 40 FR SCALE:1”=40' CITY OF FARMINGTON FMf�IEFImC M6iox CONNECT TO EX. EXISTIN 8'PVC SANITARY SANITARY MANHOLE TRUNK HIGHWAY 3 EAST FRONTAGE ROAD SPRUCE ST SANITARY REPLACEMENT PROJECT ATTACHMENT DIAGRAM BRA'M1 BY:KOK SHEET 1 CF 1 DAIS 1-25-13 RIGHT-OF-WAY SCALE: 1'=48' 59 1110-74.4. City of Farmington 430 Third Street 0.° ' g Farmington,Minnesota 651,280.6400•Fax 651280.6899 Wes ww ci.amtirgt+m.mnur TO: Mayor and Councilmembers, City Administrator FROM: Brian Lindquist, Police Chief SUBJECT: Criminal Background Checks Amendment Police Investigations DATE: February 4, 2013 INTRODUCTION/DISCUSSION Since 2008, law enforcement agencies have been permitted to conduct Minnesota criminal history background checks for employment and licensing purposes if an ordinance had been enacted requiring that the background check be conducted. The Bureau of Criminal Apprehension (BCA) worked with the League of Minnesota Cities (LMC) to identify specific requirements for an ordinance authorizing the checks. However, Minnesota Justice Information Services (MNJIS) auditors conducting triennial audits are continuing to find cities and counties conducting criminal history background checks by authority of a resolution rather than an ordinance or whose ordinance does not meet the agreed on requirements. Effective January 1, 2015, a city or county using a resolution as the basis for a local background check or whose ordinance does not meet the minimum requirements established with the LMC will receive a sanction as part of the audit process. This includes the requirement to stop running local checks until an acceptable ordinance is in place. MNJIS is providing advance notice of this change to give cities and counties wishing to convert from a resolution to an ordinance or needing to update an ordinance ample time to do so. BUDGET IMPACT There is no budget impact. ACTION REQUESTED Pass the attached ordinance bringing the City of Farmington into compliance with current standards and best practices. Respectfully submitted, Brian Lindquist Chief of Police 60 • ORDINANCE NO. 013-658 CITY OF FARMINGTON DAKOTA COUNTY,MINNESOTA AN ORDINANCE AMENDING TITLE 1, CHAPTER 15 OF THE FARMINGTON CITY CODE PROVIDING FOR CRIMINAL HISTORY BACKGROUND INVESTIGATIONS FOR CERTAIN VOLUNTEER, EMPLOYEE AND LICENSE APPLICANTS THE CITY COUNCIL OF THE CITY OF FARMINGTON ORDAINS: SECTION 1. Title 1, Chapter 15 of the Farmington City Code is hereby amended to read as follows: CHAPTER 15 CRIMINAL HISTORY BACKGROUND INVESTIGATION 1-15-1: EMPLOYMENT AND VOLUNTEER APPLICANT CRIMINAL HISTORY BACKGROUND INVESTIGATION: A. Purpose: The purpose and intent of this section is to establish regulations that will allow law enforcement access to Minnesota's computerized criminal history information for specified noncriminal purposes of employment and volunteer background checks. B. Criminal History Employment And Volunteer Background Investigations:The Farmington Police Department is hereby authorized and required, as the exclusive entity within the City.,to do a criminal history background investigation on applicants for volunteers and regular part time or full time employees of the City and other positions that work with children or vulnerable adults,unless the city's hiring authority concludes that a background investigation is not needed employment. In conducting the criminal history background investigation in order to screen volunteers and applicants,the police department is authorized to access data maintained in the Minnesota bureau of criminal apprehension computerized criminal history information system in accordance with BCA policy. Any data that is accessed and acquired shall be maintained at the police department under the care and custody of the chief law enforcement official or his or her designee. A summary of the results of the computerized criminal history data may be released by the police department to the hiring authority, including the city council, the city administrator, or other city staff involved in the hiring process. Before the investigation is undertaken, the applicant must authorize the Police Department,in writing by written consent, to undertake the investigation and to release the information to the City Council, City Administrator, and other City staff as appropriate. The written consent must fully comply with the provisions of Minnesota Statutes Chapter 13 regarding the collection., 164385v01 1 JJJ:05/15/2012 maintenance and use of the information. Except for the positions set forth in Minnesota Statutes Section 364.09,the city will not reject an applicant for employment on the basis of the applicant's prior conviction unless the crime is directly related to the position of employment sought and the conviction is for a felony gross misdemeanor, or misdemeanor with a jail, sentence. Should If the City rejects the applicant's request - - - - selel-j, -- • . : ._ ' - -. - •- - . _ -- on this basis,the City Administrator shall notify the applicant, in writing, of the following: (A)The grounds and reasons for the denial; (B)The applicable complaint and grievance procedure set forth in Minnesota Statutes Section 364.06; (C)The earliest date the applicant may reapply for employment; and (D)That all competent evidence of rehabilitation will be considered upon reallocation. SECTION 2. Title 1, Chapter 15 of the Farmington City Code is hereby amended by adding the following new section to read as follows: 1-15-2: LICENSE AND PERMIT APPLICANT CRIMINAL HISTORY BACKGROUND INVESTIGATION: A. Purpose: The purpose and intent of this section is to establish regulations that will allow law enforcement access to Minnesota's computerized criminal history information for specified noncriminal purposes of licensing background checks. B. Criminal History License Background Investigations: The police department is hereby authorized and required, as the exclusive entity within the city, to do a criminal history background investigation on the applicants for city permits, licenses, and other approvals, unless the city's licensing authority concludes that a background investigation is not needed. In conducting the criminal history background investigation in order to screen license applicants., the police department is authorized to access data maintained in the Minnesota bureau of criminal apprehensions computerized criminal history information system in accordance with BCA policy. Any data that is accessed and acquired shall be maintained at the police department under the care and custody of the chief law enforcement official or his or her designee. A summary of the results of the computerized criminal history data may be released by the police department to the licensing authority, including the city council,the city administrator, or other city staff involved in the license approval process. Before the investigation is undertaken,the applicant must authorize the police department by written consent to undertake the investigation. The written consent must fully comply with the provisions of Minnesota Statutes Chapter 13 regarding the collection, maintenance and use of the information. Except for the positions set forth in Minnesota Statutes Section 364.09,the City will 164385v01 2 JJJ:05/15/2012 not reject an applicant for a license on the basis of the applicant's prior conviction unless the crime is directly related to the license sought and the conviction is for a felony, gross misdemeanor, or misdemeanor with a jail sentence. If the city rejects the applicant's request on this basis,the city shall notify the applicant in writing of the following: 1. The grounds and reasons for the denial. 2. The applicant complaint and grievance procedure set forth in Minnesota statutes section 364.06. 3. The earliest date the applicant may reapply for the license. 4. That all competent evidence of rehabilitation will be considered upon reapplication. SECTION 3. This ordinance shall be effective immediately upon its passage. ADOPTED this 4th day of February, 2013, by the City Council of the City of Farmington, Minnesota. CITY OF FARMINGTON BY: Todd Larson,Mayor ATTEST: BY: d McKni t,c �J avi • Administrator (SEAL) Approved as to form the a day o 2013. B Joel J. , ty Attorney 164385v01 3 JJJ:05/15/2012 CITY OF FARMINGTON DAKOTA COUNTY, MINNESOTA SUMMARY OF ORDINANCE NO. 013-658,AN ORDINANCE AMENDING TITLE 1 CHAPTER 15 OF THE FARMINGTON CITY CODE CONCERNING CRIMINAL HISTORY BACKGROUND INVESTIGATIONS On February 4, 2013, Ordinance No. 013-658 was adopted by the City Council of the City of Farmington, Minnesota. Due to the lengthy nature of the Ordinance, the following summary of the ordinance has been prepared for publication and approved by the City Council as authorized by state law. The ordinance adopts the state's recommended provisions and is required to authorize the Farmington Police Department to conduct criminal history background investigations using the state criminal history databases for volunteer and employment applicants with the City and on applicants for city issued licenses, permits and other approvals. The ordinance provides that the Police Department conduct the criminal history background checks in a manner consistent with requirements in state law and state policies that otherwise restrict accessing state criminal history records for non-criminal investigation purposes. Provisions include providing notice to the person being investigated, obtaining their written consent, notifying them of the results,and referencing state statutory procedures if adverse permit or licensing decisions are made based on the results of the investigation. A printed copy of the Ordinance is available for inspection by any person during regular office hours at the office of the City Clerk. APPROVED FOR PUBLICATION this 4th day of February, 2013, by the City Council of the City of Farmington, Minnesota. CITY OF FARMINGTON BY: - Todd Larson, Mayor ATTEST: _ C J BY. avid McKni t ity Administrator SEAL Approved as to form the day of •=0 2013. B • %Joel J• i amity Attorney Summary published the /1/7'6 day of , 2013, in the Farmington Independent. 164385v01 4 JJJ:05/15/2012 ya�Ea � City of Farmington t 430 Third Street '� `' Farmington Minnesota 651.2$0.6400•Fax 651 280.6899 -l'aP'AMENOP - www.cl.tarrningum.mn.us TO: Mayor,Councilmembers,and City Administrator FROM: Randy Distad,Parks and Recreation Director SUBJECT: Adopt Resolution Accepting Donations to the Rambling River Center DATE: February 4,2013 INTRODUCTION The Farmington VFW and Sue Reichert have recently made donations to the Rambling River Center. DISCUSSION The Farmington VFW held its 11t Annual Steak Fry Fundraising event for the Rambling River Center on Saturday,January 19,2013.$520.00 was raised from this event. This money will be placed in the Rambling River Center's Capital Improvement Fund so it may be used for future improvements to the Rambling River Center. Sue Reichert has donated a number of new puzzles to the Rambling River Center. The estimated value of the puzzles donated is$600.00. The puzzles will be available to Rambling River Center members to use. Staff will communicate the City's appreciation on behalf of the Council to the Farmington VFW and Sue Reichert for their generous donations. ACTION REQUESTED Approve the attached resolution accepting the donation of$520 from the Farmington VFW and$600 worth of puzzles from Sue Reichert to the Rambling River Center. Respectfully submitted, Randy Distad Parks and Recreation Director 66 RESOLUTION NO. R5-13 ACCEPT DONATIONS OF$520.00 FROM THE FARMINGTON VFW AND PUZZLES VALUED AT $600 FROM SUE REICHERT TO THE RAMBLING RIVER CENTER Pursuant to due call and notice thereof, a regular meeting of the City Council of the City of Farmington,Minnesota,was held in the Council Chambers of said City on the 4th day of February,2013 at 7:00 p.m. Members Present: Larson, Bartholomay, Bonar, Donnelly, Fogarty Members Absent: None Member Fogarty introduced and Member Bartholomay seconded the following: WHEREAS, a donation of$520.00 was received from the 11th Annual Farmington VFW Steak Fry to the Rambling River Center; and, WHEREAS, a donation valued at$600.00 in puzzles was received from Sue Reichert to the Rambling River Center; and, WHEREAS, it is required by State Statute that such donations be formally accepted; and, WHEREAS, it is in the best interest of the City to accept these donations. NOW,THEREFORE, BE IT RESOLVED that the City of Farmington hereby accepts with gratitude the generous donation of$520 from the Farmington VFW and $600 worth of puzzles from Sue Reichert. This resolution adopted by recorded vote of the Farmington City Council in open session on the 4th day of February 2013. Mayor Attested to the& day of February,2013. City Administra SEAL 40R4, City of Farmington k4ibit 430 Third Street r,..,j Farmington,Minnesota '�`od, 651.280.6800•Fax 651.280.6899 www cilarmington.mn us TO: Mayor,Council Members, City Administrator FROM: Lee Smick,AICP,CNU-A City Planner SUBJECT: Approve Revision of Business Development Grant Program DATE: February 4,2013 INTRODUCTION/ On January 28,2013,the EDA approved a text amendment to the Business Development Grant language to allow not only"existing business"for potential funding,but to also include"new businesses"as the text revision. DISCUSSION On January 8,2013,the Dakota County Board of Commissioners removed$17,510 from the Farmington's Business Development Grant fund. At this time,staff is working with the CDA to replenish the fund to include$30,820 from the CDA's FY2013 funding round. The original Business Development Grant requirements were developed and approved by the 7- Member EDA on April 28,2008. The intention for the grant was to meet a number of existing business owner's requests for City funded business expansion projects in Farmington. At the time,the 7-Member EDA proposed that grant money would be allocated through an RFP process so the allocation was fair to all applicants. The RFP requirement is no longer stated in the 2012 Grant. The reason for the text revision was that a variety of businesses were looking for additional incentive funding for opening or expanding their business. On January 2,2013,a request for funding from the Business Development Grant program was received from Mr.Brian Wheeler, owner of the soon-to-open restaurant,Baldy's BBQ,at the former Burger King building. Mr. Wheeler has requested that the City allow him to apply for CDBG funding under the Business Development Grant for the purchase of cooking equipment for his new restaurant. He is requesting the maximum of$15,000 through the CDBG program. The grant will have sufficient funding after the CDA's FY2013 reallocated funds of$30,820. At this time,Mr.Wheeler does not qualify for the grant because the City only allows existing businesses receive monies to relocate or expand within the City of Farmington. Mr. Wheeler's proposal is to locate a"new" business in the City. 68 Business Development Grant--2013 Proposed Amendment Staff and the CDA have agreed that the EDA should review the objectives of the City's Business Development Grant program to include"new"business grant opportunities. Therefore,staff is proposing text changes to the Business Development Grant to allow"new"businesses to have the opportunity to apply for CDBG funding. The proposed amendments are described below (also in attached Business Development Grant packet);text shown underlined identifies"new" text and text identified as strikeout removes the text. Program Objectives a-) To promote job growth retain-leeal jobs within the City by encouraging new and existing businesses to locate,relocate and/or expand within the City of Farmington.Retained-jebs b) To create additional job opportunities within the City while also retaining local jobs within the City. Retained jobs are positions'that would be eliminated if not for this program assistance. Applicant will be required to provide documentation of the retained positions. c) To support entrepreneurial growth within the City for new and existing businesses. Eligible Recipients a) The property must be located within a commercially or industrially zoned district or a district that has a commercial or industrial component. This would include the following zoning districts:I-1,IP,B-1,B-2,B-3,B-4, SSC,Business/Commercial Flex,Mixed Use and R T. (f) Ineligible project costs include but are not limited to interior remodeling improvements, furniture,financing fees,business or operating costs(excluding rental cost assistance for microenterprise applicants),equipment(unless considered part of a new or expanding business eon-and the additional equipment results in additional product or service offerings by the company),removable fixtures and building acquisition costs. Costs incurred prior to the application date are not eligible for program funding. Eligible Uses of Funding: Applicants may apply for grant funding for one of the following uses only. (a) Business Development€ Bien Assistance. One time grant funding for an a new or existing Farmington business that is establishing a new business,expanding their current facility,relocating to,or constructing a facility elsewhere within the city limits. Relocation outside of the City of Farmington within three years of receipt of grant funding,or sale of equipment purchased with grant funding within three years will trigger repayment of grant funding in full. The Applicant would have to meet the criteria for the national objective of benefiting low to moderate income persons as defined by the Federal Department of Housing and Urban Development through job creation. The Applicant will be required to verify that 51%of permanent jobs created or retained on a full time equivalent basis are low to moderate income. 69 ACTION REQUIRED Staff is requesting that the City Council approve the text revision to amend the Business Development Grant requirements to include"new businesses". Respectfully submitted, Lee Smick,City Planner AICP,CNU-A 70 it k Rif ,,,,, M•Y• 44•44, 0 -101.1"Cifio, A,,,, 0 0, .',giiii,4-0,0%•, , cimio4.0.„,„bac L: (y ----- � aw .b is _ u , s - 1 Gv ‘‹-.v.‘''',..4%,,,,;,:::- ' t Js,gi i > ' „k , ` „} .� • A PRO of r} t City ri gton Business r / I City of Farmington Business Development Grant The City of Farmington has received funding from the Dakota County Community Development Agency(CDA)in the form of Community Development Block Grant (CDBG)funds. These funds will aid the City in supporting local businesses by assisting with financing for business development and growth.The Dakota County CDA distributes the funds on behalf of the U.S.Department of Housing and Urban Development(HUD). Projects that receive CDBG funds are subject to HUD requirements. The following policies and procedures have been developed for projects undertaken with CDBG dollars in the City of Farmington. These policies are subject to change as recommended by the Dakota County Community Development Agency and/or the U.S.Department of Housing and Urban Development. 1. Program Overview Program Purpose To provide financial assistance to business owners who have projects that meet the criteria for the national objective of benefiting low and moderate income(L/M) persons. Types of Assistance CDBG funded grant. Grant Terms&Requirements No more than one grant may be issued per property or per Applicant during the funding year which runs from July 1'until June 30th. a) Amount-Amounts are limited to funding availability. No grant may exceed 50%of proposed total development costs for construction related projects. There is a maximum grant amount of$15,000 for business expansion and relocation use. Microenterprise rental assistance is based on the tenant's lease terms and will not exceed 75%of the monthly rental payment up to twelve(12) consecutive months. Costs for common area maintenance and real estate taxes are not eligible for grant funding. Program Objectives a) To promote job growth retain-leeal jobs within the City by encouraging new and existing businesses to locate,relocate and/or expand within the City of Farmington. ' .... . . .. , . . . . . - .. .. . . . '. . . the retained positions. 1 72 b) To create additional job opportunities within the City while also retaining local jobs within the City. Retained jobs are positions that would be eliminated if not for this program assistance. Applicant will be required to provide documentation of the retained positions. c) To support entrepreneurial growth within the City for new and existing businesses. Note: HUD requires that at least 51%ofjobs created and/or retained on a full- time equivalent basis are either held by or are considered to be available to low and moderate income persons. Eligible Recipients a) The property must be located within a commercially or industrially zoned district or a district that has a commercial or industrial component. This would include the following zoning districts: I-1, IP,B-1,B-2,B-3, B-4, SSC, Business/Commercial Flex,Mixed Use and R T. b) All individuals having an ownership interest in such structure or an interest as purchaser in a contract for deed must join in the application and sign the grant agreement with the Economic Development Authority,including the contract holder. c) Leaseholders are eligible to make application for Program funds. The Farmington Economic Development Authority, on a case-by-case basis,will review such applications to determine their eligibility for funding,based on the length of the lease on the property and/or length of time the business has operated in Farmington. The property owner must join in the application and comply with Program requirements. d) Projects that would result in permanent displacement of either residential or business tenants will not be financed with CDBG program funds. Any temporary displacement of tenants resulting from project activities shall be the responsibility of the property owner. Tenants shall be fully informed of the project plans, and the expected impact on them, and shall receive a Notice of Nondisplacement or Displacement, as appropriate,prior to the start of rehabilitation. Property owners will be required to provide relocation assistance to tenants as required under the Uniform Relocation and Real Property Acquisition Policies Act of 1970. e) No member of the governing body of the locality,or official, employee, or agent of the local government who exercises policy, decision-making function or responsibilities, including members of the Economic Development Authority,Planning Commission and Farmington City Council, in connection with the planning and implementation of the Business Development Grant Program shall directly or indirectly benefit from this program. This prohibition shall continue for one(1)year after an individual's relationship with the local government ends. Any potential conflicts of interest under Minnesota Statues 412.311 and 471.87-471.89 or Federal Regulations 24 CFR,Part 570,Uniform 2 73 Administration Requirements, shall be evaluated on the basis of a legal opinion to be requested from the Farmington City Attorney. f) Ineligible project costs include but are not limited to interior remodeling improvements,furniture,financing fees,business or operating costs (excluding rental cost assistance for microenterprise applicants), equipment(unless considered part of a new or expanding business expansion and the additional equipment results in additional product or service offerings by the company), removable fixtures and building acquisition costs. Costs incurred prior to the application date are not eligible for program funding. g) Eligible projects must comply with Federal Anti-Pirating Regulations. Any assisted business relocating to the City of Farmington must not relocate more than twenty-five jobs from any other labor market area or 0.01%of jobs in the Labor Market Area, unless forced to relocate by an action under the Uniform Relocation Act. Farmington is part of the Minneapolis-St.Paul Metropolitan Statistical Area Labor Market Area. h) An eligible business must have service or manufacturing operations that do not engage predominantly in retail sale of goods to end users. Retail sales are defined as sales not for resale,but for use and consumption by the purchaser. 2. Program Definitions CDBG Administrator The CDBG Administrator shall be the Dakota County Community Development Agency(CDA), 1228 Town Centre Drive,Eagan,MN 55123,Phone(651)675-4400. CPA staff shall work with the Project Coordinator in administration of all aspects of the Program. Applicant Any person determined to be an eligible recipient seeking to obtain assistance under the terms of this Program. If the applicant is a leaseholder, the property owner must also be a co-applicant. Building Official The Building Official for the program shall be a City of Farmington employee and shall provide plan review and technical expertise relating to inspections, construction quality,code compliance and scope of work to be accomplished. Project Coordinator The Project Coordinator for the Program shall be an employee of the City of Farmington and shall provide assistance and management relating to improvement activities. The Project Coordinator is responsible for program marketing, application 3 74 intake, scheduling of inspections,preparation of contracts and grant documents, and processing of payment requests. The Project Coordinator serves as the contact person for rehabilitation from application to project close-out and shall be available during regular business hours. Target Area Locations throughout the City of Farmington that are in commercial and industrial zoning districts or districts with a commercial or industrial component, including:I-1, IP, B-1,B-2,B-3,B-4, SSC,Business/Commercial Flex,Mixed Use, and R-T. Eligible Uses of Funding: Applicants may apply for grant funding for one of the following uses only. a) Business Expansion Assistance. One time grant funding for en a new or existing Farmington business that is establishing a new business,expanding their current facility,relocating to,or constructing a facility elsewhere within the city limits. Relocation outside of the City of Farmington within three years of receipt of grant funding, or sale of equipment purchased with grant funding within three years will trigger repayment of grant funding in full. The Applicant would have to meet the criteria for the national objective of benefiting low to moderate income persons as defined by the Federal Department of Housing and Urban Development through job creation. Please refer to Job Creation Requirements and Wage and Income Reporting under Section 3, Special Conditions(page 5)for further requirements. b) Microenterprise assistance. Rental assistance for a period of one year to an owner of a microenterprise business or a person choosing to develop a microenterprise business that will occupy a currently vacant commercial or industrial space within the city limits. The business must meet the criteria of microenterprise defined as a business having five or fewer employees,one or more of whom owns the business. The Applicant must submit a comprehensive business plan and the business must not relocate outside of the City of Farmington for a period of three years after receiving assistance or repayment of grant funding in full will be required. Please refer to Job Creation Requirements and Wage and Income Reporting under Section 3, Special Conditions(page 5)for further requirements. c) Redevelopment Assistance. Redevelopment of EDA owned property. The redevelopment would have to meet the criteria for the national objective of benefiting low to moderate income persons as defined by the U.S. Department of Housing and Urban Development. A mixed-use project that includes commercial and residential will need to meet the national objective related to both job creation and low/moderate income housing. There may be additional site specific requirements.For further details please contact a City of Farmington Economic Development staff member.Please refer to Job 4 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Creation Requirements and Wage and Income Reporting under Section 3, Special Conditions(page 5)for further requirements. 3. Special Conditions Contractors: All project work undertaken through this program must be completed by bona fide contractors who are licensed(as applicable)and provide proof of insurance. Historic Properties The City of Farmington is a Certified Local Government under the Historic Preservation Act. Each project submitted for review will follow the procedures outlined in the handbook for Historic Preservation in Farmington. Eligible"historic properties" are those which have been designated or determined eligible for designation as Farmington Heritage Landmarks;within or immediately adjacent to the boundaries of a historic district; or listed on the National Register of Historic Places.The City will work in conjunction with the State Historic Preservation Office to implement Federal preservation guidelines as they relate to eligibility and certification of work. If the building or the unit was originally built prior to 1950,the property will be evaluated for historical significance by the Historic Preservation Commission(HPC)using the eligibility criteria in the Farmington City Code. If it has been determined that the property is eligible for Farmington Heritage Landmark Designation, a review of the proposed rehabilitation work is necessary, and the work must be in conformance with the Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings. Once work is approved by the Historic Preservation Commission and applicable preservation standards have been met, a Certificate of Appropriateness will be issued by the HPC. Microenterprise Applicants:Application materials must include a business plan for the proposed or existing microenterprise. The business plan must include an Executive Summary, Company Summary,Product Information,Market Analysis, Strategy and Implementation,Management Summary and Financial Plan. Job Creation Requirements and Wage and Income Reporting: Applicants must meet the CDBG national objective of benefiting low to moderate income persons,the Applicant will be required to verify that 51%of permanent jobs created or retained on a full time equivalent basis are low to moderate income. These jobs must be documented as either being held by or available to low to moderate income persons (per 24 CFR Part 570.208(a)(4)). Verification must be submitted annually to the Project Coordinator for a period of five years. For microenterprise assistance,the low to moderate income benefit may also be met if the person who owns the microenterprise is of low to moderate income. For redevelopment of EPA owned property with affordable housing units these requirements are not applicable;see Affordable Housing Requirements and Reporting(page 6). 5 76 Davis-Bacon Wage Rates: All contracts in excess of$2,000 require compliance with the Federal Labor Standards Provisions of the Davis-Bacon Act. Contractors are to pay their employees the prevailing wage rate as determined by the U.S. Department of Labor. Appropriate wage information must be included in the bid selections and contract documents. The Project Coordinator must approve all payrolls prior to the release of funds. Fair Housing&Equal Opportunity The City of Farmington and the Project Coordinator will work affirmatively to ensure that all persons,regardless of race,color,creed,national origin, sex,religion,marital status, age,handicap, familial status or reliance on public assistance will be treated fairly and equally for purposes of participation in the Program. Access to program information and materials will not be denied to any person for any reason. The City will encourage the participation of women and minority-owned businesses and local businesses and suppliers who meet Section 3 Criteria. Lead Based Paint The program will conform to the requirements of the Residential Lead Based Paint Hazard Reduction Act of 1992 for any assisted property that contains residential dwelling units. All program Applicants must provide notification of the hazards of lead based paint to impacted tenants. The Building Official shall inspect for defective paint surfaces at the time the property is being inspected for code compliance. All defective surfaces will be corrected in accordance with the regulations in 24 CFR Part 35 and Minnesota statutes and safe work practices. Additionally,contracts work will include language explicitly prohibiting the use of lead based paint. Data Privacy All information provided by Applicants under the Business Development Grant Program shall be maintained in accordance with the Minnesota Data Practices Act and the City's Subrecipient Agreement with the Dakota County Community Development Agency. Affordable Housing Requirements and Reporting: Applicants redeveloping EPA owned property with affordable housing must meet the CDBG national objective of benefiting low to moderate income persons. The Applicant will be required to verify that the rents are set at affordable levels and that 51%of the units are occupied by low or moderate income households. 4. Procedures Application Intake Applications are accepted on a continual basis and will be reviewed based upon the balance of CDBG funding available. Applications will be considered for participation in the program based upon the following guidelines as applicable: 6 77 a) Whether the Applicant has clear title to the property to be improved/constructed. Prior to project approval,the following will be ascertained: i. Title verification; ii. All real estate taxes and any City fees or charges are current; iii. All individuals having an ownership interest, including contract holders, have agreed in writing to join in the application; b) Verification of lease information and zoning compliance. c) Review of business plan. d) The extent to which the project meets the program objectives; e) The degree of the project's overall impact on the surrounding area. If necessary, applications competing for limited funds may be selected based upon these criteria. Projects that are not financially feasible within the constraints of available funding will be eliminated from consideration. Property Inspections Upon determination that an Applicant requesting assistance is eligible based on the program guidelines, the Building Official shall conduct an inspection of the property to determine the corrective actions necessary for the property to conform to City of Farmington building code standards. Scope of Work The Scope of Work will have two(2)components: a) Upon completion of the initial inspection, the Building Official shall prepare a report indicating the work necessary to bring the property into compliance with Farmington building codes inclusive of the Minnesota Energy Efficiency Standards. This report, and any improvements deemed necessary by the Project Coordinator for the project to satisfy the intent of the Program, shall be included as a part of the Scope of Work, b) The Applicant shall provide a report or elevation drawing indicating any planned exterior improvements. This report will be reviewed by the City of Farmington and the Historic Preservation Commission if applicable(see Historic Properties,page 4). Project Approval The final application will be reviewed by the Project Coordinator and the Economic Development Authority. Projects approved for Program funding will be based on the scope of work proposed and the ability of the Applicant to complete the project with CDBG funds and private funds.The Dakota County Community Development Agency will determine final approval. Verification of commitment of private funds will be required before final approval of the project. 7 78 Competitive Bidding A minimum of three(3)competitive bids must be solicited and two(2)competitive bids must be obtained for each improvement project the Applicant proposes for Program funding. Applicants may use any contractor they choose,as long as the contractor meets the requirements listed below. All contractors must provide a Certificate of Insurance Coverage. Contractors must also certify that they will comply with the requirements of the Davis-Bacon Act. These rates will be provided to the Applicant as a part of the contractor's instructions. Awarding Contracts The contract will be between the Applicant and the contractor. The contract will be awarded to the lowest bid unless one(1)of the following circumstances occur: a) The bid is determined to be unrealistically low and the contractor agrees to withdraw the bid; b) The contractor has failed to follow the procedures as outlined in the instructions to the bidders; c) The Applicant does not want the low-bid contractor to perform the work and agrees to pay the difference between the lowest bid and the preferred contractor's bid. d) There appears to be collusion between two (2)or more contractors, in which case, all bids in the questionable trade category will be thrown out and different contractors will be solicited for bids; or e) The contractor fails to bid according to the specifications, and it proves impossible to compare that contractor's bid with the other bids received. Approval by the Economic Development Authority Once the Applicant has accepted a bid(s) determining the cost of the entire project,the project coordinator will prepare the information for presentation to the Economic Development Authority. Upon EDA approval, a Grant Agreement will be signed by the Applicant and a designated City official. This Agreement will outline the terms and conditions of the project,including the City's role and the Applicant's responsibilities, and any corrective actions to be taken in the event of a dispute. Notice to Proceed A preconstruction conference will be held with the Program Coordinator,the Building Official, the Applicant and contractors and subcontractors to ensure awareness and compliance with Davis-Bacon requirements and any other requirements necessary to begin the project. A notice to proceed will be issued after the preconstruction conference. The contractor will normally have one(1)year in which to complete the awarded contract. If construction work does not begin within 90 days of the award of contract the Grant Agreement is null and void; however, the Applicant may apply for one extension if necessary. The length of the extension will be determined on a case- by-case basis. 8 79 . . . . . . . . . . . . . . . . . . . . . . . Change Orders All change orders to the current contract require the approval of the Project Coordinator as well as the signatures of the Applicant and contractor. Acceptance of Work Interim inspections may be scheduled with the Building Official to monitor work in progress. Final inspection shall be required to ensure that the work has been completed in a satisfactory manner. In the event of a dispute between the Applicant and contractor concerning the completion of work, the Project Coordinator shall work with both parties to try to negotiate a satisfactory solution. Disputes that cannot be resolved by negotiation, and that result in legal action by either party to the contract, shall be resolved in accordance with applicable State law. CDBG funds shall not be released to either the Applicant or contractor until such dispute has been settled. Hold Harmless The Applicant and the contractor shall indemnify and hold harmless the City of Farmington and the Dakota County CDA and their respective officers, employees, and officials from any damages or liability arising from, or occurring as a result of,the activities funded through this Program. CDBG Payment All CDBG funds will be disbursed by the Dakota County CDA upon authorization by the Applicant and the City of Farmington. Payments will be made only after all project work has been completed according to the authorized scope of work, and has been accepted by the Applicant. Funds will be released once all improvements are complete to the satisfaction of the City Building Official and once title ownership, Davis Bacon wage payments and other requirements are satisfied with the CDA and the City. The Building Official and City staff will inspect the final project, and a Certificate of Occupancy(CO)or a Temporary Certificate of Occupancy(TCO)will be issued by the Building Inspections Division. The CO or TCO as well as lien waivers are required before the CDA releases funds. Payment may be made directly to the contractor or in reimbursement to the Applicant, upon presentation of paid receipts for approved work. The following must be presented to the Project Coordinator in order to process payment: a) Billing Statement/Paid Receipt b) Sworn Contractor's Statement c) Completion Certificate d) Weekly Payroll Reports e) Lien Waiver 9 80 Private Financing Applicants are responsible for all costs incurred as a result of not accepting the lowest bid, and costs above and beyond the availability of CDBG funds as outlined in the Program. Applicants shall contact a lending institution of their choice to arrange financing for their portion of the project. Applicants should request a letter of credit or other suitable documentation from the lending institution to prove that private funds have been committed. This letter is to be submitted with the completed application. If an Applicant is not using a lending institution, other evidence of committed funds must be presented at the time of application. Escrow The Applicant may be requested to establish an escrow account or other private account for deposit of the private funds that will be used to complete the improvement project. The CDBG funds shall be reserved on the Applicant's behalf by the Dakota County CDA,but shall be drawn from the U.S. Treasury only when actually needed for disbursement to contractors or vendors,or in reimbursement to the Owner. Appeals Process • Appeals concerning eligibility for the Business Development Grant Program or the proposed improvements shall be made in writing and addressed to the Project Coordinator. The Coordinator will contact the Applicant and attempt to rectify any concerns. A written response will be made within fifteen(15)days. 10 81 er5 City o o Farmington Third e y �► !° Nom ' Farmington,Minnesota � ° 651.280.6800•Fax 651 280.6899 www.cleanningtommtuti TO: Mayor, Councilmembers, and City Administrator FROM: Brenda Wendlandt, Human Resources Director SUBJECT: Position Reclassification—Engineering DATE: February 4, 2013 Introduction and Discussion Mr. Kris Keller began employment with the City as a Civil Engineer. However, in 2010, it had been determined that Mr. Keller was really performing the job responsibilities of an Engineering Technician and not that of a Civil Engineer; nor had he attained his license as a Professional Civil Engineer. Therefore, he was moved from the Civil Engineer position to the position of Engineering Technician. Since that time, Mr.Keller attained his Professional Civil Engineer license(in 2012), gained additional experience and has taken on the job responsibilities of a Civil Engineer. Therefore, it is appropriate to move Mr. Keller into the Civil Engineer position. The following is the salary schedule for both positions: Current Position: Step 1 Step 2 Step 3 Step 4 Step 5 Engineering Technician B24 $46,482.30 $48,516.81 $50,551.33 $52,585.85 $54,620.37 Proposed Position: Civil Engineer C42 $58,090.67 $61,001.76 $63,914.03 $66,825.14 $69,736.24 Budget Impact Mr. Keller's current salary is$54,620.37 (non-exempt)and it is proposed that he be placed at Step 1 of the new pay grade range (exempt). However, this change is budget neutral as the funding for this change is included in the 2013 budget. Recommendation Approve the position and salary change for Mr.Kris Keller effective January 1, 2013. Respectfully submitted, Brenda Wendlandt, SPHR Human Resources Director cc: File 82 74 YO�cm City of Farmington 430 Third Street ! '., 4 Farmington,Minnesota "� 651.280.6800.Fax 651 280.6899 �46i.A no0 www.d.tarmmgtatmn.tt TO: Mayor, Councilmembers, and City Administrator FROM: Brenda Wendlandt,Human Resources SUBJECT: Position Reclassification—Human Resources DATE: February 4, 2013 Introduction and Discussion In 2011, Lisa Linnane was chosen to learn payroll so the City would have a back-up process payroll in the event the primary person was unable to perform those duties. This change would have eventually led to a position re-evaluation. However, with the retirement of the HR Representative, Georgia Larson, and the subsequent elimination of HR Representative position in 2013, other additional duties have been added to the Administrative Support position. The HR Representative job responsibilities have been re-assigned either to the HR Director or to the Administrative Support position. The job responsibilities reassigned back to the HR Director include oversight and coordination of the recruitment and selection process for all positions within the City, managing COBRA, worker's compensation and unemployment claims and processes; and coordinate and maintain other program initiatives such as Wellness,New Hire Orientation and Safety. The additional responsibilities added to the Administrative Support position performed by Lisa Linnane are as follows: 1) Perform all payroll functions including preparing and meeting filing reporting requirements for quarterly and year-end tax returns. 2) Process and enter data into the HR/Payroll system for new hires, benefits open enrollment,roll- overs and other wage and benefit changes throughout the year. 3) Maintain the pre-employment and random drug testing program in compliance with State and Federal law and City policy. 4) Provide assistance with processing worker's compensation information, benefit administration, and employment verification requests; and providing administrative support including collecting data, preparing memos and monitoring and making adjustments to group insurance bills. 5) Responsible for Departmental records management. After reviewing the additional duties added into the Administrative Support Technician position within Human Resources and having a discussion with the City Administrator, it was determined that there was a significant change in the responsibilities being performed by Lisa Linnane. Since the position changed by approximately seventy-five percent(75%), a re-evaluation of the position is warranted. 83 The City's current job evaluation hierarchy and job descriptions within Band A and B were reviewed and clarification was made regarding the new duties and responsibilities. The revised job description was then sent to the City's compensation consultant, Fox Lawson for evaluation. Attached is an explanation of their findings. Their determination is that this position is more representative of an Administrative Support Specialist and should be classified as a B22 which is consistent with the rating of other Administrative Support Specialists. This evaluation only affects the Administrative Support Technician position within Human Resources. All other Administrative Support Technicians remain unchanged at this time. The following is the salary schedule for both positions. Current Position: Step 1 Step 2 Step 3 Step 4 Step 5 Administrative Support Technician A13 $16.60 $17.22 $17.84 $18.46 $19.07 Proposed Position: Administrative Support Specialist B22 $18.78 $19.61 $20.42 $21.27 $22.07 Budget Impact Ms. Linnane's current hourly rate is $19.07 per hour and it is proposed that she be placed at Step 2 of the new pay grade range. However, this change is budget neutral as the funding for this change is included in the 2013 budget. Additionally, it should be noted that this position is at a lower salary grade than that of the former HR Representative position(Grade C41 Salary Range: $26.30 -$31.59). Recommendation It is being requested that Council approve the re-classification of the Administrative Support Technician — Human Resources position to Administrative Support Specialist — Human Resources effective December 1, 2012; and approve Ms. Linnane's pay increase from$19.07 per hour to $19.61 per hour. Respectfully submitted, Brenda Wendlandt, SPHR Human Resources Director cc: file 84 1335 County Road D Circle East Fox Lawson &Associates St.Paul,MN 55109 a Division of Gallagher Benefit Services,Inc. Phone 651635-0976 Fax 651-635-0980 Compensation and Human Resources Specialists www.foxlawson.com October 24, 2012 Brenda Wendlandt Human Resources Director City of Farmington 325 Oak Street Farmington, MN 55024 Dear Ms.Wendlandt, We received a request to evaluate a revised position of Administrative Support-HR/Payroll for the City. We have reviewed the draft job description and discussed any questions with the supervisor to ensure we understand the job responsibilities in order to evaluate the job with the Decision Band Method. Our evaluation is provided on the following page. We appreciate the opportunity to assist the City with its classification needs. If you have any questions or concerns, please contact me at (651) 635-0976, ext. 6. We look forward to assisting you again in the near future. Sincerely, Mike Verdoorn Senior Consultant Fox Lawson&Associates A Division of Gallagher Benefit Services 85 Administrative Support-HR/Payroll This is a new position and is not currently rated. The Administrative Support-HR/Payroll is responsible for processing payroll by reviewing and researching related data, verifying information, and collecting all required data; along with performing related processing and collection of human resources data or information. We have examined the essential duties of the Administrative Support - HR/Payroll and have rated the position using the Decision Band Method (DBM). The job evaluation shows the following: Highest Banded Task: B2 Number of Highest Banded Tasks: 4/9 (50%) Percent of Time on Highest Banded Tasks: 74% Degree of Difficulty/Diversity of Tasks: Moderate The classification performs tasks that require "operational" decision-making which include researching and reviewing all payroll related data to ensure accuracy; preparing and verifying the reports; and the scheduling of operations to meet defined timelines. Overall, this classification has the ability to determine how and when operations or steps will be performed and/or applied to individual situations, but not what steps will be performed. The classification receives a subgrade of two (2), because of the moderate percentage of time and complexity and diversity of B2 tasks in relation to other jobs in the same band. 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These individuals have prepared presentations to make to you at the February 4,2013 City Council meeting. I have shared with these individuals the recent history of this issue that occurred in 2011. DISCUSSION Our current city code regulates the keeping of animals,including chickens,within the City. Chickens are considered farm animals under our code and are only allowed on parcels of land that are two and one-half(2 1/2)acres or larger in size. I had Assistant City Planner Tony Wippler prepare a memo that is attached that summarizes our current city code as it relates to this issue. Also included with this memo are the presentations that will be made by the individuals requesting that the City reevaluate this issue. The individuals who will be making presentations include: Lerew Kaas Mya Tsukino Stefan Randow Annabelle Randow BUDGET IMPACT None. 113 ACTION REQUESTED If the City Council would like to see a change to our current ordinance you should direct steno bring this issue back through the Planning Commission so it can hold a public hearing. A significant enough amount of time has passed where we thought this was appropriate if the City Council is leaning this way. If the City Council does not want to see any changes to our current ordinance there is no need for any action besides thanking the individuals for bringing this issue forward for your consideration. Respectfully submitted, David J.McKnight City Administrator 114 AFARAF City of Farmington 430 Third Street � '/�.- E ;-� Farmington,Minnesota F1 651.280.6800•Fax 651.280.6899 www.ci.farmington.mn.us TO: Mayor,Council Members City Administrator FROM: Tony Wippler,Assistant City Planner SUBJECT: Keeping animals within the City DATE: February 4,2013 INTRODUCTION/DISCUSSION Section 6-4-2 of the City Code currently regulates the keeping of animals, including chickens, within the City. Chickens are considered "farm animals" under this provision of the code and are only allowed on parcels of land that are two and one-half(2 1/2) acres or larger in size. There is currently no restrictions on the number of "farm animals" that can be kept on a parcel of land that is two and one-half (2 1/2) acres or larger in size. Section 6-4-2 of the City Code is attached to this memorandum for Council information. The City Council reviewed a proposed ordinance in 2011 that would have allowed up to five(5) hen chickens on a standard residential lot provided certain permits were obtained and other suggested stipulations followed. The council at that time decided not to move forward with the ordinance as the majority of the Council did not believe chickens belonged on residential lots. ACTION REQUESTED None. This is for your information only. Respectfully submitted, Ot-j1,(2 Tony Wippler,Assistant City Planner 115 Page 1 of 2 6-4-2: KEEPING ANIMALS WITHIN CITY: (A) Definitions: The following terms shall have the following meanings: FARM ANIMALS: Cattle, hogs, bees, sheep, goats, chickens, turkeys, horses, and other animals commonly accepted as farm animals in the state of Minnesota. HOUSE PETS: Animals such as dogs, cats, birds (not including pigeons, chickens, geese, turkeys or other domestic fowl), gerbils, hamsters, rabbits (including those normally sheltered outside of the principal structure), and tropical fish, that can be contained within a principal structure throughout the entire year, provided that the containment can be accomplished without special modification to the structure that would require a building permit, excluding wild or domesticated wild animals. (B) House Pets: The keeping of house pets is a permitted accessory use in all zoning districts. (C) Farm Animals:The keeping of farm animals is a permitted accessory use in all zoning districts provided: 1. The minimum lot size is two and one-half(21/2)acres. 2. Farm animals may not be confined in a pen, feedlot or building within one hundred feet(100')of any residential dwelling notowned or leased by the keeper of the animals, unless: (a)The animals were kept prior to the adoption of this section, or (b) The animals were kept after the adoption of this section but prior to the existence of a residence within one hundred feet(100'). (D) Prohibition: With the exception of the keeping of animals allowed by subsections (B) and (C) of this section, no other animals are allowed except by interim use permit as regulated under the provisions of section 10-3-7 of this code. (E) Commercial Purposes: Animals may only be kept for commercial purposes if authorized in the zoning district where the animals are located. (F) Nuisance Animals: Animals may not be kept if they cause a nuisance or endanger the health or safety of the community. (G)Animal Enclosures: Animal enclosures shall be subject to the accessory structure requirements of section 10-6-6 of this code. (Ord. 003-503, 11-17-2003) 116 1/23/2013 Hi I am Lerew Kaas.I am in 4-H and I raise animals and I show them in 4-H and the Dakota County Fair.My friends and I would like to be able to raise chickens and show them in the fair.Chickens are the perfect pet! They are fun,friendly,pets.They are easy to raise and inexpensive to have.And what one could get from owning chickens is fresh eggs every day and great companionships with them.Also,local businesses would benefit from people buying food,bedding and supplies for their chickens. Backyard chickens have a bad image to some people and that is unfair. People think having chickens next door to them will bring the value of their homes down because there will be a big,ugly chicken coop next door with tons of smelly,clucking birds. That is not true. Chicken owners care about their birds,so they take care and pride in the coops they live in,by keeping them clean and not smelly. Chicken owners take pride in the coops themselves,by building cute,fancy,and cool looking coops that adds to the look of their yards.(show slides) They are better looking than your neighbor's doghouse,wouldn't you say? And if I can come over and pet your dog,you can come over and pet my chickens! I was happy to find out,that when I contacted the cities that have chickens to get examples of types of complaints made on chickens,that not one single complaint has yet to be filed on any backyard chicken owner! Backyard chickens would be good for Farmington's image. Backyard chickens are trendy and all the cities around us have them. More cities are turning green,and we need to improve our city and be trendy like everyone else. Having backyard chickens would move Farmington forward. I found out that backyard chickens were brought before the council before—kind of. The planning commission looked at a proposal last year,and unanimously approved the proposal and voted yes for chickens. The planning commission tried to bring the proposal before the council,but it was shot down before the entire council even got to discuss it or vote on it. I am happy that we were given the chance this time,to explain about the benefits of backyard chickens in Farmington to you all. Passing this proposal looks good for Farmington. Please know that if you don't like our proposal this time,the four of us are committed to working with you to adjust whatever rules we need to for you,until the proposal works for the council. We really think backyard chickens are good for this city and for the families here and we are not giving up until Farmington can at least give this a try. 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''''',:., -:,.. ,',-,`.I ." c•^7 r ^"t z , >7:'ti;f z, yt...s r' .. -,,, >r , ' : i i `Eh„"ai >p4..t r `lr � �J.t.i .vy.tilii J,5 „4 fi t, ',..1 a iY) l ,...skik. r.*,..-i ,. • > 2 123 Anoka, Bloomington, Burnsville, Duluth, Eagan, Fridley, Maplewood, Minneapolis, New Brighton, New Hope, Northfield, Oakdale, Ramsey, Rosemount, Roseville, St. Paul, Shoreview &Stillwater. These are just some of the cities in which chicken are allowed. This has been known as the Urban Chicken Movement. Its ripples originated in Oregon. Now It has spread into the Midwest.We, the city Farmington, almost passed %of the counsel to get our chickens. Now I feel the time is right to take up that effort once more. Chickens in the city of Farmington would really fulfill its name. It would give many people and kids the ability to fully grasp the real meaning of respect and responsibility. Chickens in general are quite docile and quiet, except for the roosters that crow in the morning. Roosters don't try to wake you up; in fact they are only trying to mark their territory. So if there was a wolf pack in the nature reserve quite near to your house and their howling woke you up would you try and sneak into the nature reserve and kill it, entirely removing it from the equation? No any person with enough common sense would know that that would only make them howl more. . I said that chickens were cordial quite animals. This is true.They are just like dogs and they have personalities. They, in some aspects are even better than dogs; they eat bugs like Japanese beetles and others that just ruin your plants.Also, their poop is in fact, a great fertilizer so you could have the perfect fertilizer for your rose bush and have free eggs! How great is that?! Chickens would teach kids a life of sustainability. To have a sustainable lifestyle you must produce much of what you consume yourself. With chickens you could fertilize your own garden and have the best personalities. So chickens would be a very nice addition to Farmington. If you're thinking that were demanding for 20 to 50 chickens for free you're not following what the Urban Chicken Movement is saying.All we're asking is that if we had 1 to 6 chickens with an annual permit that costs around 16 bucks we'd be as happy as bug in a rug.Also with all the people who are indifferent about the Urban Chicken Movement but think it would be nice to have chickens, you could get a lot of money that could go to parks or anything funded by the cityl Now there will be some restrictions such as if you were not taking care of your chickens you'd get a warning. If it happened again you'd get a fine of about$30. If it happened again you'd get your permit taken away. Many people think the public image would go down if we got chickens. But on the contrary it would go up. You see were surrounded towns that allow chickens. If we got chickens we'd really be seen as FARMington. Isn't that what we're named for? Source:http://www.startribune.com/local/180500981.html?refer=y 124 CITY OF FARMINGTON DAKOTA COUNTY,MINNESOTA ORDINANCE NO.5 AN ORDINANCE AMENDING SECTION 6-4-2 RELATED TO KEEPING ANIMALS WITHIN THE CITY AND ADDING SECTION 6-4-6 CHICKENS ON URBAN RESIDENTIAL LOTS THE CITY COUNCIL OF THE CITY OF FARMINGTON ORDAINS: SECTION 1. Section 6-4-2 is amended by adding the underlined language as follows: 6-4-2: KEEPING ANIMALS WITHIN CITY: (A)Definitions:The following terms shall have the following meanings: FARM ANIMALS:Cattle,hogs,bees,sheep,goats,chickens,turkeys,horses,and other animals commonly accepted as farm animals in the state of Minnesota. HOUSE PETS:Animals such as dogs,cats,birds(not including pigeons,chickens,geese, turkeys or other domestic fowl),gerbils,hamsters,rabbits(including those normally sheltered outside of the principal structure),and tropical fish,that can be contained within a principal structure throughout the entire year,provided that the containment can be accomplished without special modification to the structure that would require a building permit,excluding wild or domesticated wild animals. (B)House Pets:The keeping of house pets is a permitted accessory use in all zoning districts. (C)Farm Animals:The keeping of farm animals,with the exception of chickens on urban residential lots which are regulated under section 6-4-6 of the City Code,is a permitted accessory use in all zoning districts provided: 1. The minimum lot size is two and one-half(21/2)acres. 2.Farm animals may not be confined in a pen,feedlot or building within one hundred feet (100')of any residential dwelling not owned or leased by the keeper of the animals,unless: (a)The animals were kept prior to the adoption of this section,or (b)The animals were kept after the adoption of this section but prior to the existence of a residence within one hundred feet(100'). • 125 (D)Prohibition:With the exception of the keeping of animals allowed by subsections(B)and (C)of this section,no other animals are allowed except by interim use permit as regulated under the provisions of section 10-3-7 of this code. (E)Commercial Purposes:Animals may only be kept for commercial purposes if authorized in the zoning district where the animals are located. (F)Nuisance Animals:Animals may not be kept if they cause a nuisance or endanger the health or safety of the community. (G)Animal Enclosures:Animal enclosures shall be subject to the accessory structure requirements of section 10-6-6 of this code. (Ord.003-503, 11-17-2003) SECTION 2. Title 6 is amended by adding Section 6-4-6 to read as follows: 6-4-6: CHICKENS ON URBAN RESIDENTIAL LOTS: (A)Permit Required: An Interim Use permit shall be required for the keeping of any hen chickens on property less than two and one-half(2 %2)acres in size. The keeping of chickens on lots two and one-half(2 %2)acres and larger are regulated under Section 6-4-2. The approval of an Interim Use Permit by the Board of Adjustment shall be in accordance with Section 10-3-7 of the City Code. Supporting information/documents to be submitted to the Planning Division with an interim use permit application are: (a) Number of chickens to be kept on the property. (b) Site plan or property survey showing the proposed location of the chicken coop and/or chicken run on the subject property. (c) To-scale building plan,including elevations,of the proposed coop and/or run. (B)Duration of Permit: An annual permit shall be rewired of the person with a fee of$16. The permit will have to be renewed every year that chickens are kept on an approved residential lot. The renewal permit will have to be reviewed and approved by the Board of Adjustment in accordance with Section 10-3-7 of the City Code. (C)Automatic Termination of Permit: If the owner of hen chickens,who has an approved permit,moves from the premises approved for said hens the interim use permit shall automatically become null and void. (D)Limitation on the Number of Chickens: No person shall keep on any single-family or two- family residential property more than six (6)total hen chickens. 126 (E)Three or more Dwelling Unit Properties: Chickens are not allowed on properties that contain three(3)or more dwelling units. (F)No Roosters: No person shall keep roosters,or adult male chickens,on any residentially zoned property less than two and one-half(2 1/2)acres in size. • (G)No Cockfighting: Cockfighting is specifically prohibited within the City. (H)No Slaughtering: The slaughter of chickens is prohibited on residentially used or zoned properties. (I) Ownership Occupancy: The owner of the chickens shall live on the property on which they are being kept. (J) Confinement: Every person who owns, controls,keeps,maintains or harbors hen chickens must keep them confined on the premises at all times in a chicken coop or chicken run while in the City. Chickens are not allowed to be located in any part of the home and/or garage. Supervised roaming of hens is allowed. (K)Shelter and Enclosure Requirements: Chickens shall be properly protected from the weather and predators and have access to the outdoors in an enclosure or fenced area. The shelter and/or enclosure shall meet all of the following requirements: 1. Any chicken coop and run fencing must be consistent with building and zoning codes. 2. No chicken coop or run shall be constructed on any urban residential lot prior to the time of construction of the principal structure. 3. Chicken coops and or runs are not considered principle structures and therefore cannot take up one's maximum coverage. 4. Chicken coops and runs shall not be located in the front or side yards and shall not be placed within any drainage and utility easements found on residential lots. S. Any chicken coop or run shall be set back at least ten(10')feet from any principal structure on adjacent lots and a minimum of ten(10')feet from all property lines. 6. Prior to construction of coop if desired by the neighbor, screening is mandatory of the chicken coop or run. 7. All chicken coops must have a maximum size of ten(10)square feet per chicken and must not exceed eight(8')feet in total height. Fenced in chicken runs must not exceed twenty(20)square feet per chicken and fencing must not exceed six(6')feet in total, height. Chicken runs may be enclosed with wood and/or woven wire materials,and may allow chickens to contact the ground. Chicken runs must have a protective overhead netting to keep the chickens separated from other animals. 127 8 If any chicken run or coop is situated,unraised,off the ground it must have a solid base. 9 Chicken grains and feed must be stored in a rodentproof container. (L)Conditions/Maintenance and Inspection: No person who owns,controls,keeps,maintains or harbors hen chickens shall permit the premises where the hen chickens are kept to be or remain in an unhealthy, unsanitary or noxious condition or to permit the premises to be in such condition that noxious odors to be carried to adjacent public or private property. Any chicken coop and chicken run authorized under this section may be inspected at any reasonable time by the City. SECTION 3. Effective Date. This ordinance shall be effective upon its passage and publication according to law. ADOPTED this day of ,20 ,by the City Council of the City of Farmington. CITY OF FARMINGTON By: Todd Larson,Mayor ATTEST: By: Peter Herlofsky,Jr.,City Administrator SEAL 128 Imagine baking a cake for someone's birthday. You have all the ingredients ready (whether it's from a box or from scratch, it doesn't matter) but you suddenly realize you're out of eggs. So there's only one option; to go to the store and buy eggs, where you don't know how old they are, or if they have been chemically treated, and you caught be lucky enough to be caught in rush hour. The hassle could have been avoided if the chickens were ready and waiting in your very own backyard. Then you can be sure they have not been hormonally treated, they are in healthy living conditions, and the eggs taste considerably better. It is here, that we, the people of Farmington, will fight for the right to have chickens in our backyards. There are many myths surrounding chickens, examples are some people believe they are noisy, they attract pests and predators, and are smelly. All of these can be proven false. Hens are not noisy, and do not squawk unless in danger. They only cluck softly all day long then go silent as night falls. This is a mechanism that keeps them safe at night from predators, which leads to the next myth. The sad fact is chickens are (o on the food chain and face becoming a meal at almost every turn. Even so, they do not attract predators any more than a wandering dog or cat would. Speaking of which, cats typically leave chickens alone, and dogs are not known for tearing across streets or yards and attacking peaceful chickens winding their own business. Another thing chickens do not attract is pests. On the contrary, they love eating insects of all kids including, worms, grasshoppers, mosquitoes, earwigs, tics, and larvae. They are even known for gobbling down small wtice if given the 129 chance. Lastly chickens are not naturally stinky. They depend on the owner to Peed thew► the right food and to keep their coop clean, much like a cat box or a rabbit hutch. If fed and cleaned properly, diseases like salmonella have less of a chance to start. Now that the myths are busted, there are a few cons that need mentioning. For all the animal sympathizers, (as l am) your chickens can be assured a place with more huwtane conditions. For the green thumbs, chicken manure is a great fertilizer for the garden, or it can be sprinkled onto a compost pile. So last but not least, raising chickens is a great way to teach kids to be responsible. It also teaches them where food, like eggs come from. Now give it a thought; how bad would it be if your neighbor got chickens, or maybe you're considering the idea yourself. You would barely notice them, and there such fun, friendly pets. We're changing the world, one chicken at a time. :) 130 /OX d _ 14 City of Farmington 430 Third Street Farmington,Minnesota ,� .� 651.280.6400•Fax 651.280.6899 A VPwwc1.i rr ii1�,TI711tmn.0 i TO: Mayor, Council Members, City Administrator FROM: Robin Hanson, Finance Director SUBJECT: Approve Elimination of Ice Arena Interfund Payable DATE: February 4, 2013 INTRODUCTION As of December 31, 2011 the Ice Arena Fund had an interfund payable(i.e.Due to Other Funds) to the General Fund of$315,968. Conversely,the General Fund had an interfund receivable(i.e. Due From Other Funds) from the Ice Arena for the same amount. DISCUSSION There are two primary components to the Ice Arena's interfund payable(i.e.the monies it owes to the General Fund). • The first is a negative fund balance of$271,726. This represents the net unfunded cumulative losses in the ice arena since 1976. • The second component is the amount of cash needed to be able to pay its bills on time. As in any business there is an inherent `lag' between when you need to pay your bills and when you receive customer revenues. This is similar to the discussion staff has had with Council regarding needing to have cash on hand to pay February and August 1 debt service payments prior to receipt of the June/July and December/January property taxes. As of December 31, 2011 this amount (i.e. lag)totaled$44,242 (the difference between the total amount owed, $315,968, and the negative fund balance of$271,726). Upon further review of the ice arena cash flow during the calendar year the actual amount of cash needed to pay bills on time can be as high as$90,000. This is generally in the October—November timeframe when the utility bills for the ice arena are increasing and the corresponding ice rental revenue has not yet been received. The preliminary(i.e. draft,not fmal) financial information for the General Fund indicates the 2012 revenues have exceeded expenditures and net operating transfers by approximately $500,000. This is a result of actual revenues exceeding budget in the areas of property taxes, intergovernmental revenue and miscellaneous revenues(i.e. due to the sale of the old Rambling River Center) and actual General Fund expenditures being less than budgeted.A more detailed review of the General Fund results will be given to Council in March when the year-end numbers have been further finalized. 131 In light of the 2012 actual General Fund results exceeding expectations, staff is recommending Council transfer$320,000 into the Ice Arena Fund. This transfer would eliminate the negative fund balance in the Ice Arena Fund and provide the fund with sufficient cash to pay its bills the majority of the year without having to temporarily borrow funds from the General Reserve Fund. The Ice Arena would still likely have some short-term borrowing needs October and November of each year. BUDGET IMPACT The above transfer was not anticipated in the 2012 budget. Going forward staff would recommend projected budget deficits, if any,would be factored into the annual tax levy. ACTION REQUESTED Authorize staff effective December 31, 2012,to transfer$320,000 from the General Fund to the Ice Arena Fund to eliminate the negative fund balance which existed at December 31, 2011 and provide an operating cash balance. Respectfully submitted, Robin Hanson,Finance Director 132 /07', 400 City of Farmington 430 Third Street 1 " Farmington,Minnesota rte•-,.�,, 651.240.6400•Fax 651 280.6899 www.at'arenington.mn.us TO: Mayor, Councilmembers, City Administrator FROM: Kevin Schorzman,P.E., City Engineer SUBJECT: Approve Easement Payment-Steve and Susan Finden DATE: February 4, 2013 INTRODUCTION As part of the Main Street Project in 2003, a sewer line was installed across Steve and Susan Finden's property north of the intersection of 5th and Linden Street. The line extends from the intersection to the Met Council Interceptor located north of the river on property owned by Mr. and Mrs.Finden. This is the main sanitary sewer line for the downtown area. DISCUSSION As stated, work on the project occurred in 2003 and 2004. Prior to the project, Mr. and Mrs. Finden gave the City a right-of-entry to go onto their property and install the line. A right-of- entry is typically a form that is used that allows work on the project to proceed while permanent easements are negotiated and executed. In this case, the follow-up negotiations slipped through the cracks for several years, and Mr.Finden was very patient during this time. In the spring of 2012, Mr. Finden approached the City to ask if we were going to negotiate the terms of the final agreement with him. We met with him on a couple of occasions and were able to reach agreement on the price for the easement of$85,000. This is compensation for the actual easement, all disruption of the property that occurred during the project (i.e. removal of mature trees, installation of a manhole with monitoring equipment, etc.), and any value lost due to the existence of the line. Both staff and the City Attorney were involved in the negotiation, and believe that this price is fair and equitable to both parties. Following negotiation of the price, it was necessary to receive a "Mortgage Holder Consent to Easement" from the bank that currently has a mortgage on the property. This document will protect the City's easement in the unlikely event that the property is ever foreclosed upon. This is necessary because the mortgage was recorded against the property prior to the easement being recorded. Because of this, the mortgage would "trump" the easement in court without this consent. Both Mr. Finden and staff have worked diligently since May to get the mortgage company to execute the document. We fmally received the executed consent document in January. 133 Finden Easement February 4,2013 Page 2 of 2 BUDGET IMPACT The cost for this easement will be paid for by the project fund which is located within the "Road and Bridge" fund. Funds exist within the project to make this payment and this payment was taken into consideration when creating the "Road and Bridge" fund spreadsheet that is being used as a financial plan for the projects within it. ACTION REQUESTED, By motion, authorize the payment of$85,000 to Steve and Susan Finden as full compensation for a permanent utility easement across their property located north of the intersection of 5th Street and Linden Street. Respectfully Submitted, Kevin Schorzman, P.E. City Engineer cc: file 134 GRANT OF PERMANENT EASEMENT SUSAN LEIGH FINDEN and STEPHEN O. FINDEN, Trustees of the SUSAN LEIGH FINDEN REVOCABLE TRUST UNDER Agreement dated June 30, 2004, "Grantors", in consideration of One Dollar ($1.00) and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, do hereby grant unto the CITY OF FARMINGTON, a Minnesota municipal corporation, the Grantee,hereinafter referred to as the "City",its successors and assigns,a permanent easement for public drainage and utility purposes over, across, on, under, and through the land situated in the County of Dakota, State of Minnesota and legally described on the attached Exhibit"A". INCLUDING the rights of the City,its contractors,agents,servants,and assigns,to enter upon the permanent easement premises at all reasonable times to construct,reconstruct,inspect, repair,and maintain said public drainage and utility systems over,across,on,under,and through the permanent easement premises,together with the right to grade,level,fill,drain,and excavate the permanent easement premises, and the further right to remove trees, bushes, undergrowth, and other obstructions interfering with the location,construction,and maintenance of said public drainage and utility easements. The above named Grantors,for themselves,their heirs and assigns,do covenant with the City, its successors and assigns, that they are well seized in fee title of the above described 115965 1 135 easement premises; that they have the sole right to grant and convey the easement to the City; that there are no unrecorded interests in the easement premises; and that they will indemnify and hold the City harmless for any breach of the foregoing covenants. IN TESTIMONY WHEREOF, the Grantors hereto have signed this document this • 233-4 day of ]u l_y ,2012. GRANTORS: SUSAN LEIGH MINDEN REVOCABLE TRUST UNDER REEMENT DATED JUNE 30,2004 �-- r By: _. A . A L...ALA ._ Susa Leigh Finden,T stee By: / /`' - ephen O.Finden,Trustee STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this 2 3 day of u y 2012, by Susan Leigh Finden and Stephen O. Finden, Trustees of the Susan Leigh Finden Revocable Trust under Agreement dated June 30,2004,on behalf of said Trust. 1. \ tt I TARY PUBLIC +aICEMMIQ!llitill. NOTARY FURIO•SISINESOTA THIS INSTRUMENT WAS DRAF ED BY: *Cordukaiplies,tanit 4, CAMPBELL KNUTSON Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan,MN 55121 Telephone: 651-452-5000 AMP/cjh 115965 2 136 EXHIBIT"A" TO GRANT OF PERMANENT EASEMENT A permanent easement for drainage and utility purposes over a strip of land 40 feet in width located in the Southeast Quarter of Section 30, Township 114, Range 19, Dakota County, Minnesota the centerline of which is described as follows: Commencing at the southeast corner of said Southeast Quarter;thence North 89 degrees 45 minutes 19 seconds West, assumed bearing, along the south line thereof 1327.5 feet to the point of beginning of the centerline to be described;thence North 21 degrees 56 minutes 19 seconds West along said centerline 19.08 feet to an existing manhole;thence continuing North 21 degrees 56 minutes 19 seconds West along said centerline 53.7 feet to an existing manhole;thence North 07 degrees 24 minutes 43 seconds West along said centerline 451.4 feet to an existing manhole and said centerline there terminating.EXCEPT any part of said easement contained within the following described tract of land: Beginning at a point 45 feet north of the south line of said Section 30, on the west line of 5th Street extended in the TOWN OF FARMINGTON;thence continue north along said 5th Street extended a distance of 105 feet;thence east parallel with the south line of said Section 30 a distance of 110.4 feet;thence south parallel with said west line of 5th Street extended a distance of 105 feet;thence west parallel with the south line of said Section 30, a distance of 110.4 feet to the point of beginning. 115965 1 137 MORTGAGE HOLDER CONSENT TO EASEMENT JPMorgan Chase Bank, N.A. successor by merger to Chase Home Finance LLC, successor by merger to Chase Manhattan Mortgage Corporation, which holds a mortgage on all or part of the property more particularly described in the foregoing Grant of Permanent Easement, which mortgage is dated August 25, 2003 to Chase Manhattan Mortgage Corporation and recorded October 21,2003, as Document No. 2123087 with the office of the County Recorder for Dakota County, Minnesota, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,does hereby join in,consents,and is subject to the above referenced Grant of Permanent Easement. JPMORGAN CHASE BANK,N.A. SUCCESSOR BY MERGER TO CHASE HOME FINANCE LLC,SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTG E C ORPO TION By: mrcw — . egen Its Vice President STATE OF LOUISIANA ) )ss. PARISH OF OUACHITA ) On�AW4 ` - , 2013, before me appeared YCO FrNt o me personally known, who did say III at s/he is the Vice President of JPMorgan Chase Bank NA successor by merger to Chase Home Finance LLC successor by merger to Chase Manhattan Mortgage Corporation and that the instrument was signed on behalf of the corporation (or association), by authority from its board of directors, and that s/he acknowledged the instrument to be the free act and deed of the corporation(or association). DRAFTED BY: CAMPBELL KNUTSON r -, 317 Eagandale Office Center ■�� 1380 Corporate Center Curve j Cahn-Notary Public Eagan,Minnesota 55121 • My Co I ,spires: With Life Telephone: 651-452-5000 NOTARY 1DENTTFICATION NUMBER: & [ AMP/cjh uN rNA B toe . sLpo% U Y #45I1S Q4NO PA • • 115965 1 138 City of Farmington 430 Third Street .,.: Farmington,Minncsota Q 651.280.66800•Fax 651.280.6899 cr.A pa* www ci.tarmingum_mn.us TO: Mayor, Councilmembers, City Administrator FROM: Kevin Schorzman, P.E., City Engineer SUBJECT: Approve Executive Estates Settlement Agreement DATE: February 4, 2013 INTRODUCTION The Executive Estates development is located east of TH-3, and north of 225th Street in southeast Farmington. The development contract was approved by Council on October 17, 2005. Roundbank provided the letter of credit for the development, as well as the construction fmancing for the developer. DISCUSSION The attached settlement agreement is being brought to Council at this time to establish the parameters by which the outstanding obligations of the development contract will be fulfilled should the bank take possession of the development following foreclosure. The following is a timeline related to this development: • Fall 2005: Development contract executed • 2006: Infrastructure construction • 2006: First home construction begins • 2007-2011: A few more homes are constructed in the development • Winter 2011: Bank notifies the City that they are starting foreclosure proceedings against the developer • Fall 2012: Shortly before the Sheriffs sale, the developer declares bankruptcy, delaying the foreclosure • 2013: Expected Sheriffs sale. Following redemption period, bank ownership of development (anticipated) 139 Settlement Agreement-Executive Estates February 4,2013 Page 2 of 3 There are a few items from the original development contract that still need to be worked out prior to the City accepting the development: Park Dedication, Park Development fees, payment for the TH-3 turn lanes, deeding of required outlots, and a few minor punch list items. The original development contract was negotiated based on the assumption at the time that the land east of this development would be developed into the second phase of Executive Estates. As such,the agreement stipulated that the developer post a letter of credit in the amount of the value of the park dedication requirement, and then deed a lot in one of the developers other developments to the City to be held by the City until such time as the park was developed in the second phase of Executive Estates which would satisfy the park dedication requirements for both phases. The letter of credit was posted, but the developer never did deed the other property to the City. Also, the second phase of Executive Estates has not been developed, nor are there any immediate plans to develop it. Therefore, part of this settlement agreement establishes property in the existing development that will be deeded to the City for park purposes as shown in orange hatching on the attached map. The Park and Recreation Commission reviewed this dedication at its October 10,2012 meeting and recommended approval to the Council. The park development fees have been collected as building permits are issued, as allowed in the development contract. The settlement agreement continues this practice, and dedicates those funds to the park that will be created by the deeding of several lots in the development for park purposes. The settlement agreement also stipulates that the bank will give the City money for the turn lanes that will be required at the intersection of TH-3 and 225th Street in the future. This is the same amount that was agreed upon with the original developer, and is the same amount that was given to the City by the developers of the Twin Ponds development. The fmal two stipulations of the agreement deal with punch list items and outlot dedication. The development contract required that outlot A be deeded to the City. The bank is agreeing to deed this outlot to the City once they are owners of the property. They are also agreeing to finish the remaining punch list items. In exchange for the bank agreeing to the above-mentioned items, the City is agreeing to reduce the existing letter of credit from$320,000 to $200,000 until such time as all the requirements are met. Once the bank completes all of its obligations under this settlement agreement, the City will release the letter of credit in its entirety. The risk to the City is that we are agreeing to reduce the existing letter of credit by $120,000 immediately, and should the bank not acquire the land at the Sheriff's sale, our security in the property would be $120,000 less than it is today. However, the likelihood that the bank will not acquire the property is very remote, and even with the reduction, the City would have $200,000 to finish the remaining obligations should that become necessary. As with all developments, the City also has the ability to withhold building permits until such time that the obligations of the development contract are satisfied. 140 Settlement Agreement-Executive Estates February 4,2013 Page 3 of 3 The benefit to the City is that having this agreement in-place prior to the actual sale will expedite the completion of the remaining obligations once the bank takes ownership. We retain a $200,000 security for the development which staff believes to be adequate to complete the remaining requirements. An additional benefit will be that there will now be park land within the development that can be developed and used by the residents of Executive Estates and Twin Ponds without having to wait for the second phase of Executive Estates which may not happen for many years into the future. Both staf, and the Park and Recreation Commission recommend that the City Council approve this agreement. BUDGET IMPACT There is no direct impact to the budget. However, this will reduce the current security amount by$120,000. ACTION REQUESTED By motion, approve the attached agreement with Roundbank, outlining the obligations of the bank to complete the remaining requirements of the development contract and reducing the security to$200,000. Respectfully submitted, Kevin Schorzman,P.E. City Engineer cc: file 141 • • SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (this "Agreement") is made and entered into to be effective as of the y-t day of 4ie4/013 (the "Effective Date"), by and between Roundbank, a Minnesota banking corporation ("Roundbank"), and the City of Farmington, a Minnesota municipal corporation(the"City"), and is as follows: RECITALS WHEREAS, Castle Rock Development Corporation, a Minnesota corporation ("Castle Rock"), was the owner of certain real property located near the City in Dakota County, Minnesota, which property is specifically described in Exhibit A to the Construction Mortgage (as such term is defined below), and upon which Castle Rock intended to construct and establish a residential development to be known as Executive Estates;and WHEREAS, as security for a loan to finance the construction of the Executive Estates residential development, Castle Rock executed in favor of Professional Finance Incorporated, a Minnesota corporation, a Construction Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement dated September 19, 2005, which document was filed for record in the Office of the Dakota County Recorder on September 20, 2005, as document number 2362723 (the"Construction Mortgage"); and WHEREAS, Castle Rock and the City entered into a Development Contract dated October 17, 2005, which document was filed for record in the Office of the Dakota County Recorder on July 3, 2007, as document number 2527952 (the "Development Contract"), and pursuant to which the City approved the plat for the Executive Estates development subject to Castle Rock's agreement to develop the plat in accordance with the terms and conditions of the Development Contract; and WHEREAS, Professional Finance Incorporated subsequently assigned its interest in and to the Construction Mortgage to Bank Cherokee pursuant to an assignment that was filed for record in the Office of the Dakota County Recorder on November 30,2007,as document number 2558923; and WHEREAS, Bank Cherokee subsequently assigned its interest in and to the Construction Mortgage to Roundbank pursuant to an Assignment of Mortgage dated February 19,2008,which document was filed for record in the Office of the Dakota County Recorder on March 26, 2008, as document number 2580545; and WHEREAS, also on February 19, 2008, Castle Rock and Roundbank entered into an Amendment to Construction Mortgage, Assignment of Leases and Rents, Security Agreement and Financing Statement, which document was filed for record in the Office of the Dakota County Recorder on March 26, 2008, as document number 2580546 (the "Amendment to Construction Mortgage"), and pursuant to which the maximum principal amount secured by the Construction Mortgage was reduced form $7,100,000.00 to $5,905,000.00 and the legal description of the mortgage property was amended to reflect the recorded plat for the Executive Estates development(among other amendments);and 1 1305209.1 • WHEREAS, Roundbank, on an application from Castle Rock, issued a Irrevocable Standby Letter of Credit in favor of the City dated February 19, 2008 (the "Letter of Credit"), allowing for draws up to a maximum amount of$320,000.00 to secure the completion of work under Paragraph 27 of the Development Contract;and WHEREAS, Castle Rock remains, as of the date of this Agreement, the owner of the following parcels of real property within the Executive Estates development, subject to Roundbank's interest under the Construction Mortgage and the obligations owed to the City under the Development Contract: Lots 3, 5, 6,7, 8, 9, 11, 12, 13, 14, 15 of Block l; Lots 2,4, 5, 6,7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,and 18 of Block 2; Lots 2, 3,4, 5,6, 7, 8, 9, 10, 11, 12, and 13 of Block 3; Lots 1,2, 3,4, 5, 6,7, 9, 10, 11, 12, 13, 14, 15,and 16 of Block 4; Lots 1,2,3,4, 5, and 6 of Block 5; Lots 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 19, 21, 23, 25, 26, 27, 28, 29, and 30 of Block 6;and Outlot A, All of Executive Estates, according to the recorded plat thereof, and situate in Dakota County,Minnesota (the"Executive Estates Property");and WHEREAS, following Castle Rock's default of its loan obligations, Roundbank commenced an action against Castle Rock, Colin J. Garvey, and the City in Dakota County District Court, District Court Case Number 19HA-CV-12-939 (the "Dakota County Litigation"), seeking, inter alia, a money judgment against Castle Rock and Colin J. Garvey and a decree of foreclosure for the Executive Estates Property; and WHEREAS, on June 4, 2012, the Dakota County District Court entered an Order and Partial Judgment granting, inter alia, a money judgment and a decree of foreclosure for the Executive Estates Property but expressly reserving a determination as to the relative priorities of Roundbank's mortgage lien on and the City's interest under the Development Contract in the Executive Estates Property;and WHEREAS, prior to the scheduled sale of the Executive Estates Property by the Dakota County Sheriff, Castle Rock filed a petition for bankruptcy relief under Chapter 11 of Title 11 of the United States Code;and 2 1305209.1 WHEREAS, a genuine dispute exists between Roundbank and the City as to the relative priority of their respective interests in the Executive Estates Property, which dispute the Parties have agreed to fully settle and compromise as provided in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the premises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Roundbank and the City(collectively the"Parties")hereby agree as follows: 1. Priority of Development Contract. Subject to the terms and conditions of this Agreement, the Parties hereby agree that Roundbank's interest in the Executive Estates Property under the Construction Mortgage and the Amendment to Construction Mortgage is subject to the -City's interest in the Executive Estates Property under the Development Contract. The Parties shall take all steps necessary to prepare, execute, and file in the Dakota County Litigation a stipulation and any other documents deemed necessary to reflect the Parties' agreement as to the relative priority of their interests in the Executive Estates Property. 2. Completion of Remaining Construction Work. Within 120 days after Roundbank acquires ownership in fee simple of the Executive Estates Property,Roundbank shall complete the construction work described in Items 3, 5, 6, and 9 of the punchlist prepared by the City for the Executive Estates project dated December 15, 2011, a copy of which is attached hereto as Exhibit A(the"Punchlist"). The Parties agree that Items 3, 5, 6, and 9 of the Punchlist constitute a full and complete list of all of the construction work that remains to be completed on the Executive Estates development under the Development Contract. 3. Payment for Turnoff from Trunk Highway 3. Within 30 days after Roundbank acquires ownership in fee simple of the Executive Estates Property, Roundbank shall make a payment to the City in the amount of thirty-seven thousand and five-hundred dollars ($37,500.00) as and for Castle Rock's twenty-five percent (25%) share of the cost of such turn lane. 4. Conveyance of Outlot A. Within 30 days after Roundbank's acquisition of ownership in fee simple of the Executive Estates Property, Roundbank shall convey to the City Outlot A as described in the recorded plat for the Executive Estates development. 5. Conveyance for Park Purposes. Within 30 days after Roundbank's acquisition of ownership in fee simple of the Executive Estates Property, Roundbank shall convey to the City for park purposes Lots 1, 2, 3, 4, 5, and 6 of Block 5 and Lots 8, 29, and 30 of Block 6, all as described in the recorded plat for the Executive Estates development. 6. Condition Precedent. The Parties agree that Roundbank's acquisition of a fee simple ownership interest in the Executive Estates Property, whether throughout the bankruptcy proceedings commenced by Castle Rock,through a sheriff's sale with no redemption,or by any 3 1305209.1 other legal process or agreement, is a condition precedent to all of Roundbank's obligations under Paragraphs 2, 3, 4, and 5 of this Agreement. If Roundbank does not acquire a fee simple ownership interest in the Executive Estates Property,Roundbank shall not have any obligation to perform any of the obligations under Paragraphs 2, 3,4,and 5 of this Agreement. 7. Satisfaction of Obligations under Development Contract. Notwithstanding any prior agreement to the contrary, the Parties expressly acknowledge and agree that if Roundbank acquires ownership in fee simple of the Executive Estates Property,the performance of the obligations provided in Paragraphs 2, 3, 4, and 5 of this Agreement shall fully satisfy all outstanding obligations under the Development Contract, except for the indemnification provision in Paragraph 28A of the Development Contract and the park development fee provision in Paragraph 21 of the Development Contract, and the City shall grant the final acceptance of the Executive Estates development. The City hereby warrants and agrees that there are ne,'costs or expenses due or outstanding under Paragraph 28A of the Development Contract as of the Effective Date of this Agreement. With respect to Paragraph 21 of the Development Contract, the Parties agree that if Roundbank acquires ownership in fee simple of the Executive Estates Property, the park development fee provided thereunder shall be paid by Roundbank on a per-lot basis, at the time that a building permit is issued for each lot in the Executive Estates development. Roundbank shall not have any obligation to pay such park development fee apart from the per-lot payment described herein. Further, if Roundbank acquires ownership in fee simple of the Executive Estates Property, the City hereby waives the requirement in Paragraph 21 of the Development Contract that all park development fees shall be paid within five (5) years of approval of the final plat. The Parties agree that all park development fees collected from the Executive Estates Property shall be credited/coded for a new park to be developed in the Executive Estates development on the lots to be conveyed to the City under Paragraph 5 of this Agreement. 8. Release of Letter of Credit. Effective immediately upon the execution of this Agreement, the maximum amounts of draws allowed under the Letter of Credit shall be reduced from three-hundred and twenty thousand dollars ($320,000.00) to two-hundred thousand dollars ($200,000.00), and the City hereby releases all rights and claims that it may have under the Letter of Credit in excess of two-hundred thousand dollars ($200,000.00). If Roundbank acquires a sheriff's certificate for the Executive Estates Property following a foreclosure sale,the Parties agree to engage in additional discussions regarding a further reduction in the amount and further release of the Letter of Credit within 30 days of such sheriff's certificate. Nonetheless, effective immediately upon Roundbank's acquisition of ownership in fee simple of the Executive Estates Property and performance of the obligations provided in Paragraphs 2, 3,4, and 5 of this Agreement, the City hereby releases all rights and claims that it may have under the Letter of Credit, and the Parties agree that the Letter of Credit is hereby cancelled and is no longer valid. If Roundbank does not acquire ownership in fee simple, the Letter of Credit in the amount of two-hundred thousand dollars ($200,000.00) shall remain in effect in accordance with the terms of the Development Contract. 9. No Admission of Liability. This Agreement is intended to compromise the disputes between the parties hereto and shall not be construed as an admission of liability on the part of any party. 4 1305209.1 10. Representation and Authority.Roundbank and the City each represent that they are represented by counsel, that they have read and understand all of the terms of this Agreement, and that they have the competence and authority to execute this Agreement. 11. Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. 12. Counterparts/Electronic Signatures. This Agreement may be executed in counterparts, each of which when so executed will be deemed to be an original, but all of which when taken together shall constitute one and the same Agreement. Facsimile or any other electronic copies of signatures shall be deemed as originals. 13. Headings.,The headings in this Agreement are for convenience purposes only and do not constitute substantive terms of this Agreement. 14. Complete Agreement. This Agreement constitutes the entire agreement between Roundbank and the City. ROUNDBANK / Dated: 1-30-13 y: Mathia` Gregor Its: Vile Pageefic CITY OF FARMINGTON Dated: //X3 By: Todd L. o,Mayor By 01.".. L - David McKn. ..ii)Administrator 5 1305209.1 • PROJECT: Executive Estates 0.4 or ak% DATE: DEC 15 2011 !'x— INSPECTOR: TS/RS ITEM COMMENTS DATE OK'D Storm Sewe 1 - 12/15/2011 2 5/14/2008 3 ST 9(CB)-Seed/establish hillside to woct. Remove fabric under casting. 4 ST 2 ennui_Grade plan. 5/14/2008 5 ST 1 (MH) Grade around structure. 5/14/2008 ABOVE GROUND-- --- - - - -e e - - - - , ' 2 by City 2007). 11/2007 3 ' - 11/2007 4 - 11/2007 5 Place remaining section of bituminous trail on east side of Cambrian Way north of 225th Street. Connect to needed ped ramp. (See Item#6) 6 Place remaining concrete ped ramps on all trails and sidewalk. (2)Cantrel Way at 225th Street(East and West sides of intersection) (1)Cambrian Way at 225th Street(East side of intersection) (1)Carina Court between lots 6&7 7 11/2007 8 Install p .eet street lighting. 5/14/2008 9 Remove silt fence from established areas:Around and in Outlot A, North and East side Calhoun Court at development boundry, etc.). 5/14/2008 EXHIBIT F. 11 {Resident at 3191 225th Strcct, ctc.). You may cccd if this is acccptablc to 12/15/2011 the-owe 12 Fix luminarie on light pole on southwest comcr of 224th Strcct West and 5/15/2008 Cantrel Way, NW corner of project, etc.). 13 Straighten project street signs and stop signs. 5/14/2008 14 • --- e - - - -- 11/2007 6CL901 - M ALMA)N fa s vim'.naINo- {B �a i N 18t10Q Nf10HlY0 A M 1 1 IX X.. 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J. a w yb5 cn [- -� -1 � b _I Ills g offer/ !s Al .91,t1,00 N i °� s ./ dl« '- LZ'96£ , a a, 1pf 4 I' v M ,9L,1.00 N to I ICJ w 1 _.,—_:! a AvALEVlaewVO R ,`}y IA,'+ r .t Ov=nw,ur,an man. tel Igr, —� 1 1 I 2,I-13 -1 0 U1K111.-GTM 1 . ryi r 1 L i I J,_T J « I WM.OcLO.0oN l a LR� L c r-rn,-� tit �n an aml,. 7L�!^�J�1 j LZ'9�i r (n_ � a , j s ) ' a AVM -I IaflW, law, .�v' to a $: ' N Ay N c S 13 L G7 i nn ` r H 1 , Rlah00 9TONY0a 9S l4'6L9 I flbLcL] i A X, me-SILL-c eroU33s r , W I a •- i F- A t/l MN Mil al 1/I IS 7Nl IO r '° U) I3 16t1111s3M3Nl3O7nr1ir+3--- 1 IyI 'LJL - w �w Fa AVM INY3 a f5-Li r�l� _'�—/ 5 3 "ti r->r i e0 .r °OD N 1L_J to C, nON1 - -7 N CSI,. .,. J I1+ Ifr 1'' r [ LJ t r Riano vNiavo 1 is `�_ t E'"--11-- -1 - R py 3i I ',^ . 1 W 11 IS'9L{• �—I �fI MY` R 81 I1 I °e° 1 Al ,bZ40.00 N �I a, gq -. ''""--'/I OY `�, t 1RrmsaanamLq 1 t( s o jI 00• 91 -c-e-_p -1-� •- �5, 7(I II N e 1 I lfS--«+, 9 cxr�rouamo)c vx vw au W =1 Ili . I Q tI}si W 4 d Nat lb!, i-- I I !. Xc• ��dy!1 k b- I bb •T- � i i—iii„..•, �� �� I --y��=L ��--�--�aaTTT Ti I y_-°=M= b= "'_III `r { I M sz+o.w It_L1 r _ £ '0N AMH >Nfkll 31V1S rya, 4imuiy, City of Farmington 430 Third Street Farmington,Minnesota R`a 04 651.280.6800•Fax 651.280.6899 'A PRON www.ci.f8rmington.mnus TO: Mayor and City Council FROM: David J.McKnight,City Administrator SUBJECT: Closed Session-AFSCME Labor Negotiations DATE: February 4,2013 INTRODUCTION The City is currently in negotiations with our two AFSCME bargaining units for contracts that expired on December 31,2012. DISCUSSION State statute allows a very limited number of items that can be discussed in a closed session. Of the limited number of items,labor negotiations are included. BUDGET IMPACT None. ACTION REQUESTED Make a motion to go into closed session to discuss labor negotiations in regards to the two AFSCME contracts. Respectfully submitted, David J.McKnight City Administrator 148