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City Council - 05/03/2005
AGENDA EDEN PRAIRIE CITY COUNCIL WORKSHOP & OPEN FORUM/OPEN PODIUM TUESDAY,MAY 3, 2005 CITY CENTER 5:00—6:25 PM,HERITAGE ROOM II 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher, Ron Case, 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, Community Development Director Janet Jeremiah, Communications Manager Pat Brink, Assistant to the City Manager Michael Barone, City Attorney Ric Rosow, and Recorder Carol Pelzel Heritage Room H I. BUDGET INFORMATION - Sue Kotchevar, Finance Manager A. Discussion of Budget & Finance Philosophies of the City B. Review 2004 City Financial Statements Council Chamber II. OPEN FORUM A. Tom Briant - Community Theatre & Arts Center III. OPEN PODIUM IV. ADJOURNMENT a 2006/2007 Budget Budget Calendar Apr 2005 opt 2oa5 S M T W T F S April S M T W T F S 1 f p 2.5 Week o A r 1125.E 1 3 4 5 6 7 8 9 2 3 4 5 6 7 8 10 It 12 13 14 15 16 Distribute Work Plan Information, Budget Workpapers, 9 10 11 12 13 14 15 17 18 19 20 21 22 23 CIP Workpapers, and Fee Resolution Worlpapers 16 17 18 19 20 21 22 24 26 27 28 29 30 23 24 25 26 27 28 29 30 31 May 2005 May Nov 2005 S M 7 W T F 5 S M T W T F S 1 2 4 5 6 7 3 Council Budget Workshop 1 2 3 4 5 8 9 10 11 12 13 14 17 Council In-Service:Assesin and Taxation 7 8 9 10 11 12 IS iG� 18 i9 20 21 g 13 14 15 lb 17 18 19 22 23 24 25 26 27 28 20 21 22 23 24 25 26 29 30 31 June 27 28 29 30 6 Week of June 6: Budget, CIP, and Fee Resolution Workpapers Due JunW T F S 17 Division Budget Meetings-June 27-July 15 S M T W T Dee 2005 s M T IF S 1 2 3 4 1 2 3 5 7 8 9 l0 11 4 6 7 8 9 10 12 13 14 15 16 17 18 July 11 12 13 14 15 16 17 19 20 21 22 23 24 25 18 19021 22 23 24 26 28 29 30 18 Week of July 18-Department Head Budget Meetings 25 26 27 28 29 30 31 19 Council Utilities and Liquor Operations Workshop Jul 2005 August Jan 2006 S M T W T F S S M T W I F S 1 2 2 Council Budget Workshop 1 2 3 4 5 6 7 3 4 5 6 7 8 9 8 9 10 11 12 13 14 10 11 12 13 14 15 16 16 Council Budget and CIP Workshops 15 16 17 18 19 20 21 17002021 22 23 22 23 24 25 26 27 28 24 25 26 27 28 29 30 29 30 31 31 September Aug 2005 6 Council Adopt Preliminary Tax Levy reb 2006 S M T W T F S S M T W I F S l 3 4 5 6 1 2 3 4 7 8 9 10 11 12 13 5 6 7 8 9 10 11 14 15 17 18 19 20 December 12 13 14 15 16 17 18 21 22 23 24 25 26 27 19 20 21 22 23 24 25 28 29 30 31 5 Tentative Schedule Truth-inTaxation Hearing 26 27 28 Capital Improvement Plan Public Hearing 20 Council Adopt Final Tax Levy and Budget Sep 2005 Council Adopt Capital Improvement Plan Mar 2006 S M T W I F S S M T W T F S 1 2 3 1 2 3 4 4 5 O> 7 8 9 10 5 6 7 8 9 10 11 11 12 13 14 15 16 17 12 13 14 15 16 17 18 18 19 20 21 22 23 24 19 20 21 22 23 24 25 25 26 27 28 29 30 26 27 28 29 30 31 x City of Eden Prairie 2006/2007 Budget Council Workshop UIYeYlu�ll�fi�u■®I�II May 31d,2005 Agenda ■ Budget Process ■ Budget and Finance Policies ■ 2006/2007 Revenues and Expenses ■ 2004 Financial Results ■ Council Discussion Budget Process 1 ■ Develop Broad Objectives u ■ Develop Management Strategies ■ Review Financial Policies ■ Develop a Process for Preparing the Budget ■ Develop and Evaluate Financial Options ■Make Choices Necessary to Adopt the Budget Budget Process " ■ Develop Broad Objectives ■Strategic Plan 3 .Preserve and Enhance High Quality of Life .Deliver High Quality Public Services Effectively and Efficiently .Create and Promote a Positive Community Identity .Manage Resources Responsibly ■ Develop Management Strategies ■Complete Department Work Plans ■Continue to Improve City Business Practices .Migrate Services to the Web to Provide Faster, Cheaper,and More Convenient Services ■Maintain Existing Service Levels ■Keep Control Over Employee Head Count ■Require a Separate Review and Discussion for Any Proposed New Programs or Expansion of Existing Programs 2 ■ Develop Management Strategies n ■Maintain Aaa Bond Rating ■Maintain Reasonable Debt Levels ■Continue to Address Funding Options of the Capital Improvement Plan(CIP) ■Include Transportation Projects/Funding in the the CIP ■Incorporate Facilities Assessments into the Capital Improvement Plan ■Update Project Prioritization Categories ■ Review Financial Policies ■ Develop a Process for Preparing the Budget ■Budget Calendar ■ Develop and Evaluate Financial Options ■Conduct Long-Range Financial Planning ■Develop a Capital Improvement Plan ■Prepare Revenue and Expenditure Projections ■Make Choices Necessary to Adopt the Budget Budget and Finance Policies w, It1611tM r 3 Policies ■Sets Forth the Basic Framework for the Overall Fiscal Management of the City ■Operates Independently of Changing Circumstances and Conditions ■Assists the Decision Making Process of the City Council and the Administration ■Provides Stability and Flexibility to City Operations Policy Categories ■Operating Budget Policies ■ Revenue Polices ■ Reserve Policies ■ Debt Policies ■Capital Improvement Policies Operating Budget Policies ■The Budget Should be Balanced using the Following Strategies as Necessary: ■Improve Productivity ■Reduce or Eliminate Programs ■Lastly,Increase Fees and/or Taxes ■ Plan for Balanced Budget Model i 4 Revenue Policies ■ Budget Tax Revenue at 95%of Amounts Levied ■Review Fees and Charges ■ Use One-time Revenue for One-Time Expenditures Reserve Policies ■Maintain Unreserved—Designated for Working Capital Fund Balance at 30%to 40% of General Fund Expenditures ■Maintain Revenue Stabilization Fund by Reserving Accelerated Building Permit Revenue for Future Operations Debt Policies ■City Will Confine Long-Term Debt to Capital Improvements or Projects that Cannot be Financed from Current Revenues ■City Will Maintain Relationships with All Bond Rating Agencies 5 Capital Improvement Policies ■Maintain Five-Year Capital Improvement Plan to Provide for Capital Asset Acquisition, Maintenance, Replacement,and Retirement ■ Use Pay-As-You-Go Method for Capital Assets Except for Projects that Cannot be Financed from Current Revenues ■Support a Scheduled Level of Maintenance and Replacement of Assets ■Liquor Profits are a Dedicated Funding Source for the Capital Improvement Plan General Fund Revenue and Expense ■Revenue Projections ■The Governor's Proposed Budget or Some Form of Levy Limits May Pass .Tax revenue is 75%of the general fund resources that pays for City services .The provisions of the final bill will be incorporated into the City's budget as soon as they are known ■Other Revenues are Expected to be Comparable with the Amounts Budgeted in 2005 6 Current House Tax Bill—H.F.No. 785 ■ Freezes property tax levies for taxes payable in 2006. ■ A City may exceed its payable 2005 levy by referendum. ■ Establishes a system of taxpayer satisfaction surveys.Provides for a survey form to be enclosed with each taxpayers truth-in-taxation statement, allowing taxpayers to respond indicating their satisfaction or dissatisfaction with the preliminary levy that has been certified by the county,and in some cases by the city. ■ Provides that beginning with taxes payable in 2007,if more than 20 percent of the survey responses indicate taxpayer dissatisfaction,a referendum election will be triggered.If the referendum election is not successful,the taxing authority's levy will be reduced to its levy amount for the previous year is ■Generally prohibits cities from incurring new debt obligations payable in 2006,unless the cities total debt levy for payable 2006, including the new debt levy,would still be less than the cities total debt levy for taxes payable in 2005. 7 ■ Expenditure Projections: ■Planned Level of Wage Adjustments are Made ■Health Care Costs Will Increase 4%on 6/1/05, and 10%Thereafter ■A Transfer of$500,000 to the CIP Will Continue ■No New Programs or Expansion of Existing Programs Without Separate Review and Discussion to Ensure the City Can Support the Increased Expenditures in the Future ■Maintain Staffing Levels 2004 Financial Results _a City's Financial Position 12/31/04 Governmental Funds G.—W SP-1 Gpiwl D.M Tool Fund R— C h rW blv.bns.W $20,303 a 206 317,526 6 3,914 $42,009 R4cd W. 601 3 967 32 1,a03 Oast 1,121 204 2,61a 433 4,376 Tabl/w41s 22,225 473 21,111 4,379 40,199 LwbilXlw (1.792) (161) (956) (122) (3,031) Funtl B.W— S 20,433 3 312 3 20.155 $4.257 $45,157 FMA Awb 170,417 Debt OubiwWbg 17.226 ) 8 Capital Assets 12/31/04 Land $22,051 Land Improvements 3,B07 Buildings 29,951 Machinery&Equipment 2,434 Autos 6,962 Other Assets 6,036 HighwayalStteets 99,176 Total 5170,417 •An.In BweMge General Fund 9eveeoe Summary for the year ended 12/31/04 Budget Anneal 11Nb— -Per ent wlw Taos $21.400 5 2z488 $1.079 105% tlnnree and P—b 3,234 3,258 24 101% Mderyoverr Md Re— 837 1,093 256 131% Chngee far Se— z099 2,110 61 104% Fires P—mee 375 437 62 117% Invwbnard incerrw Zv0 mg (41) 64% Odw Revnua 2B5 457 7tR 155% Tebl I S 26,499 1 $30,122 $1,623 1 100% •Miner btlgwpW General Fund Expr4Wit—Sun—y ter du;year ended 12/31/04 = Budget Anneal DM—. Pw.W send Olf of In C6y Merger $7,305 $7,052 $243 97% C—urdy Devebpnead 1,1107 1,433 174 89% Pert end Raoreedn 4,838 4,997 (15g) 103% P.D. 7,417 7,421 (4) 100% Foe z399 2,586 (177) 107% Pueme Wart 4,718 4,80 74 95% Tee, 5 m,272 S 28,121 S 151 99% •MeeW b tlieiwtlr 9 General Fund Operating Results Summary for the year ended 12/31/04 A.twI Ta l Ravwan A30022 Tabl F.qetdikraaT—W In T..-.*Out Nt Chmps n Futd ealatlea 'A naeda in tKA—Ule General Fund—Fund Balance F-d BaWp 12131M 12131003 OMaaltoa Rwwrad EnuaManor $457,042 $341,225 $115.817 Ptapdd Mahn 102391 77,916 24.473 savaranae oW4dk o 2,aW.1100 2,637,736 1OZ254 Int.kaki ban 710,839 805,995 (155,166) Unwrva i-d-*.w Revanua abAMk f. 5,066,565 5,012,371 56,194 FwWr—t pad— 0 SN,062 (544,062) Wakirg Caput 11,294,0W 10,724,572 saasm Tow f 20,432,924 f 20,2MRM $229,015 li Capital Projects Pavement Management $1,345 PCRA Trail 756 Riley-Jacques Barn/Riley Farm 707 Other Park AcquisitiordDevelopmerd 666 Ice Rink 1—Freon leak 421 Trails 360 Purgatory Creek Recreation 359 City Center Parking 314 Information Tedmology 155 Parks and Recreation 136 Other Capital Improvements 201 Total $5,422 •Amounts in thousands ) 10 Staff To-Do List ■ Update Revenue Stabilization Fund Policy to Include Planned Maintenance and Use of the Fund ■ Review Policy of Budgeting Tax Revenue at 95%of Amounts Levied ■Other ■Council Discussion .�F ■ End 11 AGENDA EDEN PRAIRIE CITY COUNCIL TUESDAY,MAY 3, 2005 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher, Ron Case, and Philip Young CITY STAFF: City Manager Scott Neal, Parks &Recreation Director Bob Lambert, Public Works Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Deb Sweeney I. ROLL CALL/CALL THE MEETING TO ORDER II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. HUMAN RIGHTS AND DR. JEAN L. HARRIS YOUTH SCHOLARSHIP AWARDS V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,APRIL 26, 2005 B. CITY COUNCIL MEETING HELD TUESDAY,APRIL 26, 2005 VII. CONSENT CALENDAR A. THE RIDGE AT RILEY CREEK by EPIC Development. Second Reading for Planned Unit Development District Review with waivers, and Zoning District Change from Rural to R1-13.5 on 42.22 acres. Location: North and west of the Sky Lane, south and east of Riley Creek. (Ordinance for PUD District Review and Zoning District Change) B. APPROVAL OF DEVELOPER AGREEMENT FOR HENNEPIN VILLAGE- EDEN BLUFFS HOLDINGS, LLC. C. ADOPT RESOLUTION RECEIVING FEASIBILTY REPORT AND SETTING PUBLIC HEARING FOR TECHNOLOGY DRIVE AND MITCHELL ROAD IMPROVEMENTS,I.C. 00-5508 D. AWARD CONTRACT FOR REPAIRS AT CUMMINS GRILL AND RILEY JACOUES HOMES CITY COUNCIL AGENDA May 3, 2005 Page 2 E. AWARD CONTRACT FOR FLOWER MAINTENANCE TO LYNN'S FLOWERS DESIGN F. AWARD CONTRACT FOR IRRIGATION MAINTENANCE TO ABSOLUTE RAIN G. AWARD CONTRACT FOR LAWN MAINTENANCE FOR CITY HALL AND FIRE STATION 1 TO AP LAWN H. AWARD CONTRACT FOR LAWN MAINTENANCE FOR DEN ROAD, FIRE STATION 2 & 3 & BUILDING 51 TO BENIEK PROPERTY SERVICES I. APPROVE RELEASE OF LAND FROM SPECIAL ASSESSMENT AGREEMENT FOR LOT 1. BLOCK 2, FOUNTAIN PLACE J. ADOPT RESOLUTION CONSENTING TO ASSIGNMENT OF KMC TELECOM AGREEMENT VIII. PUBLIC HEARINGS /MEETINGS IX. PAYMENT OF CLAIMS X. ORDINANCES AND RESOLUTIONS XI. PETITIONS, REQUESTS AND COMMUNICATIONS A. EDEN PRAIRIE READS—JAN MOSMAN XII. REPORTS OF ADVISORY BOARDS & COMMISSIONS XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS 1. City Manager's Performance Review—Mayor Tyra-Lukens 2. Cable Franchising—Councilmember Case B. REPORT OF CITY MANAGER 1. Update on Senior Issue's Task Force CITY COUNCIL AGENDA May 3, 2005 Page 3 C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. Authorization to Develop an Agreement with the City of Minnetonka to Administer CDBG Funds (Resolution) D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Community Theater Feasibility Study E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS XVI. ADJOURNMENT CITY COUNCIL AGENDA DATE: SECTION: May 3, 2005 DEPARTMENU/DIVISION: ITEM DESCRIPTION: ITEM NO.: Office of Housing and Human Human Rights and Dr. Jean L. Harris Youth IV. Services Scholarship Awards Requested Action Recipients of the Human Rights Awards and the Dr. Jean L.Harris Youth Scholarship Award will be recognized. The Human Rights Awards recognize accomplishments from 2004,while the Youth Scholarship Award is for the 2004-2005 school year. 2004 Human Rights Award—Non-Profit Organization Recipient Eden Prairie School District (to be accepted by Nanette Missaghi and Larry Long) 2004 Human Rights Award—Individual Recipient George Schell 2004-2005 Dr. Jean L. Harris Youth Scholarship Award recipient Christopher En Anna Affias Mayor Tyra-Lukens will introduce both Larry Piumbroeck, Chair of the Human Rights and Diversity Commission, and Jeff Strate,Vice-Chair,who will both come to the speaker's podium. Larry Piumbroeck will read a short statement of purpose. Mayor Tyra-Lukens will ask each recipient to come up (in order listed above). The Mayor will then read the recipient information. Once read aloud, the Chair and Vice-Chair will present the plaques (HRA recipients) or certificate(YSA recipient). Background Human Rights and Diversity Commission: * Larry Piumbroeck, Chair * Pamela Miller * Jeff Strate, Vice-Chair * Cari Maguire * Melissa Barra * Linda Chung * Gerry Beckmann Staff Liaison: Molly Koivumaki Attachments Recipient Information Human Rights Award—Non-Profit Category: Eden Prairie School District. The Elder Wisdom/Children Song (EW/CS) project was created by Smithsonian Folkways Recording artist Larry Long and coordinated by Nanette Missaghi, Eden Prairie Schools Integration Program Coordinator. Each school principal and education coordinator played an important role in supporting and coordinating this project. The Elder Wisdom/Children Song project grew from the school district's involvement with the Eden Prairie Human Rights Commission's work with Immigrant Gatherings. While school district staff learned important information at each gathering, we decided to find new ways to bring the immigrant stories to more Eden Prairie residents. Human Rights Award—Individual Category: George Schell Mr. Schell is a long-time resident of Eden Prairie and a retired high school teacher. He taught for many years at South High School in Minneapolis. However, George has not retired his zeal for teaching, learning, supporting and mentoring students. Currently, he is a Reserve (sub) teacher for the Eden Prairie School District. George is active in the Eden Prairie Lions Club, he was the instigator of the Lions Club scholarship program. George can always be counted on for working on the projects: Corn Feed, PROP food drive, Schooner Day events. To bring greater awareness and understanding of the immigrant community in Eden Prairie to his Lions Club, George arranged for a speaker from the City of Eden Prairie to make a presentation. George serves on the board of Directors for the Eden Prairie Senior Center. He writes for the Senior newsletter. George is an active member of the Senior"Woodchucks", a social men's group where city, state, national and international affairs are discussed, argued and debated and finally solved. Dr. Jean L.Harris Youth Scholarship Award: Christopher Em Christopher is a senior at Eden Prairie High School, he plans to attend the University of Minnesota— Twin Cities Campus. Christopher made it a personal goal to encourage respect for diversity within Eden Prairie High School and became very active in the Diversity Club, eventually serving as president. Through his participation in the club, Christopher learned of the great need for education in our community about people from other cultures. Christopher states the Eden Prairie Manifesto is important to him because it has shown and reassured him that Eden Prairie has been making efforts to promote tolerance within our community by setting standards regarding equality and diversity. Dr Jean L. Harris Youth Scholarship Award: Anna Affias Anna is a senior at Eden Prairie High School, she plans to attend the University of Minnesota — Duluth Campus. Anna's volunteer activities reveal a strong commitment to serving people one-on-one. Whether it is packaging food for third-world countries, giving elderly women in a nursing home monthly manicures and hair styles or working on-site at a Habitat for Humanity project, Anna gives 100%. Anna's appreciation for the Eden Prairie Manifesto is genuine and she describes getting shivers as she read it aloud. She considers the Manifesto an opportunity for all citizens to choose positive behaviors that impact daily life. ITEM VI.A. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL WORKSHOP& OPEN FORUM/OPEN PODIUM TUESDAY,APRIL 26,2005 CITY CENTER 5:00—6:25 PM,HERITAGE ROOM H 6:30—7:00 PM, COUNCIL CHAMBER CITY COUNCIL: Mayor Nancy Tyra-Lukens, Councilmembers Brad Aho, Sherry Butcher,Ron Case, 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, Community Development Director Janet Jeremiah, Communications Manager Pat Brink,Assistant to the City Manager Michael Barone, Recreation Manager Laurie Obiazor, Economic Development Manager David Lindahl, Recreation Coordinator Sandy Werts, City Attorney Ric Rosow, and Recorder Lorene McWaters Heritage Room H I. COMMUNITY THEATER INITIATIVE City staff and community members are exploring an opportunity to provide community theater in the Eden Prairie Center space formerly occupied by United Theaters. Parks and Recreation Director Bob Lambert said staff wants to get Council's thoughts on the concept and an indication of the degree to which they are willing to pursue it. Lambert also wants community supporters of the concept to have a chance to hear Councilmembers' questions and concerns. Recreation Coordinator Sandy Werts and Recreation Manager Laurie Obiazor presented a PowerPoint presentation on the background and status of arts programs and community theater in Eden Prairie. Obiazor explained the City has a goal of subsidizing up to 75 percent of the costs of arts programs. All of the 2004 programs,with the exception of the concert series,were able to meet or exceed this goal. Obiazor also reviewed new arts programming for 2005, including"Fun Fridays at Noon"at the new Purgatory Creek Recreation Area and a number of programs at the Riley-Jacques Barn. Obiazor reviewed current limitations to the Eden Prairie theater program including limited access to stages, lack of storage space and space to build sets, limited rehearsal space, limited technical equipment, limited and weather-dependent seasons at the Riley- Jacques Barn and the Amphitheatre. City Council Workshop April 26,2005—page 2 Obiazor said a theater space, such as the one under consideration at Eden Prairie Center, could host theater productions, community band concerts, and dance and music recitals. The space could also be rented out for private use or used in partnership with other organizations such as the Hopkins Center for the Arts and AMC. Economic Development Manager David Lindahl explained that the idea of a community theater grew out of conversations with Alan Young of General Growth about the empty mall space and former Councilmember Jan Mosman about the Eden Prairie Players' need for better space. Lindahl and Building Official Kevin Schmieg inspected the space with Eden Prairie architect Dan O'Brien of Cluts, O'Brien Strother and determined the space could work as a theater space. Lindahl presented the idea of the City using the space for theater purposes to Young,who in turn brought the idea to General Growth corporate leaders. General Growth has indicated it is willing to consider the use, but has not made any promises. Lindahl is also exploring a partnership with AMC theatres which would provide space for them to show films as well as managing the overall space. Lindahl will have further discussions with AMC in the next few weeks. Dan O'Brien presented a concept plan for the space,which includes a"black box"theater space, an art gallery, a set shop, dressing rooms, custom storage and more. He said his design minimizes retrofitting of the space to reduce construction costs. The black box theater concept features no defined seating, stage or lighting,which allows each director to specify the setup that works best for their production. O'Brien noted that he has not consulted with the Eden Prairie Players on this concept, but rather it is based on his previous experience designing similar spaces. Lindahl noted that O'Brien has not charge the City for his work to day and the plan was developed before the concept of partnering with AMC came up. Lindahl asked for questions and comments from Council. Mayor Tyra-Lukens said she likes the concept, and she thinks this would be a great use of the space. She liked that O'Brien's plan calls for little new construction. Tyra-Lukens asked what sort of deal Lindahl envisions making with General Growth. Lindahl said he feels the owners are willing to work with the City, but there are so many unknown variables right now, such as operating costs and costs for retrofitting. Lambert said Council is not being asked to make a decision tonight; however, at next week's meeting they will be asked to consider approving a feasibility study to determine costs for subsidizing such a project. Councilmember Aho asked if Lambert has any idea of costs at this point. Lambert said that will depend largely on whether or not AMC is involved. Councilmember Case asked if General Growth is ready to talk about the financial piece. Lindahl said they are, but he does not know to what level of detail. Aho asked if staff has a gut feel about whether or not enough revenue could be generated from rentals to break even on the space. Lindahl said if AMC is involved it is possible the City could break even. Case said he doesn't think the goal of any City program is necessarily to break even, but rather to minimize City Council Workshop April 26, 2005—page 3 costs while responding to community needs. Butcher suggested looking into corporate sponsorships as a way of subsidizing programs. Butcher said overall she thinks this is a very good idea. Council Chamber II. OPEN FORUM No one appeared at Open Podium. III. OPEN PODIUM No one appeared at Open Podium. IV. ADJOURNMENT ITEM VI.B. UNAPPROVED MINUTES EDEN PRAIRIE CITY COUNCIL TUESDAY,APRIL 26, 2005 7:00 PM, CITY CENTER Council Chamber 8080 Mitchell Road CITY COUNCIL: Mayor Nancy Tyra-Lukens,Councilmembers Brad Aho, Sherry Butcher, Ron Case, and Philip Young CITY STAFF: City Manager Scott Neal,Parks&Recreation Director Bob Lambert, Public Works Director Eugene Dietz, City Planner Michael Franzen, Community Development Director Janet Jeremiah, City Attorney Ric Rosow and Council Recorder Deb Sweeney 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. II. PLEDGE OF ALLEGIANCE III. COUNCIL FORUM INVITATION IV. SENIOR AWARENESS PROCLAMATION Mayor Tyra-Lukens read the proclamation. She invited City Staff Carla Kress and John Dollerschell, Chair of the Senior Advisory Board,to come forward to accept the proclamation. Kress stated Senior Awareness Month(originally Senior Awareness Week)began in 1993 as a way to acknowledge and celebrate the City's older citizens,to recognize agencies that serve seniors,and to promote cross-generational contact. Over 21 events are planned throughout the month. In addition,this year's celebration includes a raffle of items handcrafted by local seniors. V. APPROVAL OF AGENDA AND OTHER ITEMS OF BUSINESS Butcher added an item about Purgatory Creek Recreation Area under Reports of Councilmembers. Aho added an item about Round Lake water quality under Reports of Councilmembers. Rosow announced the Council would adjourn and then reconvene in closed session. MOTION: Young moved, seconded by Case, to approve the agenda as published and amended. Motion carried 5-0. VI. MINUTES A. COUNCIL WORKSHOP HELD TUESDAY,APRIL 12,2005 MOTION: Case moved, seconded by Young,to approve the Council Workshop minutes as published. Motion carried 5-0. CITY COUNCIL MINUTES April 26,2005 Page 2 B. CITY COUNCIL MEETING HELD TUESDAY,APRIL 12, 2005 MOTION: Case moved, seconded by Butcher,to approve the City Council minutes as published. Motion carried 5-0. VII. CONSENT CALENDAR A. ADOPT RESOLUTION NO.2005-60 APPROVING FINAL PLAT OF EDEN BLUFF B. ADOPT RESOLUTION NO. 2005-61 APPROVING PLANS AND SPECIFICATIONS AND ORDERING ADVERTISEMENT FOR BIDS FOR TH 212/CHARLSON ROAD INTERSECTION IMPROVEMENT PROJECT,I.C.05-5638 C. ADOPT RESOLUTION NO. 2005-62 PETITIONING RILEY- PURGATORY-BLUFF CREEK WATERSHED DISTRICT TO FUND THE RILEY CREEK WATER MANAGEMENT PROJECT,I.C.03-5589 D. APPROVE PROFESSIONAL SERVICES AGREEMENT WITH HTPO TO BEING PRELIMINARY INVESTIGATION OF THE SUPER VALU AND WASHINGTON AVENUE LIFT STATIONS E. AWARD CONTRACT FOR 2005 BITUMINOUS CRACK-SEALING TO PRECISION SEALCOATING,INC. F. APPROVE ADVERTISEMENT FOR BIDS FOR RE-CARPETING OF CITY CENTER G. ADOPT RESOLUTION NO. 2005-63 FOR REIMBURSEMENT FOR PRIOR EXPENDITURES OUT OF THE PROCEEDS OF SUBSEQUENTLY ISSUED BONDS H. ADOPT RESOLUTION NO. 2005-64 SUPPORTING APPLICATION FOR A TRANSIT-ORIENTED DEVELOPMENT GRANT PROGRAM THROUGH HENNEPIN COUNTY I. AWARD CONTRACT FOR CREEK STABILIZATION PROJECT FOR PRAIRIE PINES DEVELOPMENT J. APPROVE FIRST AMENDMENT TO JOINT POWERS AGREEMENT WITH SCHOOL DISTRICT 272 MOTION: Aho moved, seconded by Butcher,to approve items Items A-J on the Consent Calendar. Motion carried 5-0. CITY COUNCIL MINUTES April 26,2005 Page 3 VIII. PUBLIC HEARINGS/MEETINGS A. VACATION OF PLATTED EASEMENTS IN LIFETOUCH ADDITION, VACATION 05-01 (2005-65) Neal stated the Property Owner has requested the vacation of all underlying easements within the Lifetouch Addition plat to remove possible encumbrances to the replat of the property,Lifetouch 2nd Addition. He said this matter is somewhat perfunctory,but needs a public hearing and vote nonetheless. Case noted the Council often holds two public hearings in such cases. He asked why the actions couldn't be combined in one hearing. Rosow explained that sometimes when easements are vacated on an old plat that is the same as a new plat, a new plat is never filed, and this has caused problems for other cities. Case said his question was answered. There were no comments from the public. MOTION: Case moved, seconded by Aho,to close the Public Hearing and adopt Resolution No. 2005-65 vacating the Drainage and Utility Easements for ponding purposes in Lifetouch Addition. Motion carried 5-0. B. SITE ALTERATION PERMITS#2005-01-0001 J.R. Cummins House, 13600 Pioneer Trail Neal stated the Heritage Preservation Commission has reviewed an application for a Site Alteration Permit for the J. R. Cummins House located at 13600 Pioneer Trail. The application is for repair or replacement of badly deteriorated features. The Commission voted in favor (5-0) of the repair plans and specifications, and recommends the City Council approve the Heritage Preservation Site Alteration Permit. Jeremiah added context on why action is needed, as well as on budget issues. Because the property has a historic designation, the Council must act on any changes. Jeremiah noted repairs to the J.R. Cummins House were anticipated in the capital improvements plan, and $72,000 was allocated. Although costs have risen, the City will still be able to do all the planned repairs except the wood shingle roof. The Heritage Preservation Commission saw the roof as the lowest priority and recommended postponing it if needed. Jeremiah said the contract could be awarded next week if approved. Neal added that the project has already been competitively bid. There were no comments from the public. MOTION: Butcher moved, seconded by Case, to adopt findings for Site Alteration Permit #2005-01-0001, close the public hearing; and approve Heritage CITY COUNCIL MINUTES April 26,2005 Page 4 Preservation Site Alteration Permit #2005-01-0001 (J. R. Cummins House). Motion carried 5-0. C. SITE ALTERATION PERMITS#2005-02-0004 Riley Jacques House, 9100 Riley Lake Road Neal stated The Heritage Preservation Commission has reviewed an application for a Site Alteration Permit for the Riley-Jacques House located at 9100 Riley Lake Road. The application is for repair or replacement of badly deteriorated features. Most of the work is for roof,masonry, foundation and trim repair. The Commission voted in favor(5-0) of the repair plans and specifications, and recommends the City Council approve the Heritage Preservation Site Alteration Permit. MOTION: Case moved, seconded by Butcher, to adopt findings for Site Alteration Permit#2005-02-0004, close the public hearing; and approve Heritage Preservation Site Alteration Permit #2005-02-0004 (Riley-Jacques House). Motion carried 5-0. IX. PAYMENT OF CLAIMS MOTION: Case moved, seconded by Young, to approve Payment of Claims as submitted. The motion was approved on a roll call vote with Aho,Butcher,Case, Young,and Tyra-Lukens voting"aye." X. ORDINANCES AND RESOLUTIONS XI. PETITIONS,REOUESTS AND COMMUNICATIONS XII. REPORTS OF ADVISORY BOARDS& COMMISSIONS XIII. APPOINTMENTS XIV. REPORTS OF OFFICERS A. REPORTS OF COUNCILMEMBERS 1. Ouery Rei!ardinL,Pur2atory Creek Recreation Area Completion— Councilmember Butcher Butcher stated she had talked to residents while biking in the Purgatory Creek Recreation Area and relayed their questions about when the trail work would be complete. Lambert said the work had been scheduled to be completed last fall,but four areas were still settling. Crews are now hauling surcharge fill to get the trail to its intended level. Then base and asphalt will be added. Lambert said the entire trail should be complete by early June. Lambert also said the new vehicle access across from Bilimbi Bay,which will allow two-way traffic,will be completed by late summer CITY COUNCIL MINUTES April 26,2005 Page 5 or early fall. That surcharge has been in place for four years now,but is now ready to be removed. Butcher said those two improvements would make a lot of residents very happy. 2. Alternatives for Round Lake Water Quality Improvement— Councilmember Aho Aho said many residents would still like to see Round Lake cleaned up and restored as a swimming area. He wondered if there might be other methods,or a combination of methods,which might be feasible. Aho stated the watershed district engineers had done a good job,but said it would be nice to have some independent comment, since the same engineers were both evaluating the lake and planning to do the work. Aho proposed a motion to charge Staff to have an independent, credentialed group revisit the Round Lake water quality problem and give ideas. Case said the motion might have merit,but proposed having Lambert and Dietz review the previous actions and discussion with the Council to bring everyone up to speed. Case noted it had taken two years of discussion and analysis to finally reach the conclusion that the expense of cleaning up Round Lake was so great,it might make sense to build an outdoor pool instead. After reviewing the past actions in a workshop, the Council could then decide whether or not to bring in an independent group. Aho agreed a review would be helpful. He said he had reviewed some on his own but it would be worthwhile to get a complete overview. Tyra- Lukens said there might be new technologies to look at as well. Dietz said meeting with watershed district engineers would be good,but cautioned the Council not to expect new solutions from them. Dietz said the watershed district has the idea that a plan has already been developed. He did not expect any buy-in for new ideas. Case stated a review of the details would benefit both new and more veteran councilmembers. With a price tag of$1 million for the current plan, it could be worth looking at other methods to mitigate the problem. Tyra-Lukens asked Young if he had been on the Council for the Round Lake discussions, and Young said just for the tail end. He agreed a review would be helpful. Butcher suggested putting a summary of the Round Lake decision making on the City website as well,so residents could see it. She recalled a price tag of$1 million plus$50,000 to $60,000 in annual maintenance costs for the alum treatment plant. She stated residents see Round Lake as central and they should be able to see how decisions about it have been made. CITY COUNCIL MINUTES April 26,2005 Page 6 Aho concurred. He said he'd started thinking about revisiting Round Lake based on a discussion with a resident who suggested a natural solution with a price tag of$200,000. Aho noted due diligence obviously would have to be done to see if the idea was workable,but if it could work, it would be a win-win. Butcher asked if the watershed district would pay part of the cost. Neal said the cost split varies between projects. Lambert clarified that recreational projects, such as a trail around a lake, are split 50-50 between the City and the watershed district. Land acquisitions are split more along the lines of 70-30 or 90-10, with the city picking up most of the cost. Water quality improvements,however, are typically borne 100 percent by the watershed district. The City would only pay the operating costs. Lambert noted the alum treatment plant is a proven way to clean a lake. The long-term effects are of concern. Lambert suggested Staff could come back with a history of the Round Lake issue and a cost of getting an unbiased opinion. Whether it is City money or watershed district money, $1 million is still a lot for taxpayers and a second opinion might be warranted. Tyra-Lukens stated concerns that if various factors continued to negatively impact the water quality in the lake,the alum treatment plant might not help. Lambert noted the alum treatment plant was the one controversial part of a fairly complex plan, including five or six other components such as ponding. Dietz noted the original ponding at Round Lake was designed to reduce runoff and that the ponding is already being enhanced and reconstructed. Neal said Staff would prepare a report on Round Lake and present the scope and cost of an independent evaluation, including a list of potential vendors. B. REPORT OF CITY MANAGER C. REPORT OF THE COMMUNITY DEVELOPMENT DIRECTOR 1. MCA Study Open House Jeremiah reminded Councilmembers the MCA Study Open House is tomorrow night. D. REPORT OF PARKS AND RECREATION DIRECTOR 1. Updated Parks Capital Improvements Plan Lambert said the Capital Improvement Plan provides a plan and funding sources for a five-year outlook. He recommended not looking too closely CITY COUNCIL MINUTES April 26,2005 Page 7 at detailed costs because there are not detailed specifications. For example, in the case of the trails, some are just at the stage of walking the area with neighbors. It's not certain where the trail will go,how many bridges there will be,where there will be trail access,etc. Lambert said there would be significant outlays in 2006,however. The Capital Improvements Plan represents Lambert's estimate of the size, scale,and timing of projects. Lambert noted,however,that the plan changes every year in response to residents' requests and Council directives. MOTION: Case moved, seconded by Young, to approve the updated Capital Improvement Plan as a concept approval for expenditures of anticipated revenue over the next five years. Motion carried 5-0. E. REPORT OF PUBLIC WORKS DIRECTOR F. REPORT OF POLICE CHIEF G. REPORT OF FIRE CHIEF H. REPORT OF CITY ATTORNEY XV. OTHER BUSINESS A. CLOSED SESSION 1. City Manager's Performance Review The Council moved into closed session for the purpose of evaluating the City Manager's performance after the adjournment of the meeting. XVI. ADJOURNMENT MOTION: Aho moved, seconded by Butcher, to adjourn the meeting at 7:34 p.m. and move into closed session. Motion carried 5-0. CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/Planning The Ridge at Riley Creek VII.A. Janet Jeremiah Scott A .Kipp Requested Action Move to: • Approve 2°a Reading of the Ordinance for Planned Unit Development District Review with waivers, and Zoning District Change from Rural to R1-13.5 on 42.22 acres; and • Approve the Development Agreement for The Ridge at Riley Creek; and • Approve and Authorize Issuance of a Grading Permit for The Ridge at Riley Creek, subject to release by the City Engineer upon: i) determination that the final contract documents conform to the Development Agreement and plans stamp dated April 5, 2005, as approved by the City Council; and ii) the Developer submits to the City a current title commitment evidencing to the satisfaction of the City Attorney marketable title in the name(s) of the Developer and/or the Owners. Synopsis This project is for 39 single family lots. Attachments 1. Ordinance for PUD District Review and Zoning District Change 2. Summary Ordinance for PUD District Review and Zoning District Change 3. Development Agreement THE RIDGE AT RILEY CREEK CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA ORDINANCE NO. 8-2005-PUD-4-2005 AN ORDINANCE OF THE 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 Rural Zoning District and be placed in the Planned Unit Development RI-13.5 Zoning District 8- 2005-PUD-4-2005 (hereinafter "PUD-4-2005-R1-13.5"). Section 3. The land shall be subject to the terms and conditions of that certain Development Agreement dated as of May 3, 2005, entered into between EPIC Development, LLC, and the City of Eden Prairie, (hereinafter"Development Agreement"). The Development Agreement contains the terms and conditions of PUD-4-2005-R1-13.5, and are hereby made a part hereof. Section 4. The City Council hereby makes the following findings: A. PUD-42005-R1-13.5 is not in conflict with the goals of the Comprehensive Guide Plan of the City. B. PUD-4-2005-R1-13.5 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 I I and 12 of the City Code that are contained in PUD-4-2005-R1-13.5 are justified by the design of the development described therein. D. PUD-4-2005-R1-13.5 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. The proposal is hereby adopted and the land shall be, and hereby is removed from the Rural Zoning District, and placed in the R1-13.5 Zoning District and shall be included hereafter in the Planned Unit Development PUD-4_-2005-R1-13.5 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 and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 12th day of April, 2005, 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 3rd day of May, 2005. ATTEST: Kathleen A. Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie Sun Current on 12005. CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA SUMMARY OF ORDINANCE NO. 8-2005-PUD-4-2005 AN ORDINANCE OF THE 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: Summary: This ordinance allows rezoning of land located north and west of the Sky Lane, south and east of Riley Creek from the Rural Zoning District to the R1-13.5 Zoning District on 42.22 acres. Exhibit A, included with this Ordinance, gives the full legal description of this property. Effective Date: This Ordinance shall take effect upon publication. ATTEST: Kathleen. Porta, City Clerk Nancy Tyra-Lukens,Mayor PUBLISHED in the Eden Prairie Sun Current on ,2005. (A full copy of the text of this Ordinance is available from City Clerk.) EXHIBIT A PUD District Review and Zoning District Change - The Ridge at Riley Creek Legal Description: Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22, lying Easterly of the following described line, said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22;thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described;thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet; thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet;thence North 45 degrees 06 minutes 13 seconds West 51.68 feet;thence North 7 degrees 14 minutes 21 seconds West 41.17 feet;thence North 24 degrees 07 minutes 45 seconds East 48.59 feet;thence North 62 degrees 40 minutes 26 seconds West 37.33 feet;thence North 13 degrees 12 minutes 00 seconds West 54.65 feet;thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet;thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet;thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 35.31 feet;thence North 16 degrees 40 minutes 01 seconds East 42.78 feet;thence North 68 degrees 00 minutes 45 seconds East 62.35 feet;thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet;thence North 41 degrees 03 minutes 01 seconds East 135.95 feet;thence North 5 degrees 47 minutes 24 seconds East 78.55 feet;thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet;thence North 15 degrees 38 minutes 10 seconds East 31.54 feet;thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet;thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County,Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4, Block 1, Cedar Hills West Addition. DEVELOPMENT AGREEMENT THE RIDGE AT RILEY CREEK THIS DEVELOPMENT AGREEMENT("Agreement")is entered into as of May 3,2005, by EPIC Development, LLC, a Minnesota limited liability company, 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 Planned Unit Development Concept Review on 42.22 acres, Planned Unit Development District Review with waivers on 42.22 acres, Zoning District Change from Rural to R1-13.5 on 42.22 acres,and Preliminary Plat of 42.22 acres into 39 lots,two outlots and road right right-of-way, legally described on Exhibit A(the"Property"); NOW, THEREFORE, in consideration of the City adopting Resolution No. 2005-57 for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5 acres, and Resolution No. 2005-58 for Preliminary Plat,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 April 5, 2005, reviewed and approved by the City Council on April 12, 2005, (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. CONSTRUCTION ACCESS: The Plans depict access to the Property for all traffic, including construction traffic, from Beverly Drive and Sky Lane. Developer and City acknowledge that an alternative access for construction traffic would be a benefit to the local residents, and the existing local public streets. Therefore,prior to issuance of any grading permit for the Property, Developer shall formally request from the Metropolitan Airports Commission,an access easement for construction traffic and equipment through land it owns adjacent to and east of the Property. Should this request is denied by the Metropolitan Airports Commission,the Developer shall use Beverly Drive and Sky Lane for construction traffic. 4. CONSERVATION EASEMENT FOR THE PROTECTION OF EXISTING TREES ON THE PROPERTY: Prior to release of the final plat for any portion of the Property, Developer shall submit a Conservation Easement in form and substance as attached as Exhibit E hereto for review and written approval by the Director of Parks and Recreation Services, for the westerly 60 feet of Lot 1, Block I as delineated on the Plans. Prior to release of the final plat for any portion of the Property,Developer shall submit to the Director of Parks and Recreation Services a properly executed Conservation Easement as approved by the Director of Parks and Recreation Services to be filed for record with the Hennepin County Recorder/Register of Titles. The Developer shall file the Conservation Easement contemporaneous with the final plat and prior to the conveyance of any portion of the Property to any third party. The Developer shall furnish the City with proof of filing of the final plat. No building permit shall be issued for the Property unless the Conservation Easement has been filed as required in this paragraph. 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 '/2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. 5. CONSTRUCTION STAGING AREA: Concurrent with the grading of the Property, Developer shall provide for a construction staging area on Lot 1,Block 4 as depicted on the Plans. The staging area shall be for the parking of contractor vehicles,containment of trash and construction materials,and shall be maintained in a manner consistent with City Code. The staging area shall remain in place and operational until at least 75%of the lots contain completed and occupied homes. No construction parking shall occur on Beverly Drive,or the southerly 700 feet of Sky Lane. 6. DEDICATION OF OUTLOT A: Prior to release of the final plat for the Property, Developer shall dedicate to City, Outlot A in accordance with the terms of Exhibit C. 7. DEVELOPER'S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to use of the Land 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 Land 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. 8. 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. 9. DISCLOSURE OF INFORMATION REGARDING FLYING CLOUD AIRPORT: No lot shall be sold or transferred to the first intended residential homeowner,nor an agreement entered into to construct a home on any lot within the development unless the Developer or its successors and/or assigns personally delivers prior to execution of a purchase agreement or an agreement to construct a home on the lot (whichever comes first), a disclosure statement in form and substance as attached as Exhibit F hereto regarding the Flying Cloud Airport. If the initial purchaser of a lot from the Developer is not the initial intended homeowner of a residence to be constructed on the lot, Developer shall require by contractual obligation with its initial purchaser the delivery of the disclosure statement to the initial intended residential homeowner prior to execution by the intended homeowner of any agreement to construct a home or agreement to purchase a lot(whichever comes first). 10. GRADING,DRAINAGE,AND EROSION CONTROL PLANS: A. FINAL GRADING AND DRAINAGE PLAN:Developer agrees 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. 11. GRADING IN THE WOODED AREAS ON SITE: Prior to grading within any of the wooded areas on the Property,delineated on Exhibit B 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. 12. INTERIOR NOISE MITIGATION PLAN: Prior to issuance of each residential building permit for the Property,Developer shall submit to the City Building Official,and obtain the City Building Official's written approval of plans that establish that each residence is designed to meet the structural performance standards for residential interior sound levels, depicted in Table 4 of the Metropolitan Council Land Use Compatibility Guidelines for Aircraft Noise, adopted January 14, 2004. 13. MAINTENANCE OF EDEN PRAIRIE ROAD,BEVERLY DRIVE AND EXISTING SKY LANE: Any segment of Eden Prairie Road,Beverly Drive and existing Sky Lane used for construction ingress and/or egress south of Riley Creek shall be subject to the following conditions: 1) Prior to issuance of a permit by the City for Land Alteration or construction of streets and utilities for the Property, Developer shall place a bituminous overlay of not less than 2 inches over any portion of street used for construction access. The overlay shall be thickened in areas as required by the City Engineer based on his analysis of the available geotechnical information,including the geotechnical recommendations of Developers geotechnical engineer. 2) Developer shall repair any area of roadway subject to construction traffic that develops pavement distress. 3) Developer shall provide City with a maintenance bond in the amount of$80,000 per road mile. The Bond shall remain in full force and effect on each road segment during use by construction traffic unless the segment is reconstructed by City to current design standards or until 75%of the lots contain completed and occupied homes. 4) A 6-ton restriction shall remain in effect between March 1 and May 1,each year on all road segments. 5) All construction ingress and egress on Eden Prairie Road shall be to/from the north except during periods when a segment of Eden Prairie Road is closed for reconstruction by the City. 14. 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. Scott A. Berg B. Darcy Rae Muniz C. Laseski Family Enterprises, LLC D. Larry S. Kacher and Pauline M. Kacher 15. PARKING RESTRICTIONS: Prior to construction of streets and utilities for the Property, Developer shall post"No Parking Permitted" signs along existing Beverly Drive and Sky Lane serving the Property. The parking restriction shall remain in place until at least 75%of the lots within the Property contain completed and occupied homes. 16. PUD WAIVERS GRANTED: The city hereby grants the following waivers to City Code requirements within the R1-13.5 Zoning District through the Planned Unit Development District Review for the Property and incorporates said waivers as part of PUD A. Cul-de-sac length of 1,720 feet. City code permits cul-de-sac length up to 500 feet. 17. RETAINING WALLS: Prior to issuance by the City of any permit for grading or construction on the Property, Developer shall submit to the Chief Building Official, and obtain the Chief Building Official's written approval of detailed plans for the retaining walls identified on the grading plan in the Plans. These plans shall include details with respect to the height,type of materials,and method of construction to be used for the retaining walls. Developer shall complete implementation of the approved retaining wall plan in accordance with the terms and conditions of Exhibit C, attached hereto, prior to issuance of any occupancy permit for the Property. 18. SIDEWALK AND TRAIL CONSTRUCTION: Prior to issuance by City of any building permit on the Property, Developer shall submit to the Director of Parks and Recreation Services and obtain the Director's written approval of detailed plans for sidewalks and trails to be constructed on the Property. Prior to release of any portion of the final plat,Developer shall convey access easements for such sidewalks and trails in such locations as determined by the Director of Parks and Recreation Services. Sidewalks and trails shall be constructed in the following locations: A. A five-foot wide concrete sidewalk to be located along the west side of Sky Lane,the north sides of Street A and Street B as depicted in the Plans. B. An eight-foot wide bituminous trail to be located within Outlot A from Sky Lane to westerly to the storm water pond as depicted in the Plans. Developer shall complete implementation of the approved plans in accordance with the terms of Exhibit C prior to issuance of any occupancy permit for the Property. Bonding in accordance with City Code shall be required for sidewalk and trail construction identified above and shown in the Plans. 19. SPECIAL ASSESSMENT AGREEMENT: Prior to the release of the final plat for the Property,an assessment agreement,in the form and substance as attached in Exhibit G,shall be signed by the owner(s) of the Property with the City for trunk sewer and water assessments on an assessable area of 31.43 acres in the amount of$181,822.55,and for Eden Prairie Road street, trail, storm sewer, and water quality improvements in the amount of $460,000.00 20. 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 streets,public sanitary sewer,water and storm sewer. Developer agrees that the utility plans contained in the Plans may require revision based on review by the City Engineer of the final construction documents to ensure adequate capacity and grade is available for other area properties. The utility construction within Eden Prairie Road shall be installed by directional drill while maintaining traffic. Plans for public infrastructures shall be of a plan view and profile on 24 x 36 plan sheets consistent with City standards. Prior to release of the final plat for the Property, Developer shall furnish to the City Engineer and receive the City Engineer's written approval of a surety equal to 125%of the cost of said improvements. 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. 21. TREE LOSS-TREE REPLACEMENT: There are 17,122 diameter inches of significant trees on the Property. Tree loss related to development on the Property is calculated at 4,474 diameter inches. Tree replacement required is 1,555 caliper inches.Prior to the issuance of any grading permit for the Property,Developer shall submit to the City Forester and receive the City Forester's written approval of a tree replacement plan for 1,555 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. 22. UTILITY EASEMENT: Prior to the issuance of any grading permit,or the release of the final plat for the Property,Developer shall provide to the City Engineer a copy of a utility easement and agreement between the Developer and the Metropolitan Airports Commission for the utility corridor to serve the Property as depicted in the Plans. 23. WETLAND PLAN: Prior to release of the final plat for any portion of the Property, Developer shall submit to the Environmental Coordinator and receive the Environmental Coordinator's approval of a Wetland Plan. The approved Wetland Plan shall be consistent with the materials and requirements shown on the Plans and as required by City Code. The Plan shall include the following elements. A. Wetland Delineation and Wetland Buffer Strip Vegetation Evaluation: Developer shall submit to the City a Wetland Buffer Strip Evaluation Report ("Buffer Report")and Wetland Delineation Report in accordance with the Wetland Plan and City Code requirements prior to release of the final plat for any portion of the Property. If the Buffer Report identifies any unacceptable vegetation or other conditions, the wetland buffer strip shall be graded, treated, reseeded and/or replanted (thereon known as "Landscaping", or "Landscaped") by the Developer within 90 days of submission of the Buffer Report. If Landscaping of the wetland buffer strip is required,the Developer shall submit a signed statement by a qualified wetland consultant, as determined by the City Manager, stating that the wetland buffer strip vegetation complies with all City requirements within 30 days of completion of the Landscaping of the wetland buffer strip. B. Annual Wetland and Wetland Buffer Strip Evaluation: Prior to release of the final plat for any portion of the Property, Developer shall submit a signed contract with a qualified wetland consultant, as determined by the City Manager and/or designee,for preparation of an Annual Wetland and Wetland Buffer Strip Evaluation Report (Annual Buffer Report) that evaluates the condition of the wetland(s) and wetland buffer strip(s). The Annual Buffer Report shall provide both an action plan and proposed cost for correction of all problems identified within the wetland(s) and/or wetland buffer strip(s). The first Annual Buffer Report shall be submitted no later than November 1 of the calendar year in which construction of the wetland and/or wetland buffer strip is commenced. Thereafter, this report shall be submitted annually until two full growing seasons following completion of the development have passed, at which point a final Annual Report shall be submitted. The final Annual Buffer Report shall be submitted two full growing seasons following completion of the development and shall evaluate the wetland(s) and wetland buffer strip(s) to determine if the wetland(s) and/or wetland buffer strip(s) remain in compliance with all City requirements. If any unacceptable conditions or vegetation are identified within the Annual Buffer Reports or final Annual Buffer Report, the Developer shall correct the area(s) identified within 90 days of submission of the Annual Buffer Report. C. Conservation Easement: Prior to release of the final plat for any portion of the Property, Developer shall submit a Conservation Easement(Exhibit H) for review and written approval by the Environmental Coordinator, for the area delineated on the Plans. Prior to release of the first building permit for the Property,Developer shall submit evidence to the Environmental Coordinator that the approved Conservation Easement has been executed by the owners of the Property platted and has been filed in the Hennepin County Recorder's/Registrar of Titles' Office. D. Wetland Buffer Strip Monuments: Prior to release of the first building permit for any portion of the Property, Developer shall install all wetland buffer strip monuments for the property. Wetland buffer strip monument locations shall be shown on the final grading plan and final plat. The post shall be a fiberglass reinforced composite post with a maximum size of 4 inch by 4 inch(4"x 4")that states "Wetland Buffer: No Mowing Allowed". The post shall be mounted to a height of a minimum of four feet above grade set at least 42 inches in the ground. The bottom of the post must be fitted with an anchor attachment that would expand upon attempted removal. Removal of the wetland buffer strip monuments is prohibited. E. Wetland Performance Bond: Prior to release of the final plat for any portion of the Property,Developer shall furnish to the Environmental Coordinator and receive the Environmental Coordinator's approval of a Wetland Plan performance bond, cash escrow,or letter of credit with a corporation approved by the City Manager or other guarantee acceptable to the City Manager(hereinafter referred to as the"Security") equal to 150% of the cost, as estimated by the City Manager, of completing said Wetland Plan requirements and/or Landscaping as depicted on the Plans and as required by City Code. Said Security shall cover costs associated with the Wetland Plan during development and for two full growing seasons following completion of the development. If the Developer fails to implement the Wetland Plan in accordance with its terms,the City may draw upon the Security in whole or in part to pay the cost of implementation. IN WITNESS WHEREOF the parties to this Agreement have caused these resents to be p ?n P executed as of the day and year aforesaid. DEVELOPER CITY OF EDEN PRAIRIE EPIC Development,LLC By By Its Nancy Tyra-Lukens 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 ,2005, 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 MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,by , the ,of EPIC Development,LLC, a Minnesota limited liability company, on behalf of the company. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 ACKNOWLEDGEMENT AND JOINDER OF LARRY S.KACHER AND PAULINE M.KACHER Larry S. Kacher and Pauline M. Kacher, husband and wife, by execution hereof, hereby agrees to perform the EPIC Development,LLC obligations described in Paragraph 4 as it relates to Lot 1, Block 1 depicted in the Exhibit B Plans hereof and otherwise comply with the terms and conditions of this Agreement relating thereto. Larry S. Kacher Pauline M. Kacher STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2005,by Larry S. Kacher and Pauline M. Kacher,husband and wife. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 EXHIBIT A DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK Legal Description Before Final Plat Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22,lying Easterly of the following described line,said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22; thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described; thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet;thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet; thence North 45 degrees 06 minutes 13 seconds West 51.68 feet; thence North 7 degrees 14 minutes 21 seconds West 41.17 feet; thence North 24 degrees 07 minutes 45 seconds East 48.59 feet; thence North 62 degrees 40 minutes 26 seconds West 37.33 feet;thence North 13 degrees 12 minutes 00 seconds West 54.65 feet; thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet; thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet; thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 3 5.3 1 feet; thence North 16 degrees 40 minutes 01 seconds East 42.78 feet; thence North 68 degrees 00 minutes 45 seconds East 62.35 feet; thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet; thence North 41 degrees 03 minutes 01 seconds East 135.95 feet; thence North 5 degrees 47 minutes 24 seconds East 78.55 feet; thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet;thence North 15 degrees 38 minutes 10 seconds East 31.54 feet; thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet; thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County, Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4,Block 1, Cedar Hills West Addition. Legal Description After Final Plat Lots 1-17,Block 1; Lots 1-11,Block 2; Lots 1-6, Block 3; Lots 1-5, Block 4; THE RIDGE AT RILEY CREEK,Hennepin County,MN. EXHIBIT B DEVELOPMENT AGREEMENT—THE RIDGE AT RILEY CREEK PLANS 1. Cover Sheet dated 04/04/05 by Ryan Engineering 2. P-1 Existing Conditions dated 03/29/05 by Ryan Engineering 3. P-2 Preliminary Plat dated 03/29/05 by Ryan Engineering 4. P-3 Preliminary Plat dated 04/04/05 by Ryan Engineering 5. P-4 Preliminary Site and Utility Plan dated 04/04/05 by Ryan Engineering 6. P-5 Preliminary Site and Utility Plan dated 03/29/05 by Ryan Engineering 7. P-6 Preliminary Grading and Erosion Control Plan dated 04/04/05 by Ryan Engineering 8. P-6A Preliminary Grading and Erosion Control Plan dated 04/04/05 by Ryan Engineering 9. P-7 Preliminary Tree Replacement Plan dated 03/29/05 by Ryan Engineering 10. P-7A Preliminary Tree Replacement Plan dated 04/04/05 by Ryan Engineering EXHIBIT C DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK I. Prior to release of any building permit, Developer shall submit to the City Engineer for approval two copies of a development plan(V=100'scale)showing existing 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. III. 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 Rezoning, Site Plan review and/or Guide 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 the Property and the Owners,their successors and assigns of the Property. 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. VII. Developer represents that it has marketable fee title to the Property,except: A. Scott A. Berg B. Darcy Rae Muniz C. Laseski Family Enterprises, LLC D. Larry S. Kacher and Pauline M. Kacher 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 release of the final plat,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. XII. 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, except as otherwise authorized in the approved Plans, 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(I = 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 '/2 by 6 inch sign or decal reading "Scenic/Conservation Easement Boundary,City of Eden Prairie",will be affixed to the top of the post. XIX. Within 10 days of the approval of the Development Agreement,the Developer shall record the Development Agreement at the County Recorder and/or Registrar of Titles. The final plat shall not be released until proof of filing of the Development Agreement is submitted to the City. XX. The City is hereby granted the option, but not the obligation, to complete or cause completion in whole or part of all of the Developer's obligations under this Agreement for which a bond, letter of credit, cash deposit or other security(hereinafter referred to as the "Security")is required if the Developer defaults with respect to any term or condition in this Agreement for which Security is required and fails to cure such default(s) within ten(10) days after receipt of written notice thereof from the City;provided however if the nature of the cure is such that it is not possible to complete the cure within ten(10)days, it shall be sufficient if the Developer has initiated and is diligently pursuing such cure.The Developer acknowledges that the City does not assume any obligations or duties of the Developer with respect to any such contract agreements unless the City shall agree in writing to do so. The City may draw down on or make a claim against the Security,as appropriate,upon five (5)business days notice to the Developer,for any violation of the terms of this Agreement or if the Security is allowed to lapse prior to the end of the required term. If the obligations for which Security is required are not completed at least thirty(30)days prior to the expiration of the Security and if the Security has not then been renewed,replaced or otherwise extended beyond the expiration date, the City may also draw down or make a claim against the Security as appropriate. If the Security is drawn down on or a claim is made against the Security,the proceeds shall be used to cure the default(s) and to reimburse the City for all costs and expenses, including attorneys' fee, incurred by the City in enforcing this Agreement. XXI. The Developer hereby grants the City, it's agents, employees, officers and contractors a license to enter the Property to perform all work and inspections deemed appropriate by the City in conjunction with this Agreement. XXII. This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person,including the public at large,so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof,or otherwise give rise to any cause of action for any person not a party hereto. EXHIBIT D DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK 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. I r water o s. f eroded soils enter, or entrance appears imminent into wetlands or other Pp 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 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 may be 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 full comply therewith to the satisfaction of the City of g � �' Y p Y ty Eden Prairie, Minnesota. By: NOT TO BE SIGNED By: NOT TO BE SIGNED Owner's Signature Applicant's Signature DEVELOPMENT NAME: Lot: Block: OWNER INFORMATION OWNER(PRINT): ADDRESS CITY STATE ZIP EXHIBIT E DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK CONSERVATION/SCENIC EASEMENT THIS EASEMENT AGREEMENT is made this day of ,2005, by and between EPIC Development, LLC, a limited liability company, hereinafter referred to as "Grantor," and the CITY OF EDEN PRAIRIE, a Minnesota municipal corporation, hereinafter referred to as "City"; WHEREAS,Grantor is the fee owner of land located in Hennepin County,Minnesota,more fully described in Exhibit A, attached hereto and made a part hereof, and said land hereinafter referred to as "the Property"; and, WHEREAS, Grantor has marketable title to the Property, free and clear of all liens, mortgage, and encumbrances, except: WHEREAS, Grantor and City wish to enter into an agreement which will grant to City a conservancy/scenic easement for conservation and preservation of the terrain and vegetation,and to prohibit certain destructive acts thereon,over that portion of the Property as described in Exhibit B, hereinafter referred to as the 'Basement Area, attached hereto; NOW,THEREFORE,in consideration of the premises contained herein,it is agreed by the parties as follows: 1. Grantor hereby conveys to City and its successors and assigns a conservation and scenic easement in,under,on,and over the Easement Area and City hereby accepts such conveyance. 2. The following terms and conditions shall apply to the Easement Area: A. The Easement Area shall be preserved predominantly in its natural condition. No trees, shrubs, or other vegetation shall be planted or removed from the Easement Area without the prior written consent of the City. The City will consider removal of noxious weeds, as defined by Minnesota Statutes Sections 18.76-18.88, upon submission and approval of a Vegetation Management Plan. No vegetation cutting,fertilizer application or placement of turfgrass, such as Kentucky bluegrass, shall occur within the Easement Area. B. No building,road,sign,billboard,utility,or other structure shall be placed in the Easement Area without the prior written consent of City. C. No trash, waste,or other offensive material, soil,or landfill shall be placed upon or within the Easement Area without the prior written consent of the City. D. No change in the general topography of the Easement Area landscape, including,but not limited,to excavation,dredging,movement,and removal or placement of soil, shall be allowed within the Easement Area without the prior written consent of the City. 3. With respect to the Easement Area, Grantor represents and warrants as follows: A. That Grantor has marketable title free and clear of all liens, encumbrances and mortgages. B. That Grantor has not used,employed,deposited,stored,disposed of, placed or otherwise allowed to come in or on the EasementArea,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 Grantor has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Easement Area, any Hazardous Substances; D. That no previous owner,operator or possessor of the easement area, deposited, stored,disposed of,placed,or otherwise allowed in or on the Easement Area any Hazardous Substances; Grantor agrees to indemnify,defend and hold harmless City,against any and all loss, costs,damage and expense,including reasonable attorney's fees and costs that City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the inaccuracy or falsity of any representation or warranty herein. 4. Grantor agrees to 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 '/2 by 6 inch sign or decal reading"Scenic/Conservation Easement Boundary, City of Eden Prairie",will be affixed to the top of the post. 5. Grantor agrees to maintain the Easement Area subject to the provisions stated herein. 6. The duration of this easement is perpetual and shall bind and inure to the benefit of the parties, their successors, and assigns. now held or hereafter it n right of City o 7. Nothing contained herein shall imps any g ty acquired to construct or maintain public utilities in or on the Easement Area. IN WITNESS WHEREOF the parties to this Agreement have caused these resents to be � P g p executed as of the day and year aforesaid. GRANTOR CITY OF EDEN PRAIRIE NOT TO BE SIGNED By NOT TO BE SIGNED Nancy Tyra-Lukens Its Mayor NOT TO BE SIGNED By NOT TO BE SIGNED Scott H.Neal Its City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005, 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 MINNESOTA ) )Ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005, by ,the ,a Minnesota , on behalf of the corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 EXHIBIT F DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK THE RIDGE AT RILEY CREEK DISCLOSURE OF INFORMATION Developer shall cause the following notice to be given,either from Developer itself or Developer's successors in interest to any portion of the Property,to all residential home purchasers of lots within the Property who intend to occupy a residence on such lot, prior to the execution of a purchase agreement or agreement to construct a residence on a lot within the Property,whichever occurs first: The Property is located near the Flying Cloud Airport, which is owned and operated by the Metropolitan Airports Commission. The Metropolitan Airports Commission currently has under consideration the expansion of the airport runways, which may affect the Property. Further information regarding the airport and the proposed expansion can be obtained from the Office of the Airside Project Manager, Telephone No.: 612-725-8371 or 612-726-8100. EXHIBIT G DEVELOPMENT AGREEMENT—THE RIDGE AT RILEY CREEK AGREEMENT REGARDING SPECIAL ASSESSMENTS THIS IS AN AGREEMENT MADE THIS day of ,2005,between the City of Eden Prairie,a municipal corporation,(the"City")and EPIC Development,LLC,a Minnesota limited liability company(the"Owner"). A. The Owner holds legal and equitable title to property described as , Hennepin County, Minnesota, which property is the subject of this Agreement and is hereinafter referred to as the"Property". B. The owner desires to develop the property in such a manner that relies upon and requires the construction of the following public improvements: 1. City's trunk utility system, including trunk sanitary sewers, trunk watermains, wells and elevated storage facilities, (all of which is hereafter referred to as the "Trunk Improvements"). 2. Storm sewer,concrete curb and gutter and bituminous street and trail,within Eden Prairie Road adjacent to the Property,(all of which is hereafter referred to as"Eden Prairie Road Improvements"). C. The parties hereto desire to enter into an Agreement concerning the financing of the construction of the Improvements all of which will inure to the benefit of the Property. AGREEMENTS IT IS HEREBY AGREED as follows: 1. The Owner consents to the levying of assessments against the Property for the construction,and maintenance of the Trunk Improvements and Eden Prairie Road Improvements as follows: a). The Property will be assessed for Trunk Improvements on 31.43 acres in an amount of$181,822.55. b). The Property will be assessed for the Eden Prairie Road Improvements in an amount not to exceed $460,000.00 in accordance with the Feasibility Study pursuant to Minnesota Statutes Chapter 429. 2. The City will prepare a Feasibility Report that will show proposed costs to be assessed against the Property and additional amounts to other lands for the Eden Prairie Road Improvements. The actual cost to be assessed against the Property for the Eden Prairie Road Improvements may differ from the amount in the Feasibility Report but shall not exceed the amount specified in paragraph 1. Actual costs to be assessed against the Property for the Eden Prairie Road Improvements shall be determined in the same manner as reported in the Feasibility Report to be prepared with respect to these improvements. 3. For purposes of determining the amount of the assessments, the costs of the Eden Prairie Road Improvements shall include, in addition to actual construction costs, administrative, interest and engineering costs and fees incurred or paid by the City in relationship to construction of the Eden Prairie Road Improvements and costs incurred for acquisition of easements and or right-of- way, including attorney fees. 4. The City's assessment records for the Property will show the assessments as a "pending assessment" until levied. 5. The Owner waives notice of any assessment hearing to be held at which hearing or hearings the assessment is to be considered by the City Council and thereafter approved and levied. 6. The Owner concurs that the benefit to the Property by virtue of the Improvements to be constructed exceeds the amount of the assessment to be levied against the Property. The Owner waives all rights it has by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessments, or the procedures used by the City in apportioning the assessments and hereby releases the City,its officers,agents and employees from any and all liability related to or arising out of the imposition or levying of the assessments. 7. This agreement shall be effective immediately. 8. This Agreement may not be terminated or amended except in writing executed by both parties hereto. OWNER CITY OF EDEN PRAIRIE A Minnesota A Minnesota Municipal Corporation By: NOT TO BE SIGNED By: NOT TO BE SIGNED Nancy Tyra-Lukens Its Mayor By: NOT TO BE SIGNED Scott H.Neal Its City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005, g g g Y by Nancy Tyra-Lukens,the Mayor,and Scott H.Neal,the City Manager,of the City of Eden Prairie,a Minnesota municipal corporation,on behalf of the corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005, by the a Minnesota ,on behalf of the Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 EXHIBIT H DEVELOPMENT AGREEMENT-THE RIDGE AT RILEY CREEK CONSERVATION/SCENIC EASEMENT THIS EASEMENT AGREEMENT is made this—day of ,2005 by and between EPIC Development, LLC, a Minnesota limited liability company, hereinafter referred to as "Grantor," and the CITY OF EDEN PRAIRIE, a Minnesota municipal corporation, hereinafter referred to as "City"; WHEREAS,Grantor is the fee owner of land located in Hennepin County,Minnesota,more fully described in Exhibit A, attached hereto and made a part hereof, and said land hereinafter referred to as "the Property"; and, WHEREAS, Grantor has marketable title to the Property, free and clear of all liens, mortgage, and encumbrances, except: WHEREAS,Grantor and City wish to enter into an agreement which will grant to the City a conservancy/scenic easement for conservation and preservation of the terrain and vegetation,and to prohibit certain destructive acts thereon,over that portion of the Property as described in Exhibit B, hereinafter referred to as the "Easement Area", attached hereto; NOW,THEREFORE,in consideration of the premises contained herein,it is agreed by the parties as follows: 1. Grantor hereby conveys to City and its successors and assigns a conservation and scenic easement in, under, on, and over the "Easement Area", and City hereby accepts such conveyance. 2. The following terms and conditions shall apply to the Easement Area: A. The Easement Area shall be preserved predominantly in its natural condition. No trees, shrubs or other vegetation shall be planted or removed from the Easement Area without the prior written consent of the City. The City will consider removal of noxious weeds, as defined by Minnesota Statutes Sections 18.76-18.88, upon submission and approval of a Vegetation Management Plan. No vegetation cutting,fertilizer application or placement of turfgrass, such as Kentucky bluegrass, shall occur within the Easement Area. B. Wetland buffer monuments must be placed at the boundaries of the wetland buffer strip as shown on Exhibit C. Removal of the wetland buffer strip monuments is not allowed. C. No building,road, sign,billboard,utility,or other structures shall be placed in the Easement Area without the prior written consent of City. D. No trash,waste,or other offensive material, soil, or landfill shall be placed upon or within the Easement Area without the prior written consent of the City. E. No change in the general topography of the Easement Area landscape, including,but not limited,to excavation,dredging,movement,and removal or placement of soil, shall be allowed within the Easement Area without the prior written consent of the City. F. Grantor may,no more than once per calendar year,remove sediment caused by stormwater drainage into a stormwater ponding area. Any removal of sediment must be pre-approved in writing by the City and be in accordance with City and Wetland Conservation Act guidelines. Landscaping must be replaced in accordance with the requirements outlined in this Conservation Easement. 3. With respect to the Easement Area, Grantor represents and warrants as follows: A. That Grantor has marketable title free and clear of all liens, encumbrances and mortgages. B. That Grantor has not used,employed,deposited,stored,disposed of, placed or otherwise allowed to come in or on the Easement Area,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 Grantor has not allowed any other person to use, employ, deposit, store, dispose of, place or otherwise have, in or on the Easement Area, any Hazardous Substances; D. That no previous owner,operator or possessor of the easement area, deposited,stored,disposed of,placed,or otherwise allowed in or on the Easement Area any Hazardous Substances; Grantor agrees to indemnify,defend and hold harmless City,against any and all loss, costs, damage and expense, including reasonable attorneys fees and costs that City incurs because of the breach of any of the above representations or warranties and/or resulting from or due to the inaccuracy or falsity of any representation or warranty herein. 4. Grantor agrees to maintain the Easement Area subject to the provisions stated herein. 5. The duration of this easement is perpetual and shall bind and inure to the benefit of the parties,their successors, and assigns. 6. Nothing contained herein shall impair any right of City now held or hereafter acquired to construct or maintain public utilities in or on the Easement Area. IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. GRANTOR CITY OF EDEN PRAIRIE NOT TO BE SIGNED By NOT TO BE SIGNED Nancy Tyra-Lukens Its Mayor NOT TO BE SIGNED BY NOT TO BE SIGNED Scott H.Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this day of ,2005, 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 MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005, by , the a Minnesota on behalf of the company. Notary Public THIS INSTRUMENT WAS DRAFTED BY: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 EXHIBIT A "THE PROPERTY" EXHIBIT B "EASEMENT AREA" EXHIBIT C "EASEMENT AREA"DIAGRAM OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN EPIC DEVLOPMENT,LLC AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT,made and entered into as of May 3,2005,by and between Scott A. Berg, an individual, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): For, and in consideration of, and to induce City to adopt Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, as more fully described in that certain Development Agreement entered into as of May 17,2005,by and between EPIC Development,LLC,a Minnesota limited liability company,and City("Development Agreement"),Owner agrees with City as follows: 1. If EPIC Development,LLC, 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. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, identified above,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement and the Development Agreement shall be binding upon and enforceable against the Property and the Owner,their 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. OWNERS CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens Its Mayor By Scott H.Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this_day of , 2005,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 MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005,by Scott A. Berg, an individual. Notary Public EXHIBIT A OWNERS SUPPLEMENT Legal Description Before Final Plat Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22,lying Easterly of the following described line,said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22; thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described; thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet;thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet; thence North 45 degrees 06 minutes 13 seconds West 51.68 feet; thence North 7 degrees 14 minutes 21 seconds West 41.17 feet; thence North 24 degrees 07 minutes 45 seconds East 48.59 feet; thence North 62 degrees 40 minutes 26 seconds West 37.33 feet;thence North 13 degrees 12 minutes 00 seconds West 54.65 feet; thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet; thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet; thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 35.31 feet; thence North 16 degrees 40 minutes 01 seconds East 42.78 feet; thence North 68 degrees 00 minutes 45 seconds East 62.35 feet; thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet; thence North 41 degrees 03 minutes 01 seconds East 135.95 feet; thence North 5 degrees 47 minutes 24 seconds East 78.55 feet; thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet;thence North 15 degrees 38 minutes 10 seconds East 31.54 feet; thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet; thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County, Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29,Township 116, Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4, Block 1, Cedar Hills West Addition. Legal Description After Final Plat Lots 1-17, Block 1; Lots 1-11,Block 2; Lots 1-6, Block 3; Lots 1-5,Block 4; THE RIDGE AT RILEY CREEK,Hennepin County,MN. OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN EPIC DEVLOPMENT,LLC AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT,made and entered into as of May 3,2005,by and between Darcy Rae Muniz, an individual, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): For, and in consideration of, and to induce City to adopt Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, as more fully described in that certain Development Agreement entered into as of May 17,2005,by and between EPIC Development,LLC,a Minnesota limited liability company,and City("Development Agreement"),Owner agrees with City as follows: 1. If EPIC Development,LLC, 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. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, identified above,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement and the Development Agreement shall be binding upon and enforceable against the Property and the Owner,their 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. OWNERS CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens Its Mayor By Scott H.Neal Its City Manager STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,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 MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,by Darcy Rae Muniz, an individual. Notary Public EXHIBIT A OWNERS SUPPLEMENT Legal Description Before Final Plat Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22,lying Easterly of the following described line,said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22; thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described; thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet;thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet; thence North 45 degrees 06 minutes 13 seconds West 51.68 feet; thence North 7 degrees 14 minutes 21 seconds West 41.17 feet; thence North 24 degrees 07 minutes 45 seconds East 48.59 feet; thence North 62 degrees 40 minutes 26 seconds West 37.33 feet;thence North 13 degrees 12 minutes 00 seconds West 54.65 feet; thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet; thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet; thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 3 5.3 1 feet;thence North 16 degrees 40 minutes 01 seconds East 42.78 feet; thence North 68 degrees 00 minutes 45 seconds East 62.35 feet; thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet; thence North 41 degrees 03 minutes 01 seconds East 135.95 feet; thence North 5 degrees 47 minutes 24 seconds East 78.55 feet; thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet;thence North 15 degrees 38 minutes 10 seconds East 31.54 feet; thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet; thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County, Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4, Block 1, Cedar Hills West Addition. Legal Description After Final Plat Lots 1-17, Block 1; Lots 1-11,Block 2; Lots 1-6, Block 3; Lots 1-5,Block 4; THE RIDGE AT RILEY CREEK,Hennepin County,MN. L OWNERS SUPP EMENT TO DEVELOPMENT AGREEMENT BETWEEN EPIC DEVLOPMENT, LLC AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT,made and entered into as of May 3, 2005,by and between Laseski Family Enterprises, LLC, a Minnesota limited liability company, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): - For, and in consideration of, and to induce City to adopt Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, as more fully described in that certain Development Agreement entered into as of May 17,2005,by and between EPIC Development,LLC,a Minnesota limited liability company,and City("Development Agreement"),Owner agrees with City as follows: 1. If EPIC Development,LLC, 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. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat,identified above,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement and the Development Agreement shall be binding upon and enforceable against the Property and the Owner,their 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. I IN WITNESS WHEREOF,the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. OWNERS CITY OF EDEN PRAIRIE Laseski Family Enterprises, LLC BY BY Nancy Tyra-Lukens Its Mayor BY BY Scott H.Neal Its City Manager STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,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 MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,by the of Laseski Family Enterprises, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public EXHIBIT A OWNERS SUPPLEMENT Legal Description Before Final Plat Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22,lying Easterly of the following described line,said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22; thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described; thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet;thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet; thence North 45 degrees 06 minutes 13 seconds West 51.68 feet; thence North 7 degrees 14 minutes 21 seconds West 41.17 feet; thence North 24 degrees 07 minutes 45 seconds East 48.59 feet; thence North 62 degrees 40 minutes 26 seconds West 37.33 feet;thence North 13 degrees 12 minutes 00 seconds West 54.65 feet; thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet; thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet; thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 35.31 feet; thence North 16 degrees 40 minutes 01 seconds East 42.78 feet;thence North 68 degrees 00 minutes 45 seconds East 62.35 feet; thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet; thence North 41 degrees 03 minutes 01 seconds East 135.95 feet; thence North 5 degrees 47 minutes 24 seconds East 78.55 feet; thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet; thence North 15 degrees 38 minutes 10 seconds East 31.54 feet; thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet; thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County,Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29,Township 116, Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4,Block 1, Cedar Hills West Addition. Legal Description After Final Plat Lots 1-17, Block 1; Lots 1-11,Block 2; Lots 1-6, Block 3; Lots 1-5,Block 4; THE RIDGE AT RILEY CREEK,Hennepin County, MN. OWNERS' SUPPLEMENT TO DEVELOPMENT AGREEMENT BETWEEN EPIC DEVLOPMENT, LLC AND THE CITY OF EDEN PRAIRIE THIS AGREEMENT,made and entered into as of May 3,2005,by and between Larry S.Kacher and Pauline M. Kacher, husband and wife, ("Owner"), and the CITY OF EDEN PRAIRIE ("City"): For, and in consideration of, and to induce City to adopt Resolution No. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, as more fully described in that certain Development Agreement entered into as of May 17,2005,by and between EPIC Development,LLC,a Minnesota limited liability company,and City("Development Agreement"),Owner agrees with City as follows: 1. If EPIC Development,LLC, 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. for Planned Unit Development Concept Review, Ordinance No. for Planned Unit Development District Review and Zoning District Change from Rural to R1-13.5, and Resolution No. for Preliminary Plat, identified above,thus restoring the status of the Property before the Development Agreement and all approvals listed above were approved. 2. This Agreement and the Development Agreement shall be binding upon and enforceable against the Property and the Owner,their 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 b City Code to develop the Property in a manner other than as set forth in this Y t1' p P rtY Agreement. IN WITNESS WHEREOF, the parties to this Agreement have caused these presents to be executed as of the day and year aforesaid. OWNERS CITY OF EDEN PRAIRIE By Nancy Tyra-Lukens Its Mayor By Scott H.Neal Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of ,2005,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 MINNESOTA ) ) Ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005,by Larry S. Kacher and Pauline M. Kacher,husband and wife. Notary Public EXHIBIT A OWNERS SUPPLEMENT Legal Description Before Final Plat Parcel A: That portion of the Southeast Quarter of the Northwest Quarter of Section 29,Township 116,Range 22,lying Easterly of the following described line,said line also being the center line of Riley Creek, according to the United States Government Survey thereof, and situated in Hennepin County, Minnesota. Commencing at the Southwest corner of the Southeast Quarter of the Northwest Quarter of Section 29, Township 116, Range 22; thence South 89 degrees 26 minutes 44 seconds East, assumed bearing, along the South line of said Southeast Quarter of Northwest Quarter a distance of 730.69 feet to the point of beginning of the line to be described; thence North 28 degrees 30 minutes 46 seconds East 28.45 feet;thence North 2 degrees 28 minutes 52 seconds East 16.34 feet;thence North 44 degrees 55 minutes 06 seconds West 27.86 feet;thence North 2 degrees 14 minutes 49 seconds East 60.29 feet; thence North 45 degrees 06 minutes 13 seconds West 51.68 feet; thence North 7 degrees 14 minutes 21 seconds West 41.17 feet; thence North 24 degrees 07 minutes 45 seconds East 48.59 feet; thence North 62 degrees 40 minutes 26 seconds West 37.33 feet; thence North 13 degrees 12 minutes 00 seconds West 54.65 feet; thence North 28 degrees 50 minutes 32 seconds West 37.39 feet;thence North 16 degrees 58 minutes 08 seconds West 48.66 feet;thence North 46 degrees 28 minutes 27 seconds West 59.03 feet; thence South 65 degrees 42 minutes 13 seconds West 51.15 feet;thence North 18 degrees 06 minutes 01 seconds West 77.67 feet;thence North 56 degrees 54 minutes 59 seconds West 53.85 feet; thence North 45 degrees 07 minutes 45 seconds West 53.88 feet;thence North 66 degrees 39 minutes 08 seconds West 81.60 feet;thence South 30 degrees 02 minutes 29 seconds West 31.01 feet; thence South 62 degrees 52 minutes 44 seconds West 34.77 feet;thence North 46 degrees 40 minutes 36 seconds West 32.24 feet;thence North 21 degrees 04 minutes 01 seconds West 61.28 feet; thence North 62 degrees 48 minutes 45 seconds West 35.31 feet; thence North 16 degrees 40 minutes 01 seconds East 42.78 feet; thence North 68 degrees 00 minutes 45 seconds East 62.35 feet; thence North 39 degrees 26 minutes 09 seconds West 48.43 feet;thence North 47 degrees 28 minutes 48 seconds West 31.22 feet;thence North 36 degrees 44 minutes 10 seconds West 60.08 feet; thence North 41 degrees 03 minutes 01 seconds East 135.95 feet; thence North 5 degrees 47 minutes 24 seconds East 78.55 feet; thence North 1 degree 41 minutes 33 seconds West 44.56 feet;thence North 39 degrees 18 minutes 01 seconds East 30.94 feet;thence North 1 degree 18 minutes 39 seconds West 16.66 feet;thence North 50 degrees 44 minutes 41 seconds East 26.84 feet;thence North 15 degrees 38 minutes 10 seconds East 31.54 feet; thence North 43 degrees 31 minutes 17 seconds East 53.95 feet; thence North 57 degrees 30 minutes 34 seconds East 53.75 feet;thence North 32 degrees 57 minutes 45 seconds East 40.17 feet; thence North 11 degrees 42 minutes 37 seconds East 54.13 feet;thence North 27 degrees 48 minutes 25 seconds West 13.13 feet to the North line of said Southeast Quarter of the Northwest Quarter and there said line terminates. Hennepin County, Minnesota Abstract Property Parcel C: That part of the Northeast Quarter of the Northwest Quarter of Section 29,Township 116, Range 22 lying Southerly of center line of Riley Creek abstract. Parcel D: Lot 4, Block 1, Cedar Hills West Addition. Legal Description After Final Plat Lots 1-17,Block 1; Lots 1-11,Block 2; Lots 1-6, Block 3; Lots 1-5,Block 4; THE RIDGE AT RILEY CREEK,Hennepin County,MN. CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda 05/03/05 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/Planning Hennepin Village—Eden Bluff VII.B. Janet Jeremiah Holdings LLC Requested Action Move to: Approve the Developer Agreement for Eden Bluff Holdings LLC. Synopsis This is the developer agreement describing the amendment to the guide plan and pud approved by the City Council at the January 18, 2005 meeting. The approved plan includes the following. • Building sites 1, 2, and 3 be guided both office and industrial. • Building sites 4, 5, and 6 be guided office. • Building sites 7, 8, and 9 be guided office, industrial and neighborhood commercial. • Building sites 1,2, and 3 concept approval 205,000 square feet office and industrial. • Building sites 4, 5, and 6 concept approval for 228,000—352,000 square feet office. • Building sites 7, 8, and 9 concept approval for 30,000 square feet neighborhood commercial and 64,400 square feet office and industrial. The agreement also includes provisions for the construction of Charlson Road, construction of the Charslon Road intersection with Highway 212, and dedication of 11.5 acres of land to the City for park purposes along the bluff. Attachments 1. Developer Agreement FINAL DEVELOPMENT AGREEMENT EDEN BLUFF HOLDINGS-IENNEPIN OFFICE LP THIS AGREEMENT made and entered into as of March 1, 2005, by EDEN BLUFF HOLDINGS LLC, a Minnesota limited liability corporation, hereinafter referred to as "Developer,"and the CITY OF EDEN PRAIRIE,a municipal corporation,hereinafter referred to as"City"; WHEREAS, Developer has applied for Comprehensive Guide Plan Change from Office to Industrial/Office on 20 acres and from Office and Neighborhood Commercial to Office, Industrial,and Neighborhood Commercial on 14 acres,and Planned Unit Development Concept Amendment on 51 acres,which acreage is legally described on Exhibit A(the"Property"); WHEREAS, the Property and other land was the subject of that certain development agreement entitled "Development Agreement, Hennepin Village Sites C and D, Office and Neighborhood Commercial made and entered into as of May 5,2003,by HENNEPIN VILLAGE LIMITED PARTNERSHIP,a Minnesota Iimited partnership and the City(hereinafter referred to as "Sites C and D Development Agreement"), and HENNEPIN VILLAGE LIMITED PARTNERSHIP subsequently conveyed the Property to HENNEPIN VILLAGE OFFICE LIMITED PARTNERSHIP,a Minnesota limited partnership("Hennepin Office LP"); NOW THEREFORE in consideration of the City adopting Resolution No. > ty for Planned Unit Development Concept Review, Developer agrees to develop the Property as follows: 1. PLANS. Developer shall develop the Property in conformance with the materials revised and stamp dated January 18, 2005, reviewed and approved by the City Council on January 18,2005,and attached hereto as the Plans("Plans")and identified in Exhibit B. 2. EXHIBIT C: Developer agrees to the terms, covenants, agreements, and conditions set forth in Exhibit C. 3. DEDICATION OF PARK LAND: Prior to release of the final plat for the Property, Developer shall dedicate to City the property known as Outlot C on the proposed preliminary plat of Eden Bluff more fully described on Exhibit F ("Outlot C") for park purposes in accordance with the terms of Exhibit C. Property dedicated for park purposes shall be maintained exclusively by the City and Developer shall have no responsibility therefor. In addition to the dedication provided for in this paragraph, Developer shall pay park cash fees as required by paragraph III of Exhibit C attached hereto. 4. DEVELOPER'S RESPONSIBILITY FOR CODE VIOLATIONS: In the event of a violation of City Code relating to development of, or construction on the Property 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, errors or omissions of Developer or Developer's consultants, contractors, subcontractors, suppliers and. agents; provided, however, that the indemnification obligations of Developer set forth herein shall not extend to such matters arising out of the City's own negligence. 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. The materials and colors must be consistent with the Hennepin Village Design Manual dated November 13, 2001, by Westwood Professional Services, Inc. (hereinafter referred to as Design Framework Manual"). 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. FUTURE DEVELOPMENT: Prior to the issuance of any building per on the Property as depicted in the Plans, Developer shall submit the plans required by the Eden Prairie City Code for review and approval by the Community Planning Board and City Council. These plans shall be developed in accordance with the following conditions, —2— a. The Developer has agreed and therefore shall dedicate on the plat the property described as Outlot C on Exhibit F. b. The access to the proposed Neighborhood Convenience Center within the Property should be located 1/8th mile from Highway 212,coordinated with access to the west,and located to provide adequate site distance. C. Access to Charlson Road shall be at 1/8th mile spacing. d. Rear yard drainage on the Property shall be directed back to internal streets in order to manage the Prairie Bluff Conservation Area as a dry prairie. e. The actual amount of office, industrial and commercial that can be built shall be based on detailed plans presented at the time of rezoning. f. Construct trails and sidewalks as further described in this Agreement. g. Developer is required to receive zoning approval, site plan approval and platting approval prior to building permit issuance for any portion of the Property. 8. GRADING, DRAINAGE,AND EROSION CONTROL PLANS: a. FINAL GRADING AND DRAINAGE PLAN: Developer agrees that the grading and drainage plan contained in the Plans is conceptual. Prior to the release of a land alteration permit for any portion of the Property, Developer shall submit and obtain the City Engineer's written approval of a final grading and drainage plan for the area included within the requested permit. The final grading and drainage plan shall include pond designs for wet basins with adequate storage for the calculated NURP and 100 year flood events, 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 that Hennepin Office LP the General Partner drainage plan. City acknowledges p of which is the Pemtom Land Company) has submitted a revised grading plan (prepared by Westwood Professional Services, Inc. ("Westwood")) dated —April ,� 13 2005 the Final Grading Plan and tha t the Cityis reviewing the same. ( g } g Upon final review and approval by the City of the Final Grading Plan, if granted, Hennepin Office LP shall complete the final grading of the Property as more fully described in Section 12(B) hereof, except for final grading pertaining to pads to be constructed upon the Property, the plans for which shall be subsequently submitted by Developer as the Property is developed. b. Developer shall employ the design professional who prepared the Final Grading Plan. The design professional shall monitor construction for conformance to the approved Final Grading Plan and City erosion control policy. The design professional shall provide a final report to the City certifying completion of the —3— grading in conformance the approved Final Grading Plan and City erosion control policy. C. 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 area to be graded. 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. The City acknowledges that the erosion control plan is described in the Final Grading Plan described in Section 8(a)above. Developer shall remove any sediment that accumulates in the existing and/or proposed sedimentation ponds during construction. Developer shall provide preconstruction and post construction surveys for evaluation by City. d. Prior to grading on MAC property, Developer shall obtain temporary grading easements from MAC. 9. IRRIGATION PLAN: Prior to building permit issuance for any lot within the Property, Developer shall submit to the City Planner and receive the City Planner's written approval of a plan for irrigation of the landscaped areas for such lot. The irrigation plan shall be designed so that water is not directed on or over public trails and sidewalks. Developer shall complete implementation of the approved irrigation plan in accordance with the terms and conditions of Exhibit C prior to issuance of the occupancy permits for any structure on such lot. 10. LANDSCAPE PLAN: Prior to building permit issuance for any lot within the Property, the Developer shall submit to the City Planner and receive the City Planner's written approval of a final landscape plan for such lot. 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 or letter of credit in an amount equal to 150%of the cost of'said improvements as required by City Code. Prior to issuance of the occupancy permit for any lot, Developer shall complete implementation of the approved landscape plan for such lot in accordance with the terms and conditions of Exhibit C. The bond furnished by Developer may be provided by the landscape contractor provided the City Planner approves said landscape bond as provided above, and provided that the rights of the City as obligee under such bond are not impaired or affected in any manner by any default or failure of the Developer to perform any condition or obligation under or pursuant to the Developer's contract with the landscape contractor. —4— 11. PERFORMANCE STANDARDS: Developer agrees that the development of the P g P Property will occur in a manner meeting all applicable noise, vibration, dust and dirt, smoke, odor and glare laws and regulations. 12, COMPLETION OF CHARLSON ROAD IMPROVEMENTS: Prior to the issuanceof any occupancy permit for the Property the following street and utility improvements shall have been constructed and accepted by the City: a. The Developer and the City shall have completed the improvements described in paragraph 13,the Developer shall have completed the improvements described in paragraph 14, and Hennepin Office LP shall have completed the improvements described in paragraphl5 hereof. b. Hennepin Office LP, on behalf of Developer, shall have completed Charlson Road from Liatris Lane to within 200 feet of T.H. 212 (Flying Cloud Drive). Prior to issuance by the City of any permit for the construction of such improvements, Developer shall submit to the City Engineer, and obtain the City Engineer's written approval of final plans for public streets, sanitary sewer, water and storm sewer. A rear yard storm sewer system to collect storm water from lots abuttingsteep slopes is required. Plans for public infrastructure shall be of a plan P P 9 view and profile on 22 x 34 plan sheets consistent with City standards, Hennepin Office LP shall pay a permit fee of five percent of construction value of infrastructure improvements dedicated to the City. The design engineer shall provide daily inspection, certify completion in conformance to approved plans ands specifications and provide record drawings. P P g 13. TH 212 AND CHARLSON ROAD IMPROVEMENTS: The improvements described in the Preliminary Construction Plans titled T.H. 212 and CHARLSON ROAD, prepared by SRF Consulting Group,Inc. and dated March 2,2005 ("SRF Plans") are hereinafter referred to as the "TH 212/Charlson Road Improvements." All parties agree that they have received and are in possession of the SRF Plans. The TH 212/ Charlson Road Improvements include the construction of a second westbound through lane, a center median, and left and right turning lanes on TH 212,the complete construction of the last 200 feet of Charlson Road, and a new traffic signal system at the TH 212 and Charlson Road intersection. Developer shall enter into a special assessment agreement {"Special Assessment Agreement") with the City in substantially the form attached hereto as Exhibit E pursuant to which City shall construct the TH 212/Charlson vements substantial) in accordance with the SRF Plans. The actual Road Improvements P Y final assessment amount for the Special Assessment Agreement shall consist of the actua l P construction costs and related project expenses including but not limited to the costs of capitalized interest, legal expenses, engineering services, testing, and bond placement costs. In addition to the foregoing: a. City and Developer acknowledge that the City will complete, at its expense, without any charge to the Developer (i) the proposed pedestrian underpass southerly from the Property underneath TH 212; —5— b. The Special Assessment Agreement will call for the special assessments against the Property from the TH 212/Charlson Road Improvements to (i)have a term of twenty (20) years, (ii) have an interest rate not in excess of 150 basis points over the bid rate obtained and selected by the City,and (iii)provide for a waiver of the City's 9% administrative fee. The City will consider sale of the special assessment bonds on a private placement basis to private party designated by Developer. Further,the special assessment shall be prepayable only to the extent the underlying bonds sold in connection with the special assessment by the City are concurrently prepaid therewith. 14. DEDICATION OF TH 212 RIGHT-OF-WAY: The Developer shall convey, at no cost to the City or the State,the proposed right-of-way for TH 212 as shown in the SRF Plans. In addition, the Developer shall grant, at no cost to the City or State, Temporary Construction Easements necessary to construct the TH 212/Charlson Road Improvements upon terms and conditions reasonably acceptable to Developer, with such temporary easements to be of reasonable scope and for a reasonable term. 15. GRADING OF SLOPES ADJACENT TO TH 212: The Developer is responsible for grading and restoring the slopes to the west of the proposed Charlson Road that are adjacent to and north of TH 212. The grading shall be completed as detailed in the SRF Plans. The grading should be coordinated with on-site grading and the construction of the TH 212 and Charlson Road Improvements. The Developer is responsible for obtaining all necessary permits and approvals associated with the grading work. 16. PUD WAIVERS GRANTED: Not applicable. 17. RETAINING WALLS: Prior to issuance by the City of any permit for grading or construction on any lot, Developer shall submit to the Chief Building Official, and obtain the Chief Building Official's written approval of detailed plans for any retaining walls on such lot identified on the grading plan in the Plans. These plans shall include details with respect to the height,type of materials, and method of construction to be used for the retaining walls. Developer shall complete implementation of the approved retaining wall plan in accordance with the terms and conditions of Exhibit C, attached hereto,prior to issuance of any such permit for said lot. 18. SIDEWALK AND TRAIL CONSTRUCTION: Prior to issuance by City of any building permit on the Property, Developer shall submit to the Director of Parks and Recreation Services and obtain the Director's written approval of detailed plans for sidewalks and trails to be constructed on the Property. Developer shall convey access easements for such sidewalks and trails in such locations as reasonably required by the Director of Parks and Recreation Services for access thereto. Sidewalks and trails shall be constructed in the following locations: a. An eight-foot wide bituminous trail to be located on the east side of Liatris Lane from Charlson Road to Junegrass Lane as depicted in the Plans. This trail will be completed by Hennepin Office LP as more fully described in Section 23 below. —6— b. An eight-foot wide bituminous trail to be located on the south side of Charlson Road from Liatris Lane to T.H. 212 as depicted in the Plans. This trail will be completed by Hennepin Office LP as more fully described in Section 23 below, except for the most southerly 200 feet thereof (which most southerly 200 feet shall be completed by Developer). C. An eight-foot wide bituminous trail or a five-foot wide concrete sidewalk to be located from Charlson Road proceeding west to the trail connection at Junegrass Lane. d. An eight-foot wide bituminous trail to be located within Outiot C. Developer shall be responsible to construct said trail as depicted in the Plans; provided, however, the parties acknowledge that Hennepin Office LP will be constructing the trail on behalf of Developer as more fully described in Section 23 below. The City shall reimburse the Developer for its actual costs of construction. Prior to construction the Developer shall submit to and receive approval from the Director of Parks and Recreation Services of the amount of said reimbursement. Developer shall complete implementation of the approved sidewalk and trail plans in accordance with the terms of Exhibit C prior to issuance of any occupancy permit for the Property. 19. 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. 20. 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 lighting on the Property. All pole lighting shall consist of downcast shoebox fixtures not to exceed ZO feet in height. Developer shall complete implementation of the approved lighting plan prior to issuance of any occupancy permit for the Property. 21. TREE LOSS - TREE REPLACEMENT: Tree loss related to development on the Property is calculated at 1,288 diameter inches. Tree replacement required is 1,288 caliper inches. Prior to the issuance of any grading permit for the Property,Developer shall submit to the City Forester and receive the City Forester's written approval of a tree replacement plan for 1,288 caliper inches. This approved plan shall include 152 replacement shade trees of a 4-inch diameter minimum size and 170 conifer trees with a 10-foot minimum height. 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. —7— Developer shall complete implementation of the approved tree replacement plan prior to occupancy permit issuance. 22. SPECIAL ASSESSMENT AGREEMENT: Prior to the release of the final plat for the Property, Developer shall sign the Special Assessment Agreement more fully described in Paragraph 13. Developer acknowledges and agrees that trunk sewer and water assessments may be levied by the City at prevailing rates in the year assessed against the Property with each portion of the Property platted based on the gross area of each portion platted. Prior to the release of a final plat for any portion of the Property Developer shall sign an assessment agreement for trunk sewer and water assessments. 23. HENNEPIN OFFICE LP PERFORMANCE OF CERTAIN OBLIGATIONS. Notwithstanding anything contained herein to the contrary, Seller, City and Hennepin Office LP (pursuant to the acknowledgment and joinder of Hennepin Office LP set forth below) acknowledge and agree that the obligations described in the following paragraphs shall be performed by Hennepin Office LP: 8(a), 8(b), 8(c), 8(d), 12(b), 15, 18(a), 18(b)(except the most southerly 200 feet of Charlson Road), and 18(d) (collectively, "Hennepin Office Obligations"). Any bonding requirements in connection with the Hennepin Office Obligations shall be posted and maintained by Hennepin Office LP. 24. PRIOR DEVELOPMENT AGREEMENT: As to the Property this Agreement supersedes in its entirety the Sites C and D Development Agreement. 25. COUNTERPARTS. This Agreement may be executed in multiple counterparts which, when taken together,shall constitute one and the same agreement. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] —8— Eden Bluff Holdings LLC CITY OF EDEN PRAIRIE a Minnesota limited liability corporation r Investment L By: United Properties Invest LC, a Minnesota limited liability company Nancy Tyra-Lukens,Mayor Its: Sole,l`Ofem�er By: f�a Fr J. Dutk Its: Executive Vice President Scott H.Neal,City Manager By: William P.Katter Its: Vice President STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2005, 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 MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ZZday of / t/ 2005, by Frank J. Dutke, and William P. Katter, executive vice president and vic president of United Properties Investment LLC, a Minnesota limited liability company, on behalf of the limited liability company. v�---- ROBIN LEE MELCHER Notary Pdbfic NOTARY PUBLIC-MINNESOTA MY COMMISSION EXPIRES 1/31/2010 Oppop —9— ACKNOWLEDGEMENT AND JOINDER OF HENNEPIN OFFICE LP Hennepin Village Office Limited Partnership, a Minnesota limited partnership, by execution hereof, hereby agrees to perform the Hennepin Office Obligations described in Paragraph 23 hereof and otherwise comply with the terms and conditions of this Agreement relating thereto. Hennepin Village Office Limited Partnership, a Minnesota limited partnership By: The Pemtom Land Company, a Minnesota corporation Its: General Partner By: Aatm�dol Margar C. Miller Its: Treasurer STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this,;day of R Air I , 2005, by 'Margaret C. Miller, Treasurer of The Pemtom Land Company,a MN Corporation the General Partner of Hennepin Village Limited Partnership, a Minnesota limited partnership, on behalf of the limited partnership. NoC4 Public (p JAMIE M. SCHWANTZ NOTARY PUBLIC,MINNESOTA MY COMMISSION EXPIRES JAN 31 201 0 - 10- EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Tracts D and E of Registered Land Survey 1737; Together with that part of the Southeast Quarter of Section 28, Township 116, Range 22, Hennepin County, Minnesota lying easterly and southerly of Tract D, Registered Land Survey No. 1667, files of the Hennepin County Registrar of Titles and lying northerly of Flying Cloud Drive, EXCEPT that part of said Southeast Quarter which lies northerly of a line described as beginning at the southeast corner of the Northeast Quarter of the Southeast Quarter;thence North 72 degrees 17 minutes 46 seconds west, assuming the East line of said Southeast Quarter bears North 00 degrees 17 minutes 55 seconds west,a distance of 1045.32 feet to the East line of Tract D and said line there terminating, and EXCEPT that part shown as Parcel 210 on the plat designated as State Highway Right of Way Plat No. 27-3, according to the U.S. Government survey thereof for Hennepin County,Minnesota. EXHIBIT B PLANS Master Site Plan,dated January 18,2005,by Ed Farr Architects, Inc. EXHIBIT C DEVELOPMENT AGREEMENT—EDEN BLUFF HOLDINGS-HENNEPIN OFFICE LP 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 existing 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. I1. 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, III. 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 Rezoning, Site Plan review and/or Guide 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 the Property and the Owners,their successors and assigns of the Property. 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. VII. Developer represents that it has marketable fee title to the Property,except: INSERT ANY NAME/COMPANY LISTED IN ANY OWNER'S SUPPLEMENT TO THE DEVELOPER'S AGREEMENT) 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. 1 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 release of the final plat, 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 2 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. XII,. 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, except as otherwise authorized in the approved Plans, 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 %:by b inch sign or decal reading "Scenic/Conservation Easement Boundary, City of Eden Prairie", will be affixed to the top of the post. XIX. Within 10 days of the approval of the Development Agreement, the Developer shall record the Development Agreement at the County Recorder and/ or Registrar of Titles. The final plat shall not be released until proof of filing of the Development Agreement is submitted to the City. XX. The City is hereby granted the option, but not the obligation, to complete or cause completion in whole or part of all of the Developer's obligations under this Agreement 3 for which a bond, letter of credit, cash deposit or other security hereinafter referred to as the"Security") is required if the Developer defaults with respect to any term or condition in this Agreement for which Security is required and fails to cure such default(s) within ten (10) days after receipt of written notice thereof from the City; provided however if the nature of the cure is such that it is not possible to complete the cure within ten (10) days, it shall be sufficient if the Developer has initiated and is diligently pursuing such cure. The Developer acknowledges that the City does not assume any obligations or duties of the Developer with respect to any such contract agreements unless the City shall agree in writing to do so. The City may draw down on or make a claim against the Security, as appropriate, upon five (5) business days notice to the Developer, for any violation of the terms of this Agreement or if the Security is allowed to lapse prior to the end of the required term. If the obligations for which Security is required are not completed at least thirty (30) days prior to the expiration of the Security and if the Security has not then been renewed, replaced or otherwise extended beyond the expiration date,the City may also draw down or make a claim against the Security as appropriate. If the Security is drawn down on or a claim is made against the Security,the proceeds shall be used to cure the default(s)and to reimburse the City for all costs and expenses, including attorneys' fee, incurred by the City in enforcing this Agreement. XXI. The Developer hereby grants the City, it's agents, employees, officers and contractors a license to enter the Property to perform all work and inspections deemed appropriate by the City in conjunction with this Agreement. ML This Agreement is a contract agreement between the City and the Developer. No provision of this Agreement inures to the benefit of any third person, including the public at large, so as to constitute any such person as a third-party beneficiary of the Agreement or of any one or more of the terms hereof, or otherwise give rise to any cause of action for any person not a party hereto. 4 EXHIBIT D DEVELOPMENT AGREEMENT—EDEN BLUFF HOLDINGS-HENNEPIN VILLAGE 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 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. 1 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 may be 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. 1, 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: NOT TO BE SIGNED By: NOT TO BE SIGNED Owner's Signature Applicant's Signature DEVELOPMENT NAME: Lot: Block: OWNER INFORMATION Owner(Print): Address City State Zip 2 EXHIBIT E DEVELOPMENT AGREEMENT—EDEN BLUFF HOLDINGS-HENNEPIN VILLAGE AGREEMENT REGARDING SPECIAL ASSESSMENTS THIS IS AN AGREEMENT MADE THIS day of , 2005, between the City of Eden Prairie, a municipal corporation, (the "City") and Eden Bluff Holdings LLC, a Minnesota limited liability company(the"Owner"). A. The Owner holds legal and equitable title to property described as , Hennepin County, Minnesota, which property is the subject of this Agreement and is hereinafter referred to as the"Property". B. The Owner desires to develop the property in such a manner requires the installation of certain improvements including . (alI of which is hereafter referred to as the"Improvement"). The costs of the Improvements shall consist of the actual construction costs, and related project expenses including but not limited to the costs of capitalized interest, legal expenses,engineering services,testing,and bond placement costs. C. The parties hereto desire to enter into an Agreement concerning the financing of the construction of the Improvements all of which will inure to the benefit of the Property. AGREEMENTS IT IS HEREBY AGREED as follows: 1. The Owner consents to the levying of assessments against the Property in an amount not to exceed$3,330,000.00 for the Improvements. The assessment shall be levied over a period of 20 years at an interest rate 1.5% over the bond bid rate obtained by the City on the bonds issued to finance the construction of the Improvements. 2. The City's assessment records for the Property will show the assessments as a "pending assessment"until levied. 3. The Owner waives notice of any assessment hearing to be held at which hearing or hearings the assessment is to be considered by the City Council and thereafter approved and levied. 4. The Owner concurs that the benefit to the Property by virtue of the Improvements to be constructed exceeds the amount of the assessment to be levied against the Property. The Owner waives all rights it has by virtue of Minnesota Statute 429.081 or otherwise to challenge the amount or validity of the assessments, or the procedures used by the City in apportioning the assessments and hereby releases the City, its officers, agents and employees from any and all liability related to or arising out of the imposition or levying of the assessments. 5. This agreement shall be effective immediately. 1 [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 2 r OWNER CITY OF EDEN PRAIRIE, A Minnesota Municipal Corporation Eden Bluff Holdings LLC, a Minnesota limited liability company By: NOT TO BE SIGNED By: NOT TO BE SIGNED Nancy Tyra-Lukens Its: Mayor By: NOT TO BE SIGNED Scott H.Neal Its: City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005, by Nancy Tyra-Lukens, the Mayor, and Scott H. Neal, the City Manager, of the City of Eden Prairie,a Minnesota municipal corporation,on behalf of the corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2005, by the of Eden Bluff Holdings LLC, a Minnesota limited liability company, on behalf of the company, Notary Public This Instrument was Drafted by: City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 3 EXHIBIT F DEVELOPMENT AGREEMENT—EDEN BLUFF HOLDINGS-HENNEPIN VILLAGE Outlot C of the proposed preliminary plat of Eden Bluff OPPENHEIMER:2322379 v04 04/19/2005 CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: I.C. 00-5508 ITEM NO.: Rodney W. Rue Receive Feasibility Report and Set VII.C. Public Works/Engineering Public Hearing for Technology Drive and Mitchell Road Improvements Requested Action Move to: Receive feasibility study and adopt resolution setting a public hearing for the Technology Drive and Mitchell Road Improvements (I.C.No. 00-5508) for 7:00 p.m., May 17, 2005. Synopsis The Assistant City Engineer has prepared a feasibility study for street reconstruction of Technology Drive and the intersection of Technology Drive and Mitchell Road. These proposed improvements are an obligation of ADC Telecommunication, Inc. (ADC), as described in their Developer's Agreement dated July 20, 1999. A public hearing is necessary for the consideration of these improvements. Background Information As described in their approved Developer's Agreement,ADC was required to construct several identified improvements on Technology Drive and at the intersection of Technology Drive and Mitchell Road. Following several amendments to the Developer's Agreement, ADC and the City of Eden Prairie have negotiated for the City to construct the improvements and assess ADC for their share through a special assessment agreement rather than the approved Tax Abatement Agreement. At the April 12, 2005 City Council meeting, several approvals occurred, including: termination of Tax Abatement Agreement, approval of Fourth Amendment to the Developer's Agreement, approval of Special Assessment Agreement, approval of Professional Services Agreement with Landform, and approval of plans and specifications and ordering advertisement of bids. The scheduled bid date for these improvements is May 5, 2005,with contract award anticipated on May 17, 2005. Attachments • Feasibility Report • Resolution CITY OF EDEN PRAIRIE TECHNOLOGY DRIVE and MITCHELL ROAD IMPROVEMENTS FEASIBILITY STUDY Street and Signal Improvements Improvement Contract No.00-5508 Prepared by: City of Eden Prairie Public Works Department Engineering Division 8080 Mitchell Road Eden Prairie,MN 55344-4485 TABLE OF CONTENTS TABLE OF CONTENTS CERTIFICATION .................................................................................................................................................................................................................................................... REPORT CONTENT I. INTRODUCTION ..................................................................................................................................................................................................... II. STREET IMPROVEMENTS ...................................................................................................................................................................... III. PROJECT FINANCING IV. CONCLUSIONS AND RECOMMENDATIONS ....................................................................................................... TABLEI ......................................................................................................................................................................................................................................................................................... PUBLICHEARING NOTICE .................................................................................................................................................................................................................... CERTIFICATION I hereby certify that this report was prepared by me or under my direct supervision and that I am a duly registered Professional Engineer under the laws of the State of Minnesota. Rodney W. Rue, P.E. Reg.No. 16695 Date I. INTRODUCTION This report presents a summary of the street improvements outlined in the Developer's Agreement with ADC Telecommunications, Inc. (ADC) dated July 20, 1999. The requested street improvements were defined during the approval of ADC's World Corporate Headquarters on 91.03 acres of property platted as Technology Campus 3rd Addition. Subsequent to several amendments to the Developer's Agreement and through recent mutually-agreeable actions from both ADC and the City of Eden Prairie, the petitioner(ADC) has requested the City to construct the identified street improvements and proposed a plan for financing said improvements. This report describes the proposed improvements, presents preliminary cost estimates, and proposes a plan for financing the improvements. II. STREET IMPROVEMENTS The proposed street improvements (as outlined in the approved Developer's Agreement, together with mutually-agreeable additional improvements) include widening Technology Drive to four lanes from Mitchell Road easterly to the existing four-lane section near the Southwest Station Transit Hub. The improvements also include the following described Mitchell Road and Technology Drive intersection improvements: • The east-bound approach on Technology Drive is proposed to be widened to a three-lane approach. The lane configuration would be a left-turn lane, a through lane and a through/right-turn lane. • The west-bound approach on Technology Drive is proposed to be widened to a four-lane approach. The lane configuration would be a left-turn lane, two through lanes and a right-turn lane. • The north-bound approach on Mitchell Road is proposed to be widened to a five-lane approach. The lane configuration would be two left-turn lanes, two through lanes and a right-turn lane. • The south-bound approach on Mitchell Road is proposed to be widened to a five-lane approach. The lane configuration would be two left-turn lanes, two through lanes and a right-turn lane. These proposed improvements, together with a new traffic signal system, will provide the necessary capacity along Technology Drive and at the intersection of Mitchell Road and Technology Drive to meet the traffic demand expected with full development of ADC's World Corporate Headquarters property. III. PROJECT FINANCING The estimated project construction cost for the described street improvements is $2,870,000. The project construct costs include items that will be the responsibility of the City of Eden Prairie and will not be included in the cost sharing amount. However, there will be additional costs for engineering and testing, which will result in a total estimated project cost of $3,100,000. See attached Table 1 for the details of the estimated project costs. As described in the approved Developer's Agreement, ADC entered into a Tax Abatement Agreement that allocated $1.4 million of tax revenue towards these improvements that are necessitated by the development. Following several amendments to the Developer's Agreement, ADC and the City reached an agreement to eliminate the Tax Abatement Agreement in favor of a Special Assessment Agreement. The Special Assessment Agreement provides for the following key components: • The City of Eden Prairie would become the project manager for the improvements with the improvements constructed in accordance with the terms of the Developer's Agreement. • The City of Eden Prairie will contribute an identical $1.4 million towards the project plus certain costs identified as additional City costs. • ADC would be assessed their portion of the costs over a ten-year period. As shown on Table 1, the total estimated project costs are allocated between ADC and the City of Eden Prairie. The estimated net cost to ADC is $1,700,000. In addition to the estimated net cost, ADC's proposed assessment will include estimated bond issuance costs of $50,000 and estimated interest on the City's share of $290,000. This results in a proposed assessment of $2,040,000,which is proposed to be assessed over a ten-year period. The City of Eden Prairie will be paying $1.4 million plus an estimated $128,000 for additional City costs, for an estimated total of$1,528,000. In addition, the City of Eden Prairie will also be responsible for other project costs not described in Table 1. These costs include relocation of the existing street light system along Technology Drive and the purchase of a new traffic signal cabinet and controller from MnDOT. The City is also proposing to install a separate pedestrian street light system along Technology Drive and Mitchell Road. It is proposed that the estimated trunk watermain costs of$68,000 will be financed by the Trunk Utility Fund. All other City costs will be finance from the City's General Fund. IV. CONCLUSIONS AND RECOMMENDATIONS Based on this study, Improvement rovement Contract No. 00-5508 is feasible, cost effective, and necessary and the resulting benefit will equal or exceed the proposed assessments to the abutting property. It is therefore recommended that the Eden Prairie City Council order the stated improvements. TABLE 1 Estimated Project Costs and Proposed Assessments I.C. 00-5508 Total Estimated Construction Costs $2,870,000 Less City Paid Items: • Trunk Watermain ($68,000)* • Signal Interconnect ($18,000)** • Mitchell Rd. South-bound Right-Turn Lane ($20,000)** • Salvage Eden Prairie Sign ($2,000)** • Decorative Planters (4) 20 000 Net Cost Subject to Cost Sharing Agreement $2,742,000 Plus Testing $50,000 Plus Engineering $308,000 Total Estimated Project Costs $3,100,000 Less City Share per Agreement ($1,400,000)** Net Cost to ADC $1,700,000 Plus Bond Issuance Cost $50,000 Plus Interest on City Share + $290,000 ($1,400,000 - $356,450 @ 3.75%) Total Amount to Be Assessed to ADC $2,040,000 * = Trunk Utility Fund ** = Financed by General Fund + = Per Agreement ADC to pay financing cost on net City share ($1,400,000 less tax revenue collected to date) CITY OF EDEN PRAIRIE NOTICE OF HEARING ON PROPOSED PUBLIC WORKS IMPROVEMENTS I.C. 00-5508 TO WHOM IT MAY CONCERN: NOTICE IS HEREBY GIVEN that the Eden Prairie City Council will meet at the Eden Prairie City Center, 8080 Mitchell Road, at 7:00 p.m. on Tuesday, May 17, 2005 to consider the making of the following described improvements: I.C. 00-5508—Street improvements on Technology Drive and Mitchell Road. The area proposed to be assessed lies in Sections 15 and 16, Township 116,Range 22. The total estimated project cost is $3,100,000. Pursuant to Minnesota State Laws, Section 429.011 to 429.111, the area proposed to be assessed for such improvements is all that property within or abutting on the above described limits. Written or oral comments relating to the proposed improvements will be received at this meeting. By Order of the City Council City of Eden Prairie 8080 Mitchell Road Eden Prairie,MN 55344 Publish: Eden Prairie Sun Current April 21 and April 28, 2005 CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2005- A RESOLUTION RECEIVING FEASIBILITY REPORT AND SETTING PUBLIC HEARING I.C. 00-5508 WHEREAS, a report has been given by the City Engineer, recommending the following improvements to wit: I.C.00-5508 Technology Drive and Mitchell Road Improvements NOW,THEREFORE,BE IT RESOLVED by the Eden Prairie City Council: 1. The Council will consider the aforesaid improvements in accordance with the report and the assessment of property abutting or within said boundaries for all or a portion of the cost of the improvement pursuant to M.S.A Section 429.011 to 429.111, at an estimated total cost of the improvements as shown. 2. A public hearing shall be held on such proposed improvement on May 17,2005 at 7:00 p.m. at the Eden Prairie City Hall, 8080 Mitchell Road. The City Clerk shall give published and mailed notice of such hearing on the improvements as required by law. ADOPTED by the Eden Prairie City Council on May 3,2005. Nancy Tyra-Lukens,Mayor ATTEST: SEAL Kathleen Porta, City Clerk CITY COUNCIL AGENDA DATE: 5/3/2005 SECTION: Consent Agenda DEPARTMENT/DIVISION ITEM DESCRIPTION: ITEM NO.: Community Development Acceptance of Bids and Awarding of Contract for VII.D. Janet Jeremiah Repair Work at Riley-Jacques House and J.R. John Gertz Cummins House Requested Action Move to: Award contract to Minnesota Construction Company in the amount of$165,220 for repair work on the Riley-Jacques House and J. R. Cummins House. Synopsis In accordance with the City's purchasing policy staff requested sealed bids from contractors for the repair work project and received 6 bids on April 14,2005. Bid results are attached. Staff is recommending that the City Council award the contract to the low bidder,Minnesota Construction Company. Background Information The repair work planned for the Riley-Jacques House and J. R. Cummins House was identified in 2001 by Miller-Dunwiddie Architects. The repairs identified were subsequently included in the City's Capital Improvement Plan(CIP) and scheduled for completion in 2005. The current CIP budget is not sufficient to allow completion of all repairs identified so staff and the Heritage Preservation Commission has prioritized the work to complete the most urgent items. All work is limited to the exterior of the houses. The majority of work will involve repair or replacement of wood trim, door and window repair,roof repair, gutter installation,masonry repointing, foundation repair and painting. Both houses are listed as Heritage Preservation Sites and the J. R. Cummins House is listed on the National Register of Historic Places. All work on the houses must meet the Secretary of the Interior's Standards for Historic Preservation Projects. The Heritage Preservation Commission reviewed the plans to ensure compliance with the standards. The Site Alteration Permits for the work were approved by the City Council on April 26,2005. Funding Source Funding for the repairs will come from the City's CIP budget and the Heritage Preservation budget as follows: CIP Project#054001 —Riley-Jacques House $82,200 CIP Project#054011 —J. R. Cummins House $72, 400 Heritage Preservation Budget— 1206-6406—Building Repair&Maintenance $11,000 Total $165,600 Attachments 1. Bid Results Summary 2. General Contractor Bid Tab 3. Agreement 4. Notice of Award BID RESULTS SUMMARY RILEY-JACQUES &J.R. CUMMINS HOUSE REPAIRS The City received 6 sealed bids on April 14, 2005. Below is a summary of the bids. Base Bid Total Total w/Alternates Meisinger Construction 145,000 235,800 Minnesota Construction Co. 98,820 206,160 McFarland Construction 132,700 293,700 Parkos Construction 136,400 242,800 Maertens-Brenny Construction 128,500 235,900 Morcon Construction 187,669 385,979 Minnesota Construction Company submitted the low base bid,including the total with add alternates as follows: Base bid- $98,820 Add Alternate#2 -$38,100 " #3 - $12,500 " #4 - $15,800 Total$165,220 DUNWIDDIE GENERAL.CONTRACTOR BID TAB i .':3 "r1`� 3 North Third St.,Sulto104 Min nan poll s,MN66401.1657 1a1:612.131,0000 Fax:612.337.0031 wwrv,mllrordunwId4 In.tom Bid Time: April 14,2005-2:00 pm Bid Open Location: City of Eden Prairie-8080 Mitchell Road Project Riley-Jacques Farmhouse&J.R.Cummins Farmhouse Repairs I`.• a -��.7 a A� i.:. xT }.Yt it u .....:.. ....:: cr IrC',.-sS -d lty x�sx"a �1 ti��.y4 i t .a.. ..ana Jx trtj 11, a .rF ✓ .r_. 7 ;, is {4.r.t 3 s -:s i. ', df ._�, 'faA�i✓ � �r i1 r ._. �,� n�, ��I,� - - Melsinger Construction zj Q� fQQ Z(o `1t01} QOD j� t96d t=/ ©gyp /S r700 Z3��pQ Minnesota Construction ��' $ZG 2.2 $DO j00 12 �L1D j '8d0 j 110 j 7 U130 246 /60 McFarland Construction tD 2 Fp q9 06o 2, j300 2Z 200 S T goo 2tj 2.OQ 293 � Verfimee f� Parkos Construction j J6 460 2— 6X /9 fa0 d 'LDO �.LXOO < 00 fj tip Maertens-Brenny Construction ,Z8 5-0-0 'V GD 31,640 f oo Z2 sdo Z 004 2-$- Coo 2, 55' QEi 151y J- C Morton Construction a L4�9 ;Z 0 j/ Z'� (��O J'0�(� 9 �S l 2 �7S" Farmhouse Repairs City of Eden Prairie AGREEMENT THIS AGREEMENT is made and executed the Yd day of May, 2005 by and between the City of Eden Prairie, hereinafter referred to as the "City", and Minnesota Construction Company, hereinafter referred to as the "Contractor". WITNESSETH; City and Contractor,for the consideration hereinafter stated,agree as follows: 1. Contractor's Duties: The Contractor shall provide the equipment and construction services specified in the City Project Manual for the Riley Jacques Farmhouse&J.R. Cummins Farmhouse Repairs,issued March 24, 2005, and shall do everything required by this Agreement and the Contract Documents. Contractor shall fully and satisfactorily comply with the conditions of the Contract Documents and complete the work contemplated by this Agreement in accordance with the Contract Documents. 2. Bonds: Prior to issuance of the NOTICE TO PROCEED, the Contractor shall furnish to City a performance bond in the amount of One Hundred Sixty-Five Thousand Two Hundred Twenty and 00/100 ($165,220.00) Dollars, and a payment bond in the amount of One Hundred Sixty-Five Thousand Two Hundred Twenty and 00/100($165,220.00)Dollars,both in form and substance satisfactory to the City. 3. Price: This is a firm price contract wherein the City agrees to pay the Contractor the amount of One Hundred Sixty-Five Thousand Two Hundred Twenty and 00/100 ($165,220.00) Dollars as full and complete payment for the work specified in the Contract Documents as Base Bid, Add Alternates Numbers 2, 3 and 4, and equipment and services rendered pursuant to this Agreement. 4. Payment: Payments to the Contractor by the City shall be made as provided in the Contract Documents. 5. Contract Documents: The Contract Documents consist of: Request for Proposals, Information to Bidders,Proposal,Bid Bond, General Conditions,Supplementary General Conditions,Additional Supplemental Conditions, Payment Bond, Performance Bond,Notice of Award, Notice to Proceed, Change Order, City Project Manual for the Riley Jacques Farmhouse&J.R. Cummins Farmhouse Repairs,issued March 24, 2005, Drawings prepared by Miller Dunwiddie Architects,Inc., Specifications prepared by Miller Dunwiddie Architects,Inc., and Addenda No. 1,dated April 11,2005. 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. 6. Completion: The Contractor shall deliver all equipment and complete all construction within One Hundred Sixteen(116)days of the NOTICE TO PROCEED in accordance with the terms and conditions set forth in the Contract Documents. EP0301-BG2-Miller-Dunwiddie Architects,Inc. AGREEMENT Section 00500- 1 Farmhouse Repairs City of Eden Prairie 7. Data Practices Act: The Contractor shall at all times abide by the Minnesota Data Practices Act, Minn. Stat. § 13.01, et. seq., to the extent that the Act is applicable to data and documents in the hands of the Contractor. 8. Audits: The books, records, documents, and accounting procedures and practices of the Contractor 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 Contract. 9. Income Tax Withholding: No final payment shall be made to the Contractor until the Contractor has provided satisfactory evidence to the City that the Contractor and each of its subcontractors has complied with the provisions of Minn. Stat. § 290.92 relating to withholding of income taxes upon wages. A certificate by the Department of Revenue shall satisfy this requirement. 10. Worker's Compensation: Contractor represents and warrants that it has and will maintain during its performance of the 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 Department 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. 11. Discrimination: In performance of this contract, the Contractor 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 Contractor, any subcontractor of the Contractor, or any applicant for employment. The Contractor shall include a similar provision in all contracts with subcontractors to this contract. The Contractor further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. § 363.01, et seq., Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 12. Conflicts: No salaried officer or employee of the City and no officer 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 regulation and applicable state statutes shall not be violated. 13. Claims: To receive any payment on this Contract,the invoice or bill must include the following signed and dated statement: "I declare under penalty of perjury that this account, claim, or demand is just and correct and that no part of it has been paid." 14. Contractor's Prompt Payment of Subcontractors: The Contractor shall pay to any subcontractor within ten(10)days of the receipt of payment from the City for undisputed services provided by the subcontractor. The Contractor shall pay interest of one and a half percent(1 ''/z%)per month or any part of a month to a subcontractor on any undisputed amount not paid on time to the subcontractor.The minimum monthly interest penalty for an unpaid balance of$100.00 or more is $10.00. For an unpaid balance of less than $100.00, the Contractor shall pay the actual amount due to the subcontractor. 15. Counterparts: This Agreement may be executed in multiple counterparts each of which shall be considered an original. EP0301-BG2-Miller-Dunwiddie Architects,Inc. AGREEMENT Section 00500-2 Farmhouse Repairs City of Eden Prairie 16. Whole Agreement: This Agreement and the Contract Documents constitute the final and complete agreement of the parties and shall supersede and replace any prior oral or written agreements between the City and Contractor. Any subsequent modification must be in writing signed by both parties. 17. Governing Law: This Agreement shall be governed and construed under the laws of the State of Minnesota. IN WITNESS WHEREOF, the parties to this Agreement have hereunto set their hands as of the date set forth above. CITY OF EDEN PRAIRIE By Its Mayor BY Its City Manager MINNESOTA CONSTRUCTION COMPANY By Its P:\Home\EP\PLANNING\Riley-Jacques&Cummings Farm House Repairs\AGREEMENT-Marked-1-042805.doc EP0301-BG2-Miller-Dunwiddie Architects,Inc. AGREEMENT Section 00500-3 Farmhouse Repairs City of Eden Prairie SECTION 00400—NOTICE OF AWARD RILEY JACQUES FARMHOUSE &J.R.CUMMINS FARMHOUSE REPAIRS EDEN PRAIRIE,MINNESOTA TO: Mr.Joseph F.Totall Minnesota Construction Company 2745 1456'Street West Rosemount,Minnesota 55068 Project Description:Riley-Jacques House&J.R.Cummins House Repairs,Eden Prairie,Minnesota The Owner has considered the bid submitted by you for the above described WORK in response to the Request for Proposals,dated March 24,2005. You are hereby notified that your BID has been accepted for items in the amount of $165,220(one hundred sixty-five thousand two hundred twenty dollars). You are required by the Information for BIDDERS to execute the Agreement and furnish the required CONTRACTOR'S Performance BOND, Payment BOND and certificates of insurance within ten(10)calendar days form the date of this Notice to you. If you fail to execute said Agreement and to furnish said BONDS within ten(10)days form the date of this Notice, said OWNER will be entitled to consider all your rights arising out of the OWNER's acceptance of your BID as abandoned and as a forfeiture of your BID BOND. The OWNER will be entitled to such other rights as may be granted by law. You are required to return an acknowledged copy of this NOTICE OF AWARD to the OWNER. Dated this 3rd day of May,2005. Owner By Title ACCEPTANCE OF NOTICE Receipt of the above NOTICE OF AWARD is hereby acknowledged by this the day of ,2005. By END OF SECTION 00400 EP0301-BG2-Miller-Dunwiddie Architects,Inc. NOTICE OF AWARD Section 00400- 1 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Paul Sticha, Office of the City Award Contract for Annual Flowers at VII.E. Manager,Facilities various City Buildings for 2005 Summer Season Requested Action Move to. Award contract to Lynn's Flower Design to provide planting and care of annual flowers at City Hall,Fire Station 2 and Den Road. Synopsis Annual cost: City Hall $4915 Station 2 $1250 Den Road $3536 Background Information Services provided include amending soil in flower beds, planting of annual flowers in beds and pots, top dressing with mulch, weekly watering and weed control, removal of plant material at end of summer growing season. Attachment Contract FLOWER BED MAINTENANCE SERVICE AGREEMENT THIS AGREEMENT is made as of this 1st day of May, 2005, by and between Lynn's Flower Design, ("Contractor"), a Minnesota corporation with its principal office located at 16122 Huron Circle, Lakeville, Minnesota 55044, and City of Eden Prairie, ("City") with its principal office located at 8080 Mitchell Road, Eden Prairie, Minnesota 55344. RECITALS: A. City is the owner of buildings known as the City Hall ("Building") and land located at 8080 Mitchell Road, Den Road and land located at 8020 Den Rd, Fire Station 1 and land located at 12100 Sunnybrook Rd., Eden Prairie, Minnesota 55344 C. City desires to engage Contractor to provide design work and maintenance for flower pots and beds. D. Contractor desires to provide the services specified above and as the same are more fully set forth in the contractor's Flower Bed Maintenance proposal attached. WITNESSETH: In consideration of the mutual promises of each to the other, City hereby authorizes Contractor, and Contractor here agrees, to provide design work and flower bed maintenance services at the Building upon the following terms and conditions: 1. Effective Date and Term of Agreement. This Agreement shall become effective as of May 1st, 2005 and shall continue through October 31 st. This Agreement may be terminated as provided herein. 2. Services to be Provided by and Obligations of Contractor. Contractor shall provide the following services and perform, and conform to, the following obligations: a. Clean up of all winter material and debris from pots and beds. b. Amend the soil with peat moss and fertilizer. C. Plant flowers and top dress with mulch. 3. City's Obligations. City will do or provide to Contractor the following: a. Provide water source. b. Irrigate flowers after they are planted. C. Provide access as needed. 4. Monthly Accounting and Payment. a. Contractor shall prepare and submit to City, by the 15th of the month, a Services Operations statement (invoice) setting forth work performed for the preceding month. b. Payment shall be made by the City within 45 days of submission of the Services Operations statement, provided the City has not contested any item on the statement. Payment of contested items may be withheld until resolution satisfactory to both parties subject to the Dispute Resolution provisions of Section 17 hereof. C. No fuel surcharges or surcharges of any kind will be accepted nor will they be paid. 5. Insurance. Contractor shall provide the following insurance: a. General Liability Aggregate $ 2,000,000 Products and/or Completed Operations Aggregate $ 2,000,000 Personal Injury $ 1,000,000 Each Occurrence $ 1,000,000 b. Umbrella Liability $1,000,000 C. Worker's Compensation Statutory d. Comprehensive Loss insuring loss and damage of and to the Contractor equipment in an amount at least equal to the reasonable value of the Contractor equipment. 6. Indemnification. Contractor will indemnify City and hold it harmless from and against all judgments, claims, damages, costs and expenses, including a reasonable amount as and for its 2 attorney's fees paid, incurred or for which it may be liable resulting from any breach of this Agreement by Contractor or any negligent or intentional act or omission performed, taken or not performed or taken by Contractor, its agents, contractors and employees, relative to this Agreement. City will indemnify and hold Contractor harmless from and against any loss for injuries or damages arising out of the negligent acts of the City, its agents or employees. 7. Termination. Either party may terminate this Agreement at any time by giving notice of its intention to do so, to the other, as provided herein, at least thirty (30) days prior to the intended date of termination. This Agreement may be terminated at any time by either party for breach or non- performance of any provision of this Agreement in accordance with the following. The party ("notifying party") who desires to terminate this Agreement for breach or non- performance of the other party ("notified party") shall give the notified party notice in writing of the notifying party's desire to terminate this Agreement describing the breach or non-performance of this Agreement entitling it to do so. The notified party shall have five (5) days from the date of such notice to cure the breach or non-performance. Upon failure of the notified party to do so, this Agreement shall automatically terminate. Upon the termination of this Agreement, whether by expiration of the original or any extended term or terms hereof, or for any other reason, Contractor shall have the right, within a reasonable time after such termination to remove from City's premises any and all of Contractor's equipment and other property. Except for liability resulting from acts or omissions of a party, arising, taken or omitted prior to such termination, including, but not limited to, those described in Section 6 of this Agreement (prior liability), the rights and obligations of each party resulting from this Agreement shall cease upon such termination. Any prior liability of a party shall survive termination of this Agreement. 8. 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 in writing, and if it is directed to Contractor, by delivering it personally to Lynn Menz, Owner of Lynn's Flower Design; or, if it is directed to City, by delivering it personally to the Facilities Manager, or, if mailed in a sealed wrapper 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: If to City: Paul Sticha, Facilities Manager City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 3 If to Contractor: Lynn Menz Lynn's Flower Design 16122 Huron Circle Lakeville, MN 55044 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. 9. Independent Contractor. Contractor is an independent contractor engaged by City to perform the services described herein and as such (i) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement, who shall be employees, and under the direction, of Contractor and in no respect employees of City, and (ii) shall have no authority to employ persons, or make purchases of equipment on behalf of City, or otherwise bind or obligate City. 10. Assignment. Contractor shall not assign this Agreement, or engage a subcontractor for its performance, in whole or in part, without the prior written consent of City, except that Contractor, without prior approval and without exoneration of any responsibilities, may assign this Agreement to a wholly-owned subsidiary. 11. Data Practices Act. Contractor shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section 1301, et seq., to the extent that the Act is applicable to data and documents in the hands of Contractor. 12. Audits. The books, records, documents, and accounting procedures and practices of the Contractor 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 contract. 13. Worker's Compensation. 4 Contractor 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. 1 176.181, 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. 14. Discrimination. In performance of this contract, Contractor 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 Contractor, any subcontractor of the Contractor, or any applicant for employment. Contractor shall include a similar provision in all contracts with subcontractors to this contract. Contractor further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. 1 363.01, et seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 15. Conflicts. No salaried officer or employee of the City and no member of the Council, or Commission, or 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 not be violated. 16. General Agreements of Contractor and City. a. Contractor agrees not to hire any employee or former employee of City and City agrees not to hire any employee or former employee of Contractor prior to termination of this Agreement and for one (1) year thereafter, without prior written consent of the former employer in each case. b. Neither party shall be liable for any breach of the Agreement caused by fires, floods, wars, riots, strikes, or other events or acts beyond the control of the party or parties affected thereby. C. In the event of dissolution, termination of existence, insolvency, appointment of a receiver, assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency law, or the service of any warrant, attachment, levy or similar process involving Contractor, City may, at its option in addition to any other remedy to which City may be entitled, immediately terminate this Agreement by notice to Contractor, in which event, this Agreement shall terminate on the notice becoming effective. 5 d. Contractor's books and records pertaining to its gross catering sales shall be available during normal business hours for audit by City at City's expense at Contractor's principal offices for a period of one (1) year from and after the monthly period to which such books and records relate. e. In the event of a breach of this Agreement by the City, Contractor shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. f. Contractor and its employees will park in service areas or lots and use entries and exits as designated by City. Contractor's personnel will contact the appropriate person (i.e. receptionist, maintenance personnel, security, etc,) immediately upon entering the building, and will sign in and out if required by City. g. Care, coordination and communication by Contractor is imperative so that guests and employees in the buildings are not disturbed or inconvenienced during the performance of the contracted services. h. Contractor's personnel must be neat appearing and wear a uniform and badge that clearly identifies them as a service contractor and abide by City's no smoking policies. i. Contractor must honor the City's request to reassign an employee for cause. Cause may include performance below acceptable standards or failure to present the necessary image or attitude, in the judgment of the owner, to present a first class operation. j. When necessary, Contractor's personnel will be provided with keys or access cards in order to perform their work. Any lost keys or cards that result in rekeying a space or other cost to the City will be billed back to the Contractor. k. The Contractor shall reimburse the City for all costs and expenses, including without limitation, attorneys' fees paid or incurred by the City in connection with the enforcement by the City during the term of this Agreement or thereafter of any of the rights or remedies of the City under this Agreement 17. Dispute Resolution. 6 a. Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. b. Arbitration. Subject to the requirement for mediation stated above, all disputes, claims or controversies arising from or relating to this Service Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect as a condition precedent to initiating legal or equitable actions by either party. A demand for arbitration shall be filed in writing with the other party to this Agreement and the American Arbitration Association. No arbitration award shall include exemplary or punitive damages. The authority of the arbitrator shall be limited to deciding matters pertaining to or arising out of the performance of obligations required by the Service Agreement of either party. In so doing, the arbitrator shall apply the principles of law of the State of Minnesota. 18. Agreement Supersedes Other Agreements. This Agreement supersedes and supplants all previous agreements and understandings, whether oral or written, between the parties. CITY OF EDEN PRAIRIE Date: By: Nancy Tyra-Lukens 7 Its: Mayor Date: By: Scott Neal Its: City Manager CONTRACTOR Date: By: Its: Date: By: Its: EP/Admin/Form Service Agreement.102504 8 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Paul Sticha, Office of the City Award contract for Irrigation VII.F. Manager, Facilities Maintenance at various City Buildings for 2005 Summer Season Requested Action Move to: Award contract to Absolute Rain to provide irrigation service at City Hall, Fire Stations 1, 2 & 3, Den Road and Building 51. Synopsis Annual Cost: City Hall $1895 Station 1 $ 580 Station 2 $ 560 Station 3 $ 540 Den Road $ 600 Bldg 51 $ 540 Background Information Services provided include irrigation system start-up, monthly system checks, sprinkler head inspection and time clock adjustment, and winter shut-down of system. Attachment Contract IRRIGATION MAINTENANCE SERVICE AGREEMENT THIS AGREEMENT is made as of this 1st day of April, 2005, by and between Absolute Rain, Inc., ("Contractor"), a Minnesota corporation with its principal office located at 4476 207t" Street East, Prior Lake, MN 55372, and City of Eden Prairie, ("City") with its principal office located at 8080 Mitchell Road, Eden Prairie, Minnesota 55344. RECITALS: A. City is the owner of buildings known as the City Hall ("Building") and land located at 8080 Mitchell Road, Fire Station 1 and land located at 14800 Scenic Heights, Rd, Fire Station 2 and land located at 12100 Sunnybrook Rd, Fire Station 3 and land located at 7350 Eden Prairie Rd, Building 51 and land located at 11800 Technology Dr., and Den Road and land located at 8020 Den Road, Eden Prairie, MN 55344. C. City desires to engage Contractor to provide irrigation maintenance services as described in the attached proposal, including start-up, monthly service and winterizing. D. Contractor desires to provide the services specified above and as the same are more fully set forth in the contractor's Irrigation Maintenance Service contract attached. WITNESSETH: In consideration of the mutual promises of each to the other, City hereby authorizes Contractor, and Contractor here agrees, to provide irrigation maintenance services at the Building upon the following terms and conditions: 1. Effective Date and Term of Agreement. This Agreement shall become effective as of April 1 2005 and shall continue through November 30, 2005. This agreement may be terminated as provided herein. 2. Services to be Provided by and Obligations of Contractor. Contractor shall provide the following services and perform, and conform to, the following obligations: a. Charge up system, operate each zone, and adjust sprinkler heads & clocks b. Monthly Service C. Winterize. 3. City's Obligations. City will do or provide to Contractor the following: a. Appropriate access as needed. 4. Monthly Accounting and Payment. a. Contractor shall prepare and submit to City, by the 15t" of the month, a Services Operations statement (invoice) setting forth work performed for the preceding month. b. Payment shall be made by the City within 45 days of submission of the Services Operations statement, provided the City has not contested any item on the statement. Payment of contested items may be withheld until resolution satisfactory to both parties subject to the Dispute Resolution provisions of Section 17 hereof. C. No fuel surcharges or surcharges of any kind will be accepted nor will they be paid. 5. Insurance. Contractor shall provide the following insurance: a. General Liability Aggregate $ 2,000,000 Products and/or Completed Operations Aggregate $ 2,000,000 Personal Injury $ 1,000,000 Each Occurrence $ 1,000,000 b. Umbrella Liability $1,000,000 C. Worker's Compensation Statutory d. Comprehensive Loss insuring loss and damage of and to the Contractor equipment in an amount at least equal to the reasonable value of the Contractor equipment. 6. Indemnification. Contractor will indemnify City and hold it harmless from and against all judgments, claims, damages, costs and expenses, including a reasonable amount as and for its attorney's fees paid, incurred or for which it may be liable resulting from any breach of 2 this Agreement by Contractor or any negligent or intentional act or omission performed, taken or not performed or taken by Contractor, its agents, contractors and employees, relative to this Agreement. City will indemnify and hold Contractor harmless from and against any loss for injuries or damages arising out of the negligent acts of the City, its agents or employees. 7. Termination. Either party may terminate this Agreement at any time by giving notice of its intention to do so, to the other, as provided herein, at least thirty (30) days prior to the intended date of termination. This Agreement may be terminated at any time by either party for breach or non- performance of any provision of this Agreement in accordance with the following. The party ("notifying party") who desires to terminate this Agreement for breach or non- performance of the other party ("notified party") shall give the notified party notice in writing of the notifying party's desire to terminate this Agreement describing the breach or non-performance of this Agreement entitling it to do so. The notified party shall have five (5) days from the date of such notice to cure the breach or non-performance. Upon failure of the notified party to do so, this Agreement shall automatically terminate. Upon the termination of this Agreement, whether by expiration of the original or any extended term or terms hereof, or for any other reason, Contractor shall have the right, within a reasonable time after such termination to remove from City's premises any and all of Contractor's equipment and other property. Except for liability resulting from acts or omissions of a party, arising, taken or omitted prior to such termination, including, but not limited to, those described in Section 6 of this Agreement (prior liability), the rights and obligations of each party resulting from this Agreement shall cease upon such termination. Any prior liability of a party shall survive termination of this Agreement. 8. 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 in writing, and if it is directed to Contractor, by delivering it personally to Patrick J. Garrity of Absolute Rain, Inc. or, if it is directed to City, by delivering it personally to the Facilities Manager, or, if mailed in a sealed wrapper 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: If to City: Paul Sticha, Facilities Manager City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 3 If to Contractor: Patrick J. Garrity Absolute Rain, Inc. 4476 207th Street East Prior Lake, MN 55372 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. 9. Independent Contractor. Contractor is an independent contractor engaged by City to perform the services described herein and as such (i) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement, who shall be employees, and under the direction, of Contractor and in no respect employees of City, and (ii) shall have no authority to employ persons, or make purchases of equipment on behalf of City, or otherwise bind or obligate City. 10. Assignment. Contractor shall not assign this Agreement, or engage a subcontractor for its performance, in whole or in part, without the prior written consent of City, except that Contractor, without prior approval and without exoneration of any responsibilities, may assign this Agreement to a wholly-owned subsidiary. 11. Data Practices Act. Contractor shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section 1301, et seq., to the extent that the Act is applicable to data and documents in the hands of Contractor. 12. Audits. 4 The books, records, documents, and accounting procedures and practices of the Contractor 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 contract. 13. Worker's Compensation. Contractor 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. 1 176.181, 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. 14. Discrimination. In performance of this contract, Contractor 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 Contractor, any subcontractor of the Contractor, or any applicant for employment. Contractor shall include a similar provision in all contracts with subcontractors to this contract. Contractor 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 Americans with Disabilities Act of 1990. 15. Conflicts. No salaried officer or employee of the City and no member of the Council, or Commission, or 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 not be violated. 16. General Agreements of Contractor and City. a. Contractor agrees not to hire any employee or former employee of City and City agrees not to hire any employee or former employee of Contractor prior to termination of this Agreement and for one (1) year thereafter, without prior written consent of the former employer in each case. b. Neither party shall be liable for any breach of the Agreement caused by fires, floods, wars, riots, strikes, or other events or acts beyond the control of the party or parties affected thereby. 5 C. In the event of dissolution, termination of existence, insolvency, appointment of a receiver, assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency law, or the service of any warrant, attachment, levy or similar process involving Contractor, City may, at its option in addition to any other remedy to which City may be entitled, immediately terminate this Agreement by notice to Contractor, in which event, this Agreement shall terminate on the notice becoming effective. d. Contractor's books and records pertaining to its gross catering sales shall be available during normal business hours for audit by City at City's expense at Contractor's principal offices for a period of one (1) year from and after the monthly period to which such books and records relate. e. In the event of a breach of this Agreement by the City, Contractor shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. f. Contractor and its employees will park in service areas or lots and use entries and exits as designated by City. Contractor's personnel will contact the appropriate person (i.e. receptionist, maintenance personnel, security, etc,) immediately upon entering the building, and will sign in and out if required by City. g. Care, coordination and communication by Contractor is imperative so that guests and employees in the buildings are not disturbed or inconvenienced during the performance of the contracted services. h. Contractor's personnel must be neat appearing and wear a uniform and badge that clearly identifies them as a service contractor and abide by City's no smoking policies. i. Contractor must honor the City's request to reassign an employee for cause. Cause may include performance below acceptable standards or failure to present the necessary image or attitude, in the judgment of the owner, to present a first class operation. j. When necessary, Contractor's personnel will be provided with keys or access cards in order to perform their work. Any lost keys or cards that result in rekeying a space or other cost to the City will be billed back to the Contractor. k. The Contractor shall reimburse the City for all costs and expenses, including without limitation, attorneys' fees paid or incurred by the City in connection with the enforcement by the City during the term of this Agreement or thereafter of any of the rights or remedies of the City under this Agreement 17. Dispute Resolution. 6 a. Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. b. Arbitration. Subject to the requirement for mediation stated above, all disputes, claims or controversies arising from or relating to this Service Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect as a condition precedent to initiating legal or equitable actions by either party. A demand for arbitration shall be filed in writing with the other party to this Agreement and the American Arbitration Association. No arbitration award shall include exemplary or punitive damages. The authority of the arbitrator shall be limited to deciding matters pertaining to or arising out of the performance of obligations required by the Service Agreement of either party. In so doing, the arbitrator shall apply the principles of law of the State of Minnesota. 18. Agreement Supersedes Other Agreements. This Agreement supersedes and supplants all previous agreements and understandings, whether oral or written, between the parties. CITY OF EDEN PRAIRIE Date: By: Nancy Tyra-Lukens Its: Mayor 7 Date: By: Scott Neal Its: City Manager CONTRACTOR Date: By: Its: Date: By: Its: EP/Admin/Form Service Agreement.102504 8 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Paul Sticha, Office of the City Award Contracts for Lawn Maintenance VII.G. Manager, Facilities at City Hall and Fire Station 1 for 2005 Summer Season Requested Action Move to: Award contract to AP Lawn for lawn maintenance at City Hall and Fire Station 1. Synopsis Annual Cost: City Hall $16,820 Station 1 $ 3,089 Proposals Received: City Hall Station 1 AP Lawn $16,820 $3,089 Beniek $18,180 $3,800 Greenside $33,600 $6,930 Background Information Services provided include weekly lawn maintenance, weed control and fertilization, tree and shrub pruning, minor landscaping. Attachment Contract LAWN MAINTENANCE SERVICE AGREEMENT THIS AGREEMENT is made as of this 1s' day of April, 2005, by and between AP Lawn, Inc., ("Contractor"), a Minnesota corporation with its principal office located at 448 E. Annapolis Street, West St. Paul, MN 55118, and City of Eden Prairie, ("City") with its principal office located at 8080 Mitchell Road, Eden Prairie, Minnesota 55344. RECITALS: A. City is the owner of buildings known as the City Hall ("Building") and land located at 8080 Mitchell Road, Fire Station 1 and land located at 14800 Scenic Heights. Rd, Eden Prairie, Minnesota. C. City desires to engage Contractor to provide weekly lawn maintenance services as described in the attached proposal. D. Contractor desires to provide the services specified above and as the same are more fully set forth in the contractor's Proposal and Contract for Maintenance Services attached. WITNESSETH: In consideration of the mutual promises of each to the other, City hereby authorizes Contractor, and Contractor here agrees, to provide weekly lawn maintenance services at the Building upon the following terms and conditions: 1. Effective Date and Term of Agreement. This Agreement shall become effective as of April 1, 2005 and shall continue through November 10, 2005. This agreement may be terminated as provided herein. 2. Services to be Provided by and Obligations of Contractor. Contractor shall provide the following services and perform, and conform to, the following obligations: a. Spring Clean-up b. Summer Lawn Care C. Fall Clean-up d. Shrub Maintenance e Tree Maintenance f Fertilization and Weed Control 3. City's Obligations. City will do or provide to Contractor the following: a. Appropriate access as needed. 4. Monthly Accounting and Payment. a. Contractor shall prepare and submit to City, by the 15th of the month, a Services Operations statement (invoice) setting forth work performed for the preceding month. b. Payment shall be made by the City within 45 days of submission of the Services Operations statement, provided the City has not contested any item on the statement. Payment of contested items may be withheld until resolution satisfactory to both parties subject to the Dispute Resolution provisions of Section 17 hereof. C. No fuel surcharges or surcharges of any kind will be accepted nor will they be paid. 5. Insurance. Contractor shall provide the following insurance: a. General Liability Aggregate $ 2,000,000 Products and/or Completed Operations Aggregate $ 2,000,000 Personal Injury $ 1,000,000 Each Occurrence $ 1,000,000 b. Umbrella Liability $1,000,000 C. Worker's Compensation Statutory d. Comprehensive Loss insuring loss and damage of and to the Contractor equipment in an amount at least equal to the reasonable value of the Contractor equipment. 6. Indemnification. Contractor will indemnify City and hold it harmless from and against all judgments, claims, damages, costs and expenses, including a reasonable amount as and for its 2 attorney's fees paid, incurred or for which it may be liable resulting from any breach of this Agreement by Contractor or any negligent or intentional act or omission performed, taken or not performed or taken by Contractor, its agents, contractors and employees, relative to this Agreement. City will indemnify and hold Contractor harmless from and against any loss for injuries or damages arising out of the negligent acts of the City, its agents or employees. 7. Termination. Either party may terminate this Agreement at any time by giving notice of its intention to do so, to the other, as provided herein, at least thirty (30) days prior to the intended date of termination. This Agreement may be terminated at any time by either party for breach or non- performance of any provision of this Agreement in accordance with the following. The party ("notifying party") who desires to terminate this Agreement for breach or non- performance of the other party ("notified party") shall give the notified party notice in writing of the notifying parry's desire to terminate this Agreement describing the breach or non-performance of this Agreement entitling it to do so. The notified party shall have five (5) days from the date of such notice to cure the breach or non-performance. Upon failure of the notified party to do so, this Agreement shall automatically terminate. Upon the termination of this Agreement, whether by expiration of the original or any extended term or terms hereof, or for any other reason, Contractor shall have the right, within a reasonable time after such termination to remove from City's premises any and all of Contractor's equipment and other property. Except for liability resulting from acts or omissions of a party, arising, taken or omitted prior to such termination, including, but not limited to, those described in Section 6 of this Agreement (prior liability), the rights and obligations of each party resulting from this Agreement shall cease upon such termination. Any prior liability of a party shall survive termination of this Agreement. 8. 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 in writing, and if it is directed to Contractor, by delivering it personally to Michael E. Price, President of A P Lawn, Inc.; or, if it is directed to City, by delivering it personally to the Facilities Manager, or, if mailed in a sealed wrapper 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: If to City: Paul Sticha, Facilities Manager City of Eden Prairie 8080 Mitchell Road Eden Prairie, MN 55344 3 If to Contractor: Michael E. Price, President A P Lawn, Inc. 448 E. Annapolis Street West St. Paul, MN 55118 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. 9. Independent Contractor. Contractor is an independent contractor engaged by City to perform the services described herein and as such (i) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement, who shall be employees, and under the direction, of Contractor and in no respect employees of City, and (ii) shall have no authority to employ persons, or make purchases of equipment on behalf of City, or otherwise bind or obligate City. 10. Assignment. Contractor shall not assign this Agreement, or engage a subcontractor for its performance, in whole or in part, without the prior written consent of City, except that Contractor, without prior approval and without exoneration of any responsibilities, may assign this Agreement to a wholly-owned subsidiary. 11. Data Practices Act. Contractor shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section 1301, et seq., to the extent that the Act is applicable to data and documents in the hands of Contractor. 12. Audits. The books, records, documents, and accounting procedures and practices of the Contractor 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 contract. 4 13. Worker's Compensation. Contractor 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. 1 176.181, 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. 14. Discrimination. In performance of this contract, Contractor 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 Contractor, any subcontractor of the Contractor, or any applicant for employment. Contractor shall include a similar provision in all contracts with subcontractors to this contract. Contractor further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. 1 363.01, et seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 15. Conflicts. No salaried officer or employee of the City and no member of the Council, or Commission, or 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 not be violated. 16. General Agreements of Contractor and City. a. Contractor agrees not to hire any employee or former employee of City and City agrees not to hire any employee or former employee of Contractor prior to termination of this Agreement and for one (1) year thereafter, without prior written consent of the former employer in each case. b. Neither party shall be liable for any breach of the Agreement caused by fires, floods, wars, riots, strikes, or other events or acts beyond the control of the party or parties affected thereby. C. In the event of dissolution, termination of existence, insolvency, appointment of a receiver, assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency law, or the service of any warrant, attachment, levy or similar process involving Contractor, City may, at its option in addition to any other remedy to which City may be entitled, immediately terminate this Agreement by notice to Contractor, in which event, this Agreement shall terminate on the notice becoming effective. 5 d. Contractor's books and records pertaining to its gross catering sales shall be available during normal business hours for audit by City at City's expense at Contractor's principal offices for a period of one (1) year from and after the monthly period to which such books and records relate. e. In the event of a breach of this Agreement by the City, Contractor shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. f. Contractor and its employees will park in service areas or lots and use entries and exits as designated by City. Contractor's personnel will contact the appropriate person (i.e. receptionist, maintenance personnel, security, etc,) immediately upon entering the building, and will sign in and out if required by City. g. Care, coordination and communication by Contractor is imperative so that guests and employees in the buildings are not disturbed or inconvenienced during the performance of the contracted services. h. Contractor's personnel must be neat appearing and wear a uniform and badge that clearly identifies them as a service contractor and abide by City's no smoking policies. i. Contractor must honor the City's request to reassign an employee for cause. Cause may include performance below acceptable standards or failure to present the necessary image or attitude, in the judgment of the owner, to present a first class operation. j. When necessary, Contractor's personnel will be provided with keys or access cards in order to perform their work. Any lost keys or cards that result in rekeying a space or other cost to the City will be billed back to the Contractor. k. The Contractor shall reimburse the City for all costs and expenses, including without limitation, attorneys' fees paid or incurred by the City in connection with the enforcement by the City during the term of this Agreement or thereafter of any of the rights or remedies of the City under this Agreement 17. Dispute Resolution. 6 a. Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. b. Arbitration. Subject to the requirement for mediation stated above, all disputes, claims or controversies arising from or relating to this Service Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect as a condition precedent to initiating legal or equitable actions by either party. A demand for arbitration shall be filed in writing with the other party to this Agreement and the American Arbitration Association. No arbitration award shall include exemplary or punitive damages. The authority of the arbitrator shall be limited to deciding matters pertaining to or arising out of the performance of obligations required by the Service Agreement of either party. In so doing, the arbitrator shall apply the principles of law of the State of Minnesota. 18. Agreement Supersedes Other Agreements. This Agreement supersedes and supplants all previous agreements and understandings, whether oral or written, between the parties. CITY OF EDEN PRAIRIE Date: By: Nancy Tyra-Lukens Its: Mayor 7 Date: By: Scott Neal Its: City Manager CONTRACTOR Date: By: Its: Date: By: Its: EP/Admin/Form Service Agreement.102504 8 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Paul Sticha, Office of the City Award Contracts for Lawn Maintenance VII.H. Manager,Facilities at Den Road, Fire Stations 2 & 3 and Building 51 for 2005 Summer Season Requested Action Move to: Award contracts to Beniek Property Services for lawn maintenance at Den Road, Fire Stations 2 & 3 and Building 51 (formerly Fire Station 5). Synopsis Annual Cost: Den Road $4,050 Station 2 $4,435 Station 3 $4,680 Bldg 51 $2,555 Proposals Received: Den Road Station 2 Station 3 Bldg 51 Beniek $4,050 $4,435 $4,680 $2,555 Greenside $4,830 $4,830 $4,830 $4,830 Background Information Services provided include weekly lawn maintenance, weed control and fertilization, tree and shrub pruning,minor landscaping. Attachment Contract LAWN MAINTENANCE SERVICE AGREEMENT THIS AGREEMENT is made as of this 1st day of April, 2005, by and between BENIEK Property Services, Inc., ("Contractor'), a Minnesota corporation with its principal office located at 8229 Upland Circle, Chanhassen, MN 55317, and City of Eden Prairie, ("City") with its principal office located at 8080 Mitchell Road, Eden Prairie, Minnesota 55344. RECITALS: A. City is the owner of buildings known as, Fire Station 2 ("Building") and land located at 12100 Sunnybrook Rd., Fire Station 3 and land located at 7350 Eden Prairie Rd., Building 51 and land located at 11700 Technology Dr., Den Rd and land located at 8020 Den Rd, Eden Prairie, Minnesota 55344. C. City desires to engage Contractor to provide weekly lawn maintenance services as described in the attached proposal. D. Contractor desires to provide the services specified above and as the same are more fully set forth in the contractor's Proposal and Contract for Maintenance Services attached. WITNESSETH: In consideration of the mutual promises of each to the other, City hereby authorizes Contractor, and Contractor here agrees, to provide weekly lawn maintenance services at the Building upon the following terms and conditions: 1. Effective Date and Term of Agreement. This Agreement shall become effective as of April 1, 2005 and shall continue through October 31, 2005. This agreement may be terminated as provided herein. 2. Services to be Provided by and Obligations of Contractor. Contractor shall provide the following services and perform, and conform to, the following obligations: a. Spring Clean-up b. Summer Lawn Care C. Fall Clean-up d. Core Aeration e. Shrub Maintenance f Fertilization and Weed Control 3. City's Obligations. �T City will do or provide to Contractor the following: a. Appropriate access as needed. 4. Monthly Accounting and Payment. a. Contractor shall prepare and submit to City, by the 15t' of the month, a Services Operations statement (invoice) setting forth work performed for the preceding month. b. Payment shall be made by the City within 45 days of submission of the Services Operations statement, provided the City has not contested any item on the statement. Payment of contested items may be withheld until resolution satisfactory to both parties subject to the Dispute Resolution provisions of Section 17 hereof. C. No fuel surcharges or surcharges of any kind will be accepted nor will they be paid. 5. Insurance. Contractor shall provide the following insurance: a. General Liability Aggregate $ 2,000,000 Products and/or Completed Operations Aggregate $ 2,000,000 Personal Injury $ 1,000,000 Each Occurrence $ 1,000,000 b. Umbrella Liability $1,000,000 C. Worker's Compensation Statutory d. Comprehensive Loss insuring loss and damage of and to the Contractor equipment in an amount at least equal to the reasonable value of the Contractor equipment. 6. Indemnification. 2 Contractor will indemnify City and hold it harmless from and against all judgments, claims, damages, costs and expenses, including a reasonable amount as and for its attorney's fees paid, incurred or for which it may be liable resulting from any breach of this Agreement by Contractor or any negligent or intentional act or omission performed, taken or not performed or taken by Contractor, its agents, contractors and employees, relative to this Agreement. City will indemnify and hold Contractor harmless from and against any loss for injuries or damages arising out of the negligent acts of the City, its agents or employees. 7. Termination. Either party may terminate this Agreement at any time by giving notice of its intention to do so, to the other, as provided herein, at least thirty (30) days prior to the intended date of termination. This Agreement may be terminated at any time by either party for breach or non- performance of any provision of this Agreement in accordance with the following. The party ("notifying party") who desires to terminate this Agreement for breach or non- performance of the other party ("notified party") shall give the notified party notice in writing of the notifying party's desire to terminate this Agreement describing the breach or non-performance of this Agreement entitling it to do so. The notified party shall have five (5) days from the date of such notice to cure the breach or non-performance. Upon failure of the notified party to do so, this Agreement shall automatically terminate. Upon the termination of this Agreement, whether by expiration of the original or any extended term or terms hereof, or for any other reason, Contractor shall have the right, within a reasonable time after such termination to remove from City's premises any and all of Contractor's equipment and other property. Except for liability resulting from acts or omissions of a party, arising, taken or omitted prior to such termination, including, but not limited to, those described in Section 6 of this Agreement (prior liability), the rights and obligations of each party resulting from this Agreement shall cease upon such termination. Any prior liability of a party shall survive termination of this Agreement. 8. 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 in writing, and if it is directed to Contractor, by delivering it personally to Michael E. Price, President of A P Lawn, Inc.; or, if it is directed to City, by delivering it personally to the Facilities Manager, or, if mailed in a sealed wrapper 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: If to City: Paul Sticha, Facilities Manager City of Eden Prairie 3 8080 Mitchell Road Eden Prairie, MN 55344 If to Contractor: Brian Beniek BENIEK Property Services 8229 Upland Circle Chanhassen, MN 55317 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. 9. Independent Contractor. Contractor is an independent contractor engaged by City to perform the services described herein and as such (i) shall employ such persons as it shall deem necessary and appropriate for the performance of its obligations pursuant to this Agreement, who shall be employees, and under the direction, of Contractor and in no respect employees of City, and (ii) shall have no authority to employ persons, or make purchases of equipment on behalf of City, or otherwise bind or obligate City. 10. Assignment. Contractor shall not assign this Agreement, or engage a subcontractor for its performance, in whole or in part, without the prior written consent of City, except that Contractor, without prior approval and without exoneration of any responsibilities, may assign this Agreement to a wholly-owned subsidiary. 11. Data Practices Act. Contractor shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section 1301, et seq., to the extent that the Act is applicable to data and documents in the hands of Contractor. 12. Audits. The books, records, documents, and accounting procedures and practices of the Contractor 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 contract. 4 13. Worker's Compensation. Contractor 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. 1 176.181, 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. 14. Discrimination. In performance of this contract, Contractor 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 Contractor, any subcontractor of the Contractor, or any applicant for employment. Contractor shall include a similar provision in all contracts with subcontractors to this contract. Contractor further agrees to comply with all aspects of the Minnesota Human Rights Act, Minn. Stat. 1 363.01, et seq., Title VI of the Civil Rights Act of 1964, and the Americans with Disabilities Act of 1990. 15. Conflicts. No salaried officer or employee of the City and no member of the Council, or Commission, or 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 not be violated. 16. General Agreements of Contractor and City. a. Contractor agrees not to hire any employee or former employee of City and City agrees not to hire any employee or former employee of Contractor prior to termination of this Agreement and for one (1) year thereafter, without prior written consent of the former employer in each case. b. Neither party shall be liable for any breach of the Agreement caused by fires, floods, wars, riots, strikes, or other events or acts beyond the control of the party or parties affected thereby. C. In the event of dissolution, termination of existence, insolvency, appointment of a receiver, assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency law, or the service of any warrant, attachment, levy or similar process involving Contractor, City may, at its option in addition to any other remedy to which City may be entitled, immediately terminate this Agreement by notice to Contractor, in which event, this Agreement shall terminate on the notice becoming effective. 5 d. Contractor's books and records pertaining to its gross catering sales shall be available during normal business hours for audit by City at City's expense at Contractor's principal offices for a period of one (1) year from and after the monthly period to which such books and records relate. e. In the event of a breach of this Agreement by the City, Contractor shall not be entitled to recover punitive, special or consequential damages or damages for loss of business. f. Contractor and its employees will park in service areas or lots and use entries and exits as designated by City. Contractor's personnel will contact the appropriate person (i.e. receptionist, maintenance personnel, security, etc,) immediately upon entering the building, and will sign in and out if required by City. g. Care, coordination and communication by Contractor is imperative so that guests and employees in the buildings are not disturbed or inconvenienced during the performance of the contracted services. h. Contractor's personnel must be neat appearing and wear a uniform and badge that clearly identifies them as a service contractor and abide by City's no smoking policies. i. Contractor must honor the City's request to reassign an employee for cause. Cause may include performance below acceptable standards or failure to present the necessary image or attitude, in the judgment of the owner, to present a first class operation. j. When necessary, Contractor's personnel will be provided with keys or access cards in order to perform their work. Any lost keys or cards that result in rekeying a space or other cost to the City will be billed back to the Contractor. k. The Contractor shall reimburse the City for all costs and expenses, including without limitation, attorneys' fees paid or incurred by the City in connection with the enforcement by the City during the term of this Agreement or thereafter of any of the rights or remedies of the City under this Agreement 17. Dispute Resolution. 6 a. Mediation. Each dispute, claim or controversy arising from or related to this Service Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration or legal or equitable actions by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Commercial Mediation Procedures of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration or legal or equitable action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in the City of Eden Prairie unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. b. Arbitration. Subject to the requirement for mediation stated above, all disputes, claims or controversies arising from or relating to this Service Agreement shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect as a condition precedent to initiating legal or equitable actions by either party. A demand for arbitration shall be filed in writing with the other party to this Agreement and the American Arbitration Association. No arbitration award shall include exemplary or punitive damages. The authority of the arbitrator shall be limited to deciding matters pertaining to or arising out of the performance of obligations required by the Service Agreement of either party. In so doing, the arbitrator shall apply the principles of law of the State of Minnesota. 18. Agreement Supersedes Other Agreements. This Agreement supersedes and supplants all previous agreements and understandings, whether oral or written, between the parties. CITY OF EDEN PRAIRIE Date: By: Nancy Tyra-Lukens Its: Mayor 7 f Date: By: Scott Neal Its: City Manager CONTRACTOR Date: By: Its: Date: By: Its: EP/Admin/Form Service Agreement.102504 8 CITY COUNCIL AGENDA DATE: SECTION: Consent Agenda May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Jim Richardson Release of Land from Special VII.I. Public Works/Engineering Assessment Agreement for Lot 1,Block 2,Fountain Place, S.S.A. 04-08 Requested Action Move to: Approve the Release of Land from Special Assessment Agreement for Lot 1,Block 2, Fountain Place. Synopsis In October, 2004,the City of Eden Prairie entered into a special assessment agreement with NAP Fountain Place L.C.C.regarding the levying of special assessments for trunk sanitary sewer, trunk watermain and other utility and street improvements. Background Information Lot 1,Block 2,Fountain Place was not included in the Feasibility Report for benefit of utilities. Therefore, the property should be released from the Special Assessment Agreement. Attachment 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"), and is dated as of , 2005. FACTS 1. A certain Agreement Regarding Special Assessments("Agreement')dated October 28, 2004, was executed by and between the City and NAP Fountain Place, LLC,which Agreement was filed as Document No. 4062376 with the Registrar of Titles and the Hennepin County Recorder as Document No. 8503712 on January 6, 2005. 2. The property affected by this partial release is described as follows: Lot 1,Block 2, Fountain Place Addition, hereinafter referred to as the property. THEREFORE,the City of Eden Prairie, a Minnesota municipal corporation, hereby releases the Property from the obligations and conditions set forth in the Agreement Regarding Special Assessments dated October 28, 2004, filed as Document No. 4062376 with the Registrar of Titles and the Hennepin County Recorder as Document No. 8503712 on January 6, 2005. This Partial Release of Land shall not release or discharge the Property from the lien of any special assessments levied by the City pursuant to the Agreement. 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 , 2005, 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 CITY COUNCIL AGENDA DATE: SECTION: Consent Calendar May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Eugene A.Dietz Consent to Assignment of KMC VII. J. Public Works Telecom Agreement Requested Action Move to: Adopt resolution consenting to the assignment of an Encroachment Agreement with KMC Telecom, Inc. to CenturyTel. Synopsis In 1997,the City entered into an Agreement with KMC Telecom, Inc. to allow fiber optics to be installed within the rights of way in the community,which is still in effect today. There is a pending sale of the KMC assets to CenturyTel. The existing Agreement with KMC requires City approval for transfer of the rights and obligations of the Agreement. The City Attorney drafted the attached resolution and staff recommends approval. Attachment Resolution CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2005- WHEREAS, KMC Telecom, Inc. ("KMC")and the City of Eden Prairie,Minnesota(the "City") entered into an Encroachment Agreement("Agreement")which took effect June 3, 1997 with an initial expiration date of June 2, 2002,with an automatic renewal for an additional five years on June 3, 2002 and with the automatic renewal period expiring on June 2, 2007. As a result of a pending Asset Purchase Agreement initiated by CenturyTel Acquisitions LLC ("CenturyTel") d/b/a KMC Telecom III to purchase the network assets of KMC in Eden Prairie, KMC has notified the City of its intent to transfer and assign the rights and obligations of KMC to CenturyTel and has requested the consent of the City to transfer those rights and obligations pursuant to the Agreement; and WHEREAS, KMC represents to the City that CenturyTel and KMC have jointly filed an application for the transfer of assets and customers from KMC Telecom III LLC (DWa KMC Telecom,LLC;KMC Telecom III, Inc.), a wholly owned subsidiary of KMC Telecom Holdings, Inc. to KMC Telecom III LLC, a wholly owned subsidiary of CenturyTel Acquisition,LLC, at the Minnesota Public Service Commission pursuant to Minnesota Statute 237.74(12); and WHEREAS,KMC represents to the City that CenturyTel is qualified to provide the same services that KMC has been providing in Eden Prairie; and WHEREAS, CenturyTel represents to the City that it agrees to adhere to all applicable provisions of the Agreement; and WHEREAS, KMC and CenturyTel's represent to the City that CenturyTel's acquisition of and continued operation of KMC's network assets in the City of Eden Prairie will result in positive benefits for the Eden Prairie community in that it will promote local exchange competition. NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Eden Prairie that consent to the transfer and assignment of the rights and obligations of KMC pursuant to the terms of the Encroachment Agreement to CenturyTel is hereby granted. BE IT FURTHER RESOLVED that this Consent shall become effective as of the date of the closing of the Asset Purchase of KMC Telecom III LLC's assets in Eden Prairie by CenturyTel which is anticipated to be on or near June 30,2005. In the event that the Asset Purchase is not closed before or within ninety(90) after June 30,2005,this Consent shall be null and void. ADOPTED by the City Council of the City of Eden Prairie this 3rd day of May, 2005. Nancy Tyra-Lukens,Mayor ATTEST: Kathleen Porta, City Clerk ACCEPTED AND AGREED TO: KMC and CenturyTel's acknowledge that the representations contained in the above Resolution are true and correct 66KMC" Signature Marva Brown Johnson Print Name Vice-President and Senior Counsel Title Date "CenturyTel" Signature Print Name Title Date CITY COUNCIL AGENDA DATE: SECTION: May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Sue Kotchevar, Office of the Payment of Claims IX. City Manager/Finance Requested Action Move to: Approve the Payment of Claims as submitted(roll call vote) Synopsis Checks 140530 - 140769 Wire Transfers 2225 -2239 Background Information Attachments City of Eden Prairie Council Check Summary 5/3/2005 Division Amount General 60,506 101 Legislative 1,695 102 Legal Counsel 23,645 110 City Clerk 2,893 III Customer Service 28,590 112 Human Resources 31 113 Communication Services 4,346 115 Risk Management 5,228 116 Facilities 45,650 117 City Center 62,191 130 Assessing 102 131 Finance 1,073 133 Community Development 284 135 Information Technology 3,101 136 Wireless Communication 264 137 Economic Development 39 150 Park Administration 46 151 Park Maintenance 2,449 153 Athletic Programs 1,273 154 Community Center 2,491 156 Youth Programs 48 157 Special Events 100 158 Senior Center 2,014 159 Recreation Administration 268 160 Therapeutic Recreation 89 161 Oak Point Pool 156 162 Arts 276 163 Outdoor Center 2,281 164 Park Rental Facilities 174 180 Police 786 184 Fire 8,379 200 Engineering 216 201 Street Maintenance 5,391 203 Fleet Services 28,286 204 Equipment Revolving 2,207 301 CDBG 389 316 WAFTA 1,663 502 Park Development 1,076 503 Utility Improvement 6,320 507 Construction Fund 3,996 509 CIP Fund 2,499 601 Prairie Village Liquor 71,514 602 Den Road Liquor 85,080 603 Prairie View Liquor 58,539 605 Den Road Building 19,827 701 Water Fund 78,435 702 Sewer Fund 1,545 703 Storm Drainage Fund 13,480 803 Escrow Fund 600 806 SAC Agency Fund 33,350 807 Benefits Fund 661,579 Report Totals 1,336,460 City of Eden Prairie Council Check Register 5/3/2005 Check# Amount Vendor/Explanation Account Description Business Unit 2225 14,930 DELTA DENTAL PLAN OF MN COBRA Health and Benefits 2226 435 MINNESOTA DEPT OF REVENUE Motor Fuels Fleet Services 2227 67,413 MINNESOTA DEPT OF REVENUE Cash Over/Short General Fund 2228 10,294 ICMA RETIREMENT TRUST-457 Deferred Compensation General Fund 2229 15,628 ORCHARD TRUST CO AS TRUSTEE/CU Deferred Compensation General Fund 2230 74,868 PUBLIC EMPLOYEES RETIREMENT AS PERA Health and Benefits 2231 25,914 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 2232 129,416 WELLS FARGO MINNESOTA N A SS&Medicare Health and Benefits 2233 1,850 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 2234 3,298 WELLS FARGO MINNESOTA N A Federal Taxes Withheld Health and Benefits 2235 15,376 ORCHARD TRUST CO AS TRUSTEE/CU Deferred Compensation General Fund 2236 10,291 ICMA RETIREMENT TRUST-457 Deferred Compensation General Fund 2237 76,137 PUBLIC EMPLOYEES RETIREMENT AS PERA Health and Benefits 2238 25,260 MINNESOTA DEPT OF REVENUE State Taxes Withheld Health and Benefits 2239 126,637 WELLS FARGO MINNESOTA N A SS&Medicare Health and Benefits 140530 75 A TO Z RENTAL CENTER Special Event Fees Special Events&Trips 140531 288 ASPEN PUBLISHERS INC Dues&Subscriptions Finance 140532 82 CINGULAR WIRELESS Pager&Cell Phone Water System Maintenance 140533 165 COMMUNITY HEALTH CHARITIES United Way Withheld General Fund 140534 110 DELL Office Supplies General 140535 1,715 DEPARTMENT OF PUBLIC SAFETY Software Maintenance Information Technology 140536 177 DMX/MINNEAPOLIS Other Contracted Services Prairie Village Liquor Store 140537 196 EASTBURN,EMILY Canine Supplies Police 140538 128 ELWELL,JEFF Operating Supplies General Facilities 140539 135 FEDEX Postage Parks Administration 140540 91 GE CAPITAL Other Rentals General 140541 389 GENERAL GROWTH PROPERTIES LP-E Building Rental CDBG Fund 140542 475 GOPHER STATE ONE-CALL INC Other Contracted Services Water System Maintenance 140543 1,620 INTERNATIONAL UNION OF OPERATI Union Dues Withheld General Fund 140544 44 LIDDELL,TONY R. Operating Supplies Fire 140545 29 LUDWIG,JAY Operating Supplies Winter Theatre 140546 703 MEDICINE LAKE TOURS Special Event Fees Trips 140547 25 METROPOLITAN REGIONAL ARTS COU Conference Expense City Council 140548 1,854 MINN CHILD SUPPORT PAYMENT CTR Garnishment Withheld General Fund 140549 40 MINNESOTA DEPT OF AGRICULTURE Other Contracted Services Lime Sludge 140550 100 MINNESOTA KITE SOCIETY Other Contracted Services Purgatory Creek Recreation Are 140551 137 NORTHERN TOOL Equipment Repair&Maint Park Maintenance 140552 385 PETTY CASH Miscellaneous City Council 140553 10 PORTER,CINDY Lessons&Classes Pool Lessons 140554 8,136 PRAIRIE PARTNERS SIX LLP Building Rental Prairie Village Liquor Store 140555 7,432 PRAIRIEVIEW RETAIL LLC Building Rental Prairie View Liquor Store 140556 25 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 140557 247 PROP United Way Withheld General Fund 140558 3,626 RELIASTAR LIFE INSURANCE CO Disability Ins Employers Health and Benefits 140559 152 SCHAITBERGER,CHUCK Travel Expense Fire 140560 276 UNITED WAY United Way Withheld General Fund 140561 5 UPS STORE,THE Postage Water Utility-General 140562 154 VERIZON WIRELESS BELLEVUE Pager&Cell Phone Street Maintenance 140563 344 API FUND FOR PAYROLL EDUCATION Conference Expense Finance 140564 25 BUSHWAY,PEG Program Fee Red Hat 140565 37,831 CENTERPOINT ENERGY MARKETING I Gas City Hall-CAM 140566 34 DISH NETWORK Cable TV Ice Arena 140567 179,643 MEDICA CHOICE Medical Bills Prepaid Health and Benefits 140568 114 PARK NICOLLET OPTICAL Protective Clothing Fire 140569 314 SPRINT Software and Hardware Information Technology 140570 9 STAR TRIBUNE Misc Taxable Den Road Liquor Store 140571 155 STOVRING,LESLIE Mileage&Parking Storm Drainage 140572 80 THOMPSON,DAVE Employment Support Test Fire 140573 9 TIME WARNER CABLE Cable TV Fire 140574 40 UPS Postage Fire 140575 551 XCEL ENERGY Electric Senior Center 140576 40 A Iv1EYER'S ENTERPRISES INC Instructor Service Outdoor Center 140577 39 A TO Z RENTAL CENTER Operating Supplies Prairie View Liquor Store Check# Amount Vendor/Explanation Account Description Business Unit 140578 80 AARP 55 ALIVE MATURE DRIVING Other Contracted Services Classes/Programs/Events 140579 296 AMERICAN PAYROLL ASSN Dues&Subscriptions Finance 140580 100 ANDERSON,DAVID Refunds Environmental Education 140581 48 APPRAISAL INSTITUTE Operating Supplies Assessing 140582 938 ASPEN WASTE SYSTEMS INC. Waste Disposal City Hall-CAM 140583 166 CAMPOS,LORI Instructor Service Outdoor Center 140584 49 COLLIERS TURLEY MARTIN TUCKER Operating Supplies Assessing 140585 145 COSTCO Dues&Subscriptions Finance 140586 75 ENDREZZE,DEANNE Other Contracted Services Outdoor Center 140587 85 GE CAPITAL Other Rentals General 140588 46,623 GREGERSON ROSOW JOHNSON&NILA Legal General 140589 493 MANLEY BROS CONSTRUCTION Building Permits General Fund 140590 228 METHODIST HOSPITAL Other Contracted Services Risk Management 140591 1,162 METRO SALES INCORPORATED* Other Rentals General 140592 33,017 METROPOLITAN COUNCIL Due to Other Governments SAC Agency Fund 140593 60 MINNESOTA DEPT OF TRANSPORTATI Equipment Testing/Cert. Fleet Services 140594 4,534 MINNESOTA STATE TREASURER Building Surcharge General Fund 140595 100 MRPA Advertising Recreation Administration 140596 35 PADELFORD PACKET BOAT CO INC Special Event Fees Trips 140597 14 PRIORITY COURIER EXPERTS Equipment Repair&Maint Fleet Services 140598 2,497 RICHFIELD,CITY OF Autos Police 140599 2,000 ROTH,ANDREW J. Other Contracted Services Outdoor Center 140600 664 SHERATON MINNEAPOLIS WEST Operating Supplies Red Hat 140601 14 STATE OF MINNESOTA Operating Supplies Fleet Services 140602 55 TECHNOLOGY FIRE PROTECTION Cash Over/Short General Fund 140603 591 TELCOM CONSTRUCTION Deposits Escrow 140604 16,714 THANE HAWKINS POLAR CHEVROLET Autos Water Meter Repair 140605 444 WALMART COMMUNITY Video&Photo Supplies Communication Services 140606 45,268 XCEL ENERGY Electric Den Bldg.-CAM 140607 120 ACE ICE COMPANY Misc Non-Taxable Den Road Liquor Store 140608 126 AMERIPRIDE LINEN&APPAREL SER Repair&Maint.Supplies Prairie View Liquor Store 140609 54 ARCTIC GLACIER INC Misc Non-Taxable Prairie Village Liquor Store 140610 4,735 BELLBOY CORPORATION Liquor Prairie Village Liquor Store 140611 11,338 DAY DISTRIBUTING Beer Prairie Village Liquor Store 140612 5,696 EAGLE WINE COMPANY Liquor Prairie View Liquor Store 140613 10,916 EAST SIDE BEVERAGE COMPANY Beer Prairie View Liquor Store 140614 128 EXTREME BEVERAGE Misc Taxable Den Road Liquor Store 140615 407 GETTMAN COMPANY Misc Taxable Den Road Liquor Store 140616 482 GRAND PERE WINES INC Wine Imported Prairie Village Liquor Store 140617 891 GRAPE BEGINNINGS Wine Domestic Prairie Village Liquor Store 140618 11,170 GRIGGS COOPER&CO Liquor Prairie Village Liquor Store 140619 761 HOHENSTEINS INC Beer Prairie View Liquor Store 140621 28,400 JOHNSON BROTHERS LIQUOR CO Liquor Prairie Village Liquor Store 140622 18,691 MARK VII Beer Den Road Liquor Store 140623 290 MIDWEST COCA COLA BOTTLING COM Misc Taxable Den Road Liquor Store 140624 831 NEW FRANCE WINE COMPANY Wine Domestic Den Road Liquor Store 140625 3,560 PAUSTIS&SONS COMPANY Wine Domestic Prairie Village Liquor Store 140626 71 PEPSI COLA COMPANY Misc Taxable Prairie Village Liquor Store 140627 12,391 PHILLIPS WINE AND SPIRITS INC Wine Domestic Prairie View Liquor Store 140628 989 PRIOR WINE COMPANY Wine Domestic Den Road Liquor Store 140629 9,571 QUALITY WINE&SPIRITS CO Wine Domestic Prairie Village Liquor Store 140630 7,110 THORPE DISTRIBUTING Beer Prairie Village Liquor Store 140631 3,308 WINE COMPANY,THE Wine Imported Den Road Liquor Store 140632 2,445 WINE MERCHANTS INC Wine Domestic Prairie Village Liquor Store 140633 1,276 WORLD CLASS WINES INC Wine Domestic Prairie View Liquor Store 140634 69 ACE Tuition Reimbursement/School Fitness Classes 140635 156 BUTCHER,SHERRY Travel Expense City Council 140636 73 CASE,RON Travel Expense City Council 140637 180 CITY ENGINEERS ASSOC OF MINNES Dues&Subscriptions Engineering 140638 38 COTY,LORRAINE Program Fee Red Hat 140639 460 CPRA Conference Expense General Facilities 140640 38 ERICKSON,RUBYE Program Fee Red Hat 140641 38 HAGEN,MAIJA Program Fee Red Hat 140642 38 HARTMAN,JEAN Program Fee Red Hat 140643 2,309 HENNEPIN COUNTY TREASURER Postage City Clerk 140644 125 HENNEPIN COUNTY TREASURER Operating Supplies Planning 140645 6,129 HOLLYWOOD ENTERTAINMENT CAM &Taxes-CHR City Hall-CAM Check# Amount Vendor/Explanation Account Description Business Unit 140646 38 JOHANNES,EVELYN Program Fee Red Hat 140647 90 KEATING,MARY Mileage&Parking Planning 140648 5,000 LEAGUE MN CITIES INS TRUST Insurance Risk Management 140649 38 LINDEN,ROSE Program Fee Red Hat 140650 38 MARQUARDT,ESTHER Program Fee Red Hat 140651 38 MCCARTHY,ARDIS Program Fee Red Hat 140652 93 MENARDS Repair&Maint.Supplies Park Maintenance 140653 40 MINNESOTA COMMERCE DEPARTMENT Licenses&Taxes Planning 140654 644 NEAL,SCOTT Dues&Subscriptions City Council 140655 38 PARRIS,PAT Program Fee Red Hat 140656 92 PETTY CASH-EPCC Mileage&Parking Community Center Admin 140657 298 PETTY CASH-POLICE DEPT Travel Expense Police 140658 826 RICHFIELD,CITY OF Autos Police 140659 38 RUMFORD,JOAN Program Fee Red Hat 140660 38 SHIMANSKI,BERMA Program Fee Red Hat 140661 38 TRUTNA,TONI Program Fee Red Hat 140662 67 WHITE,NICOLE Mileage&Parking Therapeutic Rec Administration 140663 752 YOUNG,PHIL Travel Expense City Council 140664 950 ALLMAX SOFTWARE INC Other Contracted Services Water Treatment Plant 140665 289 ALPHA VIDEO& AUDIO INC Video&Photo Supplies Communication Services 140666 254 AMERICAN WATER WORKS ASSOCIATI Training Supplies Water Treatment Plant 140667 2,239 ANCHOR PAPER COMPANY Office Supplies General 140668 239 ANCHOR PRINTING COMPANY Printing Communication Services 140669 517 AO1 ELECTRICAL INC Capital Under$2,000 Fleet Services 140670 244 AQUA LOGIC INC Repair&Maint.Supplies Pool Maintenance 140671 1,076 ATHLETICA Advertising Park Acquisition&Development 140672 815 BEACON ATHLETICS Operating Supplies Park Maintenance 140673 1,015 BECKER ARENA PRODUCTS INC Supplies-General Bldg Ice Arena Maintenance 140674 11,762 BENIEK PROPERTY SERVICES INC. Contract Svcs-Snow Removal Den Bldg.-CAM 140675 461 BERTELSON OFFICE PLUS Office Supplies Water Utility-General 140676 503 BIFFS INC Waste Disposal Park Maintenance 140677 3,953 BLOOMINGTON SECURITY SOLUTIONS Contract Svcs-Security Community Center Maintenance 140678 3,996 BRAUN INTERTEC CORPORATION Design&Engineering Charlson Area Construction 140679 427 BRO-TEX INC Equipment Parts Fleet Services 140680 837 BRYAN ROCK PRODUCTS INC Gravel Water System Maintenance 140681 4,131 BURTON EQUIPMENT INC Supplies-General Building City Center Operations 140682 125 C&H DISTRIBUTORS LLC Cleaning Supplies Water Treatment Plant 140683 700 CAMPBELL,IAN Other Contracted Services Adult Open Gym 140684 250 CARDIAC SCIENCE INC Safety Supplies Fire 140685 36 CEMSTONE PRODUCTS COMPANY Operating Supplies Street Maintenance 140686 802 CIT Conference Expense Information Technology 140687 128 CLAREYS INC Other Contracted Services Water Utility-General 140688 871 CLARKLIFT OF MINNESOTA INC Equipment Parts Water Treatment Plant 140689 1,508 CONSTRUCTION SPECIALTIES INC Supplies-General Bldg City Hall-CAM 140690 1,884 CONTROL SERVICES OF MINNESOTA, Contract Svcs-HVAC City Hall-CAM 140691 2,409 CORPORATE EXPRESS Office Supplies General 140692 7,536 CUTLER-MAGNER COMPANY Chemicals Water Treatment Plant 140693 218 DAKOTA PLUMBING&HEATING Contract Svcs-Plumbing Ice Arena Maintenance 140694 64 DALE GREEN COMPANY,THE Landscape Materials/Supp Street Maintenance 140695 372 DEALER AUTOMOTIVE SERVICES INC Capital Under$2,000 Fleet Services 140696 300 DECORATIVE DESIGNS INC Other Contracted Services Water Treatment Plant 140697 362 DELL Office Supplies General 140698 24,266 DIVERSE BUILDING MAINTENANCE Janitor Service Police City Center 140699 1,390 EAGLE DRY GOODS Advertising Communication Services 140700 147 EDEN PRAIRIE CHAMBER OF COMIAER Miscellaneous Planning 140701 19 EDEN PRAIRIE WINLECTRIC Operating Supplies Traffic Signals 140702 158 ELVIN SAFETY SUPPLY INC Repair&Maint.Supplies Fire 140703 402 EMERGENCY APPARATUS MAINTENANC Repair&Maint.Supplies Fire 140704 375 ENVIRONMENTAL EQUIPMENT&SERV Equipment Parts Fleet Services 140705 5,770 ESS BROTHERS&SONS Repair&Maint.Supplies Storm Drainage 140706 676 ETHANOL PRODUCTS LLC Chemicals Water Treatment Plant 140707 152 FASTENAL COMPANY Supplies-General Building City Center Operations 140708 223 FERRELLGAS Motor Fuels Ice Arena Maintenance 140709 424 G&K SERVICES-MPLS INDUSTRIAL Cleaning Supplies Water Treatment Plant 140710 1,663 GEOMATRIXCONSULTANTS INC Other Contracted Services WAFTA 140711 541 GRAINGER Equipment Parts Fleet Services 140712 15,529 HART-LAND FUEL PRODUCTS LLC Motor Fuels Fleet Services Check# Amount Vendor/Explanation Account Description Business Unit 140713 40 HENNEPIN TECHNICAL COLLEGE Tuition Reimbursement/School Fire 140714 525 HOLMES,TOM Other Contracted Services Volleyball 140715 105 HUEBSCH Ed Center-Contr.Svcs City Ctr-Tenant Direct Costs 140716 543 ICI DULUX PAINT CTRS Building Repair&Maint. Outdoor Center 140717 304 INDUSTRIAL LIGHTING SUPPLY INC Repair&Maint.Supplies Water Treatment Plant 140718 89 INITIALLY YOURS MONOGRAMMING Miscellaneous Communication Services 140719 270 INSIGHT PUBLIC SECTOR Other Hardware Information Technology 140720 1,292 J H LARSON COMPANY Supplies-Electrical City Hall-CAM 140721 25 JANEX INC Repair&Maint.Supplies City Center Operations 140722 954 LAB SAFETY SUPPLY INC Operating Supplies Park Maintenance 140723 310 LAKE COUNTRY DOOR Contract Svcs-General Bldg Fire Station#3 140724 4,628 M R SIGN Signs Traffic Signs 140725 479 MENARDS Equipment Repair&Maint Park Maintenance 140726 423 METRO FIRE Protective Clothing Fire 140727 25 MIDWEST ASPHALT CORPORATION Waste Blacktop/Concrete Street Maintenance 140728 1,750 MIDWEST DESIGN CO Other Contracted Services Communication Services 140729 249 MINNESOTA ROADWAYS CO Patching Asphalt Street Maintenance 140730 1,217 MOORE MEDICAL CORP Safety Supplies Fire 140731 376 MRCI Operating Supplies Park Maintenance 140732 1,414 MTI DISTRIBUTING INC Equipment Parts Fleet Services 140733 575 NATIONAL WATERWORKS Repair&Maint.Supplies Water Meter Repair 140734 1,616 NORTHERN SAFETY TECHNOLOGY INC Capital Under$2,000 Fleet Services 140735 39 OSI BATTERIES INC Operating Supplies Traffic Signs 140736 7,555 PARROTT CONTRACTING INC Other Contracted Services Storm Drainage 140737 203 POKORNY COMPANY Supplies-Plumbing Park Shelters 140738 2,548 PRAIRIE ELECTRIC COMPANY Equipment Repair&Maint Sewer Liftstation 140739 24 PRAIRIE LAWN AND GARDEN Equipment Repair&Maint Park Maintenance 140740 383 R&R MARINE INC Repair&Maint.Supplies Fire 140741 537 RECREONICS Repair&Maint.Supplies Pool Maintenance 140742 148 RMR SYSTEMS INC Other Contracted Services Utility Improvement Fund 140743 300 ROOT 0 MATIC Other Contracted Services Sewer System Maintenance 140744 93 ROYAL TIRE INC Tires Fleet Services 140745 150 SCRAP METAL PROCESSORS INC Waste Disposal Fleet Services 140746 2,780 SHANNON CHEMICAL CORPORATION Chemicals Water Treatment Plant 140747 3,391 SNAP-ON TOOLS Small Tools Fleet Services 140748 397 SOUTHWEST SUBURBAN PUBLISHING- Advertising Prairie View Liquor Store 140749 168 ST.LOUIS PARK,CITY OF Conference Expense Recreation Administration 140750 4,760 STEPHENS PUBLISHING COMPANY Fire Prevention Supplies Fire 140751 2,373 STREICHERS Capital Under$2,000 Fleet Services 140752 24 SUBURBAN CHEVROLET Equipment Parts Fleet Services 140753 5,031 SUMMIT ENVIROSOLUTIONS Other Contracted Services Utility Improvement Fund 140754 214 SUPREME SALES COMPANY INC Repair&Maint.Supplies Police City Center 140755 635 SYSTEM CONTROL SERVICES Other Contracted Services Water Treatment Plant 140756 1,312 TKDA Other Contracted Services Utility Improvement Fund 140757 144 TOM'S WINDOW CLEANING Window Cleaning Den Bldg.-Direct 140758 17 TOWN&COUNTRY CLEANERS Equipment Parts Fleet Services 140759 140 TRANS ALARM INC Building Repair&Maint. Water Treatment Plant 140760 66 UNLIMITED SUPPLIES INC Repair&Maint.Supplies Park Maintenance 140761 6,343 US FOODSERVICE Contract Svcs-Garden Romm Garden Room Repairs 140762 3,796 VESSCO INC Equipment Parts Water Treatment Plant 140763 905 VIDEO SERVICE OF AMERICA Video&Photo Supplies Communication Services 140764 2,930 WALL TRENDS INC Contract Svcs-General Bldg Ice Arena Maintenance 140765 633 WERNER ELECTRIC SUPPLY CO. Equipment Parts Water Treatment Plant 140766 103 WICHTERMAN'S LTD Equipment Repair&Maint Fleet Services 140767 2,499 WILKUS ARCHITECTS INC Other Contracted Services Capital Impr./Maint.Fund 140768 8,842 YALE MECHANICAL INC Contract Svcs-HVAC Park Shelters 140769 650 ZIEBART OF MINNESOTA INC Capital Under$2,000 Fleet Services 1,336,460 Grand Total CITY COUNCIL AGENDA DATE: SECTION: Reports of Councilmembers May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: City Council Cable Franchising Letter XIV.A.2. Synopsis Councilmember Case will discuss a letter drafted by Southwest Suburban Cable Commission for cities to send to legislators regarding cable franchising. Attachment Draft Letter [CITY LETTERHEAD] VIA U.S. MAIL AND FACSIMILE April 27, 2005 Congressman Jim Ramstad OR Congressman Martin Olav Sabo 103 Cannon House Office Building 2336 Rayburn House Office Building Washington,DC 20515 Washington,DC 20515 Facsimile: 202-225-6351 Facsimile: 202-225-4886 Dear Congressman Ramstad OR Congressman Sabo: Please preserve cable franchising, localism and fees paid for use of the public rights-of-way in any rewrite of our telecommunications laws to address Internet Protocol ("IP") services. The fact that IP technology can be used to provide video IP services does not change the fact that to the customer it is like conventional cable service and is provided over wires located in the public rights-of-way. We still need to protect our streets, our residents need the benefits and protections provided by cable franchises, and these need to be enforced locally by those with the most knowledge of community needs and interests. Currently cable companies must obtain franchises from each municipality they serve. Both we and our residents need the protections cable franchises provide. For example franchises: Ensure that we can manage the streets so that all types of users (cars,pedestrians, utilities) can use them with the least amount of interference with other users, including compliance with safety codes. These provisions are tailored to our local situation. Require providers to repair streets they harm, and relocate lines at their expense when streets are straightened or widened. Require bonds, insurance and other security so our city and residents are protected if the provider causes damage or(in a competitive environment) goes out of business. Prohibit redlining or similar discrimination, and require all areas with a certain number of homes per mile to be served, and served promptly (no long delays in serving minority areas). Require cable channels (miniature C-SPANs) for local units of government, schools, and public access and funding from the cable company to support such channels. Provide compensation(franchise fees)to our municipality for the provider's use of public property, and audits to ensure the correct amount is paid. Set forth customer service protections and enforcement mechanisms, including having our municipality resolve customer disputes when problems arise. Require the carriage of local emergency alerts which are not carried on the federal emergency alert system. Congressman Ramstad OR Congressman Sabo April 27, 2005 Page 2 These types of provisions have been in cable franchises for 50 years,work well, are needed, and must be continued. For example,we still have to manage the rights-of-way, no matter what technologies are used in wires placed there. Through the franchising process,we are able to prevent redlining and assure that all our residents get cable service (excluding only thinly populated areas). We determine how many channels and what funding are needed for public, educational and governmental channels, and whether and when such channels should be shared or reallocated. Similarly,we set and enforce customer service provisions based on our situation and the problems our citizens tell us they are having--from not answering the phone on time to leaving the cable drop to the house lying on the ground where it may present a safety hazard. We set these franchise terms so they meet our unique, local situation. There is no national "one size fits all." Similarly, enforcement of these provisions has to be local. The provisions are Y essentially meaningless if we or a customer has to go to the FCC in Washington to enforce them. The FCC cannot manage local rights-of-way, inspect a street the cable company dug up and poorly repaired, or help a customer who has been overcharged or denied service. Having two(2) companies(cable company and now the phone company)providing cable service does not remove the need for these provisions because having two (2)near monopoly suppliers is not real competition. For example, real competition in cell phone rates and service only occurred in the last few years when the number of providers expanded beyond the initial two (2) providers. Competition does not remove the need for municipalities to manage the rights-of- way, prevent redlining,have government channels,provide for local emergency alerts, and receive franchise fees, etc. So IP technologies do not remove the need for the city, consumer and public protections that franchises provide. Overall, IP is simply the latest in a series of technologies that providers have used. In the 1950s and 1960s they had eight(8) channel systems using vacuum tubes and analog technologies to provide"I Love Lucy" and local TV stations. With IP you will still have local TV stations, and "I Love Lucy"as a rerun. IP providers still use the streets for their wires. In fact,the phone companies will have to replace many of their lines in the streets to provide IP services. So with IP the basic nature of cable TV and need for local franchises is the same, even though the technology is improved. Many of these cable franchise protections are needed for IP broadband service as well. For example,the only reason broadband services are broadly available in many communities is because the main provider is the cable operator, and that company's cable franchise typically requires it to provide service throughout the community. By contrast, some phone companies such as SBC are proposing to construct their broadband system so as to provide services to only a portion 50%-60%of residents in the communities the serve. Such redlining should not be P ( Y g acceptable. Just as with cable, municipalities must be able to prevent redlining and make sure that the information superhighway,just like regular highways, is available to all their residents. Congressman Ramstad OR Congressman Sabo April 27,2005 Page 3 For these reasons,we ask you to support the continuation of cable franchising for cable and broadband services and the fees currently paid for use of the public rights-of-way. Sincerely, City Manager cc: The Honorable Joe Barton fax 202-225-3052 2109 Rayburn House Office Building Washington,DC 20515-4306 The Honorable Fred Upton fax 202-225-4968 2161 Rayburn House Office Building Washington,DC 20515-2206 The Honorable John Dingell fax 202-226-0317 2328 Rayburn House Office Building Washington,DC 20515-2215 The Honorable Edward Markey fax 202-226-0092 2108 Rayburn House Office Building Washington, D.C. 20515-2107 The Honorable Mark Dayton fax 202-228-2186 SR-123, Russell Office Building Washington,DC 20510 The Honorable Norm Coleman fax 202-224-1152 320 Senate Hart Office Building Washington,DC 20510 bc: Ms. Cheryl Leanza Principal Legislative Counsel National League of Cities 1301 Pennsylvania Avenue NW Suite 550 Washington D.C. 20004 I Congressman Ramstad OR Congressman Sabo April 27, 2005 Page 4 Ms.Elizabeth Beaty Executive Director NATOA 1800 Diagonal Road Suite 495 Alexandria,VA 22314 Mr. Jeffrey Arnold Deputy Legislative Director National Association of Counties 440 First Street,N.W., 8th Floor Washington DC 20001 Mr. Ron Thaniel Assistant Executive Director U.S. Conference of Mayors 1620 I Street Fourth Floor Washington, DC 20006 Ms. Sona Pancholy Associate Counsel International Municipal Lawyers Association 1110 Vermont Ave,NW Washington,D.C. 20005 Brian Grogan, Esq. Moss&Barnett 4800 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Office of the City Manager ( Memorandum#2005-017 T It gF DATE: April 26, 2005 TO: Mayor and Council FROM: Scott H. Neal, City Manager , am RE: Senior Issues Task Force The City Council established the original Senior Issues Task Force in April 1995 with the following charge: "The Senior Issues Task Force is established for the purpose of providing the City Council with a comprehensive report that identifies the impact of changing demographics of the senior population and the resulting impact on housing, transportation,health, and social services and related issues." The task force members were Dick Brown, Barbara Buehk, Marvin Cofer, Bill Jackson, Pat Nash,and Sandy Werts. The co-chairs of the task force were Councilmember Ron Case and Bette Anderson. Jim Biewer and Melissa Beckman were also original members of the task force,but resigned before the completion of the task force final report in October 1996. The task force met approximately twice each month and completed its work by organizing itself into smaller subgroups to focus on the specific subject areas. The task force received considerable staff support from former Assistant to the City Manager Craig Dawson and current Code and Zoning Enforcement Officer Ms. Jean Johnson. At its April 12 City Council meeting,the Council asked me to prepare a proposed charter statement and timeline for the reestablishment of the Senior Issues Task Force to update the original report during the year of its 101 anniversary. Regarding a new charter statement for the task force, I would propose the following: "The Senior Issues Task Force is reestablished for the purpose of providing the City Council with an update of the 1996 comprehensive report that identified the impact of changing demographics of the senior population and the resulting impact on housing, transportation,health, and social services and related issues." The new charter statement acknowledges that the Senior Issues Task Force is being reestablished and that the purpose of the reestablished task force is to update the 1996 report. The update would include a review of the 1996 data and renew it with the most 1 sis on the 1996 report's e analysis available. It would also include y e data currently accurate y recommendations and how those recommendations have bee n realized in 2005/2006. Regarding the proposed timeline to reestablish the task force,I offer you the following proposal: May 17 Council officially authorizes the reestablishment of the task force. May 25 City staff begin soliciting applications for task force members. June 14 Council appoints the task force members. July Task force holds an organizational meeting in July and sets meeting dates and protocol for the task force process January 2006 The task force final report is delivered to the Council. The timeline for this task force is accelerated compared to the 1995-1996 task force timeline. I believe the accelerated timeline is reasonable given that decisions concerning the scope of the task force are not in play. The charter statement restricts the task force to a replication of the 1996 study—no more,no less. I have visited with my staff about providing both professional and administrative support and Human Services eating from our Housing to the task force. I will assign Mary K g Division to provide professional support to the task force. I will make a decision concerning the assignment of administrative support responsibilities prior to the start of the task force process. In conclusion,I agree that it is a good idea to reestablish the Senior Issues Task Force and to update the 1996 report. I believe the proposed charter statement and timeline are reasonable. If there is a consensus of agreement of Councilmembers on these two points, then I will proceed with the preparation of the necessary documents to start the process for the Council's May 17 meeting. CITY COUNCIL AGENDA DATE: SECTION: Community Development Director's Report May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Community Development/OHHS Adopt a resolution regarding participation in the Janet Jeremiah federal CDBG and HOME programs and authorizing XIV.C.1. Molly Koivumaki a Joint Powers Agreement with the City of Minnetonka to administer CDBG funds. Requested Action Motion to: Adopt the resolution authorizing the Mayor and City Manager to execute such letters, agreements and other documents necessary to implement the following actions: ■ discontinue participation in the Urban Hennepin County CDBG Program ■ execute a Joint Cooperation Agreement between Hennepin County and Eden Prairie to allow Eden Prairie to participate in the Hennepin County Housing Consortium, and thereby remain eligible to participate in the HOME consortium program ■ execute a Joint Powers Agreement between the cities of Minnetonka and Eden Prairie to collaboratively administer federal CDBG funds. Background The Joint Cooperation Agreement (JCA) with Hennepin County currently authorizes that agency to administer Community Development Block Grant (CDBG) funds for Eden Prairie through the 2005 funding cycle. Hennepin County has not been charging Eden Prairie and other "entitlement" cities for these administrative services. ("Entitlement" cities are those that are eligible to opt out of the County's administrative services). Hennepin County has informed the City that beginning with the 2006 CDBG funding cycle, they will start charging Eden Prairie and other entitlement cities for administrative services. The 2006-2008 JCA proposal shows that cities eligible for entitlement city status, including Eden Prairie, will be assessed administrative costs totaling thirteen percent (13%) of the annual basic grant amount. The 2005 grant for Eden Prairie was $296,889. If a similar grant is awarded in 2006, the administrative fees would total over $38,000, thereby reducing available funding for our CDBG programs (e.g., affordable home ownership assistance provided through WHAHLT, home rehab loan program, and human service programs assistance). The City of Minnetonka is in a similar situation, and their staff initiated discussions with Eden Prairie regarding the potential cost efficiencies if the two cities collaborate in administering our own CDBG funds. Minnetonka has proposed an agreement whereby their staff would administer CDBG funds for their community as well as Eden Prairie in accordance with the adopted policies of each respective city. Eden Prairie staff would coordinate with Minnetonka staff to ensure that our individual needs are met. Eden Prairie staff would also attend HUD training and learn the administrative requirements. Public hearings regarding CDBG funding would continue to be held in each respective city. A separate Joint Cooperation Agreement is necessary to secure Eden Prairie's status as a Participating Jurisdiction, along with the cities of Bloomington, Plymouth and Minnetonka in the Hennepin Housing Consortium. Participation in the Consortium is necessary in order to access funds and programs available through the HOME program. This proposal is anticipated to result in cost efficiencies for both communities while allowing us each to remain in the Hennepin County consortium. The cities of Plymouth and Bloomington currently administer their own CDBG funds while remaining part of the Hennepin County consortium. Cities in the consortium are eligible for other funding through the HOME program. Although Plymouth and Bloomington could not provide specific information regarding their administrative costs, they provided anecdotal information about time spent on different CDBG administrative activities. This information indicates that Eden Prairie and Minnetonka could both experience substantial savings by cooperatively administering funds rather than paying the County to do so. The strategic initiatives and policies of the Eden Prairie Comprehensive Plan support strategic partnerships with neighboring communities that are mutually beneficial to optimize opportunities and creatively use resources. The attached Joint Powers Agreement outlines services, fees, and other terms of the collaborative agreement. Attachments Joint Cooperation Agreement—Hennepin Housing Consortium Joint Powers Agreement for CDBG Services Development Agreement CITY OF EDEN PRAIRIE HENNEPIN COUNTY,MINNESOTA RESOLUTION NO.2005- RESOLUTION REGARDING PARTICIPATION IN THE FEDERAL CDBG AND HOME PROGRAMS AND AUTHORIZING A JOINT POWERS AGREEMENT WITH THE CITY OF MINNETONKA BE IT RESOLVED by the City Council of the City of Eden Prairie,Minnesota as follows: Section 1. Background. 1.01. Eden Prairie has, for many years, participated in the Urban Hennepin County CDBG Program and the Hennepin County HOME Consortium Program in order to obtain federal funds for community development and housing programs and projects. 1.02. Minnetonka and Eden Prairie qualify as entitlement cities for purposes of obtaining federal CDBG funds themselves, and are therefore not required to participate in the Urban Hennepin County CDBG Program. 1.03. Minnetonka and Eden Prairie wish to collaborate in the administration of federal CDBG funds allocated to each city, and expect to thereby lower their cost of administering the funds. Section 2. Approval and Authorization. 2.01. The City Council hereby elects to not continue to participate in the Urban Hennepin County CDBG Program. 2.02. The City Council hereby elects to continue as a participant in the Hennepin County HOME Consortium Program. 2.03. The City Council hereby approves a Joint Powers Agreement between the cities of Minnetonka and Eden Prairie to collaboratively administer federal CDBG funds. 2.04. The Mayor and City Manager are authorized to execute such letters, agreements, and other documents as may be necessary to implement these actions. ADOPTED by the Eden Prairie City Council this 3rd day of May,2005. Nancy Tyra-Lukens,Mayor ATTEST: (Seal) Kathleen Porta, City Clerk JOINT POWERS AGREEMENT FOR CDBG SERVICES This agreement is between the city of Minnetonka ("Minnetonka") and the city of Eden Prairie ("Eden Prairie"), both of which are Minnesota municipal corporations with the power to cooperatively exercise municipal powers pursuant to Minn. Stat. §471.59. 1. Purpose. Each of the cities has the authority to receive Community Development Block Grant (CDBG) funds directly from the federal government and to administer those funds according to federal requirements. They wish to collaborate in administering CDBG funds on behalf of both cities, with Minnetonka exercising the lead responsibility in doing so. 2. Provision of Services. Minnetonka will provide all of the personnel, office space, and supplies necessary to administer CDBG funds on behalf of Eden Prairie, except those tasks Eden Prairie decides to exercise on its own after consultation with Minnetonka. 3. Fees. Minnetonka will bill Eden Prairie for the time, materials, and supplies that it devotes to Eden Prairie matters. The personnel time will be billed on an hourly basis, recorded to the nearest one-tenth of an hour. The rate used will be the employee's salary calculated as an hourly rate, plus 25% for benefits and overhead. Time spent on matters that benefit both cities will be billed at one-half of the person's time. Materials and supplies will be billed at Minnetonka's actual cost. 4. Term. This agreement will begin October 1, 2005, and remain in effect until terminated under paragraph 5 below. 5. Termination. Either city may terminate this agreement at any time by giving 90 days advance written notice of termination to the other party. 6. Exchange of Data. Each city will provide all information, data, and reports necessary for the services to be provided under this agreement. The parties will cooperate with each other in every way possible to assist in the provision of these services. 7. Confidentiality. Each city will maintain the confidentiality and privacy of documents the other provides, in accordance with the Minnesota Data Practices Act. 8. Amendment. This agreement may be amended only in writing signed by all of the parties. 1 9. Notices. All notices required or permitted in this agreement and required to be in writing must be given by first class mail addressed to the relevant city manager at the relevant city hall. Date: CITY OF MINNETONKA By Its Mayor And Its City Manager Date: CITY OF EDEN PRAIRIE By Its Mayor And Its City Manager 2 Contract No. A050289 JOINT COOPERATION AGREEMENT HENNEPIN HOUSING CONSORTIUM THIS AGREEMENT made and entered into by and between the COUNTY OF HENNEPIN,State of Minnesota, hereinafter referred to as "COUNTY," and the cities executing this Master Agreement, each hereinafter referred to as "COOPERATING UNIT," said parties to this Agreement each being general governmental units of the State of Minnesota, and is made pursuant to Minnesota Statutes, Section 471.59. For the purposes of this Agreement, COUNTY shall act for and be limited in area to Urban Hennepin County as so qualified by the U.S. Department of Housing and Urban Development under the provisions of the Community Development Block Grant Program,Title I.of the Housing and Community Development Act of 1974, as amended. WITNESSETH: COOPERATING UNIT and COUNTY agree that it is desirable and in the interests of their citizens to secure status as a PARTICIPATING JURISDICTION under the Home Investment in Affordable Housing Program created through Title II, HOME Investment Partnership Act, of the Cranston-Gonzales National Affordable Housing Act of 1990 as amended hereinafter referred to as ffo us g , "ACT," said PARTICIPATING JURISDICTION to be a CONSORTIUM of those general local governmental units executing this AGREEMENT and replicas thereof. I. DEFINITIONS The definitions contained in 24 CFR Part 92 Subpart A.,paragraph inco orated herein p92.2 are � by reference and made a part hereof,and the terms defined in this section have the meanings given them: A. "Act" means Title II. of the Cranston-Gonzalez National Affordable Housing Act(Pub. L. 101-625), (42 U.S.C. 3535 (d.) et. seQ.). B. "HOME Program" means a procedure established for the use of funds made available from HUD through the ACT to carry out multi-year housing strategies through acquisition, rehabilitation and new construction of housing, and tenant-based rental assistance. C. "HUD"means the United States Department of Housing and Urban Development. D. "Consolidated Plan" means the document bearing that title or similarly required statements or documents submitted to HUD for authorization to access the HOME, Community Development Block Grant(CDBG),Emergency Shelter Grant(ESG)and any other HUD programs, pursuant to 24 CFR Parts 91 and 92. The Consolidated Plan is developed by the COUNTY in conjunction with the COOPERATING UNIT. E. Regulations mean 24 CFR Part 92 Home Investment in Affordable Housing Implementing Regulations as issued by HUD. II. PURPOSE This Agreement is to form a CONSORTIUM of units of general local government geographically contiguous to Urban Hennepin County for designation as a PARTICIPATING JURISDICTION under the ACT, said PARTICIPATING JURISDICTION to be known and hereinafter may be referred to as, HENNEPIN HOUSING CONSORTIUM. III. AGREEMENT A. The initial term of this Agreement is for a period commencing on October 1,2005,and terminating no sooner than the end of the 2008 federal fiscal year,and for such additional time as may be required for the expenditure of HOME funds granted to the HENNEPIN HOUSING CONSORTIUM for such period.As required by 24 CFR 92.101(c),neither the COUNTY nor the COOPERATING UNIT may withdraw from the Agreement while the period remains in effect. B. Prior to the end of the initial term and the end of each subsequent qualification period,the COUNTY, as the lead agency of the HENNEPIN HOUSING CONSORTIUM, shall provide a written notice to the COOPERATING UNIT of their right not to participate in a subsequent qualification period. The written notice will provide the COOPERATING UNIT a minimum thirty (30) day period to submit a written withdrawal. If the COOPERATING UNIT does not submit to the COUNTY a written withdrawal during the notice period, this Agreement shall be automatically extended for a subsequent three-year qualifying period. The COUNTY and the COOPERATING UNIT agree to adopt any amendments to the Agreement that incorporate future changes necessary to meet any HUD requirements for consortia agreements in subsequent qualification periods. C. This Agreement shall be executed by the appropriate officers of COOPERATING UNIT and COUNTY pursuant to authority granted them by their governing bodies,and a copy of the authorizing resolution and executed Agreement shall be filed promptly by the COOPERATING UNIT in the Hennepin County Department of Housing, Community Works and Transit, and in any event no later than June 30, 2005. D. COOPERATING UNIT and COUNTY mutually agree that COUNTY as the lead entity shall act in a representative capacity for all members of the HENNEPIN HOUSING CONSORTIUM for the purposes of the ACT. E. COOPERATING UNIT and COUNTY mutually agree that COUNTY shall assume overall responsibility for ensuring that the HENNEPIN HOUSING CONSORTIUM's HOME Program is carried out in compliance with the requirements of the ACT,including the Consolidated Plan. F. COOPERATING UNIT and COUNTY shall participate jointly in the development of the HENNEPIN HOUSING CONSORTIUM's HOME Program and will undertake or assist in the undertaking of housing assistance activities. The Program will define a strategy in sufficient detail to accommodate the collective and individual needs and priorities of all and 2 any of the COOPERATING UNITS constituting the HENNEPIN HOUSING CONSORTIUM. COOPERATING UNIT shall have the opportunity to comment on any Program changes prior to implementation by the HENNEPIN HOUSING CONSORTIUM. G. COOPERATING UNIT and COUNTY mutually agree that the HENNEPIN HOUSING CONSORTIUM's HOME Program will provide fair and ample opportunity for each COOPERATING UNIT to access the funding available through the HENNEPIN HOUSING CONSORTIUM. COOPERATING UNIT shall be given ample opportunity to comment on the distribution of all funding available through the HENNEPIN HOUSING CONSORTIUM. H. COOPERATING UNIT agrees to fully participate with COUNTY in the development and preparation of the Consolidated Plan and to prepare and provide those elements specifically pertaining to COOPERATING UNIT. I. COOPERATING UNIT agrees to comply with all program Regulations and HENNEPIN HOUSING CONSORTIUM's HOME Program features and requirements. J. COOPERATING UNIT and COUNTY agree to affirmatively further fair housing. K. The program year start date for the HENNEPIN HOUSING CONSORTIUM will be July 1 for the federal fiscal years 2006,2007,and 2008. All HUD programs covered by the Consolidated Plan, whether allocated to the COOPERATING UNIT or COUNTY, shall have this same start date. L. COUNTY, after obtaining the COOPERATING UNIT's written concurrence, is authorized to amend this Agreement on behalf of the HENNEPIN HOUSING CONSORTIUM to add new members to the Consortium. IV. OPINION OF COUNSEL The undersigned, on behalf of the Hennepin County Attorney,having reviewed this Agreement,hereby opines that the terms and provisions of the Agreement are fully authorized under state and local law and that the Agreement provides full legal authority for the HENNEPIN HOUSING CONSORTIUM to undertake or assist in undertaking housing assistance activities for the HOME Program. Assistant County Attorney 3 VI. COOPERATING UNIT EXECUTION COOPERATING UNIT, having signed this Agreement, and the COOPERATING UNIT'S governing body having duly approved this Agreement on , 2005, and pursuant to such approval and the proper city official having signed this Agreement,COOPERATING UNIT agrees to be bound by the provisions herein set forth. CITY OF EDEN PRAIRIE By: Its Mayor And: Its City Manager ATTEST: CITY MUST CHECK ONE: The City is organized pursuant to: Plan A Plan B Charter CITY COUNCIL AGENDA DATE: SECTION: Report of Parks and Recreation Director May 3, 2005 DEPARTMENT/DIVISION: ITEM DESCRIPTION: ITEM NO.: Robert A. Lambert, Community Theater Feasibility Study XIV.D.1. Director, Parks and Recreation Requested Action Move to: Authorize staff to initiate a feasibility study to evaluate the construction and operating costs of a community theater using the space available at the Eden Prairie Center and furthermore to evaluate the possibilities of operating this space in partnership AMC or another viable partner. Synopsis The City of Eden Prairie may have an opportunity to expand the Community Theater program by entering into an agreement with General Growth for use of the old theater space at the Eden Prairie Center.Prior to making a decision on the feasibility of this opportunity,the Council will require answers to the following questions: A. What would be the construction costs to renovate this space to accommodate a Community Theater? B. What would be the operating costs to not only maintain this space,but to expand the Community Theater program? C. What would be the cost to operate this space with a partner like AMC or another partner? D. What would be the cost to operate this facility on our own? E. What would General Growth require in terms of long-term contract,hours of operation, etc.? F. What would be the funding source to pay for this construction for the increased operating costs? G. What would happen to other Community Theater and Arts programs with this added facility? H. What are any other possible uses of this space that could generate money to assist in meeting the operation costs? Staff would anticipate completing the feasibility study and the answers to these questions by late summer. Background Earlier this year, members of the Community Theater posed a question to David Lindahl about concerns over the limitations facing the Community Theater program and expressing an interest in trying to find space that would accommodate an expanded program. I Community Theater Feasibility Study May 3, 2005 Page 2 Mr. Lindahl recalled the unused space at the Eden Prairie Center and contacted representatives of General Growth to determine if they were interested in the possibility of allowing that space for a community theater. Mr. Lindahl has also had initial discussions with representatives from AMC to determine if they are interested in a possible partnership for the use of this space. Prior to pursuing any of those requests any further staff met with the City Council in a workshop on April 26 to determine the Council's interest in pursuing the feasibility of this expanded program. Staff would anticipate the costs of the feasibility study to not exceed$10,000 as the majority of the work for the feasibility study would be done in-house; however, some of the architectural work and consultants required for light and sound would require funding for their analysis of the space. Staff recommend the Council pursue the feasibility study to determine what the short-term and long-term costs would be for this expanded program.