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Home My WebLink AboutCity Council - 04/13/2004 AGENDA EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM TUESDAY,APRIL 13, 2004 CITY CENTER 5:00—6:25 PM, HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case, Jan Mosman, and Philip Young CITY STAFF: City Manager Scott Neal, Human Resources Manager Karen Kurt, City Attorney Ric Rosow Heritage Room II I. CLOSED SESSION (begins promptly at 5:00 p.m.) A. POTENTIAL LITIGATION B. CITY MANAGER'S PERFORMANCE REVIEW Council Clamber II. OPEN FORUM A. GEOFFREY FERSTER III. OPEN PODIUM IV. ADJOURNMENT Eden Prairie4. N1- Letters from the March 4, 2004 News Wednesday,March 03,2004 By Show decisions Echo from 2003: Last year("On fiscal sanity," Eden Prairie News, May 21, 2003) I wrote of the prerequisite for fiscal restraint in Eden Prairie City Hall with respect of planning an outdoor water complex, and the always voracious Eden Prairie School District and Board. My argument was that department advocates become the "tail that wags the dog" (taxpayers) and some active countervailing force is needed to constantly monitor fiscal sanity in the planning and decision processes. Continuous tracking: Over the year in the Eden Prairie News, patiently I have seen the various subcommittees in city hall and the school district/board emerge with new plans and commentaries which will cost tens-of-millions of dollars to be bonded and immediately be shifted in sustained direct real estate taxes to Eden Prairie residents and businesses for years. And these will be added to the increases on real estate taxes already shifted from state level decisions. Prerequisites and responsibilities: *First, at the very least prior to the upcoming $22.5 million parks referendum ("Residents will decide on parks referendum May 11," Eden Prairie News, Feb. 19, 2004) the Eden Prairie City Council should stipulate the parks department present a crystal clear accounting projection of changes in "user costs"for each service for 5 years,the organizations who will manage and maintain these various investments and services and the estimated real estate tax increase to a few "ranges of house prices and for businesses." This information should soon be available for publication in the Eden Prairie News. Such projections are part of any professional business plan and must be available for the public, as "share-holders." *Second, the Eden Prairie News, albeit understandably advocates, should soon gather the data and plans by the Eden Prairie School District and Board for the soon-to-be-announced referendum, specific rationale for the various parts of the referendum, and estimated real estate tax increase to a few "ranges of house prices and for businesses." Current economic realities: It is curious in times of major transformation at the international, domestic and local levels that public administration seems to choose to ignore basic fiscal sanity when it is only the public, residents and businesses that pay the real bills. Given the pressure on competitiveness it is essential to not pass extra costs and burdens to businesses. Rational voters, residents and businesses will want to make informed choices—and with these two upcoming referenda they are entitled to know the implications to their taxes and "user charges." It is high time public administration forgets the well- worn "divide and rule strategy." We seek responsible leadership who will provide real straight talk and show the real costs of decisions and referenda to the voting public.This is not rocket science; it is appropriate governance. Geoffrey Ferster Eden Prairie AGENDA EDEN PRAIRIE CITY COUNCIL TUESDAY,APRIL 13,2004 7:00 PM,CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case,Jan Mosman, and Philip Young CITY STAFF: City Manager Scott Neal,Parks &Recreation Director Bob Lambert,Public Works Director Eugene Dietz, City Planner Michael Franzen,City Attorney Ric Rosow and Council Recorder Carol Pelzel I. ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS V. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,MARCH 23,2004 (p.1) B. CITY COUNCIL MEETING HELD TUESDAY,MARCH 23,2004 (p.3) VI. CONSENT CALENDAR A. CLERK'S LICENSE LIST (p.19) B. COSTCO WHOLESALE by Costco Wholesale. Approval of Development Agreement. Location: 12005 Technology Drive. (p.20) C. ADOPT RESOLUTION APPROVING FINAL PLAT OF MEADOWCROFT (p.42) D. ADOPT RESOLUTION APPROVING APPOINTMENT OF ELECTION JUDGES FOR MAY 11,2004 REFERENDUM (p.45) E. ADOPT RESOLUTION APPROVING LEASE WITH GENERAL GROWTH PROPERTIES FOR HUMAN SERVICES SPACE (p.47) F. ADOPT RESOLUTION APPROVING CITY PARTICIPATION IN MN/DOT COMMUNITY ROADSIDE LANDSCAPING PARTNERSHIP PROGRAM(p.116) CITY COUNCIL AGENDA April 13,2004 Page 2 G. AWARD BID FOR HIGH TRAIL ESTATES PARK PLAYSTRUCTURE (p.118) H. AWARD BID FOR WILLOW PARK PLAYSTRUCTURE (p.119) I. AWARD BID FOR CITY CENTER PARKING LOT CONSTRUCTION AND PLAYGROUND SITE PREPARATION (p.120) J. AWARD BID FOR RE-ROOFING OF ROUND LAKE PARK BUILDING, PAVILION AND KIOSK (p.121) K. AWARD BID FOR CONSTRUCTION OF THE EDEN PRAIRIE CENTER HUMAN SERVICES SITE (p.122) L. AWARD CONTRACT FOR 2004 STREET STRIPING,I.C. 04-5616 (p.125) M. AWARD CONTRACT FOR 2004 STREET BITUMINOUS CRACK FILLING, I.C. 04-5615 (p.126) N. APPROVE CHANGE ORDER NO. 1 FOR BASIN REPAINTING PROJECT AT THE WATER TREATMENT PLANT,I.C. 04-5608 (p.127) O. APPROVE PARTIAL RELEASE OF LAND FROM SPECIAL ASSESSMENT AGREEMENT FOR GRAY FOX BLUFF ADDITION (p.129) P. APPROVE STATE OF MINNESOTA CUSTOM MICROSOFT ENTERPRISE ENROLLMENT CONTRACT (p.131) VII. PUBLIC HEARINGS/MEETINGS A. 2004 DNR NATURAL AND SCENIC AREA GRANT PROGRAM (p.133) B. VACATION OF RIGHT-OF-WAY FOR PART OF ALPINE TRAIL, VACATION 04-04 (Resolution) (p.135) VIII. PAYMENT OF CLAIMS (p.138) IX. ORDINANCES AND RESOLUTIONS A. RESOLUTION REGARDING POLICY OF NOT FENCING STORM WATER PONDS AND WETLANDS (p.147) B. FIRST READING OF AN ORDINANCE AMENDING CITY CODE SECTION 9.15 AND REPEALING SECTIONS 5.45 AND 9.14,RELATING TO PHOSPHORUS FERTILIZER RESTRICTIONS (p.150) CITY COUNCIL AGENDA April 13,2004 Page 3 X. PETITIONS,REQUESTS AND COMMUNICATIONS A. PEMBERTON LANDING (p.154) XI. REPORTS OF ADVISORY BOARDS&COMMISSIONS XII. APPOINTMENTS XIII. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS B. REPORT OF CITY MANAGER C. REPORT OF PARKS AND RECREATION DIRECTOR 1. Round Lake Water Quality Report (p.160) 2. Picha Property Option and Proposed Purchase Agreement (p.166) D. REPORT OF PUBLIC WORKS DIRECTOR E. REPORT OF POLICE CHIEF F. REPORT OF FIRE CHIEF G. REPORT OF CITY ATTORNEY XIV. OTHER BUSINESS XV. ADJOURNMENT UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL WORKSHOP/FORUM TUESDAY,MARCH 23,2004 CITY CENTER 5:00—6:25 PM,HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case, Jan Mosman, and Philip Young CITY STAFF: City Manager Scott Neal,Police Chief Dan Carlson,Fire Chief George Esbensen,Public Works Director Eugene Dietz,Parks and Recreation Director Bob Lambert, Communications Manager Jack Sheehan, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room II I. CALL MEETING TO ORDER II. APPROVAL OF AGENDA III. REFERENDUM COMMUNICATIONS Lambert showed a draft PowerPoint presentation that staff will be using in more than 30 presentations to the public over the next six weeks. Lambert wants Council support of the presentation and encouraged them to make comments and suggestions, either during the meeting itself or afterward. Lambert noted that any changes to the presentation need to be made soon since presentations to the public will begin soon. Council praised the presentation. Tyra-Lukens asked if the label on the zero depth kids' pool could be changed to not say"Zero Fun Pool." She also asked about the construction schedule for the aquatic center and community center. Lambert said if the referendum passes,both should be complete by the summer of 2006. Tyra-Lukens asked if staff has income projections for the aquatic center, since there are likely to be questions from the public on this. Lambert said the precise level of income would depend on the final design of the project. He said any final plan will be designed to generate enough income to cover operating costs and reinvest in periodic improvements. Lambert specifically requested input from Council on the single-question portion of the presentation. Tyra-Lukens noted that the brochure approaches the issue a little differently than the PowerPoint presentation. She feels the two messages should be made consistent. Rosow supported the language used in the brochure, stating that the use of the single-question ballot was a policy decision by the Council. Council Workshop Minutes March 23,2004 Page 2 Lambert said Council is welcome and encouraged to attend any of the public presentations,particularly the two town meetings that will be held at City Center on April 1 and April 22. Neal said all of these presentations will be posted as open meetings in case more three or more Councilmembers are in attendance at one time. Sheehan distributed color copies of a brochure that will be mailed to all households in Eden Prairie. He said a removable sticker reminding people of the date of the referendum will be included in the mailer, as well as a letter from the Mayor. To reduce costs, the mailer is being produced in two colors rather than four colors. Approximate cost to produce and distribute the mailer will be: $5,400 -printing $3,016 -mailing $300 -design Butcher questioned the use of a skateboard park picture on the mailer since upgrading the skateboard park is not part of the referendum. Sheehan said he would replace the photo. Mosman said she would like to see a picture of a dog on a leash. Case noted that many of the photos are sports-related. He suggested adding some nature-related photos. Mosman asked if Rosow could address the question of what Councilmembers can or cannot say in support of the referendum. Rosow said he has drafted a memo that he will distribute to Council. He said, as citizens, Council has the right to free speech. As individuals they can say they plan to vote for the referendum and they hope others will too. In other words, they are free to state their personal opinions on the referendum. Rosow said the City cannot organize events for the purpose of telling people to vote for the referendum,but they can hold meetings for the purpose of informing citizens. IV. OTHER TOPICS Council Chamber V. OPEN FORUM No one requested to speak at Open Forum. VI. OPEN PODIUM No one requested to speak at Open Podium. VII. ADJOURNMENT V. 4 UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,MARCH 23,2004 7:00 P.M.,CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Sherry Butcher,Ron Case, Jan Mosman and Philip Young CITY COUNCIL STAFF: City Manager Scott Neal,Parks &Recreation Director Bob Lambert,Public Works Director Eugene Dietz, City Planner Michael Franzen, City Attorney Ric Rosow and Council Recorder Carol Pelzel I. ROLL CALL/CALL THE MEETING TO ORDER Mayor Tyra-Lukens called the meeting to order at 7:00 p.m. All members were present. Mayor Tyra-Lukens reported that she had received a telephone call from Hennepin County informing her that Hennepin County will begin construction of a Hennepin County Service Center at the old library site in Eden Prairie. They anticipate this facility ready for operation in October with the scheduled opening date for the new library in July. Mayor Tyra-Lukens expressed her appreciation to some unknown people in the community that she observed walking around Starring Lake and picking up trash. She indicated that it is nice to see citizens taking the initiative to clean up the park. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION Mayor Tyra-Lukens announced that the City Council provides an Open Forum opportunity for Eden Prairie citizens to address the Council on issues related to Eden Prairie city government on the first and third Tuesday of each month from 6:30-6:50 p.m. in the Council Chambers immediately prior to the start of the City Council's regularly scheduled meetings. Open Forum is reserved for scheduled participants. If you wish to speak to the Council during Open Forum,please contact Ms. Lorene McWaters in the City Manager's office by calling 952.949.8412 by noon of the meeting date with your name and the subject matter you wish to address. She said the Council also provides an impromptu,unscheduled Open Podium opportunity for citizens to address the Council concerning issues related to Eden Prairie city government from 6:50 to 7:00 p.m. immediately following Open Forum. Open Forum and Open Podium are not recorded or televised. The City Council reserves the right to adjust the time allocations for Open Forum and Open Podium. If you have questions CITY COUNCIL MINUTES March 23, 2004 Page 2 about the process or procedures of Open Forum and Open Podium,please contact the City Manager's office. IV. PROCLAMATION OF APRIL AS CHILD ABUSE PREVENTION MONTH On behalf of the City of Eden Prairie,Mayor Tyra-Lukens proclaimed April as Child Abuse Prevention Month in Eden Prairie. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Mosman asked that an item be added under XIII A.. Reports of Councilmembers concerning pedestrians versus cars in intersections. Neal asked that an item regarding comments on the BFI permit be added under XIII.B. Report of City Manager. Motion: Butcher moved, seconded by Case,to approve the agenda as published and amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,MARCH 9,2004 MOTION: Young moved, seconded by Mosman, to approve as published,the minutes of the City Council Workshop held March 9,2004. Motion carried 5-0. B. CITY COUNCIL MEETING HELD TUESDAY,MARCH 9,2004 MOTION: Case moved, seconded by Mosman,to approve as published,the minutes of the City Council meeting held March 9,2004. Motion carried 5-0. VII. CONSENT CALENDAR A. CLERK'S LICENSE LIST B. VIKING COLLECTIONS PARKING by Kloeckner Limited Partnership. 2nd Reading for Planned Unit Development District Review with waivers on 4.42 acres, Zoning District Amendment in the Office Zoning District on 4.42 acres, and Site Plan Review on 4.42 acres. Location: 7500 Office Ridge Circle and 7544 Market Place Drive. (Ordinance No. 10-2004-PUD-8-2004 for PUD District Review,Zoning District Amendment,Resolution No. 2004-41 for Site Plan Review) C. HENNEPIN VILLAGE SITE C AND D REZONING by Pemtom Land Company. 2nd Reading for Planned Unit Development District Review on 11.99 acres, Zoning District Change from R1-9.5 to RM 6.5 on 11.99 acres, and Site Plan Review on 11.99 acres. Location: North of Highway 212,east of Spring 4 CITY COUNCIL MINUTES March 23, 2004 Page 3 Road. (Ordinance No. 6-2004-PUD-4-2004 for PUD District Review,Zoning District Change, and Resolution No.2004-42 for Site Plan Review) D. MICRO EAR TECHNOLOGY by Gavic Construction Corporation. 2nd Reading for Planned Unit Development District Review on 35.55 acres,Zoning District Amendment within the I-5 and 1-2 Zoning Districts on 35.55 acres,and Site Plan Review on 11.21 acres. Location: 6426 Flying Cloud Drive. (Ordinance No. 8-2004-PUD-6-2004 for PUD District Review,Zoning District Amendment, and Resolution No.2004-43 for Site Plan Review) E. LAMETTRY TIRE SHOP by Richard LaMettry.2nd Reading for Planned Unit Development District Review with waivers on 1.22 acres, Zoning District Change from Rural to Commercial Regional Service on 1.22 acres, and Site Plan Review on 1.22 acres. Location: East of Plaza Drive,west of I-494. (Ordinance No.9- 2004-PUD-7-2004 for PUD District Review,Zoning District Change, and Resolution No.2004-44 for Site Plan Review) F. APPROVE SECOND READING OF AN ORDINANCE NO.5-2004 AMENDING CITY CODE SECTION 2.82,RELATING TO PERSONNEL RULES AND REGULATIONS G. ADOPT RESOLUTION NO. 2004-45 APPROVING TRAFFIC CONTROL SIGNAL AGREEMENT FOR TRAFFIC SIGNALS ON CSAH 62 AT BAKER ROAD, CSAH 62 AT 1-494 WEST RAMPS,TH 62 AT 1-494 EAST RAMPS AND TH 62 AT CLEARWATER DRIVE/BEACH ROAD,I.C. 02- 5553 H. ADOPT RESOLUTION NO. 2004-46 APPROVING HENNEPIN COUNTY HAZARD MITIGATION PLAN I. ADOPT RESOLUTION NO. 2004-47 AUTHORIZING ACQUISITION OF EASEMENTS AND RIGHT-OF-WAY FOR TH 212/PRAIRIE CENTER DRIVE IMPROVEMENTS,I.C. 015527 J. ADOPT RESOLUTION NO. 2004-48 FOR SUBMITTAL OF APPLICATION FOR 2004 DNR NATURAL AND SCENIC AREA GRANT PROGRAM K. AWARD CONTRACT FOR STREET SWEEPING TO RELIAKOR SERVICES,I.C. 04-5613 L. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH TKDA FOR WATER FILL STATION AT THE WATER TREATMENT PLANT M. APPROVE CHANGE ORDER NO. 1 FOR TH212/VALLEY VIEW ROAD INTERCHANGE AREA IMPROVEMENT PROJECT,I.C. 01-5543 .- CITY COUNCIL MINUTES March 23, 2004 Page 4 N. APPROVE CHANGE ORDER NO. 1 FOR PRAIRIE CENTER DRIVE/PRAIRIE LAKES DRIVE TRAFFIC SIGNAL PROJECT,I.C. 95- 5372 MOTION: Young moved, seconded by Mosman,to approve Items A-N of the Consent Calendar. Motion carried,5-0. VII. PUBLIC HEARINGS/MEETINGS A. ORDINANCE AMENDING CITY CODE SECTION 11.70 RELATING TO SIGN PERMITS (First Reading of the Ordinance) City Manager Scott Neal reported that official notice of this public hearing was published in the March 11, 2004,Eden Prairie Sun Current. The Community Planning Board did review this Code change on March 22, 2004.Neal explained that the Code is being revised because it does not include a definition regarding non-commercial speech. Signs containing non-commercial speech are allowed in any district, subject to size,height and setbacks of the district they are located in. Also, the Code is being changed to clarify the difference between commercial and non-commercial speech. Commercial speech is related to a business, commodity, service, or entertainment.Non-commercial speech is the dissemination of messages not classified as commercial speech,which include,but are not limited to, messages concerning political,religious, social, ideological,public service and informational topics.Neal further explained that the amended Code would clarify the regulations applicable to commercial and non-commercial speech.Neal indicated that this is the first reading of this ordinance. Later this evening the Council will be asked to approve the second reading. In order to approve an ordinance in one evening, a unanimous vote of the Council is required. City Attorney Ric Rosow explained that he reviewed the sign regulations in the City Code and essentially compared those regulations to the provisions of the State Statute and case law.Non-commercial speech is highly protected under the First Amendment. The City Code did not specifically address non-commercial speech. Rosow said he felt it was appropriate to bring the Code more in line with State law and the proposed Code amendments more accurately mirror the language of State law. Young questioned the proposed amendment to Section 2H. He stated that it presumes that all signs involving non-commercial speech would be political signs yet the definition is broader than that.He said the Code as proposed limits non- commercial speech from the August 1 date until ten days following a general election. Rosow explained that there is a special provision relating to all signs any size. The regulations on non-commercial speech are addressed in Section 4. Section 2H allows political signs and is applicable to all non-commercial speech during a specified time while Section 4 relates to signs throughout the year. CITY COUNCIL MINUTES March 23,2004 Page 5 Patricia Pidcock, 8379 Red Rock Road,questioned if directional signs and open house signs were considered commercial speech.Rosow responded that they are a form of commercial speech but are regulated by specific provisions in the Code and are allowed.Pidcock asked if those signs are allowed to be up all of the time or if they are suppose to be removed.Rosow explained that they are to be removed after the event has occurred. There is no time limit on non-commercial speech.In response to a question from Mayor Tyra-Lukens,Rosow explained that regulations for directional signs or open house signs would not be changed by this proposed Code amendment. Motion: Butcher moved, seconded by Case,to close the public hearing and to approve the first reading of the Ordinance to amend Section 11.70 to include definitions for both commercial and non-commercial speech related to signs posted within the City of Eden Prairie and to set forth which regulations in Section 11.70 are applicable to signs containing non-commercial speech. Motion carried,5-0. B. SCENIC HEIGHTS APARTMENTS Comprehensive Guide Plan Change from Low Density Residential to Medium Density Residential on.62 acres,Planned Unit Development Concept Review on.97 acres,Planned Unit Development District Review with waivers on.97 acres,Zoning District Change from Rural to R1-13.5 on .35 acres and from Rural to RM-6.5 on .62 acres, Site Plan Review on.62 acres, and Preliminary Plat of.97 acres into 2 lots and road right-of-way.Location: Red Rock Road and Scenic Heights Road. (Resolution No.2004-49 for Comprehensive Guide Plan Change,Resolution No. 2004-50 for PUD Concept Review, Ordinance for PUD District Review and Zoning Change,and Resolution No.2004-51 for Preliminary Plat) City Manager Scott Neal reported that official notice of this public hearing was published in the March 11,2004,Eden Prairie Sun Current and was mailed to 47 property owners. This project is to create two lots. One is for a single-family home and the other is for the existing apartment building.A guide plan change from low density residential to medium density residential and planned unit development waivers for density and parking are required. This project was first reviewed at an informational meeting in November 2003. The Board concluded that the creation of a single-family lot was acceptable provided the existing multiple building could not be expanded for additional units. Staff suggested the RM-6.5 zoning district with waivers to allow the existing building to remain,with provisions to preclude additional units in the future. At the February 23,2004 meeting the Community Planning Board voted 7-0 to recommend approval of the project to the City Council, including the waiver for density and parking based on the condition to maintain the character of the site as it exists today, for not enlarging the building, adding units,or adding garages. Duane Pidcock, 8370 Red Rock Road, explained that they are requesting the rezoning to protect the return of their investment should the building be destroyed by fire or a natural disaster. This change would allow them to rebuild. CITY COUNCIL MINUTES March 23,2004 Page 6 Case said this request does make sense. He asked if the building were destroyed and reconstructed on the identical footprint,would the owner have to get any additional City approval. City Planner Michael Franzen responded that if there were significant enough changes it would have to be brought before the Planning Board and City Council. If the applicant proposed a reconfiguration of the building,he would have to have a building permit. There is language in the Development Agreement that limits what the applicant can or cannot do. Mosman asked if these waivers remain with the property should it be sold to someone else. Franzen explained that if the property is sold and remains as it currently exists,the waivers will be enforced based on the plans approved by the City Council. Should they modify the building, the new owner will have to go through the process to reapply for the waivers. The waivers were granted based on keeping the building the way it is on the same footprint. Motion: Young moved and Mosman seconded,to close the public hearing; adopt the Resolution for Guide Plan Change from Low Density Residential to Medium Density Residential on .62 acres; adopt the Resolution for Planned Unit Development Concept Review on.97 acres; approve first reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Rural to R1-13.5 on.35 acres and from Rural to RM-6.5 on.62 acres; adopt the Resolution for Preliminary Plat on .97 acres into two lots; and, direct Staff to prepare a Development Agreement incorporating Staff and Board recommendations and Council conditions. Motion carried 5-0. B. PEMBERTON LANDING by Minnstar Builders,Inc. Request for Comprehensive Guide Plan Change from Low Density Residential to Medium Density Residential on 17.29 acres,Planned Unit Development Concept Review on 21.66 acres,Planned Unit Development District Review with waivers on 21.66 acres, Zoning District Change from R1-22 to RM-6.5 on 17.29 acres, Site Plan Review on 17.29 acres, and Preliminary Plat of 21.66 acres into 32 lots, 1 outlot, and road right-of-way. Location: South of Pioneer Trail, north of Hilltop Road, west of Eden Prairie Road. (Resolution for Comprehensive Guide Plan Change, Resolution for PUD Concept Review, Ordinance for PUD District Review and Zoning Change, and Resolution for Preliminary Plat) City Manager Scott Neal reported that official notice of this public hearing was published in the March 11, 2004,Eden Prairie Sun Current and sent to 119 property owners. He explained that this project is for 129 townhouse units. A guide plan change from Low Density Residential to Medium Density Residential is required. Planned unit development waivers are required for density and setbacks. This project was first reviewed at an informational meeting with the Community Planning Board on January 26, 2004. The Board identified issues with changing the guide plan,project density,proposed waivers,transitions and buffering, drainage, open space,walkways and play areas. The project was reviewed at a public hearing on February 22,2004. The Community Planning Board voted 7-0 to recommend denial of the project for the following reasons. CITY COUNCIL MINUTES March 23, 2004 Page 7 1. The proposal is inconsistent with the Comprehensive Guide Plan. 2. The PUD waivers have not been substantiated. 3. Inadequate transition between land uses. 4. High tree loss. 5. No public road connection to Hilltop Road. City Planner Mike Franzen explained that the City Planning Board discussed three options for this project; approval, continuance or denial. The continuing option was offered to the applicant to allow them time to realign their project and to discuss further with the neighborhood. The developer decided not to work with the Community Planning Board in changing their plan but to go directly to the City Council. Franzen indicated that included with the Staff report was information on three other developments similar to what Minnstar is proposing. The City Council and Planning Board did find these projects appropriate for an established neighborhood. Timothy Bohlman,representative of Minnstar Builders, Inc., explained that the Staff report provided to the City Council talks entirely about the plans submitted to the Planning Board over a month ago. It does not in anyway discuss the plans that are before the City Council this evening and does not mention the changes that have been made to the plan as a result of that hearing. He explained that this project cannot be like the three other projects referred to in the Staff report. The developer cannot purchase six homes and afford to put in three units per acre. Also,Bohlman said he was not sure what was originally on the sites that the projects referred to are now located. He said he was sure those sites did not contain single-family residential homes nor were they located on Pioneer Trail or across the street from the largest church in the State. Bohlman stated that not only is a three unit per acre development not financially feasible,but other developers have looked at this site for single-family and twin homes and have been unable to come up with a workable plan. Bohlman displayed the various plans that were reviewed for this site. He stated that the original concept plan contained 104 units and was found to be acceptable subject to approvals. The second concept plan included a second entrance off of Pioneer Trail and they tried to incorporate the back yards of the residents on Hilltop Road into this plan with similar density. This plan would also work with approval. Bohlman stated that when they submitted their initial application to the City they were told that the highest density zoning class that could be supported for this site was RM-6.5. The maximum density is 6.7 units per acre. At that time their plan was for 7.4 units per acre and would require a waver for density. This plan was presented to the Planning Board at an informational meeting in January. Feedback was received at that meeting and minor changes were made to the plan at that time. Bohlman said they were not aware of the three units per acre maximum until the actual Planning Board meeting on February 23. He asked what the City feels comfortable with for the density of this site. If this requirement had been part of the framework they would not be before the City Council this evening. Bohlman stated that this is a good project and an asset to the City and neighborhood. 9 CITY COUNCIL MINUTES March 23, 2004 Page 8 Bohlman reviewed with the Council the reasons why this plan should be approved. The change they are asking for to the Comprehensive Plan is appropriate. They are proposing to reduce the number of units and are changing the actual type of units, therefore, the PUD waivers are substantiated. With regard to transition,Bohlman explained that their original plan before the Planning Board included buildings and units that did not create a transition from the higher density to the existing single-family neighborhood. They have now addressed that issue and completely reconfigured both types of buildings and have designed entirely new units. They are now proposing three eight-unit buildings and three six-unit buildings with the remaining buildings on the north end of the property. These units now have a different look and feel. Bohlman displayed a drawing of the proposed buildings indicating that they look no different from a single-family home in Eden Prairie. These improvements were done to enhance the transition of the density. The buildings on the south edge of the property have been redesigned with internal units being ramblers rather than two-story as they were previously presented to the Planning Board. The homeowners on Hilltop Road will no longer be looking at three-story buildings but will be looking at ramblers. Bohlman said the Planning Board was concerned with the high tree loss. He indicated that there is very little they can do about that,however, considering the number of trees that exist on this property, the percentage of the trees to be lost is high. There are not that many trees out there. They do have a landscaping plan developed for this site and in exchange for the trees they are removing they will be replaced with trees that are substantial in size. The Planning Board also expressed concern with no public road connection to Hilltop Road. Bohlman explained that they did not include a road because they did not own the property. Since the Planning Board meeting they did acquire the necessary property for a road connection on Hilltop Road. The original street and traffic patterns proposed were on Pioneer Trail. The City preferred one entrance on Pioneer Trail. Bohlman said they feel the best layout would be to have all access at Gateway with a right in and right out at Gould. Because City staff wanted access at Hilltop they made arrangements to do so. There are now three options for access to this development. With regard to a compelling reason for a Comprehensive Plan change on this property,Bohlman said this land does not have any of the natural features you think of when you think of preserving natural features or dedicating open space. There are no wetlands on this site,no ponds or rare plants and animals, etc. This is a good location for a neighborhood as proposed. Bohlman stated that this proposal brings its own compelling reason for approving a Comprehensive Plan change in that what they are proposing will be better than what is there now and will bring those beautifications to the land that it doesn't currently have. This project will provide nice curbed streets, open area and clean space. The site will eventually have far more trees than it does today. CITY COUNCIL MINUTES March 23,2004 Page 9 Bohlman said he sees the Council having two options in front of them for consideration. They can keep the neighborhood as it is or they can do something new, current and better. To restrict this site to three units per acre is a myth. Franzen explained that the public hearing for this item was advertised on March 11 and that notice was based upon a 129-unit plan.At the time of publication, Staff was not aware that there was a plan with fewer units.The Planning Board reviewed a 129-unit plan,not a plan with 110-units.Franzen said Staff did ask the developer on several occasions that they go before the Planning Board for an informational meeting. Staff encourages developers to not spend time and money on detailed plans for an informational meeting with the Planning Board.Had this developer met with the Planning Board for an informational meeting they would not be at this point.Franzen explained that a Planning Board informational meeting was eventually held in January and a feasible recommendation was not made at that meeting. The Planning Board was surprised that the plan came back with only minor changes. Caryl Hansen, 16200 Hilltop Road,said her property adjoins the proposed project. She asked that someone with authority from the City state that there is no Phase II and that the exercise of eminent domain will not occur. Franzen responded that eminent domain is ultimately the City Council's decision. Eminent domain has been used to acquire right-of-way for sewer and water easements,however,the City has not previously used eminent domain to tear down property or to redevelop neighborhoods. Franzen further explained that the transition between one land use and another has to occur within the project boundaries and not on someone else's property. Hansen said she feels the developer has done a good redesign to satisfy the City. Traffic is a problem but that comes with development and she urged the Council to allow this project to proceed. John Hansen, 16200 Hilltop Road, said he is a landowner wanting to sell part of his property to the developer of the proposed project. They have been working on this • proposal for three years. Hansen said he is in favor of this development. This has been a long process and all of the landowners wanting to sell to the developer are in limbo.Because of the conceptual use plan referred to as Phase II,people are assuming that they will lose their homes down to Valley Road. Staff has confirmed that there is no Phase II. The City has no plans to use eminent domain to acquire these properties. Roxann Johnson, 9009 Sutton Drive, stated that she is representing the South Park neighborhood and since the January 26 Planning Board meeting she sees no positive change or impact on the development in their neighborhood. Traffic is their main issue and the direct result of density will have an impact on their neighborhood. This development will only compound the existing traffic issues of speed and noise. Construction will impact Pioneer Trail and Eden Prairie Road and there will be an increased risk to those people using the senior center and park located behind this site. There will also be increased danger and risk to the children in the neighborhood because of this increased traffic.Johnson pointed out that there // CITY COUNCIL MINUTES March 23, 2004 Page 10 is only one access to Sutton Drive and she wants to be assured that they can get in and out of their neighborhoods. The changes to the plan presented this evening are not significant and she fails to see the integrity of good faith in this development. Johnson said she respectfully urges the Council to follow the recommendation of the Planning Board and to deny this request. Kari Totall, 16176 Hilltop Road, said she opposes this development,which would be in her back yard. They looked at the Comprehensive Plan before they built their home and were convinced that City looked at their plan seriously and rarely, if ever, changed it. Totall pointed out the Planning Board made several recommendations to the developer at the informational meeting and moved forward without taking their recommendations into consideration. There were no changes in density or transition and there was no meeting held with the neighbors. Totall said the neighborhood has not seen the plans presented to the Council until this evening and were never once contacted by the developer regarding this project. Totall stated that she has received hundreds of signatures from residents against rezoning of this area. There needs to be a compelling reason to change the guide plan. It appears that the developer does not want to work with the neighborhood. Totall asked that the Council deny this project and indicated that there are other developers that are interested in looking at this property for single-family homes. John Deminico, 16100 Hilltop Road, explained that the previous plan presented had some trees as the transition material between the medium density area and the units in which they live and were determined to be insufficient. Deminico said they reviewed some plans that did not include the landscaping drawings presented this evening. He asked why transition material such as berms used by other developers was not used in this proposal. Deminico said another issue he has with this proposal is that his property is located adjacent to the new proposed road added to Hilltop. This road would severely impact his ability to enter and exit his driveway. Dick Perkins, 16351 Pioneer Trail,presented photos of his property on Pioneer Trail and explained that traffic has increased tremendously and has done so all over the metro area. He further explained that adding 121 units to the area would not impact the traffic any more than the thousands of homes added around this area in the last ten years. Perkins said that it is not economically feasible for the developer to purchase this property and only build two homes on it. There currently are multi- family homes adjacent to single-family homes in this area and it does not make sense to build single-family homes backing up to a church and commercial property. Perkins said he feels the developer's new plan creates a good transition to the single-family neighborhood. Perkins asked that the Council consider this development as a good use for this area and that it is a good time for it to happen. Jacob Meyer explained that he is the son of Larry Meyer who owns the land west of the area being developed that does not have an address. Meyer said he wanted to make sure that there are no assessments for sewer and water on this particular property.He also questioned the drainage and grading for this development and how it might affect his father's property. Public Works Director Eugene Dietz CITY COUNCIL MINUTES March 23, 2004 Page 11 responded that there are some details in the grading plan that need to be solved should this development be approved. The City will do its best to make sure that the drainage works. The developer would pay for the cost for sewer and water and there would be no assessments to the surrounding property owners. Meyer asked if the City intends to run sewer and water to the surrounding properties. Dietz said to his knowledge,there is nothing proposed off-site and nothing proposed on Hilltop West at this point. John Howe, 16380 Valley Road, explained that the current residents of this area relied on the Comprehensive Guide Plan when they purchased their property. They need to be able to trust the City and City services are based on the current Guide Plan. Howe said that representatives of the Metropolitan Airports Commission and Met Council stated that increased density in the area surrounding Flying Cloud Airport is undesirable. Howe further stated that this request is in conflict with the City's zoning regulations. Also,the proposed density creates environmental issues. John Hamel, 16260 Valley Road,presented a plan that showed one-third acre sized lots.He stated that the homes on Pioneer Trail appear to be in very good condition. Hamel said he has met with a developer and said a plan for single-family homes was feasible and the price of the land being offered to the property owners is consistent with landowners in this area. Dawn Stover, 16291 Hilltop, said she is opposed to this project and this proposed plan has already caused detrimental affects. There is no transition to the single- family neighborhood and the developer is proposing to remove over 100 trees. This proposal will affect the integrity of the neighborhood. The neighbors are not fearful of eminent domain but feel that their children will be put in danger by the additional traffic that will be generated by this project. Stover stated that their neighborhood is a village within the City and this is being jeopardized by the proposed plan. Jeff Simon, 8900 Bradford Place, explained that he is representing the Boulder Point Townhome Association and they are opposed to this project. Their major concern is that the density is not consistent with the character of the neighborhood. They are also concerned with the additional traffic this project will create. Scott Brau, 16201 Pioneer Trail, stated that he is one of the landowners wanting to sell to the developer. Brau explained that he tried to get sewer and water before he built his home and City staff indicated that a developer would probably drive this. Small developers were not able to help them. Brau said he does not see traffic as being an Eden Prairie problem. In 2005 Pioneer Trail will be four-lanes to the west and it would be nice to get Pemberton in prior to that. Brau said he feels they have chosen a good developer for their properties and Eden Prairie would benefit from having a development like this in the area. Scott Fiedler, 16150 Hilltop, said he wanted to address the traffic issue. The City may have made mistakes in adding to the traffic problems. They allowed Grace Church,ballfields at Flying Cloud and developments to the north and to the west. /3 CITY COUNCIL MINUTES March 23, 2004 Page 12 All of these projects have contributed to the traffic problems. The proposed development will only be a small portion of this traffic. This project needs to be put into perspective,particularly when considering the amount of traffic generated by Grace Church. Fiedler pointed out that Ron Clark is the only developer who has come forward with a plan and money. Susan Howe, 16380 Valley Road, said that other plans did not require getting rid of some of the older homes and other developers have never gotten all 17 acres together to make it more feasible. Howe stated that a developer said there is nothing special about this property,however,it is apparent that the neighborhood itself is pretty special. Howe said she feels the main problem with this development is the way the developer handled it. The neighborhood was never consulted and the neighbors know that this area will be developed with the main question being how dense the development will be. Motion: Case moved, seconded by Butcher, to close the hearing. Motion carried 5-0. Young asked if general discussion regarding this project involved only properties abutting Pioneer Trail. Franzen responded that Staff identified what they thought the issues of this project were and one of those issues was the difference between the density of this project and the adjoining neighborhood. Staff did discuss with the developer the importance of having an informational meeting. The City does not require such a meeting but it is strongly recommended. The developer elected not to conduct a neighborhood meeting. Young said Staff has indicated that informational meetings allow them to find out how a neighborhood feels. Young asked how they define neighborhood. Franzen explained that the City is required by State Statute to send notices to all property owners within 500 feet of the proposed development. Butcher said she is uncomfortable with the way the developer presented this proposal this evening. There appears to be gaps in the process and Butcher said she feels the developer was not forthright about how this proposal changed. Some of the neighbors have lost faith and trust in this developer. Animosity is not a desirable way to begin a project. Butcher said she feels that when you have an in-fill project an informational meeting is essential. The more information you have, expectations can be managed and everybody can say what they like and a project may become workable. Butcher said it is important to have a more compatible plan and she questioned if it is feasible to have a plan in this area that could support what the City's Comprehensive Guide Plan suggestions. Franzen pointed out that the City has not seen a redevelopment plan from any developer with 2.5 units per acre for single or multiple family homes. The only proposal they have seen is the one submitted by Minnstar. Butcher explained that there might be future proposals submitted to the City. Landowners do have the right to develop their land,however, she could not support the plan currently before the Council. The developer does have the option of working with the landowners and neighbors to find something that is more compatible and to follow the process. /4 CITY COUNCIL MINUTES March 23,2004 Page 13 Mosman said she agrees with Butcher regarding the process followed by the developer. It too makes her uncomfortable. Mosman said she did ask the City Manager if it would be possible to send this proposal back to the developer and ask that they go through the proper channels and that they work with the neighbors to see if they could get more of a consensus. The City Manager did indicate that there is time to do that. Mosman explained that this is a busy area and there are driveways on Pioneer Trail and it will become a major road whether there are houses built or not. However,this plan brings six driveways onto Pioneer Trail down to one. Mosman said she would be in favor of having a continuance of this project should the developer choose to do so. Case pointed out that the options of the sellers will expire and the developer's integrity is complicated and problematic. There will be other projects that will be before this Council and Case said he believes the Council needs to be more prepared to think through some of the issues that have been presented this evening so as redevelopment projects come forth they will better know what to accept for redevelopment projects. Case said he does believe that future projects will involve higher densities. The Council needs to show some forethought and Case suggested the Council have a workshop to work through their thoughts on this issue. He said that he personally agrees that when the Council does an in-fill of redevelopment they should not impact the current neighborhoods. He stated that he is opposed to having a road go through Hilltop and does not understand why this is necessary. Case explained that as a Council,they need to discuss when they would be comfortable with rezoning for higher densities. As a City, they have economic hard times before them and they need to determine if they want higher taxes or if they want higher densities. Case said he is not opposed to this site being townhouses, however, it is not pre-guided for townhouses. The Council has changed the Guide Plan with great care when they felt it was necessary. The Council needs to be cautious when they can to raise the City's tax base. Case said that this evening he is unable to come up with a compelling reason to change the zoning for this project. This is a big issue that the Council has to rework for themselves. The Council needs to develop a plan so that they are not dealing on a case-by-case basis. Young said this is a hard issue in a number of respects. It is clear that for the future of the City redevelopment is right. Redevelopment does not have to have the same density and they will be faced with increased densities and part of this neighborhood is a prime candidate for that. If this project is denied,this area will be back for redevelopment. Young pointed out that several comments have been made about the developer not following procedures. It appears that the developer did satisfy all of the required procedures. Young said he does have reservations about this project. With regard to transition issues,he questioned how they define neighborhood and questioned if there is an appropriate transition.Young said he did not see a transition that he was comfortable with. He also stated that he has concerns about approving this project because of the homes on the north side. Young explained that the developer did address a number of issues but the transition issue was never met. CITY COUNCIL MINUTES March 23,2004 Page 14 Mayor Tyra-Lukens said she sees the main issues of this project being a change to the Comprehensive Guide Plan and the transition issue. She stated that she rarely votes in favor of a Comprehensive Guide Plan change unless there is a compelling reason to do so. Part of the issue might be maintaining scenic property but she cannot find a compelling reason for the change.Mayor Tyra-Lukens said this is a beautiful development but that is not the issue. The issue is the pledge that was made to the community through the Comprehensive Guide Plan.Development of this project will be problematic.Mayor Tyra-Lukens pointed out that it is important that the transition to single-family homes on Hilltop occur on this site and not at the expense of the neighbors on the north side of Hilltop. Transition should occur on that property whether they are single-family homes or some kind of large berm or screening to make the transition more palatable. Motion: Mosman moved, seconded by Butcher, to direct staff to prepare findings supporting denial by the City Council to be adopted at the April 13,2004 meeting. Motion carried,5-0. VIII. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Young, to approve the Payment of Claims. The motion was approved on a roll call vote,with Butcher, Case,Mosman,Young and Tyra-Lukens voting"aye". IX. ORDINANCES AND RESOLUTIONS A. ORDINANCE AMENDING CITY CODE SECTION 11.70 RELATING TO SIGN PERMITS (Second Reading of Ordinance No. 11-2004) Motion: Case moved, seconded Mosman,to approve second reading of the Ordinance to amend Section 11.70 to include definitions for both Commercial and Non-Commercial speech related to signs posted within the City of Eden Prairie and to set forth which regulations in Section 11.70 are applicable to signs containing Commercial and Non-Commercial speech.Motion carried 5-0. B. RESOLUTION REGARDING POLICY OF NOT FENCING STORM WATER PONDS AND WETLANDS This item was not considered due to lack of time at the meeting. X. PETITIONS, REQUESTS AND COMMUNICATIONS XI. REPORTS OF ADVISORY BOARDS & COMMISSIONS XII. APPOINTMENTS XIII. REPORTS OF OFFICERS l � CITY COUNCIL MINUTES March 23,2004 Page 15 A. REPORTS OF COUNCILMEMBERS 1. I-494 Corridor Funding(Resolution No. 2004-52) Mosman reported that at the most recent I-494 Corridor Coalition meeting, it was determined that member cities would seek approval of a resolution requesting stable funding for transportation be given to the State Legislators to show solidarity asking that a Transportation Joint Powers Agreement on I-494 corridor be given priority. The Resolution asks for consideration of an increase in gas tax, full allocation of Motor Vehicle Excise Taxes, dedication of 0.5 percent sales tax collected in the metropolitan area; and other steps to increase State revenues available for improvements to the I-494 corridor and other metropolitan transportation systems. Dietz further explained that there has been a list of projects that have been put to bonding and the costs for the I-494 corridor has come in higher than anticipated. There needs to be some additional funding and this Resolution is an attempt to get some of this money out of Washington D.C. These communities are lobbying to get the Legislators to deal with the shortfall. Some additional funding sources are necessary. Young said he has reservations with regard to increasing the State gas tax. These funds can be used anywhere in the State of Minnesota. They are unable to control dedication of these funds in the metro area.Neil explained that the Resolution does state that 0.5 percent of the sales tax would be dedicated to the metro area and for the I494 corridor in the metropolitan transportation system.Neil further explained that the intent is to apply this dedicated tax to the metro area and to keep that increment of gas tax in the metro area. Mayor Tyra-Lukens suggested that the Resolution be amended to read that they support the increase in State gas tax specifically dedicated for its metro projects. The Council agreed to amend the Resolution to include the phrase "specifically dedicated for metro road projects" after the words"State gas tax". Motion: Mosman moved, seconded by Butcher,to adopt a resolution as amended supporting legislation to provide improved funding for I-494 corridor improvements. Motion carried 5-0. B. REPORT OF CITY MANAGER Neil reported that the Council received comments regarding the proposed expansion of the waste processing capacity at the Flying Cloud Transfer Station. At the request of the Mayor,Neil said he met with City staff and they put together four proposed comments for the City Council to consider. Should the Council approve these comments they will be put into a more formal format and distributed to the Minnesota Pollution Control Agency as the official comment for the City of Eden Prairie with regards to the permit process. Motion: Case moved, seconded by Mosman,to direct staff to submit to the Minnesota Pollution Control Agency(MPCA)the City Council concerns as drafted by the City Manager regarding BFI's proposed expansion of the waste processing capacity at the /7 CITY COUNCIL MINUTES March 23, 2004 Page 16 Flying Cloud Transfer Station prior to the comment period deadline for the Environmental Assessment Worksheet(EAW) on March 31, 2004. Motion carried 5-0. Neil invited the City Council to the City's spring employee recognition and awards banquet on Tuesday,March 30, at 10:30 a.m. in the Council Chambers. C. REPORT OF PARKS AND RECREATION DIRECTOR 1. Round Lake Water Quality Report This item was not considered due to time. D. REPORT OF PUBLIC WORKS DIRECTOR E. REPORT OF POLICE CHIEF F. REPORT OF FIRE CHIEF G. REPORT OF CITY ATTORNEY XIV. OTHER BUSINESS A. CLOSED SESSION 1. City Manager's Performance Review 2. Potential Litigation The Closed Session was not held due to time. XV. ADJOURNMENT Mayor Tyra-Lukens said that because of the lateness of the meeting, she asked that all other items listed on the agenda be considered at a future Council meeting. The Council will deal with the items listed under Closed Session on April 13. MOTION: Mosman moved, seconded by Case, to adjourn the meeting. Motion carried 5-0. The meeting adjourned at 10:05 p.m. I � CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Police/ C.O.P.Unit Clerk's License Application List Christy Weigel V V , These licenses have been approved by the department heads responsible for the licensed activity. Gambling-Raffle Organization: Edina Chorale Place: Pax Christi Catholic Community Date: May 15, 2004 - 1 - /� CITY COUNCIL AGENDA DATE: 4/13/04 SECTION: Consent Agenda DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/Planning Scott A. Kipp Costco Wholesale VI. B. Requested Action Move to: • Approve the Development Agreement for Costco Wholesale; and • Approve and Authorize Issuance of a Grading Permit for Costco Wholesale, subject to release by the City Engineer upon determination that the final contract documents conform to plans stamp dated July 25,2003, as approved by the City Council. Synopsis This is for a 148,663 square foot Costco Wholesale,tire center and gas. Background The City Council approved the Costco Wholesale project on October 21, 2003 with an ordinance to rezone the property from Rural and I-5 to Commercial Regional Service, and including the land in Planned Unit Development PUD-16-2003-Commercial Regional Service, and a resolution approving the site plan review. These approvals are contingent upon receipt by the City of a fully-executed and acknowledged "Costco Development Agreement" no later than April 15, 2004. The ordinance and the resolution take effect no later than April 15, 2004 based on Costco delivering a fully executed and acknowledged developer agreement. This was to give the necessary assurances to Costco that the project would be approved prior to its closing on the property with Emerson Rosemount. Costco closed on the property on March 30, 2004. Attachments 1. Ordinance for PUD District Review with waivers and Zoning District Change dated October 21, 2003 2. Resolution for Site Plan Review dated October 21, 2003 3. Development Agreement dated October 21, 2003 COSTCO WHOLESALE CORPORATION CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. 29-2003-PUD-16-2003 AN ORDINANCE OF THK CITY OF EDEN PRAIRIE, MINNESOTA, REMOVING CERTAIN LAND FROM ONE ZONING DISTRICT AND PLACING IT IN ANOTHER, AMENDING THE LEGAL DESCRIPTIONS OF LAND IN EACH DISTRICT, AND, ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 11.99 WHICH,AMONG OTHER THINGS, CONTAIN PENALTY PROVISIONS THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA, ORDAINS: Section 1. That the land which is the subject of this Ordinance (hereinafter, the "land") is legally described in Exhibit A attached hereto and made a part hereof. Section 2. That action was duly initiated proposing that the land be removed from the I-5 Zoning District and be placed in the Planned Unit Development Commercial Regional Service Zoning District 29-2003-PUD-16-2003 (hereinafter "PUD-16-2003-Commercial Regional Service"). Section 3. The land shall be subject to the terms and conditions of that certain Developer's Agreement dated as of October 21, 2003, entered into between Costco Wholesale Corporation., and the City of Eden Prairie, (hereinafter "Developer's Agreement"). The Developer's Agreement contains the terms and conditions of PUD-16-2003-Commercial Regional Service, and are hereby made a part hereof. Section 4. The City Council hereby makes the following findings: A. PUD-16-2003-Commercial Regional Service is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD-16-2003-Commercial Regional Service is designed in such a manner to form a desirable and unified environment within its own boundaries. C. The exceptions to the standard requirements of Chapters 11 and 12 of the City Code that are contained in PUD-16-2003-Commercial Regional Service are justified by the design of the development described therein. D. PUD-16-2003-Commercial Regional Service is of sufficient size, composition, and arrangement that its construction, marketing, and operation are feasible as a complete unit without dependence upon any subsequent unit. Section 5. Contingent upon receipt by the City of a fully-executed and acknowledged "Costco Developer's Agreement" no later than April 15, 2004, the proposal is hereby adopted and the land shall be, and hereby is removed from the I-5 Zoning District, and placed in the Commercial Regional Service Zoning District and shall be included hereafter in the Planned Unit Development PUD-16-2003-Commercial Regional Service and the legal descriptions of land in each district referred to in City Code Section 11.03, subdivision 1, subparagraph B, shall be and are amended accordingly. Section 6. City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 11.99 entitled "Violation a Misdemeanor" are hereby adopted in their entirety by reference, as though repeated verbatim herein. Section 7. This Ordinance shall become effective from and after its passage, publication and receipt by the City of the Costco Developer's Agreement as set forth in Section 5 above. Publication shall not occur until the City has received the Costco Developer's Agreement. If the City does not receive the Costco Developer's Agreement as set forth in Section 5 above by April 15, 2004, the approvals granted herein are null and void. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 5th day of August, 2003, and finally read and adopted and ordered published in summary form as attached hereto at a regular meeting of the City Council of said City on the 21st day of October, 2003. ATTEST: Kat leen Porta, City Clerk • .1" a47/e• ayo• PUBLISHED in the Eden Prairie Sun Current on dee`7" EXHIBIT A COSTCO WHOLESALE Legal Description Before Final Plat That part of the following described parcels: The West One-half of the east One-half of the Northwest Quarter of the Northwest Quarter of Section 14,Township 116,Range 22,Hennepin, County,Minnesota. Together with: • The East One-half of the East One-half of the Northwest Quarter of the Northwest Quarter of Section 14, Township 116,Range 22,Hennepin County,Minnesota, described as follows: Commencing at the northeast corner of said East One-half of the Northwest Quarter of the Northwest Quarter; thence South 88 degrees 24 minutes 26 seconds West, assumed bearing along the north line of said East One-half of the Northwest Quarter of the Northwest Quarter, a distance of 14.50 feet; thence South 00 degrees 36 minutes 38 seconds East, a distance of 119.39 feet to a line 75 feet south of and parallel to a line described in Document Number 3087392 and to the point of beginning of the land to be described; thence continuing South 00 degrees 36 minutes 38 seconds East, a distance of 1188.49 feet to the south line of said East One-half of the Northwest Quarter of the Northwest Quarter; thence South 88 degrees 25 minutes 46 seconds West, along said south line of the East One-Half of the Northwest Quarter of the Northwest Quarter, distance of 663.30 feet to the west line of said East One-half of the Northwest Quarter of the Northwest Quarter; thence North 00 degrees 26 minutes 47 seconds West, along said west line of the East One-half to the Northwest Quarter of the Northwest Quarter, a distance of 1195.91 feet to said line 75 feet south of and parallel to a line described in Document 3087392; thence North 89 degrees 04 minutes 04 seconds east along said line 75 feet south of and parallel to a line described in Document Number 3087392 a distance of 659.78 feet to the point of beginning. Legal Description After Final Plat Lot 1,Block 1, Emerson Process Management Addition,Hennepin County,Minnesota COSTCO WHOLESALE CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2003-154 A RESOLUTION GRANTING SITE PLAN APPROVAL FOR COSTCO WHOLESALE BY COSTCO WHOLESALE 'WHEREAS, Costco Wholesale, has applied for Site Plan approval of Costco Wholesale for construction of a 148,663 square foot Costco Wholesale, tire center and gas, by an Ordinance approved by the City Council on October 21,2003; and WHEREAS, the Community Planning Board reviewed said application at a public hearing at its July 14,2003 meeting and recommended approval of said site plans; and WHEREAS, the City Council has reviewed said application at a public hearing at its August 5, 2003 meeting. NOW, THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE, that, contingent upon receipt by the City of a filly-executed and acknowledged "Costco Developer's Agreement" no later than April 15, 2004, site plan approval be granted to Costco Wholesale for Costco Wholesale, based on plans dated July 25, 2003, between Costco Wholesale, and the City of Eden Prairie. BE IT FURTHER RESOLVED THAT this Resolution shall become effective from and after its passage, publication and receipt by the City of the fully executed and acknowledged Costco Developer's Agreement. If the City does not receive the Costco Developer's Agreement as set forth above by April 15, 2004, the approval granted herein is null and void. ADOPTED by the City Council of the City of Eden Prairie this 21st day of October, 2003. yr ul Mayor AT/TEST: Othe40)61 Kathleen Porta, City Clerk • • DEVELOPMENT AGREEMENT COSTCO WHOLESALE THIS DEVELOPMENT AGREEMENT("Agreement")is entered into as of October 21,2003,by Costco Wholesale Corporation,a Washington corporation,hereinafter referred to as"Developer,"its successors and assigns, and the CITY OF EDEN PRAIRIE, a municipal corporation,hereinafter referred to as "City": WITNESSETH: WHEREAS,Developer has applied to City for Guide Plan Change from Industrial to Regional Commercial on 18.1 acres, Planned Unit Development Concept Review on 18.1 acres, Planned Unit Development District Review with waivers on 18.1 acres, Zoning District Change from I-5 to Commercial Regional Service Zoning District on 18.1 acres, and Site Plan Review on 18.1 acres, legally described on Exhibit A(the"Property"); NOW,THEREFORE,in consideration of the City adopting Resolution No. 2003-124 for Guide Plan Change, Resolution.No. 2003-125 for Planned Unit Development Concept Review, Ordinance No.29-2003-PUD-16-2003 for Planned Unit Development District Review and Zoning District Change from I-5 to Commercial Regional Service on 18.1 acres,and Resolution No.2003- 154 for Site Plan Review, Developer agrees to construct, develop and maintain the Property as follows: 1. PLANS: Developer shall develop the Property in conformance with the materials revised and stamp dated July 25, 2003, reviewed and approved by the City Council on August 5, 2003, (hereinafter the "Plans") and identified on Exhibit B, subject to such changes and modifications as provided herein. 2. EXHIBIT C: Developer agrees to the terms, covenants, agreements, and conditions set forth in Exhibit C. 3. CROSS-ACCESS: Developer agrees to provide cross-access to adjacent Lot 2,Block 1, Emerson Process Management Addition at the time of the any future development of Lot 2, Block 1,Emerson Process Management Addition. Lk—DEVELOPER'S-RESPONSIBILITY FOR CODE-VIOLATIONS:-In--the-event-of-a— -- ----- violation of City Code relating to use of the Property construction thereon or failure to fulfill an obligation imposed upon the Developer pursuant to this Agreement, City shall give 24 hour notice of such violation in order to allow a cure of such violation,provided however, City need not issue a building or occupancy permit for construction or occupancy on the Property while such a violation is continuing,unless waived by City. The existence of a violation of City Code or the failure to perform or fulfill an obligation required by this Agreement shall be determined solely and conclusively by the City Manager of the City or a designee. 5. DEVELOPER'S RESPONSIBILITY FOR ITS CONTRACTORS: Developer shall release,defend and indemnify City,its elected and appointed officials,employees and agents from and against any and all claims, demands, lawsuits, complaints, loss, costs(including attorneys' fees), damages and injunctions relating to any acts, failures to act, errors, omissions of Developer or Developer's consultants,contractors,subcontractors,suppliers and agents. Developer shall not be released from its responsibilities to release, defend and indemnify because of any inspection,review or approval by City. 6. EXTERIOR MATERIALS: Prior to building permit issuance,Developer shall submit to the City Planner,and receive the City Planner's written approval of a plan depicting exterior materials and colors to be used on the buildings on the Property. Prior to issuance of any occupancy permit for the Property, Developer shall complete implementation of the approved exterior materials and colors plan in accordance with the terms and conditions of Exhibit C, attached hereto. 7. GRADING,DRAINAGE,AND EROSION CONTROL PLANS: A. FINAL GRADING AND DRAINAGE PLAN: Developer agree that the grading and drainage plan contained in the Plans may require revision based on review by the City Engineer of the final construction documents which include a construction grading and drainage plan. Prior to the release of a land alteration permit for the Property,Developer shall submit and obtain the City Engineer's written approval of the construction grading and drainage plan for the Property. The construction grading and drainage plan shall include all wetland,wetland buffer strips,wetland buffer monument locations, water quality ponds, storm water detention areas and other items required by the application for and release of a land alteration permit.All design calculations for storm water quality and quantity together with a drainage area map shall be submitted with the final grading and drainage plan. Prior to release of the grading bond, Developer shall certify to the City that the water quality pond conforms to the final grading plan. Developer shall employ the design professional who prepared the construction grading plan.The design professional shall monitor construction for conformance to -the-approved-construction grading plan-and-City-erosion-control policy.-The-design— — -- professional shall provide a final report to the City certifying completion of the grading in conformance the approved construction grading plan and City erosion control policy. B. EROSION CONTROL PLAN: Prior to issuance of a land alteration permit, Developer shall submit to the City Engineer and obtain City Engineer's written approval of an erosion control plan for the Property. The erosion control plan shall include all boundary erosion control features,temporary stockpile locations and turf • restoration procedures: All site grading operations shall conform to the City's Erosion Control Policy labeled Exhibit D, attached hereto and made a part hereof. Prior to release of the grading bond,Developer shall complete implementation of the approved plan. Developer shall remove any sediment that accumulates in the existing and/or proposed sedimentation pond during construction. Upon request by the City, Developer shall provide preconstruction and post construction surveys for evaluation by City. 8. GRADING IN THE WOODED AREAS ON SITE: Prior to grading within any of the wooded areas on the Property, delineated on the Plans, Developer shall submit to the City Forester and receive the City Forester's written approval of a plan depicting construction grading limits on the Property. Prior to the issuance of any land alteration permit,Developer shall place a construction fence on the approved construction grading limits. Developer shall notify the City and watershed district 48 hours in advance of grading so that the construction limit fence may be field inspected and approved by the City Engineer and City Forester. Developer shall maintain the construction limit fence until written approval is granted by the City to remove the fence. 9. LANDSCAPE PLAN: Prior to building permit issuance,the Developer shall submit to the City Planner and receive the City Planner's written approval of a final landscape plan for the Property depicting a total of 852 caliper inches. The approved landscape plan shall be consistent with the quantity,type,and size of plant materials shown on the landscape plan on the Plans. Developer shall furnish to the City Planner and receive the City Planner's approval of a landscape bond equal to 150% of the cost of said improvements as required by City Code. Prior to issuance of any occupancy permit for the Property, Developer shall complete implementation of the approved landscape plan in accordance with the terms and conditions a of Exhibit C. 10. MECHANICAL EQUIPMENT SCREENING: Developer shall submit to the City Planner,and receive the City Planner's written approval of a plan for screening ofinechanical equipment on the Property. For purposes of this paragraph, "mechanical equipment" includes gas meters, electrical conduit,water meters, and standard heating,ventilating, and air-conditioning units: Security to guarantee construction-ofsaidscreeningshali-beincluded - --- with that provided for landscaping on the Property, in accordance with City Code requirements. Developer shall complete implementation of the approved plan prior to issuance of any occupancy permit for the Property. If,after completion of construction of the mechanical equipment screening,it is determined by the City Planner,in his or her sole discretion,that the constructed screening does not meet the Code requirements to screen mechanical equipment from public streets and differing, adjacent land uses, then the City Planner shall notify Developer and Developer shall take corrective action to reconstruct the mechanical equipment screening in order to cure the deficiencies identified by the City Planner. Developer agrees that the City will not release the security provided until Developer completes all such corrective measures. 11. OWNER'S SUPPLEMENT TO DEVELOPMENT AGREEMENT: The Owner's Supplements to this Agreement executed by and between the City of Eden Prairie and the following are attached hereto and made a part hereof: A. Rosemount, Inc. 12. PRETREATMENT PONDS: Prior to issuance of any land alteration permit for the Property,Developer shall submit to the City Engineer and receive the City Engineer's written approval of plans and design information for the public storm water quality facilities to be constructed on the Property. Developer shall complete implementation of the approved storm water quality facility plan prior to issuance of any occupancy permit for the Property. Prior to issuance of any certificate of occupancy for the Property,Developer shall provide to the City Engineer upon request,proof that the pond size has not diminished from the original design volume because of sedimentation,erosion or other causes,and that the pond has been restored to its original volume if the pond size has diminished. 13. PRIVATE UTILITIES: Prior to the issuance of any building permit for the Property, Developer shall submit to the City Engineer and receive the City Engineer's approval of a shared use and maintenance agreement for the maintenance of existing private utilities on the Property for shared use among Lots 1, and 2, Block 1, Emerson Process Management Addition. 14. PUD WAIVERS GRANTED: The city hereby grants the following waivers to City Code requirements within the Commercial Regional Service Zoning District through the Planned Unit Development District Review for the Property and incorporates said waivers as part of PUT) 16-2003 Commercial Regional Service: A. Impervious surface of 77%in a shoreland area. City code permits up to 30%. B. Wall sign area-of390:33 square feet on thewest elevation,wall sign area-of-552:62 - - - --- square feet on the north elevation, and wall sign area of 365.83 square feet on the south elevation. City Code permits up to 300 square feet of wall sign area per building elevation. 15. SIGNS: Developer agrees that for each sign which requires a permit by Eden Prairie City Code,Section 11.70,Developer shall file with the City Planner and receive the City Planner's written approval of an application for a sign permit. The application shall include a complete description of the sign and a sketch showing the size,location,the manner of construction, and other such information as necessary to inform the City of the kind, size, material construction,and location of any such sign,consistent with the sign plan shown on the Plans and in accordance with the requirements of City Code, Section 11.70, Subdivision 5a. 16. SITE LIGHTING: Prior to building permit issuance, Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for site lighting on the Property. Developer shall complete implementation of the approved lighting plan prior to issuance of any occupancy permit for the Property. 17. STREET AND UTILITY PLANS: Prior to issuance by the City of any permit for the construction of streets and utilities for the Property, Developer shall submit to the City Engineer, and obtain the City Engineer's written approval of plans for public streets and storm sewer. Public infrastructure shall include Technology Drive improvements as shown in Exhibit B Plans as well as storm sewer from Technology Drive to the pond. Plans for public infrastructures shall be of a plan view and profile on 24 x 36 plan sheets consistent with City standards. A permit fee of five percent of construction value shall be paid to City by Developer. The design engineer shall provide daily inspection, certify completion in conformance to approved plans and specifications and provide record drawings. 18. TECHNOLOGY DRIVE: The Developer shall be responsible for the construction of that portion of Technology Drive as shown in the Exhibit B Plans and as follows: A. All roadway improvements shall be fully constructed and complete prior to the release of the occupancy permit for the building on the Property. B. Roadway improvements to Technology Drive shall provide two westbound lanes,one eastbound through lane,eastbound right turn lanes,and a profile change as depicted in the Exhibit B Plans. C. Coordination regarding construction of an eight-foot wide bituminous trail (to be constructed by Emerson Process Management)adjacent to Technology Drive will be required. 19. TREE LOSS-TREE REPLACEMENT: There are 1,110 diameter inches of significant trees on the Property. Tree loss related to development on the Property is calculated at 836 diameter inches. Tree replacement required is 837 caliper inches. Prior to the issuance of anygrading permit for the Property,Developer shall submit to-the-CityForesterand receive the City Forester's written approval of a tree replacement plan for 837 caliper inches. This approved plan shall include replacement trees of a 3-inch diameter minimum size for a shade tree and a 7-foot minimum height for conifer trees. The approved plan shall also provide that, should actual tree loss exceed that calculated herein, Developer shall provide tree replacement on a caliper inch per caliper inch basis for such excess loss. Prior to issuance of any grading permit for the Property,Developer shall furnish to the City • Planner and receive the City Planner's approval of a tree replacement bond equal to 150%of the cost of said improvements as required by City Code. Developer shall complete implementation of the approved tree replacement plan prior to occupancy permit issuance. 20. SUPERCEDING DEVELOPMENT AGREEMENT:Upon execution by both parties,this Agreement supercedes that certain Development Agreement between Rosemount,Inc.,and the City of Eden Prairie entered into October 21,2003 as to the Property which is the subject of this Agreement. v 0 IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. DEVELOPER CITY OF EDEN PRAIRIE Costco Wholesale Corporation 41A ByAltHARD J. OLIN By Its Nancy Tyra-Lukens ;cc President/Assistant Secretary Its Mayor By By Its Scott H.Neal Its City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2003, by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie,a Minnesota municipal corporation, on behalf of said corporation. Notary Public STATE OF WASHINGTON ) )ss. COUNTY OF KING ) fo of 'n �. �,ent was ac}� ed a this 0day of t-4 ('.�' J 20(l by � ��, the�� , of Costco Wholesale Corporation, a Washington corporation, on behalf of the corporation. 4 •to tPubli c TRICIA A.L. WILBUR NOTARY PUBLIC STATE OF WASHINGTON COMMISSION EXPIRES OCTOBER 9,2007 c/ EXHIBIT A DEVELOPMENT AGREEMENT-COSTCO WHOLESALE Legal Description Before Final Plat • That part of the following described parcels: The West One-half of the east One-half of the Northwest Quarter of the Northwest Quarter of Section 14,Township 116,Range 22,Hennepin, County,Minnesota. Together with: The East One-half of the East One-half of the Northwest Quarter of the Northwest Quarter of Section 14,Township 116,Range 22,Hennepin County,Minnesota, described as follows: Commencing at the northeast corner of said East One-half of the Northwest Quarter of the Northwest Quarter;thence South 88 degrees 24 minutes 26 seconds West,assumed bearing along the north line of said East One-half of the Northwest Quarter of the Northwest Quarter, a distance of 14.50 feet; thence South 00 degrees 36 minutes 38 seconds East,a distance of 119.39 feet to a line 75 feet south of and parallel to a line described in Document Number 3087392 and to the point of beginning of the land to be described;thence continuing South 00 degrees 36 minutes 38 seconds East,a distance of 1188.49 feet to the south line of said East One-half of the Northwest Quarter of the Northwest Quarter;thence South 88 degrees 25 minutes 46 seconds West,along said south line of the East One- Half of the Northwest Quarter of the Northwest Quarter,distance of 663.30 feet to the west line of said East One-half of the Northwest Quarter of the Northwest Quarter;thence North 00 degrees 26 minutes 47 seconds West,along said west line of the East One-half to the Northwest Quarter of the Northwest Quarter, a distance of 1195.91 feet to said line 75 feet south of and parallel to a line described in Document 3087392;thence North 89 degrees 04 minutes 04 seconds east along said line 75 feet south of and parallel to a line described in Document Number 3087392 a distance of 659.78 feet to the point of beginning. Legal Description After Final Plat Lot 1,Block 1,Emerson Process Management Addition,Hennepin County,Minnesota c.3c2 EXHIBIT B DEVELOPMENT AGREEMENT- COSTCO WHOLESALE PLANS 1. Existing Conditions Plan dated 04/17/03 by Westwood Professional Services,Inc. 2. ALTA Survey dated 03/27/03 by Westwood Professional Services,Inc. 3. Concept Site Plan dated 07/03/03 by Mulvanny G2 Architecture 4. Concept Site Sections dated 06/04/03 by Mulvanny G2 Architecture 5. Preliminary Landscape Plan dated 07/22/03 by Westwood Professional Services,Inc. 6. Preliminary Tree Inventory&Preservation Plan dated 04/17/03 by Westwood Professional Services, Inc. 7. Concept Elevations dated 07/03/03 by Mulvanny G2 Architecture 8. Concept Gas Station Plan dated 06/04/03 by Mulvanny G2 Architecture 9. Concept Floor Plan dated 06/04/03 by Mulvanny G2 Architecture 10. Site Lighting Plan dated 07/07/03 by T.E. Inc. 11. Preliminary Grading Drainage &Erosion Control Plan dated 07/03/03 by Westwood Professional Services, Inc. 12.Preliminary Utility Plan dated 07/03/03 by Westwood Professional Services,Inc. 13. Storm Sewer and Street Construction Plans dated 07/10/03 by Westwood Professional Services,Inc. 33 EXHIBIT C DEVELOPMENT AGREEMENT- COSTCO WHOLESALE I. Prior to release of any building permit, Developer shall submit to the City Engineer for approval two copies of a development plan(1"=100'scale)showing oxisting and proposed - • - contours,proposed streets,and lot arrangements and size,minimum floor elevations on each lot,preliminary alignment and grades for sanitary sewer,water main,and storm sewer, 100- year flood plain contours, ponding areas, tributary areas to catch basins, arrows showing direction of storm water flow on all lots,location of walks,trails,and any property deeded to the City. II. Developer shall submit detailed construction and storm sewer plans to the Watershed District for review and approval. Developer shall follow all rules and recommendations of said , Watershed District. IR Developer shall pay cash park fees as to all of the Property required by City Code in effect as of the date of the issuance of each building permit for construction on the Property. IV. If Developer fails to proceed in accordance with this Agreement within twenty-four (24) months of the date hereof,Developer, for itself,its successors,and assigns,shall not oppose the City's reconsideration and rescission of any Guide Plan Change, Planned Unit Development,Rezoning,and Site Plan review approved in connection with this Agreement, thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. V. Provisions of this Agreement shall be binding upon and enforceable against owners,their successors, and their assigns of the Property herein described. VI. The Developer hereby irrevocably nominates, constitutes, and appoints and designates the City as its attorney-in-fact for the sole purpose and right to amend Exhibit A hereto to identify the legal description of the Property after platting thereof. VIE. Developer represents that it has marketable fee title to the Property, except: A. Rosemount, Inc. With respect to any interest in all portions of the Property which Developer is required, • pursuant to this Agreement, to dedicate or convey to the City(the "Dedicated Property"), Developer represents and warrants as follows now and at the time of dedication or conveyance: A. That Developer has marketable fee title free and clear of all mortgages, liens, and other encumbrances. Prior to final plat approval,Developer shall provide to the City a current title insurance policy insuring such a condition of title. B. That Developer has not used, employed, deposited, stored, disposed of, placed or otherwise allowed to come in or on the Dedicated Property,any hazardous substance, hazardous waste, pollutant, or contaminant, including, but not limited to, those defined in or pursuant to 42 U.S.C. § 9601,et.seq.,or Minn. Stat.,Sec. 115B.01,et. • .seq. (such substances,wastes,pollutants, and contaminants hereafter referred to as "Hazardous Substances"); C. That Developer has not allowed any other person to use, employ, deposit, store, dispose of,place or otherwise have,in or on the Property,any Hazardous Substances. D. That no previous owner, operator or possessor of the Property deposited, stored, disposed of, placed or otherwise allowed in or on the Property any hazardous substances. Developer agrees to indemnify, defend and hold harmless City, its successors and assigns, against any and all loss,costs,damage and expense,including reasonable attorneys fees and costs that the City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the release or threatened release of Hazardous Substances which were,or are claimed or alleged to have been,used, employed,deposited, stored, disposed of, placed, or otherwise located or allowed to be located, in or on the Dedicated Property by Developer, its employees, agents, contractors or representatives. VIII. Developer acknowledges that Developer is familiar with the requirements of Chapter 11, Zoning,and Chapter 12,Subdivision Regulations,of the City Code and other applicable City ordinances affecting the development of the Property. Developer agrees to develop the Property in accordance with the requirements of all applicable City Code requirements and City Ordinances. IX. Prior to building permit issuance, Developer shall pay to City fees for the first three (3) years' street lighting on the public streets adjacent to the Property (including installation costs, if any, as determined by electrical power provider), engineering review, and street signs. X. Developer shall submit detailed water main, fire protection, and emergency vehicle access plans to the Fire Marshal for review and approval. Developer shall follow all the recommendations of the Fire Marshal. XI. Developer acknowledges that the rights of City performance of obligations of Developer contemplated in this agreement are special, unique, and of an extraordinary character, and that, in the event that Developer violates, or fails, or refuses to perform any covenant, condition, or provision made herein, City may be without an adequate remedy at law. Developer agrees,therefore,that in the event Developer violates,fails,or refuses to perform any covenant, condition, or provision made herein, City may, at its option, institute and prosecute an action to specifically enforce such covenant, withhold building permits or rescind or revoke any approvals granted by the City. No remedy conferred in this agreement is intended to be exclusive and each shall be cumulative and shall be in addition to every other remedy. The election of anyone or more remedies shall not constitute a waiver of any other remedy. Developer shall,prior to the commencement of any improvements,provide-Written notice to Time Warner Cable,a Minnesota Limited Partnership,the franchisee under the City's Cable Communication Ordinance(80-33) of the development contemplated by this Development Agreement. Notice shall be sent to Time Warner Cable, 801 Plymouth Avenue North, Minneapolis, Minnesota 55411. XIII. Prior to building permit issuance,all fees associated with the building permit shall be paid to the Inspections Department,including;Building permit fee,plan check fee,State surcharge, metro system access charge(SAC),City SAC and City water access charge(WAC),and park dedication. Contact Metropolitan Waste Control to determine the number of SAC units. XIV. Prior to building permit issuance, existing structures,walls and septic systems (if present) shall be properly abandoned or removed as required by City ordinance and all permits obtained through the Inspections Department. XV. Prior to building permit issuance,provide two copies of an approved survey or site plan(1"= 200 scale)showing proposed building location and all proposed streets,with approved street names, lot arrangements and property lines. XVI. The City shall not issue any building permit for the construction of any building,structure,or improvement on the Property until all requirements listed in this Exhibit C have been satisfactorily addressed by Developer. XVII. No failure of the City to comply with any term,condition,covenant or agreement herein shall subject the City to liability for any claim for damages, costs or other financial or pecuniary charges. No execution on any claim, demand, cause of action or judgment shall be levied upon or collected from the general credit, general fund or taxing powers of the City. XVIII. Prior to issuance of the first building permit for the Property,Developer shall permanently demarcate the location of the boundary of the conservation easement on each lot property line or corner with permanent four-foot tall posts. A 2 %a by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City ofEden Prairie",will be affixed to the top of the post. This item does not apply to the Costco Wholesale Development Agreement. EXHIBIT D DEVELOPMENT AGREEMENT— COSTCO WHOLESALE - - - •-• -- • EROSION CONTROL POLICY-AUGUST 1, 1997 ----- - -- ---- 1. All construction projects permitted by the City of Eden Prairie which results in the temporary disturbance of vegetative or non-vegetative surfaces protecting soils from erosion require the use of Best Management Practices(BMP's)as outlined in the Minnesota Pollution Control Agency's manual,Protecting Water Quality in Urban Areas,to mitigate the impact of erosion on wetland and water resources. The City Engineer or the Director of Inspections may impose special conditions to permits which stipulate erosion control procedures and/or direct the installation of erosion control features or the clean up of erosion at construction sites. Permits affected by this policy include all grading permits,building permits,and permits for the installation of utilities. • 2. All erosion control systems stipulated in the permit application shall be installed prior to the issuance of the permit. Supplemental erosion control systems ordered by the City Engineer or the Director of Inspections shall be installed within 48 hours of that order. 3. The applicant must maintain all erosion control systems in a functional condition until the completion of turf and/or structural surfaces, which protect the soil from erosion. The applicant must inspect erosion control biweekly and immediately after each rainfall event of .5 inches or more. Needed maintenance shall be performed within 48 hours. 4. Best Management Practices(BMP's)shall be utilized at all construction sites to minimize the trackage or spillage of soil on public streets or highways. BMP's may include,but are not limited to,rock construction entrances,washing stations,frequent cleaning of streets adjacent to the construction site or limiting operations when site conditions are unmanageable. Trackage or spillage of soil on a public street or highway must be cleaned by power sweepers within the time frame stipulated in the permit special conditions or as ordered by the City Engineer or the Director of Inspections. 5. If erosion breaches the perimeter of a construction site, the applicant shall immediately develop a clean up and restoration plans, obtain the right-of-entry from the adjoining property owner, and implement the clean up and a restoration plan within 48 hours of • obtaining the adjoining property owner's permission. In the event eroded soils enter onto or are tracked or spilled on a public street,highway,sidewalk or trail,the applicant shall remove the soil material and thoroughly sweep the street or sidewalk surface within four hours. If eroded soils enter,or entrance appears imminent,into wetlands or other water bodies,clean up and repair shall be immediate. The applicant shall provide all traffic control and flagging required to protect the traveling public during the clean up operations. 6. When an applicant fails to conform to any provision of this policy within the time stipulated 7 in a written notification,the City may take the following actions: a. Withhold the scheduling of inspections and/or the issuance of a Certificate of Occupancy or other approvals. b. Direct the correction of the deficiency by City personnel or separate contract. c. Withhold the issuance of building permits d. At its option,institute and prosecute an action to enjoin violations of this Agreement and/or an action to specifically enforce performance of this Agreement The issuance of a permit constitutes a right-of-entry for the City or its contractor to enter upon the construction site for the purpose of correcting deficiencies in erosion control. All costs, including but not limited to, attorneys' fees and engineering fees incurred by the City in correcting erosion control deficiencies or enforcing this policy shall be reimbursed by the applicant. All invoices for erosion control correction shall be due and payable within 30 days. Invoices not paid within 30 days shall accrue interest at a rate of 1%per month or the highest legal rate. Each charge for correction of erosion deficiencies shall be a lien upon the property to which the permit applies. Invoices more than 30 days old on September 30 or any year or on any other date as determined by the City Engineer or the Director of Inspections maybe assessed against the property. As a condition of the permit, the owner shall waive notice of any assessment hearing to be conducted by the City, concur that the benefit to the property exceeds the amount of the proposed assessment and waive all rights by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessment. I,We,The Undersigned,hereby accept the terms and conditions of the Erosion Control Policy dated August 1, 1997 as set forth and agree to fully comply therewith, to the satisfaction of the City of Eden Prairie, Minnesota. By: By: Owner's Signature Applicant's Signature DEVELOPMENT NAME: Lot: Block: OWNER INFORMATION OWNER(PRINT): ADDRESS CITY STATE ZIP OWNERS'SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN COSTCO WHOLESALE CORPORATION AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT, made and entered into as of October 21, 2003, by and between Rosemount,Inc.,a Minnesota corporation,("Owner"),and the CITY OF EDEN PRAIRIE("City"): For,and in consideration of,and to induce City to adopt Resolution No.2003-124 for Guide Plan Change, Resolution No. 2003-125 for Planned Unit Development Concept Review,Ordinance No.29-2003-PUD-16- 2003 for Planned Unit Development District Review and Zoning District Change from I-5 to Commercial Regional Service;and Resolution No.2003-154 for Site Plan Review,as more fully described in that certain Development Agreement entered into as of September 16,2003,by and between Costco Wholesale Corporation,a Washington corporation,and City("Development Agreement"),Owner agrees with City as follows: 1. If Costco Wholesale Corporation,fails to commence development in accordance with the Development Agreement and fails to obtain an occupancy permit for all of the improvements referred to in the Development Agreement within 24 months of the date of this Owners'Supplement,Owner shall not oppose the City's reconsideration and rescission of Resolution No.2003-124 for Guide Plan Change,Resolution No.2003- 125 for Planned Unit Development Concept Review,Ordinance No.29-2003-PUD- 16-2003 for Planned Unit Development District Review and Zoning District Change from I-5 to Commercial Regional Service,and Resolution No.2003-154 for Site Plan Review,identified above,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement shall be binding upon and enforceable against Owner,its successors, and assigns of the Property. 3. If Owner transfers this Property,Owner shall obtain an agreement from the transferee requiring that such transferee agree to all of the terms,conditions and obligations of "Developer"in the Development Agreement. Neither the Owner or transferee are required to develop the property in accordance with this Agreement,so long as Owner or transferee obtain such approvals as are required by City Code to develop the Property in a manner other than as set forth in this Agreement. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. OWNER CITY OF EDEN PRAIRIE By By Its Nancy Tyra-Lukens Its Mayor By / 'l JiL 1/✓',, 71-etA-u Its Ji_ ! Scott H.Neal, Its City Manager STATE OF M NNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2003,by Nancy Tyra-Lukens and Scott H.Neal,respectively the Mayor and the City Manager of the City of Eden Prairie,a Minnesota municipal corporation,on behalf of said corporation. Notary Public 1M t 5SoCA,2 STATE OF ) t_ot.ti s ) ss. COUNTY OF ) 4 The foie oing instrum t was acknowledged before me this�S day of M 2004 by R(�1(A),(.d/r ,the ,f Safze f Rosemount,Inc.,a Minnesota corporation,on behalf of the corporation. k—r otary Public ; PUBLIC NOTARY M JEANNE M.KAISER NOTARY PUBLIC-STATE et:MISSOURI ST_LOUIS COUNTY +rr INCCNIASSCHWIRES AILY12. EXHIBIT A OWNERS SUPPLEMENT Legal Description Before Final Plat That part of the following described parcels: The West One-half of the east One-half of the Northwest Quarter of the Northwest Quarter of Section 14, Township 116,Range 22,Hennepin,County,Minnesota. Together with: The East One-half of the East One-half of the Northwest Quarter of the Northwest Quarter of Section 14, Township 116,Range 22,Hennepin County,Minnesota,described as follows: Commencing at the northeast corner of said East One-half of the Northwest Quarter of the Northwest Quarter;thence South 88 degrees 24 minutes 26 seconds West,assumed bearing along the north line of said East One-half of the Northwest Quarter of the Northwest Quarter,a distance of 14.50 feet;thence South 00 degrees 36 minutes 38 seconds East, a distance of 119.39 feet to a line 75 feet south of and parallel to a line described in Document Number 3087392 and to the point of beginning of the land to be described;thence continuing South 00 degrees 36 minutes 38 seconds East,a distance of 1188.49 feet to the south line of said East One-half of the Northwest Quarter of the Northwest Quarter;thence South 88 degrees 25 minutes 46 seconds West,along said south line of the East One-Half of the Northwest Quarter of the Northwest Quarter,distance of 663.30 feet to the west line of said East One-half of the Northwest Quarter of the Northwest Quarter;thence North 00 degrees 26 minutes 47 seconds West,along said west line of the Fast One-half to the Northwest Quarter of the Northwest Quarter,a distance of 1195.91 feet to said line 75 feet south of and parallel to a line described in Document 3087392;thence North 89 degrees 04 minutes 04 seconds east along said line 75 feet south of and parallel to a line described in Document Number 3087392 a distance of 659.78 feet to the point of beginning. Legal Description After Final Plat Lot 1,Block 1,Emerson Process Management Addition,Hennepin County,Minnesota /1/ i CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Engineering , Randy Slick Final Plat Approval of Meadowcroft Requested Action Move to: Adopt the resolution approving the fmal plat of Meadowcroft. Synopsis This proposal is located at 9950 Dell Road. The plat consists of 14.6 acres to be divided into four single family lots and two outlots. This is a replat of Lot 17,Block 1, Settlers Ridge 4th Addition. Background Information The preliminary plat was approved by the City Council November 18, 2003. Second Reading of the Rezoning Ordinance and fmal approval of the Developer's Agreement was completed on January 20, 2004. Approval of the final plat is subject to the following conditions: • Receipt of engineering fee in the amount of$310.00 • Prior to release of the final plat, Developer shall provide to the City a current title insurance policy. • Satisfaction of bonding requirements for the installation of public improvements. • Execution of Special Assessment Agreement for trunk utility improvements and Dell Road Improvements. • The requirements as set forth in the Developer's Agreement. • Provide a list of areas (to the nearest square foot) of all lots, outlots and road right-of-ways certified by surveyor. • Prior to release of the final plat,Developer shall submit a Conservation Easement. • Prior to release of the final plat, Developer shall provide a cross-access easement, private utility and maintenance agreement. • Prior to release of the final plat, Developer shall provide a 20-foot wide drainage and utility easement over the proposed public watermain. • Revision to plat shall include a drainage and utility easement over the proposed conservation easement areas. • Revision to plat shall include a 20-foot drainage and utility easement between Lot 3 and Lot 4. • Revision to plat shall include the removal of the drainage and utility easement title over the northerly boundary of Lots 1 and 2. • Outlot B is to be gifted to the City. Attachments Drawing of final plat CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. A RESOLUTION APPROVING FINAL PLAT OF MEADOWCROFT WHEREAS,the plat of Meadowcroft has been submitted in a manner required for platting land under the Eden Prairie Ordinance Code and under Chapter 462 of the Minnesota Statutes and all proceedings have been duly had thereunder, and WHEREAS, said plat is in all respects consistent with the City plan and the regulations and requirements of the laws of the State of Minnesota and ordinances of the City of Eden Prairie. NOW,THEREFORE,BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL: A. Plat approval request for Meadowcroft is approved upon compliance with the recommendation of the City Engineer's report on this plat dated April 13,2004. B. That the City Clerk is hereby directed to supply a certified copy of this resolution to the owners and subdividers of the above named plat. C. That the Mayor and City Manager are hereby authorized to execute the certificate of approval on behalf of the City Council upon compliance with the foregoing provisions. ADOPTED by the Eden Prairie City Council on April 13,2004. Nancy Tyra-Lukens,Mayor ATTEST: • SEAL Kathleen A.Porta, City Clerk s-/? P D O= 0 = __ _ & Q- _____—_____'-_—_ Ir �-vi.i:iivii.4� — _�--- 10 ,.. ,..," ^.' O M.00.6So6BN L.SSS.60 R•290o I`w=.fin._ -----1 (V 9S•00l 2..IDSY32- ----_- -- - 1 - n.a --------- - I -cam . 1 l-i- - / 1 5 • z. 1 r / i \ _ I -� 1 c / ` I r a s-i- // // -i it f • Is • • / 4 • i to 4 0 .. ; / g V J t i 7._ _—. 9 6_ \ 4 / •\ 5. �- V E - ,L / / a 4. a= `- o ys E z +E . v u eg Or. OE Z6 N n n V Z ."•- O an, ili..I�m. c , /-- r..1 , r ttr 1 o ...2 a. . I �4 . I . 1 'i I .'. I iI L 1 • .� s / 1 I, I p I - pigt , N I '/ I 1 t I 1 �' 4 1,• .I➢. { . ' 1 ',.'- I I • I :> I a 1-- 1 L-ET--• sr / t __ --„.,,3.1ij2.G.I..M.N s . •itw •- i J' f^ _1. /:l - V..mow yj{L6 / I•.. /Y &"I991 ' I.rs).wm 2 I 2 ;' •1.tr • w i F°�.t.:, - �.rCN trot j• ' mur i' • / Ale - - 16.000 3.IS.61.69N /e'c '. 1 ./• t 74a ry •1 �ry N L M1ecr 11 1.'� 4 Cr 0L3 D}e1 .-. i1 I CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Office of City Manager Resolution Approving Appointment of Election City Clerk Judges for the 2004 Referendum Election VI. D. Requested Action Adopt the resolution approving the appointment of election judges for the referendum election, May 11, 2004. Synopsis State Statute 204B.21, Subd.2 requires appointment of election judges by the City Council at least 25 days before the election. Attachment Resolution 4/c CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2004- RESOLUTION APPOINTING ELECTION JUDGES WHEREAS, Minnesota Election Law 204B.21 requires that persons serving as election judges be appointed by the Council at least 25 days before the election. BE IT RESOLVED by the City Council of the City of Eden Prairie that the following persons have agreed to serve as election or alternate judges and are appointed for the Special Election to be held May 11,2004. BE IT FURTHER RESOLVED that the City Clerk is with this, authorized to make any substitutions or additions as deemed necessary. John Alfinito Carol Gjersvik Duane Mattheis Lisa Smith Baker Londa Amundson Carol.Gregoire Ann Meehan Brad R. Starr Betty J.Anderson Matthew D. Hansen Lois Meissner Shirley Stauner Judith Bartolett Russell W. Hanson Joyce Myhre Gerald Stauner Bernie Beauvais June L. Hanson Caroline Nelson Thomas Stein Donna M. Boller Susan Hedberg Donald A. Nelson Susan Stewart Nancy Bollweg Rosemarie Hilk Kay Nicholson Douglas Stewart C. George Budke Karen Hillman Mary Nierman Grace Stewart Joyce Byers Karen Hollingsworth Katherine Nomura Bonny Swaim John R. Carlson Charlotte Hood Dennis Owings Eleanor M. Taggatz Marge Connors Arlene Howden George H. Pearson LeaAnn Thielman Jane Daly Cynthia Hromi Jane Ramunno Nancy J.Thompson Mike Diede Ismail A. Ismail Jim Rannow Joel Tormoen Lorraine Dilling Gordon Justus Dawn Rischmiller Jacqueline Tornoe Gretchen K. Docter Janice Kadiesky Karen Rogers Kristin Traughber Gretchen Dorr Donald Kallenbach Dona Rowland Evelyn Wagner Wanda Eggebrecht James Kemble Dy-anna Ruggles Nancy Westby Jane Eide Marilyn Kemper Rosa Rummel Mary Westrem Carol E. Ellison Marianne Kubin Gordon Schleicher Dolores Williams Loretta M. Ellison Jan Leasure Laverne Schleicher Eugenia Williams Vicki Lynn Fagre-Stroetz James Linak Jan Schneider Margaret Williamson Dorothy Fifield Nancy Little David Shold Arnester Winans Margaret Fitzsimmons Elaine MacDonald Glenna Shold Jack Winslow Cheri Frisvold Vicki Maddy Sandra Shumate Marie Wittenberg Ruth Garst Jody Manning Patrick Slator ADOPTED by the Eden Prairie City Council on this 13h day of April, 2004. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen Porta, City Clerk CITY COUNCIL DATE: AGENDA SECTION: Consent April 13, 2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO. Community Development Lease with General Growth Properties—Human David Lindahl Services Space(Resolution) VI. E. Requested Council Action: Move to: Adopt Resolution approving lease between the City of Eden Prairie and General Growth Properties for space the City will lease at the Eden Prairie Center. Synopsis: Staff has been negotiating a lease with General Growth properties for a space at the Eden Prairie Center that will house the City's housing and human service staff and programs. The main terms of the lease include: • Leased space—3,111 square feet located on the lower level of the mall—former General Growth business offices. Lease also includes priority use of adjacent meetings rooms. • Lease commencement—May 1, 2004 • Lease term- 5 years with three 5-year renewal options. City also has option to consider alternative space on the main level of the mall at the end of each term—provided space is available. • Rent-$4,666 per year($1.50/sf) • Tenant Improvement allowance - $77,775 ($25/sq ft. of leased space). Background: General Growth agreed to provide the City a general purpose space in the mall as part of a TIE agreement. This lease represents the basic terms of the original agreement—for General Growth to provide up to a 5,000 square foot space for a$1.50/square foot for fifteen years, and to provide $25/square foot tenant improvement allowance. In addition, staff persuaded General Growth to pay all utility costs associated with the space. The lease also provides the City the opportunity to consider moving to the main levels of the mall at the end of each five year term under the same lease rates,provided an appropriate space is available. This provides flexibility if programming needs of the space change any time over the next 15 years,i.e.,need access to a loading docks. Costs for improving an alternative space would be paid by the City. Attachments: Resolution Lease CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 2004- A RESOLUTION AUTHORIZING EXECUTION OF THE LEASE BETWEEN EDEN PRAIRE MALL, L.L.C. AND THE CITY OF EDEN PRAIRIE FOR THE PREMISES LOCATED IN THE EDEN PRAIRIE CENTER,SPACE NO. 120 WHEREAS, that certain Contract for private redevelopment by and between the Housing and Redevelopment Authority in and for the City of Eden Prairie and Eden Prairie Mall, L.L.C.,provides that the City of Eden Prairie (hereinafter"City")provides in Schedule E thereof that the City may lease space in the Eden Prairie Center for certain municipal purposes as set forth in said Agreement; and WHEREAS, City staff has developed a plan to operate a satellite office at the Eden Prairie Center to provide services to City residents including: the distribution of information, adult education,bill payment, cultural and arts activities and a police substation; and WHEREAS, the City Council has been presented with a form of lease setting forth the terms by which the City will lease Space No. 120 in the Eden Prairie Center. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA,THAT: 1. The City hereby authorizes the Mayor and City Manager to execute the lease agreement between Eden Prairie Mall, LLC and the City of Eden Prairie for the premises located in Eden Prairie Center, Space No. 120. ADOPTED by the Eden Prairie City Council this 13th day of April, 2004. Nancy Tyra-Lukens,Mayor ATTEST: (Seal) Kathleen Porta, City Clerk G EDEN PRAIRIE CENTER And CITY OF EDEN PRAIRIE Space No. 120 TABLE OF CONTENTS REFERENCE PROVISIONS ARTICLE ARTICLE 1 Leased Premises,Term and Use 31 Remedies 2 Original Construction 32 Successors and Assigns 3 Rental Commencement Date 33 Representations 4 Rental 34 Waiver 5 Definition of Net Sales 35 Holding Over 6 Records and Audits 36 Interpretation 7 Taxes 37 Advertising and 8 Subordination and Attomment Promotional Service 9 Additional Construction 38 Quiet Enjoyment 10 Condition of Premises 39 Waiver of Redemption 11 Tenant's Repairs and Maintenance 40 Fees 12 Alterations 41 Tenant's Property 13 Fixtures and Personal Property 42 Lease Status 14 Liens 43 Recording 15 Laws and Ordinances 44 Force Majeure 16 Environmental Services 45 Construction of Lease 17 Joint Use Areas 46 Security Deposit 18 Damage to Premises 47 Captions 19 Insurance 48 Severability 20 Indemnification 49 Objection to Statements 21 Assignment,Subletting and 50 Liability of Landlord Ownership 51 No Option 22 Access to Premises 52 Execution of Documents 23 Defaults by Tenant 53 Corporate Tenant 24 Surrender of Premises 54 Printed Provisions 25 Tenant's Conduct of Business 55 Entire Agreement 26 Rules and Regulations 56 No Third-Party Rights 27 Eminent Domain 57 Financial Statements 28 Attorneys'Fees 58 Other Locations 29 Sale of Premises by Landlord 59 Tenant's Failure 30 Notices 60 Ownership AFFIDAVIT EXHIBITS EXHIBIT A,A-1 Plans of Leased Premises C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 4/8/04 acd #41 EXHIBIT B Site Plan EXHIBIT E Sign Regulations EXHIBIT X Description of Landlord/Tenant Work EXHIBIT Y Municipal Contract Provisions CADocuments and Settings\kporta\Local Settings\Temporary Internet Files\OLK801EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 4/8/04 acd //, Jv EDEN PRAIRIE CENTER THIS LEASE is between EDEN PRAIRIE MALL L.L.C., a Delaware limited liability company ("Landlord"), and CITY OF EDEN PRAIRIE, ("Tenant"). The date of this Lease is ,2004 ("Commencement Date"). The Leased Premises are located in the EDEN PRAIRIE CENTER ("Shopping Center") in the City of Eden Prairie, County of Hennepin, and State of Minnesota. REFERENCE PROVISIONS The following references define terms used in the specified Articles and elsewhere in this Lease and shall be construed in accordance with the provisions and conditions in this Lease: 1.01 Leased Premises: 120 EDEN PRAIRIE CENTER, containing approximately 3,111 square feet of floor area [ARTICLE 1(a)] 1.02 Expiration Date: March 31,2009 [ARTICLE 1(b)] 1.03 Permitted Use: Only for the operation of a "city space" providing the following services: the distribution of information,adult education,police sub-station,bill payment center,and cultural/arts activities and for any other related use mutually agreed to by the parties in writing,and no other use or purpose whatsoever. [ARTICLE 1(c)] 1.04 Submittal date for preliminary plans: March 1,2004 [ARTICLE 2(d)] Submittal date for final plans and specifications: March 31,2004 [ARTICLE 2(d)] 1.05 Beginning Work Date: April 15,2004 [ARTICLE 2(e)] 1.06 Opening Date: June 1,2004 [ARTICLE 3] 1.07 Minimum Annual Rental: Not Applicable R 1 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd [ARTICLE 4(a)] 1.08 Percentage Rate: Not applicable [ARTICLE 4(b)] 1.09 Annual Sales Base and Monthly Sales Base: Not Applicable [ARTICLE 4(b)] 1.10 Address of Landlord: [ARTICLES 4 and 30] Landlord's Notice Address Landlord's Payment Address: EDEN PRAIRIE CENTER EDEN PRAIRIE MALL L.L.C. c/o EDEN PRAIRIE MALL L.L.C. SDS-12-1516 110 N.Wacker Dr. P.O.Box 86 Chicago,IL 60606 Minneapolis,MN 55486-1516 Attn: Law/Lease Administration Department 1.11 Address of Tenant: [ARTICLE 30] CITY OF EDEN PRAIRIE 8080 Mitchell Road Eden Prairie, Minnesota 55344 1.12 Aggregate Rental: Not applicable [ARTICLE 4(c)] 1.13 Anchor Minimum Annual Rental Increase: Not applicable 1.14 Trade Name: "City of Eden Prairie" [ARTICLE 25] 1.15 Advertising and Promotional Service Payment: Not applicable [ARTICLE 37] 1.16 Initial Assessment: Not applicable [ARTICLE 37] 1.17 Key Money: Not applicable [ARTICLE ] 1.18 Construction Allowance: $77,775.00 R2 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd The parties do hereby agree that to the extent Tenant does not use the entire Construction Allowance for the performance of the Tenant's Work in the Leased Premises, Tenant shall be allowed to use the excess funds for operation of the Leased Premises including, without limitation, the payment of rent. Landlord agrees to pay to Tenant, if Tenant is not then in default,bankrupt or insolvent,the sum of $77,775.00 in accordance with the following schedule: (A) $38,875.00(50% of the Construction Allowance)within 30 days following the later of(i)full execution of the Lease and(ii)Tenant's written request for payment. (B) $38,875.00(50% of the Construction Allowance)within 30 days following the fulfillment of all of the following requirements: 1. Completion of Tenant's Work in accordance with EXHIBIT P,lien free and in a manner satisfactory to Landlord and Landlord's Architect; 2. Presentation to Landlord, in form and detail satisfactory to Landlord, of (to the extent Tenant does not use the entire Construction Allowance to pay for Tenant's Work in the Leased Premises,Tenant shall only be required to provide the following information for that portion of the Construction Allowance used by Tenant to pay for Tenant's Work): a. Contractor's Sworn Statement showing the amount spent by Tenant on the Leased Premises and listing all subcontractors,sub subcontractors and material suppliers and amounts which they were to be paid and were paid for work performed for or on the Leased Premises or for materials supplied for Tenant; b. Tenant's Architect shall provided an Original and Notarized Affidavit or Final Waiver of Lien indicating that the Architect has been paid in full; c. Contractor's Original and Notarized Final Waiver of Lien; d. Notarized Final Waivers of Lien from all architects,subcontractors,sub- subcontractors and material suppliers providing goods and services; 3. Presentation to Landlord of unconditional Certificates of Occupancy from all applicable governmental authorities; 4. Tenant shall have opened• min the Leased Premises for business with the public. 5. Landlord shall be entitled to any unpaid portion of the amount in the event of a default,bankruptcy or insolvency by Tenant, beyond applicable notice and cure periods, even if Tenant shall have paid all or a portion of the cost of Tenant's Work. If and to the extent Tenant emerges from bankruptcy or ceases to be insolvent, Landlord shall be obligated to pay the cost of Tenant's Work that was previously withheld. [ARTICLE 2] R3 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 33 1.19 Security Deposit: Not applicable [ARTICLE 46] 1.20 Radius: Not Applicable [ARTICLE 58] 1.21 Sprinkler Charge: Not applicable [ARTICLE 16] 1.22 Joint Use Area Costs Payment: $4,666.50 ($1.50 per square foot) per year for the calendar year, payable in equal monthly installments. [ARTICLE 17] 1.23 Not applicable 1.24 Chargebacks:Notwithstanding anything to the contrary contained in EXHIBIT X attached hereto,the construction chargeback items which Tenant shall be obligated to pay Landlord in connection with the construction of the Leased Premises pursuant to EXHIBIT X shall be waived. 1.25 Not applicable 1.26 Not applicable 1.27 Not applicable 1.28 Not applicable 1.29 Not applicable 1.30 Not applicable 1.31 Not applicable 1.32 Not applicable 1.33 Not applicable 1.34 Use of Community Rooms: Tenant may utilize the community rooms located in the enclosed mall portion of the Shopping Center up to 180 days per calendar year provided, that, the Tenant gives Landlord no less than 14 days prior notice of Tenant's desire to use the community room and further provided that a community room is available for Tenant's use. Tenant's notice to Landlord shall indicate (i) the date on which Tenant desires to use the community room,(ii)the time period during which Tenant wishes to use the community room and (iii) the purpose for Tenant's use of the community room, which use shall conform with the Permitted Use specified in Reference Provision 1.03 of the Lease. Tenant shall be allowed to use the community room free of charge; provided, however, any funds collected by the Tenant for use of the community room(s) shall be delivered directly to Landlord. 1.35 Extension Options: R4 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 31/ (A) Extension Option #1: Tenant shall have the right and option, provided Tenant is not in default of this Lease beyond any applicable cure period, and provided further that Tenant is operating and in possession of the Leased Premises, to extend the Lease Term for an additional 5 year period beginning en April 1,2009 and ending on March 31,2014(the"Extension Option Period #1"). Tenant shall exercise its option to extend the Lease Term by providing a written extension notice to Landlord, which notice must be delivered to Landlord on or before October 1, 2008. The terms and provisions contained in this Lease shall continue to apply during Extension Option Period #1. Tenant shall completely refurbish the Leased Premises in accordance with the Landlord approved plans and specifications during the first year of Extension Option Period#1.If Tenant fails to deliver the extension notice to Landlord within the time period specified in this Reference Provision 1.35(A)then,the Tenant's right to extend the Lease Term shall be null and void and of no further force and effect and the Lease shall terminate as of the Expiration Date specified in Reference Provision 1.02 of the Lease. (B) Extension Option#2: If Tenant has exercised Extension Option#1 Tenant shall have the right and option, provided Tenant is not in default of this Lease beyond any applicable cure period, and provided further that Tenant is operating and in possession of the Leased Premises, to extend the Lease Term for an additional 5 year period beginning en April 1,2014 and ending on March 31,2019 (the "Extension Option Period #2"). Tenant shall exercise its option to extend the Lease Term by providing a written extension notice to Landlord,which notice must be delivered to Landlord on or before October 1, 2013. The terms and provisions contained in this Lease shall continue to apply during Extension Option Period #2. Tenant shall completely refurbish the Leased Premises in accordance with the Landlord approved plans and specifications during the first year of Extension Option Period #2. If Tenant fails to deliver the extension notice to Landlord within the time period specified in this Reference Provision 1.35(B)then,the Tenant's right to extend the Lease Term shall be null and void and of no further force and effect and the Lease shall terminate as of the expiration date of Extension Option Period#1 specified in Paragraph(A)above. (C) Extension Option#3: If Tenant has exercised Extension Option#2 Tenant shall have the right and option, provided Tenant is not in default of this Lease beyond any applicable cure period, and provided further that Tenant is operating and in possession of the Leased Premises, to extend the Lease Term for an additional 5 year period beginning on April 1,2019 and ending on March 31,2024 (the "Extension Option Period #3"). Tenant shall exercise its option to extend the Lease Term by providing a written extension notice to Landlord,which notice must be delivered to Landlord on or before October 1, 2018. The terms and provisions contained in this Lease shall continue to apply during Extension Option Period #3. Tenant shall completely refurbish the Leased Premises in accordance with the Landlord approved plans and specifications during the first year of Extension Option Period#2. If Tenant fails to deliver the extension notice to Landlord within the time period specified in this Reference Provision 1.35(C)then,the Tenant's right to extend the Lease Term shall be null and void and of no further force and effect and the Lease shall terminate as of the expiration date of Extension Option Period#2 specified in Paragraph(B)above. (D) If Tenant elects to exercise its option to extend the Lease Term pursuant to the terms and conditions contained in this Reference Provision 1.35, Tenant shall take the Leased Premises in its "AS IS" condition. Once Tenant delivers the extension notice to Landlord,the Tenant's election to extend the term of the Lease shall be irrevocable. Upon the valid exercise by Tenant of its option(s) to extend and at the request of Landlord,Landlord and Tenant shall enter into a written supplement to this Lease confirming the extension of the Lease Term and the conditions and provisions applicable to the Extension Option Period in question. In no event will Tenant have the right to exercise any option under this Lease if (i) Tenant has not continuously operated in the Leased Premises,(ii)Tenant is in default of the Lease beyond the applicable cure period,or(iii)Tenant has assigned the Lease or sublet any portion of the Leased Premises. Notwithstanding anything to the R5 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd -SS contrary contained in the Lease, in no event will any sublessee or assignee of Tenant be entitled to exercise the Extension Option(s)specified in this Reference Provision 1.35. 1.36 Relocation Rights: Tenant shall have the right to relocate to new location in the enclosed mall portion of the Shopping Center, provided that there is an available location, as determined by Landlord, subject to the following conditions: (i) Tenant can only relocate once during the Lease Term and can only relocate during an Extension Option Period (Tenant shall not have the right to relocate during the initial 5 years of the Term); (ii) the new location shall be mutually acceptable to the parties; (iii)Tenant is not in default of this Lease beyond the applicable cure period; (iv)Tenant is open and operating in the Leased Premises; (v) Tenant is in possession of the entire Leased Premises(Tenant has not assigned the Lease or sublet any portion of the Leased Premises); and (vi) Tenant must give Landlord notice of its desire to relocate ("Relocation Notice"), which notice must be given no less than 120 days prior to the relocation date. If Tenant elects to relocate to another location in the enclosed mall portion of the Shopping Center and the parties can mutually agree on the new location, then Landlord shall deliver the new location to Tenant with the following work completed: (a) demising walls ready for paint; (b)a concrete slab throughout the new location; and (c) utilities stubbed to the rear of the new location, which utilities shall include 200 amp electrical service and 1"empty telephone conduit. Tenant shall move to the new location and open for business to the public within 90 days following the date Landlord delivers possession of the new location to Tenant. Tenant's failure to relocate, open and deliver possession of the Leased Premises, as herein provided,shall be a default of this Lease without any additional notice from Landlord to Tenant.The new location shall be subject to the same terms, conditions and covenants as the Leased Premises except that if the square feet of floor area of the new location differs from the square feet of floor area of the Leased Premises, then rent shall be proportionately adjusted. Upon the occurrence of any relocation pursuant to this Reference Provision 1.36,the parties hereto shall promptly execute an amendment to this Lease reflecting such relocation of Tenant and, if applicable, any adjustment to rent. 1.37 Tenant Representation: Tenant does hereby warrant and represent that this Lease does fully and completely satisfy Landlord's obligation to lease Tenant space in the Shopping Center as required by the TIF Agreement dated December 21, 1999 (the"TIF Agreement")by and between Landlord and Tenant. 1.38 Tenant's Failure to Operate: Notwithstanding anything to the contrary contained in this Lease, Landlord and Tenant do hereby agree that Tenant shall have the right to cease its operations in the Leased Premises. In the event,Tenant elects to cease its business operations in the Leased Premises, Tenant shall notify Landlord,in writing,of this election to cease operating in the Leased Premises. If Tenant notifies Landlord of its intention to cease its operations in the Leased Premises or if Tenant fails to operate in the Leased Premises for 60 consecutive days,then Landlord may elect at any time thereafter to terminate this Lease by delivery of written notice to Tenant ("Termination Notice"). The Lease shall terminate 60 days after Tenant's receipt of (or refusal to accept) Landlord's Termination Notice ("Termination Date"). If Landlord elects to terminate the Lease as herein provided, the parties hereto shall be released from all obligations which would first accrue after Termination Date and Landlord shall be deemed to have satisfied its obligation under the TIF Agreement with regard to Landlord's obligation to lease space in the Shopping Center to Tenant, and therefore Landlord shall not be required to lease any other space in the Shopping Center to Tenant pursuant to the terms and provisions contained in the TIE Agreement. Notwithstanding anything contained herein to the contrary, Tenant's obligations regarding the following items shall survive the termination of the Lease: (a)any and all charges,fees and expenses which accrued prior to the Lease termination and which Tenant is obligated to pay Landlord under the Lease; and (b) any and all other Tenant obligations under the Lease which, pursuant to the terms and provisions contained in the Lease, survive the termination of the Lease. In addition, the release of liability contained in this Section 1.38 shall not release either party's indemnity or obligations in connection with any civil litigation or arbitration proceedings brought by a third party or preclude either party from exercising any discovery rights it has against the other party in connection with any civil R6 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd L5 litigation or arbitration proceedings brought by a third party. Tenant shall continue to perform its duties and obligations under the Lease up to and including the Termination Date. If Landlord elects to terminate this Lease as herein provided, Tenant shall remove from the Leased Premises its fixtures and equipment and vacate and surrender the Leased Premises to Landlord on or before the Termination Date,in accordance with the terms and provisions contained in Article 24 of this Lease, and upon Landlord's request the parties hereto shall promptly execute a mutually acceptable termination agreement. If Landlord does not elect to terminate the Lease as provided above, then all provisions of this Lease, including, without limitation, Tenant's obligation to pay rent, shall remain in full force and effect for the balance of the then-current Term of this Lease. References to articles are for convenience and designate some of the other provisions where references to the particular Reference Provisions appear. If there is a conflict between a Reference Provision and the other provisions of this Lease,the former shall control. R-7 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd ARTICLE 1-Leased Premises,Term and Use (a) Landlord leases to Tenant and Tenant takes from Landlord in consideration of the covenants and agreements in this Lease,the premises("Leased Premises")being that portion of the building measured to the center of common walls and the outside faces of exterior walls, on the drawings attached to this Lease and made a part of this Lease as"EXHIBIT A"and"EXHIBIT A-1". The Leased Premises shall include corridors and passageways for the exclusive use of the Leased Premises,columns,stairs,elevators and any construction or equipment located in the Leased Premises, as well as pipes, conduits, electrical wires and drainage lines that directly serve the Leased Premises. The Shopping Center is shown on the drawing attached and made a part of this Lease as "EXHIBIT B," and includes all buildings,land,improvements,additions,extensions and deletions which may be made from time to time. The Leased Premises are described further in the Reference Provisions. If the square footage of the Leased Premises is different than the amount set forth in Reference Provision 1.01, all rental and additional rental and amounts based upon the square footage of the Leased Premises shall be proportionately adjusted, and the parties shall execute an amendment to this Lease memorializing the adjustments. If Tenant constructs a mezzanine in the Leased Premises, the square footage of the Leased Premises shall be increased in an amount equal to the square footage of the mezzanine, and all rental, additional rental and amounts based upon the square footage of the Leased Premises shall be proportionately adjusted. The Parties shall execute an amendment to this Lease memorializing the adjustment. A mezzanine shall not be permitted if the Leased Premises are located on an upper level. EXHIBITS A, A-1 and B are for informational purposes only, and are not a warranty,representation or agreement that the Leased Premises, Shopping Center or other areas will be as shown on the Exhibits,or that other occupants if shown on the Exhibits will be in the Shopping Center. Tenant has not been granted any easements of light, air or access. Tenant's rights are limited to the use and occupancy of the Leased Premises and the license to use the Joint Use Areas as they may exist from time to time, all subject to the terms, covenants, conditions and provisions of this Lease. (b) The term of this Lease("Term")shall begin on the Commencement Date and end on the Expiration Date in the Reference Provisions. (c) The Leased Premises shall be used and occupied only for the Permitted Use in the Reference Provisions, and for no other use or purpose whatsoever. Unless specifically noted in the Reference Provisions, Tenant does not have exclusive rights to sell any particular merchandise or provide any particular services in the Shopping Center. ARTICLE 2-Original Construction (a) Landlord may make minor changes to the Leased Premises. Landlord may also make changes,reductions and additions without restriction in other areas of the Shopping Center (including all Joint Use Areas and all buildings and other improvements), whether the changes are requested by other tenants or deemed desirable by Landlord. (b) If '` w h n 21 „ths f„ow g the-Opening Date, construction has not begun on the Shopping Center site, or(2)within 36 months followi„g the O„e„i„..Date the r eased Premises ha_„ t bee„ del_verea t„Te y Landlord,this Lease may be4er„inated by either party by ti fying the other i„ writi„g, with:„ 30 day..ther fter. Tenant releases Landlord and Landlord's contractor from any claim for damages against Landlord or Landlord's contractor for any delay in the date on which the Leased Premises shall be ready for delivery to Tenant. (c) Landlord agrees to perform it's the following construction work: construct a new entry into regional office location ("Landlord's Work") i„ e-L sed Premises " ". All other work on the Leased Premises shall be done by Tenant, at Tenant's expense ("Tenant's Work"). Tenant's Work shall include, but not be limited to, the installation of 1 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd storefronts and storefront signs, customer entrance doors, floor covering, plastering, interior decorating, wall and ceiling treatment,completion of the air conditioning system and fire sprinkler system, extension of electrical service to the Leased Premises, connection of plumbing lines to Landlord's system, the installation of electric lights and fixtures and all other electrical work. The design and installation of mechanical and electrical systems shall comply with the requirements attached and made a part of this Lease as"EXHIBIT X." All signs and electrical work for the signs shall be installed by Tenant at Tenant's expense. They shall be of such character, design, size and at such locations as Landlord may approve. They shall be in accordance with EXHIBIT E, which is attached and made a part of this Lease. Tenant agrees not to install any signs until they have been approved by Landlord. Feed Court e Design and Operation Criteria co rations for " d made a part of this L ase. If Tenant is prevented from beginning construction in the Leased Premises by the Beginning Work Date because of the failure of Landlord to substantially complete Landlord's Work within the Leased Premises, the Opening Date shall be extended by 1 working day for each working day that Tenant is prevented. The certification of Landlord's architect that Landlord's Work is substantially complete and in accordance with the plans and specifications shall be conclusive and binding upon the parties. (d) Approval of the plans and specifications by Landlord shall not create any responsibility by Landlord for their accuracy, sufficiency or compliance with laws or rules and regulations. Tenant shall be solely responsible for the plans and specifications. When Landlord has approved Tenant's plans and specifications, Landlord shall return one set of approved plans to Tenant. Such approved plans shall show the date of Landlord's approval and shall be made a part of this Lease as "Exhibit P", whether or not physically attached hereto. Tenant agrees not to begin Tenant's Work until Landlord has approved the plans and specifications. (e) Tenant shall begin Tenant's Work by the Beginning Work Date specified in the Reference Provisions, proceed with it diligently and complete it in strict accordance with EXHIBIT P. Upon completion of Tenant's Work Tenant shall provide a certificate furnished by or otherwise satisfactory to Landlord from Tenant's contractor stating that no asbestos-containing materials or other Hazardous Materials as defined in ARTICLE 15 were used in the construction of the Leased Premises. Tenant shall complete the installation of fixtures, trade fixtures, improvements,equipment,stock and inventory prior to the Opening Date. OPENING DATE SPECIFIED IN THE REFERENCE PROVISIONS. , UNLESS REQUESTED TO DELAY THE OPENING DATE PURSUANT TO ARTICLE 3(b). If Tenant does not begin Tenant's Work by the Beginning Work Date,Landlord shall have the right to terminate this Lease by notifying Tenant in writing and providing a cure period, not to exceed 10 5 days. Tenant shall pay Landlord as liquidated damages the cost of any work done by Landlord for Tenant(representing the actual cost plus 15%for overhead),including,without limitation,electrical work,plumbing,concrete floor slabs,and heating and air conditioning equipment and facilities, if any. If Tenant has not completed Tenant's Work and opened its store for business to the public by the Opening Date(subject to ARTICLE 3),Landlord shall be entitled to declare the same a default. In addition to (and not in lieu of) Landlord's other rights and remedies, Tenant's rental shall nevertheless begin on the Opening Date. at the per day rate of the gr ater of either: (i) 1/10th of the monthly installment of Tenant's Minimum Annual Rental;or(ii)$1,000.00. Late performance will cause Landlord to incur losses,damages and costs not contemplated under this Le , include, without limitation, processing and accounting charges. The parties agree that tese late charges are liquidated damages, represent a reasonable estimate of Landlord's costs and expenses and arc fair compensation to Landlord for the loss suffered by Landlord. ARTICLE 3-Rental Commencement Date (a) The rental payments shall begin to accrue on the earlier of the following dates ("Rental Commencement Date"): (i)the Opening Date; or(ii)the date on which Tenant shall open the Leased Premises for business to the public. 2 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd (b) Notwithstanding any provision to the contrary contained in this Lease, ' , requested by Landlord to delay the opening of the Leased Premises for business in order to coincide with the grand opening of#he Shopping Center or a grand re-opening in the case of a major renovation("Grand Opening"). In that event,Tenant's obligation to pay rental shall b ening Date. ARTICLE 4-Rental Tenant shall pay Landlord as rental for the use and occupancy of the Leased Premises, at the times and in the manner provided,the following sums of money per annum without deduction or set-off and without prior demande Reference Provisions: If under ARTICLE 3 rental b , Annual Rental for the period from the b 0 maximum rate of interest allowed by law in the state where the Shopping Center is located (the "Interest Rate"). The interest shall be deemed to be additional rental. All rental provided for in this Lease shall be paid to Landlord at the address in the Reference Provisions or to another paye "Prime Rate" wherever it appears in the Lease means the prime rate (or base rate) reported in the Money Rates column or section of The Wall Street Journal as being the base rate on corporate loans at large U.S. money center commercial banks (whether or not that rate has been charged by any bank). If The Wall Street Journal ceases publication of the prime rate,Prime Rate shall mean the highest rate charged by Bank One(or its successor)on short term unsecured loans to its most creditworthy large corporate borrowers. If The Wall Street Journal(i)publishes more than one prime rate or base rate,the higher or highest of the rates shall apply, or(ii)publishes a retraction or correction of that rate,the rate reported in that retraction or correction shall apply. p e Percentage ate of-all Net Sales (deed-in ARTICLE Sin excess of the Annual Sales Basc for the calenda year specified-is-the Reference Previsions. dditio„t„ a„d„„t i lieu of Percentage Rental, Tenant shall pay to Landlord an amount equal to eight percent(8%) of all monies and other ch soft;are and the material or information contained therein must be within Tenant's Permi wed by Tenant resulting from such sales shall be separately stated monthly and otherwise recorded and documented as-set in any year. Any Digital Download Rent due from Tenant to Landlord for any month during the Ter sh ll be payablevithin4hifty-(-30)-days-after-the-end-efthe-menth-in-whiett-the-menies-er-ether revenues were received. Percentage e„tal shall b„ „aid monthly no later than the 15 day--oftlte except ha*t if-the—Rental tal Commencement Date is other th the first day of a me„th the Nei Sales .1uri„g the first„artial mo„tl, shall be added to the Net Sales of the next month. The amount of each payment of Percentage Rental shall be-equal to the amount of Ne Percentage Rate. The Annual Sales Base and/or the Monthly Sales Base shall be prorated for any partial calendar y ar upon the basis of 1/12th for ach full month of the partial calendar y ar,plus an amount equal to 1/360ths for ch day if the Rental Commencement Date is other than the first day of the month. At the end of each calendar y Percentage Rental shall be adjusted to a calendar year basis and the balance of the Percentage Rental due shall be paid within 60 days after the end of that calendar year (incl• the last calendar-year),If aF the a„d oft e 3 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd calendar year, the amount of the Percentage Rental paid by Tenant exceeds the amount of Percentage Rental requirea to be paid by Tenant f..ghat-calendar year,Tenant sha"—eceive a credit for the excess,and the excess shall be deducted by Tenant from the next payments of Percentage Rent due (or after the last calendar y ar, Landlord shall refund the excess to Tenant after Landlord's receipt of Tenant's certified statement of Net Sales covering the last calendar year). Each calendar year shall be considered as an independ d over into any other calendar year. Net Sales during any calendar month in which Tenant does not continu business-shall-be-deemed to be the greater of: (i)Net Sales during that calendar month or(ii)Net Sales during the calendar mo Leased Premises is expressly permitted by this L se. "Lease Year" for all purposes under this Lease shall mean the 12 calendar months between the period February 1 through and including January 31, except that if the Rental Commencement Date is not February 1,then the period immediately following the Rental Commencement Date up to and including the next succeeding January 31 shall be a partial Lease Year; "calendar year" for all purposes under this Lease shall mean the 12 calendar months between the period January 1 through and including December 31, except that if the Rent Commencement Date is not January 1, then the period immediately following the Rental Commencement Date up to and including the next succeeding December 31 shall be a partial calendar year. (c) MINIMUM ANNUAL RENTAL AND PERCENTAGE RENTAL AGGREGATE: Tenant shall pay Landler-d-an-ineFeased-Minintunt-Annual-Rental-beginnin,&ort-the-Janualst-fellewing-the-4th-anniversarfof-t e Tenant to Landlord for the 4th full calendar year in accordance wio.nh —Reerencce Provisions. (For this dusted t,, elimiate the e ff of a y rent.abatemen, e 4th full ach year of the remainder of the Term, and shall b Annual Rental. The incr ased Minimum Annual Rental shall not at an Annual Rental (for the applicable period of time) set forth in currently with the increase in ed accordingly. is added to the Shop ' , e increased accordingly. The increase shall continue during the remainder of the Term. (e) If Minimum Annual Rental or additional rental is not paid within 10 days after it is due, Tenant shall also pay Landlo , late payment fee equal to the greater of$100.00 or 5% of the delinquent rental for each and every month, or part of every month that the rental remains unpaid. The fee shall not excuse Tenant's bank for insufficient funds, Tenant agrees that all future checks shall be either bank certified, cashiers' or tr surers'checks. All bank service charges resulting from bad-checks shall be borne by Tenant. (f) , Tenant shall pay, as additional rental, all sums of money required to be paid pursuant to ARTICLE-4(b) (Pe tentage Rental),waxes),1-6 (Erivironmenta ervices), 17 (Joint Use Areas), 19 (Insurance), 37(Advertising and Promotional Service), and all other sums of money or charges required to be paid by Tenant under this Lease(collectively referred to in this Lease as"additional rental"). Notwithstanding tc;he contr ry,how.ve.,„n,_„y;Money—payabl c to the Landlord by Tenant pursuant to this Lease shall not be considered "rent", "rental" or "additional rental". All amounts shall be paid to Landlord's Payment Address as shown in Reference Provision 1.10. If the amounts or charges are not paid at the time provided in this Lease, they shall nevertheless be collectible as additional rental payable upon the 1st day of the month, ,but nothing in this Lease shall be deemed to suspend or delay the payment of any amount of money or charge at the time it becomes due and 4 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd payable or to limit any other remedy of Landlord. All amounts of Minimum Annual Rental and additional rental payable in a given month (also collectively referred to in this Lease as "rent" or "rental") shall be deemed to be a single rental obligation, and shall survive the expiration of the Term or the earlier termination of this Lease. Any payment by Tenant or acceptance by Landlord of a lesser amount than shall be due from Tenant to Landlord at the time of such payment shall be treated as a payment on account. The acceptance by Landlord of a check for a lesser amount with an endorsement or statement thereon, or any letter accompanying such check stating that such lesser amount is payment in full shall be given no effect, and Landlord may accept such check on account without prejudice to any other rights or remedies which Landlord may have against Tenant. ARTICLE 5-Definition of Net Sales Net Sales shall include (as of the date of the transaction) the entire amount of the sale price of al oods and deemed), leased, rented or licensed and the charges for all services and all other receipts in, upon or from any part of the Leased Premises or as a result of Tenant's agreement, if any, to link its website to the Shopping Center's website, whether (wholly or partially) for cash or credit,and shall includ chanical and electronic machines,except telephone and postage stamp machines);mail and telephone orders received or filled at the Leased Premise ent leased• mbursements• collected-and uncollectible credit accounts and bank checks and charges for bank credit cards;all depositsers taken,although the orders may be filled d by m ans of electronic,telephonic, video, computer or other electronic or technology based system, regardless of whether the-orders are accepted or filled at the Leased Premises or accepted or filled by Tenant or its parent, subsidiary or affiliate at any other xcluded s the case may be, from Net Sales, provided such exclusionscifi^ally itemized. (a) refunds to customers to the extent that such refunds relate to (i) a prior inclusion of the same transaction or (ii) returns of cal store locations of Tenant; (b)sales,use, excise,retailer's, occupation or similar taxes imposed in a specific amount, or percentage upon, or determined by,the amount of sales; (c)interest, ed in the merchandisepers and manufacturers; (e) sales not in the ordinary course of Tenant's business, of machinery or equipment which Tenant has the right to remove from the L ed Premises; and(f)the value of any exchange or transfer of merchandise between stores of Tenant if it is made solely for the convenient operation of Tena ' Premises. ARTICLE 6-Records and Audits Tenant agrees to accurately record all sales in accordance with generally accepted accounting practices ("howing al of its sales separately from its other stores), and to-maintain sufficient original records which aceurately-summarize Original records shall include but not be limited to:sales do , of cash registers or point of sale devices,sales returns and allowance detail, cash receipts7payrolljournalsr accounts receivable, disbur-sement-jo sit slips, inventory records, purchase orders, receiving records, sales journals or daily sales reports, orders accepted by means of electronic,telephonic,video, computer or another electronic or other technology based system, state sales and use tax returns (and all documentation-used to prepare-the-returns),-and a complete-gener l ledger.—Docctmrentation d itemization of specific sales exclusions shall also be maintained. Records shall be preserved(properly totaled)by Tenant either(a) at the Leased Premises wwhieh-the records arc maintained) and made available to Landlord at the LeasedLeaseel-Premises-er-the-efficesupea demand,for a period of at least 3 y ars after the year in which the sales occurred(however,if any audit is begun by final resolution of the audit or dispute). The receipt by Landlord of a statement of Net Sales or Percentage Rental 5 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE-EDEN PRAIRIE MALL 04/08/04 acd V cx • b sale b a the 5th da.. of the f Mowing month and by January 31 of ach year of the Term an annual statement certified by a Certified Public Accountant or by a financial officer,owner or partner of Tenant,of the Net Sales made during the prece ther than December 31,then a n-eccurs shall be delivered within 30 ..titled at T andlord's a to have_at a .time a • , 'j cv-aiu�c a�uuj-�na�v-anu�ivirc time to time an audit of the Net Sales made during any period covered by the annual sta recalculate the rental payable for that period. If there is a deficiency in the payment-of p rental,the deficiency shall be imme ' e additional-rentalTffem4lie-date-when-the-payments-sheukl-have-been-madeAfthere-is-an-everpayment-by-TenafitTit shall-be-credited4 andlord-against payments-due. If Net Sale..have been understated by more than 2%or Tenant fails to record,maintain or make available the required sales supporting-deeumentatie , , dit and all other related costs and expenses. If Tenant is late furnishing Landlord any Net Sales,Landlord shall be entitled,in addition to Landlord's other rights and remedies,to estimate Tenant's annual e due based-upon the estimated Net Sales. ARTICLE 7-Taxes ��p , ertienate share of all real p' b negotiation of an assessment by Landlord, as described in(c)below, which may be levied or assessed against the Shopping Center during the Term-by-any-lawful-authority for each calendar y ar, excluding real property taxes or assessments paid for land and buildings owned or 1 ased by anchors and outparcels whether the anchors and outparcels arc occupied or vacant and whether or not the real property ces-are separa�illed or assessed. r assessment, license fee, license tax, tax or excise on rent, or any other levy, charge, or similar imposition ("Impositio , agricultural, lighting, drainage, management, roadway, water, levee, utility or other improvement or special assessment district, on any interest of Land , underlying realty The Impositions-sli ll clude but-not-be limited to: (a)any partial or total substitute Impositions for real property taxes; (b) any Impositions allocable to or measured by the area-of the Leased Premises or rent ineludingTwithout-limitation, any gross income tax or excise tax levied by any governmental authority, or political subdivision, with respect to rent, or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupa ne l Ten nt fthe T e ..ed Premises; anc (e) e . Im.. any document to which Tenant is a paw ^ eating sr transf rring ^ i terest ^ estate i the Leased Premises. Tenant's--proportionate share- hall be the product which result,-by-multiplying-the real property taxes and .,lty ste sT cho ,,,1 utpa els) by fact' :,the cr of square feet of floor area in the L sod Premises and the denominator of whichshall be the total nu ber of square feet of gross-1 asable floor ar a in the enclosed mall portion of the Shopping Center determined as of August 1- of ach year (exclusive of the building areas utilized for non retail exhibits; rccr ational purposes; museum space operated by a not for profit entity; the building ar as occupied by aneh d outparcels arc occupied or vacant and whether or not the taxes are se ecialty stores) which are occupied or producing rent, including the Leas owever, be ealc;:lat_d on th bay less t an-80% cf she gross, leasable a ea of the enclosed mall p b r non-retail exhibits; recreational purposes,including,without limitation,lee rinks; space operated for a not for profit purpose,including, v e b e o 6 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE-EDEN PRAIRIE MALL 04/08/04 acd lL�� imposed upon Landlord on account of,attributed to,er measured by rental or other charges payable by Tenant shall be paid by Tenant to Landlord. An"anchor" is any operation, land,building, store or business whether occupied or vacant,and whether owned or leased,which leases or occupies 30,000 square feet or more of space in the Shopping Center. A "variety or specialty store" is an occupant which leases or occupies between 10,000 and 29,999 square feet of space in the Shopping Center,or is a restaurant occupant having an exterior entrance. An"outparcel" is any operation, land,building, store or business whether occupied or vacant and whether owned or leased,that is not an anchor or variety or specialty store and that does not have an entrance accessible to the customers of the Shopping Center from the interior of an enclosed mall area. Notwithstanding anything to the contrary contained in the Lease, an outparcel may at Landlord's sole discretion be considered part of the Shopping Center for purposes of the calculation of Tenant's share of taxes under ARTICLE 7. (b) Tenant's share shall be-paid-in-menthlinstallments-en-er-befere-the-1-st-day-ef-eaell-ealendar--mentlin , d however under a mortgage to escrow real estate taxes, Landlord may,but shall not-be obligated to,use the am asis for the estimate of the monthly installments. Upon confirmation of all tax and assessment bills attributed to any calendar proportionate share of the r al property taxes and assessments for that year. If the total amount paid by Tenant for paid by Tenant for any calendar y ar exceeds the amount due from Tenant for that calendar year, Landlord shall credit the excess against payments due. Tenant's liability fo assessments for the calendar y ars in which this Lease begins and ends shall be subject to a prorata adjustment based Landlord shall notify Tenant in writing of Landlord's estimate of Tenant's monthly installments due. Landlord's and Tenant's d by Landlord to Tenant,upon request by Tenant,and shall be conclusive evidence of the der-levied,the items taxed and the installments. s any tax or assessment upon the Shopping Center,Tenant agrees to pay its proportionate share of Landlord's expenses, including but not be limited to legal, tax consultant and enses shall be calculated and paid in the manner set forth in e payment of r 1 property taxes -Tenant-pays an amount in excess of its proportionate share of real property taxes and assessments for any year as the result of a subsequent reduction in when all refunds to which Landlord is entitled from the taxing authority for that y ar arc received by Landlord. The term "Net Refund" means the refund plus interest, if any thereon less appraisal, engineering, expert testimony, that such fees, costs and expenses have not been previously included in taxes under this ARTICLE 7, and less an 0 L ase,Tenant shall pay any tax,whether sales-tax er otherwise,which s er shal be imposed on Tenant's payment or rental, and any othertax-inposed upon owners of r al estate (including any water and sewer tax assessment) rather than upon p on the land, buildings, or other improvements in the Shopping Center. Tenant shall pay its proportionate share of taxes for any offsite property and faciliti • - ed for the benefit of or that serves the Shopping Center. ARTICLE 8-Subordination and Attornment (a) Tenant's rights shall be subordinate to the interest of any ground lessor and to the lien of any mortgage or deed of trust in force or later placed against the Shopping Center,upon any building placed later upon the Shopping Center and to all advances made upon the security thereof. No ground lessor nor the mortgagee or beneficiary named in the mortgage or trust deed shall disturb Tenant's peaceable possession of the Leased Premises if Tenant is 7 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE-EDEN PRAIRIE MALL 04/08/04 acd ci not in default under this Lease. Any mortgagee or beneficiary of Landlord may, at its option, subordinate its mortgage or trust deed to this Lease. This ARTICLE 8(a) is self-operative, and no further documentation of Tenant's subordination and attomment is required; however, Tenant shall execute any subordination agreement requested by Landlord, any mortgagor or beneficiary of Landlord upon written request. Tenant shall accept performance of any of Landlord's obligations hereunder by any mortgagee or beneficiary of Landlord. (b) If any proceedings are brought for foreclosure, or if the power of sale under any mortgage, deed of trust or deed to secure debt made by Landlord covering the Leased Premises is exercised, Tenant shall attom to the purchaser upon the foreclosure or sale and recognize the purchaser as the Landlord under this Lease. (c) Landlord covenants that it is or will be a party to a certain agreement or agreements with the anchors in the Shopping Center(the "Agreement"),which may be amended from time to time. The Agreement shall not prevent Tenant from using the Leased Premises for the purpose set forth in Reference Provision 1.03. This Lease is subject and subordinate to the Agreement and any amendments to or modifications of the Agreement. (d) Tenant agrees to make such reasonable modifications to this Lease as may be reasonably required in connection with the obtaining of financing or refinancing of the Shopping Center or any portion thereof or interest therein, so long as such modifications do not change the economic terms hereof or materially affect Tenant's rights, increase Tenant's obligations,or reduce Landlord's obligations hereunder. ARTICLE 9-Additional Construction Landlord reserves the right at any time to make alterations or additions to, subdivide, change the building dimensions and storefront lines,build additional stories on the building in which the Leased Premises are contained or on any other building or buildings in the Shopping Center,and to build adjoining the Shopping Center. Landlord also reserves the right at any time to construct other buildings,structures or improvements including,but not limited to,surface,elevated or double-deck parking facilities and to erect temporary scaffolds and other aids to construction. Landlord may elect to relocate Tenant to another location in the Shopping Center at Landlord's expense. ARTICLE 10-Condition of Premises Tenant's taking possession of the Leased Premises shall be conclusive evidence of Tenant's acceptance of the Leased Premises in good order and satisfactory condition and"as-is",including patent and latent defects. Tenant agrees that no representations about the condition of the Leased Premises,nor promises to decorate,alter,repair or improve the Leased Premises have been made by Landlord or its agents to Tenant. Tenant also agrees that no representations have been made to Tenant that any other tenants will lease space in the Shopping Center nor have any promises been made that Tenant has the exclusive right to sell any merchandise, goods or services. Tenant hereby waives any implied warranties,including but not limited to fitness,suitability and habitability. ARTICLE 11-Tenant's Repairs and Maintenance Landlord shall be responsible for all structural repairs to the Leased Premises. Landlord shall not be responsible for damage or personal injury caused by any defects or other conditions,or the consequences thereof,except in the case of Landlord's willful misconduct. Landlord shall not be liable to Tenant for any damage to merchandise, trade fixtures or personal property of Tenant in the Leased Premises, including without limitation damage by water leakage,seepage,water discharge from a sprinkler system or water damage caused by leakage from other occupants. Beginning on the Commencement Date, Tenant shall be liable for the repairs,replacements and maintenance of the Leased Premises, except those for which Landlord is responsible under this ARTICLE 11. Tenant shall keep the Leased Premises in good order and repair, clean, sanitary and safe and shall notify Landlord, in writing, prior to 8 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 6 S beginning any repair. The notice shall specify the repair work to be performed. Tenant's repairs,replacements and maintenance obligations shall include, but not be limited to, its heating and cooling equipment; other equipment; fixtures;improvements;floor covering;the exterior and interior portions of all doors, door locks,security gates,and windows; plumbing and sewage facilities which are not Landlord's obligation; walls; ceilings; and plate glass. Tenant shall be solely responsible for maintenance and repair costs related to the Leased Premises. Tenant agrees to keep the interior of the Leased Premises in a clean and sightly appearance. If Tenant refuses or neglects to make repairs or maintain the Leased Premises, in a manner reasonably satisfactory to Landlord, Landlord shall have the right, upon giving Tenant reasonable written notice, to make the repairs or perform the maintenance on behalf of Tenant. Tenant shall reimburse Landlord promptly upon receipt of a bill. The interior and storefront of the Leased Premises shall be painted, redecorated and refurbished by Tenant at least once every 5 years. Landlord has no obligation to do work which Landlord is not expressly required to perform under this Lease or which, under this Lease, Tenant is required to perform. The performance of that work by Landlord shall not constitute a waiver of Tenant's default. ARTICLE 12-Alterations Tenant shall not make any structural, electrical, storefront, exterior, major interior or mechanical alterations to the Leased Premises without obtaining the written consent of Landlord. Tenant shall not interfere with any work in the Shopping Center,and shall not cause the closing,interruption or impairment of Tenant's normal conduct of business. All alterations,additions,improvements and Tenant's Work shall become,upon expiration of the Term,or the earlier termination of this Lease, the property of Landlord without any payment by Landlord. All such work by Tenant shall be made under the supervision of a competent architect or competent licensed structural engineer and shall be in accordance with plans and specifications approved in writing by Landlord before the start of the work. Landlord's approval of Tenant's plans and specifications shall not create a responsibility or liability of Landlord for their accuracy, sufficiency or compliance with laws or rules and regulations. The work shall be in accordance with necessary governmental approvals and permits. Tenant shall obtain approvals and permits at its sole expense. The work shall be done in a good and workmanlike manner and diligently prosecuted to completion. The Leased Premises shall at all times be a complete unit except during the performance of work. Work done by Tenant without Landlord's consent shall be returned to its original condition,at Tenant's expense,upon request by Landlord. ARTICLE 13-Fixtures and Personal Property Trade fixtures, signs and other personal property of Tenant not permanently affixed to the Leased Premises shall remain the property of Tenant. Tenant shall have the right, provided Tenant is not in default, to remove its trade fixtures,signs and other personal property. Tenant shall not however,during the Term,render the Leased Premises unsuitable for conducting the type of business specified in Reference Provision 1.03 by removing personal property unless Tenant immediately replaces it with personal property of comparable or better quality. Tenant,at its expense, shall immediately repair damage to the Leased Premises caused by the removal of such trade fixtures, signs and other personal property. Upon the expiration or earlier termination of this Lease, Tenant shall leave the Leased Premises in a neat and clean condition,free of debris. All trade fixtures,signs,and other personal property installed in or to the Leased Premises by Tenant must be new or like new when installed or attached. Tenant shall pay before delinquency all taxes, assessments, license fees and public charges levied, assessed or imposed upon its business operation in the Leased Premises as well as upon its trade fixtures, leasehold improvements (including but not limited to merchandise and other personal property in, on or upon the Leased Premises). If Tenant's property is assessed with Landlord's property, the assessment shall be equitably divided between Landlord and Tenant. Landlord shall determine the basis of prorating the assessments and that determination shall be binding. No taxes, assessments, fees or charges referred to in this ARTICLE 13 shall be considered taxes under ARTICLE 7. Tenant's obligation to perform the provisions of this ARTICLE 13 shall survive the Expiration Date or the earlier termination of this Lease. 9 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd ARTICLE 14-Liens Tenant shall not permit a lien or claim to attach to the Leased Premises and shall promptly cause the lien or claim to be released. If Tenant contests the lien or claim, Tenant shall indemnify Landlord and, if requested, deposit with Landlord a cash or surety bond in a form and with a company satisfactory to Landlord in an amount equal to twice the amount of the contested lien or claim. If Tenant shall fail to cause a lien to be discharged or bonded,within 10 days after being notified of the filing of the lien, in addition to any other right or remedy, Landlord may discharge the lien by paying the amount claimed to be due. The amount paid by Landlord,together with interest at the Interest Rate and all costs and expenses,including reasonable attorneys'fees incurred by Landlord,shall be due and payable by Tenant to Landlord as additional rental on the 1st day of the next following month. Tenant shall immediately give Landlord written notice of the recording of a lien against the Leased Premises or the Shopping Center arising out of work done by or at the direction of Tenant. • ARTICLE 15-Laws and Ordinances (a) Tenant shall comply with all laws,ordinances,codes,orders and regulations affecting the construction,use, occupancy, alteration, cleanliness, safety and operation of the Leased Premises, which are in force now or later. Tenant shall comply with the regulations, requirements and recommendations of any insurance underwriter, inspection bureau or similar agency. Tenant shall notify Landlord if Tenant has received notice of, or has knowledge of any condition or occurrence that might result in liability to Landlord. Tenant shall give Landlord, upon Landlord's request,information regarding the environmental condition of the Leased Premises so Landlord can determine if Landlord must comply with any rule, regulation, order, act, law or statute pertaining to the environmental condition of the Leased Premises or the Shopping Center,and for Landlord to accurately complete a form or otherwise provide information required under any rule, regulation, order, act, law or statute. Tenant shall permit Landlord to comply with those recommendations and requirements. In addition,Tenant agrees to comply,to the extent that the same may be applicable to the leased premises, with the standards and requirements of the Williams-Steiger Act(PL91-596),known as the "Occupational Safety and Health Act of 1970,"notwithstanding the fact that Tenant may otherwise be exempted from the provisions of said Act, and the Americans with Disabilities Act of 1990. (b) Tenant shall not: (i) permit an immoral practice in the Leased Premises; (ii) use or allow the Leased Premises to be used or occupied in a manner that might invalidate or increase the rate of or make inoperative an insurance policy carried on the Leased Premises or on property,buildings or improvements in the Shopping Center; (iii) keep, use or permit in the Leased Premises inflammable fluids or explosives without the prior written permission of Landlord, or engage in hazardous activities; (iv)use the Leased Premises for a purpose which might create a nuisance or injure the reputation of the Leased Premises or the Shopping Center; (v) deface or injure the Leased Premises or any portion of the Shopping Center;(vi)overload the floors; (vii)commit or suffer waste; (viii) install electrical equipment that overloads lines; or (ix) conduct any sampling, testing, or drilling to locate any Hazardous Material without Landlord's prior written approval. Tenant shall,upon demand,reimburse Landlord for extra premiums caused by Tenant's use or occupancy of the Leased Premises, whether or not Landlord has consented to the use and occupancy. A schedule issued by the organization making the insurance rates on the Leased Premises,showing the components of the rates, shall be conclusive evidence of the items and charges which make up the hazard and other insurance rates on the Leased Premises. Tenant shall,at Tenant's expense,make from time to time whatever changes are necessary to comply with the requirements of the insurance inspectors, underwriters and governmental authorities in connection with electrical and fire prevention systems and equipment. (c) Tenant shall not have a claim against Landlord, and Landlord shall not be liable for damages, demands, expenses, fees, fines,penalties, suits,proceedings, claims, actions and causes of action arising out of or in any way connected with Tenant's use or occupancy of the Leased Premises, if the use or occupancy is prohibited or substantially impaired by any law,ordinance,regulation or by legal,governmental or other public authority. 10 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /^ (d) Tenant shall not cause or permit any Hazardous Material (defined below) to be brought upon,transported through, stored, kept, used, discharged or disposed in or about the Leased Premises or the Shopping Center (collectively "Property") by Tenant, its agents, employees or contractors, except for Hazardous Materials in such limited quantities as customarily used in office business operations so long as Tenant uses such.Hazardous Materials in accordance with all applicable laws. Except for Hazardous Materials used in office business operations as described in the immediately preceding sentence, Tenant shall notify Landlord immediately of the presence of or disposal of Hazardous Material on or near the Leased Premises,and of any notice by a party alleging the presence of Hazardous Material on or near the Leased Premises. _However, Hazardous Materials brought upon, transported, used, kept or stored in or about the Property which is necessary for Tenant to operate its business for the use permitted under Reference Provision 1.03 of this Lease shall be brought upon, transported, used, kept and stored only in the quantities necessary for the usual and customary operation of Tenant's business and in a manner that complies with: (i)all laws,rules,regulations,ordinances,codes or any other governmental restriction or requirement of all federal,state and local governmental authorities having jurisdiction and regulating the Hazardous Material;(ii) permits(which Tenant shall obtain prior to bringing the Hazardous Material in, on or about the Property)issued for the Hazardous Material; and(iii) all producers' and manufacturers' instructions and recommendations,to the extent they are stricter than laws, rules, regulations, ordinances, codes or permits. If Tenant, its agents, employees or contractors,in any way breaches the obligations in the preceding sentence; or if the presence of Hazardous Material on the Property caused or permitted by Tenant results in the release or threatened release of Hazardous Material on, from or under the Property;or if the presence on,from or under the Property of Hazardous Material otherwise arises out of the operation of Tenant's business then, without limitation of any other rights or remedies available to Landlord under this Lease or at law or in equity,Tenant shall indemnify,defend,protect and hold harmless Landlord (and Landlord's parents, subsidiaries, affiliates,employees,partners,agents,mortgagees or successors to Landlord's interest in the Leased Premises) (collectively "Indemnity") from any and all claims, sums paid in settlement of claims,judgments, damages, clean-up costs,penalties, fines, costs, liabilities,losses or expenses(including,without limitation, attorneys', consultants'and experts'fees and any fees by Landlord to enforce the Indemnity)which arise during or after the Term as a result of Tenant's breach of the obligations or the release or contamination of the Property, including, without limitation: diminution in value of the Property; damages for the loss of, or the restriction on the use of,rentable or usable space or any amenity of the Property;damages arising from any adverse impact on the sale or lease of the Property;and damage and diminution in value to the Property or other properties, whether owned by Landlord or by 3rd parties. This Indemnity includes, without limitation, costs incurred in connection with any investigation of site conditions or any clean-up,remedial,removal or restoration work required by any federal, state or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on, under or originating from the Property. Without limiting the foregoing, if the presence of Hazardous Material on the Property caused or permitted by Tenant results in the contamination, release or threatened release of Hazardous Material on, from or under the Property or other properties, Tenant shall promptly take all actions at its sole cost and expense which are necessary to return the Property and other properties to the condition existing prior to the introduction of the Hazardous Material;provided that Landlord's written approval of the actions shall be obtained first(which approval shall not be unreasonably withheld) and so long as such actions do not have or would not potentially have any material,adverse long-term or short-term effect on Landlord or on the Property or other properties. This Indemnity shall survive the Expiration Date or earlier termination of this Lease and shall survive any transfer of Landlord's interest in the Property. "Hazardous Material" means any hazardous, radioactive or toxic substance, material or waste, including, but not limited to, those substances, materials and wastes(whether or not mixed,commingled or otherwise combined with other substances,materials or wastes)listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and amendments thereto, or substances, materials and wastes which are or become regulated under any applicable local, state or federal law including, without limitation, any material, waste or substance which is (i) a petroleum product, crude oil or any faction thereof, (ii)asbestos, (iii)polychlorinated biphenyls, (iv)designated as a"hazardous substance"pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251, et seq. (33 U.S.C. Section 1321)or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317), (v) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C. Section 6903) or (vi) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response,Compensation,and Liability Act,42 U.S.C.Section 9601,et seq.(42 U.S.C.Section 9601). 11 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Landlord and Tenant agree that, in the performance of their respective work in the Leased Premises, they shall not use or install, or permit their contractors or subcontractors to use or install, Hazardous Materials. Should either party discover, during the Term hereof, materials in the Leased Premises that it suspects are hazardous, then that party shall notify the other, and Landlord will then retain an environmental consultant to test for the presence of the suspected Hazardous Material. If the presence of a Hazardous Material is confirmed, Landlord will undertake such measures as it deems reasonably appropriate and necessary under the circumstances, or as may be required by law, to encapsulate, abate or remove and dispose of the Hazardous Material, in compliance with applicable laws and regulations. If the Hazardous Material was originally installed or brought on to the Leased Premises or the Property by Tenant, or Tenant' s employees, agents, sublessees, assignees, licensees, contractors or subcontractors, then Tenant shall be liable for all costs of inspection, consultation, encapsulation, abatement, removal and/or disposal. If the Hazardous Material was originally installed by Landlord, its contractor or subcontractors, a third party other than Tenant, or Tenant' s employees, agents, sublessees, assignees, licensees, contractors or subcontractors, then Landlord will be liable for the costs (and, if Tenant is required to close the Leased Premises during the period the encapsulation, abatement or removal work is performed, Tenant will be entitled to an abatement of all rental and charges for the period of closure) . If the Hazardous Material was originally installed by Tenant, or Tenant' s employees, agents, sublessees, assignees, licensees, contractors or subcontractors, and Tenant is required to close the Leased Premises during the period the encapsulation, abatement or removal work is performed, Tenant will not be entitled to any rental and charges abatement. Tenant will promptly reopen for business after the abatement or removal work has been completed. ARTICLE 16-Environmental Services (a) Landlord shall pay for the utilities used in the Leased Premises by Tenant during the Term; provided, however, Landlord shall only be responsible for the payment of reasonable utility charges normally incurred in the operation of an average office location in the geographic area in which the Shopping Center is located. For purposes of this Article 16, the reasonable utility charge shall be determined based on the average utility charge for the Landlord' s management office located in the Shopping Center. 12 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 69 Poe 170/80/170 TWIN LRIIY Td NNU —aR1TVIld NaGH AO A LIO oop'17080170-0sna-T zaiuoD dE\08NI1O\saI!d o za}UT kreioduzas\slur as poo-RepocbRsOupps pile s1uomn3oQ\:O £i •uotldumsuoo l3zaua s,lutuoy ,,,,,, ,ou ,ng 's,'!ptgot. ,,,assue chi^ _0I �S.russoo0u sure!) 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Amp tons Iin zo3 !IN oq1 And Hugs lunuoy `olndslp Aug Io I113A0 0 „ slgl Joplin soslurazd p^C^^T ^ c^ p^gsruunj soap as Cue ^2zugo IEIUOUrnos!suo uE `pup! jo jjo I3s uoponpop InotlrM `(tluour Inuollonarj Auu zo3 polnzozd) uu0y oq1 2uunp gluour 0tl jo /SEp lszr oq1 uo 03UEApn trl `JElu3z IEuopIp a sr `And gluts Tunuay Viral; IEnuu\urnurlull tl agI o1 uolllppt uI (T) lions lie pun lunuoy atl Ali po2uezzn off-IIEgs-eatA=as-SEA-IEn ^ =sl!glEpc-a-ar F t anpacean-a! Ell E-aq IIEgs 03!AJOS Alllin tons `ssaulsnq sputa"jo uognzodo IEuzzou oqI zoj sn IEznluu ozlnboz Hugs lueuay IT (o) •s!grgx3 0qT pm OOUEp303On U[Sastulazd p0seo7 0LI1 ulgliM surolsXS JOMOS put JOWM oql jo uolleilElsul ay. 2utlaiduro3 zo3 alglsuodsoz oq IIEgs `0suadxo s,Iutuay In `Iunuay •s 033E ul sosr_urazd posnai otl 01 a31Azas JOMOS pun .ral1M oprnozd ii?M g0r1M c6 c < < •s0slur3zd pos aZ 3 • sl ;utuay imp Pzolpura 04 A.top3 IUluolllpuo3 ire p ^- `s,.,,^aq sil a „ellw^d0 agl ui A iouo onzosuoo oI slzojjo lsoq osn IIEgs Iunaoy uo3 Ire pun uoilutllu3A Iul4EOq agl ulelulntu hugs`osuodxa s,Iueuoy In `Iu1u3y • sll'.'' . . ds0z aq Hugs Iunu0y (3) 'sltglgxa at1 gilts a3unpzo33E u!0q IIIM soslurOzd pOsuo7 ogles uollelilu0A` u11 aH (a) .cn,,dwee c,:..,,,e ^„a.,,^ol ogl uto.q Alloaal$ oq mom Immu0y 1pIgM letl p003x0 lou IIEgs pzolpuEZ Fq p0tSluznl s0pgw zOI lunuOy 0I 32atg3 0g11ttl`IoAOMog `sooan pz . . ns asegaznd Iou km pun aau5rs3p slr z0 pzolpuC-T umij sa1lillln gins osngaznd hugs IUEUOy `sasItuald poseo' ogl ur p0sn s3rlrllln 3t1 g11M Irma" s0p!Ao1d 03u21s0p slr 10 pzolpun' IT •s3slur0zd p0sEO7 3 Q, p-ae dun saxcl pun sltlu0z `(sosturazd pasea'atl ul pacn s0111I11n z , 4-se.3 Epe l..pun)0.4,.E -3 A2MaS-PRE-40=CM 1. An i . .un Co14q n SOgTO ile Pne- e. . . .iddc- e paelpuci Aq ponnbazjl`IIEgs Iueuoy -two"0g12uunp saslurazd pasco 3 _ . e luuu0y (h) Landlord shal rface wiring system and shall make any necessary repairs to-or replacements of such telephone raceway and/or interface wiring system (except that Landlord's obligation shall not include repair or replacement of service extensions, wiring or other telephone systems exclusively servicing the-Leased Premises and that Tenant shall reimburse Landlord for any v b � employees and contractors). In consid a Term a-telephone raceway-andier interface wiring system charge equal to the product obtained by multiplying $15.00 times the number of pair connections requested by Tenant to such interface wiring system. (i) Tenant agrees that garbage and refuse shall be kept in an adequate container so as not to be visible to the lieu and inst d of the foregoing provisions of this subsection(i),Landlord,or a contractor selected by the Landlord, at its option, may purchase or lease a garbage compactor for the use of tenants and occupants of the Shopping Center. if T a dlord, contractor selected by the Landlord, purchases or leases said garbage compactor for the use of tenants in the Shopping Center,then Tenant agrees to use the same for the disposal of its garbage and refuse to the exclusion of all other gar , therefor, based upon Landlord's, or a contractor selected by Landlord, reasonable estimate of the amount of the refuse and garbage generated and the fro age and refuse be charge-as-aferementioned-will-not include pick up service. The aforementioned monthly charge as estimated by Landlord, or a contractor selected by Landlord, shall be adjusted from time to time based upon the garbage r dirty linen in le link covers. In addition to the foregoing, Landlord may cause the removal of all debris, rubbish, material and equipment during the construction of Tenant's c time preceding the initial opefring-date-ofthe-Shopping-GenterTand-charge-the-cest-thereof4o Tenant as provided in the exhibits. Tenant shall pay Landlord such charge within 10 days of billing. (j) During the Term, Landlord shall keep in good order and repair and shall maintain the sprinkler system in fihe Lease , , , replacements of sueli spr ler system except—that Tenant,shall be financially responsible for all repairs and replacements thereto necessitated by any act to act egligenee of Tenant Te„ nfs e„ts, employees-and-contractors. In consideration thereof, Tenant shall pay to Landlord, for ch Lease Year or partial rn , for repairs or replacements made necessary by reason of the acts, omissions to act or negligence of Tenant or Tenant's agents, employees or contractors. All modifications to such sprinkler system that Tenant may desire shall be-p any furnishing water to the Shopping Center levy, assess or impose upon Landlord a sprinkler system backupdlord its a fraction, the numerator of which shall be the gross leasable area of the Leased Premises and the-denominator-of which shall he the gr s leasable area in the Shopping Center served by el s rinkler s .stem determined_a „fthe date such charge is billed to Tenant;and shale paid by Tenant within 10 days after billing by Landlord. ARTICLE 17-Joint Use Areas (a) The "Joint Use Areas" shall consist of all parking areas, parking facilities, approaches, streets, sidewalks, malls, driveways, loading platforms, canopies, elevators, escalators, ramps, storm drainage facilities, exits, entrances, sprinkler mains, landscaped areas, comfort stations, light facilities, computer facilities, cable facilities, telecommunications facilities, washrooms', lounges and shelters, utility lines, roofs, roadways and other facilities available for joint use or benefit designated by Landlord,as they may from time to time exist and be available to the tenants in the Shopping Center,their employees,officers,agents,customers,licensees and invitees. 14 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd / '2 (b) Landlord shall,subject to events beyond its reasonable control,maintain or cause to be maintained the Joint Use Areas in good order and repair. The Joint Use Areas and other facilities in and about the Shopping Center shall at all times be subject to the control and management of Landlord and other parties that Landlord may designate. Landlord shall have the right at any time to redesignate,modify,alter, close,restrict,expand,reduce and change the Joint Use Areas. Landlord shall also have the right to permit entertainment events, the placement of kiosks, carts, advertising and other displays in the Joint Use Areas, and to convert the Joint Use Areas into retail areas. The activities and uses may be temporary or permanent. (c) "Joint Use Area Costs" means the total of all expenditures relating to operating, managing, equipping, policing, protecting, lighting, repairing, cleaning, replacing and maintaining the Joint Use Areas in the same or improved condition as when originally installed, including any rental and lease payments paid for machinery and equipment used in the maintenance of the Joint Use Areas and the personnel costs to implement those services. (However,if the machinery and equipment is purchased,depreciation as well as interest at the Interest Rate,shall be a Joint Use Area Cost). The costs and expenses shall include but not be limited to:inspection of equipment;license, permit and inspection fees;rental of space outside the Shopping Center,if needed,for the storage or maintenance of equipment,supplies and other items;rental of motor vehicles for use in the Shopping Center; fees and expenses for consultants retained by Landlord for the purposes of energy conservation, insurance and the allocation of various costs and expenses among tenants of the Shopping Center;the costs of compliance with statutes, laws, codes,rules and regulations, even if applicable after the Commencement Date;assessments and charges for maintaining parking spaces for employees,customers and other parties;parking deck costs;mass transit taxes,fees and charges;business and rent taxes, fees and charges; music; maintenance of the roof; removal of snow, ice, rubbish, dirt and debris; garbage collection service; planting, replanting and replacing flowers and landscaping; costs and expenses of utilities including, but not limited to, maintaining lighting facilities and storm drainage and detention systems (whether on or off the Shopping Center);sewage treatment plant;domestic water wells,pumps,and similar facilities and equipment; heating and cooling the enclosed portion of the Shopping Center; all costs, expenses and charges incurred by Landlord in connection with any change of any company providing utility service (including, without limitation, maintenance, repair, installation and service costs associated with any change); reserves for future maintenance and repair work(if established); certified audit cost; pest extermination; the alarm service charge if a supervised fire sprinkler alarm system is installed; premiums for liability, property, damage, fire and rental interruption insurance (if carried by Landlord); the cost of the Shopping Center manager and the personnel reasonably required(including applicable benefits,payroll taxes, workman's compensation insurance and disability insurance) to implement all of the foregoing, including the policing of the Joint Use Areas and the directing of traffic and parking of automobiles on the parking area; and of the personnel costs attributed to the Joint Use Areas; insurance aggregate allocations and losses borne by Landlord as a result of deductibles or self-insured retention limits carried by Landlord under an insurance policy or self insurance by Landlord; costs of adjusting an insured casualty; wages; unemployment, social security and personal property taxes; all expenditures made for the use or benefit of the Joint Use Areas. Tenant's payment of Joint Use Area Costs for the Term of this Lease first calendar year shall be the amount specified in Reference Provision 1.22. Tenant's payment shall increase during the second and each subsequent calendar y ar to an amount equal to the product obtained-lyf multiplying Tenant's payment for the previous calendar year by 105%. Tenant shall deliver to Landlord the Joint Use Area Cost payment in equal monthly installments in advance, upon the 1st day of each and every month during the Term. As Tenant's payments due hereunder are predetermined and not subject to adjustment except as expressly provided herein,Tenant shall have no express or implied right to examine,inspect or audit Landlord's records pertaining to Joint Use Area Costs. ARTICLE 18-Damage to Premises If the Leased Premises are damaged, destroyed or rendered partially untenantable by fire or other insured casualty, Landlord shall promptly repair and restore the Leased Premises in accordance with Landlord's Work. From the date of the fire or casualty until the Leased Premises are repaired and restored,Minimum Annual Rental and additional 15 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd rental, except for Tenant's share of taxes due under ARTICLE 7 and any additional rental due under ARTICLE 17, shall abate in the proportion that the part of the Leased Premises destroyed or rendered untenantable bears to the total Leased Premises. Landlord shall not be required to repair or restore the Leased Premises or any part of the Shopping Center as the result of an uninsured casualty. If 50% or more of either the Leased Premises or the Shopping Center is destroyed or rendered untenantable by fire or other casualty during the last 3 years of the Term (based upon the replacement cost compared with the market value of the improvements immediately prior to the fire or other casualty as shown by the certificate of Landlord's architect), either party shall have the right to terminate this Lease. The termination shall be effective on the date of casualty by Landlord or Tenant giving the other,within 90 days after the casualty, written notice of termination. If the notice is given within the 90 day period,this Lease shall terminate and Minimum Annual Rental and additional rental shall abate from the date of the casualty. Landlord shall promptly repay Tenant any rental paid in advance which had not been earned at the date of the casualty. If the notice is not given and Landlord is required or elects to repair or rebuild the Leased Premises, Tenant shall repair and replace its merchandise, signs, goods, trade fixtures, furnishings, equipment, furniture and other personal property to a condition at least equal to its condition prior to its damage or destruction and,if Tenant has closed, Tenant shall promptly reopen for business. Landlord shall not be required to expend more for repair or restoration of the Leased Premises or the Shopping Center than the amount of insurance proceeds paid Landlord(or, if Landlord is self-insured,the amount of insurance proceeds which would have been paid Landlord if Landlord was not self-insured). Except as expressly provided to the contrary,this Lease shall not terminate nor shall there be an abatement of Minimum Annual Rental or additional rental as the result of a fire or other casualty. ARTICLE 19-Insurance (a) Landlord agrees to carry,or cause to be carried,the following insurance coverages and types: (i) Workers'Compensation Insurance in statutory amounts; (ii) Employer's Liability Insurance in the amount of $1,000,000 per person for each accident, or disease; (iii) Commercial General Liability Insurance on the Joint Use Areas providing coverage of not less than$1,000,000 per occurrence,with a$2,000,000 aggregate. (iv) Commercial Property Insurance including special form perils endorsement insuring Landlord's property in the Shopping Center for the full replacement value. This insurance will exclude Tenant's Work and Tenant's merchandise,signs,goods,trade fixtures,furnishings,equipment,furniture and other personal property). (v) Landlord will have the right to carry or cause to be carried additional types of insurance in whatever limits Landlord chooses, including coverage under blanket insurance policies which may be allocated by Landlord among the properties owned or managed by Landlord which in Landlord's opinion Landlord deems appropriate. To the extent such insurance is relative to the Joint Use Areas,Tenant's reimbursement for the cost thereof is included as part of the Joint Use Area Costs pursuant to Article 17(c). (b) Tenant agrees to carry the following insurance coverages and types: (i) Workers'Compensation Insurance in statutory amounts; (ii) Employer's Liability Insurance in the amount of $1,000,000 per person for each accident, or disease; 16 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 7-3 (iii) Commercial General Liability Insurance including products and completed operations coverages of not less than$1,000,000 per occurrence,with a$2,000,000 per location aggregate(for Shopping Centers in the states of New York, Texas and California these limits shall be $3,000,000 per occurrence with a $5,000,000 per location aggregate). The fire legal liability limit shall be not less than$1,000,000. This policy shall contain a Contractual Liability Endorsement. This policy shall also include an Additional Insured Endorsement containing the names of the Additional Insureds identified below. The policy must have a Waiver of Subrogation endorsement in favor of all Additional Insureds.Any deductible/self-insured retention in excess of$5,000 per occurrence requires Landlord's written consent. (iv) Commercial Property Insurance including special form perils endorsement insuring Tenant's property,including plate glass,in the Shopping Center for the full replacement value,without deduction for depreciation. This policy shall have an Agreed Value Endorsement. This insurance must include all of Tenant's Work, improvements and betterments, Tenant's inventory, merchandise, signs, goods, trade fixtures, furnishings, equipment, furniture, wall coverings, floor coverings, and other personal property). Tenant shall insure for loss from flood,including coverage for water damage from all causes including but not limited to sprinkler damage,sewer discharge or backup,water line breakage,and overflow from other Tenant's spaces or from the Joint Use Areas.Where available,Tenant shall insure for earthquake. Landlord shall be named as a loss payee with respect to the coverage for Tenant's betterments and improvements. The policy must have a Waiver of Subrogation endorsement in favor of all Additional Insureds. The deductible/self-insured retention shall not exceed $5,000 per occurrence without Landlord's written consent. (v) Loss of Business Income Insurance, including Extra Expense and Contingent Business income coverage. The insurance limits for this insurance shall be based upon a minimum of 12 months business income with a 60-day extended period of indemnity endorsement. (vi) Boiler and Machinery insurance, including mechanical breakdown, covering rooftop HVAC units and any separate heating units or boilers which serve only the Leased Premises. Such coverage shall be for the full replacement value of the units without deduction for depreciation. (vii) If in Landlord's reasonable judgment there is a need for additional or different types of insurance, Tenant shall obtain upon Landlord's request the insurance at Tenant's sole expense, provided that the additional types or amounts of insurance comply with the then current industry standard. (viii) Automobile liability coverage,including owned,non-owned and hired automobiles,with limits of not less than$1,000,000 combined single limit for bodily injury and property damage. (c) All policies of insurance required of either party hereunder (including policies of Tenant's contractors and subcontractors) shall contain a Waiver of Subrogation Endorsement in favor of the other party and all Additional Insureds. If Tenant or Landlord is permitted to and does self-insure for any of the insurance coverages required to be provided, the self—insuring party Tenant hereby waives against the other party Landlord,its their parents,partners,joint venturers, subsidiaries and affiliates,against the property manager,and against the Additional Insureds if not listed below, all claims, including any and all rights of subrogation which may exist, for all losses and damages no matter how caused,which were or could have been insured for under any policy of insurance required to be obtained by the self—insuring party. Tenant This waiver of liability and waiver of subrogation expressly includes any cause of loss due to the sole or concurrent negligence of the other party and any Additional Insured. If Tenant or Landlord shall,for any reason,fail to obtain from its insurance carrier(s)the required Waiver of Subrogation Endorsement, the failing party tenant shall fully and completely defend and indemnify the other party Landlord and all Additional Insureds from any claims and demands, including lawsuits, brought against the other party Landlord and/or the Additional Insureds by any 17 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 7 � insurance company which insured the failing party Tenant for a paid loss and which seeks to recover amounts paid under the failing party' s Tenant's policy. (d) Tenant shall provide a Certificate of Insurance to Landlord evidencing all of the required coverages and Endorsements prior to taking possession of the Premises. The Certificate of Insurance must remain current(or be replaced with a current Certificate)at all times during the period of Tenant's tenancy.All policies of insurance must be written by insurance carriers licensed to do business in the state in which the Shopping Center is located and have an A.M.Best's rating of not less than A:VII. All Tenant's liability policies shall be endorsed to be primary and non- contributory to policies of the Landlord and the Additional Insureds, and shall contain either a cross-liability endorsement or separation of insureds provision which permits the limits of liability under Tenant's policies to apply separately to each Additional Insured. Each policy shall contain a provision that the insurance company shall give all Additional Insureds 30 days written notice in advance of any cancellation,lapse,reduction in amount of coverage or any other adverse change to the policy or insurer. (e) The Additional Insureds who shall be named on Tenant's policies shall include the Landlord, (and if Landlord elects, its parent, subsidiaries, and affiliates), any owner or occupant in or adjoining the Shopping Center (including anchor tenants), any joint venturer or partner of Landlord, and any mortgagee or beneficiary of any part of the Shopping Center. ARTICLE 20-Indemnification Excluding the willful misconduct of the indemnitee,Tenant shall indemnify, defend and save harmless Landlord, its parents, partners, subsidiaries, affiliates and any anchor, owner or operator which is or may be in the Shopping Center, their agents, officers and employees from and against liability, claims, demands, expenses, fees, fines, penalties, suits,proceedings,actions,and causes of action arising out of or connected with Tenant's use, occupancy, management or control of the Leased Premises or Tenant's operations or activities in the Shopping Center(whether or not occurring or resulting in damage or injury within the Leased Premises or the Joint Use Areas).This obligation to indemnify shall include reasonable legal and investigation costs and all other reasonable costs, expense and liabilities from the 1st notice that any claim or demand is or may be made. Tenant's obligation shall become effective beginning on the date Tenant is delivered the Leased Premises. Tenant's indemnification obligation shall survive the expiration of the Term or the earlier termination of this Lease. Excluding the negligence or willful misconduct of the indemnitee, Landlord shall indemnify, defend and save harmless Tenant, its agents, officers and employees, against liabilities, claims, demands, expenses, fees, fines, penalties, suits, proceedings, actions, and causes of action arising out of or connected with the Landlord' s management or control of the Joint Use Areas or Landlord' s operations or activities in the Joint Use Areas, except any matter arising out of or in connection with ARTICLE 15 (d) . This obligation to indemnify shall include reasonable legal and investigation costs and all other reasonable costs, expenses and liabilities from the first notice that any claim or demand is or may be made. Landlord' s indemnification obligation shall survive the expiration of the Term or the earlier termination of this Lease. ARTICLE 21-Assignment,Subletting and Ownership 18 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 7_S (a) Tenant acknowledges that its agreement to operate in the Leased Premises for the use permitted in the Reference Provisions for the Term was a primary inducement and precondition to Landlord's agreement to lease the Leased Premises to Tenant. Additionally, the parties agree that the successful commercial profitability of the Shopping Center is based on the appropriate mix of retail and nonretail activity and that Landlord has leased the Leased Premises to Tenant because, in Landlord's opinion, Tenant's presence and commercial activity during the Term will significantly contribute to the profitability, viability and success of the Shopping Center. Accordingly, Tenant shall not transfer, assign, sublet, enter into license or concession agreements, change ownership or hypothecate this Lease or Tenant's interest in and to the Leased Premises in whole or in part, or otherwise permit occupancy of all or any part of the Leased Premises by anyone with,through or under it. Any of these acts shall be considered a"transfer"for the purposes of ARTICLE 21. Any attempt at a transfer shall be null and void and confer no rights upon a 3rd person. These prohibitions shall be construed to refer to events occurring by operation of law, legal process,receivership, bankruptcy or otherwise. Notwithstanding any permitted transfer, the Leased Premises shall be used and operated as a single store. Notwithstanding the foregoing,and without conferring any rights upon Tenant,Tenant shall submit the request for a transfer, in writing, with sufficient time and information for Landlord to make an informed decision regarding the qualifications of the proposed transferee. In any event, Landlord may upon receipt of a request to transfer, instead of consenting to or denying the proposed transfer, terminate Tenant's obligations under the Lease and regain possession of the Leased Premises. Tenant may,within 15 days of receipt of the notice of termination,withdraw its request for the transfer by written notice to Landlord, and continue in possession under the terms of the Lease. Landlord's right to terminate the Lease because of that request shall in that event be inoperable. If Landlord exercises its termination right, Tenant shall surrender possession of the Leased Premises on the termination date specified in Landlord's notice, which shall not be less than 30 nor more than 60 days of receipt of the notice of termination in accordance with the provisions of this Lease. (b) Landlord's consent to a transfer shall not constitute a waiver of Landlord's right not to consent to a subsequent transfer. The receipt of rental or additional rental from any party other than Tenant shall not be deemed to be a consent to a transfer,nor shall that receipt relieve Tenant of its obligation to pay rental or additional rental for the Term. Tenant shall not have a claim and waives the right to any claim against Landlord for damages because of the refusal,withholding or delaying by Landlord of consent. Tenant's only remedies shall be an action for specific performance or an injunction to enforce a consent requirement. (c) Each transfer to which Landlord has consented shall be in writing, in a form satisfactory to Landlord and executed by the transferor and transferee. The transferee shall agree, in writing, to assume, be bound by and perform the covenants and conditions of this Lease. Tenant shall deliver to Landlord a statement within 30 days after the end of each calendar year, and within 30 days after the expiration or earlier termination of the Term, specifying each transfer in effect during the period covered by the statement, as well as: (a)the date of the transfer document's execution and delivery; (b) the square footage of the rentable area demised and the term; and (c) a computation in reasonable detail showing the amounts, if any, paid and payable by Tenant to Landlord for the transfer pursuant to this subsection. Tenant shall not be released from liability or relieved of its obligations,unless Landlord expressly agrees otherwise in writing. If the Minimum Annual Rental,Percentage Rental,additional rental or other payment to be paid to Tenant from a transfer exceeds the rental and additional rental Tenant is required to pay Landlord under this Lease, then Tenant shall pay to Landlord the entire amount of the excess, without prior demand,which shall be deemed additional rental. (d) If Tenant (or a guarantor of the Lease) is a nonpublic corporation and the control of the corporation changes, Tenant shall notify Landlord. If the control changes (whether or not Tenant has notified Landlord), Landlord may declare the change to be a default, effective 60 days from the date of the notice from Tenant, or the date on which Landlord first has knowledge of the change,whichever occurs first. The provisions of the preceding sentence shall not be applicable if control of the corporation changes as the result of a public offering which occurs on a major security exchange. If Tenant (or a guarantor of the Lease) is a partnership or entity other than a corporation (including, but not limited to, a sole proprietorship) and if the control changes (if Tenant is a partnership,a change shall include,but not be limited to,the withdrawal of a partner or partners from the partnership or the dissolution of the partnership), Tenant shall notify Landlord. If the control changes(whether or not Tenant has notified Landlord), Landlord may declare the change a default, effective 60 days from the date of the notice 19 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd from Tenant, or the date on which Landlord first has knowledge of the change,whichever occurs first. The receipt by Landlord of rental from a party other than Tenant shall not be deemed notice of change in control or ownership of Tenant. (e) Tenant agrees to pay Landlord$400 ' ' to reimburse Landlord for attorneys'fees and administrative expense for the review,processing or preparation of any document in connection with a transfer,whether or not Landlord's consent to the transfer is required or obtained. (f) If Landlord is not permitted to terminate this Lease because of the provisions of Title 11 of the United States Code relating to Bankruptcy, as amended ("Bankruptcy Code"), Tenant agrees, as a debtor in possession or any trustee for Tenant, within 15 days after Landlord's request to the Bankruptcy Court, to assume or reject this Lease. Tenant, on behalf of itself and any trustee,agrees not to seek or request an extension or adjournment of the application to assume or reject this Lease. In no event after the assumption of this Lease shall an existing default remain uncured for a period more than the earlier of 10 days or the time period specified in this Lease. If a filing of a petition under the Bankruptcy Code occurs,Landlord shall not have an obligation to provide Tenant with services or utilities unless Tenant has paid and is current in all payments of rental and additional rental. (g) If Tenant receives Landlord's consent to a transfer under ARTICLE 21(a), and if Landlord does not terminate the Lease under ARTICLE 21(d),the Minimum Annual Rental payable to Landlord shall not be less than the highest annual combined Minimum Annual Rental and Percentage Rental payable by Tenant during any previous year. All of the other obligations,covenants and conditions shall remain unamended. ARTICLE 22-Access to Premises Tenant agrees that Landlord, its agents, employees, servants or any person authorized by Landlord, may enter the Leased Premises to: (a) inspect its condition; (b) make repairs, additions or improvements to any part of the Shopping Center, including the Leased Premises; (c) exhibit the Leased Premises to prospective purchasers of the Shopping Center;(d)place notices during the last 60 days of the Term in the Leased Premises at such places as may be determined by Landlord; (e)perform construction on or near the Leased Premises; and(f)post notices of non- responsibility. ARTICLE 23-Default by Tenant (a) The following shall be a default by Tenant: (i) The failure to pay when due an installment of rental,or any other payment required to be made in whole or in part, if the failure shall continue for more than 10 days after written notice that same is past due,provided that any such notice given by Landlord shall be in lieu of, and not in addition to, any notice required by state law;and/or (ii) The abandonment or vacation of the Leased Premises or any part of it;and/or (iii) The failure to observe or perform any other provision of this Lease, if the failure continues for 2 0 4-0 days after written notice to Tenant; if the default cannot reasonably be cured within 2 0 -1-0 days, Tenant shall not be in default if Tenant begins to cure the default within 2 0 4-0 days and diligently cures the default;and/or (iv) The making by Tenant of a general assignment for the benefit of creditors;the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or of a petition for reorganization or arrangement 20 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd under any law relating to bankruptcy(unless a petition filed against Tenant is dismissed within 60 days); the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Leased Premises or of Tenant's interest in this Lease if possession is not restored to Tenant within 30 days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Leased Premises, or of Tenant's interest in this Lease, if the seizure is not discharged within 30 days; and/or (v) The failure more than twice within a 12 month period to make any payment of rental, provided Landlord has given Tenant the required written notices in each case. The 3rd failure shall be a non-curable default. (b) In addition to any other remedies available to Landlord at law or in equity for default,Landlord shall have the immediate option to terminate this Lease and the rights of Tenant by written notice to Tenant. If Landlord elects to terminate,Landlord shall have the right to recover from Tenant as damages: (i) The worth at the time of the award of any unpaid rental which has been earned at the time of termination;and (ii) The worth at the time of the award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of rental loss Tenant proves could have been reasonably avoided;and (iii) The worth at the time of award of the amount by which the unpaid rental for the balance of the Term after the time of award exceeds the amount of rental loss Tenant proves could be reasonably avoided. Nothing herein in any way relieves the Landlord of its duty to mitigate damages; and (iv) Any other amount necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to perform its obligations (including the costs and expenses of recovering the L ased Premises and r asonablc attorneys'fee`er which would be lik"ly to result from Tenant's failure;and (v) At Landlord's election,other amounts permitted by applicable law. (c) The word"rental"shall mean all other sums required to be paid by Tenant under this Lease. The word "award" means a judgment issued or rendered in favor of Landlord in a proceeding or action to recover damages from Tenant. The phrase "at the time of the award"means the date of entry of such a judgment. All sums, , shall be computed based on the average monthly amount accruing during the 24 month period preceding the default. However,if it becomes necessary to compute the rental before the 24 month period has occurred,the rental shall be computed on the basis of the average monthly amount accruing during that shorter period. As used in paragraphs(i)and(ii)above,the"worth at the time of the award" is computed by allowing interest at the Interest Rate. As used in paragraph (iii) above, the "worth at the time of the award" is computed by discounting that amount at the discount rate of the Federal Reserve Bank of Chicago, at the time of award,plus 1%. In order to determine the amounts payable under ARTICLE 23,Percentage Rental shall be d on the average annual Net Sales for the 36 months(or, if Tenant has been operating in the L ased Premises less than 36 months, on the average Net Sales for the 12 month period) (d)Landlord shall also have the right if Tenant defaults under this Lease to terminate Tenant's right to possession of the Leased Premises (without terminating this Lease) and reenter the Leased Premises and remove all persons and property from the Leased Premises. The property may be stored at Tenant's cost. Landlord shall not be liable to Tenant for loss or damage resulting from an entry by Landlord. Tenant shall pay as additional rental,upon demand, expenses incurred or paid by Landlord because of Landlord's entry. If 2 or more or any combination of individuals, corporations,partnerships or other business associations ("Individuals") sign this Lease as Tenant or guarantee this Lease as Guarantors,the liability of each individual group to pay rental and perform the obligations under this Lease shall be joint and several. The failure or refusal by Landlord to proceed against all the(or any combination of the) 21 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Individuals comprising Tenant or against Tenant or against 1 or more of the Guarantors shall not be a release or waiver of rights which Landlord may possess against the others,nor shall the granting by Landlord of a release of or execution of a covenant not to sue any 1 or more of the (or any combination of the) Individuals comprising the Tenant or the Guarantors be a release or waiver in whole or in part of rights which Landlord may possess against the others. If either party institutes legal suit or action for enforcement of an obligation, venue for any action hereunder shall be in the State of Minnesota, and the parties consent to the jurisdiction of the courts of the State of Minnesota, County of Hennepin. Landlordmay a termine-the venue. Landlord shall not be in default unless and until Landlord shall have failed to perform its obligations under this Lease for 30 days(or within such additional time as is reasonably required)after written notice to Landlord properly specifying Landlord's failure to perform the obligations. etent jurisdiction has determined that Landlord is in default. To the extent permitted by applicable law, Tenant waives notice of reentry (or institution of legal proceedings), including the right to receive notice pursuant to any statute or judicial decision of law. Notwithstanding anything to the contrary contained in ARTICLE 23,any written notice,other than as specifically set forth in this ARTICLE 23,required by a statute or law enacted now or later is waived by Tenant, to the extent permitted under that statute or law. (e) If all or any part of the Leased Premises are vacated or abandoned by Tenant, or if Landlord elects to reenter or take possession of the Leased Premises pursuant to legal proceedings or notice, and if Landlord does not elect to terminate this Lease, then Landlord may from time to time, without terminating this Lease, either recover rental as it becomes due or relet the Leased Premises or any part of it for any length of time, rental and conditions that Landlord in its sole discretion deems advisable. Landlord shall have the right to make alterations and repairs to the Leased Premises. If Tenant has left all or any of its trade fixtures, furniture, furnishings, signs, stock or other personal property in the Leased Premises,that shall not preclude a determination that a vacation or abandonment has occurred. (f) If Landlord elects to relet, rental received by Landlord from reletting shall be applied: 1st,to the payment of indebtedness other than rental due Landlord from Tenant;2nd,to the payment of the cost of reletting;3rd,to the payment of the cost of alterations and repairs to the Leased Premises;4th,to the payment of rental due and unpaid; and the remainder, if any, shall be applied to the payment of future rental that may become due. If the rental received from reletting during any month which is applied to the payment of rental is less than the rental payment during that month by Tenant, Tenant shall pay the deficiency to Landlord. The deficiency shall be calculated and paid monthly. Tenant shall also pay Landlord,as soon as ascertained,the costs and expenses incurred by Landlord to relet or make alterations and repairs not covered by the rental received from the reletting of the Leased Premises. (g) A reentry or taking possession of the Leased Premises by Landlord shall not be construed to be an election to terminate this Lease,nor shall it cause a forfeiture of rental remaining to be paid during the balance of the Term, unless a written notice of that intention is given to Tenant or the termination is decreed by a court of competent jurisdiction. Notwithstanding a reletting without termination by Landlord because of default by Tenant, Landlord may at any time after reletting elect to terminate this Lease for any default. (h) Tenant expressly waives any right or defense it may have to claim a merger, and neither the commencement of an action or proceeding nor the settlement of, or entering of judgment for any action or proceeding shall bar Landlord from bringing subsequent actions or proceedings,based upon other or subsequently accruing claims, or based upon claims or events which have previously accrued and not been resolved in any prior action, proceeding or settlement. The parties waive trial by jury in any action,proceeding or counterclaim brought by either of the parties against the other,regardless of whether such action,proceeding or counterclaim is related to a default under this Lease. ARTICLE 24-Surrender of Premises 22 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Tenant shall, upon expiration of the Term, or the earlier termination of this Lease, surrender to Landlord, without damage, injury, disturbance or payment, the Leased Premises including, without limitation, all apparatus, equipment, alterations, improvements and additions by either party to, in, upon or about the Leased Premises. If Tenant shall be in default,Tenant shall not have the right to remove trade fixtures,signs and other personal property. They shall remain or become, as the case may be, the property of Landlord. Tenant, at its sole expense, shall immediately repair damage to the Leased Premises caused by Tenant vacating the Leased Premises or by Tenant's removal of trade fixtures, signs and other personal property. Tenant shall comply with all laws and governmental regulations applicable to the removal and repair of the property. Tenant shall not create a disturbance or health problem for customers, agents, invitees or other parties in the Shopping Center as result of the removal or repair. Any property not removed may be deemed by Landlord to be abandoned by Tenant and may be retained by Landlord or may be removed and stored for Tenant, at Tenant's sole cost. Tenant shall surrender the Leased Premises to Landlord free of Hazardous Material and free of any violation of any environmental rule or regulation. Upon surrender of the Leased Premises, Tenant shall table to Landlord showing the Leased Premises free of Hazardous—Material. Tenant's obligation to observe and perform the provisions of this ARTICLE 24 shall survive the expiration of the Term or earlier termination of this Lease. ARTICLE 25-Tenant's Conduct of Business (a) Tenant covenants to continuously and uninterruptedly operate within the entire Leased Premises the business it is permitted to operate under Reference Provision 1.03,except any portion of the Leased Premises while that portion is untenantable because of fire or other casualty. Tenant agrees to conduct its business at all times in a first-class manner consistent with reputable business standards and practices, and to maintain within the Leased Premises a stock of merchandise and trade fixtures adequate to service and supply the usual demands of its customers. Tenant shall keep the Leased Premises in a neat,safe,clean and orderly condition. Tenant also agrees to conduct Tenant's business under the Trade Name set forth in the Reference Provisions,which Tenant represents that it has a right to use. Tenant further agrees to keep open the Leased Premises and operate its business at the hours and o the days and nings of the week determined from time to time by Landlord in Landlord's sole and absolute discretion. A vacation or abandonment of other premises by any other tenant, occupant or anchor in the Shopping Center shall not release Tenant from its obligations under this Lease, notwithstanding anything to the contrary contained in this Lease. If Tenant shall request Landlord's approval to open the Leased Premises for business for periods other than as set forth above and Landlord shall approve such request (which approval shall be in Landlord's sole and absolute discretion),Tenant shall pay for any additional costs incurred by Landlord in connection with such extended hours, including but not limited to the cost of security, heating, ventilating and air-conditioning the Leased Premises and the Joint Use Areas required in order to access the Leased Premises, and any extra maintenance and/or repair to the Joint Use Areas required as a result of such extended operating period. Additionally,Tenant shall be responsible for any such extraordinary additional maintenance,security or other costs which are incurred by Landlord as a result of Tenant's use of the Leased Premises during extended operating hours. (b) The—parries agree that because of the difficulty , Tenant fails to keep open the Leased Premises and operate its business during the hours and on the days and evenings of the week determined by Landlord, in addition to and not in lieu of Landlord's other rights and-remedies; Tenant shall pay Landlord liquidated damages of$150 per hour or fraction of thehour, as the case may be, that Tenant fails to keep open and-operate the Leased Premises and operate its business. Landlord and Tenant agree that ARTICLE 26-Rules and Regulations 23 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Tenant shall require its employees, agents and contractors to comply with the rules and regulations made by Landlord from time to time regarding the operation of the Shopping Center or the Leased Premises including, but not limited to,the following: (a) Tenant shall not put on the glass and supports of the windows(nor within 24 inches of any window),doors or exterior walls of the Leased Premises any signs,advertising placards,names,insignias,trademarks or descriptive material. No signs or other items shall be placed within the Leased Premises if they materially obstruct a view of the Leased Premises. Tenant shall not place vents, structures, improvements or obstructions on the exterior of the Leased Premises without Landlord's written consent. Landlord shall have the right,without giving notice to Tenant and without liability,to restore the Leased Premises and remove property from the Leased Premises unless the size, type, color, location,copy,nature and display qualities of the property were approved by Landlord in writing. The cost of the restoration and removal of property shall be paid for by Tenant promptly upon receipt of a bill. Tenant shall not place a sign on the roof of the Leased Premises notwithstanding anything in this Lease to the contrary. (b) No awning or other projections shall be attached to the outside walls of the Leased Premises or the Shopping Center without the written consent of Landlord. (c) Loading and unloading of goods shall be done only at the times, in the areas and through the entrances designated by Landlord. (d) Garbage shall be kept in the kind of container approved by Landlord's fire and casualty consultants and shall be removed and deposited daily in mass disposal containers in the manner prescribed from time to time by Landlord. Landlord shall provide or designate a service for collection of garbage from designated mass disposal containers. (e) Except solely for Tenant's own internal operations use within the Leased Premises, no No radio or television aerials or other receivers and/or equipment, infrared transmitters/receivers, cabling, telecommunications systems(including but not limited to switching,relay,hub or booster systems)shall be erected or placed within the Leased Premises or on the roof or walls(interior or exterior)of the Leased Premises or the Shopping Center without the written consent of Landlord, which consent will not be unreasonably withheld; provided, however, in no event will Tenant be allowed to use any radio or television aerials or other receivers and/or equipment, infrared transmitters/receivers, cabling, telecommunications systems (including but not limited to switching, relay, hub or booster systems) except for Tenant' s own internal operations and for use solely within the Leased Premises . may be withheld in Landlord's sole discretion. If Landlord's consent is not received, anything erected or placed on the roof or elsewhere within the Shopping Center may be removed, without notice, and any damage to the walls or roof or elsewhere within the Shopping Center shall be the responsibility of Tenant. Tenant's access to the roof is limited to the maintenance of equipment installed with Landlord's approval and inspections for damage. Tenant shall not go on the roof without the written approval of Landlord. (f) No loudspeakers, televisions, phonographs, radios, flashing lights, machinery or other devices shall be heard or seen outside of the Leased Premises without the prior written consent of Landlord. (g) No auction, fire, bankruptcy or selling-out sales shall be conducted without the written consent of Landlord. (h) Tenant shall keep its display windows and signs illuminated every day of the Term during the hours designated by Landlord. (i) Areas immediately adjoining the Leased Premises shall be kept clear by Tenant,and Tenant shall not place nor permit obstructions,garbage,refuse,improvements,merchandise or displays in those areas. 24 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd (j) Tenant and its employees shall not park motor vehicles in parts of the parking area which may be designated for customer parking. Tenant shall furnish Landlord the state automobile license numbers assigned to the vehicles of Tenant's employees within 5 days after request by Landlord. Tenant shall notify Landlord of changes to the numbers within 5 days after the changes occur. If Tenant or Tenant's employees continue to park in the customer parking areas,after notice is given to Tenant by Landlord,Landlord may,in addition to any other remedies Landlord may have, charge Tenant $25 per day, for each day or partial day, per vehicle parked in the customer parking areas,attach violation stickers or notices to the vehicles and have the vehicles removed at Tenant's expense. (k) Tenant shall use the pest extermination contractor that Landlord may choose, and when Landlord requires Tenant to do so. Tenant shall not keep or permit any animals in the Leased Premises,unless expressly allowed by in this Lease,or unless used by disabled persons. (1) If Landlord installs a central music system in the Shopping Center,and Tenant desires to purchase another music system,Tenant may,at Landlord's option,purchase the system from Landlord(provided Landlord's charge is competitive with any similar service available to Tenant). (m) Tenant shall not carry on any trade or occupation or operate any instrument,apparatus or equipment which emits an odor or causes a noise outside the Leased Premises or which is offensive. (n) Tenant shall not put temporary signs or fixtures (including portable trade fixtures, displays and folding tables) for the display of merchandise within 3 feet of either side of any entrance to the Leased Premises. Merchandise displays shall not extend beyond the frontage line of the Leased Premises. (o) Tenant shall store and stock in the Leased Premises only goods, wares, merchandise and other property necessary for the conduct of Tenant's business. (p) Tenant shall not use or permit the Leased Premises to be used for living, sleeping,residential or lodging purposes. (q) Tenant shall not use the plumbing for a purpose other than that for which it is constructed. No grease or foreign substance shall be put in the plumbing, and the expense of any resulting breakage, stoppage or damage (whether on or off the Leased Premises)shall be borne by Tenant. (r) Tenant shall not in the Joint Use Areas: CO vend, peddle or solicit orders for sale or distribution of any merchandise, device, service, periodical,book,pamphlet or other matter; (ii) exhibit any sign,placard,banner,notice or other written material; (iii) distribute any circular,booklet,handbill,placard or other material; (iv) solicit membership in any organization,group or association or contribution; (v) parade,patrol, picket, demonstrate or engage in conduct that might interfere with or impede the use of the Joint Use Areas by any customer, invitee or employee, create a disturbance, attract attention or harass,annoy,disparage or be detrimental to the interest of any of the other tenants; (vi) use the Joint Use Areas for any purpose when none of the retail establishments within the Shopping Center are open for business; (vii) panhandle,beg or solicit funds;nor (viii) solicit business. 25 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd (s) Tenant shall have the responsibility for protecting the Leased Premises from theft, robbery and pilferage, and shall keep non-customer doors locked. (t) No symbol, design, name, mark or insignia adopted for or used by Landlord in the Shopping Center shall be used by Tenant without the prior written consent of Landlord. (u) In the event Tenant requires the use of tcleeemmunication, high speed network-er data transmission services from the Leased Premises, Landlord may require Tenant to contract for such services through Landlord-er one of Landlord's designated service providers, provided that the cost thereof is comparable to that available to Tenant from another pier give-a-semparable level-and quality-of service and equipment. ord's liability relative to such services shall be the same-as-that for provision of utilities as set forth in Article 16(g). Landlord shall have all remedies provided in this Lease for the breach of any of the provisions of ARTICLE 26. Tenant agrees to pay Landlord, upon demand, in addition to and not in lieu of Landlord's other remedies, $70 per violation of any of the rules and regulations. Landlord shall have the right to grant variances of the rules and regulations,and shall enforce the rules and regulations at its sole discretion. ARTICLE 27-Eminent Domain (a) If the entire Leased Premises is appropriated or taken under eminent domain by any public or quasi-public authority,this Lease shall terminate on the date of the taking. Landlord and Tenant shall be released from liability accruing after that date. If more than 25%of the square footage of floor area(including a mezzanine, if any)of the Leased Premises is taken under eminent domain by any public or quasi-public authority, or if because of the appropriation or taking, regardless of the amount taken,the remainder of the Leased Premises is not usable for the purposes specified in Reference Provision 1.03, either Landlord or Tenant shall have the right to terminate this Lease as of the date Tenant is required to vacate a portion of the Leased Premises which has been taken,by giving notice to the other in writing within 60 days after the date of the taking. Landlord and Tenant shall be released from liability accruing after that date. (b) Whether or not this Lease is terminated,Landlord shall be entitled to the entire award or compensation and any portion of any compensation awarded for the diminution in value of the leasehold interest or fee of the Leased Premises,but Tenant's right to receive compensation or damages for Tenant's fixtures and tangible personal property shall not be affected. If this Lease is terminated, rental, additional rental and other charges for the last month of Tenant's occupancy shall be prorated, and Landlord shall refund to Tenant rental, additional rental or other charges paid in advance. (c) If Landlord and Tenant elect not to terminate this Lease, Tenant shall remain in the portion of the Leased Premises which has not been appropriated or taken. Landlord agrees, at Landlord's cost and expense,to restore the remaining portion of the Leased Premises to the quality and character that existed prior to the appropriation or taking as soon as reasonably possible. The Minimum Annual Rental shall be adjusted, on an equitable basis,taking into account the relative value of the portion taken compared to the portion remaining. A voluntary sale or conveyance in lieu of condemnation, but under threat of condemnation, shall be an appropriation or taking under eminent domain. Tenant shall not have a claim against Landlord because of a taking. ARTICLE 28-Attorneys'Fees If, during the Term or afterwards, either party institutes an action, proceeding or counterclaim against the other relating to this Lease,or a default,the unsuccessful party shall reimburse the successful party for the total amount of court costs, expenses and reasonable attorneys'fees actually incurred up to$10,000,the parties waiving any statute, rule of law or public policy to the contrary. The parties agree to confirm this agreement in writing at the start of the 26 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 0/3 action,proceeding or counterclaim. The giving of a notice of default by Landlord shall constitute part of an action or proceeding under this Lease,entitling Landlord to reimbursement of its reasonable expenses of attorneys'fees and disbursements, even if an action or proceeding is not commenced in a court of law and whether or not the default is cured. This ARTICLE 28 shall survive the expiration or termination of this Lease. ARTICLE 29-Sale of Premises by Landlord In the event of the sale or exchange of the Leased Premises or the Shopping Center and the assignment of this Lease, Landlord shall be relieved of all liability for the covenants and obligations in or derived from this Lease, or arising out of any act,occurrence or omission relating to the Leased Premises or this Lease. The covenants,representations and obligations of Landlord shall be binding on Landlord only during the period that Landlord has an ownership interest in the Shopping Center. ARTICLE 30-Notices Notices and demands shall be given in writing by personal delivery or sent by certified mail or by nationally recognized overnight courier service, addressed to Landlord and to Tenant at the addresses specified in the Reference Provisions or at the addresses which were last specified by notice by Landlord or Tenant. Notices or demands shall be deemed to have been given,made or communicated on the date they were deposited in the United States mail as certified mail,with postage fully prepaid,or with a nationally recognized overnight courier service,as the case may be. ARTICLE 31-Remedies All rights and remedies of Landlord and Tenant under this Lease or at law are cumulative,and the exercise of one or more rights or remedies shall not exclude or waive the right to the exercise of any others. All rights and remedies may be exercised and enforced concurrently,whenever and as often as desirable. ARTICLE 32-Successors and Assigns All covenants, promises, conditions, representations and agreements shall be binding upon, apply and inure to Landlord and Tenant and their heirs,executors,administrators,successors and assigns. The provisions of ARTICLE 21 hereof shall not be affected by this ARTICLE 32. ARTICLE 33-Representations Tenant agrees that Landlord,its employees and agents have made no representations,inducements or promises about the Leased Premises, the Shopping Center or this Lease, or about the characteristics or conditions regarding or pertaining to the Leased Premises or the Shopping Center,unless the representations,inducements and promises are in this Lease. Tenant has independently investigated the potential for the success of its operations in the Shopping Center. Therefore, no claim or liability, or cause for termination, shall be asserted by Tenant against Landlord, its employees and agents,for,and they shall not be liable because of,the breach of any representations,inducements or promises not expressly in this Lease. 27 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Any claim, demand, right or defense by Tenant which is based upon or arises in connection with this Lease or the negotiation of this Lease prior to its execution shall be barred unless Tenant commences an action or interposes a legal proceeding or defense within 1 year after the date of the inaction, omission or occurrence of the event, or the action to which the claim,demand,right or defense relates. ARTICLE 34-Waiver The failure by Landlord or Tenant to insist upon strict performance by the other of any of the covenants,conditions, provisions,rules and regulations and agreements in this Lease, or to exercise a right, shall not be a waiver of any rights or remedies and shall not be a waiver of a subsequent breach or default. A surrender of the Leased Premises shall not occur by Landlord's acceptance of rental or by other means unless Landlord accepts the surrender in writing. A payment by Tenant or receipt by Landlord of an amount less than the monthly rental shall not,nor shall the endorsement,statement,check, letter accompanying a check or payment of rental,be an accord and satisfaction. Landlord may accept a check or payment without prejudice to its right to recover the balance of rental due and pursue any other remedy. A waiver by Landlord for one tenant shall not constitute a waiver for another tenant. ARTICLE 35-Holding Over If Tenant remains in possession of the Leased Premises after the expiration of the Term without a new lease(even if Tenant has paid and Landlord has accepted rental),Tenant shall be deemed to be occupying the Leased Premises as a tenant from month to month, subject to the covenants, conditions and agreements of this Lease. The monthly rental shall be computed based on 1/6th of the rental payable to Landlord during the last 12 month period of the Term. If Tenant fails to surrender the Leased Premises on the termination of this Lease, Tenant shall,in addition to other liabilities to Landlord, indemnify, defend and hold Landlord harmless from loss and liability resulting from that failure including,but not limited to,claims made by a succeeding tenant. The exercise of Landlord's rights shall not be interpreted to allow Tenant to continue in possession,nor shall it be deemed an election to extend the Term beyond a month-to-month basis. If Landlord, in its sole discretion, determines to permit Tenant to remain in the Leased Premises on a month-to-month basis, the month-to-month tenancy shall be terminable on 30 days prior written notice given by either party to the other party. ARTICLE 36-Interpretation Only the relationship of Landlord and Tenant is created by this Lease. No provision of this Lease or act of either party shall be construed to create the relationship of principal and agent,partnership,or joint venture or enterprise. ARTICLE 37-Advertising and Promotional Service Landlord shall establish, or cause to be established, an Advertising an Promotional-Service-("Service")to f rnish and maintain profs na' advertis: na sale V ,,.n �w. .fended t. enefit�sales in theShopping .-enter. The Service m y be p ^deli i whole part bye 3 d Maw•provider or by Landlord or by an affiliate, subsidiary or other related any Landlord. I a unction wit>,-the Service Landlord agrees to p eTep cause to b el. Tenant agrees to pay for the Service,without deduction or set off of any kind, the amount specified in the Reference Provisions, payable in equal monthly installments on the same day rental is due under APTICT E A Monies received under thi DTIr E 37 11 the dve.tis: d �s� L� sly-lie ase�fe��-aa,��,.��:s-Qaa promotion of the Shopping Center. Tenant's pay ent for the first c llend:. y e r shallll be the amoun.1istee in Reference Provision 1.15. Tenant's payment shall incr asc during the second and each subsequent calendar year to 28 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd U5 105-14r In-addition, Tenant shall pay T andlord the initial assessment-speei ed in the Reference Provisions, for advertising and promotional activities, in a lump sum, within 10 days after demand. In order to assist Landlord in tracking the effectiveness of-marketing and other programs,Tenant agrees to-telephonically or electronically deliver daily,upon Landlord's request,a statement of ach day's unaudited gross sales. ARTICLE 38-Quiet Enjoyment Landlord has the right,power and authority to enter into this Lease. Tenant, or any permitted assignee or sublessee of Tenant,upon the payment of the rental and performance of Tenant's other covenants, shall and may peaceably and quietly have, hold and enjoy the Leased Premises during the Term. This covenant shall be construed as a covenant running with the land. It shall not be construed as a personal covenant of Landlord. ARTICLE 39-Waiver of Redemption Tenant waives any right of redemption if Tenant is evicted or dispossessed for any cause, or if Landlord obtains possession of the Leased Premises because of the default of Tenant or otherwise. The rights given to Landlord are in addition to rights that may be given to Landlord by statute or otherwise. ARTICLE 40-Fees Tenant warrants and represents that it has not had negotiations with or dealt with a realtor, broker or agent in connection with this Lease. Tenant agrees to pay and hold Landlord harmless from the cost, expense or liability (including the costs of suit and reasonable attorneys' fees) for compensation, commissions or charges claimed by a realtor,broker or agent regarding this Lease. ARTICLE 41-Tenant's Property Except for the willful misconduct of Landlord,its agents or employees,Landlord,its agents and employees shall not be liable,and Tenant waives all claims,for damage to persons,property and Tenant's business sustained by Tenant (or anyone claiming through Tenant) located on the Leased Premises. Property kept or stored on the Leased Premises shall be kept or stored at the sole risk of Tenant, and Tenant shall indemnify, defend and hold Landlord harmless from any claims arising out of damage to the same or damage to Tenant's business, including subrogation claims by Tenant's insurance carrier. ARTICLE 42-Lease Status Within 10 days of Landlord's written request, Tenant shall without charge execute, acknowledge and deliver to Landlord an instrument required under this Lease or an instrument prepared by Landlord containing the commencement and termination dates of this Lease,the Rental Commencement Date, and if true,that(a)this Lease is a true copy of the Lease between the parties, (b)there are no amendments (or stating the amendments), (c)the Lease is in full force and effect and that, to the best of Tenant's knowledge, there are no offsets, defenses or counterclaims of rental or in the performance of the other covenants and conditions to be performed by Tenant, (d) no default has been declared by either party and that Tenant has no knowledge of any facts or circumstances which it believes would constitute a default by either party and(e) any other matters reasonably requested by Landlord. Tenant shall remain liable to Landlord for damages sustained by Landlord because of the failure by Tenant to 29 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd execute, acknowledge and deliver the instrument. The failure of Tenant to execute, acknowledge and deliver the instrument shall be an acknowledgment by Tenant that the statements contained in the instrument are correct. Anyone transacting with Landlord shall have the right to rely on the accuracy of the statements contained in the instrument,whether it is signed by Tenant or deemed acknowledged by Tenant pursuant to this ARTICLE 42. ARTICLE 43-Recording Tenant shall not record this Lease,a memorandum,"short form"or other reference to this Lease,without the written consent of Landlord. ARTICLE 44-Force Majeure If either party is delayed,hindered or prevented from the performance of an obligation because of strikes,lockouts, labor troubles, the inability to procure materials, power failure, restrictive governmental laws or regulations, riots, insurrection, war or another reason not the fault of the party delayed, but not including financial inability, the performance shall be excused for the period of delay. The period for the performance shall also be extended for a period equal to the period of delay. Tenant shall not be excused from the prompt payment of rental,additional rental or other payments. It shall be a condition of Tenant's right to claim an extension that Tenant notify Landlord, in writing,within 10 days after the occurrence of the cause, specifying the nature of the cause and the period of time necessary for performance. ARTICLE 45-Construction of Lease Tenant has read and understands this Lease. The rule of construction that a document should be construed most strictly against the party which prepared the document shall not be applied,because both parties have participated in the preparation of this Lease. (a) Letter of Credit. The Security Deposit shall be in the form of a clean, irrev , unconditional letter of credit(the "Letter of Credit")issued by and drawable upon any commercial bank which is a member of the New York CI aring House Association or other bank satisfactory to Landlord, trust company, ion with offices for banking purposes in the City of have issued a letter of credit or other credit f cili+.. that ^ nstitutes the p r:ty fr outstanding indebtedness (which: etherwi such rating by symbols such as "+" or" " or numerical netation, " orbet er by M^^a•'- In estors Sew-and "AA"or better by Standard&Po&s— at:ng Ser•ice, and has combined capital, surplus and un4iv-ided nefits-ef-net less than$5003000;000. Such Letter of Credit shall (i)name Landlord as beneficiary, (ii)beer the amount of the Security Deposit,(iii)have a term of not less than one year, (iv)perm ple drawings, (v)be filly transf rable by T andlord ..them the ent of a f es ^ charges by T andlord nd (vi) otherwise be in form and content satisfactory to Landlord. If upo a transf r of-the T etter of Credit, a f es ^ charges shall be ^ posed,then , f e cha shall be able olely by Te t and the r ette of C-edit shall pecify.The Letter of Credit 30 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 7 c Letter of Credit stating that the Issuing Bank has elected not to renew the Letter of Credit.Landlord shall have the right,upon receipt of the Non Renewal Notice,to draw the full amount of the Lcttcr of Credit,by sight draft on thug Bank, and shall ther after hold or apply the cash proceeds of the Letter of Credit pursuant to the terms of this Lease, until e b eem ..lianee wit the terms e f to r etter e f Credit will be duly honorees pen-presentatie office location in Chicago, Illinois. The Letter of Credit shall be subject in all respects to the Uniform Customs and Practice for DChamber of Commerce Publication No.500. (b) Application of Security. If(i)an Event of D installment-eftent-as-and-whe ply or retain the whole or any part of the cash Security en receive all or a p nted-by the Letter of Credit and use,apply,or retain the whole or any part of such proceeds or the unused cash proceeds of a prior Letter of Credit,as the case may be,to the extent required for the payment of any Fixed Rent or any other sum end or may be required to expend-by r ason of Tenant's default, and/or (ii) any damages to which Landlord is entitled pursuant to this L asc, whether such damages accrue before or aftc plied or eposit shall be returned to eta er required by this Lease. (c) Transfer. Upon a sale or other transfer of the Shopping Center or the Leased Premises,or any financing of Landlerdls-interest-ther-einTLandlerEl-shall-have-the-right4e-transfer-the-Seeurity-Depesit-to-its-tfausferee-er-lender. With respect to the Letter of Credit,within 5 days after notice of such transfer or financing,Tenant, at its sole cost, shall arrange f r the transf r of the T etter of Credit to then ,.la dlora or the lender, as designated by Landlord in the foregoing notice or have the Letter of Credit reissued in the name of the new landlord or the lender.Upon such Transfer Tenant shall look solely to the new landlord or lender for the return of such Letter of Credit(or any unused cash proceeds of the Lcttcr of Credit),and the provisions hereof shall apply to ever.,-.ansf r er assignment made-e€ the Security Deposit to a new landlord. Tenant shall not assign or encumber or attempt to assign or encumber any Letter of Credit (or any unused cash proceeds of the Letter of Credit), and neither Landlord nor its successors or assigns-shall-be-bound by any such action or attempted assignment,or encumbrance. reason,nor any other right of Landlord,shall be affected because Landlord holds the deposit. ARTICLE 47-Captions Captions are for convenience and reference only. The words contained in the captions shall not be deemed to explain,modify,amplify or aid in the interpretation,construction or meaning of this Lease. The use of masculine or neuter genders shall include the masculine, feminine and neuter genders. The singular form shall include the plural if the context requires. "Landlord"and"Tenant"means "Landlord"and"Tenant" and"their agents and employees", unless the context requires otherwise. ARTICLE 48-Severability If any provision of this Lease or any paragraph, sentence, clause, phrase or word is judicially or administratively held invalid or unenforceable,that shall not affect,modify or impair any other paragraph,sentence,clause,phrase or 31 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd word. The parties acknowledge that certain charges, fees and other payments are deemed "additional rental" in order to enforce Landlord's remedies,and shall not be construed to be"rent"if rent controls are imposed. ARTICLE 49-Objection to Statements Tenant's failure to object to a statement, invoice or billing within one year after receipt shall constitute Tenant's acquiescence. Tenant shall be required to provide Landlord with a specific and detailed list of Tenant's objections at the time Tenant makes its objection to Landlord. The statement, invoice or billing shall be an account stated between Landlord and Tenant. ARTICLE 50-Liability of Landlord Landlord's liability under this Lease or arising out of the relationship of the parties shall be limited to Landlord's interest in the Shopping Center. Judgments rendered against Landlord shall be satisfied solely out of the proceeds of the sale of Landlord's interest in the Shopping Center which have been received by Landlord. No personal judgment shall apply against Landlord upon extinguishment of its rights in the Shopping Center. A personal judgment shall not create a right of execution or levy against Landlord's assets. The provisions of this ARTICLE 50 shall inure to Landlord's successors and assigns. These provisions are not designed to relieve Landlord from the performance of its obligations under this Lease, but to limit the personal liability of Landlord in case of a judgment against Landlord. Tenant's right to obtain injunctive relief or specific performance or to have any other right or remedy which may be awarded Tenant by law or under this Lease shall not be limited however. No personal liability is assumed by nor shall at any time be enforceable against Landlord. ARTICLE 51-No Option The submission of this Lease is not a reservation of or option for the Leased Premises or any other space in the Shopping Center, and vests no right in Tenant. This Lease shall become effective only upon proper execution and delivery by the parties. ARTICLE 52-Execution of Documents Except for (i) those documents required pursuant to Article 21 of the Lease and (ii) Tenant' s request for use of the Community Rooms, Tenant shall pay Landlord$400 (plus charges, if any, from Landlord's mortgagee)to reimburse Landlord for the administrative and legal expense for the review, preparation and processing of any document sent to Landlord at Tenant's request, whether or not the document is executed by Landlord. ARTICLE 53-Corporate Tenant If Tenant is or will be a corporation or partnership or limited liability company of any kind, the persons executing this Lease on behalf of Tenant covenant and represent that Tenant is a duly incorporated or duly qualified (if foreign) corporation or partnership, as the case may be(including without limitation a limited liability corporation and a limited liability partnership)and is authorized to do business in the State where the Shopping Center is located (evidence shall be supplied Landlord upon request). Tenant also covenants and represents that the person or 32 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd persons,partner or member executing this Lease on behalf of Tenant is(if a corporation)an officer of Tenant,and is (if a corporation or partnership of any kind)authorized to sign and execute this Lease. ARTICLE 54-Printed Provisions The printed provisions of this Lease and written or typed additions shall be given equal weight for the interpretation of this Lease. The deletion of any portion of this Lease shall not create an implication regarding the intent of the parties,and this Lease shall be read and interpreted as if the deleted portion had never been in this Lease. ARTICLE 55-Entire Agreement This Lease is the only agreement between the parties for the Leased Premises. An amendment, modification or supplement to this Lease shall not be effective unless it is in writing and executed by the parties. ARTICLE 56-No Third-Party Rights This Lease shall not confer rights or benefits,including third-party beneficiary rights or benefits to anyone that is not a named party to this Lease, including any individual, corporation, partnership, trust, unincorporated organization, governmental organization or agency or political subdivision. ARTICLE 57-Financial Statements (a) Te ert ("—Statement")and represents that thc Statement is a primary inducement to Landlord's agreement to lease the Leased nant represents that the information contained in thc Statement is true,complete and correct in all material aspects. This se (b) At the request of Landlord,unless Tenant is a publicly traded company,Tenant shall,not later than 30 days fellewing-succh-request, furnish to Landlord its most recent balance sheet for at 1 ast the most recent fiscal year, a statement of income and expense for that year and an opinion of an independent certified public accountant satisfactory to Landlord-(er a certificate of thc chief financial officer, owner or partner of Te financial statement has been prepared in conformity with generally accepted accounting principles consistently ar, ARTICLE 58-Other Locations person, firm, corporation or other entity having an interest in any of the above parties; or(c)any other person, firm •individually as a-Part-ner,shareholder,- ent,^ pleyee^ otherwise, ^ n, operate,maintain or have an affiliation, investment or interest in business similar to or in competition with the one operated at thc L ascd Premises within the radius specified in Reference Provision 1.20 as measured from the perimeter of thc Shopping Center (except addition to Lan e 33 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd included in the Net Sale aggregate of the annual Nell Sale.. made on, i^ er from4 heed Premises and en, in or from any other business lecatea within the radius. Tenant shall submit monthly sales statements and maintain r erds of the sales and transactions of the other business. Landlord shall have the right to-examine and audit those statements and records within the radius, shall remove the exemption cr ated for that location. "Radius" shall m an a geometric e--ritual-distance over roads. ARTICLE 59-Tenant's Failure This Lease shall be governed by the laws of the State in which the Shopping Center is located and shall be deemed made and entered into in the county in which the Shopping Center is located. If Tenant fails to comply with and perform any of its covenants, conditions or agreements, Landlord shall have the right, but not be obligated, to perform the covenants, conditions or agreements. Tenant shall pay to Landlord on demand as additional rental, a sum equal to the amount spent by Landlord for the performance, plus 10% •15% of such amount to defray supervision and overhead. If Landlord performs any covenants, conditions or agreements, Landlord, its agents or employees may enter the Leased Premises. That entry and performance shall not constitute an eviction of Tenant in whole or in part,nor relieve Tenant from the performance of the covenants, conditions and agreements. Landlord, its agents and employees shall not be liable for claims for loss or damage to Tenant or anyone claiming through or under Tenant. ARTICLE 60-Ownership (a) If the ownership of the Shopping Center is in a Real Estate Investment Trust, then Landlord and Tenant agree that Minimum Annual Rental, Percentage Rental and all additional rental paid to Landlord under this Lease (collectively referred to in this Section as "Rent") shall qualify as "rents from real property" within the meaning of Section 856(d) of the Internal Revenue Code of 1986, as amended (the "Code") and the U.S. Department of Treasury Regulations (the "Regulations"). Should the Code or the Regulations, or interpretations of them by the Internal Revenue Service contained in Revenue Rulings, be changed so that any Rent no longer qualifies as "rent from real property" for the purposes of Section 856(d)of the Code and the Regulations, other than by reason of the application of Section 856(d)(2)(B)or 856(d)(5)of the Code or the Regulations,then Rent shall be adjusted so that it will qualify (provided however that any adjustments required pursuant to this Section shall be made so as to produce the equivalent(in economic terms)Rent as payable prior to the adjustment). (b) Any services which Landlord is required to furnish pursuant to the provisions of this Lease may, at Landlord's option, be furnished from time to time, in whole or in part, by employees of Landlord or Landlord's affiliates or by one or more third parties hired by Landlord or Landlord's affiliates. Tenant agrees that upon Landlord's written request it will enter into direct agreements with the parties designated by Landlord to provide such services,provided that no such contract shall result in Tenant having to pay, in the aggregate,more money for the occupancy of the Leased Premises under the terms of this Lease,or Tenant's receiving fewer services or services of a lesser quality than it is otherwise entitled to receive under the Lease. 34 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 9/ The exhibits are incorporated by reference into this Lease. If Tenant is a CORPORATION, the authorized officers shall sign on behalf of the corporation and indicate the capacity in which they are signing. The Lease must be executed by the president or vice president and attested by the secretary or assistant secretary,unless the bylaws or a resolution of the board of directors provides otherwise. In that case,the bylaws or a certified copy of the resolution shall be attached to this Lease. The appropriate corporate seal must be affixed to the Lease. TENANT: CITY OF EDEN PRAIRIE, dba"City of Eden Prairie" By: Nancy Tyra-Lukens Its: Mayor By: Scott H.Neal Its: City Manager LANDLORD: EDEN PRAIRIE MALL L.L.C., a Delaware limited liability company By; GGPLP L.L.C.,a Delaware limited liability company,a member By: GGP LIMITED PARTNERSHIP, a Delaware limited partnership,managing member By: GENERAL GROWTH PROPERTIES,INC., a Delaware corporation,its general partner By: Authorized Officer 35 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd AFFIDAVIT The undersigned has signed a Lease dated ,2004,with EDEN PRAIRIE MALL L.L.C.,a Delaware limited liability company,for the occupancy of Space No.TBD EDEN PRAIRIE CENTER Shopping Center. The Lease business terms were negotiated with Alan Young, as representative of the Landlord. No representative, agent or employee of the Landlord represented, suggested, promised or implied that the undersigned would be given an exclusive use in the Shopping Center for the operation of the business to be conducted in the Leased Premises,or that the Landlord would not lease space in the Shopping Center to a competing or other tenant. Nor has any representative, agent or employee of Landlord made any representations,inducements or promises about the Leased Premises or the entry into the Lease, unless expressly in the Lease. Nor has any representative, agent or employee made any representations, inducements or promises about the characteristics or conditions regarding or pertaining to the Leased Premises or the Shopping Center, unless expressly in the Lease. The undersigned has independently investigated the potential for the success of its operations in the Shopping Center and has not relied upon any representations,inducements or promises by Landlord's representatives, agents or employees,other than those contained in the Lease. TENANT:CITY OF EDEN PRAIRIE d/b/a: "City of Eden Prairie" By: Nancy Tyra-Lukens Its: Mayor By: Scott H.Neal Its: City Manager STATE OF MINNESOTA ) ) COUNTY OF HENNEPIN ) This instrument was acknowledged before me on ,2004 by Nancy Tyra-Lukens as Mayor of the City of Eden Prairie,Tenant. Notary STATE OF MINNESOTA ) ) C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd �f COUNTY OF HENNEPIN ) This instrument was acknowledged before me on ,2004 by Scott H.Neal as City Manager of the City of Eden Prairie,Tenant. Notary C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 9if EXIiIBIT E SIGN REGULATIONS EDEN PRAIRIE CENTER ALL TENANTS EDEN PRAIRIE,MINNESOTA This EXHIBIT E establishes criteria for Tenant signage to enhance the visual quality of the Shopping Center. Tenant is required to provide creative signage consistent with its overall storefront design and in accordance with the criteria contained in EXHIBIT E and the Tenant Print Package("Print Package"). A. ADMINISTRATION Tenant shall submit 4 copies of shop manufacturer's drawings to Landlord,showing the size of lettering,overall size of the sign, neon color, porcelain enamel color, baked enamel color, plastic or plexiglass colors and their numbers, materials and samples, mounting details and location of the sign in relation to each elevation. The drawings shall show other elements such as soffits, canopies and the relationship of the sign to the other elements of the storefront, especially the vertical fascia. The drawings must be submitted in conjunction with storefront design information. Landlord's written approval is required prior to sign fabrication. Hard copy shop drawings shall be submitted to Landlord as well for final approval. Tenant shall not be permitted to open for business in the Leased Premises without a sign which has been approved in writing by Landlord. B. INTERIOR STOREFRONT SIGN Refer to the Print Package for specific criteria. Signage is subject to the following general guidelines: 1. Signs may be vertical,horizontal,have multiple reflected images and be illuminated. Multiple signing may be permitted on multi-directional storefronts. 2. The length of horizontal lettering shall not exceed 70%of the horizontal storefront length. The proportional ratio of the proposed signage length to the overall horizontal storefront length shall be left to the sole discretion of Landlord however. 3. No sign may be within 3'-0" of the facade of any department store. Landlord reserves the right to further regulate signage near department stores. 4. Wording is limited to the trade name of the store. Logos shall be reviewed on a case by case basis by Landlord. 5. All electrical penetrations through the storefront fascia for sign installation shall include PK housings. 6. Each storefront sign shall have an easily accessible local disconnect and be on a separate timer. 7. No sign manufacturer's identification,decals or registered trademark shall be permitted. C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT E CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd C. EXTERIOR BUILDING SIGNS If Tenant has an exterior customer entrance it may be permitted to have an exterior sign. (Landlord may,at its sole discretion, allow a Tenant to have an exterior sign if there is no exterior storefront entrance however). Exterior signs shall be restricted in location to the exterior storefront proper,and each exterior frontage shall be considered separately. If Tenant is permitted to have an exterior sign, the sign shall be self-illuminated plexiglass letters with metal sides mounted on the wall of the storefront so that no light shows except through the plexiglass face. Tenant shall keep the sign in good repair at all times. Refer to the Print Package for further details. D. GENERAL 1. Doors and Windows No paper or cardboard signs shall be permitted to be applied to the face of storefront glass or other storefront material or hung from the bulkhead within 4'-0 from the leaseline. 2. Sidewalks No signs shall be allowed in the exterior sidewalk or beyond the interior lease line of the Leased Premises. 3. Service Courts Service entrance signs will be provided by Landlord. 4. Action Signs and Video Screens No flashing,action,moving or audible signs are permitted. No television or projection screens are permitted within 15 feet of the lease line. 5. Colors Colors shall be compatible with the colors and materials for Tenant's storefront and must be submitted to Landlord for approval. 6. Responsibility All signs,permits and related or resulting construction shall be Tenant's responsibility,and all signs shall be installed under the supervision of Landlord. The sign contractor shall repair damage caused by its work. Signs shall conform to applicable building and electrical codes. C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXIIIBIT E CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd EXHIBIT X DESCRIPTION OF LANDLORD/TENANT WORK EDEN PRAIRIE CENTER ALL TENANTS EDEN PRAIRIE,MINNESOTA The following is a description of the structure provided by Landlord. Tenant and its architect shall field-verify physical dimensions and conditions of the Leased Premises prior to and during Tenant's Work as defined in ARTICLE 2. Plans and specifications plus all supporting calculation data shall be submitted by Tenant's architect and approved in writing by Landlord and all applicable regulatory bodies prior to the start of Tenant's Work. It shall be Tenant's responsibility to provide and install all equipment in accordance with the requirements of this EXHIBIT X and the Tenant Print Package("Print Package"). DEFINITIONS: The Print Package contains information provided by Landlord which identifies the Leased Premises and describes the conditions of the shell structure. The Print Package is comprised of at least the following information, and may be modified by Landlord: 1. As-built drawings or dimensional floor plans; 2. Tenant Design Criteria Manual containing detail sheets showing specific building information, expansion joint condition, bulkhead and neutral pier conditions for storefront interface, toilet exhaust connection, and other information about the Leased Premises;and requirements for store character and design configurations. A. STRUCTURE Landlord shall provide a shell structure. 1. Tenant shall accept the Leased Premises in"as-is"condition. Concrete in blockout areas shall be provided by Tenant. The Lower Level slab shall not be cut or patched without Landlord's prior written approval. Details are provided in the Print Package. 2. Details of floor construction are in the Print Package. 3. Tenant shall make all floor penetrations. Penetrations shall be sealed and made watertight. No plumbing penetrations are allowed over a lower level electrical service room. Upper level floor penetrations shall be clearly shown (including dimensions) on Exhibit P. Penetrations to the upper level floor shall be core- drilled;no sawcutting is permitted. The upper level floor system is designed to support a live load of 75 lbs. per square foot unless otherwise noted in the Print Package. If Tenant's requirements exceed 75 lbs. per square foot,Tenant shall furnish Landlord with load information prepared by a qualified structural engineer. At Landlord's option, Landlord may submit structural information to its engineer for verification at Tenant's expense. If Tenant is a food service tenant it shall install and maintain a waterproof membrane approved by Landlord throughout the Leased Premises, if such membrane is not existing upon delivery of the Leased 1 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Premises to Tenant. A water test shall be performed by Tenant at Tenant's expense. Tenant is responsible for maintaining liquid-tight capacities of the floor and other boundaries of the Leased Premises. 4. The locations of unprimed structural steel shapes and columns are indicated in the Print Package. Columns in the Leased Premises may be spray-covered with fire retardant material by Landlord. Tenant shall be required to cover columns to protect fireproofing. Damage to fireproofing shall be repaired by Tenant as necessary to meet the requirements and recommendations of applicable code and local inspectors,at Tenant's expense. 5. The roof structure over the Leased Premises is depicted in the Print Package. Roof penetrations by Tenant shall be held to a minimum. Penetrations, flashing and patching of the roofing system shall be made by Landlord's roofing contractor, subject to Landlord's prior approval, at Tenant's expense. Any structural framing or structural calculations required by Landlord's engineer because of or as a result of Tenant's roof penetrations shall be performed at Landlord's option by Landlord's contractor, at Tenant's expense. Any associated curbs, skids, etc. which can impact the roof membrane shall be designed in accordance with the membrane manufacturer's recommendations and installed by Landlord's roofing contractor, at Tenant's expense. 6. Pipe condensate shall be installed in accordance with the details of the Print Package. 7. Any damage to fireproofing of the metal deck or bar joists due to roof penetrations or attachments must be repaired by Tenant to meet the requirements and recommendations of applicable code,at Tenant's expense. B. WALLS AND PARTITIONS 1. Metal studs shall be centered on the line dividing the Leased Premises from other tenant spaces. With respect to zones defined by a smoke evacuation system, dividing lines may or may not coincide with column centerlines. All treatments, finishes, or furring for columns occurring on dividing lines shall be done by Tenant,at Tenant's expense and with Landlord's prior approval. Exterior walls may be exposed in the Leased Premises. 2. Landlord shall provide and install metal studs for the partitions separating the leased premises from other tenant spaces. Tenant shall pay Landlord for metal studs at$40.00 per lineal foot. Tenant shall furnish and install 5/8" fire core gypboard on all dividing partitions and surfaces in accordance with details in the Print Package,at Tenant's expense. A one-hour separation is required between the service corridor and the Leased Premises. Tenant shall seal gypboard so that it is smoketight around all penetrations such as ductwork, sleeves, pipes, conduit, structural members, etc. Tenant may be required to provide fire dampers in its demising partitions in order to permit air to return to the air conditioning units. 3. The calculations of the dimensions and square footage of the Leased Premises are from the centerline of interior partitions, from the outside face for exterior walls, and from the centerline of shaft walls. No deductions are allowed for the space occupied by columns,interior partitions,or other interior construction or equipment installed or placed in the Leased Premises. The Leased Premises shall not include any space above the bottom of the structural framework supporting the upper level or roof of the Shopping Center, as the case may be,or below the floor level of the Leased Premises. 4. Service Doors 2 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd a) Doors leading to an interior service corridor: Tenant shall furnish and install a minimum of a 3'-0"x 7'-0"service door connecting to service corridors. This shall be a Class "B" labeled, painted, hollow metal door with a peephole and frame, and shall comply with applicable code requirements and recommendations. The secondary use of this door is as an exit. The door shall be equipped with hardware required or recommended by applicable code and shall be recessed to a depth equal to the width of the door. Tenant shall provide an opening in the gypboard, anchor frame and necessary header sheetrock, and shall install the door and any other accessories required for proper installation of the door. Tenant shall also furnish and install signs required by code pertaining to the locking times of the exit door. Details are in the Print Package. b) Doors leading to the exterior: Landlord shall provide and install a 3'-0" x 7'-0" hollow metal service door with peephole and frame, including butt hinges, latching hardware with a blank lock cylinder on the interior, and removable core lock cylinder on the exterior and weather stripping. Tenant may provide and install additional locking hardware and accessory items desired, subject to Landlord's approval and applicable code. Tenant shall furnish and install all signs required by code pertaining to the locking times of the exit door. Tenant shall maintain the entire door and hardware installation in like-new condition, at Tenant's expense. Tenant shall not apply signage to exterior surface of service doors. 5. Tenants whose normal operations generate moderate or high sound levels (i.e., pet shops, coin operated amusement centers, musical instrument show rooms, stereo and video centers, etc.) shall insulate their demising walls and ceiling against sound transmission. Details are in the Print Package. 6. Tenant's Work shall be performed in a neat and workmanlike manner. Any damage to Landlord-provided walls,partitions or finishes shall be repaired at Tenant's expense. C. STOREFRONTS Tenant should refer to the Print Package for information regarding the general design of the Shopping Center, specific design themes,storefront criteria and materials. 1. Landlord has established design criteria regulating materials and construction of the storefronts and signage so that tenant storefronts contribute to the overall design concept of the Shopping Center. Design requirements include the establishment of a specific theme. In order to contribute to this theme, the overall storefront design must conform to the design criteria established in the Print Package. Landlord has the right to reject storefronts which do not meet the design criteria and to accept and approve unusual designs which deviate from the required criteria at Landlord's sole discretion. 2. Vertical neutral surfaces or structural columns separating storefront construction for the Leased Premises maybe erected at the storefront lease line,contiguous with dividing partitions by Landlord. Tenant shall pay Landlord$40.00 per lineal foot of bulkhead soffit and$800.00 for neutral piers. The storefront area will be left open for Tenant construction between the edges of the neutral surfaces and between the mall finished 3 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 7 / floor and the underside of the horizontal soffit. Details are in the Print Package. Tenant shall be responsible for constructing a complete storefront to the full height of the opening, and for making a suitable attachment or termination of construction to the bulkhead soffit and proper closure against each neutral pier. Elements of the storefront shall terminate tightly against Landlord's neutral pier, bulkhead soffit and floor. Tenant shall be solely responsible for the repair of damage it causes to Landlord's finish material. 3. All glass in the storefront or store entrance vestibule of the Leased Premises shall be safety plate,tempered or laminated glass. Storefront glass butted together at angles or corners shall be plumb, mitered with polished edges or have glass clips in keeping with the storefront design, and shall hold the glass firmly in place. Mirrors are not allowed. Any installation of glass unacceptable to Landlord shall be corrected by Tenant at Tenant's expense. 4. The storefront and sign shall be self-supporting. Limited vertical bracing is permitted from the Shopping Center structure. The storefront sign or any part of the interior cannot be suspended from Landlord's bulkhead framing or structure. 5. Tenant may be required to provide a store address on the storefront if required in the Print Package. D. INTERIOR FINISHES 1. Floors a) All floor finish covering materials for the Leased Premises shall correspond exactly with the level of the finished mall floor at the lease line. Details are in the Print Package. b) Tenant shall install mall flooring material and grout in accordance with the Print Package. Mall flooring material shall be purchased from Landlord. Tenant shall pay Landlord $12.00 per square foot for Landlord selected floor tile. Tenant shall protect and repair any damage to Landlord's floor finish material,at Tenant's expense. 2. Walls Interior partitions shall be constructed of metal studs and completely backed with 5/8"fire core gypboard and firetaped. The installation of security burglar bars, chicken wire, and other security devices, systems and elements is the responsibility of Tenant. Tenant is responsible for the construction of any wall in which an expansion joint occurs, and the construction of the wall shall be in accordance with acceptable construction design practices and applicable code: 3. Ceiling a) Maximum clear height for the Leased Premises is indicated in the Print Package. b) Combustible material shall not be allowed above finished ceilings. Organic material either treated or non-treated shall not be allowed or exposed above finished ceilings. c) Ceiling material shall be"Class A"rated,and the suspension system shall conform to applicable code and standards. d) Should an expansion joint occur in the Leased Premises,Tenant shall be responsible for the construction of the ceiling affected by that joint in a manner consistent with acceptable construction design practices and acceptable to Landlord. Details are in the Print Package. 4 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd e) Ceiling plane which does not terminate tightly against a wall surface shall be returned to the structure above and sealed. f) Ceiling types, requirements and specifications shall be in accordance with the requirements of the Print Package. g) Ceiling systems, ductwork, and light fixtures shall be supported from the top chord of Landlord's bar joists or beams. E. UTILITIES 1. Electric Power Landlord shall provide an electrical distribution system as more fully described in the Print Package to electrical service rooms located at various points throughout the Shopping Center. Tenant shall connect to Landlord's service connection point and provide conductors from the electrical service room to the Leased Premises through the designated conduit. Tenant shall complete the electrical installation within the Leased Premises in accordance with all applicable codes and the Print Package. Electrical plans submitted for Landlord's approval shall indicate the load requirements and wattages,and shall include complete panel,riser diagram, lighting fixtures (with quantities), and equipment schedules. Notwithstanding anything to the contrary,Landlord shall not be required to provide service in excess of the existing design load. 2. Water Cold water supply shall be provided by Landlord at or near the boundary of the Leased Premises. The size and approximate location for the point of service is indicated in the Print Package. The water service will terminate with a valved connection. point of service, install a water meter with an accessible remote r adeut and extend service according to Tenant's requirements and in accordance wit' the Print Package. Pipe runs to the Leased Premises shall be insulated to prevent condensation. Water meters shall conform to the American Water Works Association specifications for domestic service. 3. Sanitary Sewer a) Tenant shall, if required by code, provide handicapped toilet facilities within the Leased Premises,and shall provide and maintain a Landlord approved waterproof membrane, at Tenant's expense in accordance with the specifications and at the locations set forth in the Print Package. If required by code, a A—minimum of one water closet, one lavatory and one 4" cleanout will be installed is required in the Leased Premises. (Notwithstanding the foregoing,food court tenants shall not be subject to this requirement.) b) Sanitary sewer stubs shall be provided by Landlord at or near the boundary of the Leased Premises. c) Lower Level-Tenant should locate toilet facilities in areas where sewer stubs are provided. Tenant shall excavate and complete plumbing connections, backfill to 90%density and pour concrete fill as required in the Print Package. If Tenant's design is not feasible with the existing locations, Tenant shall remove the existing slab according to approved practice, install required plumbing and replace the backfill material and concrete fill according to the details in the Print Package. Tenant shall be responsible for installing backfill material and concrete in Landlord's original blockout location. 5 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /d/ d) Upper Level - Tenants shall provide the floor penetrations for connecting plumbing to sanitary sewer stubs. Penetrations (pipes, conduits, etc.)passing through the floor slab shall be sleeved with the top of the sleeve 1-1/2" above finished floor. All floor penetrations shall be sealed as required in the Print Package to prevent the penetration of odors or liquids to any space below the Leased Premises. Tenant shall not place toilet facilities over Landlord's electrical service room. e) Plumbing shall be installed in accordance with applicable code. f) Landlord may have provided plumbing vent stacks throughout the Shopping Center(as indicated in the Print Package). Tenant shall run its metal vent piping to the nearest vent stack and connect to the opening provided by Landlord. Tenant shall install a metal plugged tee in its vent piping to permit connection to the vent stack by other tenants. g) Tenant shall provide at least one floor drain and cl nout in each toilet and kitchen ar a. h) Tenant shall provide access to cleanouts in the Leased Premises. i) If Tenant is an upper level tenant,horizontal sanitary sewer lines shall be installed above the ceiling of a lower level tenant and the lines shall be insulated to prevent condensation. If more than one tenant is required to attach to a single stub on the upper level,Tenant shall install a plugged"Y"branch fitting to provide for future connections. 4. Restaurant Trash Room If Tenant is a restaurant which is not part of a food court,Tenant shall provide within the Leased Premises,at Tenant's expense,a trash storage room adjacent to the rear service door. The trash room shall be adequate to store a minimum of two days accumulation,with air conditioned ventilation of a minimum 70 degrees and 2 cfm per square foot, and a hose bib and floor drain. Grease traps shall be located within the trash storage room. 5. Tenant Grease Traps a) If Tenant is a restaurant or food service facility, Tenant shall install a dedicated grease trap with necessary plumbing and indicate the location of the grease trap system on its plumbing plans. Tenant shall, at Tenant's expense, connect all sinks and floor drains within the Leased Premises (except toilet facility fixtures and drains) to the grease trap in accordance with all applicable codes, and subject to Landlord's approval The grease trap system installation shall be coordinated with Landlord's on-site construction representative. b) Tenant shall be responsible for properly maintaining its grease trap system. If Tenant fails to do so, Landlord may maintain the system and backcharge Tenant at three times Landlord's cost. c) Copies of maintenance and cleaning reports shall be submitted to Landlord's on-site manager. 6. Natural Gas Service Landlord may provide a natural gas line, as indicated in the Print Package. Natural gas service may be available from the local utility company at designated locations indicated in the Print Package. If natural gas service is available, Tenant shall arrange to obtain service from the local utility company. Piping,meter and all associated work for extension of service to the Leased Premises shall be provided by Tenant, at Tenant's expense and shall be subject to Landlord's approval and code requirements,details are in the Print Package. 6 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd l02' 7. Roof Drainage Roof drainage shall be provided by Landlord. 8. Telephone Service Landlord shall arrange with the telephone company to install telephone service to telephone junction boards located within the electrical service rooms. All telephone work beyond this point shall be arranged with the telephone company by Tenant at Tenant's expense. Tenant shall provide and install all conduit required for telephone service within the Leased Premises. F. HEATING,AIR CONDITIONING AND VENTILATION SYSTEM 1. The heating, air conditioning and ventilation system for the Leased Premises and for public areas in the Shopping Center is described in the Print Package. 2. Information on Ventilating System Design a) Ductwork: Tenant shall complete its duct connections at Tenant's sole expense. Tenant shall provide, at Tenant's sole expense,all ductwork and accessories for air distribution in accordance with the procedures described in the American Society of Heating, Refrigerating, and Air Conditioning Engineering Guide (ASHRAE), and in accordance with the latest methods recommended in the Sheet Metal and Air Conditioning Contractors National Association(SMACNA)low velocity duct manual. b) Ceiling Access Panels-Tenant shall provide 24"x 24"flush mount access panels in the ceiling within the Leased Premises at dampers, HVAC equipment and elsewhere as required by Landlord in order to provide access to the equipment. c) Tenant shall upon request by Landlord supply Landlord with evidence satisfactory to Landlord that Tenant is fulfilling Tenant's obligations under ARTICLE 16 of the Lease to maintain the heating, ventilation and air conditioning equipment within the Leased Premises. 3. Automatic Temperature Controls System for Tenant Stores a) The Leased Premises shall have its own thermostat(s), to be provided and installed by Tenant in accordance with the requirements of the Print Package to control temperature in the Leased Premises during business hours. It will be Tenant's responsibility to operate the temperature control system properly during all hours when Tenant is required to be open for business. b) Landlord may require Tenant to furnish and install, at Tenant's expense, a life safety system within the Leased Premises to shut down the heating, air conditioning and ventilation whenever an abnormal condition is detected. In addition, these devices may be required by local code authorities as part of the fire prevention smoke removal system. See the Print Package for details. 4. Supplemental Air Conditioning Unit a) Upon prior written approval of Landlord, Tenant may, at its expense, install and operate a Supplemental Air Conditioning Unit(the "Unit") on the roof of the Shopping Center. The Unit shall supplement(and not replace)any existing air conditioning unit,and shall be compatible with any existing air conditioning unit in all respects,including,but not limited to,roof integrity,structure,air flow,electric load,life safety alarm system and utility capacity. 7 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /03 b) Tenant Unit condensate drain lines must be as specified in the Print Package and must be installed from the Unit to roof drains as specified in the Print Package. c) All plans, specifications and calculations required in connection with the installation and operation of the Unit shall be provided by Tenant at Tenant's expense. Any review of the plans, specifications and calculations performed by Landlord or Landlord's engineer as Landlord deems necessary, shall be performed by Landlord's contractor at Tenant's expense. Tenant shall be required to submit to Landlord for prior approval: (i) A detailed description of the type of Unit to be installed and operated and related structural calculations; (ii) Plans and specifications for the installation and operation of the Unit; (iii) Copies of all required permits, licenses and authorizations which Tenant shall obtain at its own expense; (iv) A certificate of insurance evidencing the insurance coverage required by this Lease, and any additional insurance required by Landlord for the installation and operation of the Unit;and (v) Copies of all maintenance agreements and balance reports for the Unit. d) Tenant shall not install or operate the Unit without the prior written approval of Landlord. Tenant shall not enter nor remain upon the roof without a representative of Landlord being present. e) Tenant, its agents and contractors shall not cause any damage to any part of the Shopping Center,nor to persons or property in, upon or adjoining the Shopping Center. Tenant shall provide Landlord with original and notarized waivers of lien from Tenant's contractor, subcontractors, and material suppliers in connection with the purchase and installation of the Unit,in a form and detail satisfactory to Landlord. t) If Landlord's insurance premium or real estate tax assessment increases as a result of the installation or operation of the Unit,or for any reason attributable to the Unit,Tenant shall pay the increase as additional rental upon notice from Landlord. g) Notwithstanding anything to the contrary contained in the Lease, Tenant shall have no right to an abatement,deduction or set-off in rental if Tenant is unable to use the Unit. h) The installation, operation and removal of the Unit shall be at Tenant's sole risk. Tenant agrees to indemnify and defend Landlord against all claims,actions,damages,liability,and expenses in connection with the loss of life,personal injury,damage to property or business or any other loss or injury arising out of or in connection with the installation, operation or removal of the Unit. Tenant also agrees to indemnify Landlord for all costs and expenses (including reasonable attorneys' fees) incurred as a result of any litigation concerning or pertaining to the Unit. i) Landlord shall have the right to require Tenant to cease operation of the Unit if it is causing damage to any of the structural or mechanical elements of the Shopping Center,interfering with or diminishing any service provided by Landlord or others or interfering with any other tenants'business. j) At the expiration or earlier termination of this Lease, or upon the cessation of the operation of the Unit, Tenant shall immediately remove and dispose of the Unit at its sole expense. Tenant shall leave the portion of the roof where the Unit was located in good order and repair. If Tenant does not remove the 8 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd Ivy Unit as required, Landlord shall have the right to remove and dispose of the Unit and charge Tenant for all costs and expenses incurred by Landlord in connection with the removal and disposal of the Unit. Landlord shall not be liable for any property disposed of or removed by Landlord. k) Tenant shall locate the Unit and provide structural modifications in order to comply with the Shopping Center's structural load limits. Tenant shall submit structural calculations which have been prepared by a licensed structural engineer to Landlord for review by Landlord's engineer at Tenant's expense. Landlord may require modifications to Tenant's design and construction. 1) Tenant shall pay for all utilities consumed as a result of and in connection with the Unit in accordance with ARTICLE 16 of the Lease. G. FIRE PROTECTION SYSTEM 1. If Landlord installs a complete wet sprinkler fire protection grid system within the Leased Premises,Tenant shall pay Landlord for the sprinkler fire protection grid system and sprinkler head installation at a rate of $3.00 per square foot. Any modifications to the existing sprinkler grid system, main relocation, or installation of any necessary additional sprinkler heads shall be engineered, fabricated and installed by Landlord's pre-approved sprinkler contractor at Tenant's expense in accordance with the Print Package. ns at cost plus 20%. 2. Throughout the Leased Tenn Landlord shall keep in good order and repair and shall maintain the sprinkler system in the Leased Premises, including checking, testing and servicing thereof, and shall make any necessary repairs to or replacements of such sprinkler system except that Tenant, shall be financially responsible for all repairs and replacements thereto necessitated by any acts,omission to act or negligence of Tenant or Tenant's agents, employees and contractors. In consideration thereof, Tenant shall pay to Landlord,for ach L se Y ar or partial Lease Y ar during the L asc Term hereof,a Sprinkler Charge which shall be payable in twelve(12)equal monthly installments,in advance,on the first day of each month during the L se Term and any additional charge billed by Landlord for repairs or replacements made necessary by reason of the acts, omissions to act or negligence of Tenant or Tenant's agents, employees or contractors. Tenant shall pay Landlord$0.25 per square foot for said Sprinkler Charge. H. EXITS Exit requirements and exit identifications within the Leased Premises shall be furnished and installed by Tenant in accordance with requirements of applicable code and subject to approval by the local building authority. Exit lights shall have auxiliary battery power provided with individual battery units for each fixture, or through a 12 volt wiring system with a single battery source. Exit lights shall always be illuminated and shall operate simultaneously with the emergency lights. I. FIRE EXTINGUISHER REQUIREMENTS Tenant shall furnish and install a minimum of one fire extinguisher in the Leased Premises. The number of extinguishers provided by Tenant shall be as required by applicable code. The extinguisher type shall be Class 4-A:40B:C dry chemical. The location of extinguishers must be approved by Landlord's fire protection consultant and local regulatory entities. Fire extinguishers are required during construction. J. ALARM SYSTEM 9 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd l O5 1. If Landlo es, Tenant shall pay Landlord a charge of$1,500.00. Details arc in the Print Package. 2. If Landlord installs life safety detectors or indicators within the Leased Premises and completes final electrical hookup,it shall be at Tenant's expense. See the Print Package for details. K. EXHAUST SYSTEM 1. Toilet Exhaust Systems a) Tenant shall provide its own toilet exhaust system in accordance with applicable code and the details in the Print Package. Tenant's system exhaust shall not be less than 2 CFM per square foot of toilet room area or 50 CFM. b) Tenant shall provide an appropriately sized fan controlled by light switch and backdraft damper and will run its toilet exhaust duct(s)to an exhaust stack provided by Landlord as indicated in the Print Package. Tenant shall connect its duct to the exhaust stack and shall provide a metal capped tee to allow for the exhaust duct connection of other tenants. 2. Special Exhaust Systems a) Food or other odors must be exhausted to the atmosphere through a Tenant-furnished and installed up- blast exhaust fan,in accordance with applicable code. The fan unit shall be modified by the addition of a venturi type duct adapter to assure a minimum discharge velocity of 2000 F.P.M. The exhaust fan shall have a drainage area at the bottom of the unit equipped with a residue trough equipped to be cleaned periodically by Tenant. The location of the exhaust fan shall be no less than 20'-0" away from any air intakes. An additional duct extension of the fan discharge may be required. Exhaust duct and fan locations shall be submitted to Landlord for prior approval. b) Tenant shall clean its filter and duct systems regularly to avoid grease damage. Tenant shall submit cleaning reports to Landlord on a regular basis. c) Tenant shall provide an electrical interlock to allow the kitchen exhaust fan to run simultaneously with the lights. d) Makeup air for exhaust systems from kitchen, food preparation area, dining area and cafeteria area shall be accomplished by Tenant-furnished and installed makeup air systems or,at Landlord's discretion,from secondary mall air. If more than 10% of the air furnished to the Leased Premises from Landlord's air supply system is used as supply air for Tenant's Special Exhaust System, the Operating Charge as described in EXHIBIT F shall be adjusted. 3. Exhaust Fan Discharge Dampers Exhaust fan discharge dampers shall be parallel blade, neoprene-lined edge and reasonably airtight when closed. The discharge dampers shall be located close to an outdoor outlet and equipped with a damper control operator. 4. Exhaust Discharge Outlets,Relief Air Outlets,and Rooftop Equipment Exhaust discharge outlets relief air outlets and rooftop equipment shall be mushroom type with roof locations and projections as approved by Landlord. All roof-mounted equipment shall be approved by Landlord and 10 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /06 installed on curbs installed to the specifications in the Print Package, and properly flashed into the roof by Landlord's roofing contractor at Tenant's expense. Projections above 3'-0" will require additional approval by Landlord. 5. Damper Controls and Interlock Damper controls with automatic fan shutdown and interlock to maintain the original design air balance shall be provided by Tenant and approved by Landlord. The control system must be able to shut down its fans in case of fire. 6. Food Preparation Exhaust Systems-Special Requirements a) The automatic extinguishing equipment shall be installed in accordance with the National Fire Protection Association Standard 96, latest edition, Section 10 ("Pamphlet 96"). The extinguishing system shall be Underwriters Laboratories approved CO2 or dry chemical pre-engineered system with the following features: (i) Protection of the hood and duct; (ii)Surface protection for deep fat fryer,griddle,broiler and range; (iii) Automatic devices for shutting down fuel or power supply to the appliances. (It should be noted that these devices must be of the manual reset type.);and (iv) Provided with a simple means to manually activate the fire extinguishing equipment within a path of ingress or egress. This means of manual activation shall be mechanical(not electrical)and must be clearly identified; b) The extinguishing system shall be installed and inspected in accordance with Pamphlet 96. Tenant shall enter into an inspection agreement with a firm qualified by the system manufacturer to perform such inspections. If dry chemical systems are used, the exhaust fan must run during the use of the extinguishing system. The systems vendor shall submit plans and other pertinent information on the proposed system to Landlord for prior review and approval. c) All exhaust system ductwork and exhaust fans used for exhausting cooking odors and grease- contaminated air shall be cleaned on a regular schedule. Cleaning shall occur at frequent intervals to prevent grease accumulation. Cleaning reports shall be submitted to Landlord on a regular basis. Underwriters Laboratories approved grease extracting hoods with water washdown cycle are suggested. A properly designed conventional range hood with washable grease filters is acceptable, provided that fire protection sprinkler heads or chemical fire protection is provided above the filters and within the exhaust duct run between the hood and the roof-mounted exhaust fan, and further provided that it is approved by Landlord's fire protection engineers. L. ELECTRICAL WIRING 1. Electrical Service a) Tenant shall connect and furnish all necessary labor, branch and main circuit breakers, panels, transformer, conduit,wire, fuses, etc.,to provide a complete approved electric distribution system within the Leased Premises as more fully described in the Print Package. 11 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 10 7 b) Loads in excess of 10 watts per square foot for retail tenants,60 watts for food court tenants,and 60 watts for restaurants and cafeterias shall require special review by and written permission of Landlord, and Tenant shall be charged for required revisions to Landlord's distribution system. c) Tenant's electrical drawing submittals shall be prepared by a registered electrical and mechanical engineer, include a line diagram and individual wattage tabulation (as well as overall total wattage demand) of the electrical load including quantities and sizes of lamps, appliances, signs, water heaters, etc. A complete electrical panel schedule is required for each installation. See the Print Package for details. 2. Electrical Construction a) Electrical materials and equipment shall be National Electrical Code Standard, unless better grade is required by local code and shall bear the Underwriters Laboratories label. All wire must be copper. b) Telephones and service shall be provided and installed by Tenant. A complete conduit system, if required, shall be provided by Tenant for the utility company with wires installed in the conduit. See the Print Package for details. c) Lighting fixtures shall be furnished and installed by Tenant,and shall be of a type approved by applicable inspection authorities. Recessed fixtures in furred spaces shall be connected by a flexible conduit and "AF"wire and run to a branch circuit outlet box which is independent of the fixture. Fluorescent ballast shall have individual non-resetting overload protection. d) Electrical material shall be furnished and installed by Tenant. Distribution panels,motor starters, lighting panels and push button stations shall bear engraved bakelite nameplates. e) Electric water-heaters for domestic water usage in the Leased Premises are to be furnished and installed by Tenant. Electric water-heaters shall be automatic and shall be limited to 12 gallon capacity. Heaters must have a pressure relief valve discharge piped to nearest drain in the Leased Premises. Tenant shall submit support detail if a water heater is above the finished floor. f) Panel board, furnished and installed by Tenant, for lighting and power within the Leased Premises shall be equal to type NLAB class panels,and shall meet the requirements of local code. g) A floor-mounted transformer shall be furnished and installed by Tenant,as required. M.GENERAL 1. Tenant shall provide final working drawings prepared by a registered architect of the state in which the Shopping Center is located,and licensed engineers for all items of Tenant's Work. Refer to Print Package for details. 2. Tenant shall cause its general contractor to deposit with Landlord without liability for interest, the sum of $2,500.00,prior to the commencement of construction. This sum shall be applied toward any costs incurred by Landlord or Landlord's contractor to complete any part of Tenant's Work which Tenant or Tenant's contractor fails to complete within the time period required by ARTICLE 2. This remedy shall be in addition to and not in lieu of any other rights and remedies of Landlord. The balance of the deposit shall be returned to Tenant's general contractor after Tenant's Work has been reviewed and accepted by Landlord. 12 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /0S2 3. Any existing materials, fixtures or equipment which Tenant plans to use in the Leased Premises shall be of a quality level of new or like new and use of any such materials is subject to Landlord's prior written approval. The installation or use of"used"materials other than those in the Leased Premises at the time of delivery of possession to Tenant shall not be permitted. 4. Landlord, Tenant or any local utility company shall have the right, subject to Landlord's approval, to run utility lines,pipes,ducts,etc.above the Leased Premises. It shall be Tenant's responsibility to provide flush- mounted access panels in its finished work where required by Landlord. 5. Tenant shall prepare its plans and perform Tenant's Work in compliance with Landlord's requirements, governing statutes,ordinances,regulations,codes and insurance rating boards. Tenant shall pay Landlord for review of final plans at the rate of$0.50 per square foot of space in the Leased Premises, plus $0.25 per square foot for ch additional review of final plans. Landlord's approval does not relieve Tenant of its obligation to complete Tenant's Work in accordance with the terms of the Lease, nor of the necessity of complying with the laws,rules,regulations and ordinances of local governing authorities 6. Landlord shall have the right to approve Tenant's contractors and subcontractors,however approval shall not constitute the assumption of any responsibility or liability by Landlord for the actions of Tenant's contractors or subcontractors or the quality or sufficiency of Tenant's Work. 7. Temporary electrical service or permanent electrical distribution, at Landlord's option, may be provided by orary lines as may be necessary and distribute temporary service in the Leased Premises. For providing this service, Tenant shall pay Landlord a single charge equal to the gr ater of $750.00 or $0.75 square foot of the L used Premises, unless Tcnant is billed dircctly by the utility provider for Such olcctri al scrvico. • 8. Tenant shall be required to erect a barricade at the start of Tenant's Work,at Tenant's expense. See the Print Package for details. If Landlord has already erected a barricade or if Tenant fails to erect a barricade and Landlord elects to erect a barricade on Tenant's behalf, Tenant shall pay Landlord$55.00 per lineal foot for the barricade. Tenant's barricade may not be dismantled without Landlord's prior approval. 9. All drilling, welding or other attachment to the structural system must be approved by Landlord in writing before the start of Tenant's Work,and must be clearly identified on Tenant's drawings. Landlord approval of the drawings does not relieve Tenant of the responsibility to make a request in writing prior to starting Tenant's Work. 10.During initial construction,fixturing and stocking,Tenant shall provide a trash removal service from the area designated by Landlord. It shall be Tenant's responsibility to break its boxes down and place its trash daily in the containers provided. Trash accumulation shall not be permitted overnight in the Leased Premises,joint use areas or service corridors. Compliance with Landlord's recycling program is mandatory. If Tenant is at any time required to use a trash removal service provided by Landlord, Tenant shall pay Landlord a single charge equal to the greater of$750.00 or$0.75 per square foot of the Leased Premises. Compliance with Landlord's recycling program is mandatory. 11.Tenant is required to keep the Leased Premises,the corridor,mall or arcade adjacent to the Leased Premises free of trash. If Landlord removes Tenant's or Tenant's contractor's trash, the charge to Tenant will be 3 times Landlord's cost. Any material, whether trash or otherwise, placed outside of the Leased Premises for more than 24 hours shall be subject to removal and disposal without notice. 13 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd / 27 12.Tenant's contractor or subcontractor shall not post signs in any part of the Shopping Center,on construction barricades or in the Leased Premises. 13.Tenant shall obtain a Certificate of Occupancy promptly following completion of Tenant's Work, and shall promptly forward a copy of it to Landlord prior to Tenant opening for business in the Leased Premises. Tenant shall not be permitted to open for business without a Certificate of Occupancy. Upon completion of Tenant's Work or any alterations under ARTICLE 12, Tenant shall submit an original contractor's notarized affidavit, all subcontractors' original notarized affidavits and original notarized final waivers of lien, as well as any original notarized lien waivers that Landlord may require from contractors, subcontractors, laborers, materialmen and material suppliers. The documents must be in a form and detail satisfactory to Landlord. 14.Work performed by Tenant or Tenant's contractor shall be performed so as to avoid a labor dispute. If there is a labor dispute, Tenant shall immediately undertake whatever action may be necessary to eliminate the dispute including, but not limited to, (i)removing all disputants from the job site until the labor dispute is over, (ii) seeking an injunction in the event of a breach of contract action between Tenant and Tenant's contractor and (iii) filing appropriate unfair labor practice charges in the event of a union jurisdictional dispute. If, during the period of initial construction of the Leased Premises, any of Tenant's employees, agents or contractors strike, or if picket lines or boycotts or other visible activities objectionable to Landlord are conducted or carried out against Tenant or its employees,agents or contractors,Tenant shall immediately close the Leased Premises and remove all employees until the dispute giving rise to the strike, picket line, boycott or objectionable activity has been settled to Landlord's satisfaction. 15.Tenant agrees that it will not, at any time prior to or during this Lease, including the period of the performance of Tenant's Work, either directly or indirectly, employ or permit the employment of any contractor, or any materials in the Leased Premises, if the use of the contractor or the materials would, in Landlord's sole opinion, create a difficulty, strike or jurisdictional dispute with other contractors engaged by Tenant or Landlord or others, or would in any way disturb the construction,maintenance or operation of the Shopping Center. If any interference or conflict occurs, Tenant, upon demand by Landlord, shall cause all contractors or all materials causing the interference, difficulty or conflict, to leave or be removed from the Shopping Center immediately. 16.If Tenant or Tenant's contractor fails to perform Tenant's Work, or any part of Tenant's Work, in a manner satisfactory to Landlord within 10 days after receipt of Landlord's punch list,Landlord shall have the right,in addition to and not in lieu of Landlord's other rights and remedies, to perform the Work, and Tenant shall reimburse Landlord for costs incurred by Landlord. 17.Landlord shall have the right to charge Tenant for certain improvements and other work performed by Landlord or caused to be performed by Landlord at Tenant's request, within the Leased Premises although they may not be itemized in the Lease. This work shall be paid for by Tenant as additional rental upon notice by Landlord. Landlord has no duty however to do any work which Landlord is not specifically and expressly required to perform under this Lease or which,under any provisions of this Lease,Tenant may be required to perform. The performance of work by Landlord shall not constitute a waiver of Tenant's default in failing to perform the Work. 18.Landlord shall provide lighting beyond the lease lines of the Leased Premises. 19.Except for Landlord's negligence or willful misconduct, Tenant releases Landlord and Landlord's contractor from any claim for damages against Landlord or Landlord's contractor for any delay in the date on which the Leased Premises shall be ready for delivery to Tenant. 14 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 1I0 20.Tenant shall conform to and comply with all federal, state, county and local laws, ordinances,permits,rules and regulations in the performance of Tenant's Work or in the performance of any alterations, additions or modifications. Likewise, in the performance of Tenant's Work or in the performance of any alterations, additions or modifications,Tenant shall not use or install,nor shall permit its contractors to use or install,any building materials containing asbestos or other Hazardous Material. Upon expiration of the Term or the earlier termination of this Lease, Tenant shall provide Landlord with a statement signed by Tenant that the Leased Premises do not contain any Hazardous Material. If Tenant fails to do so, Landlord shall have the right to have the Leased Premises inspected for the presence of Hazardous Material, and if Hazardous Material are present in the Leased Premises, to take all actions which are necessary to return the Leased Premises to the condition it was in prior to the presence of Hazardous Material in the Leased Premises,all at Tenant's sole cost and expense. This obligation by Tenant shall survive the Expiration Date or earlier termination of this Lease and shall survive any transfer of Landlord's interest in the Shopping Center. 21. ' injury to person or damage to property of Tenant, or of Tenant's employees, license4 or invitees, from any out the Leased Premises,and Tenant shall and will indemnify, defend and save Landlord harmless from any and all liability and claims arising out of or connected-with- acknowledges that these provisions become effective beginning upon the date Tenant or its agents enter the Leased Premises. This obligation to indemnify shall include reasonable attorneys' fees eys from the first notice+l,at any clam er demand i..to be made o ..be made 22.Notwithstanding any provision of the Lease to the contrary, without abatement or suspension of Tenant's obligations,if any law,statute,ordinance,regulation,executive order or proclamation,or other governmental requirement or any governmental recommendation approved by Landlord, requires or recommends that Landlord not perform an obligation in connection with any energy conservation, ecology or other program, Landlord may comply without being deemed in violation of this Lease. 23.Landlord has delivered to Tenant illustrative outline drawings of the Leased Premises ("Tenant Print Package") which contains the architectural, electrical and mechanical information necessary for the preparation of Tenant's plans and specifications for Tenant's Work. By its execution of this Lease, Tenant acknowledges receipt of the Tenant Print Package and,by this reference,it is incorporated in this Lease. The date of this Lease (or the date of actual delivery, whichever shall be later) shall be the date of delivery ("delivery date")of the Tenant Print Package for the purpose of establishing construction schedules. Tenant agrees to comply with the following schedule: a) By the submittal date for preliminary plans and specifications specified in the Reference Provisions, Tenant agrees to notify Landlord of the identity and mailing address of the licensed architect engaged by Tenant for the preparation of plans for Tenant's Work. At the same time Tenant, at Tenant's expense, shall cause Tenant's architect to prepare and deliver to Landlord for Landlord's approval 1 reproducible set of preliminary plans for Tenant's Work, using the Tenant Print Package. The preliminary plans shall include, without limitation, a floor plan, storefront and interior elevations, reflected ceiling plan and a color and sample board(see the Tenant Print Package);and b) By the submittal date for final plans and specifications specified in the Reference Provisions, Tenant, at Tenant's expense, shall cause Tenant's architect to prepare and deliver to Landlord for Landlord's approval 2 reproducible sets of final plans and specifications for Tenant's Work, using the Tenant Print Package, 1 of which shall be signed by Tenant. 24.Landlord shall review Tenant's plans and specifications and notify Tenant within 15 days of their receipt if they do not meet with Landlord's approval. Tenant shall,within 10 days of the receipt of notification,revise and resubmit the plans and specifications. When Landlord has approved Tenant's plans and specifications, 15 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /1/ Landlord shall initial and return 1 set of approved plans to Tenant. That set shall show the date of Landlord's approval,and shall be made a part of this Lease as"EXHIBIT P." 25.If Tenant does not furnish Landlord with the identity of Tenant's architect or furnish Landlord with plans and specifications by the required date,Landlord shall have the right, in addition to any other right or remedy it may have at law or in equity,to cancel and terminate this Lease by written notice to Tenant. Landlord shall in addition to all other remedies, be entitled to retain and have recourse to any bond, deposit or advance rental previously deposited by Tenant under this Lease as liquidated damages. N. ADDITIONAL REQUIREMENTS 1. Quality Standards All work by Tenant,including repair work,shall be performed in a first-class workmanlike manner and shall be in a good and usable condition at completion. Tenant shall require any person performing work to guarantee that the work is free from any and all defects in workmanship and materials for 1 year from the date of completion. Tenant shall also require any such person to be responsible for the replacement or repair without additional charge of work done or furnished by or through such person which shall become defective within 1 year after substantial completion of the work. The correction of work shall include, without additional charge, all expenses and damages in connection with the removal, replacement or repair of any part of work which may be damaged or disturbed. All warranties or guarantees for materials or workmanship on or regarding Tenant's Work shall be contained in the contract or subcontract. The contract shall be written so that all warranties and guarantees shall inure to the benefit of both Landlord and Tenant, as their respective interests appear,and so that the contract can be directly enforced by either party. 2. Liens Neither Landlord nor any mortgagee of Landlord shall be liable for any labor or materials furnished to Tenant upon credit,and no mechanics or other lien for labor or materials shall attach to or affect any interest of Landlord or the mortgagee in the Leased Premises or the Shopping Center. Nothing in this Lease shall be deemed or construed to constitute Tenant as Landlord's agent or contractor for the performance of Tenant's Work. Tenant acknowledges that Tenant's Work is to be performed solely for the benefit of Tenant. Nothing in this Lease shall be construed as constituting the consent or request of Landlord to any contractor for the performance of labor or the furnishing of any materials for Tenant,nor as giving Tenant authority to contract as the agent of or for the benefit of Landlord. 3. Coordination Tenant's Work shall be coordinated with Landlord's Work as well as with the work of other tenants in the Shopping Center, so that Tenant's Work shall not interfere with or delay completion of other construction in the Shopping Center. 4. Insurance a) Tenant's contractor must fulfill the following insurance requirements,and shall maintain at no expense to Landlord: (i) Workers' Compensation Insurance with statutory limits and Employer's Liability Insurance with limits of not less than$100,000. 16 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXIIIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd llv (ii) General Liability Insurance with limits of not less than $2,000,000 combined single limit for bodily injury and property damage, including personal injury, Contractual Liability coverage specifically endorsed to cover the indemnity provisions contained herein and Contractor's Protective Liability coverage if contractor uses subcontractors. (iii) Motor Vehicle Liability Insurance in the Contractor's name, including owned,non-owned,leased and hired car coverage with limits of not less than $2,000,000 combined single limit per occurrence for bodily injury for property damage. 5. Tenant shall cause each of its contractors to agree to name Landlord,the parents,subsidiaries and affiliates of Landlord and, if Landlord elects, any owner or other occupant in or adjoining the Shopping Center, as Additional Insureds on Contractor's Commercial General Liability Insurance and Motor Vehicle Liability Insurance. 6. Certificate evidence of the required insurance shall be furnished to Landlord before the start of Tenant's Work. Insurance carriers shall have a Best's rating of A-VII or better,and shall be registered or authorized to do business in the state in which the Shopping Center is located. 7. Each of Tenant's contractors shall also, to the fullest extent permitted under the law, protect, defend, save harmless and indemnify Landlord,the parents,subsidiaries and affiliates of Landlord,and if Landlord elects, any owner or other occupant in or adjoining the Shopping Center, and their employees, officers and agents against any and all liability claims, demands or expenses incurred on account of any injury or damage, alleged or real, arising out of or in any way connected with any act or omission to act on the part of the indemnitor. 8. "As-Built"Drawings and Specifications a) Within 10 days after opening for business in the Leased Premises, Tenant shall provide Landlord with 1 set of"as-built" drawings and specifications indicating the changes from EXHIBIT P made during the performance of Tenant's Work("as-built" drawings shall accurately locate all underground utilities and equipment installed), and 1 set of reproducible as-built sepias. As-built drawings and sepias shall be delivered to Landlord prior to final inspection of the Leased Premises. b) Upon completion of construction of any alterations to the Leased Premises,Tenant shall promptly deliver to Landlord a full and complete set of as-built drawings showing the alterations. 9. Pollution Tenant shall comply with any existing or future city, state, county or federal regulations or legislation regarding the control of pollution. 10.Americans with Disabilities Act of 1990 Notwithstanding anything to the contrary contained in this Lease, Tenant shall comply with the Americans with Disabilities Act of 1990("ADA"),and any amendment to the ADA,as well as applicable state and local laws, regulations and ordinances regarding access to, employment of and service to individuals covered by the ADA. Compliance will include, but not be limited to, the design, construction and alteration of the Leased Premises. 17 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd 113 EXFIIBIT Y Attached to and made part of the Lease bearing the Lease Reference Date of , 2004 between Eden Prairie Mall, LLC as Landlord and City of Eden Prairie, as Tenant MUNICIPAL CONTRACT PROVISIONS 1. Definitions. The following definitions apply to this Appendix. 1.1 "City"means the City of Eden Prairie. 1.2 "Contracting Party"means Eden Prairie Mall, LLC. 1.3 "Contract"means Lease bearing the reference date of , 2004 (Eden Prairie Mall, LLC as Landlord and City of Eden Prairie as Tenant). 2. Data Practices Act. The Contracting Party shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. § 1301, et seq., to the extent that the Act is applicable to data and documents in the hands of the Contracting Party. 3. Audits. The books, records, documents, and accounting procedures and practices of the Contracting Party or other parties relevant to this agreement are subject to examination by the City and either Legislative Auditor or the State Auditor for a period of six years after the effective date of this Contract7 4. Worker's Compensation. Contracting Party represents and warrants that it has and will maintain during the performance of this agreement worker's compensation insurance coverage required pursuant to Minn. Stat. § 176.181, subd. 2 and that the certificate of insurance or the written order of the Commissioner of Commerce permitting self insurance of worker's compensation insurance coverage provided to the City prior to execution of this agreement is current and in force and effect. 5. Discrimination. In performance of this contract, the Contracting Party shall not discriminate on the grounds of or because of race, color, creed, religion, national origin, sex, marital status, status with regards to public assistance, disability, sexual orientation, or age against any employee of the Contracting Party, any subcontractor of the Contracting Party, or any applicant for employment. The Contracting Party shall include a similar provision in all contracts with subcontractors to this contract. The Contracting Party further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. § 363.01, et seq., Title VI of the Civil Rights Act of 1964, and the American with Disabilities Act of 1990. 6. Conflicts. No salaried officer or employee of the City and no member of the Board of the City shall have a financial interest, direct or indirect, in this contract. The violation of this provision renders the Contract void. Any federal regulations and applicable state statutes shall be violated. 7. Limitation of Remedies. In the event of a breach of the Contract by City, the Contracting Party shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. I C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd �/� 2 C:\Documents and Settings\kporta\Local Settings\Temporary Internet Files\OLK80\EP Center Lease-040804.doc EXHIBIT X CITY OF EDEN PRAIRIE—EDEN PRAIRIE MALL 04/08/04 acd /ls"-- CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Engineering Approve Roadside Landscaping Partnership with Jim Richardson MnDOT VI.F. Requested Action Move to: Approve resolution authorizing application to enter into an agreement with MnDOT and to designate Stuart Fox, Manager of Parks and Natural Resources, as the contact person. Synopsis The construction will be landscaping,which MnDOT will design,where the City of Eden Prairie and neighborhood volunteers will do the installation. The City of Eden Prairie will purchase the planting materials from a wholesale nursery,which the State has estimated to cost$5,000.00. Background Information This will be a continuation of an existing landscaping and planting that was installed with the updating of Trunk Highway 5 in the early 1990's. The site is located between Trunk Highway 5 and Mitchell Lake. The State will reimburse the City of Eden Prairie for the cost of the planting materials once final acceptance is completed. 1 I' CITY OF EDEN PRAIRIE HENNEPIN COUNTY RESOLUTION NO. APPROVAL OF CITY PARTICIPATION IN MN/DOT COMMUNITY ROADSIDE LANDSCAPING PARTNERSHIP PROGRAM WHEREAS, a portion of Trunk Highway 5 right-of-way in Eden Prairie has been identified as a candidate for landscape improvements. NOW, THEREFORE, BE IT RESOLVED by the Eden Prairie City Council that the City of Eden Prairie act as sponsoring unit for the landscape improvement project identified as Trunk Highway 5 Right-of-Way Adjacent to Mitchell Lake to be conducted during the period of August,2004 through November, 2004. BE IT FURTHER RESOLVED that Stuart Fox, Manager of Parks and Natural Resources is authorized to apply to the Minnesota Department of Transportation for funding of this project on behalf of the City of Eden Prairie. ADOPTED by the Eden Prairie City Council on April 13,2004. Nancy Tyra-Lukins,Mayor ATTEST: SEAL Kathleen A.Porta, City Clerk 07 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13, 2004 DEPARTMENT: ITEM NO.: ITEM DESCRIPTION: Through: Robert A. Lambert Director of Par :o.'ecreation Award Bid for High Trail Estates Park V / From: Stu Fox, ', . ager of playstructure Parks and Natural Resources Requested Action Move to: Award contract for $17,000 of playground equipment at High Trail Estates Park to Webber Recreational Design, Inc. Synopsis City staff advertised for replacement of the playstructure for High Trail Estates park and received five bids. The manufacturers were invited to meet with the neighbors on February 20th. Each representative presented their proposed playstructure and answered questions from the audience. Based on feedback from neighbors that attended the meeting, they recommended the playstructure proposed by Webber Recreational Design, Inc. The staff concurs with their feedback and recommends the same vendor. Background Information The 2004 budget included$55,000 for playstructure replacement in 2004. Invitations to bid on the project were sent to six playground manufacturers and five proposals were received. The proposed budget for this project is $17,000 of playground equipment and $3,000 for site work and restoration. The five proposals were received from: • Earl F. Anderson, Inc. • Webber Recreational Design, Inc. • Minnesota Wisconsin Playground • Flanagan Sales, Inc. • Midwest Playscapes, Inc. Each of the submitted proposals met the guidelines as detailed in the Request for Proposal and Bid Specifications that were sent to each of the playground manufacturer representatives. Installation will be completed by July 31, 2004. ll8 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT: ITEM NO.: ITEM DESCRIPTION: Through: Robert A. Lambert Director of Parks ecreation Award Bid for Willow Park Playstructure V I , qg From: Stu Fox y\' . ager of Parks and Natural Resources Requested Action Move to: Award contract for$27,000 of playground equipment at Willow Park to Midwest Playscapes, Inc. Synopsis City staff advertised for a new playstructure for Willow Park and received five bids. The manufacturers were invited to meet with the neighbors on March 4th. Each representative presented their proposed playstructure and answered questions from the audience. Based on feedback from neighbors that attended the meeting, they recommended the playstructure proposed by Midwest Playscapes,Inc. The staff concurs with their feedback and recommends the same vendor. Background Information The 2004 budget included$55,000 for playstructure replacement in 2004. Invitations to bid on the project were sent to six playground manufacturers and five proposals were received. The proposed budget for this project is $27,000 of playground equipment and $8,000 for site work and restoration. The five proposals were received from: • Earl F. Anderson,Inc. • Webber Recreational Design, Inc. • Minnesota Wisconsin Playground • Flanagan Sales,Inc. • Midwest Playscapes, Inc. Each of the submitted proposals met the guidelines as detailed in the Request for Proposal and Bid Specifications that were sent to each of the playground manufacturer representatives. Installation will be completed by July 31, 2004 111 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT/DIVISION: ITEM NO.: ITEM DESCRIPTION: Through: Robert A. Lambert Director of Parks &Recreation VI. I. Award Bid for City Center Parking Lot From: Stu Fox,Manager of Construction and Playground Site Preparation Parks and Natural Resources Requested Action Move to: Approve the low bid of Sunram Construction in an amount not to exceed $229,545.14 for construction of the City Center Police parking lot and the development of the site for relocating the School District's playground for the Education Center. Synopsis The City received four bids for the construction of the City Center parking lot and the relocation of the playground site for the School District's Education Center ranging from$316,514.32 to Sunram Construction's low bid of$229,545.14. The breakdown in cost was $109,793.49 for the Police parking lot and$119,751.65 for the playground relocation. Background As a part of the negotiation for extending a lease with C.H. Robinson,the City committed to providing sixty additional parking places on the west end of the building for C.H. Robinson. In order to accomplish this parking lot expansion,the City committed to relocating the School District's playground site from the parking lot on the west side of the building to the open space outlot on the north side of the building. The City will be required to construct a significant retaining wall in order to ensure this site is ADA accessible. Due to a shortage of parking spaces for the City Center,the City has extremely limited use of the Heritage Rooms, the Garden Room and other meeting rooms during the day. The expansion of the parking lot to serve the Police Department will accomplish two goals: 1. It will generate the amount of fill needed to develop the playground site for the School District. 2. It will provide 33 additional parking places for the City Center. Staff anticipates this project being completed by mid-July, 2004. Attachment: Bid Summary 10 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13, 2004 DEPARTMENT/DIVISION: ITEM NO.: ITEM DESCRIPTION: Through: Robert A.Lambert- Director of Parks &Recreation Award Bid for Re-roofing of Round Lake Park n T. From: Stu Fox, Manager of Parks and Natural Resources Buildings and Staring Lake Outdoor Center Requested Action Move to: Approve the low bid of Foss Exteriors LLC in the amount not to exceed $32,787.27 for re-roofing the Round Lake warming house,pavilion and kiosk and the Staring Lake Outdoor Center. Synopsis The City received four bids for re-roofing the three structures at Round Lake Park and the Outdoor Center. Bids ranged from$54,400 to the low bid of Foss Exteriors LLC of$32,787.27. The shingles on these structures are 25—30 years old and need to be replaced before any of the structures receive permanent water damage. Staff anticipates the project being completed by June 1, 2004. Attachment: Bid Summary Engineers Estimate Q Round Lake Buildings $35,000 Staring Lake Outdoor Center • $8,000 Total $43,000 Eden Prairie Project: Round Lake Park and Staring Lake Outdoor Center Re-roofing Project Date: 4/8/04 Time: 2:00 p.m. 5% Bid Bond Planholders Yes No Outdoor Center Round Lake Park Total Bid E.R. Berwald Roofing Co. Inc. ✓ $8,682.00 $44,948.00 $53,630.00 Garlock-French Roofing ✓ $8,482.00 $36,964.00 $45,446.00 Foss Exteriors,LLC ✓ $7,445.27 $25,342.00 $32,787.27 Westurn Roofing& Siding ✓ $8,800.00 $45,600.00 $54,400.00 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 6, 2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Award Bid for construction of the Eden Prairie Molly Koivumaki, Community Center Human Services Site VI. K. Development Requested Action Move to: Approve the bid for the renovation of the office space at the Eden Prairie Center, for the new office of Housing and Human Services to Lund Martin Construction, Inc., for $56,800. Synopsis City staff has been working with Wilkus Architects and General Growth to modify an existing office space within the Eden Prairie Center, to be used for the office of Housing and Human Services, and a police sub station. Funding for the project will come from Community Development Block Grant funds for those costs eligible under HUD guidelines. Items and services not eligible will be covered by the Tenant Improvement allowance provided by General Growth. The project was advertised on March 18th 2004. Nine construction companies submitted bids for the project. Bids were opened on March 29th, and the following is a list of the contractors and bid amounts: Contractor Bid Amount Days Lund Martin 56,800 30 McFarland 58,400 90 Gladstone Construction 60,565 90 Hamline Construction 62,800 60 Unicorp 66,700 60 Ebert Construction 66,810 30 GA Construction 67,500 45 Cutting Edge Construction Company 79,971 - Merrimac Construction Company 104,825 120 It is anticipated that construction will begin in mid-April,with completion in mid-May. FORM OF CONTRACT THIS AGREEMENT, made and executed this 14th day of April,2004, by and between the City of Eden Prairie, hereinafter referred to as the "CITY", and Lund Martin Construction,Inc.,hereinafter referred to as the"CONTRACTOR", WITNESSETH: CITY and CONTRACTOR,for the consideration hereinafter stated,agree as follows: I. CONTRACTOR hereby covenants and agrees to perform and execute all the provisions of the Plans and Specifications prepared by Wilkus Architects, Inc., referred to in Paragraph IV, as provided by the CITY for"Contract 2101—EP Center Human Services Site". CONTRACTOR further agrees to do everything required by this Agreement, the Contract Document and Addendum#1. II. CITY agrees to pay and CONTRACTOR agrees to receive and accept payment in accordance with the prices bid for the unit or lump sum items as set forth in the Bid Form attached hereto which prices conform to those in the accepted CONTRACTOR'S bid on file in the office of the City Facilities Manager. The aggregate sum of such prices, based on estimated required quantities is estimated to be$56,800.00. III. Payments to CONTRACTOR by CITY shall be made as provided in the Contract Documents. IV. The Contract Documents consist of the following component parts: (1) Legal and Procedural Documents a. Advertisement for Bids b. Instruction to Bidders c. Accepted Proposal d. Contract Agreement e. Contractor's Performance Bond F. Contractor's Payment Bond (2) Special Conditions (3) Detail Specifications (4) General Conditions (5) Plans FC-1 /013 (6) Addenda and Supplemental Agreements The Contract Documents are hereby incorporated with this Agreement and are as much a part of this Agreement as if fully.set forth herein. This Agreement and the Contract Documents are the Contract. V. CONTRACTOR agrees to fully and satisfactorily complete the work contemplated by this Agreement in accordance with the following schedule: Completion of the work shall be within 30 days from the date of Notice to Proceed from the CITY, or in accordance with the Contract Documents. VI. This Agreement shall be executed in two(2)copies. IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands and seals as of the date first above written. hi Presence Of: CITY OF EDEN PRAIRIE,MN. By Its City Mayor And Its City Manager CONTRACTOR In Presence Of: By Title And Title FC-2 1�� CITY COUNCIL AGENDA DATE: April 13, 2004 SECTION: Consent Calendar DEPARTMENT: ITEM DESCRIPTION: LC. 04-5616 ITEM NO.: Engineering Award Contract for 2004 Street Striping ` L d Mary Krause 1/ Requested Action Move to: Award contract for 2004 Street Striping to United Rentals Highway Technology, Inc. in the amount of$74,995.00 and authorize the Mayor and City Manager to execute the document. Synopsis Sealed bids were received Thursday,April 1, 2004 for the 2004 Street Striping. Three bids were received as follows: United Rentals Highway Technology, Inc. $74,995.00 AAA Striping $88,559.00 Twin City Striping $89,489.00 Background Information Street striping is an annual street maintenance project. The budget for 2004 is $65,000.00 under budget #1714-6337. The balance of the funds will be paid for under Pavement Management. Staff recommends award to United Rentals Highway Technology, Inc. l c CITY COUNCIL AGENDA DATE: April 13,2004 SECTION: Consent Calendar DEPARTMENT: ITEM DESCRIPTION: I.C. 04-5615 ITEM NO.: Engineering Award Contract for 2004 Street Bituminous Mary Krause Crack Filling V 1. Requested Action Move to: Award contract for 2004 Street Bituminous Crack Filling to Precision Sealcoating, Inc., in the amount of$68,640.00 and authorize the Mayor and City Manager to execute the document. Synopsis Sealed bids were received Thursday,April 1, 2004 for the 2004 Street Bituminous Crack Filling. Three bids were received as follows: Precision Sealcoating,Inc. $ 68,640.00 Bergman Companies,Inc. $ 88,000.00 ASTECH Corporation $102,400.00 Background Information Street bituminous crack filling is an annual street maintenance project in preparation for seal coating. The funding for this project is through budget #1707-6339, with a budget of $82,000.00. Staff recommends award to Precision Sealcoating,Inc. 1; CITY COUNCIL AGENDA DATE: April 13,2004 SECTION: Consent Calendar DEPARTMENT: ITEM DESCRIPTION: I.C. 04-5608 ITEM NO.: Public Works Approve Change Order No. 1 for Basin Eugene A. Dietz Repainting Project at the Water Treatment V (. (V, Plant Requested Action Move to: Approve Change No. 1 for Basin Repainting Project at the Water Treatment Plant in the amount of$65,130. Synopsis A planned maintenance project at the Water Treatment Plant for 2004 has been the sandblasting and repainting of two primary basins. These two basins were put into service in 1974 and have never undergone a total stripping and recoating process. The estimated cost for the project for budget purposes was $180,000. The bidding process was very favorable and the project was awarded to Rainbow, Inc. for $87,680. Since the company was on site and fully mobilized, we asked them to quote two additional basins (which we planned to do next year). The additional cost of $65,130 brings the total contract to $152,810 — still below the estimated cost for the original two basin project. Staff recommends approval of the change order. CHANGE ORDER TKDA Engineers-Architects-Planners Saint Paul,MN March 23 20 04 - Comm.No. 12943-02 Change Order No. 1 To Rainbow Inc. • for Repainting of the Two Primary Basins at the Eden Prairie Water Treatment Plant for City of Eden Prairie,Minnesota You are hereby directed to make the following change to your contract dated February 17 ,20 04 . The change and the work affected thereby is subject to all contract stipulations and covenants. This Change Order will(increase)(decreaso)(not change)the contract sum by Sixty-Five Thousand One Hundred Thirty and 00/100 Dollars ($ 65,130 ). This change order provides for changes in the work of this contract according to the following: A. The Contractor agrees to complete surface preparation and coating of the equipment in the Two Secondary Basins in accordance with the specifications in the Contract entitled,"Repainting of the Two Primary Basins at the Eden Prairie Water Treatment Plant,"dated February 17,2004 B. The Contractor also agrees to the complete surface preparation and coating of the concrete walls in the Two Secondary Basins in accordance with the specifications in the Contract entitled,"Repainting of the Two Primary Basins at the Eden Prairie Water Treatment Plant,"dated February 17,2004. The Contractor agrees to perform the painting in paragraphs A and B above for a total lump sum price of NET CHANGE= $ 65,130.00 Amount of Original Contract $ 87,680.00 Additions approved to date(Nos. ) Deductions approved to date(Nos. ) Contract amount to date $ 87,680.00 Amount of this Change Order(Add)(erect)(.me) $ 65,130.00 Revised Contract Amount $ 152,810.00 Approved City of Eden Prairie,Minnesota TKDA Owner By MA vo Q By It &AAA Bernie R.Bullert,P.E. cry Afisoii4ese.— Approved Rainbow Inc. White-Owner Contractor Pink-Contractor Blue-TKDA CITY COUNCIL AGENDA DATE: April 13, 2004 SECTION: Consent Calendar DEPARTMENT: ITEM DESCRIPTION: S.S.A. 01-08 ITEM NO.: Engineering Partial Release of Land from Special Jim Richardson Assessment Agreement for Lot 3,Block 1, Gray \ / ( O. Fox Bluff Addition V • Requested Action Move to: Approve the Partial Release of land from Special Assessment Agreement for Gray Fox Bluff Addition. Synopsis In January, 2002, the City of Eden Prairie entered into a special assessment agreement with Kathryn Slavens, Trustee of the John M. Anderson Living Trust Agreement regarding the levying of special assessments for street, curb, gutter and storm sewer improvements. The improvements were completed as part of the development process. Background Information Lot 3, Block 1, Gray Fox Bluff Addition has been replatted as Lots 1, 2 and 3, Block 1, The Bluffs at Purgatory Creek. The Developer of The Bluffs at Purgatory Creek installed and paid for the street, curb and gutter and storm sewer improvements as part of the development process. Attachments Partial Release of Land from Special Assessment Agreement PARTIAL RELEASE OF LAND This Partial Release of Land is executed by the City of Eden Prairie, a Minnesota municipal corporation("City"), as of April 13,2004. FACTS 1. A certain Agreement Regarding Special Assessments ("Agreement") dated January 4, 2002, was executed by and between the City and Kathryn Slavens, which Agreement was filed as Document No. 3707121 with the Hennepin County Recorder on March 25, 2003. 2. The portion of the improvements completed by the Agreement benefiting Lot 3, Block 1, Gray Fox Bluff, (now platted as Lots 1, 2 and 3, Block 1, The Bluffs of Purgatory Creek Addition)have been privately constructed. THEREFORE,the City of Eden Prairie, a Minnesota municipal corporation,hereby releases Lot 3, Block 1, Gray Fox Bluff(now platted as Lots 1,2 and 3,Block 1,The Bluffs of Purgatory Creek Addition) from the street, curb and gutter, and storm sewer obligations and conditions set forth in the Agreement Regarding Special Assessments dated January 4„ 2002, filed as Document No. 3707121 with the Hennepin County Recorder on March 25, 2003. This Partial Release of Land shall not release or discharge the remainder of the Property from the lien of any • special assessments levied or pending by the City. IN WITNESS WHEREOF,the City of Eden Prairie has executed the foregoing instrument. CITY OF EDEN PRAIRIE A Municipal Corporation BY: BY: Nancy Tyra-Lukens Scott H.Neal Its Mayor Its City Manager STATE OF MINNESOTA) )ss HENNEPIN COUNTY ) The foregoing instrument was acknowledged before me this day of April , 2004, by Nancy Tyra-Lukens and Scott H. Neal, the Mayor and City Manager of the City of Eden Prairie, a municipal corporation under the laws of the State of Minnesota, on behalf of said corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 /30 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Office of City Manager Contract with Microsoft for Component EA Lisa Wu, IT Manager (Office Professional Only) through State contract VI.P. Requested Action Approval of contract for purchasing"Microsoft Office Professional Only"through the current State of Minnesota Enterprise Agreement: 01E61724. Synopsis The State negotiated a 72 month agreement which includes annual payments,price protection for entire six years,blended pricing over six years and SA(Software Assurance) over six years. The 2004 Information Technology budget included funds to upgrade our critical MS Office application. The total investment will be$153,936 for 215 PCs over six years. Microsoft is currently offering a$38,000 rebate if the contract is signed before April 30, 2004. The average yearly investment will be $19,323. On average,we will need to upgrade our Office software every three years. The investment will be$21,285 per year. By the State negotiated Terms and Conditions, we also will gain the following benefits: 1) $11,775 budget saving over six years 2) Reduce administrative overhead significantly 3) Prevent periodic price change 4) Standardize our citywide Office Application 5) Increase training options (eLearning) 6) Stay with the most recent upgrade as we needed to 7) Training Vouchers 8) Employee Purchase Program 9) Office Home Use Rights 10)TechNet Attachment Enterprise Agreement with Microsoft /3/ Microsoft EA Description Unit Cost per year 6 years after rebate' Office Pro (include Outlook) 119.33 25,655.95 153,935.70 115,935.70 6 years OS 40.23 Core CAL 46.76 10,053.40 60,320.40 206.32 23.68 Office Pro &Core CAL 166.09 35,709.35 214,256.10 29,376.02 per year Platform EA 182.64 39,267.60 235,605.60 32,934.27 per year Purchase New Office Pro. 297.00 63,855.00 127,710.00 11,774.30 different from EA 21,285.00 per year Core CAL Include SMS CAL 26.00 5,590.00 11,180.00 Windows Server CAL 19.00 4,085.00 8,170.00 Exchange CAL 44.00 9,460.00 CA Sharepoint Portal CAL 46.00 Cst- 135.00 28,810.00 Office Pro. & Purchase CAL as needed 24,124.28 per year Windows XP upgrade 122.00 2,440.00 Different price for Core CAL 31,510.40 6 years Existing License Exchange CAL 44.00 210.00 9,240.00 Full Enterprise Software Assurance Agencies 1 City of Applevalley 2 City of Eagan 3 City of Bursville 4 Attorney General 5 City of Blain CITY COUNCIL AGENDA DATE: April 13,2004 SECTION: Public Hearing DEPARTMENTIDIVISION: ITEM DESCRIPTION: ITEM NO.: Parks and Recreation/Robert A. 2004 DNR Natural and Scenic Area Grant Lambert ..— Program v I I, k. Requested Action Move to: Support the grant application requesting funding from the Department of Natural Resources for acquisition of 4.04 acres of land on the north side of Birch Island Woods Road, and confirm that the City will acquire the parcel subject to being awarded the grant. Synopsis The 4.04 acres of land would be included in the Birch Island Woods Conservation Area for permanent protection if funding is available for the purchase of the property. This parcel is likely to be developed as single family housing, if the property is not acquired in 2004. The entire open space complex has been protected for many years. This is the last parcel necessary to preserve all land north of Birch Island Road. Background Information Project Scope: The project involves the land acquisition of a 4.04 acre parcel of wooded land on the north side of Birch Island Road in Eden Prairie. This is the last parcel of land to be acquired for the Birch Island Woods Conservation Area, a 31 acre site that includes woods and wetlands east of Birch Island Park in northern Eden Prairie. This parcel of land is linked to Birch Island Park, Camp Friendship and Eden Wood Center operated by Friendship Ventures, and the Glen Lake Golf Course operated by Three Rivers Park District. The Birch Island Woods Conservation Area is utilized by the residents of Eden Prairie, and adjacent communities such as Minnetonka, Edina, Hopkins, St. Louis Park for hiking and enjoying a wonderful natural area with a wide variety of flora and fauna. r33 Implementation Schedule: The 4.04 acre parcel would be purchased prior to the end of the year if the City of Eden Prairie is awarded the 2004 DNR Natural and Scenic Area Grant. Project Cost: The value of the land is$800,000,according to the Appraisal Report completed January 22,2004 by LaSalle Consulting. The purpose of the Natural and Scenic Area Grant Program is to protect and enhance natural and scenic areas. The Minnesota DNR provides matching grants to local units of government up to 50% of the cost of the acquisition of natural and scenic areas. The total cost for the purchase of the remaining 4.04 acre parcel of the Birch Island Woods is $800,000. The grant request(50%) is for$400,000. The Friends of Birch Island Woods are committed to raising $200,000 of the local matching funds, and the City of Eden Prairie will provided the additional $200,000 in matching funds for a total local match(50%)of$400,000. The grant application does not include funds for protection measures. The projected operation, management and protection cost is estimated at approximately$1,300 per year for this parcel for miscellaneous inspection, garbage pickup and mowing. An estimated $2,150 is projected every 3-5 years to restrip the parking lot and repair soft surface trails, and every 10 years the City would recommend seal coating paved trails/parking lots at an estimated cost of$2,000. Estimated management cost for the property would include: diseased elm tree removal, buckthorn control, establishing boundary posts and unauthorized traffic/barricades for a total projected cost of$8,700. The City of Eden Prairie currently budgets for the operation, management and protection of the 31 acre Birch Island Woods Conservation Area to the north of the proposed project site. The 4.04 acre parcel would be included in the City's annual operating budget upon approval of the grant. Projected operation, management and protection costs would be adjusted on an annual basis. /3Lf CITY COUNCIL AGENDA DATE: SECTION: Public Hearing April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Engineering Vacation 04-04 Dave Olson Vacation of Right-of-Way for Part of Alpine Trail VII. B. Requested Action Move to: 1. Close the public hearing; and 2. Adopt the resolution vacating the right-of-way for part of Alpine Trail. Synopsis The owner of property located at 6990 Alpine Trail has requested this vacation to enable the inclusion of the Right-of-Way into the property. The segment of Alpine Trail requested for vacation was dedicated to the public upon approval of the plat of Alpine Estates on April 14, 1964. The Right-of-Way was used as access from County Road 4 to the area until approximately 1980,when it was closed due to poor sight distance concerns. The property has been used since that time as a driveway to 6990 Alpine Trail. Privately owned utilities have been installed within the Right-of-Way, therefore a drainage and utility easement will be preserved. Attachments Vacation Drawings /35 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. VACATION OF RIGHT-OF-WAY FOR PART OF ALPINE TRAIL VACATION 04-04 'WHEREAS,the City of Eden Prairie has a certain drainage and utility easement described as follows: That part of Alpine Trail as platted in Alpine Estates recorded in the Office of the County Recorder, Hennepin County, Minnesota, lying east of the easterly Right of Way line of Hennepin County Road 4, as platted on the recorded plat of Hennepin County Highway Plat 3, Hennepin County State Aid Highway 4, and lying west of the southerly extension of the easterly property line of Lot 1, Block 1, Alpine Estates, said line bearing south 1 degree 15 minutes west assumed bearing based on the plat of Alpine Estates, said line terminating at the intersection with the South line of Alpine Estates. WHEREAS, a public hearing was held on April 13, 2004, after due notice was given to affected property owners and published in accordance with M.S.A. 412.851; and WHEREAS. It has been determined that the said right-of-way is not necessary and has no interest to the public,therefore should be vacated; and WHEREAS, public and private utilities have been installed and are presently operated and maintained within the right-of-way, an easement allowing governmental and utility company personnel and equipment to enter upon the vacated right-of-way to maintain or construct additional facilities to be retained. NOW,THEREFORE,BE IT RESOLVED by the Eden Prairie City Council as follows: 1. Said right-of-way as above described is hereby vacated subject to a permanent drainage and utility easement being retained over the entire property described. 2. The City Clerk shall prepare a notice of completion of proceedings in accordance with M.S.A. 412.851. ADOPTED by the Eden Prairie City Council on April 13, 2004. ATTEST: Nancy Tyra-Lukens,Mayor SEAL Kathleen A.Porta, City Clerk t3� Le/ . ,..i .T? " a •' 9�6,. �.`-( •06 "''O � _ .Ss•- •6 c of C' S 1°f1.6g -6£,g8' -V y 1..1 t/W , 1 v iiij) 111.11111111111111"1"111+ .. .52 i v • 1s • 'J` _ u w vQ1 9 109.63 n W -a Z£. C Q • ' c y �.•.. JJN11'19 h• i ' • - • • +� • C 0 aus o m•.;.". a Za Z c> { ^ 5� N a 725 0 rE = po ,A ti e' aON�'m i F ^ti 0 Ca COm ?Q•S 7 s ro v y G 373.99 7.7 .o:°j N o in ,:Y60�N m ni co di .•-• 4..N - 3 C ;9399 ' • pa 83 K RD 4 6�3• cSSST *5S"1i ,H t �_ 266.91-_- 777,99 • S4.22'3 57 ?' ,60.1' j p ......._ - 232.1w �e �'u �jt 57.13 m 0 EDEN PRAIRIEF7 - _-• 59.74 443. 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IN ' \^IP 6 N �N N O 0 E mi N '00 m ....-• C . `"0p' O .Ai°i m Lt•ZLZ NORTH 1 .10'£Z.0£.0 N -I 92.42^145.I 051 o [n a a£ ` Jam' a w K'w .. l/y° w' �vsfjn� N m r 1y'gLA g1Z6Z ♦ n •3 y g£y l£ Da u+ c CITY COUNCIL AGENDA DATE: SECTION: PAYMENT OF CLAIMS April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Finance Sue Kotchevar Payment of Claims VIII. Requested Action Move to: Approve the Payment of Claims as submitted(roll call vote). Synopsis Checks 128609— 129051 Wire Transfers 1979 - 1982 l�b City of Eden Prairie Council Check Summary 04/13/2004 Division Amount General 29,747 100 City Manager 1,182 101 Legislative 6,196 102 Legal Counsel 44,647 110 City Clerk 690 111 Customer Service 15,152 112 Human Resources 3,370 113 Communication Services 1,316 115 Risk Management 7,567 116 Facilities 18,482 117 City Center 60 130 Assessing 118 131 Finance 550 133 Community Development -145 135 Information Technology 17,188 136 Wireless Communication 425 137 Economic Development 2,337 150 Park Administration 534 151 Park Maintenance 12,836 153 Athletic Programs 17,198 154 Community Center 37,761 156 Youth Programs 1,674 157 Special Events 386 158 Senior Center 3,394 159 Recreation Administration 7,610 160 Therapeutic Recreation 512 161 Oak Point Pool 4,966 162 Arts 396 163 Park Facilities 4,325 180 Police 30,072 183 Civil Defense 57 184 Fire 23,592 185 Animal Control 590 186 Inspections 587 200 Engineering 1,017 201 Street Maintenance 26,911 202 Street Lighting 52,735 203 Fleet Services 51,001 303 Cemetary Operation 7 304 Senior Awareness Fund 91 309 DWI Forfeiture 4,445 311 Grant Fund 2,470 312 Recycle Rebate 6,520 407 Utility Bonds Arbitrage 1,331 425 Bldg Refunding Bonds 2004 4,000 502 Park Development 28,492 503 Utility Improvement 7,542 505 Utility Reserve 7,450 506 Improvment Bonds 1996 6,546 507 Construction Fund 3,459 509 CIP Fund 29,288 511 Construction Fund 26,052 601 Prairie Village Liquor 63,871 602 Den Road Liquor 116,518 603 Prairie View Liquor 71,224 701 Water Fund 142,403 702 Sewer Fund 201,090 703 Storm Drainage Fund 2,763 803 Escrow Fund 1,800 806 SAC Agency Fund 2,550 807 Benefits Fund 327,115 Report Totals 1,484,065 /43 n City of Eden Prairie Council Check Register 04/13/2004 Check# Amount Vendor/Explanation Account Description Business Unit 1979 9,878 ICMA RETIREMENT TRUST-457 Deferred Compensation General Fund 1980 23,945 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 1981 15,248 ORCHARD TRUST CO AS TRUSTEE/CU Deferred Compensation General Fund 1982 123,625 WELLS FARGO MINNESOTA N A Benefit payments Health and Benefits 128609 20 ASSOCIATION OF RECYCLING MANAG Dues&Subscriptions Recycle Rebate 128610 250 BURROWS,JASON Tuition Reimbursement/School Fire 128611 200 BURTIS,BOB Other Contracted Services Special Initiatives 128612 27 BUTRUM,JEFFREY Cash Over/Short General Fund 128613 35,896 CENTERPOINT ENERGY MARKETING I Gas Water Treatment Plant 128614 120 CHASKA,CITY OF Tuition Reimbursement/School Police 128615 334 DMX/MINNEAPOLIS Other Contracted Services Den Road Liquor Store 128616 4,000 DORSEY&WHITNEY LLP Legal Bldg Refunding Bonds 2004 128618 375 EMERGENCY APPARATUS MAINTENANC Equipment Repair&Maint Fire 128619 264 ESBENSEN,GEORGE Operating Supplies Fire 128620 170 GOVERNMENT FINANCE OFFICERS AS Dues&Subscriptions Finance 128621 44,848 GREGERSON ROSOW JOHNSON&NILA Legal Counsel Airport Legal Council 128622 538 GUSTAD,MARK Tuition Reimbursement/School Police 128623 6,500 HAMLINE UNIVERSITY GRADUATE SC Other Contracted Services Recycle Rebate 128624 100 HENNEPIN COUNTY PUBLIC RECORDS Other Contracted Services Engineering 128625 27 HENNEPIN COUNTY TREASURER-TAXP Other Contracted Services Engineering 128626 186 IND SCHOOL DIST 272 Printing Special Initiatives 128627 75 ISFSI Dues&Subscriptions Fire 128628 20 KESSLER,RICHARD Operating Supplies Winter Theatre 128629 20 LEAGUE OF MINNESOTA CITIES Conference Expense Risk Management 128630 499 LIEBERT ENTERPRISES INC Conference Expense Parks Administration 128631 37 MARKS EDEN PRAIRIE BP Motor Fuels Fleet Services 128632 100 MINNESOTA STATE FIRE RESCUE SC Tuition Reimbursement/School Fire 128633 360 MINNESOTA STATE NAPE Conference Expense Engineering 128634 438 PARK NICOLLET CLINIC Other Contracted Services Risk Management 128635 18 RICCAR Cash Over/Short General Fund 128636 4,098 ST.LOUIS PARK,CITY OF Other Contracted Services Police 128637 28 STAR TRIBUNE Dues&Subscriptions General 128638 7 STEPHENS,JOHN AR Utility Water Enterprise Fund 128639 7 VERIZON WIRELESS BELLEVUE Pager&Cell Phone Fire 128640 588 WEBER,GREG Tuition Reimbursement/School In Service Training 128641 25 WETLAND DELINEATORS ASSOCIATIO Dues&Subscriptions Storm Drainage 128642 598 WORKING FIRE VIDEO TRAINING Tuition Reimbursement/School Fire 128643 165 ARMOR SECURITY INC. Other Contracted Services Outdoor Center 128644 40 BOLD,PAULINE Instructor Service Outdoor Center 128645 339 DARTNELL CORPORATION,THE Training Supplies Water Utility-General 128646 78 DEGREE,BETH Repair&Maint.Supplies Fitness Center 128647 657 DELL MARKETING L.P. Other Hardware Information Technology 128648 13,434 DELTA DENTAL PLAN OF MN Benefit payments Health and Benefits 128649 156 HENNEPIN COUNTY ATTORNEY'S OFF Miscellaneous DWI Forfeiture 128650 1,331 HENNEPIN COUNTY TREASURER-TAXP Other Contracted Services Utility Bonds Arbitrage 128651 895 HOME DEPOT CREDIT SERVICES Repair&Maint.Supplies Maintenance 128652 1,110 IND SCHOOL DIST 272 Instructor Service Outdoor Center 128653 2,512 INSIGHT PUBLIC SECTOR Other Hardware Information Technology 128654 191,964 METROPOLITAN COUNCIL ENVIRONME Waste Disposal Sewer Utility-General 128655 20 MN DEPT.OF LABOR AND INDUSTRY Licenses&Taxes Fire Station#2 128656 125 MN DNR Instructor Service Outdoor Center 128657 300 OCEL,JILL Instructor Service Outdoor Center 128658 1,200 ROTH,ANDREW J. Other Contracted Services Outdoor Center 128659 212 VERIZON WIRELESS BELLEVUE Pager&Cell Phone Sewer Utility-General 128660 785 VISIONARY SYSTEMS LTD. Repair&Maint.Supplies Fire 128661 101,932 XCEL ENERGY Electric Street Lighting 128662 54 ACE ICE COMPANY Misc Non-Taxable Prairie View Liquor Store 128663 132 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Den Road Liquor Store 128664 220 ARCTIC GLACIER INC Misc Non-Taxable Prairie Village Liquor Store 128665 1,602 BELLBOY CORPORATION Liquor Prairie Village Liquor Store 128666 78 BRW ENTERPRISES Wine Domestic Den Road Liquor Store 128667 6,764 DAY DISTRIBUTING Beer Prairie View Liquor Store 128668 2,595 EAGLE WINE COMPANY Wine Domestic Den Road Liquor Store 128669 8,812 EAST SIDE BEVERAGE COMPANY Beer Prairie Village Liquor Store 128670 75 FINE WINES FROM EUROPE j�� Wine Imported Prairie Village Liquor Store "t Check# Amount Vendor/Explanation Account Description Business Unit 128671 688 GETTMAN COMPANY Misc Taxable Prairie Village Liquor Store 128672 367 GRAPE BEGINNINGS Wine Domestic Den Road Liquor Store 128673 8,987 GRIGGS COOPER&CO Liquor Den Road Liquor Store 128675 14,731 JOHNSON BROTHERS LIQUOR CO Liquor Den Road Liquor Store 128676 6,157 MARK VII Beer Den Road Liquor Store 128677 223 MASS BAR-MATE CORP Misc Taxable Den Road Liquor Store 128678 205 MIDWEST COCA COLA BOTTLING COM Misc Taxable Den Road Liquor Store 128679 890 NEW FRANCE WINE COMPANY Wine Domestic Prairie View Liquor Store 128680 5,234 PAUSTIS&SONS COMPANY Wine Imported Prairie Village Liquor Store 128681 9,578 PHILLIPS WINE AND SPIRITS INC Transportation Den Road Liquor Store 128682 447 PINNACLE DISTRIBUTING Misc Non-Taxable Prairie View Liquor Store 128683 2,427 PRIOR WINE COMPANY Wine Domestic Prairie View Liquor Store 128684 15,998 QUALITY WINE&SPIRITS CO Liquor Den Road Liquor Store 128685 10,910 THORPE DISTRIBUTING Beer Den Road Liquor Store 128686 1,557 WINE COMPANY,THE Wine Imported Den Road Liquor Store 128687 679 WINE MERCHANTS INC Wine Imported Den Road Liquor Store 128688 1,214 WORLD CLASS WINES INC Wine Imported Den Road Liquor Store 128689 6,916 ABULLARADE,CAROL Insurance Claims Sewer Utility-General 128690 1,430 ALLIANT ENGINEERING INC Design&Engineering Construction Fund 128691 48 APPRAISAL INSTITUTE Operating Supplies Assessing 128692 370 BLOOMINGTON,CITY OF Kennel Services Animal Control 128693 1,850 CASTLE RIDGE CARE CENTER INC Right of Way&Easement Construction Fund 128694 28 CULLIGAN-METRO Other Contracted Services Outdoor Center 128695 696 DE LAGE LANDEN FINANCIAL SERVI Operating Supplies Fire 128696 2,237 E-S PRESS INC Tuition Reimbursement/School Police 128697 27 ECKERT,ANN MARIE Program Fee Senior Center Program 128698 144 LAWSON,GREG Other Contracted Services Cummins House Special Events 128699 539 MCNICHOLS CO Building Repair&Maint. Homeward Hills Park 128700 157,277 MEDICA CHOICE Medical Bills Prepaid Health and Benefits 128701 26 MILES,BRADLEY Equipment Repair&Maint Police 128702 70 MINNESOTA LEGAL REGISTER Dues&Subscriptions Assessing 128703 216 OLSEN,JAMEY Other Contracted Services Cummins House Special Events 128704 334 PETTY CASH Operating Supplies Senior Awareness 128705 94 PETTY CASH-EPCC Operating Supplies Pool Special Events 128706 3,000 POSTAGE BY PHONE RESERVE ACCOU Postage General 128707 7,704 PRAIRIE PARTNERS SIX LLP Building Rental Prairie Village Liquor Store 128708 7,360 PRAIRIEVIEW RETAIL LLC Building Rental Prairie View Liquor Store 128709 473 REBS MARKETING Other Contracted Services Water Accounting 128710 44 RUMFORD,JOAN Program Fee Senior Center Program 128711 765 SIMON,ANDREA Tuition Reimbursement/School In Service Training 128712 3 STAR TRIBUNE Misc Non-Taxable Den Road Liquor Store 128713 7,309 TIME WARNER CABLE Insurance Risk Management 128714 3,084 US POSTMASTER-HOPKINS Postage General 128715 693 VANDENBERGHE,MARK Travel Expense Reserves 128716 35 AMERICAN MANAGEMENT ASSOCIATIO Training Supplies Water Utility-General 128717 67 AMERICAN WATER WORKS ASSOCIATI Dues&Subscriptions Water Utility-General 128718 50 BALON,JULIE Refunds Environmental Education 128719 168 BOWLBY,ROD Other Contracted Services Basketball 128720 163 COMMUNITY HEALTH CHARITIES United Way Withheld General Fund 128721 397 CRICKET DIGITAL Printing Fire Cert Grant 128722 384 CUB FOODS EDEN PRAIRIE Operating Supplies Pool Special Events 128723 593 DNR SCREEN PRINTING INC Awards Basketball 128724 84 FERO,STACEY Other Contracted Services Volleyball 128725 6 FRIEDERICHS,KATE Program Fee Senior Center Program 128726 336 GREATAMERICA LEASING CORP. Other Rentals General 128727 100 HAAKE,DEB Refunds Environmental Education 128728 400 HAMILTON,MICHAEL Other Contracted Services Broomball 128729 163 IND SCHOOL DIST 272 Gym Rental Wheelchair Basketball 128730 1,680 INTERNATIONAL UNION OF OPERATI Union Dues Withheld General Fund 128731 252 KALLIN,LAWRENCE E Other Contracted Services Volleyball 128732 37 KOWALSKI'S MARKET Operating Supplies Teen Programs 128733 283 MAROTTA,VIC Instructor Service Winter Skill Development 128734 100 MCKAY,JANET Refunds Environmental Education 128735 611 METRO SALES INCORPORATED* Other Rentals General 128736 53 MILLS FLEET FARM Equipment Repair&Maint Park Maintenance 128737 2,917 MINN CHILD SUPPORT PAYMENT CTR Garnishment Withheld General Fund 128738 463 NATIONAL MARTIAL ARTS ASSOCIAT Instructor Service Winter Skill Development 128739 249 NCPERS GROUP LIFE INSURANCE Life Insurance EE/ER General Fund 128740 100 NICOLA,JOHN M Refunds Environmental Education ' CIf/ Check# Amount Vendor/Explanation Account Description Business Unit 128741 67 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 128742 209 PROP United Way Withheld General Fund 128743 100 RIEDER,GARY Refunds Environmental Education 128744 100 SCHAFER,BILL Refunds Environmental Education 128745 100 SCHRAM.KENNETH Refunds Environmental Education 128746 300 SCOTT COUNTY SHERIFFS DEPT Deposits Escrow 128747 115 STAN MORGAN &ASSOCIATES INC. Operating Supplies Den Road Liquor Store 128748 40 TELEPHONE ANSWERING CENTER INC Other Contracted Services Water Treatment Plant 128749 639 TRAVELERS DIRECTORY SERVICE Advertising Prairie View Liquor Store 128750 234 UNITED WAY United Way Withheld General Fund 128751 25 US TENNIS ASSOCIATION Dues&Subscriptions Tennis 128752 100 VINUP,CAROLYN Refunds Environmental Education 128753 100 VOEHL,TOM Refunds Environmental Education 128754 100 WHITMORE,MOLLY Refunds Environmental Education 128755 475 WIERSMA,LUKE Other Contracted Services Basketball 128756 119 YIPA Tuition Reimbursement/School Police 128757 210 AMERICAN INTERTRADE Beer Den Road Liquor Store 128758 32 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Den Road Liquor Store 128759 64 ARCTIC GLACIER INC Misc Non-Taxable Den Road Liquor Store 128760 3,265 BELLBOY CORPORATION Wine Domestic Prairie Village Liquor Store 128761 4,392 DAY DISTRIBUTING Beer Den Road Liquor Store 128762 4,227 EAGLE WINE COMPANY Wine Domestic Prairie Village Liquor Store 128763 9,652 EAST SIDE BEVERAGE COMPANY Beer Prairie View Liquor Store 128764 128 EXTREME BEVERAGE Misc Taxable Den Road Liquor Store 128765 5,345 GRAPE BEGINNINGS Wine Domestic Prairie Village Liquor Store 128766 10,108 GRIGGS COOPER&CO Liquor Prairie View Liquor Store 128767 330 HOHENSTEINS INC Beer Den Road Liquor Store 128769 29,456 JOHNSON BROTHERS LIQUOR CO Liquor Den Road Liquor Store 128770 6,739 MARK VII Beer Den Road Liquor Store 128771 141 MIDWEST COCA COLA BOTTLING COM Misc Taxable Den Road Liquor Store 128772 3,158 PAUSTIS&SONS COMPANY Wine Imported Prairie Village Liquor Store 128773 19,217 PHILLIPS WINE AND SPIRITS INC Wine Domestic Prairie Village Liquor Store 128774 3,889 PRIOR WINE COMPANY Wine Domestic Prairie Village Liquor Store 128776 17,126 QUALITY WINE&SPIRITS CO Wine Domestic Prairie Village Liquor Store 128777 6,868 THORPE DISTRIBUTING Beer Prairie Village Liquor Store 128778 2,292 WINE COMPANY,THE Wine Domestic Prairie Village Liquor Store 128779 1,583 WINE MERCHANTS INC Wine Imported Prairie View Liquor Store 128780 426 WORLD CLASS WINES INC Wine Imported Den Road Liquor Store 128781 17 AIRLINK COMMUNICATIONS INC Software Maintenance Information Technology 128782 90 AMERICAN RED CROSS Recreation Supplies Pool Lessons 128783 313 ANCHOR PRINTING COMPANY Printing Therapeutic Rec Administration 128784 309 AUDIOVISUAL INC Repair&Maint.Supplies Fire 128785 2 BROSCH,COLLETTE Program Fee Senior Center Program 128786 280 BRUNSWICK BOWLING LANES Special Event Fees Special Events&Trips 128787 92 BUTCHER,SHERRY Mileage&Parking City Council 128788 100 CARLSON,DUANE Refunds Environmental Education 128789 140 CASEY,JACK Other Contracted Services Senior Center Program 128790 115 CDW GOVERNMENT INC. Other Hardware Information Technology 128791 1,375 CHANHASSEN DINNER THEATRE Special Event Fees Senior Center Program 128792 4,064 CORNERHOUSE Other Contracted Services Police 128793 150 DORNIDEN,CHARLES Refunds Environmental Education 128794 70 ENSTAD,TERRANCE Operating Supplies Inspections-Administration 128795 496 HENNEPIN COUNTY TREASURER Licenses&Taxes Pool Maintenance 128796 7,315 HOUSE OF PRINT Printing Community Brochure 128797 7 JELLISON,WILLIAM Outside Water Sales Water Enterprise Fund 128798 100 KITCHEN,STEVE Refunds Environmental Education 128799 70 KLOECKNER,LINDA Advertising Community Center Admin 128800 864 LOWELL INN Special Event Fees Senior Center Program 128801 254 MENARDS Repair&Maint.Supplies Water System Maintenance 128802 2,970 METRO SALES INCORPORATED* Other Rentals General 128803 50 MINNESOTA REVENUE Licenses&Taxes Fleet Services 128804 4,040 MLEEA Miscellaneous Police 128805 20 MN DEPT.OF LABOR AND INDUSTRY Licenses&Taxes Water Treatment Plant 128806 215 NATIONAL RECREATION AND PARK A Dues&Subscriptions In Service Training 128807 344 PITNEY BOWES INC Other Rentals General 128808 16 PRIBULA,KAREN Program Fee Cummins House Special Events 128809 222 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 128810 397 QWEST Telephone Water Utility-General 128811 250 SMITH,NANCY JO f r/ Right of Way&Easement Improvement Projects 1996 ( 7� Check# Amount Vendor/Explanation Account Description Business Unit 128812 50 STOLZ,VERONICA ALLEN Refunds Environmental Education 128813 295 STREICHERS Clothing&Uniforms Police 128814 49 SUBWAY Special Event Fees Special Events&Trips 128815 350 SUMMIT PLACE SENIOR CAMPUS Miscellaneous Police 128816 40 TRAPP,SUZANNE Instructor Service Outdoor Center 128817 80 WALSTEIN,LOUISE M. Instructor Service Outdoor Center 128818 150 WONDERWEAVERS Special Event Fees Special Events&Trips 128819 136 WOODBURY,CITY OF Special Event Fees Special Events&Trips 128820 289 XCEL ENERGY Electric Purgatory Creek Rec Area 128821 304 J L DARLING CORP Capital Under$2,000 Fire Cert Grant 128822 795 ASPEN WASTE SYSTEMS INC. Waste Disposal Water Treatment Plant 128823 100 BODNER,KEN Refunds Environmental Education 128824 30 BREUNIG,KRISTI Clothing&Uniforms Police 128825 272 CDW GOVERNMENT INC. Other Hardware Information Technology 128826 618 DELEGARD TOOL CO Equipment Parts Fleet Services 128827 216 DISH NETWORK Cable TV Ice Arena 128828 50 DORR,GRETCHEN Refunds Environmental Education 128829 40 DUNCAN,SUZANNE Lessons&Classes Oak Point Lessons 128830 120 EASTBURN,EMILY Tuition Reimbursement/School Police 128831 118 EDEN PRAIRIE CEMETERY ASSOCIAT Deposits Escrow 128832 8,942 ELAN FINANCIAL SERVICES Travel Expense City Council 128833 97 FLYNN,MONICA Youth Resident Community Center Admin 128834 5 GOSNEY,JOHN Outside Water Sales Water Enterprise Fund 128835 38 HALLS,CINDY Program Fee Preschool Events 128836 100 HALPIN,WILLIAM Refunds Environmental Education 128837 250 HENNEPIN COUNTY CHIEFS OF POLI Dues&Subscriptions Police 128838 205 HENNEPIN COUNTY TREASURER Operating Supplies Community Development 128839 991 HENNEPIN COUNTY TREASURER Board of Prisoner Police 128840 58 HESSEL,ZACK Clothing&Uniforms Police 128841 100 JOHNSON,ANN Refunds Environmental Education 128842 60 KELLY,SANDRA Clothing&Uniforms Police 128843 61 LEA PRODUCTS Operating Supplies Park Maintenance 128844 100 LEBLANC,ERIC Refunds Environmental Education 128845 295 LERN Conference Expense Recreation Administration 128846 112 LYNN CARD COMPANY Operating Supplies Fire 128847 58 MA,LOU-CHIEN Outside Water Sales Water Enterprise Fund 128848 10,000 MCGOUGH CONSTRUCTION WAC-Water Utility Reserve Fund 128849 54 MEADE,MICHELLE Clothing&Uniforms Police 128850 50 MENARDS Operating Supplies Park Maintenance 128851 411 METRO PRINTING Printing Fire 128852 2,520 MINNESOTA BD OF PEACE OFFICER Licenses&Taxes Police 128853 40 MINNESOTA DEPT OF AGRICULTURE Other Contracted Services Lime Sludge 128854 20 MN DEPT.OF LABOR AND INDUSTRY Licenses&Taxes Water Treatment Plant 128855 487 MOTION INDUSTRIES INC. Equipment Parts Fleet Services 128856 694 MUNICIPAL EMERGENCY SERVICES Protective Clothing Fire 128857 32 PETSMART Canine Supplies Police 128858 291 PETTY CASH-POLICE DEPT Operating Supplies Police 128859 100 PRIGGE,ROBERT Refunds Environmental Education 128860 98 PROTECTION ONE Other Contracted Services Cummins Grill 128861 3,494 RELIASTAR LIFE INSURANCE CO Disability Ins Employers Health and Benefits 128862 10,060 SPORTS WORLD USA INC Recreation Supplies Softball 128863 5,340 STANDARD INSURANCE CO Life Insurance EE/ER Health and Benefits 128864 630 STREICHERS Clothing&Uniforms Police 128865 711 TEMPEST TECHNOLOGY CORP Small Tools Fire 128866 346 TRAFFIC CONTROL CORPORATION Operating Supplies Traffic Signals 128867 7 UPS Postage General 128868 100 WEISSER,JAY P Refunds Environmental Education 128869 250 WILDER,LOIS Other Contracted Services Adult Program 128870 596 ANCHOR PAPER COMPANY Office Supplies Police 128871 20 BINO,SUSAN Program Fee Senior Center Program 128872 40 CAMPUS,LORI Instructor Service Outdoor Center 128873 211 CENTERPOINT ENEGY Gas Crestwood Park 128874 18 CHRISTENSEN,MARGE Program Fee Senior Center Program 128875 61 DE LADE LANDEN FINANCIAL SERVI Other Rentals General 128876 40 DEAN,MARY ANN Program Fee Senior Center Program 128877 18 DOVER,RUTH Program Fee Senior Center Program 128878 350 FAHEY,LARRY Other Contracted Services Outdoor Center 128879 36 FOX,VERNEI II. Program Fee Senior Center Program 128880 340 GREAT RIVER PRINTING SERVICES Operating Supplies Finance 143 Check# Amount Vendor/Explanation Account Description Business Unit 128881 527 GS DIRECT Operating Supplies Engineering 128882 20 GUETHLING,BARBARA Program Fee Senior Center Program 128883 12,371 INSIGHT PUBLIC SECTOR Computers Information Technology 128884 5,706 KMC TELECOM HOLDINGS INC. Telephone Telephone 128885 140 KRAEMERS HARDWARE INC Equipment Parts Fleet Services 128886 1,038 METRO SALES INCORPORATED* Other Rentals General 128887 225 METROPOLITAN AREA PROMOTIONS C Office Supplies General 128888 266 MIDWEST SIGN&SCREEN PRINTING Other Contracted Services Economic Development 128889 35 JOHN HOGER MPSA TREASURER Conference Expense Parks Administration 128890 187 OFFICE DEPOT CREDIT PLAN Operating Supplies Fleet Services 128891 18 RITCHER,HELEN Program Fee Senior Center Program 128892 17 RUMFORD,JOAN Program Fee Senior Center Program 128893 20 SCHUG,DIANA Program Fee Senior Center Program 128894 20 SHIMANSKI,BERMA Program Fee Senior Center Program 128895 122 SPRINT Software Maintenance Information Technology 128896 51 STENGRIM,MYRNA Program Fee Senior Center Program 128897 382 STREICHERS Clothing&Uniforms Police 128898 39 SUCCESSFUL EVENTS Operating Supplies Senior Center Program 128899 1,050 TOTAL REGISTER Equipment Repair&Maint Prairie Village Liquor Store 128900 40 TRAPP,SUZANNE Instructor Service Outdoor Center 128901 54 UNITED PUBLISHERS NETWORK Dues&Subscriptions Den Road Liquor Store 128902 187 A TO Z RENTAL CENTER Repair&Maint.Supplies Fire 128903 226 ABM EQUIPMENT AND SUPPLY COMPA Small Tools Fleet Services 128904 86 AIM ELECTRONICS Repair&Maint.Supplies Ice Arena 128905 209 AMERICAN LAMINATING INC Other Contracted Services Water System Maintenance 128906 12,300 AMERICAN LIBERTY CONSTRUCTION, Improvements to Land Construction Fund 128907 421 AMERICAN RED CROSS Recreation Supplies Pool Lessons 128908 1,979 AMERICAN WATER WORKS ASSOCIATI Training Supplies Water Utility-General 128909 188 ANAMAX GREASE SERVICES LLC Equipment Repair&Maint Maintenance 128910 29,288 ASPEN EQUIPMENT CO. Machinery&Equipment Capital Impr./Maint.Fund 128911 294 AUTO ELECTRIC SPECIALISTS Equipment Repair&Maint Fleet Services 128912 2,041 BAUER BUILT TIRE AND BATTERY Tires Fleet Services 128913 302 BERTELSON OFFICE PLUS Chemicals Water Treatment Plant 128914 21 BLACK&DECKER,USPTG Equipment Parts Water System Maintenance 128915 247 BLOOMINGTON SECURITY SOLUTIONS Building Repair&Maint. Prairie View Liquor Store 128916 273 BLR INC Dues&Subscriptions Water Utility-General 128917 2,698 BOYER TRUCKS Equipment Repair&Maint Fleet Services 128918 800 BOYER TRUCKS SO.ST.PAUL Equipment Parts Fleet Services 128919 217 BRO-TEX INC Equipment Parts Fleet Services 128920 463 BUCK,BRENT Other Contracted Services Basketball 128921 3,276 BUCK,NATHAN Other Contracted Services Volleyball 128922 1,000 CAMPBELL,IAN Other Contracted Services Park Facilities 128923 5,626 CARDIAC SCIENCE INC Machinery&Equipment Water Treatment Plant 128924 101 CATCO CLUTCH&TRANSMISSION SE Equipment Parts Fleet Services 128925 1,769 CDW GOVERNMENT INC. Capital Under$2,000 Fire Cert Grant 128926 4,000 CE LASALLE&ASSOCIATES - Other Contracted Services Construction Fund 128927 855 CHAD NESTOR&ASSOCIATES Other Contracted Services Communication Services 128928 443 CLAREYS INC Protective Clothing Police 128929 476 CONNEY SAFETY PRODUCTS Safety Supplies Water Utility-General 128930 1,861 CONTRACT HARDWARE CO,INC Building Repair&Maint. Prairie View Liquor Store 128931 87 COPY EQUIPMENT INC Operating Supplies Park Maintenance 128932 1,562 CORPORATE EXPRESS Office Supplies Water Treatment Plant 128933 113 CPR PUBLISHERS INC Training Supplies Fire 128934 3,471 CUTLER-MAGNER COMPANY Chemicals Water Treatment Plant 128935 1,605 CY'S UNIFORMS Clothing&Uniforms Police 128936 253 DALCO Cleaning Supplies Maintenance 128937 291 DECORATIVE DESIGNS INC Other Contracted Services Water Treatment Plant 128938 1,128 DELANO ERICKSON ARCHITECTS Other Contracted Services Construction Fund 128939 270 DITCH WITCH OF MINNESOTA INC Equipment Parts Fleet Services 128940 28,173 DMJ CORPORATION Improvements to Land Park Acquisition&Development 128941 642 DYNA SYSTEMS Repair&Maint.Supplies Sewer Liftstation 128942 3,380 EAGLEBROOK INC Chemicals Water Treatment Plant 128943 3,869 EARL F ANDERSEN INC Signs Park Maintenance 128944 224 ECOLAB INC Building Repair&Maint. Maintenance 128945 5,066 EGAN OIL COMPANY Lubricants&Additives Fleet Services 128946 32 ELVIN SAFETY SUPPLY INC Protective Clothing Water System Maintenance 128947 9,349 EMERGENCY APPARATUS MAINTENANC Repair&Maint.Supplies Fire 128948 517 FANFARE PROMOTIONS INC Clothing&Uniforms Inspections-Administration 128949 200 FEDERAL SIGNAL CORPORATION Equipment Repair&Maint Fleet Services ( t4 Check# Amount Vendor/Explanation Account Description Business Unit 128950 398 FERRELLGAS Motor Fuels Ice Arena 128951 38 FIKES HYGIENE SERVICES Operating Supplies Den Road Liquor Store 128952 870 FLYING CLOUD ANIMAL HOSPITAL Canine Supplies Police 128953 13,309 FORE MECHANICAL,INC Other Contracted Services Street Maintenance 128954 2,071 G&K SERVICES-MPLS INDUSTRIAL Clothing&Uniforms Park Maintenance 128955 165 GALLES CORPORATION Equipment Repair&Maint Water Treatment Plant 128956 274 GARTNER REFRIGERATION&MFG IN Equipment Repair&Maint Ice Arena 128957 84 GEBO,ROBERT L. Other Contracted Services Volleyball 128958 382 GENERAL SAFETY EQUIPMENT COMPA Equipment Parts Fleet Services 128959 345 GRAINGER Operating Supplies Maintenance 128960 2,758 HANSEN THORP PELLINEN OLSON Other Contracted Services Park Acquisition&Development 128961 3,964 HAWKINS WATER TREATMENT GROUP Chemicals Water Treatment Plant 128962 51 HAYDEN-MURPHY EQUIPMENT COMPAN Equipment Parts Fleet Services 128963 1,150 HENNEPIN TECHNICAL COLLEGE Employment Support Test Fire 128964 1,239 HYDROLOGIC Repair&Maint.Supplies Park Maintenance 128965 25 ICE SKATING INSTITUTE Licenses&Taxes Ice Arena 128966 1,602 ICI DULUX PAINT CTRS Repair&Maint.Supplies Water Treatment Plant 128967 5,579 IND SCHOOL DIST 272 Gym Rental Volleyball 128968 2,007 INDUSTRIAL FLOOR MAINTENANCE I Small Tools Fleet Services 128969 648 INDUSTRIAL LIGHTING SUPPLY INC Repair&Maint.Supplies Water Treatment Plant 128970 2,476 INTEREUM INC Capital Under$2,000 Furniture 128971 11,639 INTERSTATE COMPANIES INC Equipment Repair&Maint Fleet Services 128972 1,560 ITRON INC. Other Contracted Services Water Meter Reading 128973 851 ITS A KEEPER Awards City Manager 128974 143 J&H BERGE INC Repair&Maint.Supplies Water Treatment Plant 128975 246 J H LARSON ELECTRICAL COMPANY Repair&Maint.Supplies General Facilities 128976 127 J-CRAFT DIV OF CRYSTEEL MFG IN Equipment Parts Fleet Services 128977 4,099 JANEX INC Cleaning Supplies Maintenance 128978 1,214 JM OIL CO Lubricants&Additives Water Treatment Plant 128979 562 JOHN HENRY FOSTER MINNESOTA IN Equipment Repair&Maint Water Treatment Plant 128980 189 KALLIN,LAWRENCE E Other Contracted Services Volleyball 128981 833 KELLER FENCE COMPANY INC Building Repair&Maint. Water Treatment Plant 128982 2,798 KRAFKA,STAN Equipment Repair&Maint Water Well#13 128983 2,095 LAB SAFETY SUPPLY INC Protective Clothing Water System Maintenance 128984 40 LANO EQUIPMENT INC Equipment Parts Fleet Services 128985 471 LAW ENFORCMENT TARGETS INC Training Supplies Police 128986 243 LESCO INC Chemicals Park Maintenance 128987 1,240 LITTLE FALLS MACHINE INC Equipment Parts Fleet Services 128988 8,264 MACQUEEN EQUIPMENT INC Equipment Parts Fleet Services 128989 350 MANN,RAHMAN Other Contracted Services Street Maintenance 128990 2,000 MARK A.OEHRLEIN APPRAISALS IN Other Contracted Services Economic Development 128991 4,929 MATTS AUTO SERVICE INC Other Contracted Services DWI Forfeiture 128992 129 MAXI-PRINT INC Printing Police 128993 2,760 MCKAY FLOOR COVERING Other Contracted Services Street Maintenance 128995 2,291 MENARDS Building Repair&Maint. Park Maintenance 128996 295 METRO FIRE Awards City Manager 128997 90 METROPOLITAN FORD Equipment Parts Fleet Services 128998 345 MINNESOTA POLLUTION CONTROL AG Licenses&Taxes Water Utility-General 128999 233 MINNESOTA TROPHIES&GIFTS Awards City Manager 129000 1,394 MINNESOTA VALLEY ELECTRIC COOP Electric Riley Lake 129001 1,543 MN STATE COLLEGES&UNIVERSITI Training Supplies Fire 129002 1,813 MTI DISTRIBUTING INC Equipment Parts Fleet Services 129003 265 NATIONAL WATERWORKS Repair&Maint.Supplies Water System Maintenance 129004 1,471 NATIONWIDE ADVERTISING SERVICE Employment Advertising Human Resources 129005 118 NORTHERN TOOL&EQUIPMENT CO. Operating Supplies Park Maintenance 129006 2,932 OLSEN COMPANIES Machinery&Equipment Water System Maintenance 129007 171 OSI BATTERIES INC Equipment Parts Fleet Services 129008 1,615 PEPSI COLA COMPANY Merchandise for Resale Concessions 129009 180 PETERSON ENVIRONMENTAL CONSULT Other Contracted Services Storm Drainage 129010 4,732 PRAIRIE ELECTRIC COMPANY Equipment Repair&Maint Water Treatment Plant 129011 200 PRODOEHL,JERRY Other Contracted Services Street Maintenance 129012 24 R&R MARINE INC Equipment Repair&Maint • Park Maintenance 129013 144 RAY,LEE Other Contracted Services Basketball 129014 168 REED CONSTRUCTION DATA Seal Coating Street Maintenance 129015 9,453 RMR SYSTEMS INC Other Contracted Services Water Meter Reading 129016 297 ROCHESTER MIDLAND CORPORATION Cleaning Supplies Maintenance 129017 79 RUSSELL&MILLER INC Operating Supplies Den Road Liquor Store 129018 113 SCHERER BROTHERS LUMBER CO Building Materials Street Maintenance 129019 67S SE-ME INC Video&Photo Supplies Police I CC Check# Amount Vendor/Explanation Account Description Business Unit 129020 191 SHERWIN WILLIAMS CO Operating Supplies Park Maintenance 129021 1,570 SHIELD FIRE PROTECTION INC Other Contracted Services Street Maintenance 129022 60 SHRED-IT Waste Disposal City Center Operations 129023 357 SMITH,SUZETTE JO Other Contracted Services Volleyball 129024 258 SNAP-ON TOOLS Small Tools Fleet Services 129025 490 SNELL MECHANICAL INC Equipment Repair&Maint Maintenance 129026 320 SOUTH CENTRAL TECHNICAL COLLEG Tuition Reimbursement/School Fire 129027 37 SPORTS WORLD USA INC Operating Supplies Concessions 129028 15,160 SRF CONSULTING GROUP INC Design&Engineering Improvement Projects 1996 129029 2,510 STEMPF AUTOMOTIVE INDUSTRIES I Equipment Parts Fleet Services 129030 3,021 STREICHERS Equipment Parts Fleet Services 129031 186 SUBURBAN CHEVROLET GEO Equipment Parts Fleet Services 129032 23 SUBURBAN PROPANE Equipment Repair&Maint Fleet Services 129033 938 SUN NEWSPAPERS Advertising Communication Services 129034 145 SWEDLUNDS Waste Disposal Outdoor Center 129035 3,738 TESSCO Capital Under$2,000 Fleet Services 129036 683 THYSSENKRUPP ELEVATOR Equipment Repair&Maint Maintenance 129037 59,253 TRAUT WELLS Equipment Repair&Maint Water Treatment Plant 129038 133 TWIN CITY OXYGEN CO Lubricants&Additives Fleet Services 129039 596 UDOR USA Equipment Repair&Maint Park Maintenance 129040 492 UNIFORMS UNLIMITED Clothing&Uniforms Reserves 129041 2,503 UNITED RENTALS Machinery&Equipment Storm Drainage 129042 2,349 UNITED RENTALS HIGHWAY TECHNOL Repair&Maint.Supplies Water System Maintenance 129043 456 UNLIMITED SUPPLIES INC Equipment Parts Fleet Services 129044 20 US CAVALRY Clothing&Uniforms Police 129045 140 VOSS LIGHTING Repair&Maint.Supplies Maintenance 129046 95 VWR INTERNATIONAL INC Repair&Maint.Supplies Water System Maintenance 129047 336 WAHLS ENTERPRISES Equipment Repair&Maint Park Maintenance 129048 1,692 WATSON CO INC,THE Merchandise for Resale Concessions 129049 121 WEST WELD Equipment Parts Fleet Services 129050 1,367 WESTSIDE EQUIPMENT Equipment Repair&Maint Fleet Services 129051 735 WHEELER HARDWARE COMPANY Building Repair&Maint. Ice Arena 1,484,065 Grand Total i CI CITY COUNCIL AGENDA DATE: SECTION: Ordinances and Resolutions April 13,2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Public Works Resolution Regarding a Policy of Not Fencing Eugene A. Dietz Storm Water Ponds and Wetlands IX.A. Requested Action Move to: Adopt resolution regarding a Policy of Not Fencing Storm Water Ponds and Wetlands Synopsis The City has had a long standing practice of not fencing ponding and wetland facilities within our community. Statutory and Case Law allow for municipalities to assess benefit and risks and establish formal policy that provides some measure of liability protection known as discretionary immunity. The attached resolution, prepared by our legal staff, is modeled directly after a resolution that was adopted by the City of Minnetonka in 2003. Staff recommends adoption of the resolution. Background Information No one has ever requested that the City of Eden Prairie provide fencing around Mitchell Lake, along the Minnesota River or any of the other natural lakes or creeks within our corporate limits. However, staff does receive expression of concern regarding ponding areas that are a result of the Wetland Conservation Act and the desire to improve water quality. In a state where water hazards should be the expected norm, protection of our population from these risks can only be successful as a matter of personal responsibility and parental guidance rather than through government intervention. Staff therefore strongly urges Council to adopt the attached resolution. / (17 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 04- RESOLUTION REGARDING A POLICY OF NOT FENCING STORM WATER PONDS AND WETLANDS BACKGROUND A. The City of Eden Prairie Storm Water Management System includes a large number of natural and man-made holding ponds and wetlands, which serve to control both the quantity and quality of surface water drainage. B. There is a risk that children and trespassers may enter the holding ponds or wetlands and be injured or killed. If this occurs,there is a risk that the City could be sued for damages. C. Building fences around the holding ponds and wetlands would decrease the likelihood of people accidently stumbling into ponds, but no ordinary fence will stop a determined child or trespasser. D. A fence sufficiently constructed to defeat a determined child or trespasser would be expensive to construct and maintain, would be unsightly, and would create dangers of its own such as children injured by falling off the fence, being tangled in the fence, or being trapped inside and unable to get out. In addition, a fence would delay rescuers in reaching a victim. E. Many holding ponds and wetlands are located in drainage easements on private property rather than property owned by the City. Obtaining permission from landowners to build a fence across their backyards could be expensive, and constructing a fence would disturb the property owners= views of their backyards and may decrease private property values. F. Having numerous fences around the holding ponds and wetlands in the City would be contrary to the natural feeling which Eden Prairie elected officials have sought to preserve and which the citizens treasure. In addition, numerous fences would be disruptive of the neighborhood=s continuity,harmony and sense of openness. G. For the reasons noted above, the City has a long-standing policy of not fencing around ponds and wetlands. The City wishes now to formally recognize this policy in writing. NOW THEREFORE, BE IT RESOLVED BY THE EDEN PRAIRIE CITY COUNCIL THAT: 1. The City Council finds that the social, economic and political factors involved in constructing and maintaining fences around surface water holding ponds and wetlands are outweighed by the social, economic and political reasons not to build such fences; 2. The City Council declares that the City of Eden Prairie has not and will not build fences around holding ponds and wetlands for which the City is responsible. ADOPTED by the City Council of the City of Eden Prairie this 13th day of April,2004. Nancy Tyra-Lukens, Mayor (Seal) ATTEST: Kathleen Porta, City Clerk id? CITY COUNCIL AGENDA DATE: SECTION: Ordinances April 13,2004 DEPARTMENT: Public Works Department ITEM DESCRIPTION: ITEM NO.: First Reading of an Ordinance Amending Leslie Stovring Phosphorus Fertilizer Restrictions IX.B. Through Eugene Dietz Requested Action Move to: Approve lst reading of an Ordinance repealing City Code Sections 5.45 and 9.14 and amending City Code Section 9.15 in accordance with Minnesota Statutes regarding the regulation of phosphorus fertilizers. Synopsis This ordinance will repeal City Code Sections 5.45 and 9.14 since they conflict with recently amended State Statutes regarding the regulation of phosphorus-containing fertilizers. Section 9.15 will be amended to remove the requirement for providing a copy of the City's City Code Section 9.14 with all sales and to clarify the penalty provisions. This provision expired in January 2004. Staff recommends that the City Council adopt the proposed City Code amendment. Background Information Minnesota Statues Chapters 18C.110, 18C.60, 18C.61 and 18C.61 were signed into state law in April 2002. State law does require licensing of commercial fertilizer applicators by the State and the new legislation includes provisions regarding the use of phosphorus-containing fertilizer in the State of Minnesota. The result is that the City will need to repeal those sections regarding licensure of commercial fertilizer applicators at the City level (City Code Sections 5.45 and 9.14). Minor modifications to City Code Section 9.15 are proposed to remove reference to sections which have expired and to modify the penalty provision. Following is a summary of the new state legislation. Chapter 18C.110 states that local units of government may not adopt or enforce ordinances that prohibits or regulates registration, labeling, distribution, handling, use, application or disposal of phosphorus-containing fertilizers after January 1,2004. Chapter 18C.110 does allow local units of government to enforce an ordinance that restricts the sale of phosphorus-containing fertilizer that was in effect on August 1,2002. Since the City of Eden Prairie did adopt City Code Section 9.15 regarding the sale of phosphorus-containing fertilizers on July 2,2002, this section may remain. Chapter 18C.60 restricts the application of fertilizer in turf areas to those which do not contain phosphorus. Exemptions include new lawns or when soil tests indicate that there is a need for phosphorus. Golf course operators are also exempt from these requirements and are allowed to use phosphorus-containing fertilizer when indicated by professional judgment. A report on the effectiveness of the legislation is to be presented to the legislature by January 15,2007. Chapter 18C.61 states that it is prohibited to spill or spread fertilizer on impervious surfaces. If a spill occurs,it must be cleaned up immediately. This applies to all fertilizers,whether they contain ISO Phosphorus Fertilizer Ordinance April 13,2004 Page 2 of 2 phosphorus or not. Chapter 18C.62 relates to enforcement of the state regulations. Restrictions and prohibitions within the law are to be enforced by local units of government under existing authority. Violations are defined as a petty misdemeanor. Attachments: • Ordinance • Revised City Code Section 9.15 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. -2004 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE,MINNESOTA,AMENDING CITY CODE CHAPTERS 5 AND 9 BY REPEALING SECTION 5.45 RELATING TO THE LICENSING OF COMMERCIAL FERTILIZER APPLICATORS; REPEALING SECTION 9.14 REGARDING RESTRICTIONS RELATING TO THE USE OF FERTILIZER; AMENDING SECTION 9.15 REGARDING RESTRICTIONS RELATING TO THE SALE OF LAWN FERTILIZER; AND ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTION 9.99 WHICH,AMONG OTHER THINGS,CONTAIN PENALTY PROVISONS. THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE,MINNESOTA,ORDAINS: Section 1. City Code Section 5.45 is repealed. Section 2. City Code Section 9.14 is repealed. Section 3. City Code Section 9.15,Subd.2A is deleted in its entirety and replaced with the following: A. Person: Person means an individual, firm, partnership, association or private corporation. Section 4. City Code Section 9.15, Subd. 3 is amended by deleting subsection 4 in its entirety and renumbering the subsection accordingly. Section 5. City Code Section 9.15, Subd. 4, is amended by deleting the second sentence of the subdivision. Section 6. City Code Chapter 1 entitled"General Provisions Definitions Applicable to the Entire City Code Including Penalty for Violation" and Section 9.99 entitled "Violations and Misdemeanors" are hereby adopted in their entirety, by reference, as though repeated verbatim herein. Section 7. This Ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the day of ,2004,and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the day of ,2004. Kathleen Porta,City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie Sun Current on ,2004. SECTION 9.15. RESTRICTIONS RELATING TO 1'HE SALE OF LAWN FERTILIZER Source: Ordinance No.21-2002 Effective Date: 7-2-2002 Subd. 1. Purpose. The purpose of this Ordinance is to establish regulations that will aid the City in maintaining and improving lake resources within its jurisdiction,thus enhancing the enjoyment of the lakes by City residents and other users. The provisions of Minnesota Statutes 2002, Chapter 18C, Fertilizer, Soil Amendment, and Plant Amendment Law, are hereby incorporated herein and adopted by reference. Subd. 2. Definitions. The definitions contained Minnesota Statutes § 103E.005, subd. 1, as amended, are adopted by reference. For the purpose of this section, certain terms and words are defined as follows: �. Fertilizer: a substance containing one or more recognized plant nutrients that is used for its Deleted:A..Commercial Applicator: plant nutrient content and designed for use or claimed to have value in promotingplantgrowth. a person who is engaged in the business � of applying fertilizer for(tire as defined in Fertilizer does not include animal and vegetable manures that are not manipulated marl, lime, Section 5.451 limestone,and other products exempted by Rule by the Minnesota Commissioner of Agriculture. B. Person: "Person"means an individual,firm,partnership,association or private corporation. Subd. 3. Effective July 31, 2002, no person, firm, corporation, franchise, or commercial establishment shall sell any lawn fertilizer, liquid or granular, within the City of Eden Prairie that contains any amount of phosphorus or other compound containing phosphorus,such as phosphate, unless: 1. Phosphorus-free fertilizer is also for sale; 2. Phosphorus-free fertilizer and phosphorus-containing fertilizer are separately displayed with each display being clearly marked as to whether or not the fertilizer contains phosphorus; 3. Displays of phosphorus-containing fertilizers shall be limited to ten percent (10%) of the quantity of phosphorus-free fertilizer on display at any time; I A. Fertilizer displays shall include signage providing information on phosphorus. All signage --f Deleted:4..For each sale of such must be pre-approved or provided by the City on request. fertilizer through January zooa,the seller shall provide the buyer with a copy of Section 9.14 of the Eden Prairie City I Subd.4. Penalty. Any person violating this section shall be guilty of a petty misdemeanor. % Code;aud¶ ‘f Deleted:5 Deleted:The City may revoke a commercial applicator's license for repeat violations of this section. /5 ,9 CITY COUNCIL AGENDA DATE: SECTION: Petitions and Requests April 13,2004 SERVICE AREA/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development Michael D. Franzen Pemberton Landing X.A. Requested Action • Option #1: Adopt the Findings, Conclusions, and Order denying the request of Minnstar Builders for Pemberton Landing OR, • Option#2: Move to: Accept the letter of withdrawal from Minnstar Builders and return the plans to the proponent without prejudice. Synopsis At the March 23, 2004 meeting the City Council closed the public hearing and directed staff to prepare findings for denial. Since that meeting Minnstar Builders has met with staff to talk about how to proceed with revised plans. The letter from Minnstar Builders indicates they are considering alternative development concepts for the property. Staff has not seen any revised plans. If the project is denied, the developer cannot return with a request to change the guide plan to medium density and the zoning to RM-6.5 for a year according to City code. If the Council decides to accept the withdrawal option, the staff would suggest this discussion occur at a public hearing. The current neighborhood expectation is that the project is going to be denied. At a subsequent public hearing the Council could accept the withdrawal or have the developer extend the review period and postpone the date for consideration of findings for denial until August 13, 2004. This would give the developer time to prepare revised plans and take them through a public process. The current 120 day review period expires on May 29,2004. Attachments 1. Findings, Conclusions, Order 2 Letter from Minnstar Builders dated March 31,2004. lsq CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA FINDINGS,CONCLUSION AND ORDER PEMBERTON LANDING DEVELOPMENT FINDINGS 1. Minnstar Builders, Inc. hereinafter "Developer" has made application for the development of a proposed townhouse development named Pemberton Landing, hereinafter the "Project," covering approximately 21.66 acres south of Pioneer Trail, north of Hilltop Road, and west of Eden Prairie Road, Hennepin County, Minnesota, hereinafter the"Property." 2. The Comprehensive Guide Plan designates the Property as low density residential for up to 2.5 units per acre. The Property is zoned R1-22 single family. Surrounding land use consists of low density residential, with R1-22 to the east and south, R1-9.5 to the west, and rural to the north. 3. The Project proposes 129 multiple family townhouse units. The Project requires a guide plan change from low density residential (2.5 units per acre) to medium density residential (10 units per acre). The existing low density residential guiding for the proposed multiple-family portion of the project allows up to 44 units. 4. The Project's proposed density is 7.4 units per acre for the Property to be zoned RM-6.5. The density of the overall Property, including single-family lots on Hilltop Road, is 6.2 units per acre. 5. The Developer requested the following actions: A. Comprehensive Guide Plan Change from Low Density Residential to Medium Density Residential on the Property. B. Planned Unit Development Concept Review on 21.66 acres. C. Planned Unit Development District Review with waivers on 21.66 acres. D. Zoning District Change from R1-22 to RM-6.5 on the Property. E. Site Plan Review on the Property. F. Preliminary Plat on 21.66 acres into 32 lots, 1 outlot,and road right-of-way. 'cc 6. The Project as originally proposed requires the following waivers from the City Code: A. Density of 7.4 units per acre in a RM-6.5 zoning district. The City Code, permits up to 6.7 units per acre. B. Land area of 5,588 square feet per unit. The City Code requires 6,500 square feet of land per unit in the RM-6.5 district. C. All multi-family lot depths of 78 feet and 88 feet. The City Code requires 100 feet. D. Lot 2, Block 2 of 20,600 square feet. The City Code requires a minimum of 22,000 square feet within the R1-22 district. E. Side yard setback of 10.2 feet for Lot 16, Block 1 adjacent to R1-22 zoned property. The City Code requires that side yard setbacks for dissimilar abutting districts meet the larger of the two requirements which is 15 feet. 7. The Site Plan does not address the following factors set forth in City Code Section 11.03, Subdivision(E): a. preservation of open space; b. meeting housing goals for senior and affordable housing; c. eliminating land use incompatibility, and preservation of natural features; d. minimize negative impacts upon other land uses of surface water run-off. 8. The Project was first reviewed at an informational meeting with the Community Planning Board,hereinafter the"Board"on January 26, 2004. 9. The Board raised concerns with changing the guide plan, project density, proposed waivers,transitions and buffering, draining, open space,walkways and play areas. 10. The Project was further reviewed at a public hearing before the Board held on February 22, 2004. The Board voted 7-0 to recommend denial of the project. 11. On March 15, 2004, after the public hearing before the Board and after publication of the public hearing before the City Council, the Developer submitted a revised development plan, hereinafter the "Amended Plan," for the Project which reduced the number of multiple family units from 129 to 110; reduced the density of the multiple family units from 7.4 to 6.18 units per acre; and showed a public road connection between Pioneer Trail and Hilltop Road. No waivers are required under the Amended Plan. 12. On March 23, 2004, the Project and the Amended Plan was reviewed at a public hearing before the City Council. 2 ,5f CONCLUSION After consideration of the Staff Reports, the Board's recommendations, the oral and written presentation of the Developer and other testimony at the public hearings held on this matter, the City Council finds that: A. The proposal is inconsistent with the Comprehensive Guide Plan. No compelling reasons to change the guide plan have been presented. The Project does not preserve natural features, help to meet housing goals, provide an appropriate transition to adjoining uses, eliminate land use incompatibility, provide open space and/or minimize negative impacts upon other land uses of surface water run-off. B. The PUD waivers originally requested are not substantiated. The Developer has not demonstrated that strict enforcement of the City Code would create undue hardship because of circumstances unique to the Property. The granting of the variances would not be in keeping with the spirit and intent of Chapter 11 of the City Code. The site plan density is above the permitted maximum allowed in the zoning district. The site plan does not contain appropriate transition to adjoining low density uses. The need for waivers is created by the density of the Project and does not result in preserving natural features or meeting a housing goal. C. The Project contains inadequate transition between land uses. Landscaping alone is not an appropriate transition solution where the difference in densities is high. Landscaping works better to create transitions when densities and building types are similar. It is inappropriate to locate berms and landscaping within an area designed to handle storm water runoff. It is inappropriate to place tree replacement outside of the Project on private property not owned or controlled by the Developer. D. Tree loss replacement is not located within the Project boundary. The planting of replacement trees is proposed either off-site, or over a storm sewer, neither of which is practical. E. No public road connection to Hilltop Road. No public road connection between Pioneer Trail and Hilltop Road is provided in the Project as originally submitted. Such a connection is desirable in order to provide circulation, emergency vehicle access and limit turning movements onto Pioneer Trail. F. The Guide Plan change is not justified. The Amended Plan does not adequately address the factors set forth in City Code Section 11.03 subd. 6 (E). Even though the density has been reduced, the Amended Plan does not preserve open space; meet housing goals for senior and affordable housing; eliminate land use incompatibility; provide an appropriate transition to adjoining uses; preserve natural features and/or minimize negative impacts upon other land uses of surface water run-off. 3 /57 G. The storm water plan does not meet City standards. The storm water plan for the Project is inadequate and does not meet City standard. The storm water plan does not provide for 100-year storm event ponding on site. The storm water plan does not provide safe emergency overflow elevations to Eden Prairie Road to protect adjacent property and home off site. ORDER Based upon the above, the City Council hereby denies the application of Minnstar Builders, Inc. for: A. Comprehensive Guide Plan Change from Low Density Residential to Medium Density Residential on the Property. B. Planned Unit Development Concept Review on 21.66 acres. C. Planned Unit Development District Review with waivers on 21.66 acres. D. Zoning District Change from R1-22 to RM-6.5 on the Property. E. Site Plan Review on the Property. F. Preliminary Plat on 21.66 acres into 32 lots, 1 outlot, and road right-of-way. 4 15s Minnstar BUILDERS, INC. A Ron Clark Company 7500 West 78th Street Edina, MN 55439 MN Lic.n20161602 952-947-3003 Fax 952-947-3030 March 31, 2004 Mr. Mike Franzen City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344-4485 Greetings Mr. Franzen, • Please accept our request to withdraw our application for all matters pertaining to the project known as Pemberton Landing, and to have the project documents returned to us without prejudice. We are considering alternative development concepts for the property and I will contact you to schedule an informal sketch review should we come up with something we think will work. If we aren't able to do so, at a minimum we believe that closing out Pemberton Landing by withdrawing the application is a better outcome in the long run for us, the property owners, and the city. In any event, it has been my pleasure to work with the various members of the city's planning staff, Community Planning Board, and City Council. I hope to do so again soon, whether it is on this particular property or another. Regards, Timothy L. Bohlman Senior Project Manager 1, CITY COUNCIL AGENDA DATE: SECTION: Reports of Director of Parks and Recreation April 13,2004 DEPARTMENT/DIVISION: ITEM NO.: ITEM DESCRIPTION: Robert A. Lambert 1AL I I I. C. Round Lake Water Quality Report Director of Parks &Recreation Requested Action Move to: Authorize staff to close Round Lake Beach until water quality conditions meet level one requirements or full support of swimable use. Furthermore,to authorize staff to set a workshop date to meet with the Riley Purgatory Bluff Creek Watershed District Board to hear an updated report on the current and proposed joint projects with the Watershed District. Synopsis Attached to this memorandum is a report from Barr Engineering indicating that water quality of Round Lake has not meet level one conditions for the last two years, while the City was experimenting with the use of Clarify to improve water quality at Round Lake. The Trophic State Index average over the summer months exceeded 53 in 2003 and 54 in 2002. The Trophic State Index must be less than 53 to fully support swimable use. Background In 1999, the Riley Purgatory Bluff Creek Watershed District completed the Round Lake Use Attainability Analysis (UAA). The UAA is a structured scientific assessment of the chemical, physical and biological conditions in a water body. The analysis determines the causes of problems and recommendations of remedial measures that will result in the attainment in the intended beneficial uses of the lake. Water quality goals were set for Round Lake that included a Trophic State Index of less than 53, so that this water body would fully support swimming. The recommendations of the UAA included upgrading existing runoff detention ponds, adding new runoff detention ponds, treating the runoff from the sub-watershed with alum to reduce its phosphorus content, treat the lake with alum (the alum treatment recommendations are still considered a last resort by City staff), initiate a fisheries management program that would include supplemental feeding of blue gills, and an annual stocking of northern pike to restore the balance to the predator fish community and initiate an aquatic weed management program using the herbicide "Reward". The City will continue with the Canada Goose Management Program, which includes removing all geese from Round Lake in the early summer, and discouraging geese from grazing near the lake in the later summer by applying products that deter geese from Aga Round Lake Water Quality Report April 13,2004 Page 2 foraging. Related Issues City staff met with the Riley Purgatory Bluff Creek Watershed District Board and their staff on March 31st to discuss a variety of cooperative projects the City is requesting the Watershed District to consider including: 1. Round Lake water quality improvement (City and Watershed District need to agree on a phased program). 2. Joint funding of the bridge crossing Riley Creek to accommodate access to Crestwood Park by the Settler's Ridge development. 3. Joint funding of the bridge crossing Riley Creek adjacent to Miller Spring to provide access to the Prairie Bluff Conservation Area trail. 4. Cooperative project to construct a trail along Riley Creek from County Road 1 south and east to Miller Spring. 5. Cooperative project to develop a trail along Purgatory Creek from County Road 1 south to Riverview Road. 6. Joint planning of grand opening ceremonies for partnership projects in 2004 including the Purgatory Creek Recreation Area and Miller Spring redevelopment. 7. Consider initiating a jointly sponsored annual 10K race at the Purgatory Creek Recreation Area to promote awareness of the Watershed District purpose and their programs. 8. Long Range Plans for Staring Lake, Duck Lake, Mitchell Lake and Red Rock Lake. The Watershed District Board would like to meet with the City Council to discuss the status of these ongoing and proposed projects at a workshop in July. Attachments: February 4 memorandum—Recent Round Lake Water Quality Conditions Lake Water Resource Goal tables from the 1996 Riley Purgatory Bluff Creek Watershed District Plan RAL:bju lb/ Barr Engineering Company 4700 West 77th Street - Minneapolis, MN 55435-4803 Phone: 952-832-2600 - Fax: 952-832-2601 - www.barr.com BAIT 111 Minneapolis, MN • Hibbing, MN • Duluth, MN • Ann Arbor, MI • Jefferson City, MO Memorandum To: Board of Managers, Riley-Purgatory-Bluff Creek Watershed District From: Hal Runke,Limnologist,Barr Engineering Co. Subject: Recent Round Lake Water Quality Conditions Date: .February 4, 2004 Project: 23/27-E07 c: B. Obermeyer,P. Haik,D.Wright (Mn/DNR) The attached graphs and table present recent (2001-2003)Round Lake water quality data for the . three principal water quality indicators used to calculate Trophic State Index(TSI)values: .• Total phosphorus (µg/L) • Chlorophyll a (µg/L) • Secchi disc transparency (m) 110 Corresponding data from 1997,the year upon which the Round Lake Use Attainability Analysis (UAA) report was based,are also reported here for comparative purposes. As you will recall, the past 3 years of monitoring were conducted to evaluate the response of the lake to treatments made by the City of Eden Prairie using proprietary products offered by the Greener Pastures Company. TSI values for the four most recent years of record are listed below, with higher values being indicative of poorer water quality conditions. Summer of Record • Trophic State Index(TSI) Basis 1997 2001 2002 2003 Total Phosphorus (TSI[rr]) 63 48 55 62 Chlorophyll a (TSIrchial) 60 49 57 64 Secchi Disc Transparency (TSIsD) 56 48 54 53 As noted in previous correspondence about this matter, and as discussed in the UAA report,late- . summer water quality seems to be most strongly correlated to the amount of summer rainfall received each year, as shown on the attached total phosphorus graph. Observed year-to-year variations in 41) - recent Round Lake water quality appear to be largely unrelated to any treatments made by the City of Eden Prairie,therefore. ::ODMA\PCDOCSIDOCS124309011 ,` Table 1. Round Lake Water Quality Data for 1997 through 2003 Sample Date Total Phosphorus Chlorophyl a Secchi Depth III (µg/L) (µg/L) (m) 6/2/1997 36 4.6 2.5 7/2/1997 45 6.4 0.9 7/14/1997 53 16 1.2 8/5/1997 101 36.2 0.9 8/18/1997 64 31.6 1.1 4/24/2001 54 4.3 1.2 5/14/2001 30 5 2.6 6/11/2001 21 5 3 6/26/2001 31 7.7 3 7/11/2001 32 11 2 7/23/2001 34 4.3 1.6 8/7/2001 23 1.3 2.4 8/23/2001 22 9 1.7 9/5/2001 21 2 9/9/2001 48 1.4 9/19/2001 40 15 1.9 4/30/2002 29 1.6 2.4 5/20/2002 .25 1.1 3.1 6/10/2002 28 0.5 2 7/1/2002 29 9.4 2 7/24/2002 42 30 1.1 III 8/20/2002 37 19 1.1 9/10/2002 30 15 1.4 4/23/2003 30 10 2 5/15/2003 29 2 2.7 6/10/2002 52 0.5 2.3 6/30/2003 46 13 2.4 7/21/2003 64 39 1.1 8/11/2003 58 70 0.5 9/3/2003 40 33 0.8 S 2/4/2004 P:123\2710531Round2003Graph(boatguy).xls 11:14AM .F Table 1. Round Lake Water Quality Data for 1997 through 2003 Sample Date Total Phosphorus Chlorophyl a Secchi Depth (µg/L) (µg/L) (m) 6/2/1997 36 4.6 2.5 7/2/1997 45 6.4 0.9 7/14/1997 53 16 1.2 8/5/1997 101 36.2 0.9 8/18/1997 64 31.6 1.1 4/24/2001 54 4.3 1.2 5/14/2001 30 5 2.6 6/11/2001 21 5 3 6/26/2001 31 7.7 3 7/11/2001 32 11 2 7/23/2001 34 4.3 1.6 8/7/2001 _ 23 1.3 2.4 8/23/2001 22 9 1.7 9/5/2001 21 2 9/9/2001 48 1.4 9/19/2001 40 15 1.9 4/30/2002 29 1.6 2.4 5/20/2002 .25 1.1 3.1 6/10/2002 28 0.5 2 7/1/2002 29 9.4 2 7/24/2002 42 30 1.1 8/20/2002 37 19 1.1 9/10/2002 30 15 1.4 4/23/2003 30 10 2 5/15/2003 29 2 2.7 6/10/2002 52 0.5 2.3 • 6/30/2003 46_ 13 2.4 7/21/2003 64 39 1.1 t 8/11/2003 58 70 0.5 9/3/2003 40 33 0.8 2/4/2004 P:\23\27\0531Round2003Graph(boatguy).xls 1I:14 AM Round Lake (Eden Prairie, MN) 110 2 5t V ..+y: S: f :7, ti•i 1 00 — — — 71 • • O y� ti'L 4.1 .5•. 9 Q. 90 4.r %:7ti— i _ V/�� 'S1= - - W • S.: .Level IV:Non-Support of _ L.pp :'ra - .1 ,l t�. • - Swimmable Use a ..:.....:. Y. t. 6 .1: ti:e ,.j:.. s - 7 ;'v ,J. :'e " — a' .J70 -- 2003 Summer AverageTS l 62 — ,,t 63 :1997 Summer Average T I ra— - ,!• } r.;. t;. 6 a Q� 0 - Level Ill:Partial Support of Swimmable Use' r iJ V/ N ?,; J 54. v = 50 r �'.\;:``, c�. 2002 Summer 61 0Y a. tAveTSlTp55 I 0 1 a i 0 40 Level II:Full Support\ of Swimmable Use but Threatened r�T,; 57 ' —2 J _ �2003 i. 30 .. - — 53 ' —+►—2001 �` ki'- -- / —U—1997 • 2001 Summer 20 --- Average TSlTp=48 47/ 15 June 15-August 15 Pptn. - kSY: S1 f17 WiY. ,t..t., J k., -q4� , ;,I , .. gin.±-S ,k+�,it Level I:Full Support of sla"" .Y :.•4.•1 + l,F=is s-��'�;;?_ - Swimmable Use z`` ;2002'(132�.in). = 10 — . ;;`, .. .... `:........ .. ........ . 37/ 7.5 - MSP -30 Yr Avg(7.4 in) 2003(5.9 in) 1-Apr 1-May 31-May 30-Jun 30-Jul 29-Aug 28-Sep 2/3/2004 P:\23\27\053\Round2003Graph(boatguy).xls 4:21 PM � 1�O3 Round Lake (Eden Prairie, MN) • so ▪ _Levelly:Non-Support of ▪.. Swimmable Use _ 71 60 • •• — - - ca C.) lill 50 -- _ 69 C/) J - F— Ct .-. 2003 Summer Average TSlcnia—64 iC - 67 40 — _ _ O .vera.-e�TS • =57.. O A•2 .2Summer 00 Cha 9 _ - =49 0 2001 Summer Average TSlch� ._ U. - - 64 a- V30 :... - O i 1997 Summer Average TSIchia=59.5 i . 63 - Level Ill: Partial Support of 20 Swimmable Use 60 - ` '` Level II:Full Support of Swimmable _I Use,but Threatened - -- -----10 53 2003 7 - -20sa: 02 Level 1:Full Support of Swimmable Use 0-2001 0 5 --t1-1997 1-Apr 1-May 31-May 30-Jun 30-Jul 29-Aug 28-Sep 0 2/3/2004 P:\23\27\053\Round2003Graph(boatguy).xls 4:21 PM Round Lake (Eden Prairie, MN) • a) 110 72 .z () • i • _ __ _ O }` :w O 4 69 () O Level IV:Non-Support of Lft . Swimmable Use a o _ 8 _ - 67 I- I- J • 2003 Summer Average TSI =62 —_ _-_ _ . -` 9 TP - - — ..� 1997 Summer Average TSITP=63 'a•`� i 0 • Level Ill:Partial Support of Swimmable Use 0 = EL 50 61 ..0 .0 2002 Summer Q. 0. Average TSITP=55 0 h- ''r 40 -- - - 7 0 ;Level Il:Full Support of Swimmable Use,but Threatened 2003 )1' 2002 30 — - - -- -- ---- - ---- — 53 -4-2001 1 . -....> . -11-1997 • 2001 Summer 47/ 15 20 -- Average TSITP=48 June 15-August 15 Pptn. • 4444- Level I:Full Support of r xr; " ' TS3"j Swimmable Use ,20:02.(132.in). 10 - 37/ 7.5 - MSP -30 Yr Avq(7.4 in) 2003(5.9 in) 1-Apr 1-May 31-May 30-Jun 30-Jul 29-Aug 28-Sep • 2/3/2004 P:\23127\053\Round2003Graph(boatguy).xls 4:21 PM 9- /63 • Round Lake (Eden Prairie, MN) -- 11 • 0 126 Level IV:Non-Support of • Swimmable Use I 1997 Summer Average TSIsp=56 . .. .. _.•. _ ._ Level Ill:Partial Support of 1 F Swimmable Use 60 :• . . >+ T Level II:Full Support of `-� V Swimmable Use,but X Threatened 53 y N 4CTIO • 03 2 50 V - t „ Q - Level l:Full Support of Swimmable Use 2001 Summer Average TSIsp=48 3 --- 44 2002 Summer Average TSIsp=54 2003 2003 Summer Average TSIsp=53 --NE--2002 --♦—2001 E-1997 4 40 1-Apr 1-May 31-May 30-Jun 30-Jul 29-Aug 28-Sep • 2/3/2004 P:\23\27\053\Round2003Graph(boatguy).xls 421 PM .Table:1A2: • • • • Lake Water. Resource,Goals - ..'` Lake:G•oals:Y'.. • Water Quality;(1)- • -Y ` • Laker by Type Description. TS15D(2) Water Quantity Wildlife Public Participation Lake Monitoring Program ": Swlmminq Lakes . ' - • ••Ann " Full support of <49(3) Sufficient storage • •Protect existing Encourage public "Intensive"or"Advanced"level of data • Riley• swimming and designated. - <53(4) :':fora regional' beneficial wildlife participation as part of a collection per Metropolitan Council and • •.,Round ' ; fishing activities. • <53(4) •�flodd. : -;f •;uses. ' Use-Attainability - MPCA recommendations,respectively. Analysis for each lake. _ -Flahlnt6 Lakes w1MDNR • •Stdckinq;Progran'is :� • Hyland • Full support of designated - =_62(5) '`"1 • "Management"or"Intermediate"level of a • Lotus fishing activities. 8(5) data collection,per Metropolitan Council • Mitctiell <55..(3) and-MPCA recommendations, • Red dock - a62(5) • Staring } •. =67.(5) respectively. SUsan - .=58(5) :.v.;:.v.;t , as • - Fish takes woiMDNR .: • • . St'ockinq.Procirems • • . • Duck`•"• Full support of designated - 62•(5) • "Survey"or"Basic"level of data collection Lucy fishingactivities,plus <57(3) .. per Metropolitan Council and MPCA • Rice Marsh waterfowl and'wildlife.habitat .: =62•(5) recommendations,respectively. ' ' • Sliver •• • • requirements. -`70(3) . ','. (1) The most restrictive water uali �= ( ) q ty•goal•.of•.the MDNR, MPCA or RP�CWD'is'assurrred�to goyem.the;e`ntry in this column. (2) TSlsp -Carlson's Trophia State.Inde c score.: This index is.calculated•from tlie,.interrelationships.'befi een:summer'Secahi disc transparencies and epilimnetic concentrations of chlorophyll a and total phosphorus. The index results in scoring-generally in the range Between.zero.and drie.;hundred,•lower',scoresrbeing.indicative•of better•take water quality. (3) Water_quality goals for Lake Ann,Lake..Lucy,Mitchell Lake,and Silver take reflect.the'RPBtr.WD:ptilicy:;of::nondegradation'o`current lake water quality conditions;current conditions assumed to be;,best represented'by.calibrated'phosphorus.mass;balance model predictions.of annual.hydfologie and,phosphorus loads resulting from present watershed land use during a yearof average precipitation. (4) The water quality goal:for.Lake Riley and Round,Lake was.established to provide'water quality sufficiently good to fully support:aWimming activities there,throughout the'summer[MPCA, 1993. Clean,Water,Act-Report:to Congress.] �. < • (5) ` Water.;gtualitygoals for.'•Hyland;Lotus;:Red Rock,.Staring,:Susan, Duck;and Rice Marshlakes;-correspond:to,Ecological;.Use.Classifications-:set by:the-•MDNR for lake fisheries and associated • • , � - -,_-F.,.,; .. dated aquatioeonimtinities.[Schupp,]992, An•ecololiical classification of•Miiinesotailakeswith a`s`sdciatedrrsh cornniunities. MbNRInvestigational•Report No.417.J. (6) Mitchell:Lake is stocked by a•local property'owners::association,rather than b theMDNR< z-=' ' . '> r y ^ > • • tiileJ_Pui iiicii:Bluff Ckili=i'nai�lied D;:tik z3 82kt5,illtntll III Inventoty.and As ent. . • ,___,‘• ,f •••• (--- )• • • • - - ...... ... - .,. _ - • • . • • . • . .... Table.'IA2 •, • .., • . • . . . -'- - - • LakeMatet. Re$Otirca.•Goals • : - . - . .: ,. . . • • • • .. :..•,•: t, 4.:''.! :3 -tike:.06Eili: • .c".' K,.. , ... ."4 ''• • . . .. . . • . ' • . . . • • .21" 4- i • . Water Qualiti:(1)- ' .A • ' . .' ..... ... . 1- :. -, • .. : . Lake,.by Type Description. ,.,' TS1„(2) Water Quantity •: Wildlife Public Participation Lake Monitoring Program . :;,,,.... .0/...• ;• . Swimming Lakes • ' . . .. . . ,•. n , . ' . 6. •..Acta " 'Full support of . <49(3) :Sufficient storage - .Protect existing Encourage public 'Intensive"or"Advanced,level of data • 'Riley swithming and designated. : <53(4) for a tegioiial 5.''' ''..:!:' beneficial wildlife participation as part of a collection per Metropolitan Council and , ,. ..:-••7„.: • Round •' fishing activities. - • <53(4) ;Abed. ' •' -.:-,,e------A-':uses . Use Attainebilifr: • MPCA recommendations,respectivelY. - f.„-.. • • , • ..,..p•qc..1 g Analysis-for each lake. - • •. If-.4-...?•4 i• ..- ,. • Flihin'g Lakes w1MDNR - ,..,-- z- ,•,., •,•::t.r--;::4' - .•:..:ri:7..:*!.. . , •. ••Strickintr•Otogranit • • •• .•- ..:v,,„ •:„. : .:i:..;.i •4 Hyland . Full support of designated ••' •_-62(5) . ..''..-.5' . -.. ...- . - Management or Intermediate"level of e Lotus fishing activities. a (5) :' •., • ,... ' data collection,per Metropolitan Council • Mittheil • . <55..(3) :•,: and MPCA recomMendations, .. .- . 1 • Red'Ock - a62(5):- • ...., respectively. • Storing 3" a6 7(5) ki • • -SUsan . . t• : .:-_-,es 0) -•• ••••• .. . . . . ..-...............: ... •-Fish"tialtes:WeilViDfin • . . • • .. . • si6ektim.Preciramt ,. . . - • • • a Dadkv Full Support Of designated - -si62-(5) • - •t : • • *Survey"or'Basic"level of data collection , • Lacy fishing.actiVities•,plus • ! <57(3) 'per Metropolitan Council and MPCA . 1:11"pe Marsh waterfowl and wildlife.habltat ... :•-•162.(5) . , t•r ' .... . recommendations,respectively: ' ' • Silver • • requirements. ' • ' .,s70(3) . ;,';-. .... , :• 1 "!:;•• . • .,.. .. - . . • ••.. .. . V-•., , . (1). The most restrictive water quality•goal•ct.the MDNF,?1,MPCA or FlP13:CWEI isIiiumedio govern thrOntry in this•colainn. " • —_, (2) Tei;,•, -barlson's Trophio State.indek.scoit.,.This indiXiiTtalculated from tria.ingrrelatio4hijis.beqiien•SUmnier Secdhi.disc.transparencies and epilimnetic concentrations of chlorophyll a and ..Cs total phesphorus. The Index results in scoring.genarallyin the range between zero and one hundrd,lowerscores being indicative of better lake water quality. ,,,.C.. (3) Water quality gohls for Lake Ann, Lake Lucy,Mitchell Lake,and Silver Lake reflect the'FfP:R.biri.i51310/.:At...,n0itliat'adatioli-if:Atirsient,lake water quality conditions;current conditions assumed to be best represented.by calibrated phosphorus.Mais;balince model predictiOns.oflannughYdrelogiknd.phasphorus loads reg-tiltin't Rom-presentwatershed land use during a year of average II' PreciPitation. --, - •,.4. : .zt :•-:... A.. --, • .------... (4) •The water quality goal for Lake Riley and Round Lake was established to provide Water qtility sufficiently good to fully suppertftirnming activities there,throughout the Summer[MPCA,1993. CleariWater:;Adt Report to Congress.'" • - . •• •.;.,.. .,... -:.) 1.- :.,::.f..'.1 .... .. . (5) ' Waterguality,g6als for 1-.1Yland;Lotus, Red Rook,,Staring,Susan, Duck;andyRide MarSh.laltt,A00Spond..tckEcological:..Use.dicgsiliOatiens•;set by.tha•MIDNR for lake fisheries and associated ' igtiatieiorrirminhieS,LSChvafi,:1992. An•ecOlaiiiCal classification of MilideStianakes:Witri7a'Ssadated,lish torrinianities. MDNR investigational Repon No.417.1. • . (6)' Mitehelllake it-staeked by a•local•properritifinerszessaciatiOn,rather thambyithell,MD.NR-Tiix.:12..*", •-•c-'' -' .1' ••• •.. ,: .'".„i•w. 4; . • -. , . . . . --..- ' :' -::'.- - -.. -. . • .. . . . • • ' • ' - '-'' - - ' - .C4,04440.0.9.0 .. ' ' ' Itiley..Piiitattiiii,BiglicCiiiiel'iliwitfii Dleiglit • . .. • . • - • • . • 230-‘ 3N329164/1/M11 Inventory and Ass lent. . • . . • . . . . • 0 . 0 . • Table.IA1 Desired Uses and Target Water Quality.Goals.for District Water Bodies; by Category • • Desired Total Desired Desired Phosphorus Chlorophyll a Secchi Disc • Concentration Concentration Transparency Water Quality Category Desired TSI (,ug/L) (ixg/L) (meters) Level I: • Full Support of Swimmable Use TSI553, [TP]530 [Chia]5.10 Sill.6 Level It:' " Full Support of Swimmable Use, But 57_>TSI>53 40:[TP]>30 15�jChla]>10 1.2<_SD<1.6 Threatened -, Level III: Partial Support of Swimmable Use 63 .TSI>57 60>_[TP]>40 = 274.chla]>15 0.8<_SD<1.:2 Level IV: Non-Support of Swimmable Use TSI>63' [TP]>60 [Chia]>27 SD <.0.8 "MPCA Use Support Classification for Swimming (MPCA Method) Relative to Carison's Trophic State Index by Ecoregion. The classification is for the Cbntral Hardwood Forests Region. N. . •• • .. ....... „ (3% ,. • . . Cepir;R6f 0.1996 ' • R:le7-P.Tgabq-Bluff Cieeli ti 1(er,l.ed Diairk . 2327' 129 .uvhtii Inventory and Asses —� CITY COUNCIL AGENDA DATE: SECTION: Reports of Director of Parks and Recreation April 13, 2004 DEPARTMENT: ITEM DESCRIPTION: ITEM NO.: Robert A. Lambert ISP Picha Property Option and X j { C. 1 Director of Parks &Recreation Proposed Purchase Agreement Requested Action Move to: Authorize payment of the sum of$2,800 for an option to purchase approximately 4.04 acres of land from the Picha Partnership and Albert and Abbie Picha, as per the Option Agreement dated April 13, 2004. Synopsis City staff is recommending entering into an option agreement with the owners of the 4.04 acre parcel of land adjacent to the Birch Island Woods Conservation Area in order to ensure that parcel is not sold prior to the City learning the results of a Natural and Scenic Area Grant application, as well the results of the May 11 referendum. The City has applied for a Natural and Scenic Area Grant which would provide fifty percent of the cost of that parcel; however, the results of the grant will not be determined until mid-to late- summer. The cost for the option is $2,800 which is the cost of the taxes on the property for this year. Background The City has received an appraisal of the property indicating the value at $800,000. The owners of the property have indicated they have a standing offer from a developer for that amount. City staff believe that it is very likely the property would be sold to a developer prior to knowing the results of the grant application without obtaining an option, which guarantees the City is able to purchase the property at a known value. Proposed Purchase Agreement Also attached to this memorandum is a draft of a proposed Purchase Agreement indicating the terms of the purchase of the property if the City is successful in obtaining a Grant and exercises the option to purchase. The cost of the option will be deducted from the $800,000 purchase price. The City is also agreeing to pay for the Phase 1 Evaluation of the property. The estimated cost for that service would be $1,900. Attachments: Purchase Agreement OPTION TO PURCHASE 1. Grant of Option. Picha Partnership, a Minnesota Partnership and Albert Picha Abbie Picha (husband and wife)(collectively hereinafter called the "Vendor") for and in the consideration of the sum of Two Thousand Eight Hundred Dollars ($2,800.00) and other valuable considerations to it in hand paid by City of Eden Prairie, a Municipal Corporation (hereinafter called the "Vendee") does hereby give and grant to the Vendee the exclusive right and option to elect to purchase at any time within one hundred ninety-five days (195) from the date hereof at and for the price of Eight Hundred Thousand Dollars ($800,000.00) payable in cash at the time and in the manner hereinafter provided, all of that certain tract or parcel of land,together with all buildings and improvements thereon and everything appurtenant thereto, situated in the County of Hennepin, State of Minnesota,which is more particularly described on Exhibit A hereto. 2. Exercise of Option. In case the Vendee shall elect to purchase the property, Vendee shall signify such election by executing the attached Purchase Agreement and serving the same upon Vendor within the time above limited by delivering it personally to a member or managing agent of the partnership; or if mailed in a sealed envelope by United States registered or certified mail, return receipt requested, postage prepaid; or if transmitted by facsimile, copy followed by mailed notice as above required; or if deposited cost paid with a nationally recognized, reputable overnight courier,properly addressed as follows: Picha Partnership do Terrance Picha 15641 Park Terrace Drive Eden Prairie,MN 55346 And Albert Picha do Dwight Picha 2227 Parkview Lane Woodbury,MN 55125 Notice shall be deemed effective on the earlier of the date of receipt or the date of deposit as aforementioned. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified, 10 days prior to the effective date of such change. 3. Termination of Option. If Vendee shall not elect to purchase the property, or should fail to complete the purchase within the time and in the manner provided in the attached Purchase Agreement, its option hereunder shall terminate without further action,time being of the essence of this agreement, and Vendee shall forfeit the said sum of Two Thousand Eight Hundred Dollars ($2,800.00)paid to Vendor. /, 7 VENDOR: Dated: PICHA PARTNERSHIP By Its Partner Taxpayer I D# STATE OF NIINNESOTA ) ) :SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2004, by ,a partner, of Picha Partnership, a Minnesota partnership,on behalf of the partnership. Notary Public The remainder of this page is intentionally left blank. '( Statement of Partnership Authority and Authorization 1. The name of the partnership is the APicha Partnership.@ 2. The street address of its chief executive office,including zip code, and one office in the State of Minnesota is: 15641 Park Terrace Drive Eden Prairie,Minnesota 55346 3. The names and mailing addresses, including zip codes, of all the partners are: Terrance Picha, 15641 Park Terrace Drive, Eden Prairie, Minnesota 55346 Ronald Picha, 6649 Birch Island Road, Eden Prairie, Minnesota 55346 David Picha, 1651 Fountain Avenue, Baton Rouge, Louisiana 70810 4. The name of the partner authorized to execute an instrument transferring real property held in the name of the partnership is: Terrance Picha 15641 Park Terrace Drive Eden Prairie, Minnesota 55346 5. The undersigned partners,being all of the partners of the Picha Partnership,hereby authorize the execution of that certain AOption to Purchase,@ attached hereto, in which the Picha Partnership and Albert and Abbie Picha grant to the City of Eden Prairie an option to purchase the property described therein. Date: Terrance Picha,Partner Date: Ronald Picha, Partner Date: David Picha, Partner VENDOR: Dated: Albert Picha Taxpayer I D# Dated: Abbie Picha Taxpayer I D# STATE OF MINNESOTA ) ) :SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this_day of ,2004, by Albert Picha and Abbie Picha,husband and wife. Notary Public The remainder of this page is intentionally left blank. /?e) Dated: VENDEE: CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens Its Mayor By Scott Neal Its City Manager Taxpayer I.D.# STATE OF MINNESOTA ) ) :SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2004, by Nancy Tyra- Lukens and Scott Neal,the Mayor and City Manager respectively, of the City of Eden Prairie, a Minnesota municipal corporation, on behalf of the corporation. Notary Public The remainder of this page is intentionally left blank. 7/ Statement of Partnership Authority and Authorization 1. The name of the partnership is the APicha Partnership.@ 2. The street address of its chief executive office, including zip code, and one office in the State of Minnesota is: 15641 Park Terrace Drive Eden Prairie, Minnesota 55346 3. The names and mailing addresses, including zip codes, of all the partners are: Terrance Picha, 15641 Park Terrace Drive, Eden Prairie, Minnesota 55346 Ronald Picha, 6649 Birch Island Road, Eden Prairie,Minnesota 55346 David Picha, 1651 Fountain Avenue, Baton Rouge, Louisiana 70810 4. The name of the partner authorized to execute an instrument transferring real property held in the name of the partnership is: Terrance Picha 15641 Park Terrace Drive Eden Prairie,Minnesota 55346 5. The undersigned partners,being all of the partners of the Picha Partnership,hereby authorize the execution of that certain AOption to Purchase,@ attached hereto, in which the Picha Partnership and Albert and Abbie Picha grant to the City of Eden Prairie an option to purchase the property described therein. Date: Terrance Picha,Partner Date: Ronald Picha, Partner Date: David Picha, Partner 1 ��- EXHIBIT A That part of the South 1/2 of the Northeast 1/4 of Section 4,Township 116 of Range 22 described as follows,to-wit; Commencing at a point on the South line of said S %2 of the NE'A where the Southerly right of way line of the Chicago,Milwaukee&St.Paul Railroad crosses the South line of said S '/2 of NE'A;thence running East on the South line of said S '/2 of the NE'A a distance of 1201 feet to a point;thence running at right angles North a distance of 235 feet to a point;thence South 70 degrees West 134.7 feet to a point;thence South 86 degrees 50 minutes West 147 feet to a point;thence North 55 degrees 50 minutes West 94.5 feet to a point;thence North 21 degrees 50 minutes West 68.5 feet to the Southerly right of way line of the Chicago,Milwaukee&St.Paul Railroad;thence Southwesterly along said right of way of said Railroad 877 feet to point of beginning. (73 PURCHASE AGREEMENT THIS AGREEMENT is made as of March _, 2004 between Picha Partnership, a Minnesota Partnership and Albert Picha and Abbie Picha, husband and wife ("collectively referred to as the "Seller") and City of Eden Prairie, a Minnesota municipal corporation("Buyer"). RECITALS Seller is the fee owner of certain real property located in Hennepin County, Minnesota, containing approximately 4.043 acres, as legally described on Exhibit A, together with all buildings and improvements constructed or located on the Land, with a street address of 6624 Birch Island Road, Eden Prairie, Minnesota and all easements and rights benefiting or appurtenant to the Land (collectively, the "Real Property"). Buyer desires to purchase the Real Property and other property and interests described in Section 1 of this Agreement (collectively, the "Property") from Seller, pursuant to the terms of this Agreement. Seller desires to sell the Property to Buyer, pursuant to the terms of this Agreement. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Sale of Property. Seller agrees to sell to Buyer and Buyer agrees to buy from Seller, the Property, which shall include all property described in this Section 1. 1.1 Real Property. The Real Property as described in the first Recital paragraph. 1.2 Personal Property. All of the personal property situated in or about the Real Property owned by Seller and used in the maintenance or operation of the Real Property("Personal Property"). 2. Purchase Price. The total purchase price ("Purchase Price") to be paid by Buyer to Seller for the Property shall be Eight Hundred Thousand and no/100 Dollars ($800,000.00). 3. Payment of Purchase Price. The Purchase Price shall be paid as follows: 3.1 Earnest Money and Option Price. One Thousand and no/100 Dollars ($1,000.00) as earnest money("Earnest Money")which Earnest Money shall be held by Commercial Partners Title Insurance Company("Escrow Agent") in an interest bearing escrow account, pursuant to the Escrow Agreement attached hereto as Exhibit B provided, however, that the fee for any such account shall be paid by Buyer. In addition there shall be credited toward the Purchase Price the Two Thousand Eight Hundred and no/100 Dollars 1 ? V ($2,800.00)paid by Buyer pursuant to the Option to Purchase 3.2 Closing Payment. Seven Hundred Ninety-Six Thousand Two Hundred and no/100 Dollars ($796,200.00) in cash or by wire transfer of U.S. Federal Funds to be received by Seller on or before 10:00 a.m. local time on the Closing Date. 4. Contingencies. Unless waived by Buyer in writing, Buyer's obligation to purchase the Property shall be subject to and contingent upon each of the following: 4.1 Representations and Warranties. The representations and warranties of Seller contained in this Agreement must be true now and on the Closing Date as if made on the Closing Date and Seller shall have delivered to Buyer at closing a certificate dated the Closing Date, signed by an authorized representative of Seller, certifying that such representations and warranties are true as of the Closing Date(the"Bring-down Certificate"). 4.2 Performance of Seller's Obligations. Seller shall have performed all of the obligations required to be performed by Seller under this Agreement, as and when required by this Agreement. 4.3 Title. Title shall have been found acceptable, or made acceptable, in accordance with the requirements and terms of Section 10 below. 4.4 Phase I. Buyer shall have approved, in Buyer's sole discretion, a Phase I Environmental Report (prepared in accordance with ASTM E 1527-00, or the current ASTM standard for Phase I environmental site assessments) to be prepared with regard to the Real Property by an environmental consultant reasonably acceptable to Buyer(the"Phase I"). Buyer shall cause the Phase I to be prepared at Buyer's cost and expense. Seller shall allow access to the Real Property for purposes of conducting the Phase I and shall cooperate in its preparation. Buyer shall have approved, in Buyer's sole discretion, a Phase I Environmental Report. 4.5 Testing. Buyer shall have determined, on or before the Contingency Date, that it is satisfied with the results of and matters disclosed by the Phase I and any other soil tests, engineering inspections, hazardous waste and environmental reviews of the Property, all such tests, inspections and reviews to be obtained at Buyer's sole cost and expense. 4.6 No Adverse Action. There shall not exist on the Closing Date any lawsuit, governmental investigation or other proceeding challenging the transaction contemplated in this Purchase Agreement, or which might adversely affect the right of Buyer to own, develop, or use the Property after the Closing Date for Buyer's intended use thereof for park and open space, nor shall any such action have been threatened or instituted. 75 The "Contingency Date" shall be that date which is thirty (30) days after the date this Purchase Agreement has been executed by both parties and delivered to Buyer (hereinafter the "Execution Date"). If any of the foregoing contingencies have not been satisfied on or before the stated date, then this Agreement may be terminated, at Buyer's option, by written notice from Buyer to Seller. Such notice of termination may be given at any time on or before the Closing Date. Upon such termination (a) Buyer and Seller shall execute a recordable written termination of this Agreement, which shall include Buyer's quit claim of any interest in and to the Property, (b)the Earnest Money and any interest accrued thereon shall be released to Buyer, and (c) upon such return, neither party will have any further rights or obligations regarding this Agreement or the Property. All the contingencies set forth in this Agreement are specifically stated and agreed to be for the sole and exclusive benefit of the Buyer and the Buyer shall have the right to unilaterally waive any contingency by written notice to Seller. 5. Buyer's Access and Investigation. Seller shall allow Buyer, and Buyer's agents, access to the Property without charge and at all reasonable times for the purpose of Buyer's investigation and testing the same. Buyer shall pay all costs and expenses of such investigation and testing and shall indemnify and hold Seller and the Property harmless from all costs and liabilities relating to Buyer's activities. Buyer shall further promptly repair and restore any damage to the Property caused by or occurring during Buyer's testing and return the Real Property and/or Personal Property to substantially the same condition as existed prior to such entry. 6. Closing. The closing of the purchase and sale contemplated by this Agreement(the "Closing") shall occur on that date which is ten (10) business days after the earlier of the satisfaction of the last of the contingencies set forth in Section 4 or the date when Buyer shall give notice to Seller that the contingencies which are to have been satisfied on the Contingency Date have been waived or satisfied (the "Closing Date") but in no event shall the Closing Date be later than a date which is fifteen(15)business days after the Contingency Date.. The Closing shall take place at 10:00 a.m. local time at the office of the Title in Minneapolis, Minnesota, or at such other place as may be agreed to. Seller agrees to deliver possession of the Property to Buyer on the Closing Date. 7. Seller's Closing Documents. On the Closing Date, Seller shall execute and/or. deliver to Buyer the following(collectively, "Seller's Closing Documents"): 7.1 Deed. A Warranty Deed, in recordable form reasonably satisfactory to Buyer, conveying the Real Property to Buyer, free and clear of all encumbrances, except the Permitted Encumbrances. 7.2 Bill of Sale. A Warranty Bill of Sale, in form reasonably satisfactory to Buyer, conveying the Personal Property to Buyer, free and clear of all encumbrances. 7.3 Title Policy. The Policy described in Section 10 of this Agreement, or a suitably marked up Title Commitment for the Policy initialed by Title,in the form required by this Agreement. l �� 7.4 Bring-down Certificate. A certificate reaffirming as of the Closing Date all of the Seller's Representations and Warranties contained in paragraph 12 of this Agreement. 7.5 Opinion of Seller's Counsel. An opinion of Seller's counsel, dated as of the Closing Date, in form reasonably satisfactory to Buyer, that (a) the Picha Partnership has been duly formed as a Minnesota Partnership and is in good standing under the laws of the State of Minnesota; (b) the Picha Partnership is duly qualified to transact business in the State of Minnesota; (c) Seller has the requisite partnership power and authority to enter into and perform this Agreement and those Seller's Closing Documents signed by it; (d)the Picha Partnership documents have been duly authorized by all necessary partnership action on the part of Seller and all Seller have been duly executed and delivered; (e) the execution, delivery and performance by Seller of such documents do not conflict with or result in, as applicable, a violation of Seller's Partnership Agreement or Bylaws, or any judgment, order or decree of any court or arbiter to which Seller is a party; and(f) such documents are valid and binding obligations of Seller, enforceable in accordance with their terms. 7.6 Seller's Affidavit. An Affidavit of Seller indicating that on the Closing Date (a) there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving Seller or the Real Property; (b) there has been no skill, labor or material furnished to the Real Property for which payment has not been made or for which mechanic's liens could be filed; and (c) there are no other unrecorded interests in the Real Property, together with whatever standard owner's affidavit and/or indemnity (ALTA Form) which may be required by Title to issue the Policy described in Section 10 of this Agreement. 7.7 FIRPTA Affidavit. A non-foreign affidavit, properly executed and in recordable form, containing such information as is required by IRC Section 1445(b)(2) and its regulations. 7.8 IRS Reporting Form. The appropriate Federal Income Tax reporting form, if any, as required. 7.9 Other Documents. All other documents reasonably determined by Buyer to be necessary to transfer the Property to Buyer free and clear of all encumbrances, except the Permitted Encumbrances. 8. Buyer's Closing Documents. On the Closing Date, Buyer will execute and/or deliver to Seller the following(collectively, "Buyer's Closing Documents"): 17.7 8.1 Purchase Price. The Purchase Price, by wire transfer of U.S. Federal Funds or by certified check to be received in Title's trust account or delivered to Seller on or before 10:00 a.m. local time on the Closing Date. 8.2 Opinion of Buyer's Counsel. An opinion of Buyer's counsel, dated as of the Closing Date, in form reasonably satisfactory to Seller, that (a) Buyer has been duly formed municipal corporation under the laws of the State of Minnesota; that Buyer is duly qualified to transact business in the State of Minnesota; (b) Buyer has the requisite corporate power and authority to enter into this Agreement and the Buyer's Closing Documents signed by it; (c) such documents have been duly authorized by all necessary City Council action and have been duly executed and delivered; (d) the execution, delivery and performance by Buyer of such documents do not conflict with or result in a violation of state municipal law or any judgment, order or decree of any court or arbiter to which Buyer is a party; and (e) such documents are valid and binding obligations to Buyer, enforceable in accordance with their terms. 8.3 Title Documents. Such Affidavits of Purchaser, Certificates of Value or other documents as may be reasonably required by Title in order to record the Seller's Closing Documents and issue the Policy. 9. Proration. Seller and Buyer agree to the following prorations and allocation of costs regarding this Agreement: 9.1 Title Insurance and Closing Fee. Seller will pay all costs of the Title Evidence described in Section 10 of this Agreement and the fees charged by Title for any escrow required regarding Buyer's Objections. Buyer will pay the premium or cost of the Policy and all additional premiums required for the issuance of any mortgagee's title insurance policy required by Buyer. Seller and Buyer will each pay one-half of any reasonable and customary closing fee or charge imposed by any closing agent designated by Title. 9.2 Deed Tax. Seller shall pay all state deed tax regarding the Warranty Deed to be delivered by Seller under this Agreement. 9.3 Real Estate Taxes and Special Assessments. At Closing,the Purchase Price shall be adjusted as follows: 9.4.1 Current Year's Taxes. All real property taxes which have become a lien on the Property ("Taxes") and which are due and payable prior to the year in which Closing occurs, shall be paid by Seller at or prior to Closing. All Taxes which are due and payable in the year in which Closing occurs shall be prorated to the Closing Date and Seller's portion shall be paid by Seller at Closing. This proration shall result in Seller's payment of Taxes from January 1 to the date ) 7g immediately prior to the Closing Date and Buyer's payment of Taxes from the Date of Closing to December 31. 9.4.2 Assessments. There are no assessments levied or pending against the Real Property as of March 10, 2004. Buyer shall be responsible for payment of any assessments levied or which become pending after said date. 9.4.3 Tax Amount Unknown. If the Closing shall occur before the tax rate is fixed for the then current year,the apportionment of Taxes shall be made upon 110% of the most current estimate of such Taxes and Assessment installments, assuming for estimating purposes that the Real Property will be fully assessed. Seller shall deposit such sum in escrow and all interest earnings on such deposit will be paid to Seller. Title will retain such deposit to pay Seller's share of the actual Taxes and installments of Assessments (including interest) payable therewith] and shall pay any excess over to Seller. 9.5 Recording Costs. Seller will pay the cost of recording all documents necessary to place record title in the condition warranted by Seller and requested by Buyer in this Agreement. Buyer will pay the cost of recording all other documents. 9.6 Other Costs. All other operating costs of the Property will be allocated between Seller and Buyer as of the Closing Date, so that Seller pays that part of such other operating costs payable before the Closing Date, and Buyer pays that part of such operating costs payable from and after the Closing Date. 9.7 Attorneys' Fees. Each of the parties will pay its own attorneys' fees, except that a party defaulting under this Agreement or any closing document will pay the reasonable attorneys' fees and court costs incurred by the nondefaulting party to enforce its rights regarding such default. 10. Title Examination. Title examination will be conducted as follows: 10.1 Seller's Title Evidence. Seller shall, within ten (10) days after the date of this Agreement, furnish to Buyer, at Seller's cost and expense (except as set forth with respect to the Survey), the following (collectively, "Title Evidence"): 10.1.1 Title Insurance Commitment. A commitment("Title Commitment") for the most current ALTA Form B Owner's Policy of Title Insurance insuring title to the Real Property, deleting standard exceptions and including affirmative insurance regarding zoning, contiguity, appurtenant easements and such other matters as may be identified by Buyer, in the amount of the Purchase Price, issued by Commercial Partners Title Insurance Company ("Title"). The Title Commitment will commit Title to insure title to the Property subject only to the Permitted Encumbrances. Seller shall also deliver to Title or Buyer an Abstract of Title to the Real Property certified to a current date to include all appropriate judgment and bankruptcy searches. 10.1.2 Survey. Seller shall pay for a survey prepared by a Registered Land Surveyor properly licensed to practice in the State of Minnesota in form acceptable to Buyer (the "Survey") showing the (i) the perimeter description of the Property, (ii) the boundary of the Real Property, and (iii) easements, utility lines, encroachments and other matters affecting title to the Real Property. If Buyer directs to have the Survey certified as ALTA/ASCM survey Buyer shall pay the additional cost for such certifications and such other matters Buyer directs to have shown on the Survey. The Deed to be delivered by Seller to Buyer at the Closing will contain the legal description of the Property as shown on the Survey and approved by Buyer and Title Company. The Survey shall be prepared in accordance with the requirements set forth above and as otherwise required by Title in order to allow Title to issue an owner's policy of title insurance with regard to the Real Property without any exception for survey matters. 10.1.3 UCC Searches. A report of UCC Searches made of the Uniform Commercial Code records of the Secretary of State of Minnesota, made by either said Secretary of State or by a search firm acceptable to Buyer, showing no UCC filings regarding any of the Property. 10.1.4 Encumbrances. A copy of every document referenced as an exception to the title of the Real Property (including without limitation the Permitted Encumbrances) as described in the Title Commitment. 10.2 Buyer's Objections. Within ten(10) days after receiving the last of the Title Evidence, Buyer shall make written objections ("Objections") to the form and/or contents of the Title Evidence. Buyer's failure to make Objections within such time period will constitute a waiver of Objections. Any matter shown on the Title Evidence and not objected to by Buyer shall be a "Permitted Encumbrance" pursuant to this Agreement. Seller will have 60 days after receipt of the Objections to cure the Objections, during which period the Closing will be postponed as necessary. Seller shall use its best efforts to correct any Objections. To the extent an Objection can be satisfied by the payment of money,Buyer shall have the right to apply a portion of the cash payable to Seller at the Closing to satisfaction of such Objection and the amount so applied shall reduce the amount of cash payable to Seller at the Closing. If the Objections are not cured within such 60 day period, Buyer will have the option to do any of the following: 10.2.1 Termination. Terminate this Agreement and receive a refund of the Earnest Money and the interest accrued and unpaid on the Earnest Money,if any. 10.2.2 Escrow for Cure. Withhold from the Purchase Price an amount which, in the reasonable judgment of Title, is sufficient to assure cure of the Objections. Any amount so withheld will be placed in escrow with Title, pending such cure. If Seller does not cure such Objections within 90 days after such escrow is established, Buyer may then cure such Objections and charge the costs of such cure (including reasonable attorneys' fees) against the escrowed amount. If such escrow is established,the parties agree to execute and deliver such documents as may be reasonably required by Title, and Seller agrees to pay the charges of Title to create and administer the escrow. 10.2.3 Waiver. Waive the Objections and proceed to close. 10.3 Title Policy. Seller will furnish the Policy to Buyer at closing or a suitably marked up Title Commitment initialed by Title undertaking to issue the Policy in the form required by the Title Commitment as approved by Buyer. 11. Operation Prior to Closing. During the period from the date of Seller's acceptance of this Agreement to the Closing Date (the "Executory Period"), Seller shall operate and maintain the Property in the ordinary course of business in accordance with prudent, reasonable business standards, including the maintenance of adequate liability insurance and insurance against loss by fire, windstorm and other hazards, casualties and contingencies, including vandalism and malicious mischief. However, Seller shall execute no contracts, leases or other agreements regarding the Property during the Executory Period that are not terminable on or before the Closing Date,without the written consent of Buyer,which consent maybe withheld by Buyer in its sole discretion. 12. Representations and Warranties by Seller. Seller represents and warrants to Buyer as follows: 12.1 Partnership; Authority. (a) the Picha partnership is duly organized partnership and is in good standing under the laws of the State of Minnesota; (b)the Picha Partnership is duly qualified to transact business in the State of Minnesota; and (c) Seller has the requisite partnership power and authority to enter into and perform this Agreement and those Seller's Closing Documents signed by it. Such documents have been (or will have been) duly authorized by all necessary partnership action on the part of the Seller and have been (or will have been) duly executed and delivered. Such 1c' execution, delivery and performance by Seller of such documents does not (and will not) conflict with or result, as applicable, in a violation of Seller's Partnership Agreement or Bylaws, or any judgment, order, or decree of any court or arbiter to which Seller is a party. Such documents are (and will be) valid and binding obligations of Seller, and are enforceable in accordance with their terms. 12.2 Title to Real Property. Seller owns the Real Property, free and clear of all encumbrances except the Permitted Encumbrances identified on Exhibit C attached hereto(the"Permitted Encumbrances"). 12.3 Title to Personal Property. Seller owns the Personal Property, free and clear of all encumbrances. 12.4 Environmental Laws.No toxic or hazardous substances or wastes,pollutants or contaminants (including, without limitation, asbestos, urea formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum products including gasoline, fuel oil, crude oil and various constituents of such products, and any hazardous substance as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Section 9601-9657, as amended) have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the Property nor has any activity been undertaken on the Property that would cause or contribute to (a)the Property to become a treatment, storage or disposal facility within the meaning of, or otherwise bring the Property within the ambit of, the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Section 6901 et seq., or any similar state law or local ordinance, (b) a release or threatened release of toxic or hazardous wastes or substances, pollutants or contaminants, from the Property within the meaning of, or otherwise bring the Property within the ambit of, CERCLA,or any similar state law or local ordinance,or(c)the discharge of pollutants or effluents into any water source or system, the dredging or filling of any waters or the discharge into the air of any emissions, that would require a permit under the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq., or the Clean Air Act, 42 U.S.C. Section 7401 et seq., or any similar state law or local ordinance. There are no substances or conditions in or on the Property that may support a claim or cause of action under RCRA, CERCLA or any other federal, state or local environmental statutes, regulations, ordinances or other environmental regulatory requirements, including without limitation, the Minnesota Environmental Response and Liability Act, Minn. Stat. 115B ("MERLA") and the Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. 115C. No above ground or underground tanks are located in or about the Property or have been located under, in or about the Property and have subsequently been removed or filled. 2 12.5 Rights of Others to Purchase Property. Seller has not entered into any other contracts for the sale of the Property, nor are there any rights of first refusal or options to purchase the Property or any other rights of others that might prevent the consummation of this Agreement. 12.6 Seller's Defaults. Seller is not in default concerning any of its obligations or liabilities regarding the Property. 12.7 FIRPTA. Seller is not a "foreign person," "foreign partnership," "foreign trust" or "foreign estate" as those terms are defined in Section 1445 of the Internal Revenue Code. 12.8 Proceedings. There is no action, litigation, investigation, condemnation or proceeding of any kind pending or threatened against Seller or any portion of the Property. 12.9 Agents and Employees. No management agents or other personnel employed in connection with the operation of the Property have the right to continue such employment after the Closing Date. There are no claims for brokerage commission or other payments with respect to the existing Property, including leases which will survive and remain unpaid after the Date of Closing. 12.10 As is Condition.. The Property being purchased by Buyer,including the dwelling, other improvements,fixtures, appliances and personal property is not new. Except as specifically set forth elsewhere in this Purchase Agreement Buyer understands and agrees: (i)that no other representations have been made regarding the Property by the Seller and(ii)Buyer accepts the Property"as is". This paragraph shall survive the delivery of the warranty deed. Seller will indemnify Buyer, its successors and assigns, against, and will hold Buyer, its successors and assigns, harmless from, any expenses or damages including reasonable attorneys' fees, that Buyer incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after Closing. Each of the representations and warranties herein contained shall survive the Closing. Wherever herein a representation is made to the "knowledge" of Seller, such representation is limited to the knowledge of the partners of Picha Partnership. Consummation of this Agreement by Buyer with knowledge of any breach of such representations and warranties by Seller will not constitute a waiver or release by Buyer of any claims due to such breach. 13. Representations and Warranties by Buyer. Buyer represents and warrants to Seller that Buyer is municipal corporation duly formed under the laws of the State of Minnesota; that Buyer is duly qualified to transact business in the State of Minnesota; that Buyer has the requisite municipal power and authority to enter into this Agreement and the Buyer's Closing Documents signed by it; such documents have been duly authorized by all necessary municipal action on the 3 part of Buyer and have been duly executed and delivered; that the execution, delivery and performance by Buyer of such documents do not conflict with or result in violation of state municipal law or any judgment, order or decree of any court or arbiter to which Buyer is a party; such documents are valid and binding obligations of Buyer, and are enforceable in accordance with their terms. Buyer will indemnify Seller,its successors and assigns,against,and will hold Seller,its successors and assigns, harmless from, any expenses or damages, including reasonable attorneys' fees, that Seller incurs because of the breach of any of the above representations and warranties, whether such breach is discovered before or after closing. Each of the representations and warranties herein contained shall survive the Closing. Consummation of this Agreement by Seller with knowledge of any breach of such warranties and representations by Buyer will not constitute a waiver or release by Seller of any claims due to such breach. 14. Damage. If,prior to the Closing Date,all or any part of the Property is substantially damaged by fire, casualty, the elements or any other cause, Seller shall immediately give notice to Buyer of such fact and at Buyer's option(to be exercised within 30 days after Seller's notice), this Agreement shall terminate, in which event neither party will have any further obligations under this Agreement and the Earnest Money,together with any accrued interest, shall be refunded to Buyer. 15. Condemnation. If, prior to the Closing Date, eminent domain proceedings are commenced against all or any part of the Property by any entity except Buyer, Seller shall immediately give notice to Buyer of such fact and at Buyer's option(to be exercised within 30 days after the date of Seller's notice), this Agreement shall terminate, in which event neither party will have further obligations under this Agreement and the Earnest Money, together with any accrued interest, shall be refunded to Buyer. If Buyer shall fail to give such notice then there shall be no reduction in the Purchase Price, and Seller shall assign to Buyer at the Closing Date all of Seller's right, title and interest in and to any award made or to be made in the condemnation proceedings. Prior to the Closing Date, Seller shall not designate counsel,appear in, or otherwise act with respect to such condemnation proceedings without Buyer's prior written consent. 16. Broker's Commission. Seller and Buyer represent and warrant to each other that they have dealt with no brokers, finders or the like in connection with this transaction, and agree to indemnify each other and to hold each other harmless against all claims, damages, costs or expenses of or for any other such fees or commissions resulting from their actions or agreements regarding the execution or performance of this Agreement, and will pay all costs of defending any action or lawsuit brought to recover any such fees or commissions incurred by the other party, including reasonable attorneys' fees. 17. Mutual Indemnification. Seller and Buyer agree to indemnify each other against, and hold each other harmless from, all liabilities (including reasonable attorneys' fees in defending against claims) arising out of the ownership, operation or maintenance of the Property for their respective periods of ownership. Such rights of indemnification will not arise to the extent that(a) the party seeking indemnification actually receives insurance proceeds or other cash payments directly attributable to the liability in question, (net of the cost of collection, including reasonable attorneys' fees) or (b) the claim for indemnification arises out of the act or neglect of the party seeking indemnification. If and to the extent that the indemnified party has insurance coverage, or the right to make claim against any third party for any amount to be indemnified against as set forth 1 above, the indemnified party will, upon full performance by the indemnifying party of its indemnification obligations, assign such rights to the indemnifying party or, if such rights are not assignable, the indemnified party will diligently pursue such rights by appropriate legal action or proceeding and assign the recovery and/or right of recovery to the indemnifying party to the extent of the indemnification payment made by such party. 18. Assignment. Either party may assign its rights under this Agreement with the prior written consent of the other party, before or after Closing. Any such assignment will not relieve such assigning party of its obligations under this Agreement. 19. Survival. All of the terms of this Agreement will survive and be enforceable after the Closing. 20. Notices. Any notice required or permitted to be given by any party upon the other is given in accordance with this Agreement if it is directed to Seller by delivering it personally to an officer of Seller, or if it is directed to Buyer,by delivering it personally to an officer of Buyer, or if mailed in a sealed wrapper by United States registered or certified mail, return receipt requested, postage prepaid, or if deposited cost paid with a nationally recognized,reputable overnight courier, properly addressed as follows: If to Seller: Picha Partnership 15641 Park Terrace Drive Eden Prairie,MN 55346 Attn: Terrance Picha AND Albert Picha do Dwight Picha 2227 Parkview Lane Woodbury,MN 55125 If to Buyer: City of Eden Prairie 8080 Mitchell Road Eden Prairie,Minnesota 55344 Attn: Robert Lambert Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit as aforesaid, provided, however, that if notice is given by deposit, that the time for response to any notice by the other party shall commence to run one business day after any such deposit. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified, 10 days prior to the effective date of such change. 21. Captions. The paragraph headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement and are not to be considered in interpreting this Agreement. 22. Entire Agreement Modification. This written Agreement constitutes the complete agreement between the parties and supersedes any prior oral or written agreements between the parties regarding the Property. There are no verbal agreements that change this Agreement and no waiver of any of its terms will be effective unless in a writing executed by the parties. 23. Binding Effect. This Agreement binds and benefits the parties and their successors and assigns. 24. Controlling Law. This Agreement has been made under the laws of the State of Minnesota, and such laws will control its interpretation. 25. Remedies. If Buyer defaults under this Agreement, Seller shall have the right to terminate this Agreement by giving written notice to Buyer. If Buyer fails to cure such default within thirty (30) days of the date of such notice, this Agreement will terminate, and upon such termination Seller may obtain and retain the Earnest Money as liquidated damages, time being of the essence of this Agreement. The termination of this Agreement and retention of the Earnest Money will be the sole remedy available to Seller for such default by Buyer, and Buyer will not be liable for damages or specific performance. If Seller defaults under this Agreement,this provision does not preclude Buyer from seeking and recovering from Seller damages for nonperformance or specific performance of this Agreement. IN AGREEMENT, Seller and Buyer have executed this Agreement as of the date first written above. SELLER: Dated: PICHA PARTNERSHIP By Its Partner Taxpayer I D# The remainder of this page is intentionally left blank. SELLER: Dated: Albert Picha Taxpayer I D# Dated: Abbie Picha Taxpayer I D# The remainder of this page is intentionally left blank. ! 7 Dated: BUYER: CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens Its Mayor By Scott Neal Its City Manager Taxpayer I.D. # ep\parks\picha\purchase.agreement-optionparce1032404 The remainder of this page is intentionally left blank. EXHIBIT A - Legal Description of the Land(first Recital paragraph) EXHIBIT B - Escrow Agreement EXHIBIT C - Permitted Encumbrances(Section 12.2) EXHIBIT A LEGAL DESCRIPTION That part of the South 1/2 of the Northeast 1/4 of Section 4,Township 116 of Range 22 described as follows,to-wit;Commencing at a point on the South line of said S '/2 of the NE 1/4 where the Southerly right of way line of the Chicago,Milwaukee&St.Paul Railroad crosses the South line of said S 'A of NE 1/4;thence running East on the South line of said S 'A of the NE 1/4 a distance of 1201 feet to a point;thence running at right angles North a distance of 235 feet to a point;thence South 70 degrees West 134.7 feet to a point;thence South 86 degrees 50 minutes West 147 feet to a point;thence North 55 degrees 50 minutes West 94.5 feet to a point;thence North 21 degrees 50 minutes West 68.5 feet to the Southerly right of way line of the Chicago,Milwaukee&St.Paul Railroad;thence Southwesterly along said right of way of said Railroad 877 feet to point of beginning. l �� EDIT B ESCROW AGREEMENT The undersigned, Commercial Partners,LLC,("Title Company"), acknowledges receipt of$1,000 (the"Earnest Money")to be held by it pursuant to the Purchase Agreement to which this Escrow Agreement is attached. Title Company will hold the Earnest Money(hereinafter the "Earnest Money")in accordance with the terms of the Purchase Agreement and disburse the same strictly in accordance with such terms. Title Company will invest the Earnest Money in such interest-bearing accounts, instruments, corporate paper, or money market funds as approved by both Buyer and Seller,Interest will accrue for the benefit of Buyer,unless the Purchase Agreement is terminated by reason of the default of Buyer, in which case the interest will be paid to Seller.Prior to the Contingency Date,Buyer may direct the Title Company to return the Earnest Money to it if Buyer elects to terminate the Purchase Agreement. Title Company is not responsible for any decision concerning performance or effectiveness of the Purchase Agreement or for resolution of any disputes concerning the Purchase Agreement. Title Company is responsible only to act in accordance with the joint and mutual direction of both Seller and Buyer,or in lieu thereof,the direction of a court of competent jurisdiction except as to Buyer's right to direct the return of the Earnest Money prior to the Contingency Date. Seller and Buyer will hold Title Company harmless from all claims for damages arising out of this Escrow Agreement and do hereby agree to indemnify Title Company for all costs and expenses in connection with this escrow,including court costs and attorneys' fees,except for Title Company's failure to account for the funds held hereunder, or acting in conflict with the terms hereof. The fees and charges of the Title Company will be paid by Seller. This Escrow Agreement is dated this_day of ,2004. COMMERCIAL PARTNERS,LLC By Its i • EXHIBIT C PERMITTED ENCUMBRANCES 1. Sixty-six foot strip of land conveyed to the City of Eden Prairie on December 27, 1954 and recorded in Book 2069 of Deeds,page 25; ep\parks\picha\purchase.agreement-optionparce1032404 t q ' E CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar April 13,2004 DEPARTMENT/DIVISION: ITEM NO.: ITEM DESCRIPTION• 'Through: Robert A.Lambert- -�-• Director of Parks&Recreation Award Bid for City Center Parking Lot - . . From: Stu Fox,Manager of Construction and Playground Site Preparation Parks and Natural Resources Requested Action Move to: Approve the low bid of Sunram Construction in an amount not to exceed $229,545.14 for construction of the City Center Police parking lot and the development of the site for relocating the School District's playground for the Education Center. Synopsis The City received four bids for the construction of the City Center parking lot and the relocation of the playground site for the School District's Education Center ranging from$316,514.32 to Sunram Construction's low bid of$229,545.14. The breakdown in cost was$109,793.49 for the Police parking lot and$119,751.65 for the playground relocation. Background As a part of the negotiation for extending a lease with C.H. Robinson,the City committed to providing sixty additional parking places on the west end of the building for C.H. Robinson. In order to accomplish this parking lot expansion,the City committed to relocating the School District's playground site from the parking lot on the west side of the building to the open space outlot on the north side of the building. The City will be required to construct a significant retaining wall in order to ensure this site is ADA accessible. Due to a shortage of parking spaces for the City Center,the City has extremely limited use of the Heritage Rooms,the Garden Room and other meeting rooms during the day. The expansion of the parking lot to serve the Police Department will accomplish two goals: 1. It will generate the amount of fill needed to develop the playground site for the School District. 2. It will provide 33 additional parking places for the City Center. Staff anticipates this project being completed by mid-July,2004. Attachment: Bid Summary p I I Engineering•Surveying 7.1) ;) Landscape Architecture April 9,2004 r � J City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 Attn: Bob Lambert • Re: City Center Parking Expansion and Playground Relocation Dear Mr. Lambert: Bids were received and opened at 10:00 a.m. on Thursday April 8, 2004,for the above referenced project.The bids are shown on the attached Summary of Bids. The Engineer's Estimate was $235,588.00. The low bidder, Sunram Construction, Inc. came in 2.6%below the Engineer's Estimate at$229,545.14. The recommendation is made that the City Council award this project to Sunram Construction, Inc., for the bid amount of $229,545.14. This recommendation considers that the City Council reserves the right to waive minor irregularities and further reserves the right to award the contract in the best interests of the City. Respectfully, HANSEN THORP P LLINEN OLSON, INC. Charles J. Howley,P.E. Project Engineer CJH:ks enclosures 7510 Market Place Drive Eden Prairie, MN 55344. 952-829-0700 952-829-7806 fax HANSEN THORP PELLINEN OLSON, INC. 11�7 Engineering•Surveying ")- ;1-Landscape Architecture SUMMARY OF BIDS LJ DESCRIPTION: City Center Parking Expansion and Playground Relocation BIDS OPENED: April 8,2004 • CONSULTING ENGINEER:Hansen Thorp Pellinen Olson Inc. CHECKED BY: Hansen Thorp Pellinen Olson Inc. BIDDER BID SECURITY TOTAL BID Sunram Construction,Inc. Yes $229,545.14 Bituminous Roadways, Inc. Yes $238,033.14 DMJ Corporation Yes $260,115.50 L.S.Black Constructors,Inc. Yes $316,514.32 • . The undersigned recommend award of Contract to: Sunram Construction,Inc. as the lowest responsible bidder for this construction project. Charles J. Howley, . . Robert Lambert Consulting Engineer Parks and Recreation Director 7510 Market Place Drive Eden Prairie, MN 55344- 952-829-0700. 952-829-7806 fax HANSEN THORP PELLINEN OLSON, INC.